CHAPTER I.: OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.

At the opening of these commentaries,(a) municipal law was in general defined to be, “a rule of civil conduct, prescribed by the supreme power in a state commanding what is right, and prohibiting what is wrong.”(b) From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned(c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redressed, by the laws of England.

*[*2In the prosecution of the first of these inquiries, we distinguished rights into two sorts: first, such as concern, or are annexed to, the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries: and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.

Wrongs are divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours. Edition: current; Page: [2] To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding one.

The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore principally to be sought by application to these **3]courts of justice; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs by suit or action in courts. But as there are certain injuries of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.

And first of that redress of private injuries which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.

Of the first sort, or that which arises from the sole act of the injured party, is

I. The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations,2 be forcibly attacked in his person 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 case respects the passions of the human mind, and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he **4]is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither Edition: current; Page: [4] can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicido itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention: for then the defender would himself become an aggressor.

II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace.(e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favours and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption *[*5shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen;(f) but must have recourse to an action at law.3

III. As recaption is a remedy given to the party himself for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements when another person without any right has taken possession thereof.4 This depends in some measure on like Edition: current; Page: [5] reasons with the former; and like that, too, must be peaceable and without force. There is some nicety required to define and distinguish the cases in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.

IV. A fourth species of remedy by the mere act of the party injured is the abatement or removal of nuisances.5 What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it.(g) If a house or wall is erected so near to mine that it stops my antient lights, which is a private nuisance, I may enter my neighbour’s land and peaceably pull it down.(h) Or if a new gate be erected across the public highway, which is a common nuisance, any of the king’s subjects passing that way may cut it down and destroy it.(i) **6]And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as Edition: current; Page: [6] are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.

V. A fifth case in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for the non-payment of rent, or other duties;6 or distraining another’s cattle damage-feasant, Edition: current; Page: [6] that is, doing damage or trespassing upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.

As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness: by inquiring, first, for what injuries a distress may be taken; secondly, what thing may be distrained; and thirdly, the manner of taking, disposing of, and avoiding distresses.

1. And first it is necessary to premise that a distress,(j) districtio, is the taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury for which a distress may be taken is that of non-payment of rent. It was observed in the former book,(k) that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also; but not to rent-seck till the statute 4 Geo. II. c. 28 extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as a universal principle, **7]that a distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it.7 2. For neglecting to do suit at the lord’s court,(l) or other certain personal service,(m) the lord may distrain of common right. 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it.(n) 4. Another injury for which distresses may be taken is where a man finds beasts of a stranger wandering in his grounds damage-feasant; that is, doing him hurt or damage by treading down his grass or the like; in which case the owner of the soil may distrain them till satisfaction be made him for the injury he has thereby sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as for assessments made by commissioners of sewers,(o) or for the relief of the poor,)(p) remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves: remarking only that such distresses(q) are partly analogous to the antient distress at common law, as being repleviable and the like; but more resembling the common law process of execution, by seizing and selling the goods of the debtor under a writ of fieri facias, of which hereafter.

2. Secondly, as to the things which may be distrained, or taken in distress,8 Edition: current; Page: [7] we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead therefore of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular exemptions.(r) And, 1. As every thing which is distrained is presumed to be the property of the wrong-doer, it will follow that such things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and *[*8all animals feræ naturæ,) cannot be distrained. Yet if deer (which are feræ naturæ) are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent.(s) 2. Whatever is in the personal use or occupation of any man is for the time privileged and protected from any distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses drawing a cart may (cart and all) be distrained for rent-arrere; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another’s grounds, the horse (notwithstanding his rider) may be distrained and led away to the pound.9(t) Valuable things in the way of trade shall not be liable to distress; as a horse standing in a smith-shop to be shoed, or in a common inn; or cloth at a tailor’s house; or corn sent to a mill or a market. For all these are protected and privileged for the benefit of trade, and are supposed in common presumption not to belong to the owner of the house, but to his customer.10 But, Edition: current; Page: [8] generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant’s default the chattels are distrained so that he cannot render them when called upon.11 With regard to a stranger’s beasts which are found on the tenant’s land, the following distinctions are, however, taken. If they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent-arrere by the landlord.(u) So also if Edition: current; Page: [9] the stranger’s cattle break the fences and commit a trespass by coming on the land, they are distrainable immediately by the lessor for the tenant’s rent, as a punishment to the owner of the beasts for the wrong committed through his negligence.(v) But if the lands were not *[*9sufficiently fenced so as to keep out cattle, the landlord cannot distrain them till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have lain down and rose up to feed; which in general is held to be one night at least:12 and then the law presumes that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distrainable 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 suffer the landlord to take advantage of his own or his tenant’s wrong.13 3. There are also other things privileged by the antient common law; as a man’s tools and utensils of his trade, the axe of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station.14 So, beasts of the plough,15 averia carucæ, and sheep, are privileged from distresses at common law;(x) while dead goods, or other sort of beasts, which Bracton calls catalla otiosa, may be distrained. But as beasts of the plough may be taken in execution for debt, so they may be for distress by statute, which partake of the nature of executions.(y) And perhaps the true reason why these and the tools of a man’s trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its non-payment: and therefore to deprive the party of the instruments and means of paying it would counteract the very end of the distress.(z) 5. Nothing shall be distrained for rent which may not be rendered again in as good plight as when it was distrained: for which reason milk, fruit, and the like cannot be distrained, a distress at Edition: current; Page: [10] **10]common law being only in the nature of pledge or security, to be restored in the same plight when the debt is paid. So, antiently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal; but a cart loaded with corn might, as that could be safely restored. But now, by statute 2 W. and M. c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained, as well as other chattels.16 6. Lastly, things fixed to the freehold may not be distrained; and caldrons, windows, doors, and chimney-pieces; for they savour of the realty.17 For this reason also corn growing could not be distrained, till the statute 11 Geo. II. c. 19 empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe.18

Let us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And first I must premise that the law of distresses is greatly altered within a few years last past. Formerly they were looked upon in no other light than as a mere pledge or security for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distrainor has no other power than to retain them till satisfaction is made. But, distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century, which have much altered the common law as laid down in our antient writers.

In pointing out therefore the methods of distraining, I shall in general suppose the distress to be made for rent, and remark, where necessary, the differences between such distress and one taken for other causes.

**11]In the first place then, all distresses must be made by day,19 unless in the case of damage-feasant; an exception being there allowed, lest the Edition: current; Page: [11] beasts should escape before they are taken.(a) And, when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly during the continuance of the lease, but now,(b) if the tenant holds over, the landlord may distrain within six months after the determination of the lease; provided his own title or interest, as well as the tenant’s possession, continue at the time of the distress.20 If the lessor does not find sufficient distress on the premises, formerly he could resort nowhere else; and therefore tenants who were knavish made a practice to convey away their goods and stocks fraudulently from the house or lands demised, in order to cheat their landlords. But now(c) the landlord may distrain any goods of his tenant carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bonâ fide sold for valuable consideration; and all persons privy to or assisting in such fraudulent conveyance forfeit double the value to the landlord.21 The landlord may also distrain the beasts of his tenant feeding upon any commons or wastes appendant or appurtenant to the demised premises.22 The landlord might not formerly break open a house to make a distress; for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door;(d) and now(e) he may, by the assistance of the peace-officer of the parish, break open in the daytime any place whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein.

Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once, and not for part at one time and part at another.(f)23 But if he distrains for the whole, and there is not sufficient on the premises, or he happens *[*12to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete his remedy.(g)

Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4, if any man takes a great or unreasonable distress for rent arrere, he shall be heavily amerced for the same. As if(h) the landlord distrains two oxen for twelve pence rent; the taking of both is an unreasonable distress; but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive.(i) For, as these distresses cannot be sold, the owner upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not maintainable upon this account, it being no injury at the common law.(j)24

When the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distrained must in the first place be carried to some pound, and there impounded by the taker. But in their way thither they may be rescued by the owner, in case the distress was taken without cause or contrary to law: as if no rent be due, if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue.(k) But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law.(l)

A pound (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. and M. c. 12, no distress of cattle can be driven out of the hundred where it is taken, **13]unless to a pound-overt within the same shire, 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 distress. And by statute 11 Geo. II. c. 19, which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises upon which a distress is taken into a pound, pro hac vice, for securing of such distress. If a live distress of animals be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and in both these cases the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, in a stable, or the like, the landlord or distrainor must feed and sustain them.(m)25 A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert; else the distrainor must answer for the consequences.

When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held(n) that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded till the owner makes satisfaction, or contests the right of Edition: current; Page: [13] distraining by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter. At present I shall only observe that, as a distress is at common *[*14law only in nature of a security for the rent or damages done, a replevin answers the same end to the distrainor as the distress itself, since the party replevying gives security to return the distress if the right be determined against him.

This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always salable at common law.(o) And for an amercement imposed at a court-leet, the lord may also sell the distress:(p) partly because, being the king’s court of record, its process partakes of the royal prerogative;(q) but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And in like manner, by several acts of parliament,(r) in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken,26 and notice of the cause thereof given him, replevy the same with sufficient security, the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And by this means a full and entire satisfaction may now be had for rent in arrere by the mere act of the party himself, viz., by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament.

Before I quit this article, I must observe, that the many particulars which attend the taking of a distress used formerly to make it a hazardous kind of proceeding: for if any *[*15one irregularity was committed it vitiated the whole and made the distrainors trespassers ab initio.(s) But now, by the statute 11 Geo. II. c. 19, it is provided, that for any unlawful act done the whole shall not be unlawful, or the parties trespassers ab initio: but that the party grieved shall only have an action for the real damage sustained, and not even that if tender of amends is made before any action is brought.

VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy, not much unlike that of taking cattle or goods in distress. As for that division of heriots which is called heriot-service, and is only a species of rent, the lord may distrain for this as well as seize; but for heriot-custom (which Sir Edward Coke says(t) lies only in prender, and not in Edition: current; Page: [15] render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it.(u) The like speedy and effectual remedy of seizing is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature as might be out of the reach of the law before any action could be brought.

These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint act of all the parties together. And these are only two, accord and arbitration.

I. Accord is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract **16]to build a house or deliver a horse, and fail in it; this is an injury for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money or other thing as a satisfaction, this is a redress of that injury, and entirely takes away the action.(w)27 By Edition: current; Page: [16] several late statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 24 Geo. II. c. 24, in case of mistakes committed by justices of the peace,) even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.28

II. Arbitration is where the parties injuring and injured submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar,)(x) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.(y) But the right of real property cannot thus pass by a mere award:(z) which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for if this had been permitted the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release Edition: current; Page: [16] of land; and it will be a breach of the arbitration-bond to refuse compliance.29 For though originally the submission to arbitration used to be by word, or by deed, yet, both of these being revocable in their nature, it is now become the practice to enter into mutual bonds with condition to stand to the award or arbitration of the arbitrators **17]or umpire therein named.(a)30 And experience having shown the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law, the legislature Edition: current; Page: [17] has now established the use of them as well in controversies where causes are depending as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15, that all merchants and others who desire to end any controversy, suit, or quarrel, (for which there is no other remedy but by personal action or suit in equity,) may agree that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king’s courts of record, and may insert such agreement in their submission or promise, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be conclusive: and, after such rule made, the parties disobeying the award shall be liable to be punished as for a contempt of the court; unless such award shall be set aside for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court within one term after the award is made. And, in consequence of this statute, it is now become a considerable part of the business of the superior courts to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt as is awarded for disobedience to those rules and orders which are issued by the courts themselves.31

CHAPTER II.: 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 compass; there being only two instances of this sort that at present occur to my recollection: the one that of retainer, where a creditor is made executor or administrator to his debtor; the other in the case of what the law calls a remitter.

I. If a person indebted to another makes his creditor or debtee his executor, or if such a creditor obtains letters of administration to his debtor; in these cases the law gives him a remedy for his debt by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree.(a)1 This is a remedy by the mere act of law, and grounded upon this reason: that the executor cannot, without an apparent absurdity, commence a suit against himself, as a representative of the deceased, to recover that which is due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor **19]he would be put in a worse condition than all the rest of the world besides. For though a ratable payment of all the debts of the deceased, in equal degree, is clearly the most equitable method, yet, as every scheme for a proportionable distribution of the assets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy, so that the creditor who first commences his suit is entitled to a preference in payment; it follows that, as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it.2 The doctrine of retainer is Edition: current; Page: [19] therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the same situation as if he had sued himself as executor and recovered his debt; which he never could be supposed to have done while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion.(b) Nor shall an executor of his own wrong be in any case permitted to retain.(c)

II. Remitter is where he who hath the true property or jus proprietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title; in this case he is remitted, or sent 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, shall be ipso facto annexed to his own inherent good one: and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent.(e) As if A. disseizes B., that *[*20is, turns him out of possession, and dies, leaving a son C.; hereby the estate descends to C. the son of A., and B. is barred from entering thereon till he proves his right in an action; now, if afterwards C., the heir of the disseizor, makes a lease for life to D., with remainder to B the disseizee for life, and D. dies; hereby the remainder accrues to B., the disseizee: who, thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and surer estate.(f) For he hath hereby gained a new right of possession, to which the law immediately annexes his antient right of property.

If the subsequent estate, or right of possession, be gained by a man’s own act or consent, as by immediate purchase being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right.(g) Therefore it is to be observed, that to every remitter there are regularly these incidents: an antient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleton,(h) why this remedy, which operates silently, and by the mere act of law, was allowed, is somewhat similar to that given in the preceding article; because otherwise he who hath right would be deprived of all remedy. For, as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes,(i) the benignity of the law is such, as when, to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse. Nam quod remedio destituitur, ipsa re valet, si culpa absit. But there shall be no *[*21remitter to a right for which the party has no remedy by action:(k) as if the issue in tail be barred by the fine or warranty of his ancestors,3 and the freehold is afterwards cast upon him, he shall not be remitted to his estate-tail:(l) for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his antient estate, he shall not recover it by remitter.

And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so Edition: current; Page: [21] peculiarly circumstanced as not to make it eligible, or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.

CHAPTER III.: OF COURTS IN GENERAL.

The next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being necessary to set the law in motion, and the process of the law being in general the only instrument by which the parties are enabled to procure a certain and adequate redress.

And here it will not be improper to observe, that although, in the several cases of redress by the act of the parties mentioned in a former chapter,(a) the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice: but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation required a more expeditious remedy than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of assault 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 possession by a real action: I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may distrain for rent, or have an action of debt, at my own **23]option: if I do not distrain my neighbour’s cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction; if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man’s bringing an action against himself; the two cases wherein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief.

In all other cases it is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice; and, secondly, I shall point out in which of these 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 redressed, in each respective species of courts.

First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.

A court is defined to be a place wherein justice is judicially administered.(b) And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are **24]the medium by which he administers the laws, are derived from the power of the crown.(c) For, whether created by act of parliament, or letters-patent, or subsisting by prescription, (the only methods by which any Edition: current; Page: [24] court of judicature(d) can exist,) the king’s consent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present; but, as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.

For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive, jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout them all; viz., that some of them are courts of record, others not of record. A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary.(e)1 And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes. But, if there appear any mistake of the clerk in making up such 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 imprison; so that the very erection *[*25of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record.(g)2 A court not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courts-baron incident to every manor, and other inferior jurisdictions: where the proceedings are not enrolled or recorded; but as well their existence as the truth of the matters therein contained shall, if disputed, be tried and determined by a jury. These courts can hold no plea of matters cognizable by the common law, unless under the value of 40s., nor of any forcible injury whatsoever, not having any process to arrest the person of the defendant.(h)

In every court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judical power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy. It is also usual in the superior courts to have attorneys, and advocates or counsel, as assistants.

An attorney at law answers to the procurator, or proctor, of the civilians and canonists.(i) And he is one who is put in the place, stead, or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, to prosecute or defend his suit, (according to the old Gothic constitution,)(k) Edition: current; Page: [25] unless by special license under the king’s letters-patent.(l) This is still the law in criminal cases.3 And an idiot cannot to this day appear by attorney, but in person;(m) for he hath not discretion to enable him to appoint **26]a proper substitute: and upon his being brought before the court in so defenceless a condition, the judges are bound to take care of his interests, and they shall admit the best plea in his behalf that any one present can suggest.(n) But, as in the Roman law, “cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, cœperunt homines per procuratores litigare,”(o) so with us, upon the same principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute Westm. 3, c. 10, that attorneys may be made to prosecute or defend any action in the absence of the parties to the suit. These attorneys are now formed into a regular corps; they are admitted to the execution of their office by the superior courts of Westminster hall, and are in all points officers of the respective courts of which they are admitted; and, as they have many privileges on account of their attendance there, so they are peculiarly subject to the censure and animadversion of the judges.4 No man can practise as an attorney in any of those courts, but such as is admitted and sworn an attorney of that particular court: an attorney of the court of king’s bench cannot practise in the court of common pleas; nor vice versa.5 To practise in the court of chancery it is also necessary to be admitted a solicitor therein: and by the statute 22 Geo. II. c. 40, no person shall act as an attorney at the court of quarter-sessions but such as has been regularly admitted in some superior court of record. So early as the statute 4 Henry IV. c. 18, it was enacted, that attorneys should be examined by the judges, and none admitted but such as were virtuous, learned, and sworn to do their duty. And many subsequent statutes(p) have laid them under further regulations.6

Of advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court;(q) and are in our old books *[*27styled apprentices, apprenticii ad legem, being looked upon as merely learners, and not qualified to execute the full office of an advocate till they were sixteen years standing; at which time, according to Fortescue,(r) they might be called to the state and degree of serjeants, or servientes ad legem. How antient and honourable this state and degree is, with the form, splendour, and profits attending it, hath been so fully displayed by many learned writers,(s) that it need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oath(t) to do their duty to their clients: and that by custom(u) the judges of the courts of Westminster are always admitted into this venerable order before they are advanced to the bench; the original of which was probably to qualify the puisnè barons of the exchequer to become justices of assize, according to the exigence of the statute of 14 Edw. III. c. 16.7 From both these degrees some are usually selected to be his majesty’s counsel learned in the law; the two principal of whom are called his attorney and solicitor-general. The first king’s counsel under the degree of serjeant was Sir Francis Bacon, who was made so honoris causa, without either patent or fee;(w) so that the first of the modern order (who are now the sworn servants of the crown, with a standing salary) seems to have been Sir Francis North, afterwards lord-keeper of the great seal to king Charles II.(x) These king’s counsel answer, in some measure, to the advocates of the revenue, advocati fisci, among the Romans. For they must not be employed in any cause against the crown without special license;8 in which restriction they agree with the advocates of the fisc:(y) but in the imperial law the prohibition was carried still further, and perhaps was more for the dignity of the sovereign: for, excepting some peculiar causes, the fiscal advocates were not permitted to be at all concerned *[*28in private suits between subject and subject.(z) A custom has of late years prevailed of granting letters-patent of precedence to such barrister Edition: current; Page: [28] as the crown thinks proper to honour with that mark of distinction: whereby they are entitled to such rank and pre-audience(a) as are assigned in their respective patents; sometimes next after the king’s attorney-general, but usually next after his majesty’s counsel then being. These (as well as the queen’s attorney and solicitor-general)(b) rank promiscuously with the king’s counsel, and together with them sit within the bar of the respective courts; but receive no salaries, and are not sworn, and therefore are at liberty to be retained in causes against the crown. And all other serjeants and barristers indiscriminately (except in the court of common pleas, where only serjeants are admitted)10 may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants upon the antient Roman orators. Those indeed practised gratis, for honour merely, or at most for the sake of gaining influence: and so likewise it is established with us,(c) that a counsel can maintain no action for his fees; which are given, not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation:(d)11 as is also laid down with regard to advocates in the civil law,(e) whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, **29]or about 80l. of English money.(f)12 And, in order to encourage due freedom of Edition: current; Page: [29] speech in the lawful defence of their clients, and at the same time to give a check to the unseemly licentiousness of prostitute and illiberal men, (a few of whom may sometimes insinuate themselves even into the most honourable professions,) it hath been holden that a counsel is not answerable for any matter by him spoken relative to the cause in hand and suggested in his client’s instructions, although it should reflect upon the reputation of another, and even prove absolutely groundless: but if he mentions an untruth of his own invention, or even upon instructions, if it be impertinent to the cause in hand, he is then liable to an action from the party injured.(g)13 And counsel guilty of deceit or collusion are punishable by the statute Westm. 1, 3 Edw. I. c. 28, with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemeanours in practice.(h)

CHAPTER IV.: OF THE PUBLIC COURTS OF COMMON LAW AND FQUITY.

We are next to consider the several species and distinctions of courts of justice which are acknowledged and used in this kingdom. And these are, either such as are of public and general jurisdiction throughout the whole realm, or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts: the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.

The policy of our antient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and townships in the kingdom, wherein injuries were redressed in an easy and expeditious manner by the suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a more solemn discussion. *[*31The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in Edition: current; Page: [31] the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges.(a) Peru, according to Garcilasso de Vega, (an historian descended from the antient Incas of that country,) was divided into small districts containing ten families each, all registered and under one magistrate, who had authority to decide little differences and punish petty crimes. Five of these composed a higher class, of fifty families; and two of these last composed another, called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination.(b) In like manner, we read of Moses, that, finding the sole administration of justice too heavy for him, he “chose able men out of all Israel, such as feared God, men of truth, hating covetousness: and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons: the hard causes they brought unto Moses; but every small matter they judged themselves.”(c) These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened that **32]these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.

The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely crimina. I shall not at present concern myself,) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.

1. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati; so called from the dusty feet of the suitors; or, according to Sir Edward Coke,(d) because justice is there done as speedily as dust can fall from the foot; upon the same principle that justice among the Jews was administered in the gate of the city,(e) that the proceedings might be the more speedy as well as public. But the etymology given us by a learned modern writer(f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, (a pedler, in old French,) and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market, of which the steward of him who owns or has the toll of the market is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined within the compass of one and the same day, unless the fair continues longer. The court hath cognizance of **33]all matters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of action arose there.(g) From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster;(h) which are now also bound by the statute 19 Geo. III. c. 70 to issue writs of execution, in aid of its process after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion Edition: current; Page: [33] the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both, or perhaps either, of the parties; and therefore, unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature.

II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures:(i) the one is a customary court, of which we formerly spoke,(k) appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes antiently called:1 for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., the freeholders’ court, was composed of the lord’s tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor.2 It may also hold plea of any personal actions of debt, trespass on the case, or the like, where the debt or damages do not *[*34amount to forty shillings;(l) which is the same sum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-courts, so called because four were instituted within every superior district or hundred.(m) But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt,(n) “quia tollit atque eximit causam e curia baronum.”(o) And the proceedings in all other actions may be removed into the superior courts by the king’s writs of pone,(p) or accedas ad curiam, according to the nature of the suit.(q) After judgment given, a writ also of false judgment(r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore, in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.

III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record; resembling the former in all points, except that in point of territory it is of greater jurisdiction.(s) This is said by Sir Edward Coke to have been derived out of the county-court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time;(t) but its institution was probably coeval with that of hundreds themselves, which were formerly observed(u) to have been introduced, though not invented, by Alfred, being derived from the polity Edition: current; Page: [34] of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterwards only **35]called by that name;(v) and who probably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. “Principes regionum atque pagorum” (which we may fairly construe, the lords of hundreds and manors) “inter suos jus dicunt, controversiasque minuunt.”(w) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. “Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, absunt.”(x) This hundred court was denominated hæreda in the Gothic constitution.(y) But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.3

IV. The county-court4 is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings.(z) Over some of which causes these inferior courts have, by the express words of the statute of Gloucester,(a) a jurisdiction totally exclusive of the king’s superior courts. For in order to be entitled to sue an action of trespass for goods before the king’s justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bonâ fide amount to 40s.; which affidavit is now unaccountably disused,(b) except in the Edition: current; Page: [35] court of exchequer.5 The statute also 43 Eliz. c. 6, which gives the judges in many personal actions, where the jury assess less damages than 40s., a power to certify the same and *[*36abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs; who for purposes of mere oppression might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county-court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of despatch to do the same justice in his county-court, as might otherwise be had at Westminster.(c) The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders which are supposed always to attend at the county-court (which Spelman calls forum plebeiæ justiciæ et theatrum comitivæ potestatis)(d) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or in full county-court. By the statute 2 Edw. VI. c. 25, no county-court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Edward the elder;(e) “præpositus (that is, the sheriff) ad quartam circiter septimanam frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito.” In those times the county-court was a court of great dignity and splendour, the bishop and the ealdorman, (or earl,) with the principal men of the shire, sitting therein to administer justice both in lay and ecclesiastical causes.(f) But its dignity was much impaired when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king’s superior courts, by writ of pone or recordari,(g) in the same manner as from *[*37hundred-courts and courts-baron; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.6

These are the several species of common-law courts, which, though dispersed universally throughout the realm, are nevertheless of a partial jurisdiction, and confined to particular districts, yet communicating with, and, as it were, members of, the superior courts of a more extended and general nature; which are calculated for the administration of redress, not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is,

V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.

By the antient Saxon constitution, there was only one superior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes: viz., the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel; and the Conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton,(h) and other antient authors, aula regia, or aula regis. This court was composed of the king’s great officers of state resident in his palace, and usually attendant on his person; such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, there were the lord high steward, and lord great chamberlain; the steward of the household; the lord chancellor, whose peculiar **38]business it was to keep the king’s seal, and examine all such writs, grants, and letters as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king’s justiciars or justices, and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue: and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Angliæ; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king’s absence. And this officer it was who principally determined all the vast variety of causes that arose in this extensive jurisdiction, and from the plenitude of his power grew at length both obnoxious to the people, and dangerous to the government which employed him.(i)

This great universal court being bound to follow the king’s household in all his progresses and expeditions, the trial of common causes therein was found very burdensome to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of magna carta, and enacts, “that communia placita non Edition: current; Page: [38] sequantur curiam regis, sed teneantur in aliquo loco cerio.” This certain place was established in Westminster hall, the place where the aula regis originally sat, when the king resided in that city; and there it hath ever since continued. And the court being thus rendered fixed and stationary, the judges became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil, between subject and subject. Which critical establishment of this principal court of *[*39common law, at that particular juncture and that particular place, gave rise to the inns of court in its neighbourhood; and, thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonists and civilians, who laboured to extirpate and destroy it.(j) This precedent was soon after copied by king Philip the Fair in France, who about the year 1302 fixed the parliament at Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went, and in which he himself used frequently to decide the causes that were there depending; but all were then referred to the sole cognizance of the parliament and its learned judges.(k) And thus also in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spires.(l)

The aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry III. And, in further pursuance of this example, the other several officers of the chief justiciar were, under Edward the First, (who new-modelled the whole frame of our judicial polity,) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided; as did the steward of the household over another, constituted to regulate the king’s domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trial of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were *[*40made to form a check upon each other: the court of chancery issuing all original writs under the great seal to the other courts; the common pleas being allowed to determine all causes between private subjects; the exchequer managing the king’s revenue; and the court of king’s bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal; and the sole cognizance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts: pleas of the crown, which comprehend all crimes and misdemeanours, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions depending between subject and subject. The former of these were the proper object of the jurisdiction of the court of king’s bench; the latter of the court of common pleas, which is a court of record, and is styled by Sir 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 personal, pleas between man and man, are likewise here determined; though in most of them the king’s bench has also a concurrent authority.7

The judges of this court are at present(n) four in number, one chief and three Edition: current; Page: [40] puisnè justices, created by the king’s letters-patent, who sit every day in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal, or mixed and compounded of both. These 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.8

**41]VI. The court of king’s bench (so called because the king used formerly to sit there in person,(o) the style of the court still being coram ipso rege)9 is the supreme court of common law in the kingdom; consisting of a chief justice and three puisnè justices, who are by their office the sovereign conservators of the peace and supreme coroners of the land. Yet, though the king himself used to sit in this court, and still is supposed so to do, he did not, neither by law is he empowered(p) to, determine any cause or motion, but by the mouth of his judges, to whom he hath committed his whole judicial authority.(q)10

This court, which (as we have said) is the remnant of the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the king’s person wherever he goes: for which reason all process issuing out of this court in the king’s name is returnable “ubicunque fuerimus in Anglia.” It hath indeed, for some centuries past, usually sat at Westminster, being an antient palace of the crown; but might remove with the king to York or Exeter, if he thought proper to command it. And we find that, after Edward I. had conquered Scotland, it actually sat at Roxburgh.(r) And this movable quality, as well as its dignity and power, are fully expressed by Bracton when he says that the justices of this court are “capitales, generales, perpetui, et majores; a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores.”(s) And it is moreover especially provided in the articuli super cartas,(t) that the king’s chancellor, and the justices of his bench, shall follow him, so that he may have at all times near unto him some that be learned in the laws.

*[*42The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance both of criminal and civil causes: the former in what is called the crown side, or crown office; the latter in the plea side of the court. The jurisdiction of the crown side is not our present business to consider: that will be more properly discussed in the ensuing book. But on the plea side, or civil branch, it hath an original jurisdiction and cognizance of all actions of trespass or other injury alleged to be committed vi et armis; of actions for forgery of deeds; maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fraud; all of which savour of a criminal nature, although the action is brought for a civil remedy; and make the defendant liable in strictness to pay a fine to the king, as well as damages to the injured party.(u) The same doctrine is also now extended to all actions on the case whatsoever:(w) but no action of debt or detinue, or other mere civil action, can by the common law be prosecuted by any subject in this court by original writ out of chancery;(x)11 though an action of debt given by statute may be brought in the king’s bench as well as in the common pleas.(y) And yet this court might always have held plea of any civil action, (other than actions real,) provided the defendant was an officer of the court; or in the custody of the marshal, or prison-keeper, of this court, for a breach of the peace or any other offence.(z) And, in process of time, it began by a fiction to hold plea of all personal actions whatsoever, and has continued to do so for ages:(a) it being surmised that the defendant is arrested for *[*43a supposed trespass, which he never has in reality committed; and, being thus in the custody of the marshal of the court, the plaintiff is at liberty to proceed against him for any other personal injury: which surmise, of being in the marshal’s custody, the defendant is not at liberty to dispute.(b) And these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.(c) So true it is, that in fictione juris semper subsistit æquitas.(d) In the present case, it gives the suitor his choice of more than one tribunal before which he may institute his action; and prevents the circuity and delay of justice, by allowing that suit to be originally, and in the first instance, commenced in this court, which, after a determination in another, might ultimately be brought before it on a writ of error.12

For this court is likewise 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 also from the court of king’s bench in Ireland. Yet even this so high and honourable court is not the dernier resort of the subject; for, if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords. Edition: current; Page: [43] or the court of exchequer chamber, as the case may happen, according to the nature of the suit and the manner in which it has been prosecuted.13

VII. The court of exchequer is inferior in rank not only to the court of king’s bench, but to the common pleas also: but I have chosen to consider it in this order on account of its double capacity as a court of law and a court of equity **44]also. It is a very antient court of record, set up by William the Conquerer,(e) as a part of the aula regia,(f) though regulated and reduced to its present order by king Edward I.,(g) and intended principally to order the revenues of the crown, and to recover the king’s debts and duties.(h) It is called the exchequer, scaccharium, from the checked cloth, resembling a chessboard, which covers the table there, and on which, when certain of the king’s accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern; and the court or judicial part of it, which is again subdivided into a court of equity and a court of common law.14

The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones. These Mr. Selden conjectures(i) to have been antiently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name; which conjecture receives great strength from Bracton’s explanation of magna carta, c. 14, which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer.(k) The primary and original business of this court is to call the king’s debtors to account, by bill filed by the attorney-general; 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 constitution the jurisdiction of the court of common pleas, king’s bench, and exchequer was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king’s bench to correct all crimes and misdemeanours that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown; and the exchequer to adjust **45]and recover his revenue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king’s bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as Edition: current; Page: [44] all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king’s debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common-law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.

This gives original to the common-law part of their jurisdiction, which was established merely for the benefit of the king’s accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king’s farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is less able to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland,(l) to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartas,(m) it is enacted, that no common pleas be thenceforth holden in the exchequer contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king’s accomptant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally.15 The same holds with regard to the equity side of the court: for there any person may file *[*46a bill against another upon a bare suggestion that he is the king’s accomptant; but whether he is so, or not, is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in which case the surmise of being the king’s debtor is no fiction, they being bound to pay him their first-fruits and annual tenths. But the chancery has of late years obtained a large share in this business.

An appeal from the equity side of this court lies immediately to the house of peers; but from the common-law side, in pursuance of the statute 31 Edw. III c. 12, a writ of error must be first brought into the court of exchequer chamber. And from the determination there had, there lies, in the dernier resort, a writ of error to the house of lords.16

VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king’s superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor, or cancellarius; who, Sir Edward Coke tells us, is so termed a cancellando, from cancelling the king’s letters patent when granted contrary to law, which is the highest point of his jurisdiction.(n)17 But the office and name of chancellor (however derived) was Edition: current; Page: [46] certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown as were authenticated in the most solemn manner: and therefore **47]when seals came in use, he had always the custody of the king’s great seal. So that the office of chancellor, or lord keeper,18 (whose authority by statute 5 Eliz. c. 18, is declared to be exactly the same,) is with us at this day created by the mere delivery of the king’s great seal into his custody:(o) whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord.(p) He is a privy counsellor by his office,(q) and, according to lord chancellor Ellesmere,(r) prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none elso were then capable of an office so conversant in writings,) and presiding over the royal chapel,(s) he became keeper of the king’s conscience; visitor in right of the king, of all hospitals and colleges of the king’s foundation; and patron of all the king’s livings under the value of twenty marks(t) per annum in the king’s books.19 He is the general guardian of all infants, idiots, and lunatics; Edition: current; Page: [47] and has the general superintendence of all charitable uses in the kingdom. And all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity.

The ordinary legal court is much more antient than the court of equity. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king’s letters-patent, when made against law or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands Edition: current; Page: [47] or goods, in prejudice of a subject’s right.(u) On proof of which, as the king can never **48]be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury, and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party.(v) It might likewise hold plea (by scire facias) of partitions of land in coparcenery,(w) and of dower,(x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king, and claimed by a stranger against the grantee of the crown;(y) and of executions on statutes, or recognizances in nature thereof, by the statute 23 Henry VIII. c. 6.(z) But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria manu into the court of king’s bench, where it shall be tried by the country, and judgment shall be there given thereon.(a)20 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 so little is usually done on the common-law side of the court, that I have met with no traces of any writ of error(c) being actually brought, since the fourteenth year of queen Elizabeth, ad 1572.

In this ordinary or legal court is also kept the officina justitiæ: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiæ, any writ that his occasions **49]may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of antient times, originally kept in a hamper, in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva oaga: and thence hath arisen the distinction 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 greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have Edition: current; Page: [49] ever been known, in any other country at any time:(d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans;(e) the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws,(f) but the power of both centred in one and the same magistrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cases by the principles of equity. With us, too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton(g) as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward I., and *[*50treating particularly of courts and their several jurisdictions,) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king’s original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person assisted by his privy-council, (from whence also arose the jurisdiction of the court of requests,(h) which was virtually abolished by the statute 16 Car. I. c. 10;) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia,(i) but also after its dissolution, in the reign of king Edward I.;(k) and perhaps, during its continuance, in that of Henry II.(l)

In these early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to antient precedents, it is provided by statute Westm. 2, 13 Edw. I. c. 24, that “whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and requiring like remedy *[*51no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law,(m) lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors.” And this accounts for the very great variety of writs of trespass on the case to be met with in the register; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case.(n) Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ) Edition: current; Page: [51] might have effectually answered all the purposes of a court of equity;(o) except that of obtaining a discovery by the oath of the defendant.

But when, about the end of the reign of king Edward III., uses of land were introduced,(p) and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established;(q) and John Waltham, who was bishop of Salisbury and chancellor to king Richard II., by a strained interpretation of the above-mentioned statute of Westm. 2, devised the writ of subpœna, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is, by statute 17 Ric. II. c. 6, directed to give damages to the party unjustly aggrieved. But as the **52]clergy, so early as the reign of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro lœsione fidei, as a spiritual offence against conscience, in case of non-payment of debts or any breach of civil contracts;(r) till checked by the constitutions of Clarendon,(s) which declared that “placita de debitis, quœ fide interposita debentur, vel absque interpositione fidei, sint in justitia regis:” therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued(t) to grasp at the same authority as before in suits pro lœsione fidei so 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 of subpœna entirely suppressed, as being a novelty devised by the subtlety of chancellor Waltham against the form of the common law; whereby no plea could be determined unless by examination on oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV., being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Hen. IV. c. 23, whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV.’s time the process by bill and subpœna, was become the daily practice of the court.(x)

**53]But this did not extend very far: for in the antient treatise entitled diversité des courtes,(y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpœna in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorp and Knyvet, successively chancellors to king Edward III. in 1372 and 1373,(z) to the promotion of Sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers,(a) or churchmen,(b) Edition: current; Page: [53] according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln, who had been chaplain to lord Ellesmere when chancellor.(c)

In the time of lord Ellesmere (ad 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justico of the court of king’s bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, solicitors, the counsel, and even a master in chancery, for having incurred a prœmunire by questioning in a court of equity a judgment in the court of king’s bench obtained by gross fraud and imposition.(d) This matter, being brought before the king, was by him referred *[*54to his learned counsel for their advice and opinion; who reported so strongly in favour of the courts of equity,(e) that his majesty gave judgment in their behalf; but, not contented with the irrefragable reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong,) he chose rather to decide the question by referring it to the plenitude of his royal prerogative.(f) Sir Edward Coke submitted to the decision,(g) and thereby made atonement for his error: but this struggle, together with the business of commendams, (in which he acted a very noble part,)(h) and his controlling the commissioners of sewers,(i) were the open and avowed causes,(k) first of his suspension, and soon after of his removal, from his office.

Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I., did little to improve upon his plan: and even after the restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice, as a lawyer, near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Sir Heneage Finch, who succeeded in 1673, *[*55and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country; and endued with a pervading genius that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, co-operated in establishing his plan, and enabled him, in the course of nine years, to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended and improved by many great men who have since presided in chancery. And from that time to this the power and business of the court have increased to an amazing degree.21

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter; the latter upon Edition: current; Page: [55] nothing but only a definitive judgment. 2. That on writs of error the house of lords pronounces the judgment; on appeals it gives direction to the court below to rectify its own decree.

IX. The next court that I shall mention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12 to determine causes by writs of error from the common-law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king’s bench and common pleas. In imitation of which, a second court of exchequer chamber was erected by statute 27 Eliz. c. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *[*56in certain suits(l) originally begun in the court of king’s bench.22 Into the court also of exchequer chamber (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also) are sometimes adjourned from the other courts such causes 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 house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law committed Edition: current; Page: [56] by the courts below. To this authority this august tribunal succeeded of course upon the dissolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside; it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no further appeal is permitted; but every subordinate tribunal must conform to their determinations; the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges who are summoned by writ to advise them; since upon their decision all property must finally depend.23

Hitherto may also be referred the tribunal established by statute 14 Edw. III. c. 5, consisting (though now out of use) of one prelate, two earls, and two Edition: current; Page: [56] barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in the king’s courts, and (with the advice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these *[*57inconveniences in the courts below. This committee seems to have been established lest there should be a defect of justice for want of a supreme court of appeal during any long intermission or recess of parliament; for the statute further directs, that if the difficulty be so great that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons, unto the next parliament, who shall finally determine the same.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing. I mean the courts of assize and nisi prius.

These are composed of two or more commissioners, who are twice in every year sent by the king’s special commission all round the kingdom, (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts;24 and except the four northern counties, where the assizes are holden only once a year,) to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster hall. These judges of assize came into use in the room of the antient justices in eyre, justiciarii in itinere, who were regularly established, if not first appointed, by the parliament of Northampton, ad 1176, 22 Hen. II.,(n) with a delegated power from the king’s great court, or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes.(o) They were afterwards directed, by magna carta, c. 12, to be sent into every county once a year to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assize, or of dower, or of gaol-delivery, and the like; and *[*58they had sometimes a more general commission to determine all manner of causes, being constituted justiciarii ad omnia placita:(p) but the present justices of assize and nisi prius are more immediately derived from the statute Westm. 2, 13 Edw. I. c. 30, which directs them to be assigned out of the king’s sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4, (explained by 12 Edw. II. c. 3,) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought, associating to him one knight or other approved man of the county. And lastly, by statute 14 Edw. III. c. 16, Edition: current; Page: [58] inquests of nisi prius may be taken before any justice of either bench, (though the plea be not depending in his own court,) or before the chief baron of the exchequer, if he be a man of the law; or otherwise before the justices of assize, so that one of such justices be a judge of the king’s bench or common pleas, or the king’s serjeant sworn.25 They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes being allowed to be taken in the holy time of lent by consent of the bishops at the king’s request, as expressed in statute Westm. 1, 3 Edw. I. c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times; for, oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance.(q) The prudent jealousy of our ancestors ordained(r) that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit;26 and a similar prohibition is found in the civil law,(s) which has carried this principle so far that it is equivalent to the crime of sacrilege for a man to be governor of the province in which he was born or has any civil connexion.(t)

The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery. The consideration of all which belongs properly **59]to the subsequent book of these commentaries. But the fourth commission is, 4. A commission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties,—that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assize,(u) being annexed to the office of those justices by the statute of Westm. 2, 13 Edw. I. c. 30, and it empowers them to try all questions of fact issuing out of the courts of Westminster that are then ripe for trial by jury.27 These, by the course of the courts,(w) are usually appointed to be tried at Westminster in some Easter or Michaelmas Term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisi prius, unless before the day prefixed the judges of assize come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas Term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II. before mentioned; whereby certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assizes, &c., that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by Edition: current; Page: [59] the absence of any of them, there is also issued of course a writ of si non omnes, directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.

These are the several courts of common law and equity which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts and injuries of small consequence were to be recovered or redressed in every *[*60man’s own county, hundred, or perhaps parish. Pleas of freehold, and more important disputes of property, were adjourned to the king’s court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemeanours were to be examined in a court by themselves, and matters of the revenue in another distinct jurisdiction. Now indeed, for the ease of the subject and greater despatch of causes, methods have been found to open all the three superior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours; but the law arising upon those facts is determined by the judges above: and, if they are mistaken in point of law, there remain in both cases two successive courts of appeal to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides over all one great court of appeal, which is the last resort in matters of both law and equity, and which will therefore take care to preserve a uniformity and equilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand of our forefathers, of which the great original lines are still strong and visible; and if any of its minuter strokes are by the length of time at all obscured or decayed, they may still be with ease restored to their pristine vigour; and that not so much by fanciful alterations and wild experiments (so frequent in this fertile age) as by closely adhering to the wisdom of the antient plan, concerted by Alfred and perfected by Edward I., and by attending to the spirit, without neglecting the forms, of their excellent and venerable institutions.

*[*61CHAPTER V.: OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME.

Besides the several courts which were treated of in the preceding chapter, and in which all injuries are redressed that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general, which take cognizance of other species of injuries of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and maritime.

1. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise that in the time of our Saxon ancestors there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the county-court was as much a spiritual as a temporal tribunal: the rights of the church Edition: current; Page: [61] were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county-court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop’s opinion in spiritual matters, and to that of the lay judges in temporal.(a) This union of power was very advantageous to them both; the presence of the **62]bishop added weight and reverence to the sheriff’s proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders as would otherwise have despised the thunder of mere ecclesiastical censures.

But so moderate and rational a plan was wholly inconsistent with those views of ambition that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only; which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right and investiture from Christ himself, and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that “sacerdotes a regibus honorandi sunt, non judicandi;”(b) and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine, that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction, “ite et inter vos causas vestras discutite, quia dignum non est ut nos judicemus Deos.”(c)

It was not, however, till after the Norman conquest that this doctrine was received in England; when William I. (whose title was warmly espoused by the monasteries, which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy and planted in the best preferments of the English church) was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward, abounding with the spirit of Saxon liberty, is not altogether **63]certain. But the latter, if not the cause, was undoubtedly the consequence, of this separation; for the Saxon laws were soon overborne by the Norman justiciaries, when the county-court fell into disregard by the bishop’s withdrawing his presence, in obedience to the charter of the Conqueror;(d) which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law.(e)

King Henry the First, at his accession, among other restorations of the laws of king Edward the Confessor, revived this of the union of the civil and eccle siastical courts.(f) Which was, according to Sir Edward Coke,(g) after the great heat of the conquest was past, only a restitution of the antient law of England. This, however, was ill relished by the popish clergy, who, under the guidance of that arrogant prelate, archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates: and therefore in their synod at Westminster, 3 Hen. I., they ordained that no bishop Edition: current; Page: [63] should attend the discussion of temporal causes;(h) which soon dissolved this newly-effected union. And when, upon the death of king Henry the First, *[*64the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop’s jurisdiction.(i) And as it was about that time that the contest and emulation began between the laws of England and those of Rome,(k) the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church.

In briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts christian, (curiæ christianitatis,) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal.(l)

1. The archdeacon’s court is the most inferior court in the whole eccleasiastical polity. It is held in the archdeacon’s absence before a judge appointed by himself, and called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop’s court of the diocese. From hence, however, by statute 24 Hen. VIII. c. 12, an appeal lies to that of the bishop.

2. The consistory court of every diocesan bishop is held in their several cathedrals, drals, for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop’s chancellor, or his commissary, is the judge; and from his sentence an appeal lies, by virtue of the same statute, to the archbishop of each province respectively.

3. The court of arches is a court of appeal belonging to the archbishop of Canterbury; whereof the judge is called *[*65the dean of the arches, because he antiently held his court in the church of Saint Mary le bow, (sancta Maria de arcubus,) though all the principal spiritual courts are now holden at doctors’ commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London; but the office of dean of the arches having been for a long time united with that of the archbishop’s principal official, he now, in right of the last-mentioned office, (as doth also the official principal of the archbishop of York,) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery, (that is, to a court of delegates appointed under the king’s great seal,) by statute 25 Hen. VIII. c. 19, as supreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal.

4. The court of peculiars is a branch of and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary’s jurisdiction and subject to the metropolitan only. All ecclesiastical causes arising within these peculiar or exempt jurisdictions are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now, by the statute 25 Hen. VIII. c. 19, to the king in chancery.

5. The prerogative court is established for the trial of all testamentary causes where the deceased hath left bona notabilia within two different dioceses. In which case the probate of wills belongs, as we have formerly seen,(m) to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge *[*66of the prerogative court: from whom an appeal lies, by statute 25 Hen. VIII. c. 19, to the king in chancery, instead of the pope, as formerly.

I pass by such ecclesiastical courts as have only what is called a voluntary, and not a contentious, jurisdiction; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licenses, faculties, and other remnants of the papal extortions,) but do not concern themselves with administering redress to any injury: and shall proceed to.

6. The great court of appeal in all ecclesiastical causes, viz., the court of delegates, judices delegati, appointed by the king’s commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye, as being contrary to the liberty of the subject, the honour of the crown, and the independence of the whole realm; and were first introduced in very turbulent times in the sixteenth year of king Stephen, (ad 1151,) at the same period (Sir Henry Spelman observes) that the civil and canon laws were first imported into England.(n) But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II., on account of the disturbances raised by archbishop Becket and other zealots of the holy see, expressly declare,(o) that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan; from the diocesan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any further without special license from the crown. But the unhappy advantage that was given, in the reigns of king John and his son Henry the Third, to the encroaching **67]power of the pope, who was ever vigilant to improve all opportunities of extending his jurisdiction hither, at length riveted the custom of appealing to Rome in causes ecclesiastical so strongly, that it never could be thoroughly broken off till the grand rupture happened in the reign of Henry the Eighth; when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged: so that the statute 25 Hen. VIII. was but declaratory of the antient law of the realm.(p) But in case the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd; but, by the statute 24 Hen. VIII. c. 12, to all the bishops of the realm, assembled in the upper house of convocation.1

7. A commission of review is a commission sometimes granted, in extraordinary cases, to revise the sentence of the court of delegates, when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII. before cited, declare the sentence of the delegates definitive: because the pope, as supreme head by the canon law, used to grant such commission of review; and such authority as the pope heretofore exerted is now annexed to the crown(q) by statutes 26 Hen. VIII. c. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito justitiæ, but merely a matter of favour, and which therefore is often denied.

These are now the principal courts of ecclesiastical jurisdiction: none of which are allowed to be courts of record; no more than was another much more formidable jurisdiction, but now deservedly annihilated, viz., the court of the king’s high commission in causes ecclesiastical. This court was erected and Edition: current; Page: [67] united to the legal power(r) by virtue of the statute 1 Eliz. c. 1, instead of a larger jurisdiction which had before been exercised under the pope’s authority. It was intended *[*68to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which very general words, means were found, in that and the two succeeding reigns, to vest in the high commissioners extraordinary and almost despotic powers of fining and imprisoning; which they exerted much beyond the degree of the offence itself, and frequently over offences by no means of spiritual cognizance. For these reasons this court was justly abolished by statute 16 Car. I. c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the Second, served only to hasten that infatuated prince’s ruin.

II. Next, as to the courts military. The only court of this kind known to, and established by, the permanent laws of the land, is the court of chivalry, formerly held before the lord high constable and earl marshal of England jointly, but since the attainder of Stafford, duke of Buckingham, under Henry VIII., and the consequent extinguishment of the office of lord high constable, it hath usually, with respect to civil matters, been held before the earl marshal only.(s) This court, by statute 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 its sentences an appeal lies immediately to the king in person.(t) 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 almost entirely out of use, on account of the feebleness of its jurisdiction, and want of power to enforce its judgments, as it can neither fine nor imprison, not being a court of record.(u)

III. The maritime courts, or such as have power and jurisdiction to determine all maritime injuries, arising upon the *[*69seas, or in parts out of the reach of the common law, are only the court of admiralty and its 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 Sir Henry Spelman,(w) and Lambard,(x) it was first of all erected by king Edward the Third. Its proceedings are according to the method of the civil law, like those of the ecclesiastical courts; upon which account it is usually held at the same place with the superior ecclesiastical courts, at doctors’ commons in London.2 It is no court of record, any more than the spiritual courts. From the sentences of the admiralty judge an appeal always lay, in ordinary course, to Edition: current; Page: [69] the king in chancery, as may be collected from statute 25 Hen. VIII. c. 19 which directs the appeal from the archbishop’s courts to be determined by per sons named in the king’s commission, “like as in case of appeal from the admiral court.” But this is also expressly declared by statute 8 Eliz. c. 5, which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.

Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral’s jurisdiction, though they may also be brought before the king in council.3 But in case of prize vessels, 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 commissioners of appeals consisting 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 established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not;4 for, this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to which this question is **70]permitted in England, is the court of admiralty;5 and the court of appeal is in effect the king’s privy council, the members of which are, in consequence of treaties, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster hall, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3, with a proviso that no sentence given under it should be valid unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions: and such an addition became indeed totally unnecessary in the course of the war which commenced in 1756; since during the whole of that war, the commission of appeals was regularly attended and all its decisions conducted by a judge whose masterly acquaintance with the law of nations was known and revered by every state in Europe.(y)6

CHAPTER VI.: OF COURTS OF A SPECIAL JURISDICTION.

In the two preceding chapters we have considered the several courts whose jurisdiction is public and general, and which are so contrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remain certain others, whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries. These are,

I. The forest courts, instituted for the government of the king’s forests in different parts of the kingdom, and for the punishment of all injuries done to the king’s deer or venison, to the vert or greensward, and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of sweinmote, and of justice-seat. 1. The court of attachments, wood-motes, or forty-days court is to be held before the verderors of the forest once in every forty days;(a) and is instituted to inquire into all offenders against vert and venison;(b) who may be attached by their bodies, if taken with the mainour, (or mainoeuvre, a manu,) that is, in the very act of killing venison, or stealing wood, or preparing so to do, or by fresh and immediate pursuit after the act is done;(c) else they must be attached by their goods. And in this forty-days court the foresters or keepers are to bring their attachments, or presentments de viridi et venatione; and the verderors are to receive the same, and to enroll them, and to certify them under their seals to the court of justice-seat or sweinmote:(d) for this court can only inquire of, but not convict, offenders. 2. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expeditation of mastiffs, which is done by cutting off the claws and ball (or *[*72pelote) of the forefeet, to prevent them from running after deer.(e) No other dogs but mastiffs are to be thus lawed or expeditated, for none others were permitted to be kept within the precincts of the forest; it being supposed that the keeping of these, and these only, was necessary for the defence of a man’s house.(f) 3. The court of sweinmote is to be holden before the verderors, as judges, by the steward of the swein-mote, thrice in every year,(g) the sweins or freeholders within the forest composing the jury. The principal jurisdiction of this court is, first, to inquire into the oppressions and grievances committed by the officers of the forest; “de super-oneratione forestariorum, et aliorum ministrorum forestæ; et de eorum oppressionibus populo regis illatis;” and, secondly, to receive and try presentments certified from the court of attachment against Edition: current; Page: [72] offences in vert and venison.(h) And this court may not only inquire, but convict also, which conviction shall be certified to the court of justice-seat under the seals of the jury; for this court cannot proceed to judgment.(i) But the principal court is, 4, The court of justice-seat, which is held before the chief justice in eyre, or chief itinerant judge, capitalis justiciarius in itinere, or his deputy; to hear and determine all trespasses within the forest, and all claims of franchises, liberties, and privileges, and all pleas and causes whatsoever therein arising.(k) It may also proceed to try presentments in the inferior courts of the forests, and to give judgment upon conviction of the sweinmote. And the chief justice may therefore, after presentment made, or indictment found, but not before,(l) issue his warrant to the officers of the forest to apprehend the offenders. It may be held every third year; and forty days’ notice ought to be given of its sitting. This court may fine and imprison for offences within the forest,(m) it being a court of record: and therefore a writ of error lies from hence to the court of **73]king’s bench, to rectify and redress any mal-administrations of justice;(n) or the chief justice in eyre may adjourn any matter of law into the court of king’s bench.(o) These justices in eyre were instituted by king Henry II., ad 1184,(p)1 and their courts were formerly very regularly held: but the last court of justice-seat 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 Sir William Jones. After the restoration another was held, pro forma only, before the earl of Oxford;(q) but since the era of the revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject.2

II. A second species of restricted courts is that of commissioners of sewers. This is a temporary tribunal, erected by virtue of a commission under the great seal; which formerly used to be granted pro re nata at the pleasure of the crown,(r) but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Hen. VIII. c. 5. Their jurisdiction is to overlook the repairs of sea-banks and sea-walls, and the cleansing of rivers, public streams, ditches, and other conduits whereby any waters are carried off: and is confined to such county, or particular district, as the commission shall expressly name. The commissioners are a court of record, and may fine and imprison for contempt;(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 safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney marsh,(t) or otherwise at their own discretion. They may also assess such rates, or scots, upon the owners of lands within their district as they shall judge necessary; and, if any person refuses to pay them, the commissioners may levy the same by distress of his goods and chattels; or they may, by statute 23 Hen. VIII. c. 5, sell his freehold lands (and, by the 7 Anne, c. 10, his copyhold also) in order to pay such **74]scots or assessments. But their conduct is under the control of the court of king’s bench, which will prevent or Edition: current; Page: [74] punish any illegal or tyrannical proceedings.(u) And yet, in the reign of king James I., (8 Nov. 1616,) the privy counsel took upon them to order that no action or complaint should be prosecuted against the commissioners unless before that board; and committed several to prison, who had brought such actions at common law, till they should release the same: and one of the reasons for discharging Sir Edward Coke from his office of lord chief justice was for countenancing those legal proceedings.(v) The pretence for which arbitrary measures was no other than the tyrant’s plea(w) of the necessity of unlimited powers in works of evident utility to the public, “the supreme reason above all reasons, which is the salvation of the king’s lands and people.” But now it is clearly held, that this (as well as all other inferior jurisdictions) is subject to the discretionary coercion of his majesty’s court of king’s bench.(x)

III. The court of policies of insurance, when subsisting, is erected in pursuance of the statute 43 Eliz. c. 12, which recites the immemorial usage of policies of assurance, “by means whereof it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavy upon few, and rather upon them that adventure not than upon those that do adventure: whereby all merchants, especially those of the younger sort, are allured to venture more willingly and more freely: and that heretofore such assurers had used to stand so justly and precisely upon their credits as few or no controversies had arisen thereupon; and if any had grown, the same had from time to time been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of London; as men by reason of their experience fittest to understand and speedily decide those causes:” but that of late years divers persons had withdrawn themselves from that course of arbitration, and had driven the assured to bring separate actions at law against each assurer: it therefore enables the *[*75lord chancellor yearly to grant a standing commission 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 barrister, are thereby and by the statute 13 & 14 Car. II. c. 23, empowered to determine in a summary way all causes concerning policies of assurance in London, with an appeal (by way of bill) to the court of chancery. But the jurisdiction being somewhat defective, as extending only to London, and to no other assurances but those on merchandise,(y) and to suits brought by the assured only, and not by the insurers,(z) no such commission has of late years issued: but insurance causes are now usually determined by the verdict of a jury of merchants, and the opinion of the judges in case of any legal doubts; whereby the decision is more speedy, satisfactory, and final: though it is to be wished that some of the parliamentary powers invested in these commissions, especially for the examination of witnesses, either beyond the seas or speedily going out of the kingdom,(a) could at present be adopted by the courts of Westminster hall, without requiring the consent of parties.

IV. The court of the marshalsea, and the palace-court at Westminster, though two distinct courts, are frequently confounded together. The former was originally holden before the steward and marshal of the king’s house, and was instituted to administer justice between the king’s domestic servants, that they might not be drawn into other courts and thereby the king lose their service.(b) It was formerly held in, though not a part of, the aula regis,(c) and, when that was subdivided, remained a distinct jurisdiction: holding plea of all trespasses committed within the verge of the court, where only one of the parties is in the king’s domestic service, (in which case the inquest shall 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 household; and then the inquest shall be composed of men of the house*[*76hold only.(d) By the statute of 13 Rio. Edition: current; Page: [76] II. st. 1, c. 3, (in affirmance of the common law,)(e) the verge of the court in this respect extends for twelve miles round the king’s place of residence.(f) And, as this tribunal was never subject to the jurisdiction of the chief justiciary, no writ of error lay from it (though a court of record) to the king’s bench, but only to parliament,(g) till the statutes of 5 Edw. III. c. 2, and 10 Edw. III. st. 2, c. 3, which allowed such writ of error before the king in his palace. But this court being ambulatory, and obliged to follow the king in all his progresses, so that by the removal of the household actions were frequently discontinued,(h) and doubts having arisen as to the extent of its jurisdiction,(i) king Charles I., in the sixth year of his reign, by his letters-patent erected a new court of record, called the curia palatii, or palace-court, to be held before the steward of the household and knight-marshal, and the steward of the court, or his deputy; with jurisdiction to hold plea of all manner of personal actions whatsoever which shall arise between any parties within twelve miles of his majesty’s palace at Whitehall.(k) The court is now held once a week, together with the antient court of marshalsea, in the borough of Southwark: and a writ of error lies from thence to the court of king’s bench. But if the cause is of any considerable consequence, it is usually removed on its first commencement, together with the custody of the defendant, either into the king’s bench or common pleas, by a writ of habeas corpus cum causa: and the inferior business of the court hath of late years been much reduced by the new courts of conscience erected in the environs of London; in consideration of which, the four counsel belonging to these courts had salaries granted them for their lives by the statute 23 Geo. II. c. 27.3

V. **77]A fifth species of private courts of a limited, though extensive, jurisdiction, are those of the principality of Wales, which, upon its thorough reduction, and the settling of its polity in the reign of Henry the Eighth,(l) were erected all over the country; principally by the statute 34 & 35 Hen. VIII. c. 26, though much had been before done, and the way prepared, by the statute of Wales, 12 Edw. I., and other statutes. By the statute of Henry the Eighth before mentioned, court-barons, hundred, and county courts are there established, as in England. A session is also to be held twice in every year in each county, by judges(m) appointed by the king, to be called the great sessions of the several counties in Wales: in which all pleas of real and personal actions shall be held, with the same form of process, and in as ample a manner, as in the court of common pleas at Westminster:(n) and writs of error shall lie from judgments therein (it being a court of record) to the court of king’s bench at Westminster. But the ordinary original writs of process of the king’s courts at Westminster do not run into the principality of Wales:(o) though process of execution does;(p) as do also prerogative writs, as writs of certiorari, quo minus, mandamus, and the like.(q) And even in causes between subject and subject, to prevent injustice through family factions or prejudices, it is held lawful (in causes of freehold at least, and it is usual in all others) to bring an action in the English courts, and try the same in the next English county adjoining to that part of Wales where the cause arises,(r) and where the venue is laid. But, on the other hand, to prevent trifling and frivolous suits, it is enacted, by statute 13 Geo. III. c. 51, that in personal actions, tried in any English county where the cause of action arose, and the defendant resides in Wales, if the plaintiff shall not recover a verdict for ten pounds, he shall be non-suited and pay the Edition: current; Page: [77] defendant’s costs, unless it be certified by the judge that the freehold or title came principally in question, or that the cause was proper *[*78to be tried, in such English county. And if any transitory action, the cause whereof arose and the defendant is resident in Wales, shall be brought in any English county, and the plaintiff shall not recover a verdict for ten pounds, the plaintiff shall be nonsuited, and shall pay the defendant’s costs, deducting thereout the sum recovered by the verdict.4

VI. The court of the duchy chamber of Lancaster is another special jurisdiction, held before the chancellor of the duchy or his deputy, concerning all matter of equity relating to lands holden of the king in right of the duchy of Lancaster:(s) which is a thing very distinct from the county palatine, (which hath also its separate chancery, for sealing of writs, and the like,)(t) and comprises much territory which lies at a vast distance from it; as particularly a very large district surrounded by the city of Westminster. The proceedings in this court are the same as on the equity side in the courts of exchequer and chancery;(u) so that it seems not to be a court of record; and indeed it has been holden that those courts have a concurrent jurisdiction with the duchy court, and may take cognizance of the same causes.(v)

VII. Another species of private courts, which are of a limited local jurisdiction, and have at the same time an exclusive cognizance of pleas, in matters of both law and civil equity,(w) are those which appertain to the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Ely.(x)5 In all these, as in the principality of Wales, the king’s ordinary writs, issuing under the great seal out of chancery, do not run; that is, they are of no force. For as originally all jura regalia were granted to the lords of these counties palatine, they had of course the sole administration of justice by their own judges, appointed by themselves and not by the crown. It would therefore be incongruous for the king to send his writ to direct the judge of another’s court in what manner to administer justice between the suitors. But when the privileges of these counties palatine and franchises were abridged by statute 27 Hen. VIII. c. 24, it was *[*79also enacted that all writs and process should be made in the king’s name, but should be tested or witnessed in the name of the owner of the franchise. Wherefore all writs whereon actions are founded and which have current authority here must be under the seal of the respective franchises; the two former of which are now united to the crown, and the two latter under the government of their several bishops. And the judges of assize who sit therein sit by virtue of a special commission from the owners of the several franchises, and under the seal thereof, and not by the usual commission under the great seal of England. Hither also may be referred the courts of the cinque ports, or five most important havens, as they formerly were esteemed, in the kingdom, viz., Dover, Sandwich, Romney, Hastings, and Hythe, to which Edition: current; Page: [79] Winchelsea and Rye have been since added, which have also similar franchises in many respects(y) with the counties palatine, and particularly an exclusive jurisdiction, (before the mayor and jurats of the ports,) in which exclusive jurisdiction the king’s ordinary writ does not run. A writ of error lies from the mayor and jurats of each port to the lord warden of the cinque ports, in his court of Shepway, and from the court of Shepway to the king’s bench.(z) So likewise a writ of error lies from all the other jurisdictions to the same supreme court of judicature,(a) as an ensign of superiority reserved to the crown at the original creation of the franchises. And all prerogative writs (as those of habeas corpus, prohibition, certiorari, and mandamus) may issue for the same reason to all these exempt jurisdictions;(b) because the privilege, that the king’s writ runs not, must be intended between party and party, for there can be no such privilege against the king.(c)

VIII. The stannary courts in Devonshire and Cornwall, for the administration of justice among the tinners therein, are also courts of record, but of the same private and exclusive nature. They are held before the lord warden and his substitutes, in virtue of a privilege granted to the workers in the **80]tin-mines there to sue and be sued only in their own courts, that they may not be drawn from their business, which is highly profitable to the public, by attending their law-suits in other courts.(d) The privileges of the tinners are confirmed by a charter, 33 Edw. I., and fully expounded by a private statute,(e) 50 Edw. III., which has since been explained by a public act, 16 Car. I. c. 15. What relates to our present purpose is only this,—that all tinners and labourers in and about the stannaries shall, during the time of their working therein bona fide, be privileged from suits of other courts, and be only impleaded in the stannary court in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Westminster hall, as was agreed by all the judges(f) in 4 Jac. I. But an appeal lies from the steward 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,(g) when he hath had livery or investiture of the same.(h) And from thence the appeal lies to the king himself in the last resort.(i)

IX. The several courts within the city of London,(j) and other cities, boroughs, and corporations throughout the kingdom, held by prescription, charter, or act of parliament, are also of the same private and limited species. It would exceed the design and compass of our present inquiries, if I were to enter into a particular detail of these, and to examine the nature and extent of their several jurisdictions. It may, in general, be sufficient to say that they arose originally from the favour of the crown to those particular districts wherein we find them erected, upon the same principle that hundred-courts, and the like, were established for the convenience of the inhabitants, that they may prosecute their suits and **81]receive justice at home: that, for the most part, the courts at Westminster hall have a concurrent jurisdiction with these, or else a superintendency over them,(k) and are bound by the statute 19 Geo. III. c. 70 to give assistance to such of them as are courts of record, by issuing writs of execution, where the person or effects of the defendant are not within the inferior jurisdiction: and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of law.

But there is one species of courts, constituted by act of parliament, in the city Edition: current; Page: [81] of London, and other trading and populous districts, which in their proceedings so vary from the course of common law that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts.6 The first of these was established in London, so early as the reign of Henry the Eighth, by an act of their common council; which, however, was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. c. 15, which has since been explained and amended by statute 14 Geo. II. c. 10.7 The constitution is this: two aldermen, and four commoners, sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. The time and expense of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade; and thereupon divers trading towns and other districts have obtained acts of parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London.8

*[*82The anxious desire that has been shown to obtain these several acts, proves clearly that the nation in general is truly sensible of the great inconvenience arising from the disuse of the antient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expense to the parties. But it is to be feared, that the general remedy which of late hath been principally applied to this inconvenience (the erecting these new jurisdictions) may itself be attended in time with very ill consequences: as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished, that the proceedings in the county and hundred courts could again be revived, without burdening the freeholders with too frequent and tedious attendances; and *[*83at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party have of transferring at pleasure their suits to the courts at Westminster! And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded, in the populous county of Middlesex; which might serve as an example for others. For by statute 23 Geo. II. c. 33, it is enacted, 1. That a special county-court should be held, at least once a month, in every hundred of the county of Middlesex, by the county-clerk. 2. That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the value of forty shillings, the county-clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process antiently used; and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court by any process whatsoever; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upon the trial whereof the jury shall find less than 40s. damages, the plaintiff shall recover no costs, but shall pay the Edition: current; Page: [83] defendant double costs; unless upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is prescribed and set down in the act; which are not to be exceeded upon any account whatsoever. This is a plan entirely agreeable to the constitution and genius of the nation; calculated to prevent a multitude of vexatious actions in the superior courts, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a suit at law; a plan which, one would think, wants only to be generally known, in order to its universal reception.

X. There is yet another species of private courts, which I must not pass over in silence: viz., the chancellor’s courts in the two universities of England.9 Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king’s **84]courts, over all civil actions and suits whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at their discretion; which has generally led them to carry on their process in a course much conformed to the civil law, for reasons sufficiently explained in a former book.(l)

These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, ad 1158.(m) But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxford, was 28 Hen. III. ad 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to Henry the Eighth; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters-patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained,(n) confirming all the charters of the two universities, and those of 14 Hen. VIII. and 3 Eliz. by name. Which blessed act, as Sir Edward Coke entitles it,(o) established this high privilege without any Edition: current; Page: [84] doubt or opposition:(p) or, as Sir Matthew Hale(q) very fully expresses the sense *[*85of the common law and the operation of the act of parliament, “although king Henry the Eighth, 14 A. R. sui, granted to the university a liberal charter, to proceed according to the use of the university; viz., by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And therefore in 13 Eliz. an act passed, whereby that charter was in effect enacted; and it is thereby that at this day they have a kind of civil-law procedure, even in matters that are of themselves of common-law cognizance, where either of the parties is privileged.”

This privilege, so far as it relates to civil causes, is exercised at Oxford in the chancellor’s court; the judge of which is the vice-chancellor, his deputy or assessor. From his sentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final at least by the statutes of the university,(r) according to the rule of the civil law.(s) But, if there be any discourdance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.

I have now gone through the several species of private, or special, courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from Sir Edward Coke:(t) that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will moil explicitly warrant.

CHAPTER VII.: OF THE COGNIZANCE OF PRIVATE WRONGS.

*[*86We now proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts, mentioned in the three preceding chapters, every possible injury that can be offered to a man’s person or property is certain of meeting with redress.

The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated, and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order in which I shall pursue this inquiry will be by showing: 1. What actions may be brought, or what injuries remedied, in the ecclesiastical 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 first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these eccentrical tribunals, (which are principally guided by the rules of the imperial and canon laws,) as they subsist and are *[*87admitted in England, not by any right of their own,(a) but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them Edition: current; Page: [87] It matters not therefore what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates’ chattels; and perhaps we may in our turn prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king’s courts of common law may and do prohibit them; and in some cases punish their judges.(b)

Having premised this general caution, I proceed now to consider,

1. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals;1 which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring, (pro salute animæ, as is the case with immoralities in general, when unconnected with private injuries,) but for the sake of the party injured, to make him a satisfaction and redress for **88]the damage which he has sustained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary.

1. Pecuniary causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff; towards obtaining a satisfaction for which he is permitted to institute a suit in the spiritual court.

The principal of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator.(c) But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons;(d) but, in ordinary cases between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed.(e) By the statute, or rather writ,(f) of circumspecte agatis,(g) it is declared that the court Christian shall not Edition: current; Page: [88] be prohibited from holding plea, “si rector petat versus parochianos oblationes et decimas debitas et consuetas:” so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical court, but before the king’s court of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fact whether or no the tithes allowed to be due are really subtracted or withdrawn, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz., the recovery of the tithes, or their equivalent. By statute 2 & 3 Edw. VI. c. 13, it is enacted, that if any person shall carry off his predial tithes (viz., of corn, hay, or the like) before the tenth part *[*89is duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop or hinder the proprietor of the tithes, or his deputy, from viewing or carrying them away; such offender shall pay double the value of the tithes, with costs to be recovered before the ecclesiastical judge, according to the king’s ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the antient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there; in order to make the course of justice uniform, by giving the same reparation in one court as in the other.(h)2 However, it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges: for the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical, judge; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40s. is given by statute 7 & 8 W. III. c. 6, by complaint to two justices of the peace; and, by another statute of the same year, c. 34, the same remedy is extended to all tithes withheld by Quakers under the value of ten pounds.3

Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual *[*90payment. Besides which, all offerings, oblations, and obventions not exceeding the value of 40s. may be recovered in a summary way before two justices of the peace.(i) But care must be taken that these are real and not imaginary dues; for, if they be contrary Edition: current; Page: [90] to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another place;(j) this, however authorized by the canon, is contrary to common right: for of common right, no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom;(k) but no custom can support the demand of a fee without performing them at all.

For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein: but not if the right of the fees is at all disputable; for then it must be decided by the common law.(l) It is also said, that if a curate be licensed, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical court;(m) but, if he be not licensed, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law;(n) either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in consideration of what he reasonably deserved in proportion to the service performed.

Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.

Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any **91]right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson does not come in debate, is cognizable in the spiritual court: as if a patron first presents A. to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the same patron presents B. to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then, that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were or were not vacant: upon which the validity of the second clerk’s pretensions must depend.(o) But if the right of patronage comes at all into dispute, as if one patron presented A., and another patron presented B., there the ecclesiastical court hath no cognizance, provided the tithes sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron by the king’s writ of indicavit.(p) So also if a clerk, without any colour of title, ejects another from his parsonage, this injury must be redressed in the temporal courts: for it depends upon no question determinable by the spiritual 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 ecclesiastical waste, either voluntary, by pulling down; or permissive, by suffering the chancel, personage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law,(q) and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiastical person, dilapidates the buildings, or cuts down timber growing on the patrimony of **92]the church, unless for necessary repairs:(r) and that a writ of prohibition will also lie against him in the courts of common law.(s) By statute 13 Eliz. c. 10, if any spiritual person makes over or alienates his goods with intent to defeat his successors of Edition: current; Page: [92] their remedy for dilapidations, the successor shall have such remedy against the alience, in the ecclesiastical court, as if he were the executor of his predecessor. And by statute 14 Eliz. c. 11, all money recovered for dilapidations shall within two years be employed upon the buildings in respect whereof it was recovered, on penalty of forfeiting double the value to the crown.

As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof;(t) and a suit may be brought therein for non-payment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which suits may be instituted, in ecclesiastical courts.

2. Matrimonial causes, or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though if we consider marriages in the light of mere civil contracts, they do not seem to be properly of spiritual cognizance.(u) But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the two jurisdictions. And in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of a universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the holy see, not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations; whose marriages were sanctified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according *[*93to the humour or interest of the reigning pontiff: besides a thousand nice and difficult scruples, with which the clergy of those ages puzzled the understandings, and loaded the consciences of the inferior orders of the laity; and which could only be unravelled and removed by these their spiritual guides. Yet, abstracted from this universal influence, which affords so good a reason for their conduct, one might otherwise be led to wonder that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them,(v) soon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclesiastical that the temporal courts will never interfere in controversies of this kind, unless in some particular cases. As if the spiritual court do proceed to call a marriage in question after the death of either of the parties; this the courts of common law will prohibit, because it tends to bastardize and disinherit the issue; who cannot so well defend the marriage, as the parties themselves, when both of them living, might have done.(w)

Of matrimonial causes, one of the first and principal is, 1. Causa jactitationis matrimonii; when one of the parties boasts4 or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head; which is the only remedy the ecclesiastical courts can give for this injury.5 2. Another Edition: current; Page: [93] species of matrimonial causes was, when a party contracted to another brought a suit in the ecclesiastical court to compel a celebration of the marriage in pursuance of such contract; but this branch of causes is now cut off entirely by the act for preventing clandestine marriages, 26 Geo. II. **94]c. 33, which enacts, that for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesiæ, for or because of any contract of matrimony whatsoever. 3. The suit for restitution of conjugal rights is also another species of matrimonial causes: which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again, if either party be weak enough to desire it, contrary to the inclination of the other. 4. Divorces also, of which, and their several distinctions, we treated at large in a former book,(x) are causes thoroughly matrimonial, and cognizable by the ecclesiastical judge. If it becomes improper, through some supervenient cause arising ex post facto, that the parties should live together any longer; as through intolerable cruelty,6 adultery, a perpetual disease, and the like;7 this unfitness or inability for the marriage state may be looked upon as an injury to the suffering party; and for this the ecclesiastical law administers the remedy of separation, or a divorce a mensa et thoro. But if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the like; in this case the law looks upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a separation from bed and board, but a vinculo matrimonii itself. 5. The last species of matrimonial causes is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court Christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her **95]dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.

3. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction;8 which, as they are certainly of a mere temporal nature,(y) Edition: current; Page: [94] may seem at first view a little oddly ranked among matters of a spiritual cognizance. And indeed (as was in some degree observed in a former book,)(z) they were originally cognizable in the king’s courts of common law, viz., the county-courts;(a) and afterwards transferred to the jurisdiction of the church, by the favour of the crown, as a natural consequence of granting to the bishops the administration of intestates’ effects.

This spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favour and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowledged by Lindewode, the ablest canonist of the fifteenth century. Testamentary causes, he observes, belong to the ecclesiastical courts “de consuetudine Angliæ, et super consensu regio et suorum procerum in talibus ab antiquo concesso.”(b) The same was, about a century before, very openly professed in a canon of archbishop Stratford, viz., that the administration of intestates’ goods was “ab olim” granted to the ordinary, “consensu regio et magnatum regni Angliæ.”(c) The constitutions of cardinal Othobon also testify that this provision “olim a prælatis cum approbatione regis et baronum dicitur emanasse.”(d) And archbishop Parker,(e) in queen Elizabeth’s time, affirms in express words, that originally in matters testamentary “non ullam habebant episcopi authoritatem, præter eam quam a rege acceptam referebant. Jus testamenta probandi non **96]habebant: administrationis potestatem cuique delegare non poterant.”

At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any antient writer: and Lindewode(f) very fairly confesses, “cujus regis temporibus hoc ordinatum sit, non reperio.” We find it indeed frequently asserted in our common-law books, that it is but of late years that the church hath had the probate of wills.(g) But this must only be understood to mean that it hath not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have seen, declares that it was “ab antiquo;” Stratford, in the reign of king Edward III., mentions it as “ab olim ordinatum;” and cardinal Othobon, in the 52 Hen. III., speaks of it as an antient tradition. Bracton holds it for clear law, in the same reign of Henry III., that matters testamentary belonged to the spiritual court.(h) And, yet earlier, the disposition of intestates’ goods “per visum ecclesiæ” was one of the articles confirmed to the prelates by king John’s magna carta.(i) Matthew Paris also informs us that king Richard I. ordained in Normandy “quod distributio rerum quæ in testamento relinquuntur auctoritate ecclesiæ fiet.” And even this ordinance of king Richard was only an introduction of the same law into his ducal dominions, which before prevailed in this kingdom; for in the reign of his father Henry II. Glanvil is express, that “si quis aliquid dixerit contra testamentum, placitum illud in curia christianitatis audiri debet et terminari.”(j) And the Scots book, called regiam majestatem, agrees verbatim with Glanvil in this point.(k)

It appears that the foreign clergy were pretty early ambitious of this branch of power; but their attempts to assume **97]it on the continent were effectually curbed by the edict of the emperor Justin,(l) which restrained the insinuation or probate of testaments (as formerly) to the office of the magister census: for which the emperor subjoins this reason: “absurdum et enim clericis est, immo etiam opprobriosum, si peritos se velint ostendere disceptationum esse forensium.” But afterwards by the canon law(m) it was allowed that the bishop might compel by ecclesiastical censures the performance of a bequest to pious uses. And therefore, as that was considered as a cause quæ secundum canones et episcopales leges ad regimen animarum pertinuit, it fell within the jurisdiction of the spiritual courts by the express words of the charter of king William I., which separated those courts from the temporal. And afterwards, when king Henry I. by his coronation-charter directed that the goods of an intestate should be divided for the good of his soul,(n) this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This therefore, Edition: current; Page: [96] we may probably conjecture, was the era referred to by Stratford and Othobon when the king, by the advice of the prelates and with the consent of his barons invested the church with this privilege. And accordingly in king Stephen’s charter it is provided that the goods of an intestate ecclesiastic shall be distributed pro salute animæ ejus, ecclesiæ consilio;(o) which latter words are equivalent to per visum ecclesiæ in the great charter of king John before mentioned. And the Danes and Swedes (who received the rudiments of Christianity and ecclesiastical discipline from England about the beginning of the twelfth century) have thence also adopted the spiritual cognizance of intestacies, testaments, and legacies.(p)

This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan *[*98bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiæ, and are then the object of what is called the voluntary, and not the contentious, jurisdiction. But when a caveat is entered against proving the will or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who hath a right to administer; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining of legacies, is also still more apparently injurious, by depriving the legatees of that right with which the laws of the land and the will of the deceased have invested them: and therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator’s effects, or assent 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 jurisdictions, the cause, when once brought there, receives there also its full determination.9

These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual courts. But before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.

It must (in the first place) be acknowledged, to the honour of the spiritual courts, that though they continue to this *[*99day to decide many questions which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals (especially of the superior Edition: current; Page: [99] kind) and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the antient channel. And, should an alteration be attempted, great confusion would probably arise, in overturning long-established forms, and new-modelling a course of proceedings that has now prevailed for seven centuries.

The establishment of the civil-law process in all the ecclesiastical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly its weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh, and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastics, and the consequent dissensions between the clergy and the laity of England, have formerly(q) been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed, entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were moulded on the pattern of the temporal, so the canon-law process was formed on the model of the civil law: the prelates embracing with the utmost ardour a method of judicial proceedings which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury, (that bulwark of **100]Gothic liberty,) which placed an arbitrary power of decision in the breast of a single man.

The proceedings in the ecclesiastical 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 usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conform,(r) (as if they require two witnesses to prove a fact, where one will suffice at common law;) in such cases a prohibition will be awarded against them.(s) But, under these restrictions, their ordinary course of proceeding is: first, by citation, to call the party injuring before them. Then, by libel, libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant’s ground of complaint. To this succeeds the defendant’s answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff’s answer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, whereby the parties were obliged to answer upon oath to any matter, however criminal, that might be objected against them, (though long ago overruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty,) continued to the middle of the last century to be upheld by the spiritual courts; when the legislature was obliged to interpose, to teach them a lesson of similar moderation. By the *[*101statute of 13 Car. II. c. 12, it is enacted that it shall not be lawful for any bishop or ecclesiastical judge to tender or administer, to any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. When all the pleadings and proofs are concluded, Edition: current; Page: [101] they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter;(t) though if the same be not appealed from in fifteen days, it is final by the statute 25 Hen. VIII. c. 19.

But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described(u) to be twofold; the less, and the greater, excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments; the greater proceeds further, and excludes him not only from these, but also from the company of all Christians. But, if the judge of any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king.(w)10

Heavy as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for nonpayment of fees, or costs, or for other trivial causes. The common law therefore compassionately steps in to *[*102the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Cæsar,(x) whoever were interdicted by the Druids from their sacrifices, “in numero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur.” And so with us by the common law an excommunicated person is disabled to do any act that is required to be done by one that is probus et legalis homo. He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him.(y) Nor is this the whole: for if, within forty days after the sentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop’s certificates, a significavit; or, from its effects, a writ de excommunicato capiendo: and the sheriff shall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and such reconciliation certified by the bishop; under which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him.(z) This process seems founded on the charter of separation (so often referred to) of William the Conqueror. “Si aliquis per superbiam elatus ad justitiam episcopalem venire noluerit, vocetur semel, secundo, et tertio: quod si nec ad emendationem venerit, excommuniceter; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur. And in case of subtraction of tithes, a more summary and expeditious assistance Edition: current; Page: [102] is given by the statutes of 27 Hen. VIII. c. 20, and 32 Hen. VIII. c. 7, which enact, that upon complaint of any contempt or misbehaviour of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any**103]two justices of the peace (or, in case of disobedience to a definitive sentence, any two justices of the peace,) may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain, that the courts at Westminster hall are at open variance with those at doctors’ commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt which for want of sufficient compulsive powers would otherwise be sure to attend it.11

II. I am next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Ric. II. c. 2 to be this: “that it hath cognizance of contracts touching deeds of arms or of war, out of the realm, and also of things which touch war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining.” So that wherever the common law can give redress, this court hath no jurisdiction: which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster hall, if not directly, at least by fiction of law: as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract.

The words “other usages and customs” support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and **104]quality. Whence it follows, that the civil jurisdiction of this court of chivalry is principally in two points; the redressing injuries of honour, and correcting encroachments in matters of coat-armour, precedency, and other distinctions of families.

As a court of honour, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster; and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry.(a) But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein.(b) And it hath always been most clearly holden,(c) that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common-law cognizance. And therefore this Edition: current; Page: [104] court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honour may require.(d) Neither can this court, as to the point of reparation in honour, hold plea of any such word or thing wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.

*[*105As to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of hearldry and coat-armour: it is the business of this court, according to Sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the king’s patent or act of parliament (which cannot be overruled by this court) have not already determined it.

The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat.(e) But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice: whereby such falsity and confusion have crept into their records, (which ought to be the standing evidence of families, descents, and coat-armour,) that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom.(f) But their original visitation books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees.(g) And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent, *[*106for the recovery of an estate or succession to a title of honour, more difficult than that of an antient. This will be indeed remedied for the future, with respect to claims of peerage, by a late standing order(h) of the house of lords; directing the heralds to take exact accounts, and preserve regular entries, of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter the principal king-at-arms. But the general inconvenience, affecting more private successions, still continues without a remedy.

III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. These courts have jurisdiction and power to try and determine all maritime causes; or such injuries which, though they are in their nature of common-law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any country.(i)12 For the statute 13 Ric. II. c. 5 directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 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 Edition: current; Page: [106] either by land or water; nor of any wreck of the sea: for that must be cast on land before it becomes a wreck.(j) But it is otherwise of things flotsam, jetsam, and ligan; for over them the admiral hath jurisdiction, as they are in and upon the sea.(k) If part of any contract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from its jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular.(l) **107]Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen’s wages, are one proper object of the admiralty jurisdiction, 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 seas, as a charter-party or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London, or the like; these kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of common law.(n) And indeed it hath been further holden, that the admiralty court cannot hold plea of any contract under seal.(o)13

And also, as the courts of common law have obtained a concurrent jurisdiction with the court of chivalry with regard to foreign contracts, by supposing them made in England; so it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts of admiralty to those of Westminster hall.(p) This the civilians exclaim against loudly, as inequitable and absurd; and Sir Thomas Ridley(q) hath very gravely proved it to be impossible for the ship in which such cause of action arises to be really at the royal exchange in Cornhill. But our lawyers justify this fiction, by alleging (as before) that the locality of such contracts is not at all essential to the merits of them; and that learned civilian himself seems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a son killed in battle is supposed to live forever for the benefit of his parents;(r) and that, by the fiction of postliminium and the lex Cornelia, captives, when freed from bondage, were held to have never been prisoners,(s) and such as died in captivity were supposed to have died in their own country.(t)

*[*108Where the admiral’s court hath no original jurisdiction of the cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law.(u) And so, vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law.(v) Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons.(w) In case of prizes also in time of war, between our own nation and another, or between two other nations, which are taken at sea, and brought into our Edition: current; Page: [108] ports the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations.(x)14

The proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires; such as the Rhodian laws and the laws of Oleron.(y) For the law of England, as has frequently been observed, doth not acknowledge or pay any deference to the civil law, considered as such; but merely permits its use in such cases where it judged its determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being corrected, altered, and amended by acts of parliament and common usage; so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently Edition: current; Page: [109] by arrest of the defendant’s person;(z) and they also take recognizances or stipulations of certain fidejussors in the nature of bail,(a) and in case of default may *[*109imprison both them and their principal.(b) They may also fine and imprison for a contempt in the face of the court.(c) And all this is supported by immemorial usage, grounded on the necessity of supporting a jurisdiction so extensive;(d) though opposite to the usual doctrines of the common law: these being no courts of record, because in general their process is much conformed to that of the civil law.(e)

IV. I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common-law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration: and which are, either when justice is delayed by an inferior court which has proper cognizance of the cause; or, when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.

1. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo, or of mandamus. A writ of procedendo ad judicium issues out of the court of chancery, where judges of any subordinate court do delay the parties; for that they will not give judgment either on the one side or the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king’s name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may *[*110be set aside in the course of appeal, or by writ of error or false judgment: and upon further neglect or refusal, the judges of the inferior court may be punished for their contempt by writ of attachment returnable in the king’s bench or common pleas.(f)

A writ of mandamus is, in general, a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature; and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution of an office;15 but it issues in all cases where the Edition: current; Page: [110] party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, &c.: it lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particular to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king’s bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them: and this, not only by restraining their excesses, but also by quickening **111]their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment;(g) to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below: whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition, a rule is made, (except in some general cases where the probable ground is manifest,) directing the party complained of to show cause why a writ of mandamus should not issue: and, if he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some reason to the contrary; to which a return, or answer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a peremptory mandamus, to do the thing absolutely; 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 person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment. But if he, at the first, returns a sufficient cause, although it should be false in fact, the court of king’s bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no further on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a peremptory mandamus to the defendant to do his duty16 Thus much for the injury of neglect or refusal of justice.

2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition.

*[*112A prohibition is a writ issuing properly only out of the court of king’s bench, being the king’s prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery,(h) common pleas,(i) or exchequer;(k) directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue 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 matters not lying within their respective franchises;(l) to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings:(m) or it may be directed to the courts Christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom 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 transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes,(n) or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal, law; else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety which no wise government can or ought to endure, *[*113and which is therefore a ground of prohibition. And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it;(o) and an action will lie against them, to repair the party injured in damages.

So long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper object of it; even from the time of the constitutions of Clarendon, made in opposition to the claims of archbishop Becket in 10 Hen. II., to the exhibition of certain articles of complaint to the king by archbishop Bancroft in 3 Jac. I., on behalf of the ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminster hall,(p) much may be collected concerning the reasons of granting and methods of proceeding upon prohibitions. A short summary of the latter is as follows: The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom; upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea.17 But sometimes the point Edition: current; Page: [113] may be too nice and doubtful to be decided merely upon a motion; and then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare a prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition or fiction (which is not traversable)(q) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion that the matter suggested is a good and sufficient ground of **114]prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any further. On the other hand, if the superior court shall think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, the writ of prohibition is not absolutely final and conclusive. For though the ground be a proper one in point of law, for granting the prohibition, yet if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always pursue the suggestion,) and so plead to issue upon it; denying the contempt, and traversing the custom upon which the prohibition was grounded; and if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.18

CHAPTER VIII.: OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS.

*[*115The former chapters of this part of our commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies, in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury; and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts.

First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king, as the fountain of justice, is officially bound to redress in the ordinary forms of law: reserving such *[*116injuries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature.

Now, since all wrongs may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded; or, where that is not a possible, or at least not an adequate, remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right the instant he receives the injury,(a) though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror(b) to be “the lawful demand of one’s right;” or, as Bracton and Fleta express it, in the words of Justinian,(c) jus prosequendi in judicio quod alicui debetur.

The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury should be redressed by its proper remedy only. “Actiones,” say the pandects, “compositæ sunt, quibus inter se homines disceptarent: quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt.”(d) The forms of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people.(e) The *[*117concealment was ridiculous; but the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible Or, as Cicero expresses it,(f) “sunt jura, sunt formulæ, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, ad quas privata lis accommodatur.” And in the same manner Edition: current; Page: [117] our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament.(g) And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds: actions personal, real, and mixed.

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs; and they are the same which the civil law calls “actiones in personam, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere.”(h) Of the former nature are all actions upon debt or promises; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like.

Real actions, (or, as they are called in the Mirror,(i) feodal actions,) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other **118]hereditaments, in fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process: a much more expeditious method of trying titles being since introduced, by other actions personal and mixed.

Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance an action of waste: which is brought by him who hath the inheritance in remainder or reversion, against the tenant for life who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester,(k) which is a personal recompense; and so both, being joined together, denominate it a mixed action.1

Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy it is first necessary to ascertain the complaint. I proceed, therefore, now to enumerate the several kinds, and to inquire into the respective nature, of all private wrongs, or civil injuries, which may be offered to the rights of either a man’s person or his property; recounting at the same time the respective remedies which are furnished by the law for every infraction of right. But I must first beg leave to premise that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other coupled with force and violence, as batteries or false imprisonment.(l) Which latter species savour something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought to be paid to the king, as **119]well as a private satisfaction to the party injured.(m) And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method that was pursued with regard to the distribution of rights: for, as these are nothing else but an infringement or breach of those rights which we have before laid Edition: current; Page: [119] down and explained, it will follow that this negative system, of wrongs, must correspond and tally with the former positive system, of rights. As therefore we divide(n) all rights into those of persons and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.

The rights of persons, we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a corresponding nature.

I. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations.

1. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our commentaries.2

*[*1202, 3. The two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these Edition: current; Page: [120] may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man’s business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury: but, to complete the wrong, there must be both of them together.(o) The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis;(p) this being an inchoate, though not an absolute, violence.3 2. By assault; which is an attempt or offer to beat another, without touching him: as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him but misses him; this is an assault, insultus, which Finch(q) describes to be “an unlawful setting upon one’s person.” This also is an inchoate violence, amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury.4 3. By battery; which is the unlawful beating of another. The least touching of another’s person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in any the slightest manner.5 And therefore upon a similar principle the Cornelian law de injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation, which was attended with none.(r) But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defence; and, if sued for it, may plead son assault demesne, or that it was the plaintiff’s **121]own original assault that occasioned it. So likewise in defence of my goods or possession, if a man endeavours to deprive me of them I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away.(s) Thus too in the exercise Edition: current; Page: [121] 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 disturbing the congregation.(t) And, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a foretooth,(u) and also some others.(v) But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law, as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury which (when wilful) no motive can justify but necessary self-preservation.6 If the ear be cut off, treble damages are given by statute 37 Hen. VIII. c. 6, though this is not mayhem at common law. And here I must observe that for these four last injuries, assault, battery, wounding, and mayhem, an indictment may be brought as well as an action, and frequently both are accordingly prosecuted, the one at the suit of the crown for the crime against the public, the *[*122other at the suit of the party injured, to make him a reparation in damages.7

4. Injuries affecting a man’s health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine;(w) by the exercise of a noisome trade, which infects the air in his neighbourhood;(x) or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved,(y) that mala praxis is a great misdemeanour and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient’s destruction.8 Thus, also, in the civil law,(z) neglect or want of skill in Edition: current; Page: [122] physicians or surgeons, “culpæ adnumerantur, veluti si medicus curationem dereliquerit, male quempian secuerit, aut perperam ei medicamentum dederit.” These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass upon the case. This action of trespass, or transgression, on the case, is a universal remedy, given for all personal wrongs and injuries without force; so called because the plaintiff’s whole case or cause of complaint is set forth at length in the original writ.(a) For though in general there are methods prescribed, and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff’s person or property, as battery, non-payment of debts, detaining one’s goods, or the like; yet where *[*123any special consequential damage arises, which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2, c. 24, to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance.(b) For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action;(c) and, therefore, wherever a new injury is done, a new method of remedy must be pursued.(d) And it is a settled distinction,(e) that where an act is done which is in itself an immediate injury to another’s person or property, there the remedy is usually by an action of trespass vi et armis; but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act.9

5. Lastly; injuries affecting a man’s reputation or good name are, first, by malicious, scandalous, and slanderous words, tending to his damage and derogation. As if a man maliciously and falsely utter any slander or false tale of another; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured;(f) or which may exclude him from society, as to charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave.(g) Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous:(h) and though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: *[*124which is redressed by an action on the case founded on many antient statutes,(i) as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained.10 Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly Edition: current; Page: [124] injurious than when spoken of a private man.(k) It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it.(l) But, too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before mentioned, (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust,) an action on the case 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 such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can show some special loss by it; in which case he may bring his action against me for saying he was a bastard, per quod he lost the presentation to such a living.(m) In like manner, to slander another man’s title, by spreading such injurious reports as, if true, would deprive him of his estate, (as to call the issue in tail, or one who hath land by descent, a bastard,) is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land.(n) But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects will not support an action. So scandals, which concern matters merely spiritual, as to call a **125]man heretic or adulterer, are cognizable only in the ecclesiastical court;(o) unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before mentioned, are not actionable; neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander.(p) Neither (as was formerly hinted)(q) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander.(r)11 Also, if the defendant be able to justify, and prove the words to be true, no action will lie,(s) even though special damage hath ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions; for Edition: current; Page: [125] though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury the law gives no remedy. And this is agreeable to the reasoning of the civil law:(t) “eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit.”

A second way of affecting a man’s reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous(u) light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and the other by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point of law) whether *[*126the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification.(w)12 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all.(x) What was said with regard to words spoken will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon; but as to signs or pictures, it seems necessary always to show, by proper innuendoes and averments of the defendant’s meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences.13

A third way of destroying or injuring a man’s reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy,(y) which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case Edition: current; Page: [126] for a false and malicious prosecution.(z) In order to carry on the former, (which gives a recompense for the danger to which the party has been exposed,) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any the least probable cause to found such prosecution upon.(a) For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried **127]But an action on the case for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded.(b) However, any probable cause for preferring it is sufficient to justify the defendant.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment,14 for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrong-doer to a civil action, on account of the damage sustained by the loss of time and liberty.

To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets.(c)15 Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment;(d) or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of wagoners for misbehaviour in the public highways.(e) False imprisonment also may arise by executing a lawful warrant or process at an **128]unlawful time, as on a Sunday;(f) for the statute hath declared that such service or process shall be void.16 This is the injury. Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it.

The means of removing the actual injury of false imprisonment are fourfold 1. By writ of mainprize. 2. By writ de odio et atia.17 3. By writ de homine replegiando. 4. By writ of habeas corpus.

1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below,) commanding him to take sureties for the prisoner’s appearance, usually called mainpernors, and to set him at large.(g) Mainpernors differ from bail, in that a man’s bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day: bail are only sureties that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever.(h)

2. The writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton,(i) ought not to be denied to any man, it being expressly ordered to be made out gratis, without any denial, by magna carta, c. 26, and statute Westm. 2, 13 Edw. I. c. 29. But the statute *[*129of Gloucester, 6 Edw. I. c. 9, restrained it in the case of killing by misadventure or self-defence, and the statute 28 Edw. III. c. 9 abolished it in all cases whatsoever: but as the statute 42 Edw. III. c. 1 repealed all statutes then in being, contrary to the great charter, Sir Edward Coke is of opinion(k) that the writ de odio et atia was thereby revived.

3. The writ de homine replegiando(l) lies to replevy a man out of prison, or out of the custody of any private person, (in the same manner that chattels taken in distress may be replevied, of which in the next chapter,) upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. And if the person be conveyed out of the sheriff’s jurisdiction, the sheriff may return that he is eloigned, elongatus; upon which a process issues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize,(m) till he produces the party. But this writ is guarded with so many exceptions,(n) that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them, and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to

4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above.(o) Such is that ad satisfaciendum, when a prisoner hath *[*130had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.(p) Such also are those ad prosequendum, testificandum, deliberandum, &c.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was Edition: current; Page: [130] committed.18 Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatsoever the king’s court shall consider in that behalf. This is a writ grantable of common right, without any motion in court,(q) and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. and M. c. 13 that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23 that, where the judge of an inferior court of record is a barrister of three years’ standing no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined; that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed; and that no cause shall be removed at all, if the debt or damages laid in the declaration do not amount to the sum of five pounds. But an expedient(r) having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then, by the course of the court, the habeas corpus removed both actions together,) it is therefore enacted by statute 12 Geo. I. c. 29, that the inferior **131]court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70, no cause under the value of ten pounds19 shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same shall give special bail for payment of the debt and costs.

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.(s) This is a high prerogative writ, and therefore by the common law issuing out of the court of king’s bench not only in term-time, but also during the vacation,(t) by a fiat from the chief justice 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 subjects is restrained,(u) wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon;(v) unless the term shall intervene, and then it may be returned in court.(w) Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by common law have been awarded from thence;(x) and, if the cause of imprisonment were palpably illegal, they might have discharged him:(y) but, if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance Edition: current; Page: [131] in the court of king’s bench,(z) which *[*132occasioned the common pleas for some time to discountenance such applications. But since the mention of the king’s bench and common pleas, as co-ordinate in this jurisdiction, by statute 16 Car. I. c. 10, it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common-law writ, in either of those courts, at his option.(a) It hath also been said, and by very respectable authorities,(b) that the like habeas corpus may issue out of the court of chancery in vacation; but upon the famous application to lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation;(c) and therefore his lordship refused it.20

In the king’s bench and common pleas it is necessary to apply for it by motion to the court,(d) as in the case of all other prerogative writs, (certiorari, prohibition, mandamus, &c.,) which do not issue as of mere course, without showing some probable cause why the extraordinary power of the crown is called in to the party’s assistance. For, as was argued by lord chief justice Vaughan,(e) “it is granted on motion, because it cannot be had of course, and there is therefore no necessity to grant it; for the court ought to be satisfied that the party hath a probable cause to be delivered.” And this seems the more reasonable because (when once granted) the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner.(f) So that if it issued of mere course, without showing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king’s service, a wife, a child, a relation, or a domestic confined for insanity or other prudential reasons, might obtain a temporary **133]enlargement by suing out a habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore Sir Edward Coke, when chief justice, did not scruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own showing, sufficient grounds to confine him.(g) On the other hand, if a probable ground be shown that the party is imprisoned without just Edition: current; Page: [133] cause,(h) and therefore 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 prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”(i)

In a former part of these commentaries(k) we expatiated at large on the personal liberty of the subject. This was shown to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, and which ought not to be abridged in any case without the special permission of law. A doctrine coeval with the first rudiments of the English constitution, and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes and the violence of the Norman conquest; asserted afterwards and confirmed by the Conqueror himself and his descendants; and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of magna carta, and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty by rendering its protection impossible: but the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the *[*134imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made: that the court upon a habeas corpus may examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner.21

And yet, early in the reign of Charles I., the court of king’s bench, relying on some arbitrary precedents, (and those perhaps misunderstood,) determined(l) that they could not upon a habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special 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 illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty’s special command, under a general charge of “notable contempts and stirring up sedition against the king and government,” the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they, however, annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment, the chief justice, Sir Nicholas Hyde, at the same time declaring(m) that “if they were again Edition: current; Page: [134] remanded for that cause perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment.” But this was heard with indignation and astonishment by every lawyer present: according to Mr. Selden’s own(n) account of the matter, whose **135]resentment was not cooled at the distance of four-and-twenty years.

These pitiful evasions gave rise to the statute 16 Car. I. c. 10, § 8, whereby it is enacted that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king’s bench or common pleas; who shall thereupon, within three court-days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still, in the case of Jenks, before alluded to,(o) who in 1676 was committed by the king in council for a turbulent speech at Guildhall,(p) new shifts and devices were made use of to prevent his enlargement by law, the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum, &c., whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and a third, called an alias and a pluries, were issued, before he produced the party, and many other vexatious shifts were practised to detain state-prisoners in custody. But whoever will attentively consider the English history may observe that the flagrant abuse of any power by the crown or its ministers has always been productive of a struggle, which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2, which is frequently **136]considered as another magna carta(q) of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceedings on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.

The statute itself enacts, 1. That on complaint and request in writing by or on behalf of any person committed and charged with any crime, (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory, before the fact, to any petit-treason or felony; or upon suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process,) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be endorsed as granted in pursuance of this act, and signed by the person awarding them. 3. That the writ shall be returned and the prisoner brought up within a limited time, according to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another without sufficient reason or authority, (specified in the act,) shall for the first offence forfeit 100l., and for the second offence 200l., to the party grieved, and be disabled Edition: current; Page: [136] to hold his office. 5. That no person once delivered by habeas corpus shall be recommitted for the same offence, on penalty of 500l. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of *[*137oyer and terminer, be indicted in that term or session, or else admitted to bail: unless the king’s witnesses cannot be produced at that time: and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence: but that no person, after the assizes shall be open for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended, but shall be left to the justice of the judges of assize. 7. That any such prisoner 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 same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of 500l. 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying, to be transported, or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king’s dominions, on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than 500l., to be recovered with treble costs; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the king’s pardon.

This is the substance of that great and important statute: which extends (we may observe) only to the case of commitments for such criminal charge, as can produce no inconvenience to public justice by a temporary enlargement of the prisoner: all other cases of unjust imprisonment 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(r) and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any *[*138alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because the oppression does not always arise from the ill nature, but sometimes from the mere inattention, of government. For it frequently happens in foreign countries (and has happened in England during temporary suspensions(s) of the statute) that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.22

The satisfactory remedy for this injury of false imprisonment, is by an action Edition: current; Page: [138] of trespass vi et armis, usually called an action of false imprisonment; which is generally, and almost unavoidably, accompanied with a charge of assault and battery also; and therein the party shall recover damages for the injury he has received; and also 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.23

III. With regard to the third absolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is strictly a personal right; yet as its nature and original, and the means of its acquisition or loss, fell more directly under our second general division, of the rights of things; and as, of course, the wrongs that affect these rights must be referred to the corresponding division in the present book of our commentaries; I conceive it will be more commodious and easy to consider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.

We are next to contemplate those which affect their relative rights; or such as are incident to persons considered as members of society, and connected to each other by various **139]ties and relations; and, in particular, such injuries as may be done to persons under the four following relations: husband and wife, parent and child, guardian and ward, master and servant.

I. Injuries that may be offered to a person, considered as a husband, are principally three: abduction, or taking away a man’s wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence: though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore gives a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta.(t) This action lay at the common law; and thereby the husband shall recover, not the possession(u) of his wife, but damages for taking her away: and by statute Westm. 1, 3 Edw. I. c. 13, the offender shall also be imprisoned two years, and be fined at the pleasure of the king. Both the king and the husband may therefore have this action;(w) and the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause.(x) The old law was so strict in this point, that if one’s wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned;(y) but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce.(z) 2. Adultery, or criminal conversation with a man’s wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury, (and surely there can be no greater,) the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually **140]very large and exemplary. But these are properly increased and diminished by circumstances;(a) as the rank and fortune of the plaintiff and defendant; the relation or connection between them; the seduction or otherwise of the wife, founded on her previous behaviour and character; and the husband’s obligation, by settlement or otherwise, to provide for those children, which he cannot but suspect to be spurious. In this case, and upon indictments for polygamy, a marriage in fact must be proved; though generally, in other cases, reputation and cohabitation are sufficient evidence of Edition: current; Page: [140] marriage.(b) The third injury is that of beating a man’s wife, or otherwise ill using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis. which must be brought in the names of the husband and wife jointly; but if the beating or other mal-treatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill usage, per quod consortium amisit; in which he shall recover a satisfaction in damages.(c)

II. Injuries that may be offered to a person considered in the relation of a parent24 were likewise of two kinds: 1. Abduction, or taking his children away; and, 2. Marrying his son and heir without the father’s consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, 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 sort of injury for which a civil action will lie. As to the other, of abduction, or taking away the children from the father, that is also 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 action would lie for taking and carrying away *[*141any other child besides the heir; some holding that it would not, upon the supposition that the only ground or cause of action was losing 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 interest in them all, to provide for their education.(d) If, therefore, before the abolition of these tenures, it was an injury to the father to take away the rest of his children, as well as his heir, (as I am inclined to think it was,) it still remains an injury, and is remediable by writ of ravishment or action of trespass Edition: current; Page: [141] vi et armis, de filio, vel filia, rapto vel abducto;(e) in the same manner as the husband may have it on account of the abduction of his wife.

III. Of a similar nature to the last is the relation of guardian and ward; and the like actions mutatis mutandis, as are given to fathers, the guardian also has for recovery of damages, when his ward is stolen or ravished away from him.(f) And though guardianship in chivalry is now totally abolished, which was the only beneficial kind of guardianship to the guardian, yet the guardian in socage was always(g) and is still entitled to an action of ravishment, if his ward or pupil be taken from him; but then he must account to his pupil for the damages which he so recovers.(h) And, as a guardian in socage was also entitled at common law to a writ of right of ward, de custodia terræ et hæredis, in order to recover the possession and custody of the infant,(i) so I apprehend that he is still entitled to sue out this antiquated right. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery; which is the supreme guardian, and has the superintendent jurisdiction, of all the infants in the kingdom. And it is expressly provided by statute 12 Car. II. c. 24 that testamentary guardians may maintain an action of ravishment or trespass, for recovery of **142]any of their wards, and also for damages to be applied to the use and benefit of the infants.(k)

IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man’s hired servant before his time is expired; the other is, beating or confining him in such a manner that he is not able to perform his work. As to the first, the retaining another person’s servant during the time he has agreed to serve his present master; this, as it is an ungentlemanlike, so it is also an illegal, act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time: the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given him a remedy by a special action on the case; and he may also have an action against the servant for the non-performance of his agreement.(l) But, if the new master was not apprized of the former contract, no action lies against him,(m) unless he refuses to restore the servant, upon demand. The other point of injury is that of beating, confining, or disabling a man’s servant, which depends upon the same principle as the last; viz., the property which the master has by his contract acquired in the labour of the servant. In this case, besides the remedy of an action of battery or imprisonment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis; in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit;(n) and then the jury will make him a proportionable pecuniary satisfaction.25 A similar practice to which we find also to have obtained among Edition: current; Page: [142] the Athenians; where masters were entitled to an action against such as beat or ill treated their servants.(o)26

*[*143We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in any thing during her coverture. The child hath no property in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal,27 and which will be considered in the next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.28

CHAPTER IX.: OF INJURIES TO PERSONAL PROPERTY.

**144]In the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division(a) of property into personal and real: personal, which consists in goods, money, and all other movable chattels, and things thereunto incident; a property which may attend a man’s person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immovable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.

**145]First, then, we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only.(b)

I. The rights of personal property in possession are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows, as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with **146]damages for the loss sustained by such unjust invasion; which is effected by action of replevin; an institution which the Mirror(c) ascribes to Glanvil, chief justice to king Henry the Second. This obtains only in one instance of an unlawful taking, that of a wrongful distress:1 and this and Edition: current; Page: [146] the action of detinue (of which I shall presently say more) are almost the only actions in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that “lex neminem cogit ad vana, seu impossibilia,” it therefore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent, to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous,(d) in case they were going to the pound, or by writ de parco fracto, or pound-breach,(e) in case they were actually impounded. He may also at his option bring an action on the case for this injury; and shall therein, if the distress were taken for rent, recover treble damages.(f) The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous:(g) or, if the sheriff makes a return of such *[*147rescous to the court out of which the process issued, the rescuer will be punished by attachment.(h)

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause; being a re-delivery of the pledge,(i) or thing taken in distress, to the owner, upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him:(j) after which the distrainor may keep it till tender made of sufficient amends; but must then re-deliver it to the owner.(k) And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias;(l) which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county-court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage.(m) For which reason the statute of Marlbridge(n) directs that (without suing a writ out of the chancery) the sheriff immediately upon plaint to him made shall proceed to replevy the goods. And, for the greater ease of the parties, it is further provided, by statute 1 P. & M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff or one of his said Edition: current; Page: [147] deputies, security is to be given, in pursuance of the statute of Westm. 2, 13 Edw. I. c. 2: 1. That the party replevying will pursue his action against the distrainor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him he will return the distress again; for which purpose he is also bound to find plegios de retorno **148]habendo. Besides these pledges, the sufficiency of which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19 requires that the officer granting a replevin on a distress for rent shall take a bond with two sureties in a sum of double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for the return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer; and if forfeited may be sued in the name of the assignee.2 And certainly, as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff on receiving such security is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon; unless the distrainor claims a property in the goods so taken. For if by this method of distress the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has gained possession, being a kind of personal remitter.(o) If therefore the distrainor claims any such property, the part-replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted.(p) And if it be found to be in the distrainor, the sheriff can proceed no further, but must return the claim of property to the court of king’s bench or common pleas, to be there further prosecuted, if thought advisable, and there finally determined.(q)

But if no claim of property be put in, or if (upon trial) the sheriff’s inquest determines it against the distrainor; then the sheriff is to replevy the goods (making use of even force, **149]if the distrainor makes resistance)(r) in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown; and thereupon the party replevying shall have a writ of capias in withernam, in vetito (or more properly repetito) namio; a term which signifies a second or reciprocal distress,(s) in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor in lieu of the distress formerly Edition: current; Page: [149] taken, and eloigned, or withheld from the owner.(t) So that here is now distress against distress: one being taken to answer the other by way of reprisal,(u) and as a punishment for the illegal behaviour of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming.(v)

But in common cases the goods are delivered back to the party replevying, who is then bound to bring his action of replevin, which may be prosecuted in the county-court, be the distress of what value it may.(w) But either party may remove it to the superior courts of king’s bench or common pleas, by writ of recordari or pone;(x) the plaintiff at pleasure, the defendant upon reasonable cause;(y) and also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no further;(z) so that it is usual to carry it up in the first instance to the courts of Westminster hall.3 *[*150Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife;(a) and sets forth the reason of it, as for rent-arrere, damage done, or other cause: or else, if he justifies in another’s right as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain; and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff; viz., that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages.(b) But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody, to be sold, or otherwise disposed of, as if no replevin hath been made. And at the common law, the plaintiff might have brought another replevin, and so in infinitum, to the intolerable vexation of the defendant. Wherefore the statute of Westm. 2, c. 2 restrains the plaintiff, when nonsuited, from suing out any fresh replevin, but allows him a judicial writ issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before. And, if the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; after which no writ of second deliverance shall be allowed.(c) But in case of a distress for rent-arrere, the writ of second deliverance is, in effect,(d) taken away by statute 17 Car. II. c. 7, which directs that if the plaintiff be nonsuit before issue joined, then upon suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on Edition: current; Page: [150] demurrer, then, without any such suggestion, the defendant may have **151]a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear, with costs; or, if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury impanelled to try the cause shall assess such arrears for the defendant: and if (in any of these cases) the distress be insufficient to answer the arrears distrained for, the defendant may take a further distress or distresses.(e) But otherwise, if pending a replevin for a former distress, a man distrains again for the same rent or service, then the party is not driven to his action of replevin, but shall have a writ of recaption,(f) and recover damages for the defendant the re-distrainor’s contempt of the process of the law.

In like manner, other remedies for other unlawful takings of a man’s goods consist only in recovering a satisfaction in damages. And if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury, which though it doth not amount to felony unless it be done animo furandi, is nevertheless a transgression for which an action of trespass vi et armis will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it.4 Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more.5

2. Deprivation of possession may also be an unjust detainer of another’s goods, though the original taking was lawful.6 As if I distrain another’s cattle damage-feasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them:(g) in which he shall recover damages only for the detention and not **152]for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining and not in the original taking, and the regular method for me to recover possession is by action of detinue.(h) In this action of detinue it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like, for that cannot be known from other money or corn, unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary:(i) 1. That the defendant came lawfully into possession of the goods as either by delivery to him, or finding them; 2. That the plaintiff Edition: current; Page: [152] have a property; 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also the damages for detaining them.(j)7 But there is one disadvantage which attends this action, viz., that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath,(k) and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence that in the plaintiff’s own opinion the defendant was worthy of credit. But, for this reason, the action itself is of late much disused, and has given place to the action of trover.8

This action of trover and conversion was in its original an action of trespass upon the case, for the recovery of damages against such person as had found another’s goods and refused to deliver them on demand, but converted them to his own *[*153use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods,(l) gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion; for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown:(m) and therefore he must not convert them to his own use, which the law presumes him to do if he refuses them to the owner: for which reason such refusal also is, prima facie, sufficient evidence of a conversion.(n) The fact of the finding or trover is therefore now totally immaterial; for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them; and if he proves that the goods are his property and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved; and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of detinue or replevin.

As to the damage that may be offered to things personal while in the possession of the owner, as hunting a man’s deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress Edition: current; Page: [153] them, which are in two shapes; by action of trespass vi et armis, where the act is in itself immediately **154]injurious to another’s property, and therefore necessarily accompanied with some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction; for the action will lie against the master as well as the servant.(o) And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit.9

II. Hitherto of injuries affecting the right of things personal in possession. We are next to consider those which regard things in action only: or such rights as are founded on, and arise from, contracts; the nature and several divisions of which were explained in the preceding volume.(q) The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered: but I shall now consider them in a more comprehensive view, by her; making only a twofold division of contracts; viz., contracts express, and contracts implied; and pointing out the injuries that arise from the violation of each, with their respective remedies.

Express contracts include three distinct species; debts, covenants, and promises.

(p)1. The legal acceptation of debt is, a sum of money due by certain and express agreement: as, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy **155]is by action of debt,(r) to compel the performance of the contract and recover the specifical sum due.(s) This is the shortest and surest remedy; particularly where the debt arises upon a specialty, that is, upon a deed or instrument under seal. So also, 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 against me; for this is also a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal; wherein the sum due is clearly and precisely expressed: for, in case of such an action upon a simple contract, the plaintiff labours under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks proper.(t) Secondly, in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. If therefore I bring an action of debt for 30l., I Edition: current; Page: [155] am not at liberty to prove a debt of 20l. and recover a verdict thereon:(u) any more than if I bring an action of detinue for a horse I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be specific, express, and determinate.10 But in an action on the case, on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the contract, but to recover damages for its non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration. *[*156For if any debt be proved, however less than the sum demanded, the law will raise a promise pro tanto, and the damages will of course be proportioned to the actual debt. So that I may declare that the defendant, being indebted to me in 30l., undertook or promised to pay it, but failed; and lay my damages arising from such failure at what sum I please: and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior sum. And, even in actions of debt, where the contract is proved or admitted, if the defendant can show that he has discharged any part of it, the plaintiff shall recover the residue.(v)

The form of the writ of debt is sometimes in the debet and detinet, and sometimes in the detinet only: that is, the writ states, either that the defendant owes and unjustly detains the debt or thing in question, or only that he unjustly detains it. It is brought in the debet as well as detinet, when sued by one of the original contracting parties who personally gave the credit, against the other who personally incurred the debt, or against his heirs, if they are bound to the payment; as by the obligee against the obligor, the landlord against the tenant, &c. But, if it be brought by or against an executor for a debt due to or from the testator, this, not being his own debt, shall be sued for in the detinet only.(w) So also if the action be for goods, or corn, or a horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I (or my ancestors in my name) have personally contracted, is properly considered as my debt. And indeed a writ of debt in the detinet only, for goods and chattels, is neither more nor less than a mere writ of detinue; and is followed by the very same judgment.(x)

2. A covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contract, the violation or breach of which is a civil injury. As if a man covenants to be at York by such a day, or not to exercise a trade in a particular place, and is not at York at the time appointed, or *[*157carries on his trade in the place forbidden, these are direct breaches of his covenant; and may be perhaps greatly to the disadvantage and loss of the covenantee.11 The remedy for this is by a writ of covenant:(y) which directs Edition: current; Page: [157] the sheriff to command the defendant generally to keep his covenant with the plaintiff, (without specifying the nature of the covenant,) or show good cause to the contrary: and if he continues refractory, or the covenant is already so broken that it cannot now be specifically performed, then the subsequent proceedings set forth with precision the covenant, the breach, and the loss which has happened thereby; whereupon the jury will give damages in proportion to the injury sustained by the plaintiff, and occasioned by such breach of the defendant’s contract.

There is one species of covenant of a different nature from the rest; and that is a covenant real, to convey or dispose of lands, which seems to be partly of a personal and partly of a real nature.(z) For this the remedy is by a special writ of covenant, for a specific performance of the contract concerning certain lands particularly described in the writ. It therefore directs the sheriff to command the defendant, here called the deforciant, to keep the covenant made between the plaintiff and him concerning the identical lands in question: and upon this process it is that fines of land are usually levied at common law,(a) the plaintiff, or person to whom the fine is levied, bringing a writ of covenant, in which he suggests some agreement to have been made between him and the deforciant, touching those particular lands, for the completion of which he brings this action. And, for the end of this supposed difference, the fine or finalis concordia is made, whereby the deforciant (now called the cognizor) acknowledges the tenements to be the right of the plaintiff, now called the cognizee. And moreover, as leases for years were formerly considered only as contracts(b) or covenants for the enjoyment of the rents and profits, and not as the conveyance of any real interest in the land, **158]the antient remedy for the lessee, if ejected, was by a writ of covenant against the lessor, to recover the term (if in being) and damages, in case the ouster was committed by the lessor himself: or if the term was expired, or the ouster was committed by a stranger claiming by an elder title, then to recover damages only.(c)12

No person could at common law take advantage of any covenant or condition, except such as were parties or privies thereto; and, of course, no grantee or assignee of any reversion or rent. To remedy which, and more effectually to secure to the king’s grantees the spoils of the monasteries then newly dissolved, the statute 32 Hen. VIII. c. 34 gives the assignee of a reversion (after notice of such assignment)(d) the same remedies against the particular tenant, by entry or action, for waste or other forfeitures, non-payment of rent, and non-performance of conditions, covenants, and agreements, as the assignor himself might have had; and makes him equally liable, on the other hand, for acts agreed to be performed by the assignor, except in the case of warranty.

3. A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury. The remedy indeed is not exactly the same: since, instead of an action of covenant, there only lies an action upon the case for what is called the assumpsit 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 estimate and settle. As if a builder promises, undertakes, or assumes to Caius that he will build and cover his house within a time limited, and fails to do it; Caius has an action on the case against the builder, for this breach of his express promise, undertaking, or Edition: current; Page: [158] assumpsit; and shall recover a pecuniary satisfaction for the injury sustained by such delay.13 So also in the case before mentioned, of *[*159a debt by simple contract, if the debtor promises to pay it and does not, this breach of promise entitles the creditor to his action on the case, instead of being driven to an action of debt.(e) Thus, likewise, a promissory note, or note of hand not under seal, to pay money at a day certain, is an express assumpsit; and the payee at common law, or by custom and act of parliament the endorsee,(f) may recover the value of the note in damages, if it remains unpaid. Some agreements indeed, though never so expressly made, are deemed of so important a nature that they ought not to rest in verbal promise only, which cannot be proved but by the memory (which sometimes will induce the perjury) of witnesses. To prevent which, the statute of frauds and perjuries, 29 Car. II. c. 3, enacts, that in the five following cases no verbal promise shall be sufficient to ground an action upon, but at the least some note or memorandum of it shall be made in writing, and signed by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. In all these cases a mere verbal assumpsit is void.14

From these express contracts the transition is easy to those that are only implied by law; which are such as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance.

Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person **160]is bound and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed 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 society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever therefore the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge. And this implied agreement it is that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages, or sum of money, as are assessed 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 against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment,(g) and shall not be put upon the proof of the original cause of action; but upon showing the judgment once obtained still in full force and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. This method seems to have been invented when real actions were more in use than at present, and damages were permitted to be recovered thereon; in order to have the benefit of a writ of capias to take the defendant’s body in execution for those damages, which process was allowable in an action of debt, (in consequence of the statute 25 Edw. III. c. 17,) but not in an action real. Wherefore, since the disuse of those real actions, actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harassing the defendant with the costs of two actions instead of one.

On the same principle it is (of an implied original contract to submit to the rules of the community whereof we are members) **161]that a forfeiture imposed by the by-laws and private ordinances of a corporation upon any that belong to the body, or an amercement set in a court-leet or court-baron upon any of the suitors to the court, (for otherwise it will not be binding,)(h) immediately creates a debt in the eye of the law; and such forfeiture or amercement, if unpaid, works an injury to the party or parties entitled to receive it: for which the remedy is by action of debt.(i)

The same reason may with equal justice be applied to all penal statutes, that is, such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party aggrieved, or else to any of the king’s subjects in general. Of the former sort is the forfeiture inflicted by the statute of Winchester(k) (explained and enforced by several subsequent statutes)(l) 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 Edition: current; Page: [161] they stand excused. But otherwise the party robbed is entitled to prosecute them by a special action on the case, for damages equivalent to his loss. And of the same nature is the action given by statute 9 Geo. I. c. 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction in damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually these forfeitures created by statute are given at large to any common informer; or, in other words, to any such person or persons as will sue for the same: and hence such actions are called popular actions, because they are given to the people in general.(m) Sometimes one part is given to the king, to the poor, or to some public use, and the other part to the *[*162informer or prosecutor: and then the suit is called a qui tam action, because it is brought by a person “qui tam pro domino rege, &c., quam pro se ipso in hac parte sequitur.” If the king therefore himself commences this suit, he shall have the whole forfeiture.(n) But if any one hath begun a qui tam, or popular action, no other person can pursue it: and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions: which practice is in some measure prevented by a statute made in the reign of a very sharp-sighted prince in penal laws, 4 Hen. VII. c. 20, which enacts that no recovery, otherwise than by verdict, obtained by collusion in an action popular, shall be a bar to any other action prosecuted bona fide. A provision that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation merely by the prevarication of the accuser, a new prosecution might be commenced against him.(o)

A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings or assumpsits; which though never perhaps actually made, yet constantly arise from the general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the case upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him as *[*163much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree that the real value of the goods should be paid; and an action on the case may be brought accordingly, if the vendee refuses to pay that value.

3. A third species of implied assumpsits is when one has had and received money belonging to another, without any valuable consideration given on the receiver’s part; for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised, and undertook, to account for it to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking; and he will be made to repay the owner in damages, equivalent to what he has detained in violation of such his promise. This is a very extensive and beneficial remedy, applicable to almost every case Edition: current; Page: [163] where the defendant has received money which ex æquo et bono he ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff’s situation.(p)

4. Where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit.(q)15

5. **164]Likewise, fifthly, upon a stated account between two merchants, or other persons, the law implies that he, against whom the balance appears, has engaged to pay it to the other; though there be not any actual promise. And from this implication it is frequent for actions on the case to be brought, declaring that the plaintiff and defendant had settled their accounts together, insimul computassent, (which gives name to this species of assumpsit,) and that the defendant engaged to pay the plaintiff the balance, but has since 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;(r) commanding the defendant to render a just account to the plaintiff, or show the court good cause to the contrary. In this action, if the plaintiff succeeds, there are two judgments: the first is, that the defendant do account (quod computet) before auditors appointed by the court; and, when such account is finished, then the second judgment is, that he do pay the plaintiff so much as he is found in arrear. This action, by the old common law,(s) lay only against the parties themselves, and not their executors; because matters of account rested solely on their own knowledge. But this defect, after many fruitless attempts in parliament, was at last remedied by statute 4 Anne, c. 16, which gives an action of account against the executors and administrators. But, however, it is found by experience, that the most ready and effectual way to settle these matters of account is by bill in a court of equity, where a discovery may be had on the defendant’s oath, without relying merely on the evidence which the plaintiff may be able to produce. Wherefore actions of account, to compel a man to bring in and settle his accounts, are now very seldom used; though, when an account is once stated, nothing is more common than an action upon the implied assumpsit to pay the balance.

6. **165]The last class of contracts, implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or intrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of those qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the case. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or of mis-feasance; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in both these cases the party aggrieved shall have an action on the case for damages to be assessed by a jury.(t) If a sheriff or gaoler suffers a prisoner, who is taken upon mesne process, (that is, during the pendency of a suit,) to escape, he is liable to an action on the case.(u) But if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compellable by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his whole demand; which doctrine is grounded(w) on the equity of the statute of Westm. 2, 13 Edw. I. c. 11, and 1 Ric. II. c. 12. An advocate or attorney Edition: current; Page: [165] that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case for a reparation to their injured client.(x)16 There is also in law always an implied contract with a common inn-keeper to secure his guest’s goods in his inn; with a common carrier, or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workman-like manner; in which, if they fail, an action on the case lies to recover damages for *[*166such breach of their general undertaking.(y) But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages if he, without good reason, refuses to admit a traveller.(z) If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest.(a)

In contracts, likewise, for sales, it is constantly understood that the seller undertakes that the commodity he sells is his own;17 and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit. In Edition: current; Page: [166] contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy may be had. Also if he, that selleth any thing, doth upon the sale warrant it to be good, the law annexes a tacit contract to his warranty, that if it be not so, he shall make compensation to the buyer; else it is an injury to good faith, for which an action on the case will lie to recover damages.(b) The warranty must be upon the sale; for if it be made after, and not at, the time of the sale, it is a void warranty:(c) for it is then made without any consideration; neither does the buyer then take the goods upon the credit of the vendor. Also, the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro; as, that a horse is sound at the buying of him, not that he will be sound two years hence.18 But if the vendor knew the goods **[**165to be unsound, and hath used any art to disguise them,(d) or if they are in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one’s senses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it.(e) Also, if a horse is warranted sound, and he wants the sight of an eye, though this seems to be the object of one’s senses, yet, as the discernment of such defects is frequently matter of skill, it hath been held that an action on the case lieth to recover damages for this imposition.(f)

Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit;(g) to give damages in some particular cases of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured;(h) as if one brings an action in another’s Edition: current; Page: [165] name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when, by collusion, the attorney of the tenant makes default in a real action, or where the sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney or the sheriff and his officers; to annual the former proceedings, and recover back the land.(i) It also lies in the cases of warranty before mentioned, and other personal injuries committed contrary to good faith and honesty.(k)19 But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions.(l) And indeed it is the only(m) **[**166remedy for a lord of a manor, in or out of antient demesne, to reverse a fine or recovery had in the king’s courts of lands lying within his jurisdiction; which would otherwise be thereby turned into frank-fee. And this may be brought by the lord against the parties and cestuy que use of such fine or recovery; and thereby he shall obtain judgment not only for damages, (which are usually remitted,) but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings.(n)

Thus much for the non-performance of contracts, express or implied; which includes every possible injury to what is by far the most considerable species of personal property, viz., that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to versonal property, with their several remedies by suit or action.

CHAPTER X.: OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.

*[*167I come now to consider such injuries as affect that species of property which the laws of England have denominated real; as being of a more substantial and permanent nature than those transitory rights of which personal chattels are the object.1

Real injuries, then, or injuries affecting real rights, are principally six:—1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance.

Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that hath a right, to seek his legal remedy in order to gain possession and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods:—1. Abatement; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforcement. All of which, in their order, and afterwards their respective remedies, will be considered in the present chapter.

1. And first, an abatement is where a person dies seised of an inheritance and before the heir or devisee enters, a stranger **168]who has no right makes entry and gets possession of the freehold. This entry of him is called an abatement, and he himself is denominated an abator.(a) It is to be observed that this expression of abating, which is derived from the French, and signifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book;(b) and in a like sense it is used in statute Westm. 1, 3 Edw. I. c. 17, where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down and level it with the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter; here it is taken figuratively, and signifies the overthrow or defeating of such writ by some fatal exception to it. The last species of abatement is that we have now before us; which is also a figurative expression, to denote that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger.

This abatement of a freehold is somewhat similar to an immediate occupancy Edition: current; Page: [168] in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England; which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy, and hath directed that lands on the death of the present possessor should immediately vest either in some person expressly named and appointed by the deceased as his devisee, or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry, therefore, of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property.

*[*1692. The second species of injury by ouster, or amotion of possession from the freehold, is by intrusion; which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion.(c) This entry and interposition of the stranger differ from an abatement in this; that an abatement is always to the prejudice of the heir or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; if A. dies seised of lands in fee-simple, and before the entry of B. his heir, C. enters thereon, this is an abatement; but if A. be tenant for life, with remainder to B. in fee-simple, and after the death of A., C. enters, this is an intrusion. Also if A. be tenant for life on lease from B., or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B. and after the death of A., C. enters and keeps B. out of possession, this is likewise an intrusion. So that an intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy.

3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seised of the freehold.(d) The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in corporeal inheritances, *[*170or incorporeal. Disseisin of things corporeal, as of houses, lands, &c., must be by entry and actual dispossession of the freehold;(e) as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession: for the subject itself is neither capable of actual bodily possession, or dispossession; but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at or enjoying them. With regard to freehold rent in particular, our antient lawbooks(f) mentioned five methods of working a disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrain thereon, or demand it: 2. By forestaller, or lying in wait; when the tenant besetteth the way with force and arms, or by menaces of bodily hurt affrights the lessor from coming: 3. By rescous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the distress at such 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 these circumstances amount to a disseisin of rent; that is, they wrongfully put the owner out of the only possession, of Edition: current; Page: [170] which the subject-matter is capable, namely, the receipt of it. But all these disseisins, of hereditaments, incorporeal, are only so at the election and choice of the party injured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised.(g) Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament.

And so, too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling him self to the more easy and commodious remedy of an assize of novel disseisin, (which will be explained in the sequel of this chapter,) instead of being **171]driven to the more tedious process of a writ of entry.(h) The true injury of compulsive disseisin seems to be that of dispossessing the tenant, and substituting oneself to be the tenant of the lord in his stead; in order to which in the times of pure feodal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seisin or investiture, seems to have been considered as necessary. But when in process of time the feodal form of alienations wore off, and the lord was no longer the instrument of giving actual seisin, it is probable that the lord’s acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseisin. Afterwards, no regard was had to the lord’s concurrence, but the dispossessor himself was considered as the sole disseisor: and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseisor himself; but required a legal process against his heir or alience. And when the remedy by assize was introduced under Henry II. to redress such disseisins 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 themselves to be disseised, merely for the sake of the remedy.

These three species of injury, abatement, intrusion, and disseisin, are such wherein the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards.

4. Such is, fourthly, the injury of discontinuance;2 which happens when he who hath an estate-tail maketh a larger estate of the land than by law he is entitled to do:(i) in which case the estate is good, so far as his power extends who made it, but no further. As if tenant in tail makes a feoffment in feesimple, or for the life of the feoffee, or in tail; all **172]which are beyond his power to make, for that by the common law extends no further than to male a lease for his own life; in such case the entry of the feoffee is lawful Edition: current; Page: [172] during the life of the feoffor; but if he retains the possession after the death of the feoffor, it is an injury, which is termed a discontinuance: the antient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued.3 For, in this case, on the death of the alienors, neither the heir in tail, nor they in remainder or reversion expectant on the determination of the estate-tail, can enter on and possess the lands so alienated. Also, by the common law, the alienation of a husband who was seised in the right of his wife, worked a discontinuance of the wife’s estate, till the statute 32 Hen. VIII. c. 28 provided, that no act by the husband alone shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife; but that, after his death, she or her heirs may enter on the lands in question. Formerly, also, if an alienation was made by a sole corporation, as a bishop or dean, without consent of the chapter, this was a discontinuance.(j) But this is now quite antiquated by the disabling statutes of 1 Eliz. c. 19 and 13 Eliz c. 10, which declare all such alienations absolutely void ab initio, and therefore at present no discontinuance can be thereby occasioned.4

5. The fifth and last species of injuries by ouster or privation of the freehold, where the entry of the present tenant or possessor was originally lawful, but his detainer is now become unlawful, is that by deforcement. This, in its most extensive sense, is nomen generalissimum; a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right.(k) So that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from the former, it is only such a detainer of the *[*173freehold from him that hath the right of property, but never had any possession under that right, as falls within none of the injuries which we have before explained. As in case where a lord has a seignory, and lands escheat to him propter defectum sanguinis, but the seisin of the lands is withheld from him; here the injury is not abatement, for the right vests not in the lord as heir or devisee; nor is it intrusion, for it vests not in him who hath the remainder or reversion; nor is it disseisin, for the lord was never seised; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement.(l) If a man marries a woman, and during the coverture is seised of lands, and alienes, and dies; is disseised, and dies; or dies in possession; and the alienee, disseisor, or heir enters on the tenements and doth not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which Edition: current; Page: [173] she hath a right.(m) In like manner, if a man lease lands to another for term of years, or for the life of a third person, and the term expires by surrender, efflux of time, or death of the cestuy que vie; and the lessee or any stranger, who was at the expiration of the term in possession, holds over, and refuses to deliver the possession to him in remainder or reversion, this is likewise a deforcement.(n) Deforcements may also arise 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 such a fraud on the man’s part, that the law will not allow it to devest the woman’s right of possession; though, his entry being lawful, it does devest the actual possession, and thereby becomes a deforcement.(o) Deforcements may also be grounded on the disability of the party deforced: as if an infant do make an alienation of his lands, and the alienee enters and keeps possession: now, as the alienation is voidable, this possession as against the infant (or, in case of his decease, as against his heir) is after avoidance wrongful, and therefore a deforcement.(p) The same happens **174]when one of non-sane memory alienes his lands or tenements, and the alienee enters and holds possession; this may also be a deforcement.(q) Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against the other: as where the ancestor dies seised of an estate in fee-simple, which descends to two sisters as coparceners, and one of them enters before the other, and will not suffer her sister to enter and enjoy her moiety; this is also a deforcement.(r) Deforcement may also be grounded on the non-performance of a covenant real: as if a man, seised of lands, covenants to convey them to another, and neglects or refuses so to do, but continues possession against him; this possession, being wrongful, is a deforcement:(s) whence, in levying a fine of lands, the person against whom the fictitious action is brought upon a supposed breach of covenant is called the deforciant. And, lastly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporeal possession. So that whatever injury (withholding the possession of a freehold) is not included under one of the four former heads, is comprised under this of deforcement.

The several species and degrees of injury by ouster being thus ascertained and defined, the next consideration is the remedy; which is, universally, the restitution or delivery of possession to the right owner; and, in some cases, damages also for the unjust amotion. The methods, whereby these remedies, or either of them, may be obtained, are various.

1. The first is that extrajudicial and summary one, which we slightly touched in the first chapter of the present book,(t) of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements. In this case the party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession; which notorious act of ownership is equivalent to a feodal investiture by the lord;(u) or he may enter on any **175]part of it in the same county, declaring it to be in the name of the whole;(v) but if it lies in different counties he must make different entries; for the notoriety of such entry or claim to the pares or freeholders of Westmoreland is not any notoriety to the pares or freeholders of Sussex. Also if there be two disseisors, the party disseised must make his entry on both; or if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on both:(w) for as their seisin is distinct, so also must be the act which devests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim as near to the estate as he can, with the like forms and solemnities; which claim is in force for only a year and a day.(x) And this claim, if it be repeated once in the space of Edition: current; Page: [175] every year and a day, (which is called continual claim,) has the same effect with, and in all respects amounts to, a legal entry.(y) Such an entry gives a man seisin,(z) or puts into immediate possession him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.5

This remedy by entry takes place in three only of the five species of ouster, viz., abatement, intrusion, and disseisin;(a) for as in these the original entry of the wrong-doer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a discontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action; for herein, the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter(b) on his tenant by sufferance: for such tenant hath no freehold, but only a bare possession; 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 suppose or admit(c) such tenant to have *[*176gained a tortious freehold, he is then remediable by writ of entry, ad terminum qui prœteriit.

On the other hand, in case of abatement, intrusion, or disseisin, where entries are generally lawful, this right of entry may be tolled, that is, taken away by descent.6 Descents which take away entries(d) are when any one, seised by any means whatsoever of the inheritance of a corporeal hereditament, dies;7 whereby the same descends to his heir:8 in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the Edition: current; Page: [176] freehold is taken away, and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate. And this first, because the heir comes to the estate by act of law, and not by his own act; the law therefore protects his title, and will not suffer his possession to be devested till the claimant hath proved a better right. Secondly, because the heir may not suddenly know the true state of his title; and therefore the law, which is ever indulgent to heirs, takes away the entry of such claimant as neglected to enter on the ancestor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir.(e) Thirdly, this was admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war, since his children could not by any mere entry of another be dispossessed of the lands whereof he died seised. And, lastly, it is agreeable to the dictates of reason and the general principles of law.

For, in every complete title(f) to lands, there are two things necessary: the possession or seisin, and the right of property therein;(g) or, as it is expressed in Fleta, juris et seisinæ conjunctio(h) Now, if the possession be severed from the property, if A. has the jus proprietatis, and B. by some unlawful means has gained possession of the lands, this is an injury to A., for which the law gives a remedy by putting **177]him in possession, but does it by different means according to the circumstances of the case. Thus, as B., who was himself the wrong-doer, and hath obtained the possession by either fraud or force, hath only a bare or naked possession, without any shadow of right, A., therefore, who hath both the right of property and the right of possession, may put an end to his title at once by the summary method of entry. But if B. the wrong-doer dies seised of the lands, then B.’s heir advances one step further towards a good title; he hath not only a bare possession, but also an apparent jus possessionis, or right of possession. For the law presumes that the possession which is transmitted from the ancestor to the heir is a rightful possession until the contrary be shown; and therefore the mere entry of A. is not allowed to evict the heir of B.; but A. is driven to his action at law to remove the possession of the heir, though his entry alone would have dispossessed the ancestor.9

So that, in general, it appears that no man can recover possession by mere entry on lands which another hath by descent. Yet this rule hath some exceptions(i) wherein those reasons cease upon which the general doctrine is grounded; especially if the claimant were under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm: in all which cases there is no neglect or laches in the claimant, and therefore no descent shall bar or take away his entry.(k) And this title of taking away entries by descent is still further narrowed by the statute 32 Hen. VIII. c. 33, which enacts that, if any person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him that has a right to the land, unless the disseisor had peaceable possession five years next after the disseisin. But the statute extendeth not to any feoffee or donee of the disseisor, mediate or immediate;(l) because such a one by the genuine feodal constitutions always came into the tenure solemnly **178]and with the lord’s concurrence, by actual delivery of seisin, that is, open and public investiture. On the other hand, it is enacted by the statute of limitations, 21 Jac. I. c. 16, that no entry shall be made by any man upon lands, unless within twenty years after his right shall Edition: current; Page: [178] accrue.10 And by statute 4 & 5 Anne, c. 16, no entry shall be of force to satisfy the said statute of limitations, or to avoid a fine levied of lands, unless an action be thereupon commenced within one year after, and prosecuted with effect.11

Upon an ouster by the discontinuance of tenant in tail, we have said 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 issue in tail, and drives him to his action at law to recover the possession.(m) For, as in the former cases, the law will not suppose, without proof, that the ancestor of him in possession acquired the estate by wrong, and therefore, after five years’ peaceable possession, and a descent cast, will not suffer the possession of the heir to be disturbed by mere entry without action; so here the law will not suppose the discontinuor to have aliened the estate without power so to do, and therefore leaves the heir in tail to his action at law, and permits not his entry to be lawful. Besides, the alienee, who came into possession by a lawful conveyance, which was at least good for the life of the alienor, hath not only a bare possession, but also an apparent right of possession; which is not allowed to be devested by the mere entry of the claimant, but continues in force till a better right be shown, and recognised by a legal determination. And something also perhaps, in framing this rule of law, may be allowed to the inclination of the courts of justice, to go as far as they could in making estates-tail alienable, by declaring such alienations to be voidable only, and not absolutely void.

In case of deforcement also, where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still continues to have the presumptive prima *[*179facie evidence of right; that is, possession lawfully gained. Which possession shall not be overturned by the mere entry of another; but only by the demandant’s showing a better right in a course of law.

This remedy by entry must be pursued, according to statute 5 Ric. II. st. 1, c. 8, in a peaceable and easy manner; and not with force or strong hand. For, if one turns or keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the antient possessor in statu quo: the criminal injury, or public wrong, by breach of the king’s peace, is punished by fine to the king. For by the statute 8 Hen. VI. c. 9, upon complaint made to any justice of the peace, of a forcible entry, with strong hand, on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party so put out: and in such case, or if any alienation be made to defraud the possessor of his right, (which is likewise declared to be absolutely void,) the offender shall forfeit, for Edition: current; Page: [179] the force found, treble damages to the party grieved, and make fine and ransom to the king. But this does not extend to such as endeavour to keep possession manu forti, after three years’ peaceable enjoyment of either themselves, their ancestors, or those under whom they claim; by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. 11.12

II. Thus far of remedies, when tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next follow another class, which are in use where the title of the tenant or occupier is advanced one step nearer to perfection; so that he hath in him not only a bare possession, which may be destroyed by a bare entry, but also an apparent right of possession, which cannot be removed but by orderly course of law; in the process of which it must be shown, that though he hath at present possession, and therefore hath **180]the presumptive right, yet there is a right of possession, superior to his, residing in him who brings the action.

These remedies are either by a writ of entry, or an assize; which are actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land) or his ancestors have been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property; only restoring the demandant to that state or situation, in which he was (or by law ought to have been) before the dispossession committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal claim, he may afterwards exert it, notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means:(n) rather presuming the right to have accompanied the antient seisin, than to reside in one who had no such evidence in his favour.

1. The first of these possessory remedies is by writ of entry; which is that which disproves the title of the tenant or possessor, by showing the unlawful means by which he entered or continues possession.(o) The writ is directed to the sheriff, requiring him to “command the tenant of the land that he render (in Latin, præcipe quod reddat) to the demandant the land in question, which he claims to be his right and inheritance; and into which, as he saith, the said tenant had not entry but by (or after) a disseisin, intrusion, or the like, made to the said demandant, within the time limited by law for such actions; or that upon refusal he do appear in court on such a day, to show wherefore he hath not done it.”(p) This is the original process, the præcipe upon which all the rest of Edition: current; Page: [180] the suit is grounded: wherein it appears, that the tenant is required, either to deliver *[*181seisin of the lands, or to show cause why he will not. This cause may be either a denial of the fact of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim: whereupon the possession of the land is awarded to him who produces the clearest right to possess it.

In our antient books we find frequent mention of the degrees within which writs of entry are brought. If they be brought against the party himself that did the wrong, then they only charge the tenant himself with the injury; “non habuit ingressum nisi per intrusionem quam ipse fecit.” But if the intruder, disseisor, or the like has made any alienation of the land to a third person, or it has descended to his heir, that circumstance must be alleged in the writ, for the action must always be brought against the tenant of the land; and the defect of his possessory title, whether arising from his own wrong or that of those under whom he claims, must be set forth. One such alienation or descent makes the first(q) degree, which is called the per, because then the form of a writ of entry is this; that the tenant had not entry but by the original wrong-doer, who alienated the land, or from whom it descended to him: “non habuit ingressum, nisi per Gulielmum, qui se in illud intrusit, et illud tenenti dimisit.”(r) A second alienation or descent makes another degree, called the per and cui; because the form of a writ of entry, in that case, is, that the tenant had not entry but by or under a prior alienee, to whom the intruder demised it; “non habuit ingressum nisi per Ricardum, cui Gulielmus illud dimisit, qui se in illud intrusit.”(s) These degrees thus state the original wrong, and the title of the tenant who claims under such wrong. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the common law. For as it was provided, for the *[*182quietness of men’s inheritances, that no one, even though he had the true right of possession, should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degree subsisted, and for the ending of suits and quieting of all controversies.(t) But by the statute of Marlberge, 52 Hen. III. c. 30, it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And accordingly a new writ has been framed, called a writ of entry in the post, which only alleges the injury of the wrong-doer, without deducing all the intermediate title from him to the tenant: stating it in this manner; that the tenant had not entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; “non habuit ingressum nisi post intrusionem quam Gulielmus in illud fecit;” and rightly concluding, that if the original title was wrongful, all claims derived from thence must participate of the same wrong. Upon the latter of these writs it is (the writ of entry sur disseisin in the post) that the form of our common recoveries of landed estates(u) is usually grounded; which, we may remember, were observed in the preceding volume(v) to be fictitious actions brought against the tenant of the freehold, (usually called the tenant to the præcipe, or writ of entry,) in which by collusion the demandant recovers the land.

This remedial instrument, or writ of entry, is applicable to all the cases of ouster before mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower, by not assigning any dower to the widow within the time limited by *[*183law; for which she has her remedy by writ of dower, unde nihil habet.(w) Edition: current; Page: [183] But if she be deforced of part only of her dower, she cannot then say that nihil habet; and therefore she may have recourse 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 same nature as the grand writ of right, whereof we shall presently speak, is with regard to claims in fee-simple.(x) On the other hand, if the heir (being within age) or his guardian assign her more than she ought to have, they may be remedied by a writ of admeasurement of dower.(y) But in general the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner. It were therefore endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England:(z) being plainly and clearly chalked out in that most antient and highly venerable collection of legal forms, the registrum omnium brevium, or register of such writs as are suable out of the king’s court, upon which Fitzherbert’s natura brevium is a comment; and in which every man who **184]is injured will be sure to find a method of relief, exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2, 13 Edw. I. c. 24, for framing new writs when wanted, is almost rendered useless 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 such a provision contained in them, or not to have occasion, or at least very rarely, to use it.

In the times of our Saxon ancestors the right of possession seems only to have been recoverable by writ of entry,(a) which was then usually brought in the county-court. And it is to be observed that the proceedings in these actions were not then so tedious when the courts were held and process issued from and was returnable therein at the end of every three weeks, as they became after the conquest, when all causes were drawn into the king’s courts, and process issued only from term to term; which was found exceedingly dilatory, being at least four times as slow as the other. And hence a new remedy was invented in many cases, to do justice to the people and to determine the possession in the proper counties, and yet by the king’s judges. This was the remedy by assize, which is called, by statute Westm. 2, 13 Edw. I. c. 24, festinum remedium, in comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings to which other real actions are subject.(b)13

2. The writ of assize is said to have been invented by Glanvil, chief justice to Henry the Second;(c) and if so, it seems to owe its introduction to the parliament held at Northampton in the twenty-second year of that prince’s reign; when justices in eyre were appointed to go round the kingdom in order to take these assizes: and the assizes themselves **185](particularly those of mort d’ancestor and novel disseisin) were clearly pointed out and described.(d) Edition: current; Page: [185] As a writ of entry is a real action which disproves the title of the tenant by showing the unlawful commencement of his possession, so an assize is a real action which proves the title of the demandant merely by showing his or his ancestor’s possession:(e) and these two remedies are in all other respects so totally alike that a judgment or recovery in one is a bar against the other; so that when a man’s possession is once established by either of these possessory actions it can never be disturbed by the same antagonist in any other of them. The word assize is derived by Sir Edward Coke(f) from the Latin assideo, to sit together; and it signifies, originally, the jury who try the cause and sit together for that purpose. By a figure it is now made to signify the court or jurisdiction which summons this jury together by a commission of assize, or ad assisas capiendas; and hence the judicial assemblies held by the king’s commission in every county, as well to take these writs of assize, as to try causes at nisi prius, are termed in common speech the assizes. By another somewhat similar figure the name of assize is also applied to this action, for recovering possession of lands; for the reason, saith Littleton,(g) why such writs at the beginning were called assize, was, for that in these writs the sheriff is ordered to summon a jury or assize; which is not expressed in any other original writ.(h)

This remedy, by writ of assize, is only applicable to two species of injury by ouster, viz., abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant’s father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assize of mort d’ancestor, or death of one’s ancestor. This *[*186writ directs the sheriff to summon a jury or assize, who shall view the land in question, and recognise whether such ancestor was seised thereof on the day of his death, and whether the demandant be the next heir:(i) soon after which the judges come down by the king’s commission to take the recognition of assize: when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. If the abatement happened on the death of one’s grandfather or grandmother, then an assise of mort d’ancestor 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 besayle or de proavo: but if it mounts one degree higher, to the tresayle, or grandfather’s grandfather, or if the abatement happened upon the death of any collateral relation other than those before mentioned, the writ is called a writ of cosinage or de consanguineo.(k) And the same points shall be inquired of in all these actions ancestrel as in an assize of mort d’ancestor; they being of the very same nature:(l) though they differ in this point of form, that these ancestrel writs (like all other writs of præcipe) expressly assert a title in the demandant, (viz., the seisin of the ancestor at his death, and his own right of inheritance,) the assize asserts nothing directly, but only prays an inquiry whether those points be so.(m) There is also another ancestrel writ, denominated a nuper obiit, to establish an equal division of the land in question, where, on the death of an ancestor who has several heirs, one enters and holds the others out of possession.(n) But a man is not allowed to have any of these actions ancestrel for an abatement consequent on the death of any collateral relation beyond the fourth degree;(o) though in the lineal ascent he may proceed ad infinitum.(p) For there must be some boundary, else the privilege would be universal; which is absurd: and therefore the law pays no regard to the possession of a collateral ancestor who was no nearer than the fifth degree.

*[*187It was always held to be a law(q) that where lands were devisable in a man’s last will by the custom of the place, there an assize of mort d’ancestor did not lie. For where lands were so devisable, the right of Edition: current; Page: [187] possession could never be determined by a process which inquired only of these two points, the seisin of the ancestor and the heirship of the demandant. And hence it may be reasonable to conclude, that when the statute of wills, 32 Hen. VIII. c. 1, made all socage-lands devisable, an assize of mort d’ancestor no longer could be brought of lands held in socage;(r) and that now, since the statute 12 Car. II. c. 24, (which converts all tenures, a few only excepted, into free and common socage,) no assize of mort d’ancestor can be brought of any lands in the kingdom, but that, in case of abatements, recourse must be properly had to the writs of entry.14

An assize of novel (or recent) disseisin is an action of the same nature with the assize of mort d’ancestor before mentioned, in that herein the demandant’s possession must be shown. But it differs considerably in other points; particularly in that it recites a complaint by the demandant of the disseisin committed, in terms of direct averment; whereupon the sheriff is commanded to reseize the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assize, (which in fact hath been usually omitted;)(s) and in the mean time to summon a jury to view the premises, and make recognition of the assize before the justices.(t) At which time the tenant may plead either the general issues nul tort, nul disseisin, or any special plea. And if, upon the general issue, the recognitors find an actual seisin in the demandant, and his subsequent disseisin by the present tenant, he shall have judgment to recover his seisin, and damages for the injury sustained: being the only case in which damages were recoverable in any possessory actions at the common law;(u) the tenant being in all other cases allowed to retain the intermediate profits of the **188]land, to enable him to perform the feodal service. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. III. c. 16, and Glocester, 6 Edw. I. c. 1. And to prevent frequent and vexatious disseisins, it is enacted by the statute of Merton, 20 Hen. III. c. 3, that if a person disseised recover seisin of the land again by assize of novel disseisin, and be again disseised of the same tenements by the same disseisor, he shall have a writ of re-disseisin; and if he recover therein, the re-disseisor shall be imprisoned; and by the statute of Marlberge, 52 Hen. III. c. 8, shall also pay a fine to the king: to which the statute Westm. 2, 13 Edw. I. c. 26 hath superadded double damages to the party aggrieved. In like manner, by the same statute of Merton, when any lands or tenements are recovered by assize of mort d’ancestor, or other injury, or any judgment of the court, if the party be afterwards disseised by the same person against whom judgment was obtained, he shall have a writ of post-disseisin against him; which subjects the post-disseisor to the same penalties as a re-disseisor. The reason of all which, as given by Sir Edward Coke,(w) is because such proceeding is a contempt of the king’s courts, and in despite of the law; or, as Bracton more fully expresses it,(x) “talis qui it a convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facit ea, quæ in curia domini regis rite acta sunt: et propter duplex delictum merito sustinere debet pœnam duplicatam.”

In all these possessory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance, to recover the possession merely; both to punish his neglect, (nam leges vigilantibus, non dormientibus, subveniunt,) and also because it is presumed Edition: current; Page: [188] that the supposed wrong-doer has in such a length of time procured a legal title, otherwise *[*189he would sooner have been sued. This time of limitation by the statute of Merton, 20 Hen. III. c. 8, and Westm. 1, 3 Edw. I. c. 39, was successively dated from particular eras, viz., from the return of king John from Ireland, and from the coronation, &c. of king Henry the Third. But this date of limitation continued so long unaltered that it became indeed no limitation at all; it being above three hundred years from Henry the Third’s coronation to the year 1540, when the present statute of limitations(y) was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure forever: by limiting a certain period, as fifty years for lands, and the like period(z) for customary and prescriptive rents, suits, and services, (for there is no time of limitation upon rents created by deed, or reserved on a particular estate,)(a) and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period. But this does not extend to services which by common possibility may not happen to become due more than once in the lord’s or tenant’s life; as fealty, and the like.(b) And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel disseisin; which name Sir Edward Coke informs us was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone.(c) And we may observe,(d) that the limitation, prescribed by Henry the Second at the first institution of the assize of novel disseisin, was from his own return into England, after the peace made between him and the young king his son; which was but the year before.15

*[*190What has been here observed may throw some light on the doctrine of remitter, which we spoke of in the second chapter of this book; and which we may remember was where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his antient and more certain right, and by an equitable fiction supposes him to have gained possession in consequence and by virtue thereof: and this, because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superfluous to a hasty observer; who perhaps would imagine, that since the tenant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our antient law determined nothing in vain. As the tenant’s possession was gained by a defective title, it was liable to be overturned by showing that defect in a writ of entry; and then he must have been driven to his writ of right, to recover his just inheritance: which would have been doubly hard, because during the time he was himself tenant he could not establish his prior title by any possessory actions. The law therefore remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et seisinam separate; a good right, but a bad possession: now, by the remitter, he hath the most perfect of all titles, juris et seisinæ conjunctionem.

III. By these several possessory remedies the right of possession may be restored Edition: current; Page: [190] to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as **191]one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.

This happens principally in four cases: 1. Upon discontinuance by the alienation of tenant in tail: whereby he who had the right of possession hath transferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before mentioned: for an undisturbed possession for fifty years ought not to be devested by any thing but a very clear proof of the absolute right of property. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same nature.

1. And first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, and the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formedon, (secundum formam doni,) which is in the nature of a writ of right,(e) and is the highest action that tenant in tail can have.(f) For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or **192]Westm. 2, 13 Edw. I. c. 1, which is therefore emphatically called his writ of right.(g) This writ is distinguished into three species: a formedon in the descender, in the remainder, 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 disseised of them, and dies; in this case the heir in tail shall have this writ of formedon in the descender, to recover these lands so given in tail against him who is then the actual tenant of the freehold.(h) In which action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third person in tail or in fee, and he who hath the particular estate dieth without issue inheritable, and a stranger intrudes upon him in remainder and keeps him out of possession.(i) In this case the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is stated, and the happening of the event upon which the remainder depended. This writ is not given in express words by the statute de donis; but is founded upon the equity of the statute, and upon this maxim in law, that if any one hath a right to the land, he ought also to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without issue of his body the reversion falls in upon the donor, his heirs, or assigns: in such case the reversioner shall have his writ to recover the lands, wherein he shall suggest the gift, his own title to the reversion minutely derived from the donor, and the failure of issue upon which his reversion takes place.(k) This lay at common law, before the statute de donis, if the donee aliened before he had performed the condition of the gift, by having Edition: current; Page: [192] issue, and afterwards died without any.(l) The time of limitation in a formedon, by statute 21 Jac. I. c. 16, is twenty years;16 within *[*193which space of time after his title accrues, the demandant must bring his action, or else he is forever barred.17

2. In the second case; if the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, are barred of the right of possession by a recovery had against them, through their default or non-appearance in a possessory action, they were absolutely without any remedy at the common law: as a writ of right does not lie for any but such as claim to be tenants of the fee-simple. Therefore the statute Westm. 2, 13 Edw. I. c. 4 gives a new writ for such persons, after their lands have been so recovered against them by default, called a quod ei deforceat; which, though not strictly a writ of right, so far partakes of the nature of one, as that it will restore the right to him who has been thus unwarily deforced by his own default.(m) But in case the recovery were not had by his own default, but upon defence in the inferior possessory action, this still remains final with regard to these particular estates, as at the common law: and hence it is, that a common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the usual bar to cut off an estate-tail.(n)

3, 4. Thirdly, in case the right of possession be barred by a recovery upon the merits in a possessory action, or lastly by the statute of limitations, a claimant in fee-simple may have a mere writ of right; which is in its nature the highest writ in the law,(o) and lieth only of an estate in fee-simple, and not for him who hath a less estate. This writ lies concurrently with all other real actions, in which an estate of fee-simple may be recovered: and it also lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the possession in an inferior possessory *[*194action.(p) But though a writ of right may be brought, where the demandant is entitled to the possession, yet it rarely is advisable to be brought in such cases; as a more expeditious and easy remedy is had, without meddling with the property, by proving the demandant’s own, or his ancestor’s, possession, and their illegal ouster, in one of the possessory actions. But in case the right of possession be lost by length of time, or by judgment against the true owner in one of these inferior suits, there is no other choice: this is then the only remedy that can be had; and it is of so forcible a nature, that it overcomes all obstacles, and clears all objections that may have arisen to cloud and obscure the title. And, after issue once joined in a writ of right, the judgment is absolutely final; so that a recovery had in this action may be pleaded in bar of any other claim or demand.(q)

The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprietor. But there are Edition: current; Page: [194] also some other writs which are said to be in the nature of a writ of right, be cause their process and proceedings do mostly (though not entirely) agree with the writ of right: but in some of them the fee-simple is not demanded; and in others not land, but some incorporeal hereditament. Some of these 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 divisions. Nor is the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple: for if the lord’s tenant in fee-simple dies without heir, whereby an escheat accrues, the lord shall have a writ of escheat,(r) which is in the nature of a writ of right.(s) And if one of two or more coparceners deforces the other, by usurping the sole possession, the party aggrieved shall have a writ of right, de rationabili parte,(t) which may be grounded on the **195]seisin of the ancestor at any time during his life; whereas in a nuper obiit (which is a possessory remedy)(u) he must be seised at the time of his death. But, waiving these and other minute distinctions, let us now return to the general writ of right.

This writ ought to be first brought in the court-baron(w) of the lord, of whom the lands are holden; and then it is open or patent: but if he holds no court, or hath waived his right, remisit curiam suam, it may be brought in the king’s courts by writ of præcipe originally;(x) and then it is a writ of right close;(y) being directed to the sheriff and not the lord.(z) Also, when one of the king’s immediate tenants in capite is deforced, his writ of right is called a writ of præcipe in capite, (the improper use of which, as well as of the former præcipe quia dominus remisit curiam, so as to oust the lord of his jurisdiction, is restrained by magna carta,)(a) and, being directed to the sheriff and originally returnable in the king’s courts, is also a writ of right close.(b) There is likewise a little writ of right close, secundum consuetudinem manerii, which lies for the king’s tenants in antient demesne,(c) and others of a similar nature,(d) to try the right of their lands and tenements in the court of the lord exclusively.(e) But the writ of right patent itself may also at any time be removed into the county-court, by writ of tolt,(f) and from thence into the king’s courts by writ of pone(g) or recordari facias, at the suggestion of either party that there is a delay or defect of justice.(h)

In the progress of this action,(i) the demandant must allege some seisin of the lands and tenements in himself,18 or else in some person under whom he claims, and then derive the right **196]from the person so seised to himself; Edition: current; Page: [196] to which the tenant may answer 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 shown, it then puts the demandant upon the proof of his title: in which, if he fails, or if the tenant hath shown a better, the demandant and his heirs are personally barred of their claim; but if he can make it appear that his right is superior to the tenant’s, be shall recover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the antient law no seisin could be alleged by the demandant, but from the time of Henry the First;(k) by the statute of Merton, 20 Hen. III. c. 8, from the time of Henry the Second; by the statute of Westm. 1, 3 Edward I. c. 39, from the time of Richard the First; and now, by statute 32 Henry VIII. c. 2, seisin in a writ of right shall be within sixty years. So that the possession of lands in fee-simple uninterruptedly, for threescore years, is at present a sufficient title against all the world; and cannot be impeached by any dormant claim whatsoever.19

I have now gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon such obsolete and abstruse learning, as it lies intermixed with, and alone can explain the reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connection of those disjointed parts which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so *[*197absolutely antiquated as to be out of force, though the whole is certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, assize, formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries; but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass; of which in the following chapters.20

CHAPTER XI.: OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL.

**198]Having in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to consider injuries by ouster of chattels real; that is, by amoving the possession of the tenant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit; or from an estate for years.

I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz., by assize of novel disseisin.(a) But this depends upon the several statutes which **199]create these respective interests,(b) and which expressly provide and allow this remedy in case of dispossession. Upon which account it is that Sir Edward Coke observes,(c) that these tenants are said to hold their estates ut liberum tenementum, until their debts are paid: because by the statutes they shall have an assize, as tenants of the freehold shall have; and in that respect they have the similitude of a freehold.(d)1

II. As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseisin, ejection, 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 circumstances and situation of the wrong-doer: the writ of ejectione firmæ; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrong-doer and has committed the injury complained of; and the writ of quare ejecit infra terminum, which lies not against the wrong-doer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal: for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.

1. A writ then of ejectione firmæ, or action of trespass in ejectment,2 licth where Edition: current; Page: [199] lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term.(e) In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him.(f) And by this writ the plaintiff shall recover back his term, or the remainder of it, with damages.

*[*200Since the disuse of 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 some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded.

We have before seen,(g) that the writ of covenant, for breach of the contract contained in the lease for years, was antiently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior(h) to that of the lessor, or by a grantee of the reversion, (who might at any time by a common recovery have destroyed the term,)(i) though the lessee might still maintain an action of covenant against the lessor for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firmæ, for the trespass committed in ejecting him from his farm.(k) But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice; and, in the prosecution of a writ of ejectment, introduced a species of remedy not warranted by the original writ nor prayed by the declaration, (which are *[*201calculated for damages merely, and are silent as to any restitution,) viz., a judgment to recover the term, and a writ of possession thereupon.(l) This method seems to have been settled as early as the reign of Edward IV.;(m) though it hath been said(n) to have first begun under Henry VII., because it probably was then first applied to its present principal use, that of trying the title to the land.

The better to apprehend the contrivance whereby this end is effected, we must recollect that the remedy by ejectment is in its original an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. 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 possession of the land; and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance.(o) When Edition: current; Page: [201] therefore a person, who hath right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee: and, having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him; or till some other person (either by accident or by agreement beforehand) comes upon the land, and turns him **202]out or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ejectment to recover land against a casual ejector, without notice given to the tenant in possession, (if any there be,) and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defence, make out four points before the court; viz., title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seised or possessed by virtue of such title, did make him the lease for the present term; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term.

This is the regular method of bringing an action of ejectment, in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cases.3 But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the lord chief justice Rolle,(p) who then sat in the court of upper bench; so called during the exile of king Charles the **203]Second. This new method entirely depends upon a string of legal fictions; no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title.4 Edition: current; Page: [203] To this end, in the proceedings(q) a lease for a term of years is stated 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 some real person, and not merely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practised;(r)5 it is also stated that Smith the lessee entered; and that the defendant William Stiles, who is called the casual ejector, ousted him; for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration,(s) Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration; withal assuring him that he, Stiles the defendant, has no title at all to the premises, and shall make no defence; and therefore advising the tenant to appear in court and defend his own title: otherwise he, the casual ejector, will suffer judgment to be had against him; and thereby the actual tenant Saunders will inevitably be turned out of possession.(t) On receipt of this friendly caution, if the tenant in possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all; and, upon judgment being had against Stiles the casual ejector, Saunders the real tenant will be turned out of possession by the sheriff.

But, if the tenant in possession applies to be made a defendant, it is allowed him upon this condition; that he enter into a rule of court(u) to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff’s action; viz., the lease of Rogers the lessor, the entry of Smith *[*204the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles: which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must of course be non-suited for want of evidence; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only.6 This done, the declaration is altered by inserting the name of George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith, (the plaintiff,) on the demise of Rogers, (the lessor,) against Saunders, the new defendant. And therein the lessor of the plaintiff is bound to make out a clear title; otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted.7 But, if the lessor makes out his title in a Edition: current; Page: [204] satisfactory manner, then judgment and a writ of possession shall go for Richard Smith the nominal plaintiff, who by this trial has proved the right of John Rogers, his supposed lessor. Yet, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged by statute 11 Geo. II. c. 19, on pain of forfeiting three years’ rent, to give notice to their landlords, when served with any declaration in ejectment; and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, though judgment must be then signed against the casual ejector, yet execution shall be stayed, in case the landlord applies to be made a defendant, and enters into the common rule; a right which indeed the landlord had, long before the provision of this statute;(v) in like manner as (previous to the statute of Westm. 2, c. 3) if in a real action the tenant of the freehold made default, the remainder-man or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant, the estate of those behind should be turned to a naked right.(w)8 But, if the new defendants, whether landlord or tenant, or both, after entering into the common rule, fail to appear at the trial, and to confess lease, entry, and ouster, the plaintiff, Smith, must indeed be there **205]non-suited, for want of proving those requisites; but judgment will in the end be entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant is broken, and therefore the plaintiff is put again in the same situation as if he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process therefore as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken.9

The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate, amounting commonly to one shilling, or some other trivial sum. In order therefore to complete the remedy when the possession has been long detained from him that hath the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received.10 Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lessor, against the tenant in possession, whether he be made party to the ejectment or suffers judgment to go by default.(x) In this case the judgment in ejectment is conclusive evidence against the defendant for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff; but if the plaintiff sues for any antecedent profits the defendant may make a new defence.11

Such is the modern way of obliquely bringing in question the title to lands and tenements, in order to try it in this collateral manner; a method which is now universally adopted in almost every case. It is founded on the same principle as the antient writs of assize, being calculated to try the mere possessory title to an estate; and hath succeeded to those real actions, **206]as being infinitely more convenient for attaining the end of justice; because, the form of the proceeding being entirely fictitious, it is wholly in the power of the Edition: current; Page: [206] court to direct the application of that fiction so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the judges)(y) are “judicially to be considered as the fictitious form of an action really brought by the lessor of the plaintiff against the tenant in possession: invented, under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being entangled in the nicety of pleadings on either side.”12

But a writ of ejectment is not an adequate means to try the title of all estates; for on those things whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament:(z) except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7, which doctrine hath since been extended, by analogy, to tithes in the hands of the clergy:(a) nor will it lie in such cases where the entry of him that hath the right is taken away by descent, discontinuance, twenty years’ dispossession, or otherwise.

This action of ejectment is, however, rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II. c. 28, which enacts that every landlord who hath by his lease a right of re-entry in case of non-payment of rent, when half a year’s rent is due and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards.13

**207]2. The writ of quare ejecit infra terminum lieth, by the antient law where the wrong-doer or ejector is not himself in possession of the lands, but another who claims under him. As where a man leaseth lands to another for years, and, after, the lessor or reversioner entereth and maketh a feoffment in fee, or for life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firmæ or ejectment against the feoffee; because he did not eject him, but the reversioner; neither can he have any such action to recover his term against the reversioner who did oust him, because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute of Westm. 2, c. 24, as in a case where no adequate remedy was already provided.(b) And the action is brought against the feoffee for deforcing, or keeping out, the original lessee during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains, and also shall have actual damages for that portion of it whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession, (by what means soever he acquired it,) and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse.14

CHAPTER XII.: OF TRESPASS.

**208]In the two preceding chapters we have considered such injuries to real property as consisted in an ouster or amotion of the possession. Those which remain to be discussed are such as may be offered to a man’s real property without any amotion from it.

The second species, therefore, of real injuries, or wrongs that affect a man’s hands tenements, or hereditaments, is that of trespass. Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, **209]and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.1

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence that this right must be exclusive; that is that the owner may retain to himself the sole use and occupation of his soil: every entry, therefore, thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary in order to constitute this injury: “qui alienum fundum ingreditur, potest a domino, si is præviderit, prohiberi ne ingrediatur.”(b) But the law of England, justly considering that much inconvenience may happen to the owner before he has an opportunity to forbid the entry, has carried the point much further, and has treated every entry upon another’s lands (unless by the owner’s leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained.2

Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close: the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man’s land is, in the eye of the law, enclosed and set apart from his neighbour’s; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal, invisible boundary, *[*210existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz., the treading down and bruising his herbage.(c)3

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass;4 or, at Edition: current; Page: [210] least, it is requisite that the party have a lease and possession of the vesture and herbage of the land.(d)5 Thus, if a meadow be divided annually among the parishioners by lot, then, after each person’s several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes:(e) for they have an exclusive interest and freehold therein for the time. But before entry and actual possession one cannot maintain an action of trespass, though he hath the freehold in law.(f) And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land; but he cannot have it for any act done after the disseisin until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him.(g) Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrong-doer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner. But now, by the statute 6 Anne, c. 18, if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the **211]determination of their respective interests, hold over and continue in possession of the lands or tenements without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man expectant on any life-estate may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect. And by the statutes of 4 Geo. II. c. 28, and 11 Geo. II. c. 19, in case, after the determination of any term of life, lives, or years, any person Edition: current; Page: [211] shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and afterwards neglects to carry that notice into due execution.6

A man is answerable for not only his own trespass, but that of his cattle also; for, if by his negligent keeping they stray 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 spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case, by permitting him to distrain the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction, or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another’s land either by a man himself or his cattle is, the action of trespass vi et armis, whereby a man is called upon to answer quare vi et armis clausum ipsius A., apud B., fregit, et blada ipsius A., ad valentiam centum solidorum, ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c.:(h) for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the *[*212defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such, however, as the jury shall think proper to assess.

In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant’s cattle,) the declaration may allege the injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando,) and the plaintiff shall not be compelled to bring separate actions for every day’s separate offence.(i) But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass 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)7

In some cases trespass is justifiable, or, rather, entry on another’s land or house shall not in those cases be accounted trespass; as if a man comes thither to demand or pay money there payable, or to execute in a legal manner the process of the law. Also, a man may justify entering into an inn or public house without the leave of the owner first specially asked, because when a man professes the keeping such inn or public house he thereby gives a general license to any person to enter his doors. So a landlord may justify entering to distrain for rent; a commoner, to attend his cattle commoning on another’s land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing.(l) Also, it hath been said that, by the common law and custom of England, the poor are allowed to enter and glean upon Edition: current; Page: [212] another’s ground after the harvest without **213]being guilty of trespass:(m) which humane provision seems borrowed from the Mosaical law.(n)8

In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man’s land, because the destroying such creatures is said to be profitable to the public.(o)9 But in cases where a man misdemeans himself or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio:(p) as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back, even to his first entry, and make the whole a trespass.(q) But a bare non-feasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him.(r) So, if a landlord distrained for rent and wilfully killed the distress, this, by the common law, made him a trespasser ab initio:(s) and so, indeed, would any other irregularity have done, till the statute 11 Geo. II. c. 19, which enacts that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle cuts down a tree; in these and similar cases the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio.(t) So also, in the case of hunting the fox or the badger, a man cannot justify breaking the soil and digging him out of his earth; for though **214]the law warrants the hunting of such noxious animals for the public good, yet it is held(u) that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz., by hunting, the court held that the digging for them was unlawful.

A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages Edition: current; Page: [214] for the ejection, but also possession of the land: whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered but damages for the wrong committed.

In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6, and 22 & 23 Car. II. c. 9, § 136, that where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages, unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question.10 But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 & 9 W. III. c. 11, which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs.11 Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to *[*215be to harass and distress the plaintiff. The other exception is by statute 4 & 5 W. and M. c. 23, which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling, upon another’s land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs.(w)12

CHAPTER XIII.: OF NUISANCE.

*[*216A third species of real injuries to a man’s lands and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nuisances are of two kinds: public or common nuisances, which affect the public, and are annoyance to all the king’s subjects: for which reason we must refer them to the class of public wrongs, or crimes and misdemeanours: and private nuisances, which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another.(a) We will therefore, first, mark out the several kinds of nuisances, and then their respective remedies.

I. In discussing the several kinds of nuisances, we will consider, first, such nuisances as may affect a man’s corporeal hereditaments, and then those that may damage such as are incorporeal.

1. First, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof and throws the water off his roof upon mine, this is a nuisance, for which an action will lie.(b) Likewise to erect a house or other building so near to mine that it obstructs my antient **217]lights and windows, is a nuisance of a similar nature.(c) But in this latter case it is necessary that the windows be antient, that is, have subsisted there a long time without interruption; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground as I have upon mine; since every man may erect what he pleases upon the upright or perpendicular of his own soil, so as not to prejudice what has long been enjoyed by another; and it was my folly to build so near another’s ground.(d)1 Also if a person keeps his hogs, or other noisome animals, so near the house of another that the stench of them incommodes him and makes the air unwholesome,2 this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house.(e) A like injury is, if one’s neighbour sets up and exercises an offensive trade; as a Edition: current; Page: [217] tanner’s, a tallow-chandler’s, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, “sic utere tuo, ut alienum non lædas:” this therefore is an actionable nuisance.(f) So that the nuisances which affect a man’s dwelling may be reduced to these three: 1. Overhanging it; which is also a species of trespass, for cujus est solum, ejus est usque ad cælum:3 2. Stopping antient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling.4 But depriving one of a mere matter of pleasure, as of a fine prospect by building a wall, or the like: this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance.(g)

As to nuisance to one’s lands: if one erects a smelting-house for lead so near the land of another, that the vapour and smoke kill his corn and grass, and damage his cattle therein, this is held to be a nuisance.(h) And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on *[*218him to find some other place to do that act, where it will be less offensive. So also if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance.(i)

With regard to other corporeal hereditaments: it is a nuisance to stop or divert water that uses to run to another’s meadow5 or mill;(k) to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream;(l) or, in short, to do any act therein that in its consequences must necessarily tend to the prejudice of one’s neighbour. So closely does the law of England enforce that excellent rule of gospel morality, of “doing to others as we would they should do unto ourselves.”

2. As to incorporeal hereditaments, the law carries itself with the same equity.6 If I have a way, annexed to my estate, across another’s land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance: for in the first case I cannot enjoy my right Edition: current; Page: [218] at all, and in the latter I cannot enjoy it so commodiously as I ought.(m) Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nuisance to the freehold which I have in my market or fair.(n) But, in order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale(o) construes the dieta, or reasonable day’s journey, mentioned by Bracton,(p) to be twenty miles; as indeed it is usually understood, not only in our own law,(q) but also in the civil,(r) from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no **219]nuisance: for it is held reasonable that every man should 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 spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prima facie a nuisance to mine, and there needs no proof of it, but the law will intend it to be so; but if it be on any other day, it may be a nuisance: though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away its custom, it is a nuisance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, for the ease of all the king’s subjects; otherwise he may be grievously amerced:(s) it would be therefore extremely hard if a new ferry were suffered to share his profits which does not also share his burden. But where the reason ceases, the law also ceases with it: therefore it is no nuisance to erect a mill so near mine as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance to set up any trade, or a school, in a neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria.(t)

II. Let us next attend to the remedies which the law has given for this injury of nuisance. And here I must premise that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common nuisance, but an indictment only: because, the damage being common to all the king’s subjects, no one can assign his particular proportion of it; or, if he could, it would be extremely hard if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an action for a public nuisance, or punish it; but only the king in his public **220]capacity of supreme governor and pater-familias of the kingdom.(u) Yet this rule admits of one exception, where a private person suffers some extraordinary damage, beyond the rest of the king’s subjects, by a public nuisance, in which case he shall have a private satisfaction by action.7 As if, by means of a ditch dug across the public way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his action.(w)8 Also, if a man hath abated or removed Edition: current; Page: [220] a nuisance which offended him, (as we may remember it was stated in the first chapter of this book that the party injured hath a right to do,) in this case he is entitled to no action.(x) For he had choice of two remedies: either without suit, by abating it himself by his own mere act and authority, or by suit, 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.9

The remedies by suit are, 1. By action on the case for damages, in which the party injured shall only recover a satisfaction for the injury sustained, but cannot thereby remove the nuisance. Indeed, every continuance of a nuisance is held to be a fresh one;(y) and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it.10 Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions: the assize of nuisance, and the writ of quod permittat prosternere; which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance that occasioned the injury. These two actions, however, can only be brought by the tenant of the freehold; so that a lessee for years is confined to his action upon the case.(z)

*[*2212. An assize of nuisance is a writ, wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assize, that is, a jury, and view the premises, and have them at the next commission of assizes, that justice may be done therein:(a) and if the assize is found for the plaintiff, he shall have judgment of two things: 1. To have the nuisance abated; and, 2. Edition: current; Page: [221] To recover damages.(b) Formerly an assize of nuisance only lay against the very wrong-doer himself who levied or did the nuisance, and did not lie against any person to whom he had alienated the tenements whereon the nuisance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2, 13 Edw. I. c. 24, for granting a similar writ in casu consimili, where no former precedent was to be found. The statute enacts that “de cetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium;” and then gives the form of a new writ in this case; which only differs from the old one in this, that where the assize is brought against the very person only who levied the nuisance, it is said “quod A. the [wrong-doer] injuste levavit tale nocumentum;” but, where the lands are aliened to another person, the complaint is against both, “quod A. [the wrong-doer] et B. [the alienee] levaverunt.”(c) For every continuation, as was before said, is a fresh nuisance, and therefore the complaint is as well grounded against the alienee who continues it as against the alienor who first levied it.

3. Before this statute, the party injured, upon any alienation of the land wherein the nuisance was set up, was driven to his quod permittat prosternere, which is in the nature of a writ of right, and therefore subject to greater delays.(d) This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nuisance complained of; **222]and, unless he so permits, to summon him to appear in court, and show cause why he will not.(e) And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges.(f) And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant.

Both these actions of assize of nuisance, and of quod permittat prosternere, are now out of use,11 and have given way to the action on the case; in which, as was before observed, no judgment can be had to abate the nuisance, but only to recover damages. Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like possession, the process is therefore easier,12 and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour; who had rather continue to pay damages than remove his nuisance. For in such a case recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant’s perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it.

CHAPTER XIV.: OF WASTE.

**223]The fourth species of injury, that may be offered to one’s real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book,(a) as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall, therefore, here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing Edition: current; Page: [223] not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum; and that this vastum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to show to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.

I. The persons who may be injured by waste are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee-simple,1 without any encumbrance or charge on the premises, he may commit whatever waste his *[*224own indiscretion may prompt him to, without being impeachable, or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est hæres viventis; no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his power to constitute what heir he pleases, according to the civil-law notion of an hæres natus and an hæres factus; or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever, therefore, the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is damnum absque injuria.

One species of interest which is injured by waste is that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assize, if entitled to a freehold in such common; but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods out of which his estovers were to issue.(b)

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common law,(c) or the lessee for life or years, *[*225who was first made liable by the statutes of Marlberge(d) and of Glocester,)(e) if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder and reversion, to whom the inheritance appertains in expectancy,(f) the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury.2 Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, Edition: current; Page: [225] may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified; and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhæredationem ipsius, as for other tenants in fee-simple; but ad exhæredationem ecclesiæ, in whose right the fee-simple is holden.(g)

II. The redress for this injury of waste is of two kinds; preventive and corrective: the former of which is by writ of estrepement, the latter by that of waste.

1. Estrepement is an old French word, signifying the same as waste or extirpation: and the writ of estrepement lay at the common law, after judgment obtained in any action real,(h) and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester(i) gave another writ of estrepement pendente placito, commanding the sheriff firmly **226]to inhibit the tenant “ne faciat vastum vel estrepementum pendente placito dicto indiscusso.”(k) And by virtue of either of these writs the sheriff may resist them that do, or offer to do, waste, and, if otherwise he cannot prevent them, he may lawfully imprison the wasters or make a warrant to others to imprison them: or, if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is waste and destruction.(l) In suing out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of estrepement might be had at any time pendente lite, nay, even at the time of suing out the original writ, or first process: but, in an action where damages were recovered, the demandant could only have a writ of estrepement, if he was apprehensive of waste after verdict had;(m) for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands; for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages.(n) And therefore now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his present suit debarred of any further remedial.(o) If a writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the **227]foundation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages,(p) or the party may proceed to punish the defendant for the contempt: for if, after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ.(q) But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way.

Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction in order to stay waste, until the defendant shall have put in his answer, and the Edition: current; Page: [227] court shall thereupon make further order. Which is now become the most usual way of preventing waste.3

2. A writ of waste4 is also an action, partly founded upon the common law, and partly upon the statute of Glocester;(r) and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant for years. This action is also maintainable in pursuance of statute(s) Westm. 2, by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners; because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any further waste.(t) But these tenants in common and joint-tenants are *[*228not liable to the penalties of the statute of Glocester, which extends only to such as have life-estates, and do waste to the prejudice of the inheritance. The waste, however, must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste; nam de minimis non curat lex.(u)5

This action of waste is a mixed action; partly real, so far as it recovers land; and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Glocester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhæredationem, to the disinherison, of the plaintiff.(w) And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to Edition: current; Page: [228] the court, upon which report the judgment is founded.(x) For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil dicit, (when he makes no answer, puts in no plea, in defence,) this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now, therefore, the sheriff shall not go to the place to inquire of the fact whether any waste has, or has not, been committed; for this is already ascertained by the silent confession of the defendant; but he shall only, as in defaults upon other actions, make inquiry of the quantum of **229]damages.(y) The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king’s enemies, or other inevitable accident.(z)6 But it is no defence to say that a stranger did the waste, for against him the plaintiff hath no remedy; though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act.(a)

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the statute of Glocester, c. 5, that the plaintiff shall recover the place wasted,7 for which he has immediately a writ of seisin, provided the particular estate be still subsisting, (for, if it be expired, there can be no forfeiture of the land,) and also that the plaintiff shall recover treble the damages assessed by the jury, which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being.8

CHAPTER XV.: OF SUBTRACTION.

*[*230Subtraction, which is the fifth species of injuries affecting a man’s real property, happens when any person who owes any suit, duty, custom, or service to another withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction, however, being clearly an injury, is remediable by due course of law; but the remedy differs according to the nature of the services, whether they be due by virtue of any tenure, or by custom only.

I. Fealty, suit of court, and rent are duties and services usually issuing and arising ratione tenuræ, being the conditions upon which the antient lords granted out their lands to their feudatories, whereby it was stipulated that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond, or commune vinculum, between lord and tenant; that they should do suit or duly attend and follow the lord’s courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron or correct their misdemeanours in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *[*231prædial labours, or (which is instar omnium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress; and it is the only remedy at the common law for the two first of them. The nature of distresses, their incidents and consequences, we have before more than once explained:(a) it may here suffice to remember that they are a taking of beasts or other personal property by way of pledge to enforce the performance of something due from the party distrained upon. And, for the most part, it is provided that distresses be reasonable and moderate; but in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large:(b) for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory; and, be it of what value it will, there is no harm done, especially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity and may be repeated from time to time until the stubbornness of the party is conquered, is called a distress infinite; which is also used for some other purposes, as in summoning jurors, and the like.

Other remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most usual remedy when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced since the abolition of the military tenures. But for a freehold rent, reserved on *[*232a lease for life, &c., no action of debt lay by the common law during the continuance of the freehold out of which it issued;(c) for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Anne, c. 14, and 5 Geo. III. c. 17, actions of debt may now be brought at any time to recover Edition: current; Page: [232] such freehold rents. 2. An assize of mort d’ancestor or novel disseisin will lie of rents as well as of lands,(d) if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof. This is now seldom heard of; and all other real actions to recover rents, being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law.1 Of this species, however, is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant who withholds from him the rents and services due by custom or tenure for his land.(e) This compels a specific payment or performance of the rent or service; and there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of cessavit; which lies by the statutes of Glocester, 6 Edward I. c. 4, and of Westm. 2, 13 Edw. I. c. 21 and 41, when a man who holds lands of a lord by rent or other services neglects or ceases to perform his services for two years together; or where a religious house hath lands given it on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit.(f) In like manner, by the civil law, if a tenant who held lands upon payment of rent or services, or “jure emphyteutico,” neglected to pay or perform them per totum triennium, he might be ejected from such emphyteutic lands.(g) But, by the statute of Glocester, the cessavit does not lie for lands let upon fee-farm rents, unless they have lain fresh and uncultivated for two years, and there be **233]not sufficient distress upon the premises; or unless the tenant hath so enclosed the land that the lord cannot come upon it to distrain.(h) For the law prefers the simple and ordinary remedies by distress or by the actions just now mentioned to this extraordinary one of forfeiture for a cessavit: and therefore the same statute of Glocester has provided further, that upon tender of arrears and damages before judgment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land; to which the statute of Westm. 2 conforms so far as may stand with convenience and reason of law.(i) It is easy to observe that the statute(k) 4 Geo. II. c. 28 (which permits landlords who have a right of re-entry for non-payment of rent to serve an ejectment on their tenants when half a year’s rent is due and there is no sufficient distress on the premises) is in some measure copied from the antient writ of cessavit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within six months after. And the same remedy is, in substance, adopted by statute 11 Geo. II. c. 19, § 16,2 which enacts that where any tenant at rackrent shall be one year’s rent in arrear, and shall desert the demised premises, leaving the same uncultivated or unoccupied, so that no sufficient distress can be had; two justices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord possession thereof, and thenceforth the lease shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assize for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord loses his verdict; in which case the lord may have a writ of right, sur disclaimer, grounded on this denial of tenure; and shall upon proof of the tenure recover back the land itself so holden, as a punishment to the tenant for such his false disclaimer.(l) This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate, Edition: current; Page: [233] as it evidently proceeds upon feodal principles, *[*234so it is expressly to be met with in the feodal constitutions:(m) “vasallus, qui abnegavit feudum ejusve conditionem, exspoliabitur.”

And, as on the one hand the antient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord; by furnishing, 1. The writ of ne injuste vexes;(n) which is an antient writ founded on that chapter(o) of magna carta,3 which prohibits distresses for greater services than are really due to the lord; being itself of the prohibitory kind, and yet in the nature of a writ of right.(p)4 It lies, where the tenant in fee-simple and his ancestors have held of the lord by certain services, and the lord hath obtained seisin of more or greater services, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord’s possessory right, because of the seisin given by his own hands; but is driven to this writ, to devest the lord’s possession, and establish the mere right of property, by ascertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid such seisin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin.(q) 2 The writ of mesne, de medio; which is also in the nature of a writ of right,(r) and lies, when upon a subinfeudation the mesne, or middle lord,(s) suffers his under-tenant, or tenant paravail, to be distrained upon by the lord paramount, for the rent due to him from the mesne lord.(t) And in such case the tenant shall have judgment to be acquitted (or indemnified) by the mesne lord; and if he makes default therein, or does not appear originally to the tenant’s writ, he shall be forejudged of his mesnalty, and the tenant shall hold immediately of the lord paramount himself.(u)5

*[*235II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services due by antient custom and prescription only. Such is that of doing suit to another’s mill: where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit (their secta, a sequendo) from the antient mill. This is not only a damage, but an injury, to the owner; because this prescription might have a very reasonable foundation; viz., upon the erection of such mill by the ancestors of the owner for the convenience of the inhabitants, on condition that, when erected, they should all grind their corn there only. And for this injury the owner shall have a writ de secta ad molendinum,(w) commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or show good cause to the contrary: in which action the Edition: current; Page: [235] validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant.(x) In like manner, and for like reasons, the register(y) will inform us, that a man may have a writ of secta ad furnum, secta ad torrale, et ad omnia alia hujusmodi; for suit due to his furnum, his public oven or bake-house; or to his torrale, his kiln, or malt-house; when a person’s ancestors have erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it when erected. But besides these special remedies for subtractions, to compel the specific performance of the service due by custom, an action on the case will also lie for all of them, to repair the party injured in damages.6 And thus much for the injury of subtraction.

CHAPTER XVI.: OF DISTURBANCE.

**236]The sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it.(a) I shall consider five sorts of this injury: viz., 1. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage.

I. Disturbance of franchises happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of seizing waifs or estrays, or (in short) any other species of franchise whatsoever, and he is disturbed or incommoded in the lawful exercise thereof. As if another, by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in every case of this kind, all which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified; and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is **237]therefore entitled to sue for damages by a special action on the case; or, in case of toll, may take a distress if he pleases.(b)

II. The disturbance of common comes next to be considered; where any act is done, by which the right of another to his common is incommoded or diminished. This may happen, in the first 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 respective shares of the pasture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger’s cattle into the common;(c) and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common.(d) The lord also of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common.(e) But in general in case the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, Edition: current; Page: [237] the lord or any of the commoners may distrain them damage-feasant:(f) or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable: so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trespass the commoner has no action; but the lord of the soil only, for the entry and trespass committed.(g)1

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party hath a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least *[*238contracting them into a smaller compass. This injury by surcharging can, properly speaking, only happen where the common is appendant or appurtenant,(h) and of course limitable by law; or where, when in gross, it is expressly limited and certain; for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharger. However, even where a man is said to have common without stint, still there must be left sufficient for the lord’s own beasts;(i) for Edition: current; Page: [238] the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.2

The usual remedies, for surcharging the common, are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both which may be had by the lord: or lastly, by a special action on the case for damages; in which any commoner may be plaintiff.(j) But the antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord,3 as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs that are called vicontiel,(k) being directed to the sheriff, (vicecomiti,) and not to be returned to any superior court till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common; and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not as those who have surcharged the common; as well the plaintiff as the defendant.(l) The execution of this writ must be by a jury of twelve men, who are upon their **239]oaths to ascertain, under the superintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner shall not turn more cattle upon the common than are sufficient to manure and stock the land to which his right of common is annexed; or, as our antient law expressed it, such cattle only as are levant and couchant upon his tenement;(m) which, being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a common without stint or sans nombre;(n) a thing which, though possible in law,(o) does in fact very rarely exist.4

If, after the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of second surcharge, de secunda superoneratione, which is given by the statute Westm. 2, 13 Edw. I. c. 8, and thereby the sheriff is directed to inquire by a jury whether the defendant has in fact again surcharged the common contrary to the tenure of the last admeasurement; and, if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay damages to the plaintiff.(p) This process seems highly equitable: for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the first writ, which was only to ascertain the right which was disputed; but the second offence is a wilful contempt and injustice, and therefore punished very properly with not only damages but also forfeiture. And herein the right, being once settled, is never again disputed; but only the fact is tried, whether there be any second surcharge or no: which gives this neglected proceeding5 a great advantage over the modern method by action on the case, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial for every repeated offence.

*[*240There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it that the commoner is precluded from enjoying the benefit to which he is by law entitled.

This may be done either by erecting fences, or by driving the cattle off the land, or by ploughing up the soil of the common.(q) Or it may be done by erecting a warren therein, and stocking it with rabbits in such quantities that they devour the whole herbage and thereby destroy the common. For, in such case, though the commoner may not destroy the rabbits, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner.(r)6 This kind of disturbance does indeed amount to a disseisin, and, if the commoner chooses to consider it in that light, the law has given him an assize of novel disseisin, against the lord, to recover the possession of his common.(s) Or it has given a writ of quod permittat, against any stranger, as well as the owner of the land, in case of such a disturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defendant shall be compelled to permit the plaintiff to enjoy his common as he ought.(t) But if the commoner does not choose to bring a real action to recover seisin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assize or a quod permittat.(u)7

There are cases, indeed, in which the lord may enclose and abridge the common; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen. III. c. 4, Edition: current; Page: [240] that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement,) any waste grounds, woods, or pastures, in which his tenants have common appendant to their estates, provided he leaves **241]sufficient common to his tenants, according to the proportion of their land. And this is extremely reasonable; for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be precluded from making what advantage he can of the rest of his manor, provided such advantage and improvement be noway derogatory from the former grants. The statute Westm. 2, 13 Edw. I. c. 46 extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord who have their common appendant; and further enacts that no assize of novel disseisin for common shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which, Sir Edward Coke says,(w) are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common and make it less sufficient for the commoners. And lastly, by statute 29 Geo. II. c. 36, and 31 Geo. II. c. 41, it is particularly enacted that any lords of wastes and commons, with the consent of the major part in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood.8

III. The third species of disturbance, that of ways, is very similar in its nature to the last; it principally happening when a person who hath a right to a way over another’s grounds, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least not in so commodious a manner as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an assize will lie, as mentioned in a former chapter.(x) But if the right of way thus obstructed by the tenant be only in gross, (that is, annexed to a man’s person and unconnected with any lands or **242]tenements,) or if the obstruction of a way belonging to a house or land is made by a stranger, it is then in either case merely a disturbance; for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance, which must be laid ad nocumentum liberi tenementi;(y) and the obstruction of it by a stranger can never tend to put the right of way in dispute; the remedy, therefore, for Edition: current; Page: [242] these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages.(z)

IV. The fourth species of disturbance is that of disturbance of tenure, or breaking that connection which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger, either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord,(a) and gives him a reparation in damages against the offender by a special action on the case.

V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is a hinderance or obstruction of a patron to present his clerk to a benefice.

This injury was distinguished at common law from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon *[*243admitted and instituted.(b) In which case of usurpation, the patron lost by the common law not only his turn of presenting pro hac vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz., a writ of right of advowson.(c) The reason given for his losing the present turn, and not ejecting the usurper’s clerk, was that, the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever.9 And the patron also lost the inheritance of his advow son, unless he recovered it in a writ of right, because by such usurpation he was put out of possession of his advowson, as much as when by actual entry and ouster he is disseised of lands or houses; since the only possession of which an advowson is capable is by actual presentation and admission of one’s clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted)(d) the church became absolutely full; so the usurper by such plenarty, arising from his own presentation, became in fact seised of the advowson: which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fulness of the church; and when it became void afresh, he could not then present, since another had the right of possession. The only remedy, therefore, which the patron had left, was to try the mere right in a writ of right of advowson; which is a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right:(e) and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance.(f) But in order to such recovery he must allege a presentation Edition: current; Page: [243] in himself or some of his ancestors, which proves him or them to have been once in possession: for, as a grant of the advowson, during the fulness of church, conveys **244]no manner of possession for the present, therefore a purchaser, until he hath presented, hath no actual seisin whereon to ground a writ of right.(g) Thus stood the common law.

But, bishops in antient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted by statute Westm. 2, 13 Edw. I, c. 5, § 2, that if a possessory action be brought within six months after the avoidance, the patron shall (notwithstanding such usurpation and institution) recover that very presentation; which gives back to him the seisin of the advowson. Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron, to recover it, was driven to the long and hazardous process of a writ of right. To remedy which, it was further enacted, by statute 7 Anne, c. 18, that no usurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation: that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church and as a punishment for my own negligence; but that turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past; but during those six months it is only a species of disturbance.

Disturbers of a right of advowson may therefore be these three persons: the pseudo-patron, his clerk, and the ordinary; the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or disputable; the clerk, by demanding or obtaining institution, **245]which tends to and promotes the same inconvenience; and the ordinary, by refusing to admit the real patron’s clerk, or admitting the clerk of the pretender. These disturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law (besides the writ of right of advowson, which is a final and conclusive remedy) hath given him two inferior possessory actions for his relief; an assize of darrein presentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee; and not to the clerk, who hath no right in him till institution, and of course can suffer no injury.

1. An assize of darrein presentment, or last presentation, lies when a man, or his ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted, and afterwards upon the next avoidance a stranger presents a clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writ(h) directed to the sheriff to summon an assize or jury, to inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assize determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2, 13 Edw. I. c. 5. This question, it is to be observed, was, before the statute 7 Anne before mentioned, entirely conclusive as between the patron or his heirs and a stranger: for, till then, the full possession of the advowson was in him who presented last and his heirs: unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a title superior to all others. But that statute having given a right to any person to bring a quare impedit, and to recover (if his title be good) notwithstanding the last presentation, by whomsoever **246]made; assizes of darrein presentment, now not being in any wise conclusive, have been Edition: current; Page: [246] totally disused, as indeed they began to be before;10 a quare impedit being more general, and therefore a more usual action. For the assize of darrein presentment lies only where a man has an advowson by descent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchase.(i)

2. I proceed therefore, secondly, to inquire into the nature(k) of a writ of quare impedit, now the only action used in case of the disturbance of patronage;11 and shall first premise the usual proceedings previous to the bringing of the writ.

Upon the vacancy of a living, the patron, we know, is bound to present within six calendar months,(l) otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient;(m) unless the church be full, or there be notice of any litigation. For, if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of his antagonist’s clerk. An institution after a caveat entered is void by the ecclesiastical law;(n) but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity.(o) But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and, if nothing further be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either side request him to award a jus patronatus, he is bound to do it. A jus patronatus is a commission from the bishop, directed usually to his chancellor and others of competent learning: who are to summon a jury of six clergymen and six laymen, to inquire into and examine who is the *[*247rightful patron;(p) and if, upon such inquiry made and certificate thereof returned to the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber, whatever proceedings may be had afterwards in the temporal courts.

The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated a duplex querela:(q) which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the delegates;12 and if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant.

Thus far matters may go on in the mere ecclesiastical course; but in contested presentations they seldom go so far; for, upon the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare impedit against the bishop, for the temporal injury done to his property in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another presentation set up, then the pretended patron and his clerk are also joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only. But it is most advisable to bring it against all three: for if the bishop be left out, and the suit be not determined till the six months are past, the bishop is entitled to present by lapse; for he is not party to the suit;(r) but, if he be named, no lapse can possibly accrue till the right is determined. If the patron be left out, and the writ be brought only against the bishop and the clerk, the suit is of no effect, and the writ shall abate;(s) for the right of the patron is the principal question in the cause.(t) If the *[*248clerk be loft out, and has received institution before the action brought, (as is sometimes the case,) the patron by this Edition: current; Page: [248] suit may recover his right of patronage, but not the present turn; for he cannot have judgment to remove the clerk, unless he be made a defendant, and party to the suit, to hear what he can allege against it. For which reason it is the safer way to insert all three in the writ.

The writ of quare impedit(u) commands the disturbers, the bishop, the pseudo patron, and his clerk, to permit the plaintiff to present a proper person (without specifying the particular clerk) to such a vacant church, which pertains to his patronage; and which the defendants, as he alleges, do obstruct; and unless they so do, then that they appear in court to show the reason why they hinder him.

Immediately on the suing out of the quare impedit, if the plaintiff suspects that the bishop will admit the defendant’s or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittas,(w) which recites the contention begun in the king’s courts, and forbids the bishop to admit any clerk whatsoever till such contention be determined. And if the bishop doth, after the receipt of this writ, admit any person, even though the patron’s right may have been found in a jure patronatûs, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by writ of scire facias;(x) and shall have a special action against the bishop, called a quare incumbravit,13 to recover the presentation, and also satisfaction in damages for the injury done him by encumbering the church with a clerk pending the suit and after the ne admittas received.(y) But if the bishop has encumbered the church by instituting the clerk before the ne admittas issued, no quare incumbravit lies; for the bishop hath no legal notice till the writ of ne admittas is served upon **249]him.14 The patron is therefore left to his quare impedit merely, which, as was before observed, now lies (since the statute of Westm. 2) as well upon a recent usurpation within six months past, as upon a disturbance without any usurpation had.

In the proceedings upon a quare impedit, the plaintiff must set out his title at length, and prove at least one presentation in himself, his ancestors, or those under whom he claims; for he must recover by the strength of his own right, and not by the weakness of the defendant’s;(z) and he must also show a disturbance before the action brought.(a) Upon this the bishop and the clerk usually disclaim all title: save only the one as ordinary, to admit and institute, and the other as presentee 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 himself, if needful. But if the right be found for the plaintiff on the trial, three further points are also to be inquired: 1. If the church be full; and, if full, then of whose presentation: for if it be of the defendant’s presentation, then the clerk is removable by writ brought in due time. 2. Of what value the living is: and this in order to assess the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenarty upon a usurpation, whether six calendar(b) months have passed between the avoidance and the time of bringing the action, for then it would not be within the statute, which permits a usurpation to be devested by a quare impedit brought infra tempus semestre. So that plenarty is still a sufficient bar in an action of quare impedit brought above six months after the vacancy happens; as it was universally 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 shall have **250]judgment to recover the presentation, and if the church be full by institution of any clerk, to remove him; Edition: current; Page: [250] anless it were filled pendente lite by lapse to the ordinary, he not being a party to the suit; in which case the plaintiff loses his presentation pro hac vice, but shall recover two years’ full value of the church from the defendant, the pretended patron, as a satisfaction for the turn lost by his disturbance; or in case of insolvency the defendant shall be imprisoned for two years.(c) But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum,(d) reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party; and if upon this order he does not admit him, the patron may sue the bishop in a writ of quare non admisit,(e) and recover ample satisfaction in damages.

Besides these possessory actions, there may be also had (as hath before been incidentally mentioned) a writ of right of advowson, which resembles other writs of right; the only distinguishing advantage now attending it being that it is more conclusive than a quare impedit, since to an action of quare impedit a recovery had in a writ of right may be pleaded in bar.15

There is no limitation with regard to the time within which any actions touching advowsons are to be brought; at least, none later than the times of Richard I. and Henry III.: for by statute 1 Mar. st. 2, c. 5, the statute of limitations, 32 Hen. VIII. c. 2 is declared not to extend to any writ of right of advowson, quare impedit, or assize of darrein presentment, or jus patronatûs. And this upon very good reason: because it may very easily happen that the title to an advowson may not come in question, nor the right have opportunity to be tried, within sixty years, which is the longest period of limitation assigned by the statute of Henry VIII. For Sir Edward Coke(f) tells us that there was a parson of one of his *[*251churches that had been incumbent there above fifty years; nor are instances wanting wherein two successive incumbents have continued for upwards of a hundred years.(g) Had therefore the last of these incumbents been the clerk of a usurper, or had he been presented by lapse, it would have been necessary and unavoidable for the patron, in case of a dispute, to have recurred back above a century in order to have shown a clear title and seisin by presentation and admission of the prior incumbent. But though, for these reasons, a limitation is highly improbable with respect only to the length of time, yet, as the title of advowson is, for want of some limitation, rendered more precarious than that of any other hereditament, (especially since the statute of queen Anne hath allowed possessory actions to be brought upon any prior presentation, however distant,) it might not perhaps be amiss if a limitation were established with respect to the number of avoidances, or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for instance, if no seisin were admitted to be alleged in any of these writs of patronage after sixty years and three avoidances were past.16

In a writ of quare impedit, which is almost the only real action that remains in common use, and also in the assize of darrein presentment, and writ of right, the patron only, and not the clerk, is allowed to sue the disturber. But, by virtue of several acts of parliament,(h) there is one species of presentations, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation to such benefices as belong to Roman Catholic patrons; which, according to their several counties, are vested in and secured to the two universities of this kingdom. And particularly by the statute of 12 Anne, st. 2, c. 14, s. 4, a new method of proceeding is provided; viz., that, besides the writs of quare impedit, which the universities as patrons are entitled to bring, they, or their clerks, may be at liberty to file a bill **252]in equity against any person presenting to such livings, and disturbing their right of patronage, or his cestuy que trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts, for the benefit of papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies; and also (by the statute 11 Geo. II. c. 17) to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bona fide to a protestant purchaser, for the benefit of protestants, and for a full consideration; without which requisites every such grant and conveyance of any advowson or avoidance is absolutely null and void. This is a particular law, and calculated for a particular purpose: but in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation of which he is afterwards to have the advantage. For besides that he has (as was before observed) no temporal right in him till after institution and induction, and, as he therefore can suffer no wrong, is consequently entitled to no remedy; this exclusion of the clerk from being plaintiff seems also to arise from the very great honour and regard which the law pays to his sacred function. For it looks upon the cure of souls as too arduous and important a task to be eagerly sought for by any serious clergyman; and therefore will not permit him to contend openly at law for a charge and trust which it presumes he undertakes with diffidence.

But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assize, ejectment, debt, or trespass, (as the case may happen,) which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon Edition: current; Page: [252] the mere right; because he hath not in him the entire fee and right,(i) but he is entitled to a special remedy called a writ of juris utrum, which is sometimes styled the parson’s writ of right,(k) *[*253being the highest writ which he can have.(l) This lies for a parson or prebendary at common law, and for a vicar by statute 14 Edw. III. c. 17, and is in the nature of an assize, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenant.(m) And thereby the demandant may recover lands and tenements, belonging to the church, which were alienated by the predecessor; or of which he was disseised; or which were recovered against him by verdict, confession, or default, without praying in aid of the patron and ordinary; or on which any person has intruded since the predecessor’s death.(n) But since the restraining statute of 13 Eliz. c. 10, whereby the alienation of the predecessor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than twenty years;(o) for the successor, at any competent time after his accession to the benefice, may enter, or bring an ejectment.17

CHAPTER XVII.: OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN.

*[*254Having in the nine preceding chapters considered the injuries, or private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the king, signified by his original writs returnable in the several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire into the mode of redressing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy;(a) or else is the sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these, we will consider first the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing those which the crown may receive from a subject.

I. That the king can do no wrong, is a necessary and fundamental principle of the English constitution; meaning only, as has formerly been observed,(b) that, in the first place, whatever may be amiss in the conduct of public affairs is not *[*255chargeable personally on the king; nor is he, but his ministers, accountable for it to the people; and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice.(c) Whenever therefore it happens that, by misinformation, or inadvertence, the crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign,(d) (for who shall command the king?)(e) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as Edition: current; Page: [255] it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king’s own name, his orders to his judges to do justice to the party aggrieved.

The distance between the sovereign and his subjects is such, that it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man; and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconveniency therefore of a mischief that is barely possible is (as Mr. Locke has observed)(f) well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.

**256]The common-law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right: which is said to owe its original to king Edward the First.(g) 2. By monstrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer.(h) The former is of use, where the king is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate;(i) and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie, (let right be done to the party,)(j) a commission shall issue to inquire of the truth of this suggestion:(k) after the return of which, the king’s attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. Thus, if a disseisor of lands which are holden of the crown dies seised without any heir, whereby the king is prima facie entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any office found; now the disseisee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made.(l) But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, (as well the disseisin, as the dying without an heir,) the party grieved shall have monstrans de droit at the common law.(m) But as this seldom happens, and **257]the remedy by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13, and 2 & 3 Edw. VI. c. 8, which also allow inquisitions of office to be traversed or denied wherever the right of a subject is concerned, except in a very few cases.(n) These proceedings are had in the petty-bag office in the court of chancery; and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis;(o) which last clause is always added to judgment against the king,(p) to whom no laches is ever imputed, and whose right (till some late statutes)(q) was never defeated by any limitation or length of time. And by Edition: current; Page: [257] such judgment the crown is instantly out of possession:(r) so that there needs not the indecent interposition of his own officers to transfer the seisin from the king to the party aggrieved.

II. The methods of redressing such injuries as the crown may receive from the subject are,—

1. By such usual common-law actions as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assize or an ejectment;(s)1 but he may bring a quare impedit,(t) which always supposes the complainant to be seised or possessed of the advowson; and he may prosecute 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 pleases. So, too, he may bring an action of trespass for taking away his goods; but such actions are not usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession.(w) It would be equally tedious *[*258and difficult, to run through every minute distinction that might be gleaned from our antient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process as are peculiarly confined to the crown.

2. Such is that of inquisition, or inquest of office; which is an inquiry made by the king’s officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels.(x) This is done by a jury of no determinate number, being either twelve, or less, or more. As, to inquire whether the king’s tenant for life died seised, whereby the reversion accrues to the king; whether A., who held immediately of the crown, died without heirs, in which case the lands belong to the king by escheat; whether B. be attainted of treason, whereby his estate is forfeited to the crown; whether C., who has purchased lands, be an alien, which is another cause of forfeiture; whether D. be an idiot a nativitate, and therefore, together with his lands, appertains to the custody of the king; and other questions of like import, concerning both the circumstances of the tenant and the value or identity of the lands. These inquests of office were more frequently in practice than at present during the continuance of the military tenures among us; when, upon the death of every one of the king’s tenants, an inquest of office was held, called an inquisitio post mortem, to inquire of what lands he died seised, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries, the court of wards and liveries was instituted by statute 32 Hen. VIII. c. 46, which was abolished at the restoration of king Charles the Second, together with the oppressive tenures upon which it was founded.

*[*259With regard to other matters, the inquests of office still remain in force, and are taken upon proper occasions; being extended not only to Edition: current; Page: [259] lands, but also to goods and chattels personal, as in the case of wreck, treasuretrove, and the like; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner’s inquest that sits upon a felo de se or one killed by chance-medley, is, not only with regard to chattels, but also as to real interests in all respects, an inquest of office; and if they find the treason or felony, or even the flight, of the party accused, (though innocent,) the king is thereupon, by virtue of this office found, entitled to have his forfeitures; and also, in case of chance-medley, he or his grantees are entitled to such things, by way of deodand, as have moved to the death of the party.

These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record, without which he, in general, can neither take nor part from any thing.(y) For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon and seize any man’s possession upon bare surmises without the intervention of a jury.(z) It is, however, particularly enacted by the statute of 33 Hen. VIII. c. 20, that in case of attainder for high treason the king shall have the forfeiture instantly, without any inquisition of office. And as the king hath (in general) no title at all to any property of this sort before office found, therefore, by the statute 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, shall be void. And, by the bill of rights at the revolution, 1 W. and M. st. 2, c. 2, it is declared that all grants and promises of fines and forfeitures of particular persons before conviction (which is here the inquest of office) are illegal and void; which, indeed, was the law of the land in the reign of Edward the Third.(a)

**260]With regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter; and the king shall receive all the mesne or intermediate profits from the time his title accrued.(b) As, on the other hand, by the articuli super cartas,(c) if the king’s escheator or sheriff seize lands into the king’s hand without cause, upon taking them out of the king’s hand again the party shall have the mesne profits restored to him.

In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found; but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common-law process of the court of chancery: yet still, in some special cases, he hath no remedy left but a mere petition of right.(d) These traverses, as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject by the statutes before mentioned, and others.(e) And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff,(f) and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, &c.

3. Where the crown hath unadvisedly granted any thing by letters-patent which ought not to be granted,(g) or where the patentee hath done an act that amounts to a forfeiture of **261]the grant,(h) the remedy to repeal the patent is by a writ of scire facias in chancery.(i) This may be brought, either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to the subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in Edition: current; Page: [261] a scire facias.(k) And so also, if upon office untruly found for the king he grants the land over to another, he who is grieved thereby and traverses the office itself is entitled, before issue joined, to a scire facias against the patentee in order to avoid the grant.(l)

4. An information on behalf of the crown, filed in the exchequer by the king’s attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong(m) committed in the lands or other possessions of the crown. It differs from an information filed in the court of king’s bench, of which we shall treat in the next book, in that this is instituted to redress a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong, or heinous misdemeanour in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king’s officer, the attorney-general, who “gives the court to understand and be informed of” the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those of intrusion and debt: intrusion, for any trespass committed on the lands of the crown,(n) as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for moneys due to the king, or for any forfeiture due to the crown upon the breach of a penal statute. This is most commonly used to recover forfeitures occasioned by transgressing those laws which are enacted for the establishment *[*262and support of the revenue; others, which regard mere matters of police and public convenience, being usually left to be enforced by common informers, in the qui tam informations or actions, of which we have formerly spoken.(o) But after the attorney-general has informed upon the breach of a penal law, no other information can be received.(p) There is also an information in rem, when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title of the king. As antiently in the case of treasure-trove, wrecks, waifs, and estrays, seised by the king’s officer for his use. Upon such seisure an information was usually 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 same time there issued a commission of appraisement to value the goods in the officer’s hands; after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crown.(q) And when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice.

5. A writ of quo warranto is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right.(r) It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse.2 This was originally returnable before the king’s justices Edition: current; Page: [262] at Westminster;(s) but afterwards only **263]before the justices in eyre, by virtue of the statutes of quo warranto, 6 Edw. I. c. 1, and 18 Edw. I. st. 2;(t) but since those justices have given place to the king’s temporary commissioners of assize, the judges on the several circuits, this branch of the statutes hath lost its effect;(u) and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king’s justices at Westminster. And in case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no such franchise, or hath disused or abused it, the franchise is either seised into the king’s hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it.(w)

The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive even against the crown.(x) Which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king’s bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seise it for the crown; but hath long been applied to the mere purposes of trying the civil right, seising the franchise, or ousting the wrongful possessor; the fine being nominal only.

During the violent proceedings that took place in the latter end of the reign of king Charles the Second, it was, among other things, thought expedient to new-model most of the corporation-towns in the kingdom; for which purpose many of those **264]bodies were persuaded to surrender their charters, and informations in the nature of quo warranto were brought against others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seised into the hands of the king, who granted them fresh charters, with such alterations as were thought expedient; and, during their state of anarchy, the crown named all their magistrates. This exertion of power, though perhaps in summo jure it was for the most part strictly legal, gave a great and just alarm; the new-modelling of all corporations being a very large stride towards establishing arbitrary power; and therefore it was thought necessary at the revolution to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 W. and M. c. 8, which enacts, that the franchises of the city of London shall never hereafter be seised or forejudged for any forfeiture or misdemeanour whatsoever.

This proceeding is, however, now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Anne, c. 20, which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same, (who is then styled the relator,) against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit.3

6. The writ of mandamus(y) is also made, by the same statute 9 Anne, c. 20, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. *[*265These are injuries, for which though redress for the party interested may be had by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king’s bench; commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had, as if an action on the case had been brought, for making a false return; and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution; which latter (in case of an action) is effected by a writ of restitution.(z) So that now the writ of mandamus, in cases within this statute, is in the nature of an action; whereupon the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, burgess, or freeman;(a) and also, in general, a writ of error may be had thereupon.(b)

This writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I. c. 4, in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen.4

We have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory: a difficulty not a little increased **266]by the very immethodical arrangement in which they are delivered to us by our antient writers, and the numerous terms of art in which the language of our ancestors has obscured them. Terms of art there will unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent and familiar use; and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will shrink to nothing upon a nearer and more frequent approach, and indeed be rather advantageous than of any disservice, by imprinting on the student’s mind a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same Edition: current; Page: [266] description; whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer and not to prescribe the remedy. And I may venture to affirm that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terms as are properly and singularly adapted to his own particular grievance.

In the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the antient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feodal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficulties and retrench those *[*267delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse to such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural that ever was adopted by a free and enlightened people.

But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils, which have their root in the frame of our constitution, and which therefore can never be cured without hazarding every thing that is dear to us. In absolute governments, when new arrangements of property and a gradual change of manners have destroyed the original ideas on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps a uniform, plan of justice: and evil betide that presumptuous subject who questions its wisdom or utility. But who that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequents, and set up another rule in its stead? When therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill suited to that *[*268more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old-established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges, who have sat in our courts of equity, to show them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than Edition: current; Page: [268] could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily pervaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.

In this part of our disquisitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused, and may perhaps, in their turn, be hereafter, with some necessary corrections, called out again into common use; but also because, as a sensible **269]writer has well observed,(z) “whoever considers how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will, I presume, be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern.” And, besides, I should have done great injustice to the founders of our legal constitution, had I led the student to imagine that the remedial instruments of our law were originally contrived in so complicated a form as we now present them to his view: had I, for instance, entirely passed over the direct and obvious remedies by assizes and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment.

CHAPTER XVIII.: OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST OF THE ORIGINAL WRIT.

**270]Having, under the head of redress by suit in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and, in the second place, shown to which of these courts in particular application must be made for redress, according to the distinction of injuries, or, in other words, what wrongs are cognizable by one court, and what by another; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the specifical remedies by action provided for every possible degree of wrong or injury, as well such remedies as are dormant and out of use as those which are in every day’s practice, apprehending that the reason of the one could never be clearly comprehended without some acquaintance with the other; and I am now, in the last place, to examine the manner in which these several remedies are pursued and applied by action in the courts of common law; to which I shall afterwards subjoin a brief account of the proceedings in courts of equity.

In treating of remedies by action at common law, I shall confine myself to the modern method of practice in our courts of judicature. For though I thought it necessary to throw out a few observations on the nature of real actions, however **271]at present disused, in order to demonstrate the coherence and uniformity of our legal constitution, and that there was no injury so obstinate and inveterate but which might in the end be eradicated by some or other of those remedial writs; yet it would be too irksome a task to perplex both my readers and myself with explaining all the rules of proceeding Edition: current; Page: [271] in those obsolete actions, which are frequently mere positive establishments, forma et figura judicii, and conduce very little to illustrate the reason and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I shall endeavour to hint at them incidentally.

What, therefore, the student may expect in this and the succeeding chapters is, an account of the method of proceeding in and prosecuting a suit upon any of the personal writs we have before spoken of, in the court of common pleas at Westminster, that being the court originally constituted for the prosecution of all civil actions. It is true that the courts of king’s bench and exchequer, in order, without entrenching upon antient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many civil suits; but as causes are therein conducted by much the same advocates and attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material respects the same in all of them. So that in giving an abstract or history(a) of the progress of a suit through the court of common pleas, we *[*272shall at the same time give a general account of the proceedings of the other two courts; taking notice, however, of any considerable difference in the local practice of each. And the same abstract will moreover afford us some general idea of the conduct of a cause in the inferior courts of common law, those 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 superior tribunals, to which their causes may probably be, in some stage or other, removed.

The most natural and perspicuous way of considering the subject before us will be (I apprehend) to pursue it in the order and method wherein the proceedings themselves follow each other, rather than to distract and subdivide it by any more logical analysis. The general, therefore, and orderly parts of a suit are these: 1. The original writ; 2. The process; 3. The pleadings; 4. The issue or demurrer; 5. The trial; 6. The judgment, and its incidents; 7. The proceeding in nature of appeals; 8. The execution.

First, then, of the original, or original writ;2 which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider with himself, or take advice, what redress the law has given for that injury; and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue 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 of trespass vi *[*273et armis; or to try the title of lands, a writ of entry, or action of trespass in ejectment; or for any consequential injury received, Edition: current; Page: [273] a special action on the case. To this end he is to sue out, or purchase by paying the stated fees, an original, or original writ, from the court of chancery, which is the officina justitiæ, the shop or mint of justice, wherein all the king’s writs are framed.3 It is a mandatory letter from the king, in parchment, sealed with his great seal,(b) and directed to the sheriff of the county wherein the injury is committed, or supposed so to be, requiring him to command the wrong-doer or party accused either to do justice to the complainant, or else to appear in court and answer the accusation against him. Whatever the sheriff does in pursuance of this writ, he must return or certify to the court of common pleas, together with the writ itself; which is the foundation of the jurisdiction of that court, being the king’s warrant for the judges to proceed to the determination of the cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the king’s justices without his original writ; because they held it unfit that those justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judgment.(c) However, in small actions below the value of forty shillings, which are brought in the court-baron or county-court, no royal writ is necessary; but the foundation of such suits continues to be (as in the times of the Saxons) not by original writ, but by plaint;(d) that is, by a private memorial tendered in open court to the judge, wherein the party injured sets forth his cause of action; and the judge is bound of common right to administer justice therein, without any special mandate from the king. Now, indeed, even the royal writs are held to be demandable of common right, on paying the usual fees; for any delay in the granting them, or setting an unusual or exorbitant price upon them, would be a breach of magna carta, c. 29, “nulli vendemus, nulli negabimus aut differemus, justitiam vel rectum.”4

**274]Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a præcipe, or a si te fecerit securum.(e) The præcipe is in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he hath not done it.(f) The use of this writ is where something certain is demanded by the plaintiff, which it is incumbent on the defendant himself to perform; as, to restore the possession of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, Edition: current; Page: [274] and the like: in all which cases the writ is drawn up in the form of a præcipe or command, to do thus or show cause to the contrary; giving the defendant his choice, to redress the injury or stand the suit. The other species of original writs is called a si fecerit te securum, from the words of the writ; which directs the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim.(g) This writ is in use where nothing is specifically demanded, but only a satisfaction in general: to obtain which, and minister complete redress, the intervention of some judicature is necessary. Such are writs of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end the defendant is immediately called upon to appear in court, provided the plaintiff gives good security of prosecuting his claim. Both species of writs are tested, or witnessed in the king’s own name; “witness ourselves at Westminster,” or wherever the chancery may be held.

The security here spoken of, to be given by the plaintiff for prosecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form; and John Doe and Richard Roe are always returned as the standing pledges for this purpose. The antient use of them was to answer for the *[*275plaintiff, who in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation; and so the form of judgment still is.(h) In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another “nisi sub scriptura aut specificatione trium testium, quod actionem vellet persequi;”(i) and as by the laws of Sancho I., king of Portugal, damages were given against a plaintiff who prosecuted a groundless action.(k)

The day on which the defendant is ordered to appear in court, and on which the sheriff 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 justices at Westminster. And it is always made returnable at the distance of at least fifteen days from the date or teste, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the despatch of business.

These terms are supposed by Mr. Selden(l) to have been instituted by William the Conqueror; but Sir Henry Spelman hath clearly and learnedly shown, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year which were not occupied by the great festivals or fasts, or which were not liable to the general avocations of rural business. Throughout all Christendom, in very early times, the whole year was one continual term for hearing and deciding causes. For the Christian magistrates, to distinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti, went into a contrary extreme, and administered justice upon all days alike. *[*276Till at length the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of Advent and Christmas, which gave rise to the winter vacation; the time of Lent and Easter, which created that in the spring; the time of Pentecost, which produced the third; and the long vacation between Midsummer and Michaelmas, which was allowed for the hay-time and harvest. All Sundays also, and some particular festivals, as the days of the purification, ascension, and some others, were included in the same prohibition; which was established by a canon of the church, ad 517, and was fortified by an imperial constitution of the younge. Theodosius, comprised in the Theodosian code.(m)

Afterwards, when our own legal constitution came to be settled, the commencement Edition: current; Page: [276] and duration of our law-terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of king Edward the Confessor,(n) that from advent to the octave of the epiphany, from septuagesima to the octave of Easter, from the ascension to the octave of Pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of holy church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the Mirror(o) mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express,(p) that in the reign of king Edward the First no secular plea could be held, nor any man sworn on the evangelists,(q) in the times of advent, Lent, Pentecost, harvest, and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations, (of which many are preserved in Rymer’s Fœdera,)(r) that assizes and juries might be taken in some of these holy seasons. And soon afterwards a general **277]dispensation was established by statute Westm. 1, 3 Edw. I. c. 51, which declares, that “by the assent of all the prelates, assizes of novel disseisin, mort d’ancestor, and darrein presentment shall be taken in advent, septuagesima, and Lent; and that at the special request of the king to the bishops.” The portions of time, that were not included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the Holy Trinity, and of St. Michael: which terms have been since regulated and abbreviated by several acts of parliament; particularly Trinity term by statute 32 Hen. VIII. c. 21, and Michaelmas term by statute 16 Car. I. c. 6, and again by statute 24 Geo. II. c. 48.5

There are in each of these terms stated days called days in bank, dies in banco: that is, days of appearance in the court of common bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church.6 On some one of these days in bank all original writs must be made returnable; and therefore they are generally called the returns of that term: whereof every term has more or less said by the Mirror(s) to have been originally fixed by king Alfred, but certainly settled as early as the statute of 51 Hen. III. st. 2. But though many of the return-days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after:(t) and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the Sunday.(u)

The first return in every term is, properly speaking, the first day in that term; as, for instance, the octave of St. Hilary, or the eighth day inclusive after the feast of that saint: which falling on the thirteenth of January, the octave therefore or first day of Hilary term is the twentieth of January. And thereon the court sits to take essoigns, or excuses, for such as **278]do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term.7 But on every return-day in the term, the person summoned has three days of grace, beyond the day named in the writ, in which to make his appearance; and if he appears on the fourth day inclusive, quarto Edition: current; Page: [278] die post, it is sufficient.8 For our sturdy ancestors held it beneath the condition of a freeman to appear, or to do any other act, at the precise time appointed. The feodal law therefore always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing;(v) preserving in this respect the German custom, of which Tacitus thus speaks:(w) “illud ex libertate vitium, quod non simul nec jussi conveniunt; sed et alter et tertius dies cunctatione coeuntium absumitur.” And a similar indulgence prevailed in the Gothic Constitution: “illud enim nimiæ libertatis indicium, concessa toties impunitas non parendi; nec enim trinis judicii concessibus pœnam perditæ causæ contumax meruit.”(x) Therefore, at the beginning of each term, the court does not usually(y) sit for despatch of business till the fourth or appearance day, as in Hilary term on the twenty-third of January;9 and in Trinity term, by statute 32 Hen. VIII. c. 21, not till the fifth day, the fourth happening on the great popish festival of Corpus Christi;(z) which days are therefore called and set down in the almanacs as the first days of the term, and the court also sits till the quarto die post or appearanceday of the last return, which is therefore the end, of each of them.10

CHAPTER XIX.: OF PROCESS.

**279]The next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like.(a) Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.

But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real prœcipes, and also upon all personal writs for injuries not against the peace, by summons, which is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff’s messengers, called summoners, either in person or left at his house or land;(b) in like manner as in the civil law the first process is by personal citation, in jus vocando.(c) This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant’s grounds,(d) (which stick or wand among the northern nations is called the baculus **280]nunciatorius;)(e) and by statute 31 Eliz. c. 3., the notice must also be proclaimed on some Sunday before the door of the parish church.

If the defendant disobeys this verbal monition, the next process is by writ of attachment or pone, so called from the words of the writ,(f) “pone per vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, &c.” This is a writ not issuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear;(g) or by making him find safe pledges or sureties who shall be amerced in case of his non-appearance.(h) This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which, though not forcible, are yet trespasses against the peace, as deceit and conspiracy;(i) where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning.(j)1

If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be further compelled by writ of distringas(k) or distress infinite; which is a subsequent process issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterwards by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the king if he doth not appear.(l) But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff.(m)2 In like *[*281manner, by the civil law, if the defendant absconds, so that the citation is of no effect, “mittitur adversarius in possessionem bonorum ejus.”(n)

And here, by the common as well as the civil law, the process ended in case of injuries without force; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king’s writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in case of injury accompanied with force, the law, to punish the breach of the peace, and prevent its disturbance for the future, provided also a process against the defendant’s person in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum.(o) But this immunity of the defendant’s person, in case of Edition: current; Page: [281] peaceable though fraudulent injuries, producing great contempt of the law in indigent wrong-doers, a capias was also allowed to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlberge, 52 Hen. III. c. 23, and Westm. 2, 13 Edw. I. c. 11, in actions of debt and detinue, by statute 25 Edw. III. c. 17, and in all actions on the case, by statute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff’s close vi et armis; which by the old common law subjected the defendant’s person to be arrested by writ of capias: and then, afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trouble and expense, in suing out a special original **282]adapted to the particular injury) still continues in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.

If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant hath nothing whereby he may be summoned, attached, or distrained; the capias now usually issues:(p) being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt or trespass, &c., as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery, but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff’s return, are called judicial, not original writs; they issue under the private seal of that court, and not under the great seal of England; and are teste’d, not in the king’s name, but in that of the chief (or, if there be no chief, of the senior) justice only. And these several writs, being grounded on the sheriff’s return, must respectively bear date the same day on which the writ immediately preceding was returnable.3

This is the regular and ordinary method of process. But it is now usual in practice to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond; and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid) cannot find the defendant in his jurisdiction, **283]he returns that he is not found, non est inventus, in his bailiwick; whereupon another writ issues, called a testatum capias,(q) directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiesced in and is now become the settled practice; being one among Edition: current; Page: [283] many instances to illustrate that maxim of law, that in fictione juris consistit æquitas.4

But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias.5 And if the sheriff cannot find the defendant upon the first writ of capias, and return a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former;(r) only after these words, “we command you,” this clause is inserted, “as we have formerly,” or, “as we have often commanded you:”—“sicut alias,” or “sicut pluries, præcepimus.” And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out,(s) which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him as in a capias; but if he does not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county. Also by statutes 6 Hen. VIII. c. 4, and 31 Eliz. c. 3, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, *[*284a writ of proclamation(t) shall issue out at the same time with the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one’s goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton’s time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis.(u) And since his days, by a variety of statutes, (the same which allow the writ of capias before mentioned,) process of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill.(v) If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum,(w)6 and committed till the outlawry be reversed. Which reversal may be had by the defendant’s appearing personally in court or by attorney,(x) (though in the king’s bench he could not appear by attorney,(y) till permitted by statute Edition: current; Page: [284] 4 & 5 W. and M. c. 18;) and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition as if he had appeared before the writ of exigi facias was awarded.7

Such is the first process in the court of common pleas. In the king’s bench they may also (and frequently do) proceed in certain causes, particularly in actions of ejectment and trespass, by original writ, with attachment and capias thereon;(y) returnable, not at Westminster, where the common pleas are now fixed in consequence of magna carta, but “ubicunque fuerimus in Anglia,” wheresoever the king shall then be in **285]England; the king’s bench being removable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex: and therefore so entitled, because the court now sits in that county; for if it sat in Kent, it would then be a bill of Kent.(z) For though, as the justices of this court have, by its fundamental constitution, power to determine all offences and trespasses, by the common law and custom of the realm,(a) it needed no original writ from the crown to give it cognizance of any misdemeanour in the county wherein it resides; yet, as by this court’s coming into any county it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer,(b) a process of its own became necessary within the county where it sat, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex(c) (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court)(d) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king’s bench jurisdiction in other civil causes, as was formerly observed; since when once the defendant is taken into custody of the marshal, or prison-keeper of this court, for the supposed trespass, he being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the marshal’s prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal as will give the court a jurisdiction to proceed.(e) And, upon these accounts, **286]in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county; but, if he returns “non est inventus,” then there issues out a writ of latitat(f) to the sheriff of another county, as Berks; which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant “latitat et discurrit,” lurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return.8 But, as in Edition: current; Page: [286] the common pleas the testatum capias may be sued out upon only a supposed, and not an actual, preceding capias; so in the king’s bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king’s bench, as the testatum 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 suffices; so in the king’s bench, likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only.9

In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction 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 sufficiens existit, by which he is the less able to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.10

Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts of king’s bench and exchequer to hold plea in causes between subject and subject, which by the original constitution of Westminster hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.

*[*287If the sheriff has found the defendant upon any of the former writs, the capias, latitat, &c., he was antiently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had shown a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed: and therefore in common cases, by the gradual indulgence of the courts, (at length authorized by statute 12 Geo. I. c. 29, which was amended by 5 Geo. II. c. 27, made perpetual by 21 Geo. II. c. 3, and extended to all inferior courts by 19 Geo. III. c. 70,) the sheriff or proper officer can now only personally serve the defendant with the copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons.11 And if the defendant thinks Edition: current; Page: [287] proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff’s prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in some cases, eight) days after,12 the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant’s name, and proceed thereupon as if the defendant had done it himself.

But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards,13 then he may arrest the defendant, Edition: current; Page: [287] and make him put in substantial sureties for his appearance, called special bail. In order to which, it is required by statute 13 Car II. st. 2, c. 2, that the true cause of action should be expressed in the body of the writ or process: else no security can be taken in a greater sum than 40l. This statute (without any such intention in the makers) had like to have ousted the king’s bench of *[*288all its jurisdiction over civil injuries without force; for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of civil contracts. But to remedy this inconvenience, the officers of the king’s bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass: the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt;(f) the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. In imitation of which, lord chief justice North, a few years afterwards, in order to save the suitors of his court the trouble and expense of suing out special originals, directed that in the common pleas, besides the usual complaint of breaking the plaintiff’s close, a clause of ac etiam might be also added to the writ of capias, containing the true cause of action; as, “that the said Charles, the defendant, may answer to the plaintiff of a plea of trespass in breaking his close; and also, ac etiam, may answer him, according to the custom of the court, in a certain plea of trespass upon the case, upon promises, to the value of twenty pounds, &c.”(g) The sum sworn to by the plaintiff is marked upon the back of the writ, and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon.

An arrest must be by corporal seizing or touching the defendant’s body,14 after which the bailiff may justify breaking open the house in which he is15 to take him; otherwise he has no such power, but must watch his opportunity to arrest him; for every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence:16 which principle Edition: current; Page: [288] is carried so far in the civil law, that, for the most part, not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls.(h) Peers of the realm, members **289]of parliament, and corporations, are privileged from arrests; and of course from outlawries.(i) And against them the process to enforce an appearance must be by summons and distress infinite,(j) instead of a capias. Also clerks, attorneys, and all other persons attending the courts of justice, (for attorneys, being officers of the court, are always supposed to be there attending,) are not liable to be arrested by the ordinary process of the court, but must be sued by bill, (called usually a bill of privilege,) as being personally present in court.(k)17 Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by stat. 50 Edw. III. c. 5, and 1 Ric. II. c. 16, as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record on business, are not to be arrested during their actual attendance, which includes their necessary coming and returning.18 And no arrest can be made in the king’s presence, nor within the Edition: current; Page: [289] verge of his royal palace,(l)19 nor in any place where the king’s justices are actually sitting.20 The king hath moreover a special prerogative, (which, indeed, is very seldom exerted,)(m) that he may by his writ of protection privilege a defendant from all personal, and many real, suits for one year at a time, and no longer; in respect of his being engaged in his service out of the realm.(n) And the king also, by the common law, might take his debtor into his protection, so that no one might sue or arrest him till the king’s debt be paid;(o) but by the statute 25 Edw. III. st. 5, c. 19, notwithstanding such protection, another creditor may proceed to judgment against *[*290him, with a stay of execution, till the king’s debt be paid; unless such creditor will undertake for the king’s debt, and then he shall have execution for both. And lastly, by statute 29 Car. II. c. 7, no arrest can be made, nor process served, upon a Sunday, except for treason, felony, or breach of the peace.21

When the defendant is regularly arrested he must either go to prison for safe custody, or put in special bail to the sheriff.22 For, the intent of the arrest being only to compel an appearance in court at the return of the writ, that purpose is equally answered whether the sheriff detains his person, or takes sufficient security for his appearance, called bail, (from the French word bailler, to deliver,) because the defendant is bailed or delivered to his sureties, upon their giving security for his appearance, and is supposed to continue in their friendly custody instead of going to gaol. The method of putting in bail to the sheriff is by entering into a bond or obligation, with one or more sureties, not fictitious persons, as in the former case of common bail, but real, substantial, responsible bondsmen, to insure the defendant’s appearance at the return of the writ; which obligation is called the bail-bond.(p)23 The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him safely, so as to be forthcoming in court; otherwise an action lies against him for an escape.24 Edition: current; Page: [290] But, on the other hand, he is obliged, by statute 23 Hen. VI. c. 10, to take (if it be tendered) a sufficient bail-bond;25 and by statute 12 Geo. I. c. 29, the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff and endorsed on the back of the writ.

Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail **291]to the action; which is commonly called putting in bail above.26 If this be not done, and the bail that were taken by the sheriff below are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the statute 4 & 5 Anne, c. 16) and bring an action thereupon against the sheriff’s bail. But if the bail so accepted by the sheriff be insolvent persons, the plaintiff may proceed against the sheriff himself by calling upon him, first to return the writ, (if not already done,) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff.

The bail above, or bail to the action, must be put in either in open court or before one of the judges thereof, or else, in the country, before a commissioner appointed for that purpose by virtue of the statute 4 W. and M. c. 4, which must be transmitted to the court. These bail, who must at least be two in number, must enter into a recognizance(q) in court or before the judge or commissioner in a sum equal (or in some cases double) to that which the plaintiff hath sworn to, whereby they do jointly and severally undertake that if the defendant be condemned in the action he shall pay the costs and condemnation or render himself a prisoner, or that they will pay it for him; which recognizance is transmitted to the court in a slip of parchment entitled a bail-piece.(r) And, if excepted to, the bail must be perfected; that is, they must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers,27 and each of them to be worth the full sum for which they are bail, after payment of all their debts.28 This answers in some measure to Edition: current; Page: [291] the stipulatio or satisdatio of the Roman laws,(s) which is mutually given by each litigant party to the other: by the plaintiff that he will prosecute his suit, and pay the costs if he loses his cause; in like manner as our law still requires nominal pledges of prosecution from the plaintiff: by the defendant, that he shall continue in court and abide the sentence of the judge, much like our special bail, but with this difference, that the fidejussores were there absolutely bound judicatum solvere, to see the costs and condemnation *[*292paid at all events; whereas our special bail may be discharged, by surrendering the defendant into custody within the time allowed by law; for which purpose they are at all times entitled to a warrant to apprehend him.(t)29

Special bail is required (as of course) only upon actions of debt, or actions on the case in trover or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds:30 but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge’s order or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances as make it absolutely necessary that the defendant should be kept within the reach of justice. Also in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable; for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased; that wrong being of their own committing.

Thus much for process; which is only meant to bring the defendant into court, in order to contest the suit and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAPTER XX.: OF PLEADING

**293]Pleadings are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law-French the pleadings are frequently denominated the parol.1

The first of these is the declaration, narratio, or count, antiently called the tale;(a) in which the plaintiff sets forth his cause of complaint at length; being, indeed, only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place when and where the injury was committed. But we may remember,(b) that in the Edition: current; Page: [293] king’s bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury, he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant’s person, it was the antient practice, and is therefore still warrantable in the common pleas, to sue out a writ of trespass quare clausum fregit, for breaking the plaintiff’s close: and when the defendant is once brought in upon this **294]writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression:(c) unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.2

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. affecting land, the plaintiff must lay his Edition: current; Page: [294] declaration or declare his injury to have happened in the very county and place that it really did happen;3 but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though if the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue or visne, (that is, the vicinia or neighbourhood in which the injury is declared to be done,) and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the first. For the statutes 6 Ric. II. c. 2, and 4 Hen. IV. c. 18, having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the First.(d) And this power is discretionally exercised, so as to prevent and not to cause a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction, (especially of a narrow and limited kind,) upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein.(e)4

*[*295It is generally usual in actions upon the case to set forth several cases by different counts in the same declaration; so that if the plaintiff fails in the proof of one, he may succeed in another. As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably Edition: current; Page: [295] worth; and then avers that they were worth other twenty pounds; and so on, in three or four different shapes;5 and at last concludes with declaring that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, “and thereupon he brings suit, &c.,” “inde producit sectam, &c.”6 By which words suit or secta (a sequendo) were antiently understood the witnesses or followers of the plaintiff.(f) For in former times the law would not put the defendant to the trouble of answering the charge till the plaintiff had made out at least a probable case.(g) But the actual production of the suit, the secta, or followers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues.

At the end of the declaration are added also the plaintiff’s common pledges of prosecution, John Doe and Richard Roe,7 which as we before observed,(h) are now mere names of form, though formerly they were of use to answer to the king for the amercement of the plaintiff in case he were nonsuited, barred of his action, or had a verdict or judgment against him.(i) For if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent **296]stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit or non prosequitur is entered, and he is said to be nonpros’d.8 And for thus deserting his complaint, after making a false claim or complaint, (pro falso clamore suo,) he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit in that the one is negative and the other positive; the nonsuit Edition: current; Page: [296] is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again by suing out a new original, usually paying costs to his antagonist Antiently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process by suing out a fresh writ from the successor, the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof; but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI. c. 7 enacts that by the death of the king no action shall be discontinued, but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence and to put in a plea; else the plaintiff will at once recover judgment by default or nihil dicit of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification, but merely an opposing or bail, (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis of the civilians, a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended *[*297and maintained in his plea. For it would be ridiculous to suppose that the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore, in actions of dower, where the demandant doth not count of any injury done, but merely demands her endowment,(k) and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no such defence.(l) In writs of entry,(m) where no injury is stated 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 suum; that is, (as I understand it, though with a small grammatical inaccuracy,) the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such as is suggested by the count of the demandant. And in writs of right(n) the tenant always comes and defends the right of the demandant and his seisin, jus prædicti S et seisinam ipsius,(o) (or else the seisin of his ancestor upon which he counts, as the case may be,) and the demandant may reply that the tenant unjustly defends his, the demandant’s, right, and the seisin on which he counts.(p) All which is extremely clear if we understand by defence an opposition or denial, but it is otherwise inexplicably difficult.(q)

The courts were formerly very nice and curious with respect to the nature of the defence; so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment;(r) and therefore the book entitled novæ narrationes or the new talys,(s) at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since 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, *[*298the defendant waived all pleas of misnomer;(t) by defending the damages, all exceptions to the person of the plaintiff; and by defending Edition: current; Page: [298] either one or the other when and where it should behoove him, he acknowledged the jurisdiction of the court.(u) But of late years these niceties have been very deservedly discountenanced,(w) though they still seem to be law, if insisted on.(x)

Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court.(y) Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As when a scholar, or other privileged person, of the universities of Oxford or Cambridge, is impleaded in the courts at Westminster for any cause of action whatsoever, unless upon a question of freehold.(z)9. In these cases, by the charter of those learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and form and with due proof of the facts alleged, is regularly allowed by the courts.(a) It must be demanded before full defence is made(b) or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise, and it will not be **299]allowed if it occasions a failure of justice,(c) or if an action be brought against the person himself who claims the franchise, unless he hath also a power in such cases of making another judge.(d)10

After defence made, the defendant must put in his plea. But before he defends, if the suit is commenced by capias or latitat, without any special criginal, he is entitled to demand one imparlance,(e) or licentia loquendi, and may before he pleads have more time granted by consent of the court, to see if he can end the matter amicably without further suit, by talking with the plaintiff; a practice which is(f) supposed to have arisen from a principle of religion in obedience to that precept of the gospel, “Agree with thine adversary quickly, whilst thou art in the way with him.”(g) And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve Edition: current; Page: [299] tables, which expressly directed the plaintiff and defendant to make up the matter while they were in the way, or going to the prætor,—tu via, rem uti pacunt orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer(h) of the writ, or of the bond, or other specialty upon which the action is brought; that is, to hear it read to him; the generality of defendants in the times of antient simplicity being supposed incapable to read it themselves, whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff’s declaration.11 *[*300In real actions also the tenant may pray in aid, or call for assistance of another, to help him to plead, because of the feebleness or imbecility of his own estate. Thus, a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary; that is, that they shall be joined in the action and help to defend the title. Voucher also is the calling in of some person to answer the action that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries,(i) which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant’s title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the voucher; but if he afterwards makes default, recovery shall be had against the original defendant, and he shall recover over an equivalent in value against the deficient vouchee. In assizes, indeed, where the principal question is, whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartæ against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenant.(k) In many real actions also,(l) brought by of against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in our legal phrase) that the infant may have his age, and that the parol may demur, that is, that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby.(m) But, by the statutes of Westm. 1, 3 Edw. I. c. 46, and of Glocester, 6 Edw. I. c. 2, in writs of entry sur disseisin in some particular cases, and in actions ancestrel brought by *[*301an infant, the parol shall not demur: otherwise he might be deforced of his whole property, and even want a maintenance till he came of age. So likewise in a writ of dower the heir shall not have his age, for it is necessary that the widow’s claim be immediately determined, else she may want a present subsistence.(n) Nor shall an infant patron have it in a quare impedit,(o) since the law holds it necessary and expedient that the church be immediately filled.12

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the Edition: current; Page: [301] propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course; or special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever which are granted at the discretion of the court.(p)

1. Dilatory pleas are,13 1. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea; or because the land in question is of antient demesne, and ought only to be demanded in the lord’s court, &c. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien enemy, outlawed, excommunicated, attained of treason or felony, under a præmunire, not in rerum natura, (being only a fictitious person,) an infant, a feme-covert, or a monk professed.14 3. In abatement, which abatement is either of the **302]writ or the count, for some defect in one of them; as by misnaming the defendant, which is called a misnomer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect.15 Or it may be that the plaintiff is dead; for the death of either party is at once an abatement of the suit.16 And in actions merely personal, Edition: current; Page: [302] arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona;(q) and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury.17 But in actions arising ex contractu, by breach of promise, and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors:(r) being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before.

These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now, by statute 4 & 5 Anne, c. 16, no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shown to the court to induce them to believe it true.18 And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better;(s) that is, show him how it might be amended, that there may not be two objections upon the same account. Neither, by statute 8 & 9 W. III. c. 31, shall any plea in abatement be admitted in any suit for partition of lands; nor shall the same be abated by reason of the death of any tenant.

*[*303All pleas to the jurisdiction conclude to the cognizance of the court: praying “judgment, whether the court will have further cognizance of the suit:” pleas to the disability conclude to the person; by praying “judgment, if the said A. the plaintiff ought to be answered:” and pleas in abatement (when the suit is by original) conclude to the writ or declaration; by praying “judgment of the writ, or declaration, and that the same may be quashed,” cassetur, made void, or abated; but, if the action be by bill, the plea must pray “judgment of the bill,” and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.

When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction; or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court:(t) or to amend and new-frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.

2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.

A confession of the whole complaint is not very usual, for then the defendant would probably end the matter sooner, or not plead at all, but suffer judgment Edition: current; Page: [303] to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender; adding, that he has always been ready, tout temps prist, and still is ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor will in all cases discharge the costs,(u) but not the debt itself; though in some particular cases the creditor will totally lose his money.(v)19 **304]But frequently the defendant confesses one part of the complaint, (by a cognovit actionem in respect Edition: current; Page: [304] thereof,) and traverses or denies the rest: in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate. A species of this sort of confession is the payment of money into court:(w) which Edition: current; Page: [304] is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff;20 by paying into the hands of the proper officer of the Edition: current; Page: [304] court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any further proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit, (the perfect tense of the verb affido,) being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court.21 If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for, if he does not prove more due than is so paid into court, he shall be non-suited and pay the defendant costs; but he shall still have the money so paid in; for that the defendant has acknowledged to be his due.22 In the French law the rule of practice is grounded upon principles somewhat similar to this; for there, if a person be sued for more than he owes, yet he loses his cause if he doth not tender so much as he really does owe.(w) To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff’s demand on the one hand, but on the other sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and, in case he pleads such set-off, must pay the remaining balance into court. This answers *[*305very nearly to the compensatio, or stoppage, of the civil law,(x) and depends on the statutes 2 Geo. II. c. 22, and 8 Geo. II. c. 24, which enact, that where there are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff’s demand.23

Pleas that totally deny the cause of complaint are either the general issue, or a special plea, in bar.

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not Edition: current; Page: [305] guilty;(y) in debt upon contract, nihil debet, he owes nothing; in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul disseisin, no disseisin; and in a writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue: by which we mean a fact affirmed on one side and denied on the other.

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprize the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be thus specially pleaded may be given in evidence upon the general issue at the trial. But the science *[*306of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case, and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness antiently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.

2. Special pleas, in bar of the plaintiff’s demand, are very various, according to the circumstances of the defendant’s case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff’s title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action.(z) A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff’s own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

Also a man may plead the statutes of limitation(a) in bar;24 or the time Edition: current; Page: [306] limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2, in a writ of right, is sixty years; in assizes, writs of entry, or other possessory actions real, of the seisin of one’s ancestors, in lands; and either of their seisin, or one’s own, in rents, suits, and services, fifty years: and in actions real for lands grounded Edition: current; Page: [306] upon one’s own seisin or possession, such possession must have been within thirty years. By statute 1 Mar st. 2, c. 5, this limitation does not extend to *[*307any suit for advowsons, upon reasons given in a former chapter.(b) But by the statute 21 Jac. I. c. 2, a time of limitation was extended to the Edition: current; Page: [307] case of the king; viz., sixty years precedent to 19 Feb. 1623;(c) but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by statute 9 Geo. III. c. 16, to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so Edition: current; Page: [307] that a possession for sixty years is now a bar even against the prerogative, in derogation of the antient maxim “nullum tempus occurrit regi.” By another statute, 21 Jac. I. c. 16, twenty years is the time of limitation in any writ of formedon; and, by a consequence, twenty years is also the limitation in every action of ejectment; for no ejectment can be brought unless where the lessor of the plaintiff is entitled to enter on the lands,(d) and by the statute 21 Jac. Edition: current; Page: [307] I. c. 26, no entry can be made by any man, unless within twenty years after his right shall accrue.25 Also all actions of trespass, (quare clausum fregit, or otherwise,) detinue, trover, replevin, account, and case, (except upon accounts between merchants,) debt on simple contract, or for arrears of rent, are limited Edition: current; Page: [307] by the statute last mentioned to six years after the cause of action commenced and actions of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years, after the injury committed.26 And by the statute 31 Eliz. c. 5, all suits, indictments, and informations, upon any penal statutes, where any forfeiture is to the crown alone, shall be sued within two years; and where the forfeiture is to a subject, or to the crown and a subject, within one year, after the offence committed,27 unless where any other time is specially limited by the statute. Lastly, by statute 10 W. III. c. 14, no writ of error, scire facias, or other suit, shall be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within twenty years.28 The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue if a man were allowed to bring an action for any injury committed at any distance of time. *[*308Upon both these accounts the law therefore holds, that “interest reipublicæ ut sit finis litium:” and upon the same principle the Athenian laws in general prohibited all actions where the injury was committed five years before the complaint was made.(e) If therefore in any suit the injury or cause of action happened earlier than the period expressly limited by law, the defendant may plead the statutes of limitations in bar: as upon an assumpsit, or promise to pay money to the plaintiff, the defendant may plead non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint.29

An estoppel is likewise a special plea in bar; which happens where a man hath done some act or executed some deed which estops or precludes him from averring any thing to the contrary. As if tenant for years (who hath no freehold) levies a fine to another person. Though this is void as to strangers, yet it shall work as an estoppel to the cognizor; for if he afterwards brings an action to recover these lands, and his fine is pleaded against him, he shall thereby be estopped from saying 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 estoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading) are—1. That it be single and containing only one matter; for duplicity begets confusion. But by statute 4 & 5 Anne, c. 16, a man with leave of the court may plead two or more distinct matters or single pleas; as, Edition: current; Page: [308] in an action of assault and battery, these three, not guilty, son assault demesne, and the statute of limitations. 2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place, and persons. 4. That it answer the plaintiff’s allegations in every material point. 5. That it be so pleaded as to be capable of trial.30

**309]Special pleas are usually in the affirmative, sometimes in the negative; but they always advance some new fact not mentioned in the declaration; and then they must be averred to be true in the common form,—“and this he is ready to verify.” This is not necessary in pleas of the general issue; those always containing a total denial of the facts before advanced by the other party, and therefore putting him upon the proof of them.

It is a rule in pleading that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an assize or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, and at the same time give colour to the plaintiff, or suppose him to have an appearance or colour of title, bad, indeed, in point of law, but of which the jury are not competent judges. As, if his own true title be, that he claims by feoffment, with livery from A., by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul disseisen, in assize, or not guilty in an action of trespass. But he may allege this specially, provided he goes further, and says, that the plaintiff claiming by colour of a prior deed of feoffment without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law.(f)31

When the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration, but only evades it, the plaintiff may plead again, and reply to the defendant’s plea; either traversing it; that is, totally denying it; as if in an action of debt upon bond the defendant pleads solvit ad diem, that he paid the money when **310]due; here the plaintiff in his replication may totally traverse 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 set forth an actual award, and assign a breach;(g) or the replication may confess and avoid the plea, by some new matter or distinction consistent with the plaintiff’s former declaration; as, in an action for trespassing upon land whereof the plaintiff is seised, if the defendant shows a title to the land by descent, and that therefore he had a right to enter, and gives colour to the plaintiff, the plaintiff may either traverse and totally deny the fact of the Edition: current; Page: [310] descent; or he may confess and avoid it by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lands to the plaintiff for a term of life.32 To the replication the defendant may rejoin, or put in an answer, called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters answer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws.(h)33

The whole of this process is denominated the pleading; in the several stages of which it must be carefully observed not to depart or vary from the title or defence which the party has once insisted on For this (which is called a departure in pleading) might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made, in consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for such rejoinder would be an entire departure from his original plea, which alleged that no such award was made: therefore he has now no other *[*311choice but to traverse the fact of the replication, or else 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 evasive plea by the defendant, reduce that general wrong to a more particular certainty, by assigning the injury afresh, with all its specific circumstances, in such manner as clearly to ascertain and identify it, consistently with his general complaint; which is called a new or novel assignment. As, if the plaintiff in trespass declares on a breach of his close in D., and the defendant pleads that the place where the injury is said to have happened is a certain close of pasture in D., which descended to him from B. his father, and so is his own freehold; the plaintiff may reply and assign another close in D., specifying the abuttals and boundaries, as the real place of the injury.(i)

It hath previously been observed(k) that duplicity in pleading must be avoided. Every plea must be simple, entire, connected, and confined to one single point: it must never be entangled with a variety of distinct, independent answers to the same matter; which must require as many different replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass a jury, and sometimes the court itself, and at all events would greatly enhance the expense of the parties. Yet it frequently is expedient to plead in such a manner as to avoid any implied admission of a fact which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation; whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund Edition: current; Page: [311] protestando) that such a matter does or does not exist; and at the same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined(l) a protestation (in the pithy dialect of that age) to be “an exclusion of a conclusion.” **312]For the use of it is, to save the party from being concluded with respect to some fact or circumstance, which cannot be directly affirmed or denied without falling into duplicity of pleading; and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villenage subsisted, if a villein had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waived his seignory; he could not in this case both plead affirmatively that the plaintiff was his villein, and also take issue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action; but he might have alleged the villenage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant in case the issue was found in his (the defendant’s) favor;(m) for the protestation prevented that conclusion, which would otherwise have resulted from the rest of his defence, that he had enfranchised the plaintiff,(n) since no villein could maintain a civil action against his lord. So also, if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive matter. So, lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it, (viz., the non-payment of a sum of money,) and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed; he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation, and plead only the non-payment of the money.(o)34

**313]In any stage of the pleadings, when either side advances or affirms any new matter, he usually (as we said) avers it to be true; “and this he is ready to verify.” On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called; the language of which is different according to the party by whom the issue is tendered; for if the traverse or denial comes from the defendant, the issue is tendered in this manner, “and of this he puts himself upon the country,” thereby submitting himself to the judgment of his peers;(p) but if the traverse lies upon the plaintiff he tenders the issue, or prays the judgment of the peers against the defendant in another form; thus: “and this he prays may be inquired of by the country.”

But if either side (as, for instance, the defendant) pleads a special negative plea; not traversing or denying any thing that was before alleged, but disclosing some new negative matter; as, where the suit is on a bond, conditioned to perform an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea; because it does not appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award; but when the plaintiff replies, and sets forth an actual specific award, if then the defendant traverses the replication, and denies the making of any such award, he then, and not before, tenders an issue to the plaintiff. For when in the course of pleading they come to a point which is affirmed on one side, and denied on the other, they are then said to be at issue; all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant.

CHAPTER XXI.: OF ISSUE AND DEMURRER.

*[*314Issue, exitus, being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law, or matter of fact.

An issue upon matter of law is called a demurrer: and it confesses the facts to be true, as stated by the opposite party; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse; according to the party which first demurs, demoratur, rests or abides upon the point in question. As, if the matter of the plaintiff’s complaint or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration: if, on the other hand, the defendant’s excuse or plea be invalid, as if he pleads that he committed the trespass by authority from a stranger, without making out the stranger’s right; here the plaintiff may demur in law to the plea: and so on in every other part of the proceedings, where either side perceives any material objection in point of law, upon which he may rest his case.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence; and therefore praying *[*315judgment for want of sufficient matter alleged.(a) Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in cases of exceptions to the form or manner of pleading, the party demurring must, by statute 27 Eliz. c. 5, and 4 & 5 Anne, c. 16, set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist.1 And upon either a general or such a special demurrer, the opposite party must aver it to be sufficient, which is called a joinder in demurrer,(b) and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must determine.

An issue of fact is where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, thus, “and this he prays may be inquired of by the country;” or, “and of this he puts himself upon the country;” it may immediately be subjoined by the other party, “and the said A. B. doth the like.” Which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question.(c) And this issue of fact must, generally speaking, be determined, not by the judges of the court, but by some other method; the principal of which methods is that by the country, per pais, (in Latin per patriam,) that is, by jury. Which establishment of different tribunals for determining these different issues is in some measure agreeable to the course of justice in the Roman republic, where the judices ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumviri.(d)2

But here it will be proper to observe, that during the whole of these proceedings, from the time of the defendant’s appearance in obedience to the king’s writ, it is necessary **316]that both the parties be kept or continued in court from day to day, till the final determination of the suit. For the court can determine nothing unless in the presence of both the parties, in person or by their attorneys, or upon default of one of them, after his original appearance and a time prefixed for his appearance in court again. Therefore, in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be non-suit, or not to follow and pursue his complaint, and shall lose the benefit of his writ: or, if the negligence be on the side of the defendant, judgment may be had against him for such his default. And, after issue or demurrer joined, as well as in some of the previous stages 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 case may require. The giving of this day is called the continuance, because thereby the proceedings are continued without interruption from one adjournment to another. If these continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day, for this turn: for by his appearance in court he has obeyed the command of the king’s writ; and, unless he be adjourned over to a certain day, he is no longer bound to attend upon that summons; but he must be warned afresh, and the whole must begin de novo.3

Now, it may sometimes happen, that after the defendant has pleaded, nay, even after issue or demurrer joined, there may have arisen some new matter, which it is proper for the defendant to plead; as that the plaintiff, being a femesole, is since married, or that she has given the defendant a release, and the like: here, if the defendant takes advantage of this new matter as early as he possibly can, viz., at the day given for his next appearance, he is permitted to plead it in what is called a plea of puis darrein continuance, or since the last adjournment.4 **317]For it would be unjust to exclude him from the benefit of this new defence, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on such a plea, without due consideration; for it confesses the matter which was before in dispute between the parties.(e) And it is not allowed to be put in, if any continuance has intervened between the arising of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because the relief may be had in another way, namely, by writ of audita querela, of which hereafter. And these pleas puis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

We have said that demurrers, or questions concerning the sufficiency of the matters alleged in the pleadings, are to be determined by the judges of the Edition: current; Page: [317] court, upon solemn argument by counsel on both sides, 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 peruse.5 The record(f) is a history of the most material proceedings in the cause, entered on a parchment roll, and continued down to the present time; in which must be stated the original writ and summons, all the pleadings, the declaration, view, or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever further proceedings have been had; all entered verbatim on the roll, and also the issue or demurrer, and joinder therein.

These were formerly all written, as indeed all public proceedings were, in Norman or law French,6 and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign servitude; being *[*318introduced under the auspices of William the Norman, and his sons: whereby the ironical observation of the Roman satirist came to be literally verified, that “Gallia causidicos docuit facunda Britannos.”(g) This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the thirty-sixth year of his reign,(h) it was enacted, that for the future all pleas should be pleaded, shown, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. In like manner as Don Alonso X., king of Castile, (the great-grandfather of our Edward III.,) obliged his subjects to use the Castilian tongue in all legal proceedings;(i) and as, in 1286, the German language was established in the courts of the empire.(k) And perhaps if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts or to appear at certain places, should have been framed in the English language, according to the rule of our antient law,(l) it had not been very improper. But the record or enrolment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flux or living one. The practisers, however, being used to the Norman language, and therefore imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law-French; and of course, when those notes came to be published, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of Gothic black letter, has occasioned many a student 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; which differs in its grammar *[*319and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman languages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, that I apprehend an Englishman (with a week’s preparation) would understand the laws of Normandy, collected in their grand coustumier, as well, if not better, than a Frenchman bred within the walls of Paris.

The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English Edition: current; Page: [319] (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations, and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness, of its texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes or perplexed ornaments of style; for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of expression, have been principally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulging their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words of a Gothic original, which is more or less the case in every country **320]of Europe, and therefore not to be imputed as any peculiar blemish in our English legal Latinity.(m) The truth is, what is generally denominated law-Latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra have sunk beneath the stroke of time.

As to the objection of locking up the law in a strange and unknown tongue, that is of little weight with regard to records, which few have occasion to read but such as do, or ought to, understand the rudiments of Latin. And, besides, it may be observed of the law-Latin, as the very ingenious Sir John Davis(n) observes of the law-French, “that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader.”

It is true indeed that the many terms of art, with which the law abounds, are sufficiently harsh when Latinized, (yet not more so than those of other sciences,) and may, as Mr. Selden observes,(o) give offence “to some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age.” Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle **321]the most classical scholar to find an appellation, in his pure Latinity, for a constable, a record, or a deed of feoffment; it is therefore to be imputed as much to necessity, as ignorance, that they were styled in our forensic dialect constabularius, recordum, and feoffamentum. Thus, again, another uncouth word of our antient laws, (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers,) the substantive murdrum, of the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law; viz., a killing with malice aforethought.

A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the Oriental empire: for, Edition: current; Page: [321] without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate fidei commissarios, φιδειϰομμισσαριους;(p) cubiculum, ϰουβουϰλειον;(q) filium-familias, παιδα-φαμιλιας;(r) repudium, ρεπουδιον;(s) compromissum ϰομπρομισσον;(t) reverentia et obsequium, ρευερεντια ϰαι οβσεϰουιον;(u) and the like. They studied more the exact and precise import of the words than the neatness and delicacy of their cadence. And many academical readers will excuse me for suggesting that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle’s philosophy, nay, even of the politer arts of architecture and its kindred studies, or the science of rhetoric itself. Sir Thomas More’s famous legal question(w) contains in it nothing more difficult than the *[*322definition which in his time the philosophers currently gave of their materia prima, the groundwork of all natural knowledge; that it is “neque quid neque quantum, neque quale, neque aliquid eorum quibus ens determinatur;” or its subsequent explanation by Adrian Heereboord, who assures us(x) that “materia prima non est corpus, neque per formam corporeitatis, neque per simplicem essentiam: est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, et simul est potentia subjectiva.” The law therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.