Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	error_n	remove_v	writ_n	1,732	5	10.0964	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34794	The institutes of the lawes of England digested into the method of the civill or imperiall institutions : useful for all gentleman who are studious, and desire to understand the customes of this nation / written in Latine by John Cowel ... ; and translated into English, according to act of Parliament, for the benefit of all, by W.G., Esquire.; Institutiones juris Anglicani. English	Cowell, John, 1554-1611.; W. G.	1651 (1651)	Wing C6641; ESTC R9063	175,062	294

le case and Trespasse Bro. Tresp F. N. B. fo 85. and 92. Fulb. fo 69. Plow second part 12. 13. Dier fo 36. n. 38. f. 208. n. 14. fo 285. n. 40. 2 He also is liable to this action who damnifies or hurts another by accident though it be not through any fault and dece●t o Bract. l. 3. tr 1. c. 36. Flet. l. 4. c. 17. Of Trespasses and Injuries TIT. IV. WEE have declared how that under this generall notion of trespass we comprehend every breach of the Law but we shall treat here especially of that which redounds to the disparagement and contumely of the person iniured as when one strikes beates wounds or maines another a Bract. l. 3. c. 19. ● 1. Flet. l. 2. c. 1. or where without any force he asperceth the credit and reputation of another by approbrious words b Id. ib. tr 2. c. 24. n. 3. Flet. l. 4. c. 40 41. Dier fo 105. n. 15. or by dispersing libells or falsly imprisoning him c Dier fo 72. n. 6. fo 75. n. 21. fo 118 n. 77. fo 236. n. 26. or ill intreating him in any such like sort d Bract. l. 3. c 19. 1. They seem also to be guilty of this trespasse who plot and imagine uniustly against the lives or fortunes of others whom our Lawyers call Conspirators e Dier fo 85. n. 87. fo 244. n. 61. F. N. B 114 G. 115. A. L. 116. M. N. 2. Nor are we only capable of being iniured in our selves but also in the persons of those who are under our power as of wives f Bro. Tresp 43. Fulb. 79. Children g Id. 90. and Servants h Id. 80. and Bo. Enter Trespasse in Servant and Villaines i Bro. Villenage 24. Trespass 53. Villenage 24. 3. A Trespasse may be either greater or lesser according to the circumstances now the circumstances we account seven viz. the cause which moves the Actor the Person as well of him that commits as of him who sufers the iniury the Place Time Quality Quantity and event And these are materiall either as to the aggravating or diminishing the punishment k Brac l 3 tr 1 c 6 Flet l 1 c 16 and l 2 c 1 4. We call a contumely or slanderous and iniurious words spoken against any nob●● man Scandalum magnatum which deserves 〈◊〉 greater punishment then any other in regard of the Honour and Dignity of the person iniured l 3 E 1 c 33 1 R 2 c 5 and 12 R 2 c 11 unlesse it can be any way iustly excused m Dier fo 285 n 37 but it is much doubted whether slanders spoken against a Prince may be referred hither or not n Id 155 n 19 5 This Action as all other Actions of trespasse lies against him through whose fault and by whose will the Iniury was done o Brac. l. 3. tr 1 c. 6. and is given for the repairing the damages of the party iniured as himself esteemes them and the Jury who in this case are Judges shall give p Id. ib. 6. Nor will words which are too generall q Coo. l. 4. S●anhops case fo 15 n 4 or which have a dubious Interpretation r Id. ib Hext c. or false accusations before a competent s Id. ib Bucklers case n 3. Judge give colour to this Action besides that it may be defended by Justification t Flet. l. 4. c. 17 and adnulled by the dissimulation or tergiverfation of the party iniured u Brac. l. 4. tr 1. c 28 Of Obligations which arise from imputed Crimes TIT. V. A Judge with us according to some makes the suit his own by mis-judging a Brac l 5 tr 5 c 15. but at this day the party who is prejudiced and wronged by a Judgement rather removes his cause to another Court either by a Writ of Errour if the Court were a Court of Record or otherwise by a Writ of false Judgement and requires amendment and correction of the former sentance b 27 Eliz. c 8 1. Yet are there Obligations with us also from imputed crimes as in case an under-Sheriff give false information to the Kings Court or make default in Executing the commands of the Justices the Sheriff himself shall undergo the penalty and not he c Dr Stu l 2 c 24 so also if the Kings Cup-bearer do substitute others in his Office he shall be obliged for their defaults d 25 E 3 Stat 2 c 21 which holds true not only in the Exchequer e 14 E 3 Stat 1 c 9 Dier 161 n 45 and 238 n 38 but in other Courts likewise where the Officers Deputies do not performe their duties f Crom● Juris 111 as also in Escheators who substitute another whose Act they refuse to be obliged by g 12 E 4 c 9 Coo. l 4 Mittan case fo 33 2. In the like manner are Hundreds of Counties obliged to the compensation of what is lost by Roberies committed within them unlesse they apprehend the Theife b And the Neighbouring Villiages to any place whose Trenches and Hedges are illegally throwne downe by persons unknown i Id c. 45. 3. So if a Servant by negligence burn his masters House and the neighbouring House to it the Master is obliged in like manner is the Master of a common Inn if his Servant k Plowd ●o 9. or any one else within his Inn l Dyer fo 158. n. 32. fo 266. n. 9. take Monies from any Guest within the Inn and the Keeper of a Prison if any of his Servants suffer a Prisoner to escape m Dr. Stu. l. 2. c. 24. but of this you shall finde many other kindes in our learned Writers n Fulb. Para v. Contracts fo 3. and 4 Of Actions TIT. VI. AN Action and a Writ are often times used promi●cuously for a Writ wherein a party is summoned containeth a breise and short narration of the Fact which produ●●th an Action But those Lawyers of ours who professe the Explication of Writs asfirm them to be of a far larger extent then Actions a The Author of the Register F. N. B. Bract. 1. 5. tr 5. c. 17. for that they contain many extrajudiciall commands of the supream power in those businesses which concern either it's self b F. N. B. 232. 251. 147. the Common-Wealth c Id. 170. 169. 164. or private persons d Id. 79. 164. but the cheife part of them are in cases of Judgment Of which some constitute Judges e Id. 110. some require those who are already constituted to administer Judgment to those who demand f Id. 153. 240. some free men for a certain time from Judgments for some speciall cause g Id. 28. some force those who are unwilling to give security to bear Judgment h Id. 85. some permit those who are in Suit to substitute others to prosecute for them

i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hyp●thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.

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 ●●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 ●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 ●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 Admi●alty which is not within the jurisdiction of ●he Court And lastly against those who ●et too high a rate upon Victuals n 2. H. 4. c. 11. Treble damages are against those who unjustly ex●ct money for the probate of Wills and Te●●aments o 23. Ed. 3. c. 6. Or who cause Ryots p 3. 4. E. 6. c. 5. And ●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 ●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 e●●●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 Civilia●● 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 ●o us a V. n. b. 62. F. n. b. 120. G. For if I make one of my Servants ●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 ●urn his Cattel into my