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Commentaries on the Laws of England; in Four Books. by Sir William

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ANALYSIS OF THE CONTENTS OF THIS VOLUME, CHAPTER I. PAOK. Os THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES 1-17 wrongs arc divisible into private wrongs and public wrongs, 2 private wrongs or civil injuries are an infringment or privation of the private or civil rights belonging to individuals, considered as individuals 2 for their redress courts of justice are instituted, 2 the redress is effected, 1, by the mere act of the parties ; 2, by mere opera- tion of law; 3, by suit or action in courts, 3 redress by the mere act of the parties is, 1, that from the act of the in- jured party only; 2, that from the joint act of all the parties, 3 of the first sort are: 1. defence of one's self, and those who stand in the relation of hus- band and wife, parent and child, master and servant, 3 2. recaption of goods wrongfully taken, or wife, child or servant wrongfully detained, 4 3. entry on lands and tenements occupied by another without right, 5 4. abatement or removal of nuisance, 5 5. distress for rent or other duties, or of cattle damage feasant,.... 0 which is a taking of a personal chattel of the wrongdoer into the custody of the party injured to procure satisfaction, 6 the things which may be distrained, 7 distress should be made by day except in case of damage feasant, 10 and generally upon the premises, 11 and for the whole duty at once, 11 and must be reasonable in amount, 1'2 the property must be impounded, 12 replevin of the property 18 6. seizing of heriots, &c., 15 of the second sort are : 1. accord, which is a satisfaction agreed upon between the party in- jured and the party injuring, 15 2. arbitration, which is where the parties submit the matters in dis- pute to the judgment of arbitrators, sometimes adding an um- pire ... 16 right to real property cannot be submitted 10 the submission may be made a rule of court 16 CHAPTER II. Or REDRESS BT THE MERE OPERATION OP LAW, 18-21 redress by mere operation of law is by retainer and remitter, 18 retainer is where a creditor becomes execulor or administrator to his debtor, in which case he may retain the amount of his own debt before paying other debts of equal degree, 18 remitter is where one who has a good title to lands, &c., comes into possession by a bad one, and is thereupon remitted to his ancient good title, which protects his possession 19 but the new title must be cast upon him, not gained by his own act or folly, . 20 CHAPTER III. OF COURTS IN GENERAL 22-29 redress of injuries in courts is effected by the co-operation of the act of the par- ties and the act of the law, 22 Vii Generated for asbigham (University of Michigan) on 2013-04-29 19:01 GMT / http://hdl.handle.net/2027/nyp.33433008577110 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google viii ANALYSIS OF THE CONTENTS OF THIS VOLUME. OF COURTS IN GENERAL —(continued.') PAO»- where a party has a remedy by his own act, he has a remedy in court at his option 22 a court is a place where justice is judicially administered, 23 the power to hold which is derived from the king, who, in contemplation of law, is always present, 23 some courts are of record, whose acts and proceedings are enrolled for a per- petual memorial and testimony 24 against the truth of which records nothing can be averred, 24 other courts are not of record, and have limited power, 25 in every court there are three constituent parts, the actor, the reus, and the judex, 25 also in superior courts, attorneys and advocates, or counsel, 25 the advocates are either barristers or sergeants, 20 some of whom are king's counsel 27 they cannot maintain action for fees, 28 their privileges and responsibilities, 29 CHAPTER IV. OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY, 30-60 courts of justice are either, 1, of a public or genetal jurisdiction throughout the realm ; or, 2, of a private or special jurisdiction, 30 historical view of courts, 30-32 of the courts for the redress of civil injuries there are: 1. the court of piepottdre, incident to fairs and markets, 32 2. the court-bsron, incident to every manor, and holden by the steward, 33 3. the hundred court, a larger species of court-baron, 34 4. the county court, incident to the jurisdiction of the sheriff, 35 the new county courts, 35ra 5. the court of common pleas, or common bench, 37 held by judges appointed by the king, with jurisdiction in all civil cases. 41 6. the court of king's bench, 41 which has general control of inferior jurisdictions and corporations, and cognizance of civil and criminal causes, 42 7. the court of exchequer, 44 which is a court both of equity and common law, 45 8. the court of chancery, 47 which has certain common law jurisdiction, 48 but its equity powers are of chief consequence 50 historical view thereof, 50-56 9. the court of exchequer chamber, which is a court of appeal, 56 10. the house of peers, 57 11. the courts of assize and nisi prius, 53 courts of the United States, 60n CHAPTER V. OF COURTS ECCLESIASTICAL, MILITARY AND MA RITIME, 61-70 history of the ecclesiastical courts 61-64 1. the archdeacon's court, the most inferior, 64 2. the consistory court, of every diocesan bishop, 64 3. the court of arches, a court of appeal belonging to the archbishop of Can- terbury, 65 4. the court of peculiars, a branch of the court of arches, 65 - 5. the prerogative court for testamentary causes where there are bona notalrilia in two dioceses 65 6. the court of delegates, the great court of appeal in ecclesiastical causes,.. 66 7. a commission of review, sometimes granted to revise the sentence of the court of delegates, 67 transfer of jurisdiction to matrimonial and probate courts, 67n of military courts, the only permanent one is the court of chivalry, 68 maritime courts have authority to determine all maritime injuries arising upon the high seas or in parts out of the reach of the common law, 69 they are only the court of admiralty and its courts of appeal 69 of which the highest is now the judicial committee of the privy council 69n Generated for asbigham (University of Michigan) on 2013-04-29 19:01 GMT / http://hdl.handle.net/2027/nyp.33433008577110 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google ANALYSIS OF THE CONTENTS OF THIS VOLUME. ix CHAPTER VI. PAas. OF COUKTS OF SPECIAL JURISDICTION, 71-85 courts of a special or private jurisdiction are: 1. the forests courts, 71 2. the courts of commissioners of sewers, 73 3. the court of policies of insurance 74 4. the court of the rnarshalsea and palace court, 76 5. the courts of the principality of Wales 77 6. the court of the duchy chamber of Lancaster, 78 7. the courts of counties palatine, 79 8. the stannary courts, 80 9. the courts of London and other corporations, 81 10. the university courts, 83 CHAPTER VII. OF THE COGNIZANCE OF PRIVATE WRONGS, 86-114 the common law determines the jurisdiction of the ecclesiastical, military and mari- time courts, and keeps them within bounds, 86-87 injuries cognizable in the ecclesiastical courts are: 1. pecuniary, including, subtraction of tithes, 88 non-payment of ecclesiastical fees and dues, 89 spoliation, by a clerk or incumbent taking the fruits of his benefice without right 90 remedy by decree for account, 91 dilapidations, which are a sort of waste 91 remedy, by action for damages, 91 neglect of repair of church, &c,., 92 2. matrimonial, which are : jactitation of marriage, for which the remedy is to enjoin perpetual silence on that head, 93 subtraction of conjugal rights; the court being empowered to award restitution, 94 cruelty, adultery, &c., for which a divorce a mensa et thoro may be decreed 94 marriage in fraudem legis, in which case it will be adjudged void,...... 94 refusal of proper maintenance to the wife, in which case alimony will be awarded, 94 3. testamentary causes, which are the probate of wills, the granting of admin- istrations and suing for legacies 95-98 these courts proceed according to the civil and canon laws, and enforce their de- crees by excommunication, 98-103 civil injuries cognizable in the court military or court of chivalry are injuries in matters of honor, and encroachments upon distinctions of degrees and quality,. 103 civil injuries cognizable by the courts maritime are such as are committed on the nigh sea, or out of the reach of common-law remedies, 106 their proceedings resemble those of the civil law, 108 all other injuries fall within the cognizance of the courts of common law, 109 of which the refusal or neglect of justice is remedied by writ of procedendo or mandamus, 109 and encroachment of jurisdiction is remedied by writ of prohibition, Ill CHAPTER VIII. OF WRONGS AND THEIR REMEDIES RESPECTING THE RIGHTS OF PERSONS, 115-143 all wrong may be considered merely a privation of right, and the natural remedy is the being put in possession of that right, 116 this may be effected either by a delivery of the thing detained to the owner, or by satisfaction in damages, 116 the inslruments by which remedy is obtained are suits and actions 116 which are divided into personal, real, and mixed, 117 civil injuries are to the rights of persons or to the rights of property, 118 injuries to the rights of persons are, 1, to the absolute, 2, to the relative rights, 119 the absolute rights of individuals are, 1, personal security, 2, personal liberty, 3, private property, 119 Generated for asbigham (University of Michigan) on 2013-04-29 19:01 GMT / http://hdl.handle.net/2027/nyp.33433008577110 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google X ANALYSIS OF THE CONTENTS OF THIS VOLUME.
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