SONAL. a том. 7. The force and effect of ines (when levied by 4. Chattels real are such quantities of interest fach as have themselves any interest in the estate) in things immoveable, as are sort of the duration are, to assure the lands in question to the cognizee, of freeholds ; being limited to a time certain, be. by barring the respective rights of parties, privies, yond which they cannot sublist. See Sect. VII, and strangers. 5. Chattels personal are things moveable ; which 8. A common recovery is by an a&ual or fi&i- may be transferred from place to place, together tious fuit or action for land, brought against the with the person of the owner. tenant of the freehold ; who thereupon vouches another, who undertakes to warrant the tenant's SECT. XXV. Of PROPERTY in THINGS PERtitle : but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who in return obtains judgment 1. PROPERTY, in chattels personal, is either in againft the vouchee to recover lands of equal value poffeffion, or in action. in recompense. 2. Property in poffeffion, where a man has the 9. The force and effect of a recovery are, to al actual enjoyment of a thing, is, 1. Absolute. 2. fare lands to the recoverer, by barring estates tail, Qualified. and all remainders and reversions expectant there exclusive right in the thing, that it cannot cease to 3. Absolute property is where a man has such as on; provided the tenant in tail either fuffers, or be his, without his own act or default. is youched in such recovery. io. The use of a fine or recovery may be directed 4. Qualified property is such as is not, in its by, 1. Deeds to lead such ukes; which are made and at other times not fubfift . nature, permanent; but may sometimes lubolt, previous to the levying or suffering them. 2. Deeds to declare the uses; which are made subfequent. $. This may arise, 1. Where the fubject is inca pable of absolute ownership. 2. From the peculiar SECT. XXII. Of ALIENATION by SPECIAL CUs. circumstances of the owners. 6. Property in action is where a man hath not 1. ASSURANCES by special custom are confined the actual occupation of the thing ; but only a to the transfer of copyhold estates. right to it, arising upon fome contract, and ré. 2. This is effected by, 1. Surrender by the tenant coverable by an action at law. into the hands of the lord to the use of another, ac 7. The property of chattels personal is liable to cording to the custom of the manor. :2. Present tenancy; and to tenancy in common. remainders expectant on estates for life ; to joint. ment, by the tenants or homage, of such surrender. 3. Admittance of the surrenderee by the lord, ac- SECT. XXVI. Of Title to THINGS PERSONAL cording to the uses expressed in such surrender. by OCCUPANCY. 3. Admittance may also be had upon original grants to the tenant from the lord, and upon de. 1. The title to things personal may be acquired scents to the heir from the anceltor. or lost by, 1. Occupancy. 2. Prerogative. 3. For. feiture.' 4. Cuftom. Succellion. 6. Marriage. Sect. XXIII. Of ALIENATION by DEVISE. 7. Judgment. 8. Gift, or grant. 9. Contract, 1. Devise is a difpofition of lands and tene 10. Bankruptcy. 11. Teftament. 12. Adminiftra tion. mente, contained in the last will and teftament of the owner. 2. Occupancy still gives the first occupant a 2. This is not permitted by the common law, as right to those few things which have no legal own. it food fince the conqueft; but was introduced by thip. Such as, 1. Goods of alien enemies. er, or which are incapable of permanent owner. the statute law, under Henry VIII. fince made Things found. 3. The benefit of the elements, more universal by the statute of tenures under Charles II. with the introduction of additional fo- Things gained by accellion; or, 7. By confufort. 4. Animals ferz naturæ. S. Emblements. 6. lemnities by the statue of frauds and perjuries in the same reign. 8. Literary property. 3. The contruction of all common assurances Sect. XXVII. Of TITLE by PREROGATITE, and fhould be, 1. Agreeable to the intention. BOR PRITURE. the words of the parties. 3. Made upon the entire deed. 4. Bearing strongest against the con- 3. By prerogative is vested in the crown, or its tractor. s. Conformable to law. 6. Reje&ing grantees, the property of the royal revenue (lee the letter of two totally repugnant clauses in a chap. I. sect. 8); and also the property of ait deed, and the former in a will. 7. Moft favourable game in the kingdom, with the right of pursuing in case of a devise. and taking it. Sect. XXIV. Of THINGS PERSONAL. 2.Byforfeiture, for crimes andmisdemeanours,the right of goods and chattels may be transferred 1. THING& personal are comprehended under from one man to another, either in part or totally, the general name of chattels; which includes 3. Totalforfeituresofgoods arise from convi&ion whatever wants either the duration, or the immo of, 1. Treason, and misprision thereof. 2. Felony. bility, attending things real. 3. Excusable homicide. 4. Outlawry for treafon or 2. In these are to be considered, i. Their diftri. felony. 5. Flight. 6. Standing mute. 7. Assaults bution. 2. The property of them. 3. The title on a judge; and batteries, fitting the courts. 8. to that property: Præmunire. 9. Pretended prophecies. 10. Owl. 3. As to the distribution of chattels, they are, ing. 11. Refiding abroad of artificers, 12. Chair 2. Chattels real. 2. Chattels perforal. lenges to fight for debts at play. SSCT. S 2. To SECT. VII. Of the COGNISANCE of PRIVATE Poffeffion of that right whereof he is unjustiy deprived. WRONGS. I. ALL private wrongs, or civil injuries, are cognisable either in the courts ecclefiaftical, military, maritime, or those of common law. 2. Injuries cognisable in the ecclefiaftical courts are, 1. Pecuniary. 2. Matrimonial. 3. Teftament ary. 3. Pecuniary injuries, here cognisable, are, 1. Subtraction of tithes. For which the remedy is by fuit to compel their payment, or an equivalent; and alfo their double value. 2. Non-payment of ecclefiaftical dues. Remedy: by fuit for payment. 3. Spoliation. Remedy: by fuit for reftitution. 4. Dilapidations. Remedy: by fuit for damages. 5. Non-repair of the church, &c.; and non-payment of church rates. Remedy: by fuit to compel them. 4. Matrimonial injuries are, 1. Jactitation of marriage. Remedy: by fuit for perpetual filence. 2. Subtraction of conjugal rites. Remedy: by fuit for reftitution. 3. Inability for the marriage state. Remedy: by fuit for divorce. 4. Refufal of decent maintenance to the wife. Remedy: by fuit for alimony. 5. Teftamentary injuries are, 1. Difputing the validity of wills. Remedy: by fuit to eftablish them. 2. Obftructing of administrations. Remedy: by fuit for the granting them. 3. Subtraction of legacies. Remedy: by fuit for the pay ment. 6. The courfe of proceedings herein is much conformed to the civil and canon law: but their only compulfive procefs is that of excommunication; which is enforced by the temporal writ of fignificavit, or de excommunicato capiendo. 7. Civil injuries, cognisable in the court military, or court of chivalry, are, 1. Injuries in point of honour. Remedy: by fuit for honourable amends. 2. Encroachments in coat armour, &c. Remedy: by fuit to remove them. The proceedings are in a fummary method. 8. Civil injuries cognifable in the courts maritime, are injuries, in their nature, of common law cognifance, but arifing wholly upon the fea, and not within the precincts of any county. The proceedings are herein alfo much conformed to the civil law. 9. All other injuries are cognisable only in the courts of common law: of which in the remainder of this chapter. 10. Two of them are, however, cognisable by these and other inferior courts; viz. 1. Refufal, or neglect of juftice. Remedies: by writ of procedendo, or mandamus. 2. Encroachment of jurifdiction. Remedy: by writ of prohibition. SECT. VIII. Of WRONGS, and their REMEDIES refpecting the RIGHTS of PERSONS. 1. In treating of the cognisance of injuries by the courts of common law, may be confidered, 1. The injuries themselves, and their respective remedies. 2. The purfuit of those remedies in the feveral courts. 2. Injuries between subject and subject, cognifable by the courts of common law, are in general remedied by putting the party injured into 3. This is effected, 1. By delivery of the thing detained to the rightful owner. 2. Where that remedy is either impoffible or inadequate, by giving the party injured a fatisfaction in damages. 4. The inftruments, by which these remedies may be obtained, are fuits or actions; which are defined to be legal demand of one's right: and these are, 1. Perfonal. 2. Real. 3. Mixed. 5. Injuries (whereof some are with, others without, force) are, 1. Injuries to the rights of perfons. 2. Injuries to the rights of property. And the former are, I. Injuries to the absolute,-2. Injuries to the relative, rights of perfons. 6. The abfolute rights of individuals are, r. Per. sonal security. 2. Perfonal liberty. 3. Private property (fee Chap. I. Sec. 1.) To which the injuries must be correfpondent. 7. Injuries to personal security are, 1. Against a man's life. 2. Against his limbs. 3. Againft his body. 4. Against his health. 5. Againft his reputation.-The first must be referred to the next chapter. 8. Injuries to the limbs and body are, 1. Threats. 2. Affault. 3. Battery. 4. Wounding. 5. May. hem. Remedy: by action of trefpafs, vi et ar mis; for damages. 9. Injuries to health, by any unwholesome prac tices, are remedied by a special action of trespass, on the cafe, for damages. 10. Injuries to reputation are, 1. Slanderous and malicious werdo. Remedy: by action on the cafe; for damages. 2. Libels. Remedy: the fame. 3. Malicious profecutions. Remedy: by action of confpiracy, or on the cafe; for damages. II. The fole injury to perfonal liberty is falfe imprisonment. Remedies: 1. By writ of, ift, Mainprize; 2dly, Odio et atia; 3dly, Homine replegiando. 4thly, Habeas corpus; to remove the wrong. 2. By action of trespass; to recover damages. 12. For injuries to private property, see the next fection. 13. Injuries to relative rights affect, 1. Hufbands. 2. Parents. 3. Guardians. 4. Mafters. 14. Injuries to a husband are, 1. Abduction, or taking away his wife. Remedy: by action of trefpafs, de uxore rapta et abducta; to recover poffeffion of his wife, and damages. 2. Criminal converfation with her. Remedy: by action on the cafe; for damages. 3. Beating her. Remedy: by action on the cafe, per quod confortium amifit; for damages. 15. The only injury to a parent or guardian, is the abduction of their children or wards. Remedy: by action of trefpafs, de filiis, vel cuftodiis, and damages. raptis vel abductis; to recover poffeffion of them, 16. Injuries to a master are, 1. Retaining his fervants. Remedy: by action on the cafe; for da mages. 2. Beating them. Remedy: by action on the cafe, per quod fervitum amifit; for da mages. SECT. IX. OF INJURIES to PERSONAD PROPERTY. I. INJURIES to the rights of property are either those of perfonal or real property. 2. Perfonal 2. Perfonal property is either in poffeffion or in action. 3. Injuries to perfonal property in poffeffion are, 1. By difpoffeffion. 2. By damage, while the owner remains in poffeffion. 4. Difpoffeffion may be effected, 1. By an unlawful taking. 2. By an unlawful detaining. 5. For the unlawful taking of goods and chattels perfonal, the remedy is, 1. Actual reftitution, which (in cafe of a wrongful diftrefs) is obtained by action of replevin. 3. Satisfaction in damages: ft, in cafe of refcous, by action of refcous, poundbreach, or on the cafe; adly, in cafe of other unlawful takings, by action of trefpafs or trover. 6. For the unlawful detaining of goods lawfully taken, the remedy is alfo, 1. Actual reftitution; by action of replevin or detinue. 2. Satisfaction in damages: by action on the cafe, for trover and converfion. 7. For damage to perfonal property, while in the owner's poffeffion, the remedy is in damages; by action of trespass vi et armis, in cafe the act be immediately injurious; or by action of trespass on the cafe, to redrefs confequential damage. 8. Injuries to personal property, in action, arife by breach of contracts, 1. Exprefs, 2. Implied. 9. Breaches of exprefs contracts are, 1. By nonpayment of debts. Remedy: 1ft. Specific payment; recoverable by action of debt. 2dly, Damages for nonpayment; recoverable by action on the cafe. 2. By nonperformance of covenants. Remedy: by action of covenant, ift, to recover damages, in covenants personal; 2dly, to compel performance, in covenants real. 3. By nonper. formance of promifes, or affumpfits. Remedy: by action on the cafe; for damages. 10. Implied contracts are fuch as arife, 1. From the nature and conftitution of government. From reason and the construction of law. 2. 11. Breaches of contracts, implied in the nature of government, are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt (which, in fuch cases, is frequently a popular, frequently a qui tam, ac. tion); to compel the specific payment;-or, fometimes, by action on the cafe; for damages. 12. Breaches of contracts, implied in reafon and conftruction of law, are by the non-performance of legal prefumptive affumpfits: for which the remedy is in damages; by an action on the cafe on the implied affumpfits, 1. Oa quantum meruit. 2. Of a quantum valebat. 3. Of money expended for another. 4. Of receiving money to another's ufe. 5. Of an infimul computaffent, on an ac count ftated (the remedy on an account unftated being by action of account.) 6. Of performing one's duty, in any employment, with integrity, diligence, and skill. In fome of which cafes an action of deceit (or on the cafe, in nature of deceit) will lie. SECT. X. Of INJURIES to REAL PROPERTY; and, first, of DISPOSSESSION, or OUSTER, of the FREE HOLD. 1. INJURIES affecting real property are, 1. Oufter. 2. Trespass. 3. Nuifance. 4. Wafte. 5. Subtraction. 6. Disturbance. 2. Oufter is the amotion of poffeffion; and is, 1. From freeholds. 2. From chattels real. 3. Oufter from freeholds is effected by, 1. Abatement. 2. Intrufion. 3. Diffeifin. 4. Difcontinuance. 5. Deforcement. 4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir. 5. Intrusion is the entry of a stranger, after a particular eftate of freehold is determined, before him in remainder or reverfion. 6. Deffeifin is a wrongful putting out of him that is feifed of the freehold. 7. Discontinuance is where the tenant in tail, or the husband of a tenant in fee, makes a larger estate of the land than the law alloweth. 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the poffeffion. 9. The univerfal remedy for all these is reftitution or delivery of poffeffion; and, fometimes, damages for the detention. This is effected, 1. By mere entry, 2. By action poffeffory. 3. By writ of right. to. Mere entry, on lands, by him who hath the apparent right of poffeffion, will (if peaceable) diveft the mere poffeffion of a wrongdoer. But forcible entries are remedied by immediate reftitution, to be given by a juftice of the peace. 11. Where the wrongdoer hath not only mere poffeffion, but also an apparent right of poffeffion, this may be divefted by him who hath the actual right of poffeffion, by means of the poffeffory ac tions of writ of entry or affife. 12. A writ of entry is a real action, which difproves the title of the tenant, by fhowing the unlawful means under which he gained or continues poffeffion. And it may be brought either against the wrongdoer himself, or in the degrees called the per, the per and cui, and the post. 13. An affife is a real action, which proves the title of the demandant, by fhowing his own or his ancestor's poffeffion. And it may be brought either to remedy abatements; viz. the affise of mort d'anceftor, &c.: Or to remedy recent diffeifins; viz. the affife of novel diffeifin. 14. Where the wrongdoer hath gained the actual right of poffeffion, he who hath the right of property can only be remedied by a writ of right, or fome writ of a similar nature. As, 1. Where fuch right of poffeffion is gained by the difcontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. 2. Where gained by recovery in a poffeffory action, had againft tenants of particular eftates by their own default. Remedy: by writ of quod ei deforceat. 3. Where gained by recovery in a poffeffory action, had upon the merits. 4. Where gained by the statute of limitations. Remedy, in both cafes: by a mere writ of right, the higheft writ in the law. SECT. XI. Of DISPOSSESSION, or OUSTER, of CHATTELS REAL. 1. OUSTER from chattels real, is, 1. From estates by ftatute and elegit. 2. From an estate for years. 2. Oufter from eftates by statute or elegit, is effected by a kind of diffeifin. Remedy: reftitution, and damages; by affife of novel diffeifin. 3. Oufter from an estate for years, is effected by SECT. XV. Of SUBTRACTION. I. SUBTRACTION is when one, who owes for vices to another, withdraws or neglects to perform them. This may be, 1. Of rents and other fervices, due by tenure. 2. Of those due by cultom. 2. For fubtraction of rents and fervices, due by tenure, the remedy is, 1. By diftrefs; to compel the payment or performance. 2. By action of debt. 3. By affife. 4. By writ de confuetudinibus et fervitiis; to compel the payment. 5. By writ of ceffavit;-and, 6. By writ of right fur dif claimer;-to recover the land itself. 3. To remedy the oppreffion of the lord, the law has alfo given, r. The writ of ne injufte vexes: 2. The writ of mefne. 4. For fubtraction of fervices, due by cuftom, the remedy is, 1. By writ of fecta and molendi. num, furnum, torrale, &c. to compel the performance, and recover damages. 2. By action on the cafe; for damages only. SECT. XVI. Of DISTURBANCE. 1. DISTURBANCE is the hindering, or difquieting, the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it. 2. Difturbances are, 1. Of franchifes. 2. Of commons. 3. Of ways. 4• Of tenure. 5. 0: patronage. 3. Disturbance of franchises, is remedied by a fpecial action on the cafe; for damages. 4. Disturbance of common, is, 1. Intercommoning without right. Remedy: damages; by an action on the cafe, or of trefpafs: befides dif trefs, damage feasant: to compel fatisfaction. 2. Surcharging the common. Remedies: diftrefs, damage feafant; to compel fatisfaction: action on the cafe; for damages: or, writ of admeasurement of pafture; to apportion the common; writ de fecunda fuperoneratione; for the fuper numerary cattle, and damages. 3. Inclosure, or obftruction. Remedies: Reftitution of the common, and damages; by affife of novel diffeifin, and by writ of quod permittat: or, damages only; by action on the cafe. and a like diffeifin, or ejectment. Remedy: reftitu tion, and damages, 1. By writ of ejectione firmæ. 2 By writ of quare ejecit infra terminum. 4. A writ of ejectione firma, or action of tref. pafs in ejectment, lieth where lands, &c. are let for a term of years, and the leffee is oufted or ejected from his term; in which cafe he shall recover poffeffion of his term, and damages. 5. This is now the ufual method of trying titles to land, instead of an action real : viz. By, I. The claimant's making an actual (or fuppofed) leafe upon the land to the plaintiff. 2. The plaintiff's actual (or fuppofed) entry thereupon. 3. His actual (or supposed) oufter and ejectment by the defendant. For which injury this action is brought either against the tenant, or (more ufually) against fome cafual or fictitious ejector; in whofe ftead the tenant may be admitted defendant, on condition that the leafe, entry, and oufter, be confeffed, and that nothing else be difputed but the merits of the title claimed by the leffor of the plaintiff. 6. A writ of quare ejecit infra terminum is an action of a fimilar nature; only not brought against the wrongdoer or ejector himself, but fuch as are in poffeffion under his title. SECT. XII. Of TRESPASS. TRESPASS is an entry upon, and damage done to, another's lands, by one's felf, or one's cattle; without any lawful authority, or cause of juftification which is called a breach of his clofs. Remedy: damages; by action of trefpafs, quare claufum fregit: befides that of distress, damage feasant. But, unless the title to the land came chiefly in queftion, or the trefpafs was wilful or malicious, the plaintiff (if the damages be under 40 fhillings) fhall recover no more costs than damages. SECT. XIII. Of NUISANCE. I. NUISANCE, or annoyance, is any thing that worketh damage or inconvenience: and it is either a public and common nuifance, of which in the next chapter; or, a private nuifance, which is any thing done to the hurt or annoyance of, 1. The corporeal. 2. The incorporeal, hereditaments of another. 2. The remedies for a private nuisance (befides that of abatement) are, 1. Damages; by action on the cafe; (which alfo lies for fpecial prejudice by a public nuifance). 2. Removal thereof, and damages; by affife of nuisance. 3. Like removal, and damages; by writ of quod permittat profter nere. SECT. XIV. Of WASTE. 1. WASTE is a spoil and destruction in lands and tenements, to the injury of him who hath, r. An immediate intereft (as, by right of common) in the lands. 2. The remainder or reverfion of the inheritance. 2. The remedies, for a commoner, are reftitution, and damages; by affife of common: or, damages only; by action on the cafe. 3. The remedy, for him in remainder, or reverfion, is, 1. Preventive: by writ of eftrepement at law, or injunction out of chancery; to stay wafte. 2. Corrective: by action of wafte; to recover the place wafted, and damages. 5. Disturbance of ways, is the obstruction, 1. Of a way in grofs, by the owner of the land. 2. Of a way appendant, by a ftranger. Remedy, for both damages; by action on the cafe. 6. Disturbance of tenure, by driving away tenants, is remedied by a special action on the cafe ; for damages. 7. Difturbance of patronage, is the hindrance of a patron to prefent his clerk to a benefice; whereof ufurpation, within fix months, is now become a fpecies. 8. Disturbers may be, 1. The pfeudo-patron, by his wrongful prefentation. 2. His clerk, by demanding inftitution. 3. The ordinary, by refufing the clerk of the true patron. 9. The remedies are, 1. By aflife of darrein prefentment. 2. By writ of quare impedit;-to compel inftitution and recover damages: Confequent to which are the writs of quare incumbravit, and quare non admifit; for fubfequent damages. 3. By writ of right of advowfon: to compel inftitu tion, or establish the permanent right. SECT. SECT. XVII. Of INJURIES PROCEEDING FROM, or AFFECTING, the CROWN. 1. INJURIES to which the crown is a party are, 1. Where the crown is the aggreffor. 2. Where the crown is the fufferer. 2. The crown is the aggreffor, whenever it is in poffeffion of any property to which the subject hath a right. 3. This is remedied, 1. By petition of right; where the right is grounded on facts difclofed in the petition itself. 2. By monftrans de droit; where the claim is grounded on facts, already appearing on record. The effect of both which is to remove the hands (or poffeffion) of the king. 4. Where the crown is the fufferer, the king's remedies are, 1. By fuch common law actions as are confiftent with the royal dignity. 2. By inqueft of office, to recover poffeffion: which, when found, gives the king his right by folemn matter of record; but may afterwards be traverfed by the fubject. 3. By writ of fcire facias, to repeal the king's patent or grant. 4. By information of intrufion, to give damages for any trefpafs on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal ftatute; or fometimes (in the latter cafe) by information in rem: all filed in the exchequer, ex officio, by the king's attorney general. 5. By writ of quo warranto, or information in the nature of fuch writ; to feife into the king's hands any franchise ufurped by the subject, or to ouft an ufurper from any public office. 6. By writ of mandamus, unless cause; to admit or restore any perfon entitled to a franchise or office: to which if a falfe cause be returned, the remedy is by traverfe, or by action on the case for damages; and, in confequence, a peremptory mandamus, or writ of reftitution. SECT. XVIII. Of the PURSUIT of REMEDIES by 2. Of an action in the court of common pleas (originally the proper court for profecuting civil fuits) the orderly parts are, 1. The original writ. 2. The process. 3. The pleadings. 4. The iffue, or demurrer. 5. The trial. 6. The judgment. 7. The proceedings in nature of appeal. 8. The execution. 3. The original writ is the beginning or foundation of a fuit, and is either optional (called a præcipe), commanding the defendant to do fome. thing in certain, or otherwife fhow caufe to the contrary; or peremptory (called a fi fecerit te fecurum), commanding, upon fecurity given by the plaintiff, the defendant to appear in court, to fhow wherefore he hath injured the plaintiff: both iffuing out of chancery under the king's great feal, and returnable in bank during term-time. SECT. XIX. Of PROCESS. 1. PROCESS is the means of compelling the defendant to appear in court. 2. This includes, 1. Summons. 2. The writ of VOL. XII. PART II. attachment, or pone; which is fometimes the first or original process. The writ of diftringes, or diftrefs infinite. 4. The writs of capias ad refpondendum, and teftatum capias; or, inftead of thefe, in the king's bench, the bill of Middlefex, and writ of latitat:-and, in the exchequer, the writ of quo minus. 5. The alias and pluries writs. 6. The exigent, or writ of exigis facias, procmations, and outlawry. 7. Appearance, and common bail. 8. The arreft. 9. Special bail, first to the fheriff, and then to the action. SECT. XX. Of PLEADINGS. PLEADINGS are the mutual altercations of the plaintiff and defendant in writing; under which are comprised, 1. The declaration or count; (wherein, incidentally, of the vifne, nonfuit, retraxit, and difcontinuance). 2. The defence. claim of cognizance, imparlance, view, oyer, aid, prayer, voucher, or age. 3. The plea; which is either a dilatory plea (1ft, to the jurisdictión; 2dly, in difability of the plaintiff; 3dly, in abatement), or it is a plea to the action; fometimes confefling the action either in whole or in part (wherein of a tender, paying money into court, and fet off); but ufually denying the complaint, by pleading, either, ift, the general iffue; or, adly, a special bar (wherein of juftifications, the ftatutes of limitation, &c.) 4. Replication, rejoinder, furrejoinder, rebutter, furrebutter, &c. Therein of eftoppels, colour, duplicity, departure, new affignment, proteftation, averment, and other incidents of pleading. SECT. XXI. Of ISSUE and DEMURRER. 1. ISSUE is where the parties, in a course of pleading, come to a point affirmed on one fide and denied on the other; which, if it be a matter of law, is called a demurrer; if it be a matter of fact, ftill retains the name of an iffue of fact. 2. Continuance is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arifes fince the laft continuance or adjourn ment, the defendant may take advantage of it, even after demurrer or iflue, by alleging it in a plea puis darrein continuance. 3. The determination of an iffue in law, or de murrer, is by the opinion of the judges of the court; which is afterwards entered on record. SECT. XXII. Of the SEVERAL SPECIES of TRIAL. I. TRIAL is the examination of the matter of fact put in iffue. 2. The fpecies of trials are, 1. By the record. 2. By inspection. 3. By certificate. 4. By wit nefles. 5. By wager of battel. 6. By wager of law. 7. By jury. 3. Trial by the record is had, when the exiftence of fuch record is the point in iffue. 4. Trial by inspection or examination is had by the court, principally when the matter in iffue is the evident object of the senses. 5. Trial by certificate is had in those cafes, where fuch certificate must have been conclufive to a jury. 6. Trial by witneffes (the regular method in the civil law) is only used in writ of dower, when the death of the husband is in issue. Yyyy 7. Trial |