non-appearance they are out-law'd z Lambert but if they be apprehended they are in some cases committed to prison without any hope of being released untill Judgment past a 1. West c. 15. 23. H. 6. c. 10. 1 2. Phil. and Mar. Lambert l. 3. c. 2. pa. 334 but if it be only for a sleight suspition of Felony or for Petite Larceny the Sheriff may take Baile for appearance and is compellable upon his refusall b V. F. n. b. fo 41 9. If the Offence be not capitall the Sheriff is commanded to cause the Defendant to appear at a certain day to answer certain Articles and if he come not the Sheriff is to make his return and certefy the Justices whether the party have sufficient Goods and Chattells or whether he have nothing For if he have his Goods are to be distrained till he come if not then Process issueth forth untill he be out-law'd c Lamb. in supplement process 10. There are other particuler waies of proceeding in causes criminall expresly appointed in particuler cases which are to be collected out of such Statutes wherein they are injoyned are prescribed d Lamb. l. 4. c. 8. p. 505. 11 There are also certain cases in which the Plaintiff upon his own Authority seiseth the Goods of the Defendant and requires him to come to make an extrajudiciall satisfaction or at least to come to Judgment As for Rent which is due either as a Service e Dr. Stu. l. 1. c. 7. V. F. n. b. fo 42. or as charged f Lit. l. 2. c. Release upon the Lands Of Perpetuall and Temporall Actions which discend to Heirs and against Heires TIT. XII OF Actions there are some which are perpetuall and some which cease at a certain time for although Bracton asfirmes a l 3. tr 1. c. 3. n. 5. almost all Actions to be temporall for want of sufficient proofe yet this hapneth not so much from the nature of the Actions as from the difficulty of proofe 1. I call those perpetuall which cease only tacitely through continuall forbearance and which have not any set time expresly allotted for their continuance Of the second sort there are many which arise both from the common Law and Statutes For these if they be not prosecuted within the time limited do cease and fall For example the Owner of a Park hath an Action against any one that hunts in his Park if he sue within a year and a day but if he let that time passe the King only may prosecute the Action b b I Westm c. 20. 2. But there are some which are so perpetuall that no process of time can extinguish them As those which by the Law of Nations are inherent in the Crown by reason of the Kings Priviledg and Prerogative As of things which have no Owners Also of Things Liberties and Dignities which appertain to the Kings Crown and in which cases no time occurs against him if he require them Where he hath no need of proofe but may recover without proofe unlesse the party impleaded may have a Warrant i. e. a speciall liberty granted by the King because he makes no defence from prescription c Bract. l. 3. tr 1. c. 3. n. 5. 3. There are also some so purely temporall that when the person dieth they neither discend to his Heires or Executors nor do they lye against Heires or Executors As those which are penall for a Penalty ought not to be extended to any other then the Authors nor to proceed further then the crime extends it self d Id. c. 2. n. 5. l. 4. tr 1 c. 20. n. 11. Dr. Stu. l. 2. c. 10. 4. Nor can Heires or Executors sue or be impleaded from Covenants in writing unlesse there be particuler mention made of them in the Instruments of Covenants Now what Actions are temporall from the Statutes of the Common-Wealth we have shewn before e Lit. uses Prescriptions Of Pleas and Exceptions TIT. XIII HItherto we have spoken of Actions it remaines that we speak something of Pleas for Pleas are in the place of Actions and in respect of Actions are tearmed Pleas or exceptions in regard that one impugns the other and as those who so are armed with Actions are prepared as it were with Swords so the Defendants on the other side are guarded with Pleas as with sheilds and bucklers a Brac. l. 5. tr 5. c. 17. Fleta l. 1. c. 32. 1. Now an Exception or Plea is as it were the cutting asunder of an Action by which an Action is destroyed and defeated b Id. ib. c. 1. Fl. l. 6. c. 36. 2. An Action is taken away by the Plea of Per metum dolum as if one pleads such an Obligation to have been extorted from him Per metum dolum c Id. l. 3. tr 1. c. 2. n. 13. Brit. c. 28. fo 66. so also by reason of not counting or telling Money As if a man promise Money to another from whom he expects to have the same in a small time counted to him he may have this Plea against him afterwards when he shall demand it yet it seems that this Plea wil not prejudice an obligation in writing d Brac. l 3. tr 1. c. 2 n. 9. unlesse the Defendant can also shew an Acquittance in writing e New tearmes Acquittance also by Contract as if one first covenant that he may demand and then that he may not demand f Brac. ib. or if one doth make satisfaction and recompenceth any way a trespass committed by him and so takes away the cause of Action g New tearmes Record so also by an oath according to our ancient writers viz. When an Oath shall be brought or related and afterwards â—worn h Brac. ib. and lastly by pleading a former â—udgment as if the Ancestor of the Plaintiff â—r any of his Heires lost the thing in Action â—y a Judgment in case of property as by a Grand Assise or by Battaile or by verdict of 〈◊〉 Jury upon whom they had put themselves i Id. l. 5. tr 5. c. 28. n. 7. 3. Of Pleas some are dilatory and some Peremptory k Brit. c. 29. Termes v. Barr Flet. l. 2 c. 54. and l. 6. c. 36. and of those which are dilaâ—ory some are Peremptory as to the Jurisdistion and dilatory as to the Action and not peremptory And in like manner some are peremptory as to the Writ and dilatory as to the Action l Termes v. Addition Flet. l. 4. c. 10. Sect. 1 2. and l. 6. c. 36. some Pleas also are generall as to all Actions and some speciall which are allowed only to particuler Actions For â—ll Actions have their proper Pleas according to the form of the Actions m Brac. l. 5. tr 5. c. 1. in the beginning 4. And there is a kinde of Plea which we â—all a waging of Law and
bring a Personall Action which concerned neither Title of Lands free Tenement Inheritance or Battery in any of the Courts at Westminster in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings that the Costs of such Suit should not be assigned greater then the principall value And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts or to imprison their bodies or distrain their Goods that from thenceforth they should not dare to attempt the like and he that made Default in this or caused another to do so should be committed to Prison without Bail or Mainprise untill he had besides Damages and Costs of Suit paid ten pounds to the party iniured and twenty pounds to the Exchequer f 43. Eliz. c. 6 4. Nor shall a man escape unpunished for moving or beginning every Suit rashly for in some Cases if the Plaintiff upon the Defendants appearance desist he shall pay Costs g 23 H. 8. c. 15. as Informers upon penall Statutes if after the Suit begun they delay discontinue or be non-suit in the same or have the Triall or matter passe against them by Verdict or Judgement of Law they shall pay unto the Defendant his Dammages and Costs which shall be assigned him by the Court. h 18. Eliz. c. 5. 5. So also they who indict or impeach any one under the pretence of any crime whereby their lives credits or Estates are in Jeopardy are liable to an Action of conspiracy i 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction k F. n. b f. 115. â— and in some Cases they shall pay treble Damages l 8 H. 6. c. 10. 6. And I have heard from some practisers that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench Common Pleas or the Chancery according to the Statute m 11. H. 7. c. 12. and betray rather a Spirit of Contention in the end of the Suit then a iust cause that such person shall have corporall punishment n 23 H. 8. c. 15. 7. But our Ancestors were wont to deterr men from their light and rash Suits by an Oath for it was prohibited every one to bring any Action of Battery before the Kings Justices unlesse it were for wounds or maims without they first made Oath that his Plaint was true or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least o 6 E. 1. c. 8. 8. There are many Statutes made by the no lesse prudence then equity of former Parliaments p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5 6. Plow 83. 522 523. for the speedy deciding of Suits which that they might be preferred before private ends and profit were to be wished by all good men in regard rhey do principally recommend the truth of causes to the Justistices reiecting all malitious calumnies of those who are subtle and litigious and amongst these that is worthy to be numbred by which the crafts and knavery of under-Sheriffs and their Officers and Bailiffes are restrained q 27 Eliz. c. 12 Of the Office and Duty of a Judge TIT. XVII OUr Kings were wont formertly at their Inauguration or Coronation to take an Oath to this Effect viz. that they would keep inviolate all the Rights and Liberties of Holy Church which were granted unto her by the Christian Kings of England That they would keep without impairing or diminution all and singular the Land and Dignities appertaining to the Crown and indeavour with all their power the restitution of such as were impaired or lost if any were that they would cherish the quiet and Peace of the Church Clergy and people that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people and abrogate all such Customes and Lawes which were ill and naught And lastly that they would to the utmost of their power assure Peace to the People of their Kingdome and procure it from others a Brac. l. 3. tr 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic l. 1. c. 1. Flet. l. 1. c. 7. 1. The Oath of the Justices of the Superiour Courts and of the Barons of the Eychequer are to this effect viz. that they will well and truly serve the King and his People and not consent to any thing which may tend to their preiudice or Exheredation that they will not take Fee nor Robe of any man but the King that they will not take any gift of any one whose cause is depending before them except meat and drink and that of a small value nor any thing for any cause after it is tryed b Brac. ib. c. 8 n. 2 3. n. 9 10. that they will not give counsell to any one in any case which concerns the King under the pain of being at the Kings Will as to Body and Goods that they will not be deterred by the Kings Letters from doing and administring Iustice to any one b Brac. ib. c. 8 n. 2 3. n. 9 10. 2. This we have even from the very beginning c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present that where any one is sued in case of property of a Fee Simple for Lands or Tenements it is at his choice whether he will be tried by his countrey or by Battell if he prefers to be tried by his countrey the businesse is determined by a Grand Assise but if by Battell then a day is appointed d Glan l. 2. c. 6. 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions according to the Law of single Duell between whom it is decided by the event e Dierf 301. n. 40. 41. 42. 3. The ancient custome of the Nation requires also that all Trialls of private Actions except a few as to matter of Fact f Plowd 92. 114. should be determined by a Iury of twelve free and lawfull men of the same vicinage who are neither allyed to either Party g Dr. Stu. l. 1. c. 7. or hindred by any iust exception h Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge 4. Those who are indicted for any capitall crime or Felony before a Iudge unlesse any question arise touching matter of Law are not allowed Councell Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence lest an ignorant Innocency endanger his life i Fortesc c. 27. Dr.
of Kindred But as for the other they do not transfer it upon the Children of the Patrons but upon the Executors rather a Lit. l. 1. c. 5 for they reckon the custody of Wards among Chattells reall b N. Ter. ver Chattels Flet. l. 1. c. 11. and therefore if the Patron or Lord of the Fee do not demise them by his last will they are transmitted by the Common Law to the Executors of his last Will. Of the Attilian Tutorship which is appointed by the Lex Julia Titia TIT. XX. WEE have sometimes Tutores Dativi or deputed Guardians amongst us For in case the Mother being dead the Father dy intestate and leaves Children under age who have no Fee to succeed unto it often happens that the Ecclesiasticall Judge commit the Guard of them to such as shall have a care of their Persons and Patrimony untill they come to fourteen years of age And this is often attested and confirmed by an Instrument authentickly sealed But our Law doth not compell any one to such an Office nay rather the Judges stir up and make choise of those whom affinity and consanguinity oblige to this work of love and Charity a Swinb part 3. Sect. 9. 1. And probably that Guardian may not improperly be stiled Dativus Tutor which Bracton mentioneth b l. 2. c. 11. n. 1 Brit. c. 34 40 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian 2. The supream power may by Letters Patents constitute to an Infant an universall Guardian to answer appear for him in all Actions begun and to be begun and that before any Judg or Judges whatsoever Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe and the same letters at the instance of the Infant may give power to the same Guardians joyntly and severally to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him c F. B. fol. 27. b. 3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants d Kitch in preceden pa. 347. Of the Authority of Tutors and Guardians TIT. XXI AN Infant under the age of twenty one years cannot make any contract in his own name except for those things which apâ—eâ—tain to his necessary Food Rayment and Education a Brook tit Inf. 51. without the Authority and consent of him under whose power and custody he is b New book of Entrys tit .. Bro. non fuit comâ—os mentis Bract. l. 5. trac 2. c. 11. n. 1. nor can he commence his Suit against his Guardian c Bract. l. 5. tract 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his condition but he cannot preiudice himself d Bract. l. 2. c. 5. n. 8. 1. There is something more particular in those who hold by Knights Service For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also and so that they have the full disposing of Advowsons in case of Vacancies and in granting giving or selling their Wards And in case of female Heires of marrying them or selling their Marriages and generally of disposing all things whatsoever for the profit of the Heir e Of late for their owne proper profit Brook Gard. 2. Fitz. Accompt 36. as if they were to dispose of their own and better if possible They may sell their custody of the Lands and the marriages of the Heires if unmarried but they cannot alien any thing of the Inheritance or sell the Remainder Notwithstanding as for the heiâ— which are in custody they are to treat then honorably and to discharge the dutyes belonging to the Inheritance according to the quantity of the Inheritance and for the raâ—â— according to the time of the Wardship They may manage the affraies of their Heires recover their right in those things wherein the Heir as an Infant may plead or move or prosecute a Suit in their behalf namely of the rights of possession of proper Seisin or of the Seisin of an Ancestor But in aâ— Action of right in case of property they can neither act nor answer for them except of that of which the Infant was infeoffed during his Minority f Bract. l. 2. c. 37 n. 3. Brit. c. 34. fol. 90. 2. Guardians ought to sustain and keep in repaire the Houses of their Wards as also their Parks Warrens Fishings Mills and other Appurtenances least by neglect they be impaired or ruined by which wast may be found They are also bound to redeliver the Lands in due time free at least as they received them and that Gratis quitted both of releife and Fine in case they be accorded and agreed concerning Marriage g Flet. l. 1. c. 12. Mag. Cha. c. 4. West 1. c. 47. 6 Ed. 1. c. 5. West 2. c. 35. 3. The same Authority also have Guardians in Socage to contract to manage Suits in Law and to do all other things which are behoovefull either for the conservation or augmentation of the Estate of their Pupill But these are liable to render an account when their Wards shall come to age h F. B. fol. 118. b. 4 A Guardian may make Oath for his Word i Flet. l. 6. c. 10. 5. In some Cases our Law doth so highly â—avour Infants that it will not suffer them to â—un the hazard of Judgement although with â—he consent of their Guardians but stay proâ—eeding untill they come of age For in case of right or property of their possessions they can neither sue nor be sued except for such which themselves have gaind k Glan l. 7. c. 9. Bract. l. 5. tract 5. c. 21. n. 2. yet formerly there were bound in case of a Fine acknowledged in Court in case of a proper inâ—ury or Dower or in Case of what themselves had recovered l Dyer fol. 104. f. 137 but at this day they are not bound in case of Fine m Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21. By what means Wardships expire TIT. XXII ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age a Lit. l. 2. c. 4 but those Tenants if male not till one and twenty if female not till fourteen b Id. ibid. or in some cases not till sixteen years of age c V. sup tit 15. Sect. 4. and although a Woman being full
Statute The Example of the former is that which vulgarly we call a penall Obligation c. and of the later that which we term a Statute Merchant or whatever d West Symb. l. 1. Sect 156 c else takes its Originall from any Statute of this Common-wealth e 1 E 1 Stat 1 38 E 3 c 4 New book of Ent Action sur â—e Statute Flet â— 6 c 64 2. An Obligation from a precedent cause that is either from a Contract or something of nature or from a misdemeanour or something of that nature There are former Species of obligations by Contract by a thing done by words by writing by consent How an obilgation is contracted by a thing done TIT. XV. AN Obligation is contracted by a thing done as by mutuall giving which consists in weight number and measure in weight as in things which are weighed as Brasse Silver Gold In number as in Money numbred In measure as in Wine Oyl Corn now these things which being weighed numbred or measured are given to this end that the receiver hath immediately a propriety in them make a mutuall Contract that being properly mutuall which Ex meo becomes Tuum and when things of another nature are rendred to the Creditor and not of the same a Glan l 10 c 3 Bra l 3. tr 1 c 2 New book En Debt in Approm 1 2 3 Flet l 2 36 Iâ— a man by Error payes money to another to whom it is not due he shall recover it again by his Action upon the Case and he who took what was not due is obliged b In tit this Title Sect 1 2. He to whom any thing is given for him to make use of is obliged in the thing lent but there is a great difference between a thing mutuall given and a thing lent for he that receives a thing lent is bound to make restitution in Specie or to the value if accidentally it happen to be lost or consumed by fire ruine shipwrack Theives 〈◊〉 the incursions of enemies or lost any other way Nor is it sufficient that he keep them with the same care and diligence as his own if any other person could possibly have preserved it with more safety but no man is obliged against a greater force or casuall acâ—â—dent unlesse they happen by his own negâ—â—gence as if one take a thing lent home with him himself being to go travell and thâ—â— chanceth to be lost by the Incursion of enemies robbers or by Shipwrack there is nâ— doubt but in this Case he is bound to restitution c Brac. ib. Brit. c. 28. Glan l 10. c. 3. F. n. b. 121. B. Dr. Stn. l. 2 c. 138. Flet. l. 2. c. 56. 3. Now a thing that is lent is given 〈◊〉 commodum and is properly called Rescoâ—modata there being no reward given for its use by way of hire and whatsoever is lent ought to be lent gratis for when any reward inteâ—veneth it is rather a locution or putting to hire then a lending d Brac. ib. Glan 30. Flet. c. 13. ib. 4. He also with whom a man intrusts any thing is obliged bound to restore it as also if he have committed any fraud or deceit in e Brac. ib. Terms v. Garnishment Dr. Stud. l. 2. 24. and 38. D. or Ent. Action sur le Case Garder Hostler and Gager deliverance V. n. b. 66 63. relation to it but he is not obliged under the notion of a fault as for carelesnesse and negligence for that whosoever commits any thing to a negligent friend it is to be imputed to his own folly but this Law seems now changed unlesse he that received the thing in trust promiseth expressely to keep it as his own f Coo. l. 4. Southcots Case 5. A Creditor who receives a Pledge o Pawn is also obliged and bound to restore it and of such things are given for the conveniency of both viz. by the Debtor for to procure the money to be lent him and to the Creditor for his security it is sufficient to keep it with a due care which if he shall perform and accidentally loose the thing before the debtor tender the money he is secured nor shall he be hindered from recovering his Debt g Brac. ib. Glan ib. F. n. b. 86 C. boo Ent. Action sur le Case Gage 1. and Termes v. Mortgage Flet. l. 2. c. 56. now we call that a due care and diligence which a man hath toward his own Goods h Coo l. 4. Southcots Case Of obligations by words TIT. XVI A Verbal Obligation is contracted or made by Covenant now a Covenant is a certain conception of words which consist of Question and answer as if it be said dost thou promise I do promise Wilt thou give I will give Wilt thou do it I will do it Wilt thou ingage I will ingage a Brac. ib. n. 2. Brit. c. 28. Flet. l. 2. c. 56. 1. Every Covenant is either pure or limited to a day or conditionall Pure as where it is said dost thou promise to pay so much money without adding any day or condition in which case the money may be demanded immediately but if there be a day added when it ought to be paid it is immediately due but cannot be demanded before the day nor upon the day because the whole day is left to the discretion of the Debtor b nor is it certain that it will not be paid that day before the day be past nor can any one in like manner demand if one promised to pay this yeare or this moneth before every part of the year or moneth be past c Brac. and Brit. ib. 2. A Covenant is made sometimes conditionally as if it were said if A. be made Alderman dost thou promise to pay so much where observe that in this which is conditionall there is only hope and expectation and conditions which relate either to time past or present do either totally adnull the Obligation or else not at all differ it as if a promise be made to pay so much if A. were living or be now living for if he neither were living nor yet is living the promise is void because those things which in nature are now certain do not vitiate an Obligation by their being incertain as to us d Brac. ib. n. 3. Brit. ib. Flet. ib. Dr. and Stu. l. 2. c. 35. Things to be done may also be resolved into promises as a promise to do a thing or not to do a thing in which Case it is best to add a penalty because of incertainty or least the Actor be forced to prove the value now a penalty is thus added if this be not done then thou promisest to pay so much Nomine peâ—e e Brac. ib. n. 4. Flet. ib. 4. But it is to be observed that this verball Obligation is called a simple contract f Dr. Stu. l. 2 c. 24. by out Authors who weigh
19. 193. and those also which are of the same nature q Id. 157. Plow 357 358 11. We may sue for a possession or for that which is of the same nature whether they be lost by force or detained being committed voluntarily to another against Right in which the former Cases we may be relieved by â—â—its which we call Assises r F. n. b. 177. 179 181 183. 134. 88. 190. 191. and those which are of the like nature s 13. Ed. 1. c. 25. Brac. l. 4. 12. And for the recovery of a possession which being voluntarily delivered to another is uniustly detained There are writs of Entry of divers kinds and others like them t F. n. b. 201. 205. 206. Brac. l. 4. tr 7. 13. Preiudiciall Actions also are reckoned â—mong reall now those are termed preiudiciall which arise from incident and emergent questions in which it is inquired whether one be born free or not if not then whether he be actually free or a Servant a Son or not a Son and if a Son then whether legitimate or Bastard c u Brac. l. 3. tr 1. c. 4. n. 9. Brit. c. 108. and they are called preiudiciall because they are iudged and determined before the principall Action w Id. ib. 14. Actions which are mixt being as well against the thing as the person and so called because they have a mixt cause relating to both as the dividing an Inheritance between Co-heirs the setting of Bounds amongst Neighbours for if we respect the persons they are both complainants and respondents although he is not properly said to be complainant who cites the other to come to Judgement The Writs which are proper in these Cases are these de Partitione x F n b. 61. de rationabilibus divisis y Id. 121. de perambulatione facienda z Id. 133. de Curia claudenda a Id. 127. de reparatione facienda b Id. ib. 15. Furthermore there are Actions which are given either solely as penall c Brac. l. 3. tr 1. c. 4. n. 5. or as beneficiall to both which some call Civill criminall or mixt d Glan l. 1. c. 1. Brac. l. 5. tr 5. c. 31. Littl. c. Releases 16. Those which relate meerly to a particular thing are all those which grow from Contracts or of the same nature and claim nothing for wrongfull detaining or nomine penae as a punishment of the Crime e F. n. b. fo 1. and those are penall which are ordained for the preventing of misdemeanours of which sort are those popular Actions which are given to Informers for the benefit of the Exchequer and themselves against the breakers of Statutes f Id. 171. and those relate both to the thing and person which regard the thing as the principall cause and the person as to personall performance g Brac. l. 3. tr 1. c. 4. n. 5. of this sort is a writ of Assise which claims the thing as to restitution and yet is against the disseisor as to Dammages for the iniury h Id. l. 4. tr 1 c. 6. n. 3. 20 H. 3. c. 4. and a writ of waste which requires the thing wasted and trebble dammages i 6 Ed. 1. c. 5. 17. There is also a third division of Actions for that some give barely the dammages k Brac. l. 3. tr 1. c. 4. n. 6. sustained some double some trebble and some ten-fold k Brac. l. 3. tr 1. c. 4. n 6. Those which give barely â—he Damages sustained are all Actions of Trespasse l New book of Entries Trespasse Those which give double damages as against such as make an assault against those who are called to the high Court of Parliament m 11. H. 6. c. 11. and against him who prosecutes any Action in the Court of Admiâ—alty which is not within the jurisdiction of â—he Court And lastly against those who â—et too high a rate upon Victuals n 2. H. 4. c. 11. Treble damages are against those who unjustly exâ—ct money for the probate of Wills and Teâ—â—aments o 23. Ed. 3. c. 6. Or who cause Ryots p 3. 4. E. 6. c. 5. And â—en-fold the damages are recoverable against 〈◊〉 Juror who receives a Bribe for bringing in 〈◊〉 Verdict q Ib. 1. Mar. Parl a. 1. c. 2. 18. Besides wee have not unaptly said some Actions to be bona fidei and some of â—rict Right for though no such distinction 〈◊〉 expresly found amongst our Lawyers yet 〈◊〉 finde them frequent in practice For the Damages which we receive from Contracts or Trespasses are left and remitted to the eâ—â—â—ty of the Jurors what and how much it 〈◊〉 and Judgment is given according to their estimation Where on the contrary in Actions which have reference principally to the thing unles the complainant prove the thing 〈◊〉 Action to be due and to be his the Action falls because neither the Jurors nor the 〈◊〉 have any other power in these then to condemn the Defendant as to the thing in Action or to free him Whence it happens that one and the same thing often occasions a double Action viz. a principall Action for the thing which is of strict Right and another which is accessory for the recovery of Damages which is bona fidei 19. In the distinction of arbitrary Actions from Actions bona fidei The Civiliaâ—â— doe not very punctually agree Nor do wee find any other of them in use amongst us in England more then these we have observed Only this we may adde That the Chancellour of England or the Keeper of the Great Seale whose Authority is almost the same to whose Conscience and Equity every one who is without remedy in the Law may appeale from other Courts before Judgement given is not bound or prescribed by any Lawes but that hee may decide and compose all causes which are for this purpose brought before him according to the Judgement and Conscience of a Good man and imprison him who is contumacious and refractory to his Decrees and detain him there untill he becomes conformable r Plowd 532. 20. We have no use with us of that which was called Actio de Peculio in regard we are not obliged by their Contracts who are under our power unlesse so farre as they be in order to our Commands s Dr. Stu. l. 2. c. 42. What is said to be a Contract made by him who is under the power of another TIT. VII THose Contracts which are made by our Servants by our command are binding â—o us a V. n. b. 62. F. n. b. 120. G. For if I make one of my Servants â—y Bailiffe and give him a power of taking Oren or other Cattel to graze in my pasture 〈◊〉 a certain price I cannot have an Action 〈◊〉 Trespasse or de conculcatione herbarum against him who shall upon such a Contract â—urn his Cattel into my
which is as to Law peculiar only to us English for the Defendant is admitted for the defeating of an Action of Debt which the Plaintiffe proves only witnesse without any specialty to wage his Law i. e. to make his defence against the Suit brought by the Plaintiff by two compurâ—ators for every witnesse that is produced unto the full number of twelve now in this case â—e himself first makes oath that he doth not â—we the summ demanded nor any part or parcell of it and the Compurgators swear out of their own credulity that they beleeve the Defendant to have made a true Oath n Flet. 1. 2. 63. but against an Instrument or Specialty as we call it a Wager in Law licth not o Dicr s 23. 143. 5. Genciall pleas are those which lie generally against all Actions As the Plea against Jurisdiction against the Person of the Plaintiff against the VVrit that Plea which ariseth from time according to the divers sorts of Actions and that which comes by reason of the place through the Errour of bringing the Action there now all these are dilatory as to the Action and as it were beside the Action and therefore they do not defeat the Action although p Brac. l. 5. tr 5. c. I. â—pec Just l. 3. c. Exceptions dilaâ—ory Fletal 2. c 61. l. 4. C. 10. they do defer it and abate it for a while 6. Now one may use many Dilatory Pleas and severall provided they come in their proper places but if there happen to occur more then one which are peremptory as to the Actions the Defendant ought to propose and prove one as contingent to the Actions as where a man hath many Actions one ought to betryed because if the Defendant should fail in proof of two Pleas he may have recourse to the rest and prove them as if he were to defend himself with many weapons which ought not to be if the proof of one be sufficient q Brac. ib. c. I. n. 7. Of Replications TIT. XIV AGalnst a Plea or Exception which seemeth plausible and full at the first sight The Plaintiff may releive himself by a Replication as if a man brings his Acton the Defendant may plead a Covenant intervening to hinder the demand or Action against which the Plaintiff may in his Replication produce a Covenant inserted after that which doth permit and enable him to sue and demand a Brac. l. 5. tr 5. c. I. n. 4. Fle. l. 6. â— 36. 1. After a Replication follows a Duplication after a Duplication a Triplication after a Triplication a Quadruplication as the Case requires and so ad infinitum And lo it may fall out that an Action which prima fasie seems good may be defeated by a Plea and in the same manner a Plea which seems good by a Replication and so in the rest 2. Out Lawyers call a Duplication as well in the Chancerv as in other Courts a Rejoinder and a Triplication a Sur-reioinder b Wests Proceedings in Chancery Sect. 56 57. Of Prohibitions TIT. XV. INterdicta are wholly out of use amongst the Civilians so that at this day they make no disterence between them and Actions The Roman Pretors used them cheifly to reprcsse tumultuary and sudden violence especially in the Cases of possessions but in these Cases our Ancestors were wont to delegate and depute Justices of Oyer and Terminer and Justices of Assises and those not to determine all causes at set times as now but upon every particular emergency so soon as it first arose a Brac. l. 3. c. 7 n. 2. but as things now are these kinds of businesses are dispatched by Actions or decrees which we call judiciall Writs or at least by the help and assistance of the Sheriff and Justices of the Peace in every County b 13 R. 2. Stat. 1. c. 7. 15 R. 2. c. 2. 8 H. 6. c. 9. 13 H. 4. c. 7. 19 H. 7. c. 13. 2 H. 5. c. 8. Lamb. l. 2. c. 4. and l. 3. c. 1. but whosoever desireth to read what our Sages of the Law have written concerning or recovering of a possession let them read Bracton c l. 2. c. 17. l. 4. c. 1. Briton d c. 40. and Fleta e l. 3. c. 15. l. 4. c. 1. in their proper places Of the penalty of those who are rashly Litigious TIT. XVI AMongst the Ancient Writers of our Law there may be many marks found of the severity wherewith our Ancestors punished those whom the Issues and ends of their suits proved and manifested to be litigious without cause which although it seems to be at the present more remisse yet is it not wholly laid aside for if any be found raising suits against others maliciously they are adiudged to bring a scandall upon the Court and are oftentimes for their offence committed to Prison a Bro. Ent. tit Attomey F. n. b 114. 1. But this is for the most part the custome at this time that the Plaintiff if he be cast is adiudged to pay unto the Defendant the Costs of his Suit b 23 H. 8. c. 15 24. H. 8. c. 8. and the Defendant if overthrown payes to the Plaintiff the thing in Action with dammages and costs of Suit And although it be the constant Custome to pronounce the party cast to be in misericordia Regis c F. n. b. f. 77. K. yet those words as to the Plaintiff are of no use and as to the Defendant onely where he betrayes too much contumacy in the maintenance of such a cause which is manifestly uniust but if he appear malitious then is he to be taken and made to pay his Fine to the King for his contumacy yet is this Fine for the most part very easie when he is taken d Dier s 67. n. 19. 2. The License and Liberty appears to be very great which our Ancestors permitted to those who were contentious that they might meerly through envy and the pleasure they took in being vexatious take men upon Writs and force them to put in Bail in the Kings Bench or Marâ—â—alls Court and oftentimes to appear and yet be unpunished though upon their appearance they objected nothing against them But this is prudently remedied by an Act of Parliament which renders all those who procure any one to be arrested and upon their appearance refuse to prosecute liable to pay them their Costs and Damages And for that the impudence of some had gone so far as to feign sometimes such persons as were not in being in whose names they caused others to be arrested that Statute condemneth such Delinquents to six moneths imprisonment without Bail or Mainprise e 8 Eliz. c. 1. 17 R. 2. c. 6. 3. But for the suppressing the Power of such litigâ—ous men whom the bare hopes of recovering their Costs of Suit will stir up to sue even for a trifle it is decreed by Act of Parliament that whosoever should