absence of the Owner and is either Crand or Petite according to the thing taken Grand is when the Moveable that is stollen exceeds the value of twelve pence Petite is when it is under the value c Westm l. 2. tit Indictments s. 58. Spec. Justic l. 1. c. larc Robbery is when it is taken from the person or in the presence of the Owner d West ib. s. 60. 3. Every Theft with us is a publick crime for Petite Larceny though it be not punishable with death but with imprisonment and stripes is according to some accounted Felony e Bro. Coron though others are of contrary Judgement f Stam. pl. coron l. 1. c. 15. Wherefore we shall referre this â—ather to the Order of publique Judgements 4. Yet wee have thought fit to observe here That it is in his choise who loseth any thing by Theft whether he will prosecute the party civilly or criminally For dissembling the Theft he may suppose the Theife to have found the thing by accident and so detaine it to himselfe and so recover the thing it selfe or its value g Trover in Book of Entr. Brac. l. 5. tr 5. c. 31. n. 2. Flet. l. 1. c. 38. Dyer fol. 50. n. 5. But of criminall prosecutions wee shall speake hereafter Of things taken by force TIT. II. THe word Trespasse hath a very large latitude and comprehends every violation of the Law But our discreet Lawyers call only private crimes Trespasses and make distinctions even amongst these for those who are accompanyed with force are Trespasses more properly a F. N. B. 85. G. Fle. l. 4. c. 4. Yet they call others Trespasses likewise from the species of an unlawfull act though not violent but accidentall or to use their own words suâ—… casu b F. N. B. fo 92. E. Terms v. Action sur le case whence the forme of Action in the first case hath alwayes these words vi armis and in the second contra paâ—… But the Plaintiffe may if hee please dissemble the force as where he brings his Action in the Sheriffs Court who hath no Cognisance de vi armis And though he feigne a lesser Trespasse when really it was greater yet he shall recover damages and this seems the reason why our Writers do so often confound and treat promiscuously of these trespasses which are of a different nature c N. boo Entries tresp 85. Trespas sur le case 92. Now we have thought it congruous enough to refer violent Trespasse to the title of things taken by force and the other to the two following Titles For since the Roman Law makes the subject of these Trespasses which our Law of England divides only into two heads if threefold lest it not seem strange that I refer some Cases which beside the force affixe a contumely also upon the person injured to a third Title 1. Now the Action for Goods taken by force or de vi aâ—mâ—s lies as well for things taken by force which are inanimate as Cats Ploughs c. As things animate as Oxen Sheep and those not only tame but wilde also if they be in our Custody and Jurisdiction As Conies which are in our Warren d F. N. B. 89. K. and Pigeons in our Columbaries e Id. 86 A. So also for our Servants f Id. 88. D. I. and for Apprentices g Id. 91. I. for Wives drawn away with their Husbands Goods h Id. 89. O. for the stealing away of a Sonne or a Daughter who is an Heire and marrying them with any one without our consent i Id. 90. H. for quantity as many k Id. 87. M. for goods of Felons taken out of our Liberty l Id. 91. F. for Weifs and Strays driven or carryed out of our Fees m Id. 91. B. new â—oo Entr. Trespass Bro. Tresp Fulb. Wrongs 2. And this Action is given for the repairing the losse lustained that not only against the party that did it but against those that commanded the doing of it as in every Trespasse upon the case n Dr. Stu. l. 1. c. 9. But not against the Executor of the Trespassor o Id. l. 2. c. 10. nor his Heirs p Brac. l. 3. tr 1. c. 4. n. 4. because it is personall and penall Of the Aquilian Law TIT. III. TRespasse upon the case is that which either brings damage to the person injured or disgrace and contumely with the damage and this the Civilians comprehend under the Title of the Aquilian Law be cause Cains Aquilius was the Author being Tribune of the People of this popular Law by which these trespasses were punished though they referr this to the Title of injuries 1. Now he who damnifies the Estate of condition of another commits a Trespasse upon the case As for example where a Sheriff by a Writ directed to him takes a Debtor and afterwards lets him escape a F. n. b. fo 93. A. C. or upon his return makes false Information to the Court that the party hath no Lands or any thing else in his Bailiwick whereby he may be distrained and so becomes the occasion of the taking of his Body b Id. ib B. so also he who fixeth stakes in any water whereby anothers Ship or Vessell laden with Corne or other Merchandise is overturned c Id. 92 F moreover an Atturney or Counsellor at Law who through ignorance or deceit Iooseth his Clients cause d Bo Entr. Action Sur le case in Atturney a Barber who shaves anothers Beard ill or with a foule Raisor e Id in Barber a Physition or Chirurgeon who either ignorantly or maliciously handles a sick or wounded person f Id. in Phisi a Goaler who useth a Prisoner more hardly then he ought g F. N. B. 93. he who distraines the Cattell of anothers Plough where he may make other reasonable distress h Dier fo 312. n. 86. or he who having justly taken anothers Cattell by distresse doth not carry them to an open Pound but to a place unknown the Rectory of a Church a Fortresse or into another County that they cannot be redeemed or replevin'd by their Owners i F. N. B. in the Writ of Repleg averâ— fo 68. and the Writ Vetito nannio 73. he who interverts the Course of a River which should drive a Mill k Dier 248. n. 80. and fo 320. n. 38. a Lessee or free-holder who commits waste l Id. fo 36. n. 38. and fo 256. n. 10. But this is speciall in regard that by an Act of Parliament he forfeits the thing wasted m 6 E. 1. c. 5. but in regard the Species which might be referred hither are infinite I shall rather remit you to those who are more large as treating expresly upon this subiect then trouble you with too great a glut and multitude of examples n Boo. Entr. 10. Action Sur
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
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 deceâ—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. â— 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 nobâ—â— 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. Sâ—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 Cromâ— 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 â—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 promiâ—cuously for a Writ wherein a party is summoned containeth a breise and short narration of the Fact which produâ—â—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
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
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 hypâ—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.