UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 ^- new \r^ 
 
 COMMENTARIES 
 
 ON 
 
 THE LAWS OF ENGLAND. 
 
 (partly founded on blackstone.) 
 
 BY 
 
 HENRY JOHN STEPHEN, 
 
 SERJEANT AT LAW. 
 
 " For hoping well to deliver myself from mistaking, by the order and perspicuous ex- 
 pressing of that I do propound, I am otherwise zealous and affectionate to recede as little 
 from antiquity, either in terms or opinions, as may stand with truth, and the profit' ience 
 of knowledge." — Lord Bac. Adv. of Learning. 
 
 Cfjttti lEtritton. 
 
 PREPARED FOR THE PRESS BY 
 
 JAMES STEPHEN, 
 
 OF THE MIDDLE TEMPLE, BARRISTER AT LAW, 
 
 AND PROFESSOR OF ENGLISH LAW, &c. AT KING'S COLLEGE, 
 IN THE UNIVERSITY OF LONDON. 
 
 IN FOUR VOLUMES. 
 
 Vol. III. 
 
 LONDON: 
 
 BUTTERWORTHS, 7, FLEET STREET, 
 
 ILafo Booksellers anrj ^uoUsIjcrs in ©rtjinarg to $!cr fHajrstu. 
 IIODOES AND SMITH, GRAFTON STREET, DUBLIN. 
 
 1853.
 
 \ 
 
 St 434-ru 
 
 London: 
 
 PRINTED BY C. ROWORTII AND SONS, 
 BELL YARD, TEMPLE BAR. 
 
 *1 - (^-CrO
 
 Spec' 
 
 CONTENTS OF THE THIRD VOLUME. 
 
 Book IV. 
 
 OF PUBLIC BIGHTS- continued. 
 
 
 
 PART II. 
 
 
 
 OF THE CHURCH. 
 
 
 
 
 CHAP. I. 
 
 
 Of tub 
 
 Ecclesiastical Authorities. 
 
 
 Of the Clergy generally 
 
 Of Archbishops and Bishops 
 
 Of a Dean and Chapter 
 
 
 
 Page 
 2 
 
 15 
 
 
 
 
 17 
 
 Of Rural Deans 
 
 
 . . . . . •• .. • 
 
 18 
 
 Of Parsons, or Rectors and V 
 
 
 
 Of Appropriations 
 Of Lay Impropriators 
 Of Perpetual Curates . . 
 
 
 
 
 19 
 21 
 
 
 
 24 
 
 Of Sinecure Rectors 
 
 
 
 
 Of Presentation 
 
 
 . . . . . . . . . . 
 
 26 
 
 
 
 
 2S 
 
 Of Collation 
 
 
 • •• .. •• •• • 
 
 29 
 
 Of Induction 
 
 
 .. 
 
 . . ibid. 
 
 Of Donatives .. .. 
 
 
 . 
 
 30 
 
 
 
 
 32 
 
 Of Pluralities .. 
 
 
 • .. . « •• •• • 
 
 34 
 
 
 
 
 36 
 
 Of Curates . . . . 
 
 
 
 37 
 
 
 
 
 38 
 
 Of Church Rates 
 
 
 • .. B • •• •* • 
 
 39 
 
 Of Parish Clerks . . 
 
 
 
 41 
 
 Of Sextons 
 
 
 
 . ibid. 
 
 a2
 
 IV 
 
 CONTENTS OF THE THIRD VOLUME. 
 
 CHAP. II 
 
 Of the Doctrines and Worship of the Church, and herein of the 
 Laws as to Heresy and Nonconformity. 
 
 Page 
 
 Of the Articles of Faith 43 
 
 Of the Liturgy . . . . . . . . . . . . . . . . 44 
 
 Of the Crown's Supremacy .. .. .. .. .. .. 45 
 
 Of Heresy . . . . . . . . . . . . . . . . . . 46 
 
 Of Nonconformity .. .. .. .. .. .. .. 51 
 
 CHAP. III. 
 
 Of the Endowments and Provisions of the Church. 
 
 Of Ecclesiastical Property in general 
 
 Of Glebe 
 
 Of Advowsons 
 Of Lapse 
 Of Simony 
 
 Of Tithes 
 
 Of Commutation of Tithes 
 
 Of the Alienation of Ecclesiastical Property 
 
 Of Charging Benefices 
 
 Of Surplice Fees, Easter Offerings and Mortuaries 
 
 : .. 63 
 
 65 
 
 67 
 
 70 
 
 73 
 
 84 
 
 89 
 
 97 
 
 ibid. 
 
 CHAP. IV. 
 
 Of Extensions of the Original Church Establishment — and herein 
 of Chapels — of New Churches and Chapels — and New Eccle- 
 siastical Districts and Parishes. 
 
 Of Parish Churches 
 
 Of Chapels 
 
 Of the Commissioners for Building New Churches 
 
 Of District Parishes .. 
 
 Of Consolidated Chapelries 
 
 Of Assignment of Districts 
 
 Of the Ecclesiastical Commissioners 
 
 Of the Union and Separation of Benefices, &c. 
 
 Of Suspension of Canonries 
 
 Of New Districts 
 
 Of New Parishes 
 
 102 
 103 
 105 
 
 ibid. 
 
 ibid. 
 106 
 109 
 111 
 112 
 114 
 115
 
 CONTENTS OF THE THIRD VOLUME. V 
 
 PART III. 
 
 Page 
 
 OF THE SOCIAL ECONOMY OF THE REALM 117 
 
 CHAP. I. 
 
 Of the Laws relating to Corporations. 
 
 Of the Origin of the Institution of Corporations .. .. .. 118 
 
 Of Corporations Aggregate and Sole .. .. .. .. 120 
 
 Of Corporations Ecclesiastical and Lay .. .. .. .. 121 
 
 Of the Corporations Civil and Eleemosynary .. .. .. ibid. 
 
 Of the Creation of Corporations . . . . . . . . • • 123 
 
 Of the Incidents of Corporations .. .. .. .. .. 126 
 
 Of Joint Stock Companies .. .. .. .. .. .. 134 
 
 Of the Visitation of Corporations .. .. .. .. .. 135 
 
 Of Hospitals 137 
 
 Of Colleges in the Universities . . . . . . . . . . . . ibid. 
 
 Of the Dissolution of Corporations .. .. .. .. .. 139 
 
 Of Municipal Corporations . . . . . . . . . . . . 141 
 
 CHAP. II. 
 
 Of the Laws Relating to the Poor. 
 
 Of the antient Relief of the Poor 151 
 
 Of the Overseers of the Poor . . .. .. .. .. .. 152 
 
 Of the early Law of Settlement, Relief and Removal .. .. .. 153 
 
 Of Gilbert's Act 156 
 
 Of the Select Vestry Act . . ibid. 
 
 Of the Poor Law Amendment Act .. .. .. .. .. 157 
 
 Of the Commissioners for administering the Laws for the Relief of 
 
 the Poor in England .. .. .. .. .. .. 158 
 
 Of the Poor Law Board . . . . • . . . . . . . ibid. 
 
 Of the Present Law of Settlement, Relief and Removal . . . . 159 
 
 Of the Poor Rate 171 
 
 CHAP. III. 
 
 Of the Laws relating to Charities and Benevolent Institutions. 
 
 Of Charities: Of the Statutes and General Principles of the Law re- 
 lating thereto .. •• •• •• .. .. .. 177 
 
 Of Savings Banks •• .. .. •• •• .. •• 188 
 
 Of Friendly Societies .. .. .. .. .. •• .. 191 
 
 Of Government Annuity Societies .. .. .. .. .. 194 
 
 Of Loan Societies 196 
 
 Of Benefit Building Societies.. .. ,. .. .. .. 198 
 
 Of Industrial and Provident Societies .. .. .. .. .. 199
 
 VI 
 
 CONTENTS OF THE THIRD VOLUME. 
 
 CHAP. IV. 
 
 Of the Laws relating to Lunatic Asylums and their Management. 
 
 Page 
 
 Of Borough Lunatic Asylums .. .. .. .. .. 201 
 
 Of County Lunatic Asylums . . . . . . . . . . . . ibid. 
 
 Of Lunatic Asylums in general . . . . . . . . . . 205 
 
 Of the Commissioners in Lunacy . . . . • . . . • • 206 
 
 Of Visitors under Commissions of Lunacy . . . . . . . . 207 
 
 Of Masters in Lunacy 208 
 
 CHAP. V. 
 
 Of the Laws relating to Gaols. 
 
 Of Common Gaols and Houses of Correction 
 
 Of Borough Gaols 
 
 Of the Visitation of Gaols 
 
 Of Prison Discipline .. 
 
 Of the Inspectors of Gaols 
 
 Of the Queen's Prison 
 
 Of the Milbank Prison 
 
 Of the Parkhurst Prison 
 
 Of the Pentonville Prison 
 
 Of the Directors of Convict Prisons . ■ . ■ . 
 
 209 
 212 
 213 
 214 
 215 
 ibid. 
 216 
 ibid. 
 217 
 ibid. 
 
 CHAP. VI. 
 
 Of the Laws relating to Highways. 
 Of Highways 
 Of Bridges 
 
 Of Highways in general 
 Of Turnpike Roads 
 
 218 
 219 
 222 
 228 
 
 CHAP. VII. 
 
 Of the Laws relating to Trade and Navigation. 
 Of the Navigation Acts 
 
 Of the Registration of British Ships . . . . 
 
 Of the Navigation of British Ships .. 
 Of the Coasting and Intercolonial Trade 
 Of the Trade to and from the Channel Islands 
 Of the East India and China Trade 
 Of the Laws relating to Merchant Seamen .. 
 Of Ports or Harbours 
 Of Lighthouses, Beacons, and Sea Marks 
 
 Of Pilotage 
 
 Of Fisheries .. .. .. .. .. .
 
 CONTENTS OF THE THIRD VOLUME. Vll 
 
 CHAP. VIII. 
 
 Of the Laws relating to the Sanatory Condition of the People. 
 
 Page 
 
 Of the Plague 254 
 
 Of Quarantine .. .. .. .. .. .. .. 255 
 
 Of the Cholera 258 
 
 Of the Small Pox ibid. 
 
 Of the Public Health Act 259 
 
 Of the Nuisances Removal Act .. .. .. .. .. 261 
 
 Of providing Burial Grounds . . . . . . . . . . . . 2G3 
 
 Of Miscellaneous Statutes with regard to Health . . . . 263, n. 
 
 CHAP. IX. 
 
 Of the Laws relating to Public Carriages and Conveyances. 
 
 Of Hackney Carriages . . . . . . . . . . . . 264 
 
 Of Stage Carriages 267 
 
 Of Railways 270 
 
 Of Conveyances by Water .. .. .. .. .. .. 272 
 
 Of the Watermen of the Thames . . . . . . . . . . 273 
 
 Of Vessels carrying Passengers between Great Britain and Ireland . 274 
 
 Of Vessels carrying Passengers from the United Kingdom . . ibid. 
 
 Of the Steam Navigation . . . . . . . . . . . . 277 
 
 Of Vessels carrying Passengers on Colonial Voyages . . . . ibid. 
 
 CHAP. X. 
 
 Of the Laws relating to the Press. 
 
 Of the Liberties of the Press .. .. .. .. .. .. 280 
 
 Of Printing in general .. .. .. .. .. .. 281 
 
 Of Newspapers . . . . . . . . . . . . . . . . 2S3 
 
 Of Pamphlets 286 
 
 CHAP. XI. 
 
 Of the Laws relating to Houses of Public Reception and 
 
 Entertainment. 
 
 Of Excise Licences .. .. .. .. .. .. .. 289 
 
 Of Justices' Licences .. .. .. .. .. .. idid. 
 
 Of the Beer Acts . . . . . . . . . . . . . . 291 
 
 Of Theatres . . . . 295 
 
 Of other Places of Amusement . . .. .. .. .. .. 298 
 
 CHAP. XII. 
 
 Of the Laws relating to Professions. 
 
 Of Physicians . . . . . . . . . . . . , , . . 300 
 
 Of Surgeons . . . . . . . . . . . . . . . . 302 
 
 Of Apothecaries . . . . . . . . . . . . . . . . 305 
 
 Of Chemists and Druggists . . .. .. .. .. .. 306 
 
 Of Attornies and Solicitors . . . . . . . . . . . . 309
 
 Vlll 
 
 CONTENTS OF THE THIRD VOLUME. 
 
 CHAP. XIII. 
 
 Of the Laws relating to Banks. 
 
 Of the Origin of the Establishment of Banks 
 
 Of the Bank of England 
 
 Of Banks of Issue, or Banks of mere Deposit 
 Of Branch Banks 
 
 Of Joint Stock Banks 
 
 Of Private Banks 
 
 Of new Regulations as to the Bank of England Charter 
 
 Of new Regulations as to Banks of Issue 
 
 Of new Regulations as to Banks in General 
 
 Of new Regulations as to Joint Stock Banks 
 
 Page 
 
 313 
 
 314 
 
 315 
 
 31S 
 
 ibid. 
 
 319 
 
 320 
 
 322 
 
 323 
 
 ibid. 
 
 CHAP. XIV. 
 
 Of the Laws relating to the Registration of Births, Deaths, 
 and Marriages. 
 
 Of the Ecclesiastical Mode of Registration 
 
 Of the Civil Mode of Registration 
 
 Of the Registration of Births 
 
 Of the Registration of Marriages . . 
 
 Of the Registration of Deaths . . 
 
 326 
 328 
 
 330 
 331 
 
 ibid. 
 
 Book V. 
 
 OF CIVIL INJURIES. 
 
 CHAP. I. 
 
 Of the Redress of Civil Injuries by the mere Act of the Parties. 
 
 Of Wrongs in general 
 
 Of Self-defence 
 
 Of Recaption or Reprisal 
 
 Of Entry 
 
 Of Abatement of Nuisances 
 
 Of Distress 
 
 Of the Seizure of Heriots, Waifs, &c. 
 
 Of Accord and Satisfaction 
 
 Of Arbitration 
 
 335 
 
 337 
 
 338 
 
 339 
 
 340 
 
 341 
 
 354 
 
 ibid. 
 
 355
 
 CONTENTS OF THE THIRD VOLUME. 
 
 IX 
 
 CHAP. II. 
 
 Of Redress by the mere Operation of Law. 
 
 Of Retainer 
 Of Remitter 
 
 Page 
 359 
 360 
 
 CHAP. III. 
 
 Of the Courts in general. 
 
 Of Courts generally 
 Of Attornies . . 
 Of Counsel 
 
 362 
 365 
 366 
 
 CHAP. IV. 
 
 Of the Courts of General Jurisdiction— and, First, of th of 
 
 Common Law and Equity. 
 
 Of the Saxon Courts . . . . . . . . . . . • • • 372 
 
 Of the Court Baron 374 
 
 Of the Hundred Court 376 
 
 Of the antient County Court . . . . . . . . . . 377 
 
 Of the County Courts 380 
 
 Of the Court of Exchequer .. .. .. .. .. .. 386 
 
 Of the Court of Common Pleas .. .. .. .. .. •• 391 
 
 Of the Court of Queen's Bench .. .. .. .. .. 392 
 
 Of the Court of Chancery 397 
 
 Of the Court of Exchequer Chamber .. .. .. •• 410 
 
 Of the House of Peers 412 
 
 Of the Courts of Assize and Nisi Prius . . . . . . . • 413 
 
 Of the Judicial Committee of the Privy Council .. . . .. 418 
 
 Of the Court of Bankruptcy . . . . . . . . . . . • ibid. 
 
 Of the Court of Insolvency .. .. .. .. .. •• ibid. 
 
 CHAP. V. 
 
 Of the Courts Ecclesiastical, Military and Maritime. 
 
 Of the Rise of the Ecclesiastical Courts .. .. .. .. 419 
 
 Of the Archdeacon's Court . . . . . . . . . . . . 422 
 
 Of the Consistory Court .. .. .. .. .. .. .. ibid. 
 
 Of the Court of Arches 423 
 
 Of the Court of Peculiars .. .. .. .. .. .. ibid. 
 
 Of the Prerogative Court .. .. .. .. .. .. 424 
 
 Of the Privy Council .. .. .. .. .. .. .. ibid. 
 
 Of the Court of Chivalry 427 
 
 Of the Court of Admiralty 428 
 
 vol. in. b
 
 CONTENTS OF THE THIRD VOLUME. 
 
 CHAP. VI. 
 
 Of Courts of a Special Jurisdiction. 
 
 Page 
 
 Of the Court of Piepoudre 430 
 
 Of the Forest Courts 431 
 
 Of the Courts of Sewers 434 
 
 Of the Court of Policies of Assurance . . . . . . . . 435 
 
 Of the Court of the Duchy Chamber of Lancaster . . . . . . 437 
 
 Of the Courts of the Counties Palatine . . . . . . . . ibid. 
 
 Of the Courts of the Stannaries . . . . . . . . . . . . 439 
 
 Of the Borough Courts 441 
 
 Of the Courts of Requests or Courts of Conscience . . . . . . 442 
 
 Of the University Courts . . . . . . . . . . . . 443 
 
 CHAP. VII. 
 
 Of Civil Injuries cognizable in the Common Law Courts, and 
 herein of the remedy by action generally. 
 
 Of Actions generally . • . . . . . . . . . . . . 448 
 
 Of Actions Real, Mixed, and Personal . . . . . . . . 450 
 
 Of the different Forms of Real and Mixed Actions still retained . . 451 
 
 Of Personal Actions . . . . . . . . . . . . . . 452 
 
 Of Actions on Contracts or Torts . . . . . . . . . . ibid. 
 
 Of Nonfeasance, Misfeasance, or Malfeasance . . . . . . ibid. 
 
 Of the different Forms of Personal Actions . . . . . . . • ibid. 
 
 Of Actions Local or Transitory . . . . . . . . . . 454 
 
 Of Actions for specific Recovery or for Damages .. .. .. 456 
 
 Of Damnum absque Injuria . . . . . . . . , . . . 457 
 
 Of the Transfer of Right of Action by Act of Law . . . . . . 458 
 
 Of the Right of Action for a Death occasioned by negligence .. 459 
 
 CHAP. VIII. 
 
 Of Civil Injuries cognizable in the Common Law Courts — continued. 
 
 Of Injuries affecting Personal Rights .. .. .. .. 460 
 
 Of Injuries affecting Property in things Real .. .. .. 475 
 
 Of Injuries affecting Property in Things Personal .. .. 513 
 
 Of Injuries affecting a Man's Rights in his Private Relations .. 531 
 
 Of Injuries affecting a Man's Public Rights .. .. .. 537
 
 CONTENTS OF THE THIRD VOLUME. XI 
 
 CHAP. IX. 
 
 Of the Limitation of Actions. 
 
 Page 
 Of the Statutes of Limitation 540 
 
 Of the Limitation of Actions brought for the Recovery of Things 
 
 Real 541 
 
 Of the Limitation of Actions not brought for the Recovery of Things 
 
 Real 551 
 
 CHAP. X. 
 
 Of the Proceedings in an Action. 
 
 Of the Law Terms 557 
 
 Of the Process 562 
 
 Of the Pleadings . . . . . . . . . . . . . . 570 
 
 Of the Trial and Evidence 584 
 
 Of the Judgment 627 
 
 Of Proceedings in Error . . . . . . . . . . . . . . 647 
 
 Of Execution 651 
 
 Of the Writ of Revivor and Scire Facias . . . . . . . . 661 
 
 CHAP. XI. 
 
 Of the Proceedings in some particular Actions. 
 
 Of the Action of Dower 666 
 
 Of the Action of Quare Impedit . . . . . . . . . . . . 670 
 
 Of the Action of Replevin . . . . . . . . . . . . 675 
 
 Of the Action of Ejectment . . . . . . . . . . . . 679 
 
 CHAP. XII. 
 
 Of Prerogative Writs and other Extraordinary Remedies in the 
 Courts of Common Law. 
 
 Of Motions 689 
 
 Of the Writ of Procedendo 691 
 
 Of the Writ of Mandamus 692 
 
 Of the Writ of Prohibition 696 
 
 Of the Writ of Quo Warranto 699 
 
 Of the Writ of Habeas Corpus . • . . . . . . . . . . 703 
 
 Of the Writ of Certiorari 714 
 
 Of the Motion by way of Interpleader .. .. .. .. .. 716
 
 NEW COMMENTARIES 
 
 THE LAWS OF ENGLAND. 
 
 BOOK IV. 
 
 OF PUBLIC RIGHTS— {continued). 
 
 PART II. 
 OF THE CHURCH. 
 
 Having now finished our examination of that division of 
 public rights which concerns the relation between persons 
 in civil authority, and those who are subject to that autho- 
 rity, which involved the whole law relating to the state or 
 civil government, we are next to turn our attention to such 
 public rights as are connected with the relation between 
 those who have power in matters ecclesiastical, and those 
 over whom that power is exercised, — which latter subject 
 we shall discuss, as proposed in a former place (a), under 
 the general head of the Church. 
 
 The Church, in that sense of the term to which these 
 Commentaries refer, may be defined as an institution esta- 
 blished by the law of the land, in reference to religion ; 
 in treating of which we shall find it convenient to consider, 
 first, the authorities established in the Church ; secondly, 
 the law relating to its doctrines, worship, and discipline ; 
 thirdly, the law relating to its benefices or endowments 
 And, first, of the authorities established in the Church. 
 
 (a) Vide sup. vol. ii. p. 310. 
 VOL. Ill .". B
 
 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 CHAPTER I. 
 
 OF THE ECCLESIASTICAL AUTHORITIES. 
 
 The ecclesiastical authorities consist (under the sovereign^ 
 the common head of the Church) principally of the clergy, 
 (a venerable body of men set apart from the rest of the 
 people or laity,) in order to superintend the public worship 
 of Almighty God and the other ceremonies of religion, and 
 to administer spiritual counsel and instruction. 
 
 The clergy consist of such, and such only, as have been 
 admitted into holy orders ; which, in the Church of Eng- 
 land, are the orders of bishops (including archbishops), 
 priests, and deacons (a) : and the ordination in that church 
 must take place according to the form prescribed in the 
 Book of Common Prayer (£»). By 13 Eliz. c. 12, and 44 
 Geo. III. c. 43, it is provided (conformably to the canons), 
 that none shall be ordained deacon under twenty-three 
 years, nor priest under twenty-four years of age ; though 
 as to deacons, the Archbishop of Canterbury has the pri- 
 vilege of admitting them (by faculty or dispensation) at an 
 earlier period. Also by the same statute of Elizabeth, none 
 shall be ordained either priest or deacon, without first sub- 
 scribing the Thirty-nine Articles of religion ; nor by 1 Eliz. 
 
 (a) The Roman canonists had the Wats. C. L. ch. xiv. By 59 Geo. 3, 
 orders of bishop (in which the pope c. 60, s. 3, no person ordained by a 
 and archbishops were included), foreign bishop can officiate without 
 priest, deacon, subdeacon, psalmist, special permission from the arch- 
 acolythe, exorcist, reader, ostiarius. bishop of the province, or be admit- 
 Corv. Jus Canon. 38, 39 ; Gibs. Cod. ted to a benefice without consent 
 115. both of archbishop and bishop. 
 
 (b) See 2 Burn's Eccl. Law, 103 ;
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 3 
 
 c. 1, and 1 W. & M. c. 8, without first taking the oaths 
 of allegiance and supremacy (c). Moreover, by the canon 
 law (d), no person shall be admitted into holy orders with- 
 out a title (as it is called) ; that is, unless he produce to 
 the bishop a presentation to some ecclesiastical living within 
 the diocese, or such certificate of preferment or provision 
 as in the canon described ; or unless he be a fellow or 
 chaplain in Cambridge or Oxford, or master of arts of 
 five years' standing in either such university, and living 
 there at his own charge ; or unless the bishop himself 
 intends shortly to admit him to some benefice or curacy. 
 And we may observe farther, that, [by 31 Eliz. c. 6, if any 
 person obtain orders or a licence to preach by money or 
 corrupt practices, (which seems to be the true, though not 
 the common notion of simony), the person giving such 
 orders shall forfeit 40/., and the person receiving, 10/.; and 
 the latter is incapable of any ecclesiastical preferment for 
 seven years afterwards.] 
 
 In order to attend the more closely to their duties, the 
 clergy have certain privileges, [and had formerly much 
 greater, which were abridged at the time of the Reforma- 
 tion, on account of the ill use which the popish clergy 
 had endeavoured to make of them ; for the laws having 
 exempted them from almost every personal duty, they 
 attempted a total exemption from every secular tie (e). 
 But it is observed by Sir Edward Coke (f), that as the 
 overflowing of waters doth many times make the river to 
 lose its proper channel, so in times past ecclesiastical per- 
 sons, seeking to extend their liberties beyond their true 
 bounds, either lost or enjoyed not those which of right 
 belonged to them.] The personal exemptions do indeed 
 
 (c) By 24 Geo. 3, c. 35, the bishop (d) Can. 33 ; Wats. C. L. 147. 
 
 of London, or other bishop by him (e) The marriage of the clergy 
 
 appointed, may ordain aliens to ex- was, in the time of popery, prohi- 
 
 ercise the office of deacon or priest bited ; but the prohibition was taken 
 
 out of the dominions of the crown, away by 2 & 3 Edw. 6, c. 21. 
 
 without the oath of allegiance. (/) 2 Inst. 4. 
 
 B. 2
 
 4 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 in several instances continue. [A clergyman cannot be 
 compelled to serve on a jury {g) ; nor can he be chosen to 
 any temporal office, as bailiff, reeve, constable, or the 
 like ; in regard of his own continual attendance on the 
 sacred function (A). During his attendance on divine ser- 
 vice,] eundo, morando, et redeundo, [he is privileged from 
 arrests in civil suits (i),] and the glebe and tithes of his 
 parsonage are not liable to execution for debt, in the same 
 manner as lay property, but to a sequestration, by which 
 the churchwardens are directed to levy the debt, after 
 making provision for the service of the church (k). [But 
 as they have their privileges, so also they have their disa- 
 bilities, on account of their spiritual avocations.] By 41 
 Geo. III. c. 63, they are incapable of being elected mem- 
 bers of the House of Commons (I) ; and by 5 & 6 Will. 
 IV. c. 76, s. 28, of being councillors or aldermen in 
 boroughs. They are also prohibited from farming or 
 trading ; for by 1 & 2 Vict. c. 1 06, s. 28 — 30, (repealing 
 some former acts on this subject,) no spiritual person 
 
 (g) 6 Geo. 4, c. 50, s. 2. He is 
 also, by the statute of Marlbridge, 52 
 Hen. 3, c. 10, discharged from at- 
 tendance upon courts leet and the 
 sheriffs' tourns ; (antient courts of 
 criminal jurisdiction, now almost 
 superseded by the court of quarter 
 sessions). F. N. B. 160 ; 2 Inst. 4. 
 
 (h) Finch, L. 88. 
 
 (O Stat. 50 Edw. 3, c. 5 ; 1 Ric. 
 2, c. 15 ; 29 Car. 2, c. 7, s. 6 ; 9 Geo. 
 4, c. 31, s. 23; 12 Rep. 100;Goddard 
 v. Harris, 7 Bing. 320. 
 
 ('.) Ex parte Meymott, 1 Atk. 
 200 ; Burn's E. L. Sequestration ; 
 Arbuckle v. Cowtan, 3 Bos. & Pul. 
 326 ; Marsh v. Fawceti, 2 H. Bl. 
 582. See as to the remedies of se- 
 questrators, 12 & 13 Vict. c. (57. 
 See also post, bk. vi. c. 23, as to 
 the privilege, now abolished, of the 
 benefit of clergy. This was antiently 
 
 allowed to the clergy alone; and, 
 even till its abolition, was allowed to 
 them in a more beneficial sense than 
 to laymen ; as a clergyman might 
 have it without any corporal punish- 
 ment whatever, and might have it 
 more than once — neither of which 
 was permitted to laymen. 1 Bl. Com. 
 377 ; 4 Bl. Com. 372. 
 
 (/) Vide sup. vol. ii. p. 356. Upon 
 the controverted question, as to the 
 eligibility of clergymen prior to the 
 stat. 41 Geo. 3, c. 63, Blackstone was 
 of opinion that they were ineligible; 
 assigning as the reason, that they sit 
 in convocation. But that reason, as 
 has been justly remarked, is unsatis- 
 factory. See Coleridge's Blackstone, 
 vol. i. p. 175. And the authorities 
 were, on the whole, in favour of 
 their eligibility. Vide case of the 
 Borough of Newport, 2 Luders, 269.
 
 CHAP. I. — OP THE ECCLESIASTICAL AUTHORITIES. O 
 
 holding any cathedral preferment or benefice, or any 
 curacy or lectureship, or allowed to perform the duties of 
 any ecclesiastical office, shall take to farm for occupation 
 by himself, any lands exceeding eighty acres in the whole, 
 without permission in writing from the bishop of the dio- 
 cese; nor shall such spiritual person, by himself or any 
 other to his use, carry on any trade or dealing for profit, 
 unless it be carried on by more than six partners, or his 
 share in it shall have devolved to him by inheritance, or 
 other such representative title as in the act specified ; and 
 even in these excepted cases it is illegal for him to act as 
 director or managing partner, or to carry on the trade in 
 person (m). But, notwithstanding these prohibitions, the 
 act allows him to carry on the business of a schoolmaster, 
 or to deal with booksellers as to the sale of books, or to be 
 a managing director, partner, or shareholder in any benefit 
 society, or fire or life insurance society, or to buy or sell to 
 the extent necessarily incidental to his lawful occupation of 
 land, or to sell minerals the produce of his land, provided 
 that none of these transactions be conducted in person, in 
 any market or place of public sale. 
 
 [In the frame and constitution of ecclesiastical polity 
 there are divers ranks and degrees, which we shall consider 
 in there respective order, merely as they are taken notice 
 of by the secular laws of England, without intermeddling 
 with] any matters merely spiritual, such as the spiritual 
 distinction between priests and deacons, or [the canons 
 and constitutions, by which the clergy have bound them- 
 selves.] 
 
 I. An archbishop or bishop is constituted by election, 
 confirmation, consecration, and installation ; though an 
 
 (m) Spiritual persons had been happened to be members, was void 
 
 restrained from trading by previous by the effect of that statute. Hall v. 
 
 statutes ; and among others by 57 Franklin, 3 Mee. & W. 259. But on 
 
 Geo. 3, c. 99 ; and it was held, that this subject see now 1 & 2 Vict. c. 
 
 a contract made by a banking com- 10 ; 4 & 5 Vict. c. 14. 
 pany, of which spiritual persons
 
 6 BK.IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 archbishop is more properly said to be enthroned and not 
 installed (»). 
 
 The election of an archbishop or bishop is by the [chapter 
 of his cathedral church, by virtue of a licence from the 
 crown. Election was, in very early times, the usual mode 
 of elevation to the episcopal chair, throughout all Christen- 
 dom ; and this was promiscuously performed by the laity 
 as well as the clergy (o), till at length it becoming tumul- 
 tuous, the emperors and other sovereigns of the respective 
 kingdoms of Europe took the appointment in some degree 
 into their own hands, by reserving to themselves the right 
 of confirming these elections, and of granting investiture of 
 the temporalties, which now began almost universally to be 
 annexed to this spiritual dignity ; without which confirma- 
 tion and investiture the elected bishop could neither be 
 consecrated nor receive any secular profits. This right was 
 acknowledged in the Emperor Charlemagne, a.d. 773, by 
 Pope Hadrian I. and the Council of Lateran (p), and uni- 
 versally exercised by other Christian princes ; but the policy 
 of the Court of Rome at the same time began by degrees to 
 exclude the laity from any share in these elections, and to 
 confine them wholly to the clergy ; which at length was 
 completely effected : the mere form of election appearing 
 to the people to be a thing of little consequence, while the 
 crown was in possession of an absolute negative, which was 
 almost equivalent to a direct right of nomination. Hence 
 the right of appointing to bishoprics is said to have been 
 in the crown of England (q), (as well as other kingdoms in 
 
 (n) Bishop of St. David's v. Lucy, of archbishop, bishop, or dean of 
 
 1 Salk. 137; 3 Salk. 72. As to arch- any place in the united kingdom, 
 
 bishops and bishops, vide sup. vol. i. under authority from the see of 
 
 p. 1 1 2 ; vol. ii. p. 322 ; see also 5 & 6 Rome. 
 
 Vict. c. 26, as to providing episcopal (<>) Per clernm et populnm, Palm, 
 
 houses of residence ; 6 & 7 Vict. c. 25 ; Sobrean v. Kevan, 2 Roll. Rep. 
 
 62, as to providing for performance 102 ; M. Paris, a.d. 1095. 
 
 of episcopal functions in case of in- (p) Decret. 1, dist. 63, c. 22. 
 
 capacity; 14 & 15 Vict. c. 60, as to (q) Palm. 28. 
 the improper assumption of the title
 
 CHAP. I. OF THE ECCLESIASTICAL AUTHORITIES. 7 
 
 [Europe), even in the Saxon times, because the rights of 
 confirmation and investiture were in effect, though not in 
 form, a right of complete donation (r). But when, by length 
 of time, the custom of making elections by the clergy only 
 was fully established, the popes began to except to the 
 usual method of granting these investitures, which was per 
 annulum et baculum, by the prince's delivering to the prelate 
 a ring and pastoral staff or crosier, — pretending that this was 
 an encroachment on the church's authority, and an attempt 
 by these symbols to confer a spiritual jurisdiction ; and 
 Pope Gregory the seventh, towards the close of the eleventh 
 century, published a bull of excommunication against all 
 princes who should dare to confer investitures, and all pre- 
 lates who should venture to receive them (s). This was a 
 bold step towards effecting the plan then adopted by the 
 Roman see, of rendering the clergy entirely independent of 
 the civil authority ; and long and eager were the contests 
 occasioned by this papal claim. But at length, when the 
 Emperor Henry the fifth agreed to remove all suspicion of 
 encroachment on the spiritual character, by conferring in- 
 vestitures for the future per sceptrum and not per annulum 
 et baculum ; and when the kings of England and France 
 consented also to alter the form in their kingdoms, and 
 receive only homage from the bishops for their temporalties, 
 instead of investing them by the ring and crosier ; the court 
 of Rome found it prudent to suspend for awhile its other 
 pretensions (t). 
 
 This concession was obtained from King Henry the first 
 in England, by means of that obstinate and arrogant pre- 
 late, Archbishop Anselm (u) ; but King John, about a cen- 
 tury afterwards, in order to obtain the protection of the 
 
 (r) "'Nulla electio pr&latorum' electum a rege postulabatit." — Selden, 
 
 (sunt verba Ingulphi) ' erat mere li- Jan. Ang. 1. 1, s. 39. 
 
 bera et eanonica ; sed omnes dignitates, (s) Decret. 2, caus. 16, qu. 7, c. 12 
 
 tarn episcoporum, quam abbatum, per et 13. 
 
 annulum et baculum regis curia pro (t) Mod. Un. Hist. xxv. 363 ; xxix. 
 
 sua complacentiu conferebat.' Penes 115. 
 
 clericos et monachos fuit electio, sed (u) M. Paris, a.d. 1107.
 
 8 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [pope against his discontented barons, was also prevailed 
 upon to give up by a charter, to all the monasteries and 
 cathedrals in the kingdom, the free right of electing their 
 prelates, whether abbots or bishops ; reserving only to the 
 crown, the custody of the temporaries during the vacancy, 
 the form of granting a licence to elect (on refusal whereof 
 the electors might proceed without it), and the right of 
 approbation afterwards, which was not to be denied with- 
 out a reasonable and lawful cause (x). This grant was 
 expressly recognised and confirmed in King John's Magna 
 Charta (y), and was again established by statute 25 Edw. 
 III. st. 6, s.3.] 
 
 But by statute 25 Hen.VIII. c. 20 (z), the law was again 
 altered, and the right of nomination secured to the crown ; 
 [it being enacted that at every future avoidance of a bishop- 
 ric, the king may send the dean and chapter his usual 
 licence to proceed to election,] or conge d'elire, [which is 
 always to be accompanied with a letter missive from the 
 king, containing the name of the person whom he would 
 have them elect ; and if the dean and chapter delay their 
 election above twelve days, the nomination shall devolve to 
 the king, who may by letters-patent appoint such person as 
 he pleases (a). This election or nomination, if it be of a 
 bishop, must be signified by the king's letters-patent to the 
 archbishop of the province ; if it be of an archbishop, to 
 the other archbishop and two bishops, or to four bishops ; 
 requiring them to confirm, invest, and consecrate the person 
 
 (a) M.Paris, a.d. 1214; 1 Rym. Com. Dig. Ecclesiastical Persons, 
 
 Feed. 198. C. 2. 
 
 ((/) Cap. 1, edit. Oxon. 1759. (a) It is directed in the form of 
 
 (s) This statute was repealed by 1 consecrating bishops, confirmed by 
 
 Edw. 6, c. 2, which declared that the various statutes since the Reforma- 
 
 collation and gift of all bishoprics tion, that a bishop, when consecrated, 
 
 appertained to the king. But the 1 must be full thirty years of age; but 
 
 Edw. 6 being afterwards repealed by there seems to have been no restric- 
 
 1 Mary, st. 2, c. 2, and 1 Eliz. c. 1, tion of this kind in antient times, 
 
 the statute of Henry the eighth was Christian's Blackstone, vol. i. p. 379, 
 
 consequently revived. 12 Rep. 7 ; cites Godw. Comm. de Praesul. 693.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 9 
 
 [so elected ; which they are bound to perform immediately, 
 without any application to the see of Rome. After which, 
 the bishop elect shall sue to the king for his temporalties, 
 shall make oath to the king and none other, and shall take 
 restitution of his secular possessions out of the king's hands 
 only. And if such dean and chapter do not elect in the 
 manner by this act appointed, or if such archbishop or 
 bishop do refuse to confirm, invest, and consecrate such 
 bishop elect, they shall incur all the penalties of a prcemu- 
 nire,~] that is, the loss of all civil rights, forfeiture of lands, 
 goods and chattels, and imprisonment during the royal 
 pleasure (5). 
 
 There are two archbishops for England and Wales (c) ; 
 the Archbishop of Canterbury, who has within his province 
 
 (b) 25 Hen. 8, c. 20 ; 4 Bl. Com. 
 117. 
 
 The public attention has recently 
 been drawn to the nature of the elec- 
 tion of the bishops, and particularly 
 to the question, whether the duty of 
 the dean and chapter to elect the no- 
 minee of the crown, and that of the 
 archbishop to confirm, invest, and 
 consecrate such bishop elect, are to 
 any extent optional, or whether they 
 are merely ministerial duties ; and 
 the opinion of Blackstone, as stated 
 in the text, appears to be the correct 
 one. The discussion arose under the 
 following circumstances. In 1848 
 (see Queen v. Archbishop of Canter- 
 bury, 11 Q. B. 483), the see of Here- 
 ford being vacant, the dean and 
 chapter thereof received a cong6 
 d'elire to elect Dr. Hampden, the 
 Regius Professor at the University 
 of Oxford, to that bishopric. In ac- 
 cordance with this intimation of the 
 pleasure of the crown, Dr. Hampden 
 was in due course elected ; but at the 
 time of his conjirmation, on the usual 
 challenge to all objectors to come 
 
 forward and be heard being deliver- 
 ed, certain objections, on the score of 
 some of the religious tenets alleged 
 to be held by Dr. Hampden, were 
 tendered, but the officers in ministra- 
 tion refused to receive them. Upon 
 this a rule was obtained by the ob- 
 jectors, in the Court of Queen's 
 Bench, to show cause why a mujida- 
 mus should not issue to the Arch- 
 bishop of Canterbury to receive the 
 objections ; after being solemnly 
 argued, however, it was decided 
 (though the judges were not unani- 
 mous in their opinions) that the rule 
 should be discharged. 
 
 (c) Antiently there were three 
 archbishoprics, the third being of 
 Caerleon in Wales ; but in the time 
 of Henry the first both that see and 
 all Wales became subject to the 
 Archbishop of Canterbury. Rogers's 
 Eccl. L. 105. The Archbishop of 
 Canterbury was antiently Primate of 
 Ireland also. Ireland had no arch- 
 bishop of its own till 1152. Ibid. 
 10G.
 
 10 BK. IV.' OF PUBLIC RIGHTS. PT. II. OP THE CHURCH. 
 
 all the bishoprics, (which are at present twenty-six in num- 
 ber,) except those of Chester, Durham, Carlisle, Ripon, 
 Manchester, and that of Soclor and Man ; and the Arch- 
 bishop of York, whose province comprises the six bishoprics 
 just named. 
 
 The two archbishops for England and Wales, and the 
 bishops of London, Durham, and Winchester, have the 
 right, in virtue of their respective sees, to sit as lords spiri- 
 tual (having first received a writ of summons for the pur- 
 pose) in the House of Lords ; and among the other bishops 
 for England and Wales there are always twenty-one who 
 hold seats there under the like summons ; but the number 
 does not exceed this, the bishop of Sodor and Man being 
 in no case a lord spiritual, and the bishop last elected for 
 the time being, being also excluded from that dignity. 
 This is by the effect of the statute 10 & 11 Vict. c. 108, for 
 establishing the new bishopric of Manchester; for, though 
 theretofore all the bishops except the bishop of Sodor and 
 Man were summoned as a matter of course to the House 
 of Lords, this statute provides that the number of lords 
 spiritual shall not be increased by the creation of the new 
 bishopric ; but that whenever there shall be a vacancy 
 among the lords spiritual, caused by the avoidance of any 
 see, (other than the five above named, or than a see which 
 shall be filled by the translation thereto from any other see 
 of a bishop at that time actually sitting as a lord of parlia- 
 ment,) such vacancy shall be supplied by the issue of a 
 writ of summons to that bishop who shall not have pre- 
 viously become entitled to such writ ; and that no bishop 
 who shall be thereafter elected to any see, not being one of 
 the five sees above named, shall be entitled to have a writ 
 of summons, unless in the order and according to the con- 
 ditions aforesaid. 
 
 [An archbishop is the chief of the clergy in a whole pro- 
 vince, and has the inspection of the bishops of that province, 
 as well as of the inferior clergy,] whom he has power for
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 11 
 
 that purpose to visit (/). He confirms the election of the 
 bishops, and afterwards consecrates them(^). He [has also 
 his own diocese, wherein he exercises episcopal jurisdiction, 
 as in his province he exercises archiepiscopal (/<)• As arch- 
 bishop, he, upon receipt of the king's writ, calls the bishops 
 and clergy of his province to meet him in convocation ; but 
 without the king's writ he cannot assemble them(z'). To 
 him,] as a superior ecclesiastical judge, [all appeals are 
 made from inferior jurisdictions within his province ; and 
 as an appeal lies from the bishops in person to him in 
 person, so it also lies from the consistory courts of each 
 diocese to his archiepiscopal court :] in addition to which 
 he has also a court of original jurisdiction (k). [During the 
 vacancy of any see in his province, he is guardian of the 
 spiritualties thereof, as the king is of the temporalties, and 
 he executes all ecclesiastical jurisdiction therein. If an 
 archiepiscopal see be vacant, the dean and chapter are the 
 spiritual guardians, ever since the office of Prior of Can- 
 terbury was abolished at the Reformation (Z). The arch- 
 bishop is entitled to present by lapse, to all the ecclesiastical 
 livings in the disposal of his diocesan bishops, if not filled 
 within six months. And the archbishop has a customary 
 prerogative, when a bishop is consecrated by him, to name 
 a clerk or chaplain of his own to be provided for by such 
 suffragan bishop (m) ; in lieu of which it is now usual for 
 
 (/) See Bishop of St. David's v. of York and Bishop of Ely was 
 
 Lucy, 1 Salk. 134 ; Re Dean of abolished by 6 8c 7 Will. 4, c. 87 ; 
 
 York, 2 Ad. & El. N. S. 1. 7 Will. 4 & 1 Vict. c. 53 ; that be- 
 
 (g) 2 Rol. Ab. 223. As to the longing to the Bishop of Durham, 
 
 power of the archbishop to conse- by 6 & 7 Will. 4, c. 19. 
 
 crate to the office of bishop persons (i) 4 Inst. 322, 323. As to the 
 
 being subjects or citizens of foreign convocation, vide sup. vol. ii. p. 511. 
 
 countries, see 26 Geo. 3, c. 84 j 5 (k) As to the Archbishop's Courts, 
 
 Vict. c. 6. As to his power in rela- vide sup. vol. ii. p. 194 ; et post, 
 
 tion to the bishops and archdeacons bk. v. c. 5, tr. 3. 
 
 of the West Indies, vide 6 Geo. 4, (/) 2 Rol. Abr. 22. 
 
 c. 88 ; 5 Sc 6 Vict. c. 4. (w) " Bishops are styled suffragan 
 
 (h) The secular jurisdiction for- " (a word signifying deputy) in re- 
 medy belonging to the Archbishop " spect of their relation to the arch-
 
 12 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [the bishop to make over by deed to the archbishop, his 
 executors and assigns, the next presentation of such dignity 
 or benefice within the bishop's disposal within that see, as 
 the archbishop himself shall choose, which is therefore 
 called his option (n); which options are only binding on the 
 bishop himself who grants them, and not on his succes- 
 sors (o). The prerogative itself seems to be derived from 
 the legatine power formerly annexed by the popes to the 
 metropolitan of Canterbury (p). And we may add, that 
 the papal claim itself (like most others of that encroaching 
 see) was probably set up in imitation of the imperial pre- 
 rogative called prunes or primaries preces ; whereby the em- 
 peror exercises, and hath immemorially exercised {q), a right 
 of naming to the first prebend that becomes vacant after his 
 
 " bishops of their province. But 
 " formerly each archbishop and bi- 
 " shop had also his suffragan to assist 
 " him in conferring orders, and in 
 " other spiritual parts of his office 
 " within his diocese. These, in our 
 " ecclesiastical law, are called suf- 
 " fragan bishops, and resemble the 
 " chorepiscopi, or bishops of the coun- 
 " try, in the early times of the Chris- 
 " tian church. How this inferior 
 " order of bisbops may be elected 
 " and consecrated is regulated by 
 " 26 Hen. 8, c. 14 ; but, notwith- 
 " standing this statute, it is not usual 
 " to appoint them. This should not 
 " be confounded with the coadjutors 
 " of a bishop ; the latter being ap- 
 " pointed in case of a bishop's infir- 
 " mity to superintend his jurisdiction 
 " and temporalties, neither of which 
 " was within the interference of the 
 " former. See fully on this subject 
 " in 1 Gibs. Cod. 1st edit. 155." — 
 Co. Litt. by Harg. 94 a, note (3). 
 
 (?() Cowel's Interp. tit. Option. 
 
 (o) These options become the pri- 
 vate patronage of the archbishop, 
 
 and upon his death are transmitted 
 to his personal representatives ; or 
 the archbishop may direct by his 
 will whom, upon a vacancy, his ex- 
 ecutor shall present ; which direc- 
 tion, according to a decision in the 
 House of Lords, his executor is 
 compellable to observe. 1 Burn's 
 Eccl. Law, 226. If a bishop dies 
 during the vacancy of any benefice 
 within his patronage, the presenta- 
 tion devolves to the crown ; so like- 
 wise if a bishop dies after an option 
 becomes vacant, and before the 
 archbishop or his representatives 
 has presented, and the clerk is in- 
 stituted, the crown pro hue vice will 
 be entitled to present to that dignity 
 or benefice ; Potter v. Chapman, 
 Amb. 101 ; for the grant of the 
 option by the bishop to the archbi- 
 shop has no efficacy beyond the life 
 of the bishop. Christian's Black- 
 stone, vol. i. p. 381. 
 
 (p) Sherlock, Of Options, 1. 
 
 (q) Goldast. Constit. Imper. torn. 
 3, p. 406.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 
 
 13 
 
 [accession in every church of the empire (r). A right that 
 was also exercised by the crown of England in the reign of 
 Edward the first (s), and which probably gave rise to the 
 royal corodies,] viz. the king's right (now fallen into disuse) 
 of sending one of his chaplains to be maintained by the 
 bishop, or to have a pension allowed him till the bishop 
 promoted him to a benefice (t). [It is likewise the privi- 
 lege, by custom, of the archbishop of Canterbury, to crown 
 the kings and queens of this kingdom (it). And he hath 
 also by the statute 25 Hen. VIII. c. 21 (x), the power of 
 granting dispensations in any case, not contrary to the Holy 
 Scriptures and the law of God, where the pope used for- 
 merly to grant them ; which is the foundation of his grant- 
 ing special licences to marry at any place or time,] or his 
 giving dispensation [to hold two livings, and the like(y); 
 and on this also is founded the right he exercises of con- 
 ferring degrees,] called Lambeth degrees (z), [in prejudice 
 of the universities (a).] In unaccustomed cases, however, 
 
 (r) Dufresne, v. S06 ; Mod. Univ. 
 Hist. xxix. 5. 
 
 (s) "Rear, fyc. sahttem: Scribatis 
 episcopo Karl. — quod Roberto de Icard 
 pensionem suam, quam ad pieces regis 
 pra-dicto Roberto concessit, de cxtero 
 so I vat ; et de proiima ecclesia vacatura 
 de collatione prtedicti episcopi, quam 
 ipse Robertus acceptaverit, respiciat." 
 Brev. 11 Edw. 1 ; 3 Pryn. 1264. 
 
 (0 1 Bla. Com. 283. There were 
 other species of corodies. Vide sup. 
 vol. i. p. 625, n. (g). 
 
 (u) It is said that the Archbishop 
 of York has the privilege to crown 
 the queen consort, and to be her 
 perpetual chaplain. 1 Burn's Eccl. 
 Law, 178; Christian's Blackstone, 
 ubi sup. 
 
 (x) Et vide 28 Hen. 8, c. 16. As 
 to dispensations, see Colt and Glover 
 
 v. Bishop of Lichfield and Coventry, 
 Hob. 147. 
 
 (y) The power of the archbishop 
 of Canterbury to grant special li- 
 cences to marry is now recognized 
 by 4 Geo. 4, c. 76, s. 20, and his 
 power to grant dispensations to hold 
 two livings, by 1 & 2 Vict. c. 106, 
 s. 6. 
 
 (s) Although the archbishop can 
 confer all the degrees which are 
 taken in the universities, yet the 
 graduates of the two universities, 
 by various acts of parliament and 
 other regulations, are entitled to 
 many privileges which are not ex- 
 tended to what is called a Lambeth 
 degree. Christian's Blackstone, vol. 
 i. p. 381. 
 
 (a) See the Bishop of Chester's 
 case, Oxon. 1721.
 
 14 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 the archbishop has no power to grant dispensations, but 
 must refer the matter to the sovereign in council (b). 
 
 A bishop is the chief of the clergy within a diocese (c) ; 
 but is subordinate to the archbishop of the province, to 
 whom he is sworn to pay due obedience id). His dignity 
 is usually called a see (sedes), and his church a cathedral (e). 
 Among the principal powers which he exercises are those 
 of ordaining priests and deacons (/), consecrating churches, 
 and [inspecting the manners of the people and clergy (^r),] 
 for which purpose [he may visit at pleasure every part of 
 his diocese.] He is also an ecclesiastical judge (h) : but 
 [his chancellor is appointed to hold his courts for him, and 
 to assist him in matters of ecclesiastical law (i).] In case 
 of complaint, however, against a clerk in holy orders, for 
 any ecclesiastical offence, under the Church Discipline Act, 
 3 & 4 Vict. c. 86, the bishop (after a preliminary inquiry 
 before commissioners) holds a court to hear the cause in 
 person, assisted by three assessors, of whom the dean of his 
 cathedral, or one of his archdeacons, or his chancellor, must 
 be one, and a serjeant at law, or advocate who has prac- 
 tised five years in the court of the province, or a barrister 
 of seven years' standing, another. [It is also the business 
 of a bishop to institute, and to direct induction, to all eccle- 
 
 (b) 25 Hen. 8, c. 21, s. 5. 
 
 (c) As to dioceses, vide sup. vol. i. 
 p. 112. A clergyman is said to owe 
 canonical obedience to the bishop 
 who ordained him, to the bishop in 
 whose diocese he is beneficed, and 
 also to the metropolitan of such 
 bishop. 4 Bl. Com. 203 ; I Hale, 
 P. C. 381. 
 
 (rf) See preamble to 20 Geo. 3, 
 c. 84. 
 
 (e) As to the government of cathe- 
 drals and collegiate churches, see 
 6 Ann. c. 21 ; 3 & 4 Vict. c. 113 ; 
 4 & 5 Vict. c. 39. We may remark 
 here, that a collegiate church is a 
 church consisting of a body corpo- 
 rate of dean and canons, such as 
 
 Westminster, Windsor, &c, inde- 
 pendently of any Cathedral. 
 
 (/) See 59 Geo. 3, c. 60 ; 3 & 4 
 Vict. c. 33 ; 15 & 16 Vict. c. 52, as 
 to ordination of deacons or priests 
 for or in the colonies. Et vide sup. 
 vol. i. pp. 104, 106, 110. 
 
 (g) See Re Dean of York, 2 Ad. 
 & El. N. S. 1. 
 
 (h) Vide sup. vol. ii. p. 194; et 
 post, bk. v. c. 5. As to the local 
 limits of his jurisdiction as affected 
 by the new arrangement of dioceses 
 in pursuance of the recommendations 
 of the ecclesiastical commissioners, 
 see 10 & 11 Vict. c. 98; continued 
 by 15 & 16 Vict. c. 17. 
 
 (0 Vide Godolph. Ab. 82.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 
 
 15 
 
 siastical livings in his diocese,] and to license curates, and 
 regulate their salaries (k). 
 
 [Archbishoprics and bishoprics may become void by 
 death, deprivation for any very gross and notorious crime, 
 and also by resignation (I). All resignations must be made 
 to some superior (m). Therefore a bishop must resign to 
 his metropolitan; but the archbishop can resign to none but 
 the king himself.] 
 
 The claims of the crown on archbishoprics and bishoprics, 
 in respect of the custody of the temporalties, and in respect 
 of the first fruits and tenths of all spiritual preferments, in- 
 cluding archbishoprics and bishoprics, have been already 
 noticed in a former part of the work (»). They need not, 
 therefore, be again discussed in this place. We may men- 
 tion however here, that, when any spiritual person is made 
 a bishop, all the preferments of which he was before pos- 
 sessed become in general, upon his consecration, void, and 
 the sovereign may present to them by his prerogative 
 royal (o). 
 
 II. [A dean and chapter (p) are the council of the bishop, 
 
 (fc) 1 & 2 Vict. c. 106, s. 77. See 
 3 & 4 Vict. c. 33, authorizing the 
 bishops of England or Ireland to 
 permit clergy of the Protestant epis- 
 copal Church in Scotland, or the 
 United States to officiate in their 
 respective dioceses. 
 
 (I) By 6 & 7 Vict. c. 62, provisions 
 are made for the performance of the 
 episcopal functions in the case of 
 the incapacity of any archbishop or 
 bishop. 
 
 (m) Gibs. Cod. 822. 
 
 (?i) Vide sup. vol. ii. pp. 515. 
 
 (o) 1 Bl. Com. 383; Basset v. Gee, 
 Cro. Eliz. 790 ; Att.-Gen. v. Bishop 
 of London, 4 Mod. 210 ; Grocers' 
 Company v. Archbishop of Canter- 
 bury, 2 W. Bl. 770. It is laid down 
 also by Sir E. Coke, 2 Inst. 491, that 
 
 on the death of every prelate in Eng- 
 land, the crown is entitled to six 
 things, viz. the bishop's best horse 
 or palfrey, with his furniture ; his 
 cloak or gown, and tippet; his cup 
 and cover ; his bason and cover ; his 
 gold ring ; and, lastly, his muta canum, 
 his mew or kennel of hounds. 2 Bl. 
 Com. 426. This is considered by 
 Blackstone as in the nature of a mor- 
 tuary (as to these, vide post, p. 98) ; 
 but Lord Coke says it was a fine to 
 the crown for empowering the bishops 
 to grant probates, &c. Vide Mire- 
 house v. Rennell, 8 Bing. 497. 
 
 (p) See various provisions for new 
 arrangements in cathedral and col- 
 legiate churches, 3 & 4 Vict. c. 113; 
 4 & 5 Vict. c. 39.
 
 16 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [to assist him with their advice in affairs of religion, and also 
 in the temporal concerns of his see(r/). When the rest of 
 the clergy were settled in the several parishes of each dio- 
 cese (as hath formerly (r) been mentioned), these were re- 
 served for the celebration of divine service in the bishop's 
 own cathedral ; and the chief of them, who presided over 
 the rest, obtained the name of decanus or dean (s).~] 
 
 The chapter, who, as distinct from the dean, consist of 
 certain dignitaries called canons (t), [are sometimes ap- 
 pointed by the crown, sometimes by the bishop, and some- 
 times by each other (u). ] And the antient deans were 
 formerly elected by the chapters, by conge d'elire from the 
 crown, and letters missive of recommendation, in the same 
 manner as bishops ; but in the modern deaneries, viz., those 
 that were founded by Henry the eighth out of the spoils of 
 the dissolved monasteries, the title has always been dona- 
 tive, and the installation merely by letters-patent from the 
 crown (x). And now this is the course also with respect to 
 the antient deaneries ; it being provided by 3 & 4 Vict, 
 c. 113, that every such deanery (except in Wales) shall 
 thenceforth be in the direct patronage of her Majesty, who 
 may, on the vacancy thereof, appoint by letters-patent a 
 spiritual person to be dean (;?/). And by the same act it is 
 farther provided, that no person shall hereafter be capable 
 of receiving the appointment of dean, archdeacon, or canon, 
 until he shall have been six years complete in priest's orders 
 (except in the case of a canonry annexed to any professor- 
 
 (q) Dean and Chapter of Nor- dean, in every cathedral and col- 
 
 wich's case, 3 Rep. 75; Co. Litt. 103, legiate church in England, shall be 
 
 300. styled canons. 
 
 (r) Vide sup. vol. i. p. 112. (u) See 3 & 4 Vict. c. 113, s. 24, 
 
 (s) This, says Blackstone, was 26 ; 4 & 5 Vict. c. 39, as to the right 
 
 probably because he was at first ap- of appointment to certain canonries. 
 
 pointed to superintend ten canons or (j) See the learned note by Mr. 
 
 prebendaries. Hargrave, Co. Litt. 95 ; 1 Bl. Com. 
 
 (0 By 3 & 4 Vict. c. 113, s. 1, all 383. 
 
 the members of chapters, except the (y) Sect. 24.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 17 
 
 ship, headship, or other office in any university (z) ); that 
 the dean shall reside for at least eight months in the 
 year (a) ; that the term of a canon's residence shall be at 
 least three months in the year (b) ; that the right of ap- 
 pointing a regulated number of minor canons, with sala- 
 ries, shall in future be in all cases vested in the respective 
 chapters (c) ; and that honorary canons (without emolu- 
 ment) shall be established in every cathedral church in 
 which there are not already founded any non-residentiary 
 prebends, dignitaries, or officers, and shall be in the gift of 
 the archbishops and bishops respectively (d). 
 
 [The dean and chapters are, as was before observed, the 
 nominal electors of a bishop. The bishop is their ordi- 
 nary (e), and immediate superior ; and has, generally speak- 
 ing, the power of visiting them(/); and correcting their 
 excesses and enormities. They had also a check on the 
 bishop at common law : for till the statute 32 Hen. VIII. 
 c. 28,] (which enabled him to grant leases not exceeding 
 twenty-one years or three lives, on his sole authority,) [his 
 grant or lease would not have bound his successors, unless 
 confirmed by the dean and chapter (g). 
 
 Deaneries and prebends may become void, like a bishop- 
 ric, by death, by deprivation, or by resignation to either the 
 king or the bishop (h). 
 
 III. [An archdeacon (i) hath an ecclesiastical jurisdiction, 
 i mmediately subordinate to the bishop, in some particular 
 
 (s) Sect. 27. (g) Co. Litt. 44 a, 103 a. 
 
 (a) Sect. 3. (h) Grendon v. Bishop of Lincoln, 
 
 (b) Ibid. Plowd. 498. 
 
 (c) Sect. 45. (i) As to the ecclesiastical division 
 
 (d) Sect. 23. of dioceses into archdeaconries, of 
 
 (e) As to the ordinary, vide sup. archdeaconries into rural deaneries, 
 vol. ii. p. 186. and ot rural deaneries into parishes, 
 
 (/) See Re Dean of York, 2 Ad. vide sup. vol. i. p. 112. 
 & El. N. S. 1. 
 
 VOL. III. .'. C
 
 18 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [part of the diocese. He is usually appointed by the bishop 
 himself; and hath a kind of episcopal authority, originally 
 derived from the bishop, but now independent and distinct 
 from his (A). He therefore visits the clergy; and has his 
 separate court for punishment of offenders by spiritual cen- 
 sures, and for hearing all other causes of ecclesiastical cogni- 
 zance (/).] In general, however, (and subject to exception 
 in the case of particular archdeaconries), the jurisdiction of 
 the archdeacon and the bishop are concurrent, so that a suit 
 may be commenced in the court of either (m). 
 
 IV. [The rural deans are very antient officers of the 
 church {n), but almost grown out of use; though their 
 deaneries still subsist as an ecclesiastical division of the 
 diocese, or archdeaconry (o). They seem to have been 
 deputies of the bishop, planted all round his diocese, the 
 better to inspect the conduct of the parochial clergy, to 
 inquire into and report dilapidations, and to examine the 
 candidates for confirmation ; and armed, in minuter mat- 
 ters, with an inferior degree of judicial and coercive autho- 
 rity (])). 
 
 V. The next, and indeed the most numerous, order of 
 men in the system of ecclesiastical polity, are the parsons 
 and vicars of churches : in treating of whom, we shall 
 first mark out the distinction between them ; shall next 
 observe the method by which one may become a parson 
 
 (k) 1 Burn's Eccl. Law, 6'8, 69. provisions as to the endowment and 
 
 (I) By 6 & 7 Will. 4, c. 77, s. 19, arrangement of archdeaconries. 
 
 it is provided that all archdeacons (m) Rogers's Eccl. Law, 60. See 
 
 throughout England and Wales farther as to the archdeacon's court, 
 
 should have and exercise full and post, hk. v. c. 5. 
 
 equal jurisdiction within their re- (n) Kennett, Par. Artiq. 633. 
 
 spective archdeaconries, any usage to Dansey, Horae Decanica? Rurales. 
 
 the contrary notwithstanding. And (») See 6 & 7 Will. 4, c. 77, s. 1 ; 
 
 see 6 & 7 Will. 4, c. 77 ; 3 & 4 Vict. and 3 & 4 Vict. c. 113, s. 32. 
 
 c. 113 ; and 4 & 5 Vict. c. 39, for (p) Gibs. Cod. 972, 1550.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 19 
 
 [or vicar ; shall then briefly touch upon their rights and 
 duties; and shall, lastly, show how one may cease to be 
 either. 
 
 1 . A parson, persona ecclesia>, is one that hath full pos- 
 session of all the rights of a parochial church (q). He is 
 called parson, persona, because by his person the church, 
 which is an invisible body, is represented.] He is also 
 [sometimes called the rector, or governor, of the church : 
 but the appellation of parson (however it may be depre- 
 ciated by familiar, clownish, and indiscriminate use,) is the 
 most legal, most beneficial, and most honourable title that 
 a parish priest can enjoy ; because such a one, (Sir Edward 
 Coke observes,) and he only, is said vicem seu personam 
 ecclesia gerere. A parson has, during his life, the freehold 
 in himself of the parsonage house, the glebe, the tithes, 
 and other dues. But these are sometimes appropriated ; 
 that is to say, the benefice is perpetually annexed to some 
 spiritual corporation, either sole or aggregate, being the pa- 
 tron of the living ; which the law esteems equally capable 
 of providing for the service of the church, as any single 
 private clergyman (?■)•] It will be proper, however, to exa- 
 mine more closely the doctrine of appropriation, with which 
 the law of vicars is closely connected. 
 
 [This contrivance seems to have sprung from the policy 
 of the monastic orders, who have never been deficient in 
 subtile inventions for the increase of their own power and 
 emoluments. At the first establishment of parochial clergy, 
 the tithes of the parish were distributed in a fourfold divi- 
 sion ; one for the use of the bishop, another for maintain- 
 ing the fabric of the church, a third for the poor, and the 
 fourth to provide for the incumbent. When the sees of 
 
 (g) As to parishes and parochial tit.; Wats. C. L. 191; GrenJon v. 
 
 churches, vide sup. vol. i. p. 112 — Bishopof Lincoln, Plowd. 493; Duke 
 
 118. of Portland v. Bingham, 1 Hagg. 
 
 (r) The subject of appropriation is Consist. Rep. 1G2. 
 fully explained in Burn's Ecc. L. in 
 
 c. 2
 
 20 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [the bishops became otherwise amply endowed, they were 
 prohibited from demanding their usual share of these tithes, 
 and the division was into three parts only. And hence it 
 was inferred by the monasteries, that a small part was suf- 
 ficient for the officiating priest ; and that the remainder 
 might well be applied to the use of their own fraternities, 
 (the endowment of which was construed to be a work of 
 the most exalted piety,) subject to the burthen of repairing 
 the church and providing for its constant supply. And 
 therefore they begged and bought, for masses and obits, 
 and sometimes even for money, all the advowsons within 
 their reach, and then appropriated the benefices to the use 
 of their own corporation. But, in order to complete such 
 appropriation effectually, the king's licence, and consent of 
 the bishop, must first be obtained ; because both the king 
 and the bishop may some time or other have an interest, 
 by lapse, in the presentation to the benefice; which can 
 never happen if it be appropriated to the use of a corpora- 
 tion, which never dies : and also because the law reposes a 
 confidence in them, that they will not consent to any thing 
 that shall be to the prejudice of the church. The consent 
 of the patron also is necessarily implied, because (as was 
 before observed) the appropriation can be originally made 
 to none, but to such spiritual corporation as is also the 
 patron of the church ; the whole being indeed nothing else 
 but an allowance for the patrons to retain the tithes and 
 glebe in their own hands, without presenting any clerk, 
 they themselves undertaking to provide for the service of 
 the church (s). When the appropriation is thus made, the 
 appropriators and their successors are perpetual parsons 
 of the church ; and must sue and be sued, in all matters 
 concerning the rights of the church, by the name of par- 
 sons (<)•] 
 
 Appropriators were thus in their origin always persons 
 
 (s) Grendon v. Bishop of Lincoln, Plowd. 496 — 500. 
 (t) Wright v. Gerard, Hob. 307-
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 21 
 
 spiritual, being bishops, prebendaries, monasteries, and 
 other religious houses, [nay, even nunneries, and certain 
 military orders ; all of which were spiritual corporations.] 
 But the case is now different; for by 27 Hen. VIII. c. 28, 
 and 31 Hen. VIII. c. 13, the monasteries and religious 
 houses were dissolved, and the appropriations which be- 
 longed to them respectively, [amounting to more than one- 
 third of all the parishes in England (u),~\ were given to the 
 king in as ample a manner as the bishops, &c. formerly 
 held the same at the time of their dissolution; a proceed- 
 ing which, [though perhaps scarcely defensible, was not 
 without example,] for the same thing was done in former 
 reigns with respect to the alien priories, (that is, such as 
 were filled by foreigners only (x) ) ; and many of the ap- 
 propriations so vested in the crown by the effect of these 
 several dissolutions, being aftenvards from time to time 
 granted out by the crown to subjects, are now in the hands 
 of lay persons, who are usually styled, by way of distinc- 
 tion, lay impropriators, though the term of apyropria- 
 tors is in strictness as applicable to these as to the original 
 holders (y). 
 
 Appropriations of either class are capable, it is held, of 
 being severed, so that the church may become disappro- 
 priate ; and that in [two w r ays : as first, if the patron or 
 appropriator presents a clerk, who is instituted and in- 
 ducted to the parsonage : for the incumbent so instituted 
 and inducted is to all intents and purposes complete par- 
 son ; and the appropriation being once severed, can never 
 be re-united again, unless by a repetition of the same so- 
 lemnities (z).~\ Secondly, [if the corporation which has the 
 appropriation is dissolved, the parsonage becomes disappro- 
 priate at common law ; because the perpetuity of person is 
 gone, which is necessary to support the appropriation.] 
 
 (u) Seld. Review of Tithes, c. 9 ; 66; Christian's Blackstone, vol. i. 
 
 Spelm. Apology, 35. 388, (n.) ; Spelm. Tithes, c. 29. 
 (i) 2 Inst. 584. (s) Co. Litt. 46, 
 
 {y) Vide Burn's Eccl. Law, vol. i.
 
 22 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 In all appropriations there is generally a spiritual person 
 attached to the same church, under the name of vicar, to 
 whom the spiritual duty, or cure of souls (as it is termed), 
 belongs, in the same manner, as in parsonages not appro- 
 priated (or rectories) to the rector : and to whom, on the 
 other hand, a certain portion of the tithes or other emolu- 
 ments of the church, by way of exception out of those en- 
 joyed by the appropriator, is assigned. The origin of these 
 vicars (a) is as follows : 
 
 [The appropriating corporations, or religious houses, were 
 wont to depute one of their own body to perform divine 
 service, and administer the sacraments, in those parishes 
 of which the society was thus the parson. This officiating 
 minister was in reality no more than a curate, deputy, or 
 vicegerent of the appropriator, and therefore called vicarius 
 or vicar (b). His stipend was at the discretion of the ap- 
 propriator, who was however bound of common right to 
 find somebody, qui Mi de temporalibus, ejnscojjo de sjnritu- 
 alibits, debeat respondere (c). But this was done in so 
 scandalous a manner, and the parishes suffered so much 
 by the neglect of the appropriators, that the legislature was 
 forced to interpose : and accordingly it is enacted by sta- 
 tute 15 Rich. II. c. 6, that in all appropriations of churches, 
 the diocesan bishop shall ordain, (in proportion to the value 
 of the church,) a competent sum to be distributed among 
 the poor parishioners annually ; and that the vicarage shall 
 be sufficiently endowed. It seems the parish were fre- 
 quently sufferers, not only by the want of divine service, 
 but also by withholding those alms, for which, among other 
 purposes, the payment of tithes was originally imposed : 
 and therefore in this act a pension is directed to be distri- 
 
 (a) As to vicarages, see 40 Edw. seem that such ministers existed as 
 3, pi. 27; Britton v. Wade, Cro. Jac. long ago as the reign of Henry the 
 510' ; Spelm. Tithes, 153; Bird u. second, but they are said to have 
 Eelph, 2 Ad. & El. 780 ; Rogers's been then few in number. Bird v. 
 Eccl. L. 8!)0. Relph, ubi sup. 
 
 (b) Grendon v. Bishop of Lincoln, (<•) Scld. Titli. c. 11, 1. 
 ubi sup. ; Seld. c. 11, s. 1. It would
 
 CHAP. I. — OF THE ECCESIASTICAL AUTHORITIES. 23 
 
 [buted among the poor parochians, as well as a sufficient 
 stipend to the vicar. But he, being liable to be removed 
 at the pleasure of the appropriator, was not likely to insist 
 too rigidly on the legal sufficiency of the stipend : and 
 therefore by statute 4 Hen. IV. c. 12, it is ordained, that 
 the vicar shall be a secular person, not a member of any 
 religious house ; that he shall be vicar perpetual, not re- 
 movable at the caprice of the monastery ; and that he shall 
 be canonically instituted and inducted, and be sufficiently 
 endowed, at the discretion of the ordinary, for these three 
 express purposes, to do divine service, to inform the people, 
 and to keep hospitality (d). The endowments in conse- 
 quence of these statutes have usually been by a portion of 
 the glebe or lands belonging to the parsonage, and a parti- 
 cular share of the tithes, which the appropriators found it 
 most troublesome to collect;] the greater part [being still 
 reserved to their own use. But one and the same rule was 
 not observed in the endowment of all vicarages. Hence 
 some are more liberally and some more scantily endowed : 
 and hence the tithes of many things, as wood in particular, 
 are in some parishes rectorial, and in some vicarial tithes.] 
 Such is the history of the distinction between rectors and 
 vicars, the law on which subject may be summarily stated 
 thus. Of parochial churches some have been appropriated, 
 others have not : of the non-appropriated (called rectories) 
 there is no vicar, but a rector only, who is of necessity a 
 spiritual person, and has the cure of souls in the parish (e), 
 with the exclusive title to all the emoluments : of the ap- 
 
 (rf) "From this act we may date " secundum regulas of their respective 
 
 " the origin of the present vicarages; " houses or societies, were denomi- 
 
 " for before this time the vicar was " nated regular clergy, in contra- 
 
 " nothing more than a temporary " distinction to the parochial clergy, 
 
 " curate, and when the church was " who performed their ministry in 
 
 "appropriated to a monastery, he " the world, in seculo, and who from 
 
 "was generally one of their own " thence were called secular clergy." 
 
 " body, that is, one of the regular — Christian's Blackstone. 
 
 " clergy; for the monks, who lived (e) By 2 & 3 Vict. c. 30, reciting
 
 24 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 propriated, there is generally, besides the rector or appro- 
 priated, a vicar : and in churches so circumstanced (termed 
 vicarages) the appropriate*!- is either ecclesiastical or lay, 
 corporation aggregate or individual, as the case may be, 
 but has never (as appropriated) the cure of souls within 
 the parish ; while the vicar, on the other hand, is always 
 an individual and spiritual person, and is charged with the 
 cure of souls. And as to the emoluments in vicarages, 
 they belong in part to the appropriator, in part to the vicar, 
 according to distinctions already in part referred to, but to 
 be discussed more fully hereafter. To these explanations 
 it may be proper to add, that in non-appropriated churches, 
 the rector, — in those which are appropriated, the vicar, — is 
 seised for his life only, the fee being in abeyance (/) ; but 
 the appropriator may be seised in fee, or of a less estate, 
 according to the circumstances of his title. 
 
 But it is not in all appropriations that a vicar exists ; for 
 in some it happens, in consequence of their being exempted 
 (for particular reasons) from the statute of Hen. IV. c. 
 12 (g), that no vicar has ever been endowed. Such churches 
 however usually possess a permanent minister in holy 
 orders, of the same general description, who, under the de- 
 nomination of perpetual curate (h), is charged with the cure 
 of souls, and entitled to emolument for his services ; and 
 where there is no perpetual curate properly so called, the 
 appropriator is bound from time to time to provide some 
 person in holy orders to perform the same duty, and to pay 
 him a proper remuneration for his services (i). 
 
 that there are several benefices, in son v. Lambert, 12 Q. B. 795). And 
 
 which more than one spiritual person as to perpetual curates in general, 
 
 has the general cure of souls, the see Doe v. Thomas, 9 A. & E. 556 ; 
 
 bishop is empowered, where such is Hine v. Reynolds, 2 Man. & Gr. 71 ; 
 
 the case, to order an apportionment Doe d. Brammall v. Collinge, 7 C. B. 
 
 of the spiritual services. 939 ; 1 Geo. 1, c. 10, ss. 4 and 21. 
 
 (/) Vide sup. vol. i. p. 228. (i) See 1 & 2 Vict. c. 31 ; Hine v. 
 
 (g) 1 Bl. Com. 394 ; 1 Burn's Reynolds, ubi sup. and the autho- 
 
 Eccl. L. 427 ; Wats. C. L. 172. rities there cited. Also, Arthington 
 
 (/i) A perpetual curate is liable to v. Bishop of Chester, 1 H. Bl. 429. 
 his successor for dilapidations (Ma-
 
 CHAP. I.— OF THE ECCLESIASTICAL AUTHORITIES. 25 
 
 It is to be observed also, as another anomaly in the law 
 of vicarages, that in former times the rector of a benefice 
 having cure of souls sometimes obtained permission from 
 superior authority to appoint a vicar to officiate under 
 him; so that, by this means, two persons were instituted to 
 the same church, and both had cure of souls; the effect 
 of which was, that by custom the rector became at length 
 entirely relieved from residence, and from all other spiritual 
 duties. An incumbent so circumstanced is commonly called 
 a sinecure rector, or rector without cure of souls (k). But 
 by a late statute, 3 & 4 Vict. c. 113, it is now provided that 
 all ecclesiastical rectories without cure of souls in the sole 
 patronage of the crown, or of any ecclesiastical corporation 
 aggregate or sole, and having a vicar endowed or a per- 
 petual curate, shall immediately upon the future vacancies 
 thereof respectively be suppressed ; and that with respect 
 to all such as are in the patronage of any other person, the 
 patronage of them may be at any time sold to the Eccle- 
 siastical Commissioners, and upon the completion of such 
 purchase the same shall respectively be suppressed (/) ; and 
 the lands, tithes and endowments thereof shall be vested in 
 the Ecclesiastical Commissioners (m), and may be after- 
 wards annexed, when it shall appear expedient, to the 
 vicarage or perpetual curacy ; which shall be thereupon 
 constituted a rectory with cure of souls (n). And moreover, 
 that wherever any rectory theretofore deemed a rectory 
 without cure of souls had been held, together with the vicar- 
 age dependent thereon, for the period of twenty years then 
 last past, the same shall not be construed to be a rectory 
 without cure of souls within the meaning of that act, but 
 shall become permanently a rectory with cure of souls (o). 
 
 We have thus had occasion incidentally to notice three 
 
 (fc) See 2 Burn's Eccl. L. 347 ; (0 Sect. 48. 
 
 Christian's Blackstone, vol. i. p. 386, (#«) Sect. 54. 
 
 (n.); Rogers' Eccl. L. 890; Gibs. (») Sect. 55. 
 
 Cod. 753. (o) Ibid.
 
 26 BK. IV. OF PUBLIC RIGHTS.— PT. II. OF THE CHURCH. 
 
 several kinds of parochial preferments, rectories, vicarages, 
 and perpetual curacies; to which may be added (as we 
 shall see hereafter) district churches and endowed chapel- 
 ries. And as to all these we may remark, that they are 
 usually comprehended under the general term of benefice (p); 
 a term indeed which, in its technical sense, extends not only 
 to these, but also to ecclesiastical preferments to which rank 
 or public office is attached, and which are described in our 
 books as ecclesiastical dignities or offices, such as bishop- 
 rics, deaneries, and the like (q) ; but in popular acceptation 
 it is almost invariably appropriated to rectories, vicarages, 
 and the other parochial preferments above enumerated (r). 
 2. [The method of becoming a parson or a vicar is much 
 the same. To both there are] in general [four requisites 
 necessary : holy orders, presentation, institution, and in- 
 duction.] The method of conferring holy orders has been 
 already so far noticed as the purpose of these Commentaries 
 required ; we shall therefore only remark here, in reference 
 to this qualification, that though, [by the common law, a 
 deacon of any age might be instituted and inducted to a 
 parsonage or vicarage,] it was afterwards provided by 13 
 Eliz. c. 12, that no deacon under twenty-three years of age 
 should be so admitted ; and that a deacon, not ordained 
 priest within one year after his induction, should be ipso 
 facto deprived ; and now, by statute 13 & 14 Car. II. c. 4, 
 s. 14, it is enacted that no person shall be capable of being 
 
 (/>) As to the primary meaning of ferments ; by the former of which it 
 
 the word benefice (a term derived is to be understood to mean all pa- 
 
 from the feudal law), vide sup. vol. i. rochial or district churches, and en- 
 
 p. ICG. dovved chapels and chapelries ; by 
 
 ((/) 3 Inst. 155. the latter, all deaneries, archdea- 
 
 (?) By 1 & 2 Vict. c. 106, s. 124, conries, and canonries, and gene- 
 
 a distinction is expressly made be- rally all dignities and offices in any 
 
 tween benefices and such preferments cathedral or collegiate church below 
 
 as have either rank or public office the rank of a bishop. See also as 
 
 connected with them, that statute to the term benefice, 5 & 6 Vict. c. 
 
 having adopted the two general 27, s. 15; c. 108, s. 31 ; and 13 & 
 
 terms of benejices and cathedral -pre- 14 Vict. c. 98, s. 3.
 
 CHAP. I, — OF THE ECCLESIASTICAL AUTHORITIES. 27 
 
 admitted to any benefice unless he shall have been first or- 
 dained priest (s). 
 
 [Any clerk may be presented (t) to a parsonage or vicar- 
 age; that is, the patron, to whom the advowson of the 
 church belongs, may offer his clerk to the bishop of the 
 diocese to be instituted. Of advowsons, or the right of 
 presentation, being a species of private property, we shall 
 find a more convenient place to treat] under our third 
 division, relating to the benefices and endowments of the 
 church (u) ; and shall for the present only remark, that if 
 the patron neglects to present for the period of six calendar 
 months, the bishop becomes entitled himself, by lapse (as 
 it is called), to put a clerk into the vacant benefice. [But 
 when a clerk is presented, the bishop may refuse him upon 
 many accounts. As, 1. If the patron is excommunicated, 
 and remains in contempt forty days (v). Or, 2. If the 
 clerk be unfit (x) : which unfitness is of several kinds. 
 First, with regard to his person ; as if he be a bastard ( y), 
 an outlaw, an excommunicate, an alien, under age, or the 
 like (z). Next with regard to his faith or morals ; as for 
 any particular heresy, or vice that is malum in se: but if 
 the bishop alleges only in generals, as that he is schismaticus 
 inveteratus, or objects a fault that is malum prohibitum 
 merely, as haunting taverns, playing at unlawful games, or 
 the like, it is not good cause of refusal («). Or, lastly, the 
 clerk may be unfit to discharge the pastoral office for want 
 of learning. In any of which cases the bishop may refuse 
 the clerk. In case the refusal is for heresy, schism, ina- 
 
 (s) As to the ages at which a man " the books among the causes of re- 
 may be ordained deacon or priest, " fusal, yet such is the liberality of 
 vide sup. p. 2. " the present times, that no one 
 
 (/) A layman may also be pre- " need apprehend that his present- 
 
 sented ; but he must take priest's " ment would be impeded by the 
 
 orders before his admission. 1 " incontinence of his parents, or by 
 
 Burn's E. L. 103. " any demerit but his own." — Chris- 
 
 (n) Vide post, p. 65. tian's Blackstone, vol. i. p. 389, (n.). 
 
 (v) 2 Roll. Abr. 355. (?) 2 Roll. Abr. 356 ; 2 Inst. 632 ; 
 
 0) Glanv. 1. 13, c. 20. stat. 3 Ric. 2, c. 3 ; 7 Ric. 2, c. 12. 
 
 (y) " Though this be classed in (a) Specot's case, 5 Rep. 58.
 
 28 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [bility of learning, or other matter of ecclesiastical cogni- 
 zance, there the bishop must give notice to the patron of 
 such his cause of refusal (&,)] at least if he be a layman, for in 
 that case he is presumably unaware of the disability. But 
 if the objection be a temporal one, the bishop is not bound 
 to give notice of his refusal (c), and, if six calendar months 
 expire before a fitter clerk is offered, may take advantage 
 of the lapse. 
 
 [If an action at law be brought by the patron against 
 the bishop for refusing his clerk, the bishop must assign 
 the cause. If the cause be of a temporal nature, and the 
 fact admitted, (as, for instance, outlawry,) the judges of 
 the king's courts must determine its validity, or whether it 
 be sufficient cause of refusal ; but if the fact be denied, it 
 must be determined by a jury. If the cause be of a spiritual 
 nature, (as heresy, particularly alleged,) the fact, if denied, 
 shall also be determined by a jury ; and if the fact be ad- 
 mitted or found, the court upon consultation and advice of 
 learned divines shall decide its sufficiency (d). If the cause 
 be want of learning, the bishop need not specify in what 
 points the clerk is deficient, but only allege that he is de- 
 ficient (e) : for the statute 9 Edw. II. st. 1, c. 13, is express, 
 that the examination of the fitness of a person presented 
 to a benefice belongs to the ecclesiastical judge. But 
 because it would be nugatory in this case to demand the 
 reason of refusal from the ordinary, if the patron were 
 bound to abide by his determination, who has already pro- 
 nounced his clerk unfit ; therefore, if the bishop returns 
 the clerk to be minvs svfficiens in literatura, the court shall 
 write to the metropolitan to re-examine him, and certify 
 his qualifications ; which certificate of the archbishop is 
 final (/). 
 
 If the bishop hath no objections, but admits the patron's 
 
 (b) Vide Gorham v. Bishop of (e) Specot's case, ubi sup. ; Hele 
 Exeter, 15 Q. B. 52, et post, b v. c. v. v. Bishop of Exeter, 3 Lev. 313. 
 
 (c) 2 Inst. 632. (/) 2 Inst. 632. 
 
 (d) Ibid.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 29 
 
 [presentation, the clerk so admitted is next to be instituted 
 by him ; which is a kind of investiture of the spiritual part 
 of the benefice ; for by institution the care of the souls of 
 the parish is committed to the charge of the clerk (#).] 
 [But when the ordinary is also the patron, and confers the 
 living, the presentation and institution are one and the 
 same act, and are called a collation to a benefice. By in- 
 stitution or collation the church is full, so that there can be 
 no fresh presentation till another vacancy, at least in the 
 case of a common patron ; but the church is not full against 
 the crown, till induction : nay, even if a clerk is instituted 
 upon the crown's presentation, the crown may revoke it 
 before induction, and present another clerk (A). Upon in- 
 stitution, also, the clerk may enter on the parsonage-house 
 and glebe, and take the tithes ; but he cannot grant or let 
 them, or bring an action for them, till induction. 
 
 Induction is performed by a mandate from the bishop to 
 the archdeacon, who usually issues out a precept to other 
 clergymen to perforin it for him. It is done by giving the 
 clerk corporal possession of the church, as by holding the 
 ring of the door, tolling a bell, or the like ; and is a form 
 required by law, with intent to give all the parishioners due 
 notice, and sufficient certainty of their new minister, to 
 whom their tithes are to be paid. This therefore is the 
 investiture of the temporal part of the benefice, as institu- 
 tion is of the spiritual. And when a clerk is thus presented, 
 instituted and inducted into a rectory, he is* then, and not 
 before, in full and complete possession, and is called in law 
 persona impersonata, or parson imparsonee(i).] The title, 
 however, of any person admitted to a rectory or other bene- 
 fice will be afterwards divested, unless within two months 
 after actual possession he publicly read in the church of the 
 benefice, upon some Lord's day, and at the appointed times, 
 
 (g) A vicar was formerly bound, See 1 & 2 Vict. c. 106, s. 61. 
 
 upon institution, to take an oath of (h) Co. Litt. 344. 
 
 perpetual residence. 1 Bla. Com. (<) Co. Litt. 300. 
 390. But this is now abolished.
 
 30 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 the morning and evening service according to the Book of 
 Common Prayer ; and afterwards publicly, before the con- 
 gregation, declare his assent to such book (j) ; and also 
 publicly read the Thirty-nine Articles in the same church in 
 the time of common prayer, with declaration of his assent 
 thereto (k) ; and moreover, within three months after his 
 admission, read upon some Lord's day, in the same church, 
 in the presence of the congregation, in the time of divine 
 service, a declaration, by him subscribed before the ordinary, 
 of conformity to the Liturgy, together with the certificate 
 of the ordinary of its having been so subscribed (I). 
 
 In addition to the methods which have been mentioned, 
 of presentation and collation, it is to be observed, that a 
 clerk may also acquire certain benefices by mere donation, 
 that is, by deed of gift alone, without presentation, insti- 
 tution, or induction (m). And nearly similar to this is the 
 manner of becoming a perpetual curate ; for this requires 
 no presentation, institution, or induction (n). It differs, 
 however, from a pure donative in this, that the perpetual 
 curate cannot legally officiate until he obtains the bishop's 
 licence (o). As to these perpetual curacies, their origin has 
 been already explained. With respect to donatives they 
 are created whenever [the king, or any subject by his li- 
 cence, doth found a church or chapel, and ordains that it 
 shall be merely in the gift or disposal of the patron, subject 
 to his visitation only, and not to that of the ordinary, and 
 vested absolutely in the clerk, by the patron's deed of do- 
 nation, without presentation, institution, or induction (p). 
 This is said to have been antiently the only way of con- 
 ferring ecclesiastical benefices in England ; the method of 
 
 (j) 13 & 14 Car. 2, c. 4, s. 6. Rennell v. Bishop of Lincoln, 7 B. 
 
 (A) 13 Eliz. c. 12, s. 3. & C. 113 ; S. C. in error, 8 Bing. 
 
 (/) 13 & 14 Car. 2, c. 4, s. 8— 12; 490; Wats. C. L. 170; Queen v. 
 
 1 W. & M. sess. 1, c. 8, s. 11. Foley, 2 C. B. G6'4. 
 
 (m) Co. Litt. 344. As to dona- (n) Wats. C. L. 172. 
 
 tives, see Repington t;. Governor of (o) R. v. Bishop of Chester, 1 
 
 Tamworth School, 2 Wils. 150; 2 T. R. 403 ; Wats. C. L. 172. 
 
 Bla. Com. 23, note by Christian ; (p) Co. Litt. 344.
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 31 
 
 [institution by the bishop not being established more early 
 than the time of Archbishop Becket, in the reign of Henry 
 the second (g). And therefore though Pope Alexander the 
 third (r), in a letter to Becket, severely inveighs against the 
 prava consuetnclo, as he calls it, of investiture conferred by 
 the patron only, this however shows what was then the 
 common usage. Others contend that the claim of the 
 bishops to institution is as old as the first planting of Chris- 
 tianity in this island ; and in proof of it they allege a letter 
 from the English nobility to the Pope in the reign of Henry 
 the third, recorded by Matthew Paris (s), which speaks of 
 presentation to the bishop as a thing immemorial. The 
 truth seems to be, that, where the benefice was to be con- 
 ferred on a mere layman, he was first presented to the 
 bishop, in order to receive ordination, who was at liberty to 
 examine and refuse him : but where the clerk was already 
 in orders, the living was usually vested in him by the sole 
 donation of the patron, till about the middle of the twelfth 
 century, when the Pope and his bishops endeavoured to 
 introduce a kind of feodal dominion over ecclesiastical 
 benefices, and, in consequence of that, began to claim and 
 exercise the right of institution universally, as a species of 
 spiritual investiture. 
 
 However this may be, if, as the law now stands, the true 
 patron once waives this privilege of donation, and presents 
 to the bishop, and his clerk is admitted and instituted, the 
 advowson is now become for ever presentative, and shall 
 never be donative any more (t). For these exceptions to 
 general rules, and common right, are ever looked upon by 
 the law in an unfavourable view, and construed as strictly 
 as possible. If therefore the patron, in whom such peculiar 
 right resides, does once give up that right, the law, which 
 loves uniformity, will interpret it to be done with an inten- 
 
 (q) Seld. Tith. c. 12, s. 2. (t) Co. Litt. 344; Farchild v. 
 
 (r) Decretal. 1. 3, t. 7, c. 3. Gayre, Cro. Jac. 63. 
 
 (s) a.d. 1239.
 
 32 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [tion of giving it up for ever : and will therefore reduce it to 
 the standard of other ecclesiastical livings.] 
 
 3. [The rights of a parson or vicar, in his tithes and ec- 
 clesiastical dues, fall more properly under] our third divi- 
 sion, as to church benefices and endowments : [and as to 
 his duties, they are principally of ecclesiastical cognizance ; 
 those only excepted which are laid upon him by statute. 
 And those are indeed so numerous, that it is impracticable 
 to recite them here with any tolerable conciseness or accu- 
 racy. Some of them we may remark, as they arise in the 
 progress of our inquiries, but for the rest it will be sufficient 
 to refer to such authors as have compiled treatises expressly 
 upon this subject^). We shall onlyjust mention the article 
 of residence, upon the supposition of which the law doth 
 style every parochial minister an incumbent.] 
 
 By statute 1 & 2 Vict. c. 106 (repealing the former 
 acts (x) on the subject), every spiritual person holding a 
 benefice (y), (a term which, as used in this act, comprises all 
 parochial churches, perpetual curacies, chapels, and church 
 or chapel districts whatever, if with cure of souls (z),) shall 
 keep residence on his benefice, and in the house of residence 
 belonging thereto ; and if he absents himself therefrom for 
 a period exceeding three months, either accounted together 
 or at several times, in any one year, he shall forfeit, unless 
 resident at some other of his benefices, a certain portion 
 (increasing with the length of absence) of the annual value 
 of his benefice (a). But this is subject to various exceptions 
 and modifications, of which the principal are as follows : 
 
 (it) These are very numerous: but (i) 21 Hen. 8, c. 13; 57 Geo. 3, 
 
 there are few which can be relied on c. 99. 
 
 with certainty. Among these are (y) 1 & 2 Vict. c. 106, s. 124. 
 
 Bishop Gibson's Codex, Dr. Burn's (s) Ibid. As to the meaning of 
 
 Ecclesiastical Law, and the earlier this word in general, vide sup. p. 
 
 editions of the Clergyman's Law, 26. 
 
 published under the name of Dr. (a) Sect. 32. Rackham v. Bluck, 
 
 W'atson, but compiled by Mr. Place, 9 Q. B. 691. 
 a barrister.
 
 CHAP. I.— OF THE ECCLESIASTICAL AUTHORITIES. 33 
 
 1st. No heads of houses in the university of Cambridge or 
 Oxford, or warden of the university of Durham, or head 
 master of Eton, Winchester, or Westminster school, who 
 shall have respectively not more than one benefice, shall be 
 liable to the penalties of non-residence (b). 2ndly. Deans 
 and archdeacons, and various public professors, readers, 
 preachers and chaplains, the provost of Eton, the warden 
 of Winchester, the master of the Charterhouse, the principal 
 of St. David's, and of King's College, London, and also 
 (provided they are not absent from their benefices more 
 than five months in the year) the fellows of Eton and Win- 
 chester, and all canons, minor canons, priest vicars, and 
 vicars choral, are entitled to count the time of their official 
 residences or duties as if it had been passed upon their 
 benefices (c). 3rdly. If there be no house, or no fit house 
 of residence, the bishop may license the holder of the bene- 
 fice from time to time to reside in some fit house elsewhere, 
 provided it be within a certain specified distance from his 
 church or chapel, and the same shall thereupon become a 
 legal house of residence for all purposes. 4thly. If there 
 be no house, or no fit house of residence, and such certifi- 
 cate be also produced as by the act provided, that no house 
 convenient for the residence of the holder of the benefice 
 can be obtained within the parish, or within the specified 
 distance from the church or chapel, or if the residence of 
 the holder of any benefice within those limits is prevented 
 by any incapacity of mind or body, or by the dangerous 
 illness of his wife or child (but subject in the latter case to 
 certain restrictions as to time and otherwise), the bishop 
 may grant a licence of non-residence ; or in case of his 
 refusal, there may be an appeal to the archbishop of the 
 province (d). 5thly. If the holder of any benefice happen 
 to occupy in the same parish any mansion or messuage 
 whereof he is the owner, the bishop may grant him a licence 
 
 (ft) Sect. 37- This is also ex- before the act passed, 
 tended to a principal or professor of (c) Sects. 38, 39. 
 
 the East India College, if appointed (d) Sect. 43. 
 
 VOL. III. D
 
 34 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 to reside therein ; and, if he refuses, remedy may be had 
 by the same course of appeal. 6thly. The bishop is em- 
 powered, in any other case besides those enumerated, to 
 grant, if he shall think it expedient, a licence to reside out 
 of the limits of the benefice; but in a case of this description 
 the special circumstances and reasons must be transmitted 
 to the archbishop of the province, without whose allowance 
 the licence will be ineffectual (e). 
 
 It is farther provided by this act, that annual returns of 
 residents and non-residents shall be made to her majesty in 
 council (f); and that in case of non-residence the bishop, 
 instead of proceeding to enforce the penalties, may issue a 
 monition against the offender, to be followed up, where 
 requisite, by an order to reside; and in case of non-com- 
 pliance with such order, may sequester the profits of the 
 benefice, and apply them to the purposes in the act spe- 
 cified (g). In case also of long continued or repeated 
 sequestration the benefice is to become void, and a new 
 presentation may be made as if the former holder were 
 dead (h). 
 
 For the more effectual promotion of this important duty 
 of residence among the parochial clergy, there are also 
 contained in this act (as in several others) a variety of 
 provisions for repairing the houses in which they are to 
 reside, and for building or purchasing new ones, and for 
 raising money for these purposes by mortgage of the bene- 
 fices (£). 
 
 4. [We have seen that there is but one way whereby one 
 may become a parson or vicar,] (viz. by the gift of a patron, 
 
 (e) Sect. 44. believed to comprise the whole of 
 
 (/) Sects. 51, 53. these statutes. See 17 Geo. 3, c. 
 
 (g) Sect. 54. As to the proceed- 53 ; 21 Geo. 3, c. 66 ; 43 Geo. 3, cc. 
 
 ings to sequestration for non-resi- 107, 108; 51 Geo. 3, c. 115; 55 
 
 dence, see Sharpe v. Bluck, 10 Q. B. Geo. 3, c. 147 ; 56 Geo. 3, c. 152 ; 
 
 280; Ex parte Bartlett, 12 Q. B. 5 Geo. '4, c. 89 ; 6 Geo. 4, c. 8 ; 7 
 
 488 ; Re Bartlett, 3 Exch. 28 ; Geo. 4, c. 66 ; 1 & 2 Vict. cc. 23, 29, 
 
 Daniel v. Morton, 20 L. J. (Q. B.) 106, ss. 25, 62, &c. ; 3 & 4 Vict. c. 
 
 98 ; Bonaker v. Evans, ib. 137. 113, s. 59 ; 4 & 5 Vict. c. 39, s. 18 ; 
 
 (h) Sect. 58. 5 & 6 Vict. c. 26 (repealing 2 & 3 
 
 («) The following enumeration is Vict. c. 18).
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 35 
 
 [followed in general by the admission of the ordinary) ; hut 
 there are many ways by which one may cease to be so. 
 1. By death. 2. By cession, or taking another benefice.] 
 For by statute 1 & 2 Vict. c. 106 (k) (repealing the former 
 statute against pluralities (I) ), and by 13 & 14 Vict. c. 98, 
 it is enacted, that in future (and subject to exception in 
 the case of rights already vested) no spiritual person shall 
 take and hold together any two benefices, except in the 
 case of two benefices, the churches of which are within 
 three miles of one another by the nearest road, and the 
 annual value of one of which does not exceed 100/. (m); 
 that no spiritual person holding a benefice with cure of 
 souls, with a population of more than 3000, shall take to 
 hold therewith any other having a population of more 
 than 500, nor vice versa ; that no spiritual person holding 
 more than one benefice with cure of souls shall take to 
 hold therewith any other, or any cathedral preferment (ji); 
 and that upon every admission to a new benefice or pre- 
 ferment contrary to the acts, every benefice previously held 
 shall be void ipso facto (o) ; which prohibitions, however, 
 in respect of population and yearly value, are subject to 
 a provision enabling the Archbishop of Canterbury to 
 grant a dispensation therefrom in certain cases, on re- 
 commendation of the bishop of the diocese (p). 3. [By 
 consecration ; for, as was mentioned before, when a clerk 
 is promoted to a bishopric, all his other preferments are 
 void the instant that he is consecrated {q). But a method 
 was formerly in use, by the favour of the crown, of holding 
 
 (k) As to the law of cession before (o) 1 & 2 Vict. c. 106, s. 11 ; 13 
 
 this act, see Alston v. Atlay, 7 A. & & 14 Vict. c. 98, s 7. 
 
 E. 289; King v. Alston, 12 Q. B. 985. (p) 1 & 2 Vict. c. 106, ss. 5, 6. 
 
 (/) 21 Hen. 8, c. 13. See also provisions against various 
 
 (m) By order, however, of her cases of plurality as regards persons 
 
 Majesty in council, two or more be- holding cathedral preferments, 1 & 2 
 
 nefices in the same parish or con- Vict. c. 106, s. 11 ; 4 & 5 Vict. c. 39 ; 
 
 tiguous to each other may be united 13 & 14 Vict. c. 98, s. 11 ; deans of 
 
 where the aggregate population shall cathedrals, 13 & 14 Vict. c. 94, s. 19 ; 
 
 not exceed 1500. 1 & 2 Vict. c. 106 ; heads of colleges, 13 & 14 Vict. c. 98, 
 
 13 & 14 Vict. c. 98. ss. 5, 6. 
 
 (n) 1 & 2 Vict. c. 106, s. 2. (q) Vide sup. p. 15. 
 
 D. 2
 
 36 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [such livings in commendam. Commenda, or ecclesia commen- 
 data, is a living commended by the crown to the care of a 
 clerk, to hold till a proper pastor is provided for it. This 
 may be temporary for one, two, or three years, or perpetual ; 
 being a kind of dispensation to avoid the vacancy of the 
 living, and is called a commenda retinere,] and has been 
 usually granted to bishops in the poorer sees, to aid the 
 deficiency of their episcopal revenue. And [there is also 
 a commenda recipere, which is to take a benefice de novo in 
 the bishop's own gift, or the gift of some other patron con- 
 senting to the same ; and this is the same to him as insti- 
 tution and induction are to another clerk (g).~] But now, 
 by 6 & 7 Will. IV. c. 77, s. 18 (r), no ecclesiastical dignity, 
 office or benefice shall be held in commendam by any bishop, 
 unless he shall have held the same when the act passed ; 
 and every commendam thereafter granted, whether to retain 
 or to receive, and whether temporary or perpetual, shall be 
 absolutely void to all purposes. 4. [By resignation ; but 
 this is of no avail till accepted by the ordinary, into whose 
 hands the resignation must be made (s). 5. By deprivation ; 
 either, first, by sentence declaratory in the] proper court (t), 
 [for fit and sufficient causes ; such as attainder of treason 
 or felony (u), or conviction of other infamous crime in the 
 king's courts ; for heresy, infidelity (x), gross immorality, 
 and the like;] or for farming or trading contrary to law, 
 after two former convictions for the same offence (y) : [or, 
 secondly, in pursuance of divers penal statutes, which de- 
 clare the benefice void, for some nonfeasance or neglect, or 
 else some malfeasance or crime; as, for simony (z) ; for 
 maintaining any doctrine in derogation of the king's supre- 
 macy, or of the thirty-nine articles, or of the book of COm- 
 Cfl) Colt v. Bishop of Lichfield & El. N. S. 1. 
 and Coventry, Hob. 144. (it) Bishop of Chichester v. Webb, 
 
 (r) See also as to Sodor and Man, Dyer, 108 ; Jenk. 210. 
 1 & 2 Vict, c 30. . (j) Fitz. Abr. tit. Trial, 54. 
 
 (s) Fane's case, Cro. Jac. 198. (y) 1 & 2 Vict. c. 106, s. 31. 
 
 (0 See the "Act for better en- (s) Stat. 31 Eliz. c. 6; 12 Ann. 
 
 forcing Church Discipline," 3 & 4 c. 12. 
 Vict. c. 86 ; Re Dean of York, 2 Ad. 

 
 CHAP. I. OF THE ECCLESIASTICAL AUTHORITIES. 37 
 
 [mon-prayer (a) ; for neglecting to read the liturgy and 
 articles in the church,] and to declare assent to the same, 
 within two months after induction (b) ; or [for using any 
 other form of prayer than the liturgy of the Church of 
 England (c) ; in all which and similar cases {d ) the benefice 
 is ipso facto void, without any formal sentence of depriva- 
 tion. 
 
 VI. A curate is the lowest degree in the church :] being 
 an officiating temporary minister regularly employed by 
 the spiritual rector or vicar, either to serve in his absence, 
 or as his assistant, as the case may be (e). All curates 
 ought, before they enter on their duties, to be licensed ( f) 
 by the bishop of the diocese ; and the law, on the other 
 hand, has made several provisions for their proper main- 
 tenance. For by 28 Henry VIII. c. 11 (g), [such as serve 
 a church during its vacancy shall be paid such stipend as 
 the ordinary thinks reasonable, out of the profits of the 
 vacancy ; or, if that be not sufficient, by the successor, 
 within fourteen days after he takes possession.] And by 
 a modern act of parliament, 1 & 2 Vict. c. 106, (which we 
 have already had occasion to notice under the heads of re- 
 sidence and pluralities,) numerous provisions are made as to 
 the appointment and payment of curates during an incum- 
 bency ; and, among others, that, in certain cases of non-re- 
 sidence by the incumbent, the bishop may, in his default, 
 appoint a proper curate with a stipend (h) ; and shall also 
 
 (u) Stat. 1 Eliz. cc. 1, 2 ; 13 Eliz. preachers, see 7 & 8 Vict. c. 59. 
 
 c. 12. (/) Burn's Ecc. Law, by Tyrw. 
 
 (6) Ibid. s. 3; 13 & 14 Car. 2, vol. i. p. 61 ; Wats. C. L, 147, 207, 
 
 c. 4, s. 6. 335. 
 
 (c) Stat. 1 Eliz. c. 2. (g) Sects. 5, 10. 
 
 (d) Green's case, 6 Rep. 29, 30; (h) Sect. 85. The former statutes 
 vide 13 & 14 Car. 2, c. 4, s. 6 ; et on the subject of curates' stipends 
 vide sup. p. 30. during the incumbency, are all re- 
 
 (e) Burn's Ecc. Law, by Tyrw., pealed. See 57 Geo. 3, c. 99, which 
 vol. ii. p. 54, (a). As to the common act is itself repealed by 1 & 2 Vict. 
 law right of the rector to appoint his c. 106, except so far as regards the 
 curate, see Arnolds. Bishop of Bath, repeal of the former statutes. 
 
 5 Bing. 316. As to lecturers and
 
 38 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 in some instances, where the incumbent fails to reside, re- 
 quire the curate to reside (i) ; that where the bishop sees 
 reason to believe that the duties of any benefice are inade- 
 quately performed, or where the benefice is of a certain 
 value or extent, he may (though in the first case only after 
 referring the matter to certain commissioners) require the 
 incumbent, whether actually resident or not, to nominate a 
 proper curate with sufficient stipend, and on his default may 
 himself make such appointment (k) • that the stipend to be 
 allowed to the curate, in every case where he is appointed by 
 the bishop under the provisions of the act, shall bear a 
 certain proportion to the value and population of the bene- 
 fice (Z); and that in all cases of dispute between the incum- 
 bent and the curate touching stipend, or the non-payment 
 of stipend, the bishop, on complaint to him made, may 
 summarily determine the same without appeal, and enforce 
 his sentence by monition and sequestration (rn). 
 
 [Thus much of the clergy, properly so called. There are 
 also certain inferior officers] connected with the church [of 
 whom the common law takes notice ; and that, principally, 
 to assist the ecclesiastical jurisdiction where it is deficient 
 in powers. On which officers we shall make a few cursory 
 remarks. 
 
 f VII. Churchwardens (n) are the guardians or keepers 
 of the church and representatives of the body of the pa- 
 rish^);] but though in some sort ecclesiastical officers, 
 they are always lay persons (p). [They are sometimes 
 appointed by the minister, sometimes by the parish,] in 
 vestry assembled (q), [sometimes by both together, as cus- 
 
 (t) Sect. 76. R. v. Marsh, 5 Ad. & El. 468. 
 
 (k) Sects. 77, 78. (o) In Sweden they have similar 
 
 (/ ) Sect. 85. officers, whom they call kiorckiowa- 
 
 (?n) Sect. 83. riundes. Stiernhook, 1. 3, c. 7. 
 
 (m) Bac. Abr. Churchwardens; ( p) Per Hale, Hard. 379 ; 1 Rol. 
 
 Burn's Ecc. Law, eodem tit. ; Ex Ab. 653 ; 2 Rol. Rep. 107. 
 
 parte Winfield, 3 Ad. & El. 614 j R. (q) As to vestries, vide sup. vol. i. 
 
 v. Archdeacon of Middlesex, ibid. p. 117. 
 
 615 ; Ex parte Duffield, ibid. 617 ;
 
 CHAP. I. — OF THE ECCLESIASTICAL AUTHORITIES. 
 
 39 
 
 [torn directs (?*)•] But where there is no custom, it is said 
 the election must be according to the canons (s) ; which 
 direct (t) that they shall be chosen by the joint consent of 
 the minister and parishioners, if it may be; but if they 
 cannot agree, then the minister is to choose one, and the 
 parishioners another. They are to be chosen yearly in 
 Easter week, and are generally two in number, are obliged 
 when chosen to serve (u), and are sworn to execute their 
 office faithfully (x). [They are taken, in favour of the 
 church, to be for some purposes a kind of corporation at 
 the common law ; that is, they are enabled by that name 
 to have a property in goods and chattels, and to bring 
 actions for them, for the use and profit of the parish (y);] 
 and one of their chief duties accordingly is the care and 
 management of the goods belonging to the church, such as 
 the organ, bells, bible and parish books (z). But as to the 
 church and church yard [they have no sort of interest 
 therein ; and if any damage be done thereto, the parson 
 only or vicar shall have the action («).] It is also part of 
 their office, unless other persons are appointed by the ordi- 
 nary for that purpose, to have the care of the benefice 
 
 (r) As to the manner of their elec • 
 tion, see Campbell v. Maund, 5 Ad. 
 & El. 865 ; R. v. Rector of Lambeth, 
 8 Ad. & El. 356. The manner of 
 electing them in churches newly built 
 under the Church Building Acts is 
 fixed by 58 Geo. 3, c. 45, s. 73, and 
 8 & 9 Vict. c. 70, ss. 7, 8. 
 
 (s) Catten v. Barwick, Str. 145. 
 See Bac. Ab. Churchwardens, A., 
 and the authorities there cited in the 
 margin. 
 
 (0 Canon, 89. 
 
 (u) Several classes of persons, 
 however, are either ineligible or are 
 exempted from the office, viz. peers 
 of the realm, members of parlia- 
 ment, clergymen, Roman Catholic 
 clergy, dissenting ministers, barris- 
 ters, attorneys, clerks in court, phy- 
 
 sicians, surgeons, apothecaries, al- 
 dermen, dissenting teachers, and 
 persons living out of the parish, un- 
 less they occupy a house of trade 
 there. Steer, PI. 84. 
 
 (i) Ibid. 88. As to granting a 
 mandamus to swear them in, Ex 
 parte Winfield, 3 Ad. & El. 614, 615. 
 
 («) Vide 9 Geo. 1, c. 7, s. 4 ; et 
 vide as to parish lands, 59 Geo. 3, 
 c. 12, s. 17; 5 & 6 Will. 4, c. 69, 
 s. 4 ; Smith v. Adkins, 8 Mee. & W. 
 362. 
 
 (z) Bac. Ab. Churchwarden, B. ; 
 Wats. C. L. 390 ; Addison v. Round, 
 4 Ad. & El. 799 ; Jackson v. Adams, 
 2 Bing. N. C. 402. 
 
 (a) 1 Bl. Com. 395. Church- 
 wardens cannot set up monuments ; 
 Beckwith v. Harding, 1 B. & Aid. 508. + 
 
 +
 
 40 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [during its vacancy, or while it is under sequestration for 
 the debts of the incumbent (Z>). They are moreover required 
 to see to the reparation of the church, and the making of 
 the church rates, by which the expenses of it are to be de- 
 frayed ; which rates are to be made by the parishioners at 
 large ; that is, by the majority of those that are present at 
 a vestry to be summoned for that purpose by the church- 
 wardens (c) ; and when made, are recoverable (if the arrears 
 do not exceed 10/., and no question be raised as to the 
 legal liability (d) ) before two justices of the peace (e) ; 
 otherwise, in the ecclesiastical court. Churchwardens are 
 also to make such order relative to seats in the church and 
 chancel, not appropriated to particular persons, as the ordi- 
 nary (who has in general the sole power in this matter (f) ) 
 shall direct ; and, in practice, the arrangements are usually 
 made by the churchwardens, even without any special di- 
 rection from the ordinary (g). It is incident also to their 
 office to enforce proper and orderly behaviour during divine 
 service, [to which end it has been held that churchwardens 
 may justify the pulling off a man's hat] irreverently worn 
 there, or the removal of the offender from the church (h) ; 
 and besides these, there are a multitude of other parochial 
 powers committed to their charge (i), which cannot be par- 
 
 (6) Steer, P. L. 91. 
 
 (c) Burder v. Veley, 12 Ad.& El. 
 247. As to church rate, see also 
 Craven v. Sanderson, 7 Ad. & El. 
 880 ; R. v. St. Margaret's, 2 Per. & 
 D. 510 ; Gosling u. Veley, 7 Q. B. 
 409 ; 12 Q. B. 328 ; Queen v. Byron 
 and others, 17 L. J. (M. C), 134. 
 As to chapel rate, see Ramsbottom v. 
 Duckworth, 1 Exch. 506. 
 
 (rf) As to this proviso, see Dale v. 
 Pollard, 2 New Mag. Ca. (Q. B.), 169. 
 
 (e) 53 Geo. 3, c. 127; 5 & 6 Will. 4, 
 c. 74; 4 & 5 Vict. c. 36; 12 & 13 
 Vict. c. 14, s. 9 ; R. v. St. Clement's, 
 12 Ad. & El. 177; Richards v. Dyke, 
 3 Q. B. 256. 
 
 (/) 3 Inst. 202 ; Clifford v. Wicks, 
 
 1 B. & Aid. 506 ; contra as to chan- 
 cel, Wats. C. L. 388. 
 
 (g) Rogers's Ec. L. 179. 
 
 (h) Hawk. P. C. b. l,c. 63,s.29; 
 Hawe v. Planner, 1 Saund. 10 ; S. C. 
 1 Sid. 301 ; Burton v. Henson, 10 
 Mee. & W. 105 ; Worth v. Terring- 
 ton, 13 Mee. & W. 781. 
 
 (i) Among these was formerly the 
 duty imposed upon them by a pro- 
 vision of 1 Eliz. c. 2, of levying a 
 forfeiture of one shilling on all such 
 as do not resort to their parish church 
 on Sundays and holidays. But this, 
 with other provisions against non- 
 conformity, is now repealed by 9 & 
 10 Vict. c. 59.
 
 CHAP. I. OF THE ECCLESIASTICAL AUTHORITIES, 41 
 
 ticularized without descending to inconvenient minuteness. 
 Formerly too they were joined with the overseers in the 
 care and maintenance of the poor ; but this duty is now in 
 general taken from them by the effect of the act for amend- 
 ment of the poor law (k), and of the regulations introduced, 
 under its authority, by the poor law commissioners. 
 
 Such then in general are the duties of churchwardens (Z); 
 to which we shall only add, that, in case of their wasting 
 the goods of the church, or being guilty of other misbeha- 
 viour, they are liable to removal (m); and that at the end of 
 their year, they are bound to render an account of all then- 
 receipts and disbursements (w). 
 
 VIII. Parish clerks and sextons (o) are also persons con- 
 nected with the church, and by the common law have free- 
 holds in their office ; though the former may, by 7 & 8 Vict. 
 c. 59, be suspended or removed by the archdeacon for 
 misconduct or neglect (p). The duties of the parish clerk 
 are too familiarly known to require description. In some 
 few instances he is in holy orders (cj), but his general qua- 
 lification is only that he shall be at least twenty years of 
 age, known to the parson, vicar, or minister, to be of honest 
 
 (k) 4 & 5 Will. 4, c. 76. 
 
 (/) In any parish the population 
 of which exceeds 2000 persons, and 
 which is brought under the provisions 
 of 13 & 14 Vict. c. 57, a vestry clerk 
 may be appointed, who is to assist 
 and advise the churchwardens and 
 overseers in the duties of their office. 
 
 (m) Steer, P. L. 95. 
 
 (?() Ibid. 92 ; Leman v. Goulty, 3 
 T. R. 3 ; Astle v. Thomas, 2 B. & C. 
 271. It is said that in London the 
 case of churchwardens is in some 
 respects peculiar, that they are ge- 
 nerally chosen there by the parish- 
 ioners independently of the parson; 
 are a corporation for all purposes ; 
 
 have the disposal of the seats in the 
 church, independently of the bishop ; 
 and in most of the churches repair 
 not only the chirrch, but the chancel. 
 Pulling's Law of London, p. 263. 
 The legality of such a custom as 
 above mentioned with regard to 
 seats has however been questioned. 
 See Rogers's Ec. L. p. 185. 
 
 (o) Burn's Eccl. L. by Tyrw. ; 
 Steer, P. L. 96. 
 
 (p) As to the former law on this 
 subject, see 2 Roll. Abr. 234; R. v. 
 Davies, 9 D. & R. 234 ; R. v. Neale, 
 4 Nev. & M. 868. 
 
 (</) See as to parish clerks in 
 orders, 7 & 8 Vict. c. 59.
 
 42 BK. IV. OP PUBLIC RIGHTS. PT. II. OP THE CHURCH. 
 
 conversation, and sufficient for his office (q). [He is gene- 
 rally appointed by the incumbent (r) ; but by custom may 
 be chosen by the inhabitants (s) ;] his appointment may be 
 by word of mouth only (t) ; and his remuneration depends 
 altogether upon the custom of the particular parish (u). 
 The sexton (x) is, in the ordinary course, chosen by the 
 rector ; though sometimes by the parishioners, where a 
 usage to that effect prevails (y). His salary depends on 
 custom, and is paid by the churchwardens ; his duty is to 
 cleanse the church, to open the pews, to fill up the graves 
 for the dead, to provide candles and other necessaries, and 
 to prevent disturbance in the church (z). In the new 
 churches built under the Church Building Acts, it is pro- 
 vided both as to clerk and sexton (59 Geo. III. c. 134, 
 ss. 6, 10), that, when any parish shall be divided, all fees 
 and emoluments belonging to the parish clerk or sexton 
 respectively shall belong also, and be recoverable in like 
 manner as regards any new district, by the clerk or sexton 
 appointed to such district, and compensation in that behalf 
 shall be made to the parish clerk or sexton. 
 
 (9) Canon 91. 
 
 (r) Ibid. In churches built under 
 the Church Building Acts he is to be 
 annually appointed by the minister. 
 See 58 Geo. 3, c. 45 ; 59 Geo. 3, 
 c. 134. 
 
 (*) 13 Rep. 70; Jermyn's case, 
 Cro. Jac. 670 ; Peak v. Bourne, Str. 
 942. As to the appointment of a 
 clerk after an union of parishes, 
 Hartley v. Cook, 9 Bing. 728. 
 
 (l) R. v. Inhabitants of Bobbing, 
 5 A. & E. C82. 
 
 («) Steer, P. L. 97. The parish 
 clerks in and about London are in- 
 corporated, ibid. 99 ; Pulling' s Law 
 of London, p. 264. 
 
 (r) Apparently from sacristan, the 
 keeper of things belonging to divine 
 
 worship. 
 
 (y) R. v. Minister of Stoke Da- 
 merel, 5 A. & E. 587 ; R. v. Inha- 
 bitants of Bobbing, ibid. 682 ; Cans- 
 field v. Blenkinsop, 4 Exch. 234, 
 Rogers's Ec. L. 834. 
 
 (z) Vide R. v. Inhabitants of Li- 
 verpool, 3 T. R. 119 ; Shaw's P. L. 
 71. Besides the parish clerk and 
 sexton, there is generally attached 
 to the church a beadle, (from the 
 Saxon beodan, to bid,) who is chosen 
 by the vestry, and whose business is 
 to attend the vestry, to give notice of 
 its meetings to the parishioners, and 
 execute its orders, and to assist the 
 constable in apprehending vagrants, 
 &c. Shaw's P. L. c. 19.
 
 ( 43 ) 
 
 CHAPTER II. 
 
 OF THE DOCTRINES AND WORSHIP OF THE CHURCH, 
 AND HEREIN OF THE LAWS AS TO HERESY AND 
 NONCONFORMITY. 
 
 Though this nation has constantly adhered to the principle 
 of an established church, that is, a church endowed, and 
 (as occasion has required) protected, by the provision of 
 the temporal law (a) ; yet no claim was formerly made by 
 the temporal law to interfere with the regulation of its 
 faith, ceremonies, or discipline. These, being matters mere 
 spiritualia(b), fell under the exclusive province of the eccle- 
 siastical authorities (c) ; who, in their exercise of it, were 
 guided by the law of the popes and councils, modified from 
 time to time by our own legatine and provincial constitu- 
 tions (d). But at the era of the Reformation it was found 
 necessary to resort to the legislature for an authoritative 
 exposition of the true Protestant faith, the establishment 
 of appropriate forms of worship, and the declaration of the 
 crown's supremacy, in lieu of that of the pope, in matters 
 ecclesiastical ; and from this time the power of the ordinary 
 ecclesiastical authorities of the realm has been exercised in 
 subordination to these paramount institutions of the civil 
 government. 
 
 And, first, the Articles of Faith, consisting originally of 
 forty-two, but afterwards reduced to thirty-nine (and com- 
 
 (a) " Ecclesia Aiiglicana per incli- Edw. 1, St. 4, c. 1. 
 tissimos progenitores et antecessores do- (c) " Sanctte determinationes ecclesim 
 
 mini regis, laudabiliter dotata, et in sacrosanctce," 2 Hen. 4, c. 15 ; " les 
 
 suisjnribus et libertatibus sustentata." leies de seinte esglise," 2 Hen. 5, St. 1, 
 
 —Stat. 2 Hen. 4, c. 15. c. 7. 
 
 (6) Stat. Circumspecte agatis, 13 (d) Vide sup. vol. i. p. 64.
 
 44 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 monly called the Thirty-nine Articles), were framed by 
 Archbishop Cranmer, with the assistance of other persons 
 of distinguished learning and piety, in the reign of Edward 
 the sixth (e) ; and were reduced to their present form in the 
 convocation of the archbishops and bishops of both pro- 
 vinces, held at London in the reign of Queen Elizabeth, 
 a.d. 1562 (f). And by statute 13 Eliz, c. 12, it was pro- 
 vided that if any person ecclesiastical, or having ecclesias- 
 tical living, shall advisedly maintain any doctrine directly 
 repugnant to any of the said articles, and, on being con- 
 vened before the bishop, still persist therein, he shall be 
 liable to be deprived (y). 
 
 The Form of Prayer and Church Service, commonly 
 called the Liturgy, was also first framed in the reign of 
 Edward the sixth, under the superintendence of Cranmer 
 and his coadjutors (h). Before the Reformation various 
 liturgies had been in use in different parts of the realm (i). 
 But a new ritual (chiefly founded, however, on the antient 
 services), with rubrics prescribing the order and form to be 
 pursued, was now compiled for the uniform observance of 
 the whole reformed church of England. This book of King 
 Edward the sixth was, for the most part, the same with 
 our present Book of Common Prayer. It was established 
 
 (e) Hallam's Const. Hist. vol. i. 
 p. 1 34. The first draft of the Articles 
 was made by Cranmer, assisted by 
 Bishop Ridley, in 1551 ; and after 
 being corrected by the other bishops, 
 Latimer, Hooper, Poynet, Cover- 
 dale, &c, and approved by convoca- 
 tion, were published in 1553. In 
 1562, 1571, and 1GC2, they were 
 successively revised and confirmed. 
 Adams, Relig. World, vol. i. p. 399. 
 
 (/) See 13 Eliz. c. 12, s. 1. 
 
 (g) Ibid. sect. 2. 
 
 (h) Hallam, ubi sup. p. 117 ; stat. 
 2 & 3 Edw. 6, c. 1, s. 1. 
 
 (i) The statute 2 & 3 Edw. 6, c. 1, 
 recites, that " of long time there hath 
 
 " been had in this realm of England 
 " divers forms of common prayer 
 " commonly called the service of the 
 " Church, that is to say, the use of 
 " Sarum, of York, of Bangor, and of 
 " Lincoln ; and besides the same, 
 " now of late much more divers and 
 " sundry forms and fashions have 
 " been used in the cathedral and pa- 
 " rish churches of England, Wales, 
 ." &c." Almost the whole of our Li- 
 turgy was taken from the forms here 
 described ; particularly from that of 
 Sarum ; and most of it can be traced 
 to periods before the Conquest. See 
 Palmer's Origines Liturgicae.
 
 CHAP. II. OF THE DOCTRINES AND WORSHIP. 45 
 
 by statute 2 & 3 Edw. VI. c. 1 ; and being afterwards re- 
 vised, was confirmed by 5 & 6 Edw. VI. c. 1, and 1 Eliz. 
 c. 2 ; and after two other successive revisions in the reigns 
 of Kings James the first (Jt) and Charles the second, was 
 again confirmed by 13 & 14 Car. II. c. 4; all which sta- 
 tutes are intituled Acts of Uniformity, or more particularly, 
 Acts for the Uniformity of Service in the Church and Ad- 
 ministration of the Sacraments. In the reign of King- 
 James the first a new version also of the Holy Scriptures 
 was made, and established by law ; being the same which 
 is still in use under the denomination of King James's 
 Bible (I). 
 
 As to the crowns supremacy, it was definitively esta- 
 blished by 1 Eliz. c. 1 (m) ; a statute which, first, provides 
 that no foreign prince or potentate, spiritual or temporal, 
 shall exercise any manner of jurisdiction or privilege, spi- 
 ritual or ecclesiastical, within this realm or the dominions 
 thereof (n) ; and, next, that such jurisdictions and privileges 
 as had before been exercised by any spiritual or ecclesias- 
 tical power, for visitation and correction of the church, shall 
 for ever, by authority of the present parliament, be united 
 and annexed to the imperial crown of this realm (o). 
 
 The new regulations thus introduced by the legislature, 
 taken in connection with other legislative enactments of 
 the same era, but of subordinate importance, and in con- 
 nection also with the national canon law, (which still gives 
 the rule where these are silent,) have constituted from the 
 period of which we speak, and still constitute, the standard 
 of faith, worship, and discipline in the Church of England. 
 It remains, however, to consider on what persons and in 
 what cases this standard is to be deemed imperative — whe- 
 
 (k) Wats. C. L. p. 321. the Statute of Praemunire, 16 Ric. 2, 
 
 (/ ) The canonical authority of the c. 5. As to the supremacy, see also 
 
 different books of Scripture is settled 5 Eliz. c. 1, ss. 1, 2, 3, 4, 10 ; Introd. 
 
 by the Thirty-nine Articles. to4 Rep. ; 4 Inst. 42, 331, 341 ; Hal- 
 
 (m) The supremacy had been be- lam's Const. Hist. vol. i. p. 152. 
 
 fore declared by 26 Hen. 8, c. 1, and (n) Sect. 16. 
 
 indeed prior to the Reformation, by (o) Sect. 17.
 
 46 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 ther it is binding merely on those who claim the benefits 
 of the church establishment, or generally on all the subjects 
 of the realm, whatever may be in fact the state of their re- 
 ligious opinions. And here we shall find that the law has 
 passed through changes of a very remarkable description. 
 Though the statute of Elizabeth just cited effected an eman- 
 cipation from the Roman yoke, and may therefore be justly 
 considered as having laid the foundation of spiritual free- 
 dom, it was not till long afterwards that the nation learned 
 the lesson of religious toleration ; and our law in the mean 
 time proceeded not only to imitate the persecutions of the 
 Popish times, but in some respects to surpass them ; for 
 while it continued to punish as it had long done (in aid of 
 the ecclesiastical authorities) the offence of heresy, it began 
 now to exercise new rigours of its own with respect to that 
 of nonconformity. In the remainder of this chapter we 
 propose to enter into some detail upon each of the subjects 
 just enumerated, and to show both the former state of the 
 law respecting them, and the alterations which it has lat- 
 terly sustained. 
 
 1. Heresy was described among the canonists, in vague 
 and general terms, as consisting of any deviation from 
 the true Catholic faith, as understood by Holy Mother 
 Church (p), — [very contrary to the usage of the first gene- 
 ral councils, which defined all heretical doctrines with the 
 utmost precision and exactness,] and spoke of heretics by 
 name, as in the case of the Manichees, Nestorians, and 
 others (q). The cognizance of this offence has always been 
 held in this and every other country, where the canon law 
 has prevailed, to belong to the ecclesiastical judge (r) ; and 
 the papal canonists have ever treated it with great severity. 
 It is true that they [went at first no farther than enjoining 
 penance, excommunication, and ecclesiastical deprivation 
 
 ( p) " Hazreticus, qui de articulis (<?) Vide 1 Hale, P. C. 383. 
 
 fidei aliter pradicut, sentit, vel doceat, (r) Year Book, 27 Hen. 8, 14 b; 
 
 quam doret suncta mater eccleua." — stat. 2 Hen. 4, c. 15 ; 1 Hale, P. C. 
 
 Vide 1 Hale, P. C. 383. 384 ; 4 Bl. Com. 45.
 
 CHAP. II. — OF THE DOCTRINES AND WORSHIP. 47 
 
 [for heresy, though afterwards they proceeded boldly to im- 
 prisonment by the ordinary, and confiscation of goods in 
 pios ustts.] They also in course of time [prevailed upon 
 the weakness of bigoted princes to make the civil power 
 subservient to their purposes, by making heresy not only a 
 temporal but even a capital offence, the Romish ecclesiastics 
 determining, without appeal, whatever they pleased, to be 
 heresy, and shifting off to the secular arm the odium and 
 drudgery of executions, with which they themselves were 
 too tender and delicate to intermeddle. Nay, they pre- 
 tended to intercede and pray on behalf of the convicted 
 heretic, ut citra mortis periculum sententia, circa eum mode- 
 retur{s), well knowing at the same time, that they were 
 delivering the unhappy victim to certain death. Hence the 
 capital punishments inflicted on the antient Donatists and 
 Manichees, by the Emperors Theodosius and Justinian (t) ; 
 hence also the constitution of the Emperor Frederic, men- 
 tioned by Lyndewode (u), adjudging all persons, without 
 distinction, to be burned by fire who were convicted of 
 heresy by the ecclesiastical judge. The same emperor, in 
 another constitution (.r), ordained that if any temporal lord, 
 when admonished by the church, should neglect to clear 
 his territories of heretics within a year, it should be lawful 
 for good Catholics to seize and occupy the lands, and ut- 
 terly to exterminate the heretical possessors. And upon this 
 foundation was built that arbitrary power so long claimed, 
 and so fatally exerted by the pope, of disposing even of the 
 kingdoms of refractory princes to more dutiful sons of the 
 church. The immediate event of this constitution was 
 somewhat singular, and may serve to illustrate at once the 
 gratitude of the holy see and the just punishment of the 
 royal bigot, — for upon the authority of this very constitu- 
 tion the pope afterwards expelled this very Emperor Fre- 
 deric from his kingdom of Sicily and gave it to Charles of 
 Anjou (?/). 
 
 (s) Decretal, lib. 5, t. 40, c. 27. (i) Cod. 1, 5. 4. 
 
 (0 Cod. 1. i. tit. 5. (y) Baldus in Cod. 1, 5, 4. . 
 
 («) C. de Haereticis.
 
 48 EK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [Christianity being thus deformed by the demon of per- 
 secution upon the continent, we cannot expect that our own 
 island should have been entirely free from the same scourge;] 
 and accordingly we find not only that our ecclesiastical courts 
 were always in the habit of proceeding against heretics by 
 spiritual punishments, such as excommunication and the 
 like, but we discover [among our antient precedents a writ 
 de hceretico comburendo, which is thought by some to be as 
 antient as the common law itself(s).] However, it appears 
 that it was not the practice of the common law of England 
 to issue this writ except upon a conviction for contumacy 
 or relapse, nor unless such conviction took place before the 
 archbishop himself in a provincial synod or convocation ; 
 and that even that authority could not lawfully award the 
 writ, but merely left the delinquent to the secular power ; 
 so that the crown might pardon him, if it thought proper, 
 by forbearing to issue the writ, which was not grantable 
 as of course, but issued by the special direction of the sove- 
 reign (a). [But in the reign of Henry the fourth, when the 
 eyes of the Christian world began to open, and the seeds 
 of the Protestant religion (though under the opprobrious 
 name of Lollardy(^)) took root in this kingdom, the clergy, 
 taking advantage from the king's dubious title to demand 
 an increase of their own power, obtained an act of parlia- 
 ment (c) which sharpened the edge of persecution to its ut- 
 
 (-,) 1 Hale, P. C. 392 ; 1 Hawk. (b) So called not from lolium or 
 
 b. 1, c. 2, s. 10 ; vide St. Tr. vol. ii. tares (an etymology which was after- 
 
 275. But at common law heresy was wards devised in order to justify the 
 
 not punishable by forfeiture of lands burning of them, Matth.xiii. 30,) but 
 
 or goods. 1 Hale, P. C. 388, (n.) from one Walter Lolhard, a German 
 
 (a) 1 Hale, P. C. 385, 393, 395. reformer, a.d. 1315. Mod. Un. Hist. 
 
 According to some opinions, the writ xxvi. 13 ; Spelm. Gloss. 371. 
 de haretico comburendo was at common (c) 2 Hen. 4, c. 15. A previous 
 
 law, not only in practice confined to act, 5 Ric. 2, st. 2, c. 5, had been 
 
 convictions before the archbishop in aimed at the followers of Wickliffe, 
 
 provincialsynod.butcould not legally but the commons would not assent to 
 
 be awarded on a conviction before it, and it was revoked the next year, 
 
 any court of inferior authority, such Vide Reeves's Hist. Eng. L. vol. iii. 
 
 as that of the diocesan. Vide 1 Hale, p. 163. 
 P. C/391 ; 12 Rep. 56, 57.
 
 CHAP. II. — OF THE DOCTRINES AND WORSHIP. 49 
 
 [most keenness; for by that statute the diocesan alone, with- 
 out the intervention of a synod, might convict of heretical 
 tenets; and unless the convict abjured his opinions, or if, 
 after abjuration, he relapsed, the sheriff was bound, ex officio 
 if required by the bishop, to commit the unhappy victim 
 to the flames, without waiting for the consent of the crown. 
 By the stat. 2 Hen. V. c. 7, Lollardism was also made a 
 temporal offence, and indictable in the king's courts, which 
 did not however thereby gain an exclusive, but only a con- 
 current jurisdiction, with the bishop's consistory. 
 
 Afterwards, when the final reformation of religion began 
 to advance, the power of the ecclesiastics was somewhat 
 moderated, — for though what heresy is was not then pre- 
 cisely defined, yet w r e are told in some points what it is 
 not, — the statute 25 Hen. VIII. c. 14, declaring that 
 offences against the see of Rome are not heresy, and the 
 ordinary being thereby restrained from proceeding in any 
 case upon mere suspicion, that is, unless the party be ac- 
 cused by two credible witnesses, or an indictment of heresy 
 be first previously found in the king's courts of common 
 law. And yet the spirit of persecution was not then abated, 
 but only diverted into a lay channel ; for in six years after- 
 wards, by statute 31 Hen. VIII. c. 14, the bloody law of 
 the Six Articles was made, which established the six most 
 contested points of popery — transubstantiation — commu- 
 nion in one kind — the celibacy of the clergy — monastic 
 vows — the sacrifice of the mass — and auricular confession; 
 which points were " determined and resolved by the most 
 " godly study, pain and travail of his majesty; for which 
 " his most humble and obedient subjects the lords spiritual 
 " and temporal and the commons in parliament assembled 
 " did not only render and give unto his highness their most 
 " high and hearty thanks," but did also enact and declare 
 all oppugners of the first to be heretics, and to be burned 
 with fire, — and of the five last to be felons, and to suffer 
 death. The same statute established a new and mixed 
 jurisdiction of clergy and laity for the trial and conviction 
 
 VOL. III. E
 
 50 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [of heretics ; the reigning prince being then equally intent 
 on destroying the supremacy of the bishops of Rome, and 
 establishing all other their corruptions of the Christian 
 religion. 
 
 We shall not enter into the various repeals and revivals 
 of these sanguinary laws in the two succeeding reigns, but 
 shall proceed directly to the reign of Queen Elizabeth, 
 when the Reformation was established] on a firm and per- 
 manent basis. [By stat. 1 Eliz. c. 1, all former statutes 
 relating to heresy are repealed, which left the jurisdiction 
 of heresy as it stood at common law,] that is, left the 
 simple offence to be visited by spiritual punishments in the 
 ecclesiastical courts ; and the offence, when aggravated by 
 contumacy or relapse, to be dealt with by the writ de hare- 
 tico comburendo, after a conviction in the provincial synod. 
 [But the principal point now gained was, that by this sta- 
 tute a boundary is for the first time set to what shall be 
 accounted heresy; nothing for the future being so deter- 
 mined, but only such tenets which have been heretofore so 
 declared: 1. By the words of the Canonical Scriptures; 
 2. By the first four general councils, or such others as have 
 only used the words of the Holy Scriptures : or 3. Which 
 shall hereafter be so declared by the parliament, with the 
 assent of the clergy in convocation. 
 
 The writ, however, de hceretico comburendo still remained 
 in force ; and we have instances of its being put in execu- 
 tion upon two Anabaptists in the seventeenth year of Eliza- 
 beth, and upon two Arians in the ninth year of James the 
 first. But it was totally abolished, and heresy at length sub- 
 jected only to ecclesiastical correction pro salute animce, by 
 virtue of the statute 29 Car. II. c. 9. For in one and the 
 same reign,] by the joint effect of this and other acts before 
 referred to (d), [our lands were delivered from the slavery 
 of military tenures, our bodies from arbitrary imprisonment, 
 and our minds from the tyranny of superstitious bigotry.] 
 
 (J) The act for abolishing military beas Corpus Act, 31 Car. 2, c. 2. 
 tenure, 12 Car. 2, c. 24, and the Ha- Vide sup. vol. i. pp. HI, 144.
 
 CHAP. II. — OF THE DOCTRINES AND WORSHIP. 51 
 
 And such still continues to be the state of the law with 
 respect to heresy ; the only subsequent provision that is 
 still in force in connection with this subject, being one that 
 is directed rather to the preservation of good order and 
 decency in civil society, than to the maintenance of ortho- 
 doxy. We refer to 9 & 10 Will. III. c. 32, by which it is 
 enacted, that if any person, having been educated in or 
 made profession of Christianity, shall by writing, printing, 
 teaching, or advised speaking, maintain that there are more 
 Gods than one, or deny the Christian religion to be true, 
 or the Holy Scriptures to be of divine authority, and be 
 thereof convicted by two witnesses, he shall, unless he re- 
 cants, incur such civil disabilities as mentioned in the act, 
 and, on a second conviction, shall also suffer imprisonment 
 for the term of three years (<?). 
 
 2. Non-conformity or dissent from the worship and cere- 
 monies of the Established Church. This, by the second of 
 the Acts of Uniformity, 5 & 6 Edvv. VI. c. 1, was made a 
 penal offence ; it being thereby enacted (f), that if any 
 manner of person shall willingly be present at any other 
 manner or form of Common Prayer, of administration of 
 the sacraments, of ordination, or of any other rites contained 
 in the Book of Common Prayer, than is in such book set 
 forth, he shall suffer imprisonment, and for the third offence 
 imprisonment for life. And by the same statute, and by 
 1 Eliz. c. 2 {g), it was provided, that every inhabitant of 
 the realm or dominion shall diligently and faithfully, having 
 no lawful or reasonable excuse to be absent, endeavour 
 themselves to resort to their parish church or chapel accus- 
 tomed, or, upon reasonable let, to some usual place where 
 common prayer shall be used, on Sundays and holidays, 
 upon penalty of forfeiting for every non-attendance twelve 
 pence, to be levied by the churchwardens to the use of the 
 
 (e) This act also contained similar Rex v. Waddington, 1 Barn. & Cress, 
 enactments with regard to denying 26. 
 the Holy Trinity, but as to this is re- (/) Sect. 6. 
 
 pealed by 53 Geo. 3, c. 160. See (g) Sect. 14. 
 
 E. 2
 
 52 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 poor. And these enactments, though for a long course of 
 time fallen into neglect, yet remained in our statute book 
 till very recently, when they were, in common with many 
 other penal and disabling laws in regard to religious opinions, 
 swept away by the statute 9 & 10 Vict. c. 59, to which we 
 shall make farther allusion at the close of this chapter. 
 
 In the reign, however, of Queen Elizabeth, a schism 
 began to develope itself in the newly established Protestant 
 Church. Certain sectaries, who received the appellation of 
 Puritans, deserting the use of the liturgy, betook them- 
 selves, notwithstanding the Acts of Uniformity, to forms 
 of worship of their own institution (h) ; and ultimately, in- 
 creasing in number, branched out into various divisions of 
 religious opinion, and various modes of religious ceremo- 
 nial and church government. From this stock descended 
 all those Protestant seceders from the established church 
 described at a later period as Non-conformists, and in mo- 
 dern times as Dissenters (i). 
 
 The jealousies to which these growing innovations gave 
 rise, and the alarm from time to time reasonably excited 
 by the enterprising spirit of Popery, gave birth in the same 
 reign, and in those of several succeeding monarchs, to a 
 variety of laws, having for their object the repression of 
 Non-conformity, both in the case of Protestant Sectaries 
 and Papists. It is unnecessary, however, to detail these pro- 
 visions. It will suffice to state that, with respect to Papists 
 (including in this term all persons professing Popery, and 
 more particularly Popish priests and Popish recusants, that 
 is, persons refusing to conform to the ceremonies of the 
 Church of England, or take the oath appointed against 
 Papists), they were of the most rigorous and oppressive 
 character, involving not only civil disabilities, but impri- 
 
 (h) Hallam, Const. Hist. vol. i. of Presbyterians, Independents and 
 
 pp. 216, 251, 280. Baptists; but as to church govern- 
 
 ((') The Dissenters are usually di- ment the Bapiists are Independents, 
 vided into the three denominations
 
 CHAP. II. OF THE DOCTKINES AND WORSHIP. 53 
 
 sonnient, and in some cases the penalties of felony or trea- 
 son (k). 
 
 During the rebellion, the laws against Protestant Secta- 
 ries were repealed (/); but they revived at the Restoration ; 
 and the parliament of Charles the second proceeded to 
 enforce systematically, by new measures of rigour, the prin- 
 ciple of universal conformity to the Established Church. 
 The first of these was the Corporation Act, 13 Car. II. 
 st. 2, c. 1, by which it was provided, that no person should 
 thereafter be elected to office in any corporate town, who 
 should not within one year previously have taken the Sa- 
 crament of the Lord's Supper according to the rites of the 
 Church of England ; and every person so elected was also 
 required to take (in addition to a certain oath and declara- 
 tion afterwards repealed (m) ) the oaths of allegiance and 
 supremacy (w). Afterwards, by 13 & 14 Car. II. c. 4 (usually 
 described as the Act of Uniformity), it was enacted, that the 
 Book of Common Prayer, as then recently revised, should 
 be used in every parish church and other place of public 
 worship; and that every schoolmaster and person instructing 
 youth should subscribe a declaration of conformity to the 
 Liturgy, and also to the effect of the oath and declaration 
 mentioned in the act of 13 Car. II. st. 2, c. 1. It farther 
 enacted, that no person should thenceforth be capable of 
 holding any ecclesiastical promotion or dignity, or of con- 
 secrating or administering the Sacrament, till he should be 
 ordained priest according to episcopal ordination ; and with 
 respect to all ministers who then enjoyed any ecclesiastical 
 benefice, it directed that they should, within a certain pe- 
 riod, openly read morning and evening service according to 
 
 (k) These laws are particularly de- 1(345 (which continued till the Re- 
 tailed in Blackstone's Commentaries, storation), to preach, write or print 
 vol. iv. p. 55, and such of them as against the directory for the then es- 
 remained in force up to a recent pe- tablished Presbyterian worship, sub- 
 riod (which are numerous) are recited jectedthe offender, upon indictment, 
 and repealed by the statutes 7 & 8 to a fine not exceeding 50/. 
 Vict. c. 102, and 9 & 10 Vict. c. 59; (m) 5 Geo. 1, c. 6, s. 2. 
 as to which, vide post, p. 60. (>i) As to these oaths, vide sup. 
 
 (I) And by an ordinance, 23 Aug. vol. ii. p. 388.
 
 54 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 the Book of Common Prayer, and declare before the con- 
 gregation their unfeigned assent and consent to the use of 
 all things therein g contained, upon pain of being ipso facto 
 deprived of their spiritual promotions. By this statute two 
 thousand of the clergy, who refused to comply with its pro- 
 visions, were in fact deprived of their preferments (o). 
 
 Another measure of the same reign was the Act against 
 Conventicles, 22 Car. II. c. 1 (p), by which all meetings 
 consisting of five persons or more (or of that number be- 
 sides the household, in case of a family), assembled for the 
 exercise of religion in any manner than according to the 
 practice of the Church of England, were prohibited, and 
 made liable to dispersion ; and the persons attending thereat 
 (particularly as preachers or teachers) subject to pecuniary 
 forfeitures. This was soon followed by the celebrated Test 
 Act, 25 Car. II. c. 2, by which it was provided, that all 
 persons having any office, civil or military (q), (with the ex- 
 ception of some few of an inferior kind,) or receiving pay 
 from the crown, or holding a place of trust under it, should 
 take the oaths of allegiance and supremacy, and subscribe 
 a declaration against transubstantiation, and also receive 
 the Sacrament of the Lord's Supper according to the usage 
 of the Church of England. This provision had the effect of 
 excluding not only Papists, but many classes of Protestant 
 Dissenters also, from every considerable place of trust or 
 public employment. But it was mainly pointed against the 
 former; as was also a subsequent act in the same reign 
 (30 Car. II. st. 2) (r), prohibiting any person from voting 
 or sitting in parliament, until he should take the oaths of 
 allegiance and supremacy, and subscribe a declaration 
 against transubstantiation and the invocation of saints. 
 
 The Revolution of 1668, however, was the commence- 
 
 (d) This statute also contained a c. 59. 
 
 regulation that no schoolmaster in a ( p) As to this act, vide post, p. 57. 
 
 private house should instruct youth (</) As to naval and military offi- 
 
 without having obtained a licence cers, see 57 Geo. 3, c. £12. 
 
 from the ordinary ; but it was re- (r) See also on this subject, 1 
 
 pealed quoad hoc by 9 & 10 Vict. Geo. 1, st. 2, c. 13, ss. 16, 17.
 
 CHAP. II. — OF THE DOCTRINES AND WORSHIP. 55 
 
 ment of an era of more liberal legislation in matters of reli- 
 gion, as well as politics ; and by the Toleration Act, 1 W. & 
 M. st. 1, c. 18 (confirmed by 10 Ann. c. 2), all persons dis- 
 senting from the Church of England (s) (except Papists and 
 persons denying the Trinity) were relieved from such of the 
 acts against non-conformity, as prevented their assembling 
 for religious worship according to their own forms, or other- 
 wise restrained their religious liberty, — on condition of their 
 taking the oaths of allegiance and supremacy, and sub- 
 scribing a declaration against transubstantiation, and (in 
 the case of dissenting ministers) subscribing also to certain 
 of the Thirty-nine Articles. It was also made penal to 
 disturb any congregation lawfully assembled, or to misuse 
 their preachers ; an offence which has been since prohibited 
 under still heavier penalties (t). But it was on the other 
 hand provided, that no congregation should be allowed 
 under that act, unless the place of their meeting was cer- 
 tified to and registered with the bishop, or archdeacon, or 
 court of quarter sessions. And it was also required, that 
 the doors of the meeting-house should not be locked, barred, 
 nor bolted. To these regulations some others were added 
 for the relief of persons dissenting from the Church of Eng- 
 land ; among which is the following, — that when appointed 
 to any parochial office which they may scruple (in respect 
 of the oaths or otherwise) to undertake, they shall be at 
 liberty to serve by deputy. 
 
 It was thought necessary, on the other hand, soon after 
 the accession of the House of Brunswick, to extend some 
 of the provisions of the Test Act to various descriptions of 
 persons besides those holding civil and military offices; and 
 it was consequently enacted by 1 Geo. 1. st. 2, c. 13, 2 
 Geo. II. c. 31, and 9 Geo. II. c. 26, that not only such 
 
 (s) This extends not only to lay-- Church ; Barnes v. Shore, 8 Q. B. 
 men, but to clergymen who after or- 640. 
 
 dination become dissenters from the (t) 52 Geo. 3, c. 155, s. 12 ; and 
 
 see 9 & 10 Vict. c. 59, s. 4.
 
 56 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 officers, but also all ecclesiastical and collegiate persons, 
 preachers, teachers and schoolmasters, high constables, and 
 practitioners of the law, should, at the peril of incurring 
 loss of office and other forfeitures and disabilities, take and 
 subscribe, within six calendar months after their admission 
 into preferment or practice, the oaths of allegiance, supre- 
 macy, and abjuration, which latter oath was afterwards put 
 into a new form by 6 Geo. III. c. 53 (?/). 
 
 These oaths (which impose, it will be observed, rather a 
 political than a religious test) are still required by law (?;), 
 though it has been long the custom to pass an act before 
 the end of every session of parliament, indemnifying those 
 who may happen to have neglected to take them, and 
 against whom no judgment shall have yet actually passed 
 for such offence ; upon condition however of their repairing 
 their omission within a certain specified period (x). But 
 with respect to such of the penal laws above enumerated, 
 as tend to the enforcement of religious uniformity, they are 
 all either abrogated, or made subject to important relaxa- 
 tions or exceptions. 
 
 First, it was provided in favour of dissenting ministers, 
 by 19 Geo. III. c. 44, that any dissenting preachers or 
 teachers may be entitled to all the benefit of the Toleration 
 Act, by taking the oaths and subscribing the declaration 
 against popery therein mentioned, and also making or sub- 
 scribing a declaration professing themselves to be Christians 
 and Protestants, and that they believe the Scriptures to 
 contain the revealed will of God, and to be the rule of 
 
 (u) As to the form of the several a similar indulgence is granted to 
 
 oaths, vide sup. vol. ii. p. 388, n. (s). Separatists; and by 1 & 2 Vict. c. 77, 
 
 (i>) But by 3 & 4 Will. 4, c. 49, to any person who shall have been 
 
 Quakers and Moravians are permitted a Quaker or Moravian. ' 
 to make affirmation in all cases where ( x) Vide sup. vol. ii. p. 602. The 
 
 an oath is required; and a form of act of indemnity for 1851 is 14 & 15 
 
 affirmation is given in lieu of the oath Vict. c. 10. 
 of abjuration : by 3 & 4 Will. 4, c. 82,
 
 CHAP. II. OF THE DOCTRINES AND WORSHIP. 57 
 
 doctrine and practice. The same act relieves every dis- 
 senting minister, or other Protestant dissenter, conforming 
 to these conditions, from the provisions of 13 and 14 Car. II. 
 c. 4, by which they were prohibited from keeping schools 
 or instructing youth ; but there is a proviso, that nothing 
 therein contained shall extend to the enabling any dissenter 
 to hold the mastership of a college or other endowed school, 
 unless endowed since the first year of William and Mary, 
 for the immediate benefit of Protestant dissenters. Then 
 followed the 52 Geo. III. c. 155, by which both ministers 
 and hearers were relieved from the necessity of taking any 
 oaths or subscribing any declaration, unless required so to 
 do by some justice of the peace ; and by which it is enacted 
 that all persons officiating in or resorting to religious esta- 
 blishments duly certified as required by 1 W. & M. st. 1, 
 c. 18, shall be as fully relieved from all penalties relating 
 to religious worship, as if they had made the declaration 
 and taken the oaths required by any previous act(?/). In 
 order, however, to prevent irregular conventicles of any per- 
 sons in places not duly certified, whether they in fact dissent 
 from the Church of England or not, this act prohibits (after 
 repealing 22 Car. II. c. 1), under a penalty not exceeding 
 £20, all assemblies for the religious worship of Protestants 
 in places not certified, at which more than twenty persons 
 besides the family shall be present. By this statute it is 
 also enacted (in confirmation of a like provision in the Act 
 of Toleration), that every teacher or preacher of a congre- 
 gation duly certified, who shall employ himself solely as 
 such, and not engage in any trade or business except that 
 of schoolmaster, and who shall take the oaths and subscribe 
 the declaration, shall be exempt from serving on juries or 
 bearing parochial offices ; to which is added an exemption 
 from serving in the militia. In the next year also was 
 
 (y) By stat. 5 Geo. 1, c. 4, how- meeting with the insignia of his 
 ever, no mayor or principal magis- office, on pain of disability to hold 
 trate may appear at any dissenting that or any other office.
 
 58 BK. IV. OF PUBLIC RIGHTS. — P. II. OF THE CHURCH. 
 
 passed the statute 53 Geo. III. c. 160 (z), repealing that 
 clause of the Toleration Act which excepted persons deny- 
 ing the Trinity from the benefit of its enactments. 
 
 The Protestant dissenters, however, still remained, not- 
 withstanding these provisions, subject to the obligation im- 
 posed by the Corporation and Test Acts, on all those who 
 were admitted to any office, of taking the Sacrament of the 
 Lord's Supper according to the rites of the Church of Eng- 
 land ; but this galling disability was at length removed by 
 the 9 Geo. IV. c. 17, by which so much of these and other 
 acts as requires the taking of the Sacrament is repealed as 
 to all persons whatever, and a new form of declaration sub- 
 stituted, viz. a declaration to the effect that " upon the true 
 faith of a Christian (a)" the party will never exercise any 
 power, authority, or influence, by virtue of the office in 
 question, to injure, weaken, or disturb the English Church, 
 or its bishops and clergy ; which must be made in general 
 by every person admitted to office, who in the former state 
 of the law would have been bound to take the Sacrament 
 upon such his admission. And to this list of concessions 
 we are now to add the act of 15 & 16 Vict. c. 36, allow- 
 ing the dissenters to certify their places of worship to, and 
 register them with, the Registrar-General of Births, Deaths, 
 and Marriages, instead of the archbishop, bishop, or court 
 of quarter sessions (b). 
 
 These various acts of toleration operated, however, to the 
 exclusive benefit of Protestant dissenters, and afforded no 
 relief to papists. With respect to the latter, the progress 
 
 (s) By a recent act, 7 & 8 Vict. sheriffs of counties corporate ; and 
 
 c. 45, the benefits of 1 W. & M. by 1 & 2 Vict. c. 5, and c. 15, a dif- 
 
 sess. 1, c. 18 ; 19 Geo. 3, c. 44 ; and ferent form of declaration is provided 
 
 53 Geo. 3, c. -ICO, are extended to for Quakers, Moravians, and Separa- 
 
 meeting houses andcharitiesfounded tists, and by 8 & 9 Vict. c. 52, for 
 
 for dissenters prior to those acts, and Jews admitted to municipal offices, 
 
 unlawful till those acts passed. Where the declaration required by 
 
 (a) As to these words, see Miller law is refused, the election is i/iso 
 %\ Salomons, 21 L. J. (Exch.) 161. facto void. R. v. Humphrey, 10 A. 
 
 (b) By 5 & 6 Will. 4, c. 28, the & E. 365. 
 declaration needs not be made by
 
 CHAP. II. — OF THE DOCTRINES AND WORSHIP. 59 
 
 of emancipation was slower and more reluctant. By sta- 
 tutes, however, of 18 Geo. III. c. 60, 31 Geo. III. c. 32, 
 and 43 Geo. III. c. 30, most of the severer penalties and 
 disabilities to which they were formerly subject (b), were 
 removed on condition of their qualifying by such oaths and 
 declaration as in those acts respectively provided ; and by 
 10 Geo. IV. c. 7, commonly called the Catholic Emanci- 
 pation Act, Roman Catholics were restored in general to 
 the full enjoyment of all civil rights, except that of holding 
 ecclesiastical offices, and certain high appointments in the 
 state. By the provisions of this statute all enactments by 
 which any declaration against transubstantiation, the invo- 
 cation of the saints, or the sacrifice of the mass, were re- 
 quired from any persons, as qualifications for sitting in par- 
 liament or otherwise, are repealed ; and persons professing 
 the Roman Catholic religion, upon taking and subscribing 
 an oath prescribed by the act (which comprises, among other 
 things, the abjuration of any intention to subvert the church 
 establishment, and an oath never to exercise any privilege 
 to disturb or weaken the Protestant religion or Protestant 
 government), are relieved from all disabilities and penalties 
 whatever, and made competent to sit in parliament, to vote 
 at parliamentary elections, and to be members of lay cor- 
 porations. They are also qualified, upon taking and sub- 
 scribing the same oath (which is to stand in place of all 
 other tests whatever), to exercise any franchise or civil right 
 except that of presenting to benefices, and to hold any 
 office, with the exception of the following, — the office of 
 guardian, justice, or regent of the united kingdom, of lord 
 high chancellor, or commissioner or keeper of the great 
 seal ; of lord lieutenant, deputy, or chief governor of Ire- 
 land ; of high commissioner of the general assembly of 
 Scotland; or any office in the church, or the ecclesiastical 
 courts, or in the universities, colleges, or public schools. 
 Doubts, however, having been still entertained as to the 
 
 (b) Ubi sup. p. 53.
 
 60 BK. IV. OF PUBLIC RIGHTS.— PT. II. OF THE CHURCH. 
 
 right of Roman Catholic subjects in England to acquire 
 and hold property for the support of religious worship, and 
 for educational or charitable purposes, it was afterwards 
 by another act of the 2 & 3 Will. IV. c. 115, provided 
 that they should be subject in this particular, to the same 
 laws as were applicable to Protestant dissenters (c) ; the 
 effect of which provision is to empower them to acquire 
 and hold property for such purposes. And the triumph of 
 toleration has been now consummated by the acts of 7 & 8 
 Vict. c. 102, and 9 & 10 Vict. c. 59, which recite and repeal 
 almost the whole of such enactments as still remained in 
 force, however fallen into oblivion, calculated in any manner 
 to oppress the Roman Catholic subjects of the realm, on 
 account of their religious persuasion (d). 
 
 Thus amply has the law at length provided for the free- 
 dom of religious opinion (e). In all other respects, however, 
 the rights and pre-eminence of the established church have 
 been hitherto maintained inviolate : and though no longer 
 upheld by penal laws against non-conformity, she retains, 
 in full possession, all those dignities and endowments which, 
 at the period of the Reformation, were allotted exclusively 
 to her ministers. 
 
 (c) By 9 & 10 Vict. c. 59, s. 2, the 
 same privilege is now extended to 
 Jews ; as to whose legal condition in 
 other respects, vide sup. vol. ii. p. 
 395. 
 
 (d) Some disqualifying provisions 
 essential to the security of the esta- 
 blished church still remain unre- 
 pealed. See 3 Jac. l,c. 5, and 7 & 8 
 Vict. c. 102, as to the inability of 
 papists to present to benefices, &c. ; 
 10 Geo. 4, c. 7, s. 12, as to their in- 
 ability to hold certain offices in the 
 
 state ; and sects. 29 — 31 of the last- 
 mentioned act, as to Jesuits and 
 monks coming into the realm with- 
 out licence. 
 
 (e) Among the statutes connected 
 with this subject may be ranked the 
 1 & 2 Vict. c. 105, by which an oath 
 lawfully administered to any person 
 on any occasion whatever is allowed 
 to be binding, provided it be admi- 
 nistered in such form and with such 
 ceremonies as he declares to be bind- 
 ing.
 
 ( 61 ) 
 
 CHAPTER III. 
 
 OF THE ENDOWMENTS AND PROVISIONS OF THE 
 CHURCH. 
 
 The endowments and provisions belonging to the different 
 ecclesiastical authorities, as such, comprise lands, advow- 
 sons, and tithes ; all of which have been occasionally 
 annexed to ecclesiastical preferments by the munificence 
 of antient or modern donors; the last are incident of 
 common right to every parochial church. But in a large 
 proportion of parishes the tithes have now been commuted 
 (as will be presently explained) into rent-charges, — which 
 must be considered as in some measure a different species 
 of endowment, — though in truth it is but the representative 
 and equivalent for tithe, and subject in many respects to 
 the same legal incidents (a). 
 
 These endowments we propose to consider, first, as re- 
 gards the subject of property itself; secondly, the estates 
 which ecclesiastical persons, as such, may hold therein ; 
 thirdly, the power of alienation which they are competent 
 to exercise. 
 
 I. As regards the subject of property. 
 
 1. And herein, first, as to lands (a term which, it is to 
 be recollected, includes houses and buildings) (b), there are 
 but few particulars to be noticed in respect of these when 
 held by ecclesiastical persons ; the incidents relating to 
 lands in general, whether held by clergymen or laymen, 
 having been sufficiently explained in an earlier part of the 
 work. 
 
 (a) 6 & 7 Will. 4, c. 71, s. 71. (ft) Vide sup. vol. i. p. 162.
 
 62 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 We may observe, however, that the boundaries of church 
 lands are often subject to great uncertainty; and therefore 
 by 2 & 3 Will. IV. c. 80 (reciting that the archbishops and 
 bishops, deans and chapters, deans and other dignitaries 
 and officers of the several cathedral and collegiate churches 
 and chapels, and the societies of the colleges and halls in 
 the Universities of Cambridge and Oxford and of the col- 
 leges of Winchester and Eton, are proprietors of divers 
 manors, messuages, lands, tithes and hereditaments, and 
 in many cases the boundaries or quantities and identity 
 of such property are unknown or disputed), it is provided 
 that it shall be lawful for any such corporation sole or 
 aggregate, with such consent as in the act mentioned, to 
 enter into agreement with their tenants or undertenants, 
 or the owners of adjoining hereditaments, to refer any such 
 disputed point to arbitration. 
 
 We may remark, too, that the property of ecclesiastical 
 persons, besides other possessions, generally includes offi- 
 cial houses of residence; in which, as explained in a former 
 place (c), the law requires them actually to reside. These 
 they are also bound, both by statute and by the common 
 law of the realm, to keep in repair ; and they may not 
 only be compelled to do so during their incumbency, by 
 authority of the bishop of the diocese (d), but if they 
 commit waste upon them, or allow them to go to waste, 
 remedy may, after their deaths, be had by their successors 
 against their personal representatives, for such dilapida- 
 tions (as it is called); and that either in the ecclesiastical 
 or temporal courts (e). Numerous provisions, moreover, as 
 before noticed, are made by law, to enable ecclesiastical 
 persons to repair or rebuild their residences or provide new 
 
 (c) Vide sup. p. 32. 299 ; Bird v. Relph, 4 B. & Adol. 
 
 (d) 13 Eliz. c. 10; 1 & 2 Vict. 826; 2 Ad. & El. 773; Whinfieldt;. 
 c. 106, ss. 35, 41; North v. Barker, Watkins, 2 Phil. 3 ; Downesti. Craig, 
 3 Phill. 309 ; Rogers's Ecc. L. 307. 9 M. & W. 166 ; Rogers's Ecc. L. 
 
 (e) 13 Eliz. c. 10; 14 Eliz. c. 11, ubi sup. ; Bunbury v. Hewson, 3 
 s. 18; Ratcliffe v. D'Oyley, 2 T. R. Exch. 558 ; Warren v. Lugger, ib. 
 630; Wise v. Metcalfe, 10 B. & C. 579.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 63 
 
 ones. The methods of doing this are by raising money to 
 a limited amount (according to the value of the benefice), 
 by mortgage of its profits (which money the governors of 
 Queen Anne's bounty ( /*) are specially empowered to ad- 
 vance), or by sale or exchange of the present houses, in 
 order to obtain others that are more convenient. The 
 principal statutes on which subject are 17 Geo. III. c. 53 
 (commonly called Gilbert's Act), 1 & 2 Vict. c. 23, and 
 5 & 6 Vict. c. 26 ((/). In addition to which, we may 
 remark that by 1 & 2 Vict. c. 106 (/<), every bishop is 
 required, on avoidance of any benefice, to issue a commis- 
 sion to ascertain whether there is a fit house of residence, 
 and supposing none to exist, and the profits to exceed 100/. 
 per annum, to ascertain whether such house can be conve- 
 niently provided ; and thereupon, by mortgage of the 
 profits, to raise the sum required, or otherwise state in 
 detail his reasons for not doing so, at his next annual 
 return to her majesty in council. 
 
 With respect to a rector and vicar in particular, it is also 
 to be observed, that he is generally seised not only of the 
 parsonage or vicarage house, but of some portion of land 
 (or glebe, as it is called (i) ) attached to his benefice, as part 
 of its endowment. And by a late statute, 5 & 6 Vict. c. 
 54 (k), it is provided that the commissioners appointed to 
 carry into effect the commutation of tithes shall have power 
 to ascertain and define the boundaries of the glebe lands of 
 any benefice, or, with consent of the ordinary and patron, 
 to exchange the glebe lands for other lands within the 
 same or any adjoining parish, or otherwise conveniently 
 situated. A rector or vicar is also seised, in every case, of 
 the edifice of the church itself. In rectories, not merely 
 
 (/) As to Queen Anne's bounty, B. 2, where it is said that every 
 
 vide sup. vol. ii. p. 520. church of common right ought to 
 
 (g) See the enumeration of these have a manse and glebe. As to the 
 
 statutes, sup. p. 34, n. (i). providing and exchanging of glebes, 
 
 (h) Sect. 62. see 43 Geo. 3, c. 108; 51 Geo. 3, c. 
 
 (/) " GUba est terra in qua coiisutit 115; 55 Geo. 3, c. 147 ; 6 Geo. 4, c. 8. 
 dot ecclesiiE." — Com. Dig. Dismes, (k) Sect. 5.
 
 64 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 the body of the church, but the chancel and the churchyard 
 also, are the freehold of the rector (/). In vicarages, the 
 body of the church and the churchyard are the vicar's free- 
 hold ; the chancel that of the impropriator (m). Yet with 
 the exception of the chief pew in the chancel, which be- 
 longs to the rector or impropriator in), the disposal of the 
 seats appertains not to the rector, vicar, or impropriator ; 
 but, as formerly shown, to the ordinary, and to the church- 
 wardens, to whom the authority of the ordinary, in this 
 respect, is delegated (o). Nor can a monument be set up 
 without the ordinary's consent (p). So an aisle or side 
 chapel in a church, or a pew in its nave or body, may be 
 granted, by faculty of the ordinary, to an individual and 
 his heirs, as appurtenant to a particular messuage in the 
 parish ; and a man may prescribe for these, as so appurte- 
 nant, without showing a faculty, if he can prove that they 
 have been used and repaired, from time immemorial, by 
 those under whom he claims ; for such immemorial enjoy- 
 ment is evidence of a faculty formerly obtained (q). As 
 to the repairs of the body of the church and inclosure of 
 the churchyard, they fall of common right on the parish- 
 ioners (r) ; but those of the chancel, on the parson, or sup- 
 posing the benefice to be a vicarage, then, generally, on the 
 impropriator (s). 
 
 Among the subjects of church property we enumerated 
 advowsons and tithes : and to these it will now be proper 
 devote a more particular attention. 
 
 2. As to Advowsons. — Advowsons are of the class of 
 hereditaments incorporeal ; but were simply mentioned 
 
 (/) Clifford v. Wicks, 1 B. & Aid. Rich v. Busline]], ubi sup. 
 498 ; Beckwith v. Harding, ib. 508 ; (</) Wats. C. L. 643, 644 ; 2 Bla. 
 
 Rich v. Bushnell, 4 Hagg. 164. Com. 429. 
 
 (m) Wats. C. L. 391. (?) As to this, vide sup. p. 40 ; 2 
 
 (n) Rogers's Ecc. L. 171 ; Clifford Inst. 489, 653 ; Gosling v. Veley, 12 
 
 v. Wicks, ubi sup. Q. B. 345. 
 
 (o) Vide sup. p. 40 ; Rogers's Ecc. (s) Wats. C. L. 391, where it is said 
 
 L. 179. that this is not the case in London, as 
 
 (p) Beckwith v. Harding, ubi sup.; to which see also sup. p. 41, n. (m).
 
 CHAP. III. OF THE ENDOWMENTS AND PROVISIONS. 65 
 
 without being discussed, in that part of the first volume 
 allotted to incorporeal hereditaments in general (t) ; because, 
 though capable of being held, and in fact held indifferently, 
 both by laymen and ecclesiastics (u), their close connection 
 in other respects with the law of the church seemed natu- 
 rally to assign them to the present division of our work. 
 
 An advowson (advocatio) [is the right of presentation to 
 a church or ecclesiastical benefice] (x), and this word [sig- 
 nifies in clientelam recipere, the taking into protection; and 
 therefore is synonymous with patronage, patronatus ; and 
 he who has the right of advowson is called the patron of 
 the church. For when lords of manors first built churches 
 on their own demesnes, and appointed the tithes of those 
 manors to be paid to the officiating ministers, which before 
 were given to the clergy in common, (from whence, as was 
 formerly mentioned (y), arose the division of parishes,) the 
 lord who thus built a church and endowed it with glebe or 
 land, had of common right a power annexed of nominating 
 such minister as he pleased (provided he were canonically 
 qualified) to officiate in that church of which he was the 
 founder, endower, maintainer, or, in a word, the patron (z).~\ 
 And this power is, by derivation of title from the lords of 
 manors, now claimed by many other private persons and 
 many corporations, both lay and ecclesiastical («). But it 
 is to be observed, that an alien or papist cannot exercise the 
 rights of a patron. If the former purchase an advowson, 
 the crown shall present; if the latter, the Universities of 
 
 (t) Videsup. vol. i. p. 625, n. ( g). 7, 57, 2nd edit. This original of the 
 
 (h) As to the origin of ecclesias- jus ■patronatus, viz. building and en- 
 
 tical property in advowsons, vide dowing the church, appears also to 
 
 Rennell v. Bp. of Lincoln, 3 Bing. have been allowed in the Roman 
 
 223; 7 B. & C. 113 ; Mirehouse v. empire. Nov. 26, t. 12, c. 2; Nov. 
 
 Rennell, 8 Bing. 490. US, c. 23. 
 
 (.t) For the law on this subject ge- (o) Municipal corporations, how- 
 
 nerally, see Mirehouse on Advow- ever, are disabled from exercising 
 
 sons. church patronage ; 5 & 6 Will. 4, 
 
 (y) Vide sup. vol. i. pp. 112, 113. c. 6, s. 139, and 2 Vict. c. 31; 2 
 
 (z) Co. Litt. 119b; Gibs Cod. Scott, N. R. 394. 
 
 VOL. Til. F
 
 66 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 Cambridge and Oxford (c). An incumbent may be con- 
 stituted, as explained in a former chapter (d), either by way 
 of presentation, collation, or donation, as the case may be ; 
 and according to this distinction, an advowson is said in 
 these cases respectively to be either presentative, cvllative, 
 or donative (e). 
 
 [Advowsons also are either advowsons appendant or ad- 
 vowsons in gross. Lords of manors being originally the only 
 founders and of course the only patrons of churches (/"), 
 the right of patronage or presentation, so long as it con- 
 tinues annexed to the possession of the manor, as some 
 have done from the foundation of the church to this day, 
 is called an advowson appendant (g); and it will pass or 
 be conveyed together with the manor, as incident and ap- 
 pendant thereto, by a grant of the manor only, without 
 adding any other words (h). But where the property of the 
 advowson has been once separated from the property of 
 the manor by legal conveyance, it is called an advowson in 
 gross or at large ;] being annexed no longer to the manor 
 or lands, but to the person of the owner (i); and where the 
 inheritance either of the manor or the advowson has been 
 thus separately conveyed, the advowson remains for ever 
 in gross, and cannot be appendant any more(^). When 
 thus in gross, it may be conveyed in the same manner as 
 any other incorporeal hereditament, by grant (that is, deed 
 without livery), or by conveyance operating under the Sta- 
 tute of Uses(0- Moreover, not only the advowson itself, 
 but the next or any number of future presentations may, 
 during an existing incumbency, be conveyed (in like man- 
 ner) by the owner (m); and the grantee of a next presenta- 
 
 (c) Rogers, Ec. L. 17 ; 3 Jac. 1, (g) Ibid. 121. 
 c. 5; 1 W.&M. st. l,c. 26; 12 Ann. (h) Ibid. 207. 
 st. 2, c. 14, s. 1 ; 11 Geo. 2, c. 17; {i) Ibid. 120. 
 Edwards v. Bishop of Exeter, 5 Bing. (A) 2 Bl. Com. 22. 
 
 N. C. 654. (/ ) Vide sup. vol. i. p. 657. 
 
 (d) Vide sup. pp. 27, 29, 31. (m) Co. Litt. 249 a; Plowd. 150 ; 
 
 (e) 2 Bl. Com. 22 ; Co. Litt. 119 b. Crisp's case, Cro. Eliz. 164 ; Elvis v. 
 (/) Co. Litt. 119 b.
 
 CHAP. III. OF THE ENDOWMENTS AND PROVISIONS. 67 
 
 tion becomes, pro hdc vice, the patron. And as to either 
 species of patron, this rule is to be observed, that if he dies 
 after a vacancy has happened, and before it is filled up, the 
 right to present for the then next turn (being as it were a 
 fruit fallen) is considered as personal not real estate, and 
 goes to his executor and not to his heir (n). The exercise 
 of his right by a patron, of either description, is also subject 
 to the restrictions imposed by the law of lapse and the law 
 of simony. 
 
 First. [Lapse is a species of forfeiture, whereby the right 
 of presentation to a church accrues to the ordinary, by neg- 
 lect of the patron to present; to the metropolitan, by neglect 
 of the ordinary ; and to the crown, by neglect of the metro- 
 politan. For it being for the interest of religion and the 
 good of the public that the church should be provided with 
 an officiating minister, the law has therefore given this right 
 of lapse in order to quicken the patron, who might other- 
 wise, by suffering the church to remain vacant, avoid paying 
 his ecclesiastical dues, and frustrate the pious intentions of 
 his ancestors. This right of lapse was first established 
 about the time, though not by the authority (o), of the 
 Council of Lateran (/>), which was in the reign of our 
 Henry the second, when the bishops first began to exercise 
 universally the right of institution to churches (g). And 
 therefore, where there is no right of institution, there is no 
 right of lapse : so that no donative can lapse to the ordi- 
 nary (r), unless it hath been augmented by Queen Anne's 
 bounty;] when, by statute, it is made subject to that inci- 
 dent (s). And it is also to be observed, that [no right of 
 
 Abp. of York, Hob. 322; Alston v. (>•) Bro. Ab. tit. Quare Impedit ; 
 
 Atlay, 7 A. & E. 289 ; Rogers, Ecc. Fitton v. Hall, Cro. Jac. 518. The 
 
 L. 9. ordinary, however, may, by ecclesi- 
 
 (n) Rennell v. Bp. of Lincoln, 7 astical censures, compel the patron 
 
 B. & C. 1 13. to fill the vacant donative. 2 Burn, 
 
 (..) 2 Roll. Ab. 54, Presentment, Ecc. L. 363. 
 
 Lapse (O). (s) 1 Geo. 1, st. 2, c. 10, ss. 6, 7 ; 
 
 (p) Bract. 1. 4, tr. 2, c. 3. Rogers, Ecc. L. 354. 
 
 (q) Vide sup. p. 31 ; 2 Bl. C. 23. 
 
 F. 2
 
 68 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [lapse can accrue when the original presentation is in the 
 crown (t). 
 
 The term in which the title to present by lapse accrues 
 from the one to the other successively, is six calendar 
 months (w),] that is, 182 days (x) ; [and this exclusive of 
 the day of the avoidance (?/). But if the bishop be both 
 patron and ordinary, he shall not have a double time al- 
 lowed him to collate in (z) ; for the forfeiture accrues by 
 law, whenever the neo-lio-ence has continued six months in 
 the same person. And also if the bishop doth not collate 
 his own clerk immediately to the living, and the patron 
 presents, though after the six months are elapsed, yet his 
 presentation is good, and the bishop is bound to institute 
 the patron's clerk («). For as the law only gives the bishop 
 this title by lapse to punish the patron's negligence, there 
 is no reason that if the bishop himself be guilty of equal or 
 greater negligence, the patron should be deprived of his 
 turn. If the bishop suffer the presentation to lapse to the 
 metropolitan, the patron also has the same advantage if he 
 presents before the archbishop has filled up the benefice, 
 and that for the same reason. Yet the ordinary cannot, 
 after lapse to the metropolitan, collate his own clerk to the 
 prejudice of the archbishop (b) ; for he had no permanent 
 right and interest in the advowson as the patron hath, but 
 merely a temporary one, which having neglected to make 
 use of during the time, he cannot afterwards retrieve it. 
 But if the presentation lapses to the crown, prerogative 
 here intervenes and makes a difference ; and the patron 
 shall never recover his rio-ht till the kino- has satisfied his 
 turn by presentation, for nullum tempus occurrit regi (c). 
 And therefore it may seem as if the church might continue 
 
 (0 St. 17 Ed. 2, c. 8 ; 2 Inst. 273. (z) Gibs. Cod. 769. 
 
 (») Catesby's case, 6 Rep. 62 ; (a) 2 Inst. 273. 
 
 Regist. 42. (6) 2 Roll. Ab. 368. 
 
 (j) Wats. C. L. 109; Bp. of Pe- ( c ) Doctor and Student, d. 2, c. 
 
 terborough v. Catesby, Cro. Jac. 166 ; 36 ; R. v. Abp. of Canterbury, Cro. 
 
 2 Inst. 360. Car. 355. As to this maxim, vide 
 
 ( y) 2 Inst. 361 ; Wats. C. L. 109. sup. vol. ii. p. 473.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 69 
 
 [void for ever, unless the crown shall be pleased to present, 
 and a patron thereby be absolutely defeated of his advow- 
 son ; but to prevent this inconvenience the law has lodged 
 a power in the patron's hands of, as it were, compelling the 
 crown to present. For if, during the delay of the crown, 
 the patron himself presents, and his clerk is instituted, the 
 king, indeed, by presenting another, may turn out the 
 patron's clerk, or, after induction, may remove him by] 
 bringing an action called a [quare impedit ; but if he does 
 not, and the patron's clerk dies incumbent, or is canonically 
 deprived, the king hath lost his right, which was only to 
 the next or first presentation (d). 
 
 In case the benefice becomes void by death, or cession (e) 
 through plurality of benefices, there the patron is bound to 
 take notice of the vacancy, at his own peril ;] and the six 
 months date from the period of the death or cession ( f) ; 
 [for these are matters of equal notoriety to the patron and 
 ordinary. But in case of a vacancy by resignation or cano- 
 nical deprivation (g), or if a clerk presented be refused for 
 insufficiency, these being matters of which the bishop alone 
 is presumed to be cognizant, here the law requires him to 
 give notice thereof to the patron;] and the six months 
 shall date only from the time when such notice shall be 
 given (h) ; though as to this, a distinction is made in the 
 case of an ecclesiastical patron, who is held not entitled to 
 notice of insufficiency, because he is competent to choose 
 an able clerk (i). [Neither shall any lapse accrue to the 
 
 (d) Baskervile's case, 7 Rep. 28 ; of Canterbury, Dy. 292 ; Helei;. Bp. 
 Beverley v. Cornewall, Cro. Eliz. 44. of Exeter, 2 Salk. 539 ; Rookesby's 
 As to quure impedit, vide post, bk. v. case, Cro. Eliz. 1 19 ; 2 Roll. Ab. 364 ; 
 c. 11, tr. 2. 2 Burn, Ecc. L. 157. Where the 
 
 (e) As to cession, vide sup. p. 35. avoidance is by the clerk's having 
 (/) Semb. and not from the time been ordained under the proper age, 
 
 when patron could reasonably have had notice is to be given by the ordinary, 
 
 notice ; Wats. C. L. 5 ; Rogers, Ecc. before a lapse can accrue. 44 Geo. 3, 
 
 L. 488. c. 43. 
 
 ( g) Ibid. (i) 2 Roll. Ab. 364 ; 2 Burn, Ec. 
 
 (h) 2 Inst. 632; Bedinfield v. Abp. L. 157.
 
 70 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [metropolitan or king] in cases where the bishop is thus 
 precluded by neglect to give notice, from collation ; [for it 
 is universally true, that neither the archbishop nor the king 
 shall ever present by lapse, but where the immediate ordi- 
 nary might have collated by lapse, within the six months, 
 and hath exceeded his time; for the first step or beginning 
 failetb, et quod non habet principium, non habet ftnem (k). 
 If the bishop refuse or neglect to examine and admit the 
 patron's clerk, without good reason assigned or notice given, 
 he is styled a disturber, by the law, and shall not have any 
 title to present by lapse ; for no man shall take advantage 
 of his own wrong (/). Also if the right to presentation be 
 litigious and contested, and an action be brought to try the 
 title,] making the bishop a defendant, [no lapse shall incur 
 until the question of right be decided (w).] 
 
 Secondly, Simony is also a species of forfeiture, whereby 
 [the right of presentation to a living is forfeited and vested 
 pro hac vice in the crown. Simony means the corrupt pre- 
 sentation of any one to an ecclesiastical benefice, for money, 
 gift, or reward (re). It is so called from the resemblance it 
 is said to bear to the sin of Simon Magus, though the pur- 
 chasing of holy orders (o) seems to approach nearer to his 
 offence. It was by the canon law a very grievous crime ; 
 and is so much the more odious because, as Sir E. Coke 
 observes (/;), it is ever accompanied with perjury ; for the 
 presentee is sworn to have committed no simony.] Whether 
 it was an offence punishable at the common law has been 
 doubted (o) ; and though the clerk who committed simony 
 was always subject to ecclesiastical censures (r), these were 
 
 (k) Co. Litt. 344, 345. offence at common law, 2 Bl. C. 278 ; 
 
 (/ ) Ibid. 344. but see Bp. of St. David's v. Lucy, 1 
 
 (m) 2 Bl. C. 278; Wats. Ch. L. Ld. Rayni. 419; Greenwood v. Bp. 
 
 112; 2 Burn, Ec. L. 358; Rogers, of London, 5 Taunt. 745 ; and the 
 
 Ec. L. 488. other authorities cited Rogers, Ec. 
 
 («) Bakery. Rogers, Cro.Eliz. 790. L. 840. 
 
 (o) As to this vide sup. p. 3. (<•) Spelm. Concil. 2, 12 ; vide 
 
 (p) 3 Inst. 156; Can. 40. Whish v. Hesse,3 Hagg. 659; Degge, 
 
 (q) Blackstone says it was not an 36.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 71 
 
 [not efficacious enough to repel the notorious practice of 
 the thing;] particularly as they [did not affect the simonia- 
 cal patron;] so that [clivers acts of parliament have been 
 made to restrain it by means of civil forfeiture (s).] And 
 these shall be briefly considered in this place. 
 
 By the statute 31 Eliz. c. 6, it is for avoiding of simony 
 enacted, that if any person, for any sum of money or 
 reward, or promise of money or reward, shall present or 
 collate, admit, institute, induct, or instal any other person 
 to any ecclesiastical benefice or dignity, [both the giver and 
 taker shall forfeit two years' value of the benefice or dignity; 
 one moiety to the king, and the other to any one who will 
 sue for the same(0;] and [such presentation also shall be 
 void, and the presentee be rendered incapable of ever en- 
 joying the same benefice, and the crown shall present to it 
 for that turn ; but if the presentee dies without being con- 
 victed of such simony in his lifetime, it is enacted by stat. 
 1 W. & M. c. 16, that the simoniacal contract shall not pre 
 judice any other innocent patron, on pretence of a lapse to 
 the crown or otherwise.] The same statute of Elizabeth 
 also contains provisions against corrupt resignations and 
 exchanges. And [by the Statute 12 Anne, st. 2, c. 12, if 
 any person, for] money or reward, or promise of money or 
 reward, [shall procure in his own name, or the name of 
 any other, the next presentation to any living ecclesiastical, 
 and shall be presented thereupon, this is declared to be a 
 simonical contract, and the party is subject to all the eccle- 
 siastical penalties of simony, is disabled from holding the 
 benefice, and the presentation devolves to the crown. 
 
 Upon these statutes many questions have arisen with 
 regard to what is, and what is not, simony ; and, among 
 others, these points seem to be clearly settled.] 1. That 
 the sale of an advowson (whether the living be full or not) 
 is not simoniacal, unless connected with a corrupt contract 
 or design as to the next presentation; though if an ad- 
 vowson be granted during the vacancy of the benefice, the 
 
 0) 2 Bl. Com. 279. (?) 4 Bl. Com. 63.
 
 72 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 presentation on that vacancy can in no case pass by the 
 grant (w). 2. [That to purchase a] next [presentation, the 
 living being actually vacant, is open and notorious simony; 
 this being expressly in the face of the statute (x). 3. That 
 for a clerk to bargain for the next presentation, the incum- 
 bent being sick and about to die, was simony even before 
 the statute of Queen Anne ( y) ; and now by that statute, 
 to purchase, either in his own name or another's, the next 
 presentation, and be thereupon presented at any future time 
 to the living, is direct and palpable simony.] But, 4, a 
 bargain by any other person for the next presentation, (even 
 if the incumbent be in extremis,) if without the privity, and 
 without any view to the nomination, of the particular clerk 
 afterwards presented, is not simony (z). 5. [That if a 
 simonical contract be made with the patron, the clerk] pre- 
 sented [not being privy thereto, the presentation for that 
 turn shall indeed devolve to the crown, as a punishment of 
 the guilty patron (a) ; but the clerk, who is innocent, does 
 not] otherwise [incur any disability or forfeiture (b). 6. 
 That bonds given to pay money to charitable uses, on re- 
 ceiving a presentation to a living, are not simoniacal (c), pro- 
 vided the patron or his relations be not benefited thereby (d); 
 for this is no corrupt consideration moving to the patron.] 
 In addition to these points, we may notice that it has been 
 a frequent practice for the patron to take from the presentee 
 a bond, (usually called a resignation bond,) or other engage- 
 ment, to resign the benefice at a future period, in favour of 
 
 (ii) As to sale of an advowson, see (y) Winchcombe v. Bp. of Win- 
 
 Bac. Ab. tit. Simony, 189 ; Grey v. chester, Hob. 165. 
 
 Hesketh.Ambl. 268; Barret v.Glubb, (s) Fox v. Bishop of Chester, ubi 
 
 2 Bl. Rep. 1052 ; Bishop of Lincoln sup. ; 3 Bligh, N. S. 123, S. C. 
 
 v. Wolforstan, 2 Wils. 174; 3 Burr. ( a ) See Whish v. Hesse, 3 Hagg. 
 
 1 504, S. C. in error ; Greenwood v. 659. 
 
 Bishop of London, 5Taunt.745; Fox (6) 3 Inst. 154; R. v. Bishop of 
 
 v. Bishop of Chester, 6 Bing. 1 ; Al- Norwich, Cro. Jac. 385. 
 
 ston v. Atlay, 6 Nev. & M. 686. ( c ) Noy, 142. 
 
 (i) Baker v. Rogers, Cro. Eliz. (,/ ) p ee l e v. Cape], Stra. 534. 
 788 ; Moor, 914, S. C.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 73 
 
 some particular individual named by the patron, or at the 
 request of the latter, generally ; and the validity of such en- 
 gagements has been the subject of much discussion (e). By 
 the later authorities a contract of either of these descriptions 
 has been deemed within the prohibition of the laws relating 
 to simony, and consequently void. They are now, however, 
 to a certain extent, sanctioned by positive law. For by 9 
 Geo. IV. c. 94(f), any such engagement, in writing, if 
 made to the intent and purpose (manifested by the terms of 
 it) that some one nominee, or one of two nominees, shall be 
 presented, shall be valid to all intents and purposes ; sub- 
 ject, however, to these provisions, that where there are two 
 nominees, each of them shall be in a certain degree of 
 relationship or connection with the patron ; and that the 
 writing shall in all cases be deposited within two months 
 with the registrar of the diocese, open to public inspection ; 
 and also that the resignation made in pursuance of such 
 engagement shall be followed by a presentation, within six 
 months, of the person named. 
 
 3. Tithes(g) (under which head we shall have occasion 
 to refer also to tithe rent-charges) are, like advowsons, a 
 species of incorporeal hereditaments (h) ; and, like them, 
 are capable of being held either by laymen or ecclesiastics. 
 But tithes are properly, and for the most part, in the hands 
 of ecclesiastics only(i); and belong to laymen chiefly in the 
 character of impropriators ; the nature of whose rights has 
 already been sufficiently explained in a former chapter (k). 
 
 Tithes [are denned to be the tenth part of the increase 
 yearly arising and renewing from the profits of lands, the 
 stock upon lands, and the personal industry of the inha- 
 
 (e) Dashwood v. Peyton, 18 Ves. (g) From the Saxon Teotha, tenth. 
 
 37 ; Jac. & Walk. 283 ; Fletcher v. Jac. Diet. As to the recovery of 
 
 Lord Sondes, 3 Bing. 502; 5 B. & tithes improperly withheld, vide post, 
 
 Aid. 835, S. C. ; Bishop of London bk. v. c. 13. 
 v. Ffyttche, 1 East, 487, (n.) (h) Vide sup. vol. i. p. 625, n. (g). 
 
 (/) See also 7 & 8 Geo. 4, c. 25 ; (i) Bac. Ab. Tythes, (E). 
 
 Burton, Comp. 416. _ (k) Vide sup. p. 20.
 
 74 BK. IV. OF PI BILC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [bitants; the first species being usually called prcedial, as 
 of corn, grass, hops, and wood (Z) ; the second mixed, as 
 of wool, milk (m), pigs, &c.(w), consisting of natural pro- 
 ducts, but nurtured and preserved in part by the care of 
 man ; and of these the tenth must be paid in gross ; the 
 third personal, as of manual occupations, trades, fisheries 
 and the like : and of these only the tenth part of the clear 
 gains and profits is due ;] nor is the tithe generally due in 
 respect of these at all, except so far as the particular cus- 
 tom of the place may authorize the claim (o). From the 
 above definition it may be inferred that whatever is [of the 
 substance of the earth, or is not of annual increase, as stone, 
 lime, chalk and the like,] is not in its nature titheable; nor 
 is tithe deinandable, except by force of special custom, in 
 respect to animals fera natures. 
 
 In our remarks on this subject we shall consider — [First, 
 The original of the right of tithes; Secondly, In whom that 
 right at present subsists ; Lastly, Who may be discharged, 
 either totally or in part, from payment. 
 
 First. As to their original ; the title of the clergy to them 
 cannot now be put upon any divine right, though such a 
 right certainly commenced, and, it would seem, as certainly 
 ceased, with the Jewish theocracy. Yet an honourable and 
 competent maintenance for the ministers of the Gospel is 
 undoubtedly jure divino, whatever the particular mode of 
 that maintenance may be.] 
 
 The establishment of tithes in the Christian Church is 
 generally ascribed to the fourth century (/>), though [we 
 cannot precisely ascertain the time when they were first 
 introduced into this country. Possibly they were contem- 
 porary with the planting of Christianity among the Saxons 
 
 (/) 1 Rol. Ab. 635 ; 2 Inst. 649. (o) 1 Rol. Ab. 656 ; 2 & 3 Ed. 6, 
 
 As to the manner of taking tithe of c. 13; 7 Bro. P. C. 3; Com. Dig. 
 
 turnips, see 5 & 6 Will. 4, c. 75. Dismes, (E 3). 
 
 (m) As to this tithe, vide Fisher v. (p) See Rennell v. Bp. of Lincoln, 
 
 Birrell, 2 Q. B. 239. 7 Barn. & Cress. 153. 
 
 (n) 1 Rol. Ab. 635 ; 2 Inst. 649.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 75 
 
 [by Augustine the monk, about the end of the sixth cen- 
 tury ; but the first mention of them, perhaps, in any written 
 English law, is in a constitutional decree made in a synod 
 held a.d. 786 (//), wherein the payment of tithes in general 
 is strongly enjoined. This canon or decree, which at first 
 bound not the laity, was effectually confirmed by two king- 
 doms of the heptarchy, in their parliamentary conventions 
 of estates, respectively consisting of the kings of Mercia 
 and Northumberland, the bishops, dukes, senators and 
 people ; which was a very kw years later than the time 
 that Charlemagne established the payment of them in 
 France (r), and made that famous division of them into four 
 parts; one to maintain the edifice of the church, the second 
 to support the poor, the third the bishop, and the fourth 
 the parochial clergy (s). 
 
 The next authentic mention of them is the fecdus Ed- 
 wardi et Guthruni, or the laws agreed upon between King 
 Guthrun the Dane, and Alfred and his son Edward the 
 elder, successive kings of England, about the year 900. 
 This was a kind of treaty between these monarchs, which 
 may be found at large in the Anglo-Saxon laws(£); wherein 
 it was necessary, as Guthrun was a pagan, to provide for 
 the subsistence of the Christian clergy under his dominion; 
 and accordingly we find (u) the payment of tithes not only 
 enjoined, but a penalty added upon non-observance ; which 
 law is seconded by the laws of Athelstan (x), about the 
 year 930. 
 
 Secondly. We are next to consider the persons to whom 
 tithes are due. And upon their first introduction, (as hath 
 formerly been observed (?/),) though every man was obliged 
 to pay tithes in general, yet he might give them to what 
 priests he pleased (z): which were called arbitrary Canse- 
 co) Selden, c. 8, s. 2. (at) Cap. 1. 
 
 (r) A.D. 778. (y) Sup. vol. i. p. 114. 
 
 (*) Seld. c. 6, s. 7. (s) 2 Inst. 646 ; Slade o. Drake, 
 
 (() Wilkins, p. 51. Hob. 296. 
 
 («) Cap. 6.
 
 76 BK. IV. OF PUBLIC RIGHTS.— PT. II. OF THE CHURCH. 
 
 [crations of tithes ; or he might pay them into the hands 
 of the bishop, who distributed among his diocesan clergy 
 the revenues of the church, which were then in common (a). 
 But when dioceses were divided into parishes, the tithes of 
 each parish were allotted to its own particular minister; 
 first, by common consent or the appointment of lords of 
 manors, and afterwards by the written law of the land(&). 
 However, arbitrary consecrations of tithes took place 
 again afterwards, and became in general use till the time 
 of King John(c); which was probably owing to the in- 
 trigues of the regular clergy, or monks of the Benedictine 
 and other rules, under Archbishop Dunstan and his suc- 
 cessors, who endeavoured to wean the people from paying 
 their dues to the secular or parochial clergy, (a much more 
 valuable set of men than themselves,) and were then in 
 hopes to have drawn, by sanctimonious pretences of ex- 
 raordinary purity of life, all ecclesiastical profits to the 
 coffers of their own societies. And this will naturally 
 enough account for the number and riches of the monas- 
 teries and religious houses which were founded in those 
 days, and which were frequently endowed with tithes. 
 For a layman, who was obliged to pay his tithes some- 
 where, might think it good policy to erect an abbey, and 
 there pay them to his own monks, or grant them to some 
 abbey already erected, since, for his dotation, which really 
 cost the patron little or nothing, he might, according to the 
 superstition of the times, have masses for ever singing for 
 his soul. But in process of years, the income of the poor 
 laborious parish priests being scandalously reduced by these 
 arbitrary consecrations of tithes, it was remedied by Pope 
 Innocent the third (d) about the year 1200, in a decretal 
 epistle sent to the archbishop of Canterbury, and dated 
 from the palace of Lateran, which has occasioned Sir Henry 
 Hobart and others to mistake it for a decree of the Council 
 
 (a) Seld. c. 9, s. 4. (r) Seltl. c. 11. 
 
 (6) LL. Fidgar. c. 1 and 2 ; Canut. (d) Opera Innocent III. torn. 2, 
 
 c 11. p. 452.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 77 
 
 [of Lateran, held a.d. 1179(e), which only prohibited what 
 was called the infeudation of tithes, or their being granted 
 to mere laymen (/) ; whereas this letter of Pope Innocent 
 to the archbishop enjoined the payment of tithes to the 
 parsons of the respective parishes where every man inha- 
 bited, agreeable to what was afterwards directed by the 
 same pope in other countries (g). This epistle, says Sir 
 Edward Coke (h), bound not the lay subjects of this realm, 
 but being reasonable and just, it was allow r ed of, and so 
 became lex terrce. This put an effectual stop to all the 
 arbitrary consecrations of tithes, except some footsteps, 
 which still continue in those portions of tithes] (as they are 
 called) [which the parson of one parish hath, though rarely, 
 a right to claim in another (i) ; for it is now universally 
 held that tithes are due of common right to the parson of 
 the parish, unless there be a special exception ; which par- 
 son of the parish, we have seen in a former chapter (k), may 
 be either the actual incumbent, or else the impropriator of 
 the benefice; appropriations being a method of endowing 
 monasteries which seems to have been devised by the re- 
 gular clergy by way of substitute to arbitrary consecration 
 of tithes.] In impropriations, indeed, the vicar, as well as 
 the impropriator (or rector), is generally entitled to some 
 part of the tithes ; but as between these parties, it is to be 
 observed, that all tithes, prima facie and by presumption of 
 law, belong to the latter, except such as can be shown, by 
 evidence, to belong to the former (I). Such evidence may 
 consist, however, either of the production of a deed of 
 endowment, vesting certain tithes in the vicar, or of such 
 proof of long usage as is sufficient to raise the presumption 
 that an endowment of that description, though now lost, 
 
 (e) Vide Steel o. Houghton, 1 H. d) 2 Inst. 641, 653. 
 
 Bl. 52. (A) Vide sup. p. 19. 
 
 (/) Decretal. 1. 3, t. 30, c. 19. (/) Daws v. Benn, 1 B. & C. 763 ; 
 
 (g) Ibid. c. 2, 6. 2 Bligh, N. S. 83. 
 (h) 2 Inst. 641.
 
 7 8 BK. IV. OF PUBLIC RIGHTS.— PT. II, OF THE CHURCH. 
 
 was antiently made (m). It sometimes happens that an en- 
 dowment is found to vest all the "small" tithes eo nomine 
 in the vicar (?i), which raises the question what are small 
 and what great tithes — to determine which, no clear line of 
 demarcation seems ever to have been drawn; though tithes 
 mixed and personal are universally agreed to fall always 
 under the former denomination (o), and tithes of corn, hay 
 and wood, are generally comprised under the latter (p). 
 
 [We observed that tithes are due to the parson of com- 
 mon right, unless by special exception. Let us therefore 
 see, thirdly, who may be exempted from the payment of 
 tithes (17).] 
 
 And here, first, we may observe that some persons are 
 exempt by personal privilege. [Thus the crown by its pre- 
 rogative is discharged from all tithes (r). So a vicar shall 
 pay no tithes to the rector, nor the rector to the vicar ; the 
 maxim in such cases being that ecclesia decimas non solvit 
 ecclesiv (s). But these privileges are not annexed to the 
 land, but personally confined to the crown and the clergy ; 
 for their tenant or lessee shall pay tithes, though in their 
 own occupation their lands are not generally titheable (t).~\ 
 
 Next, all spiritual persons or corporations, as monas- 
 
 (m) Jackson 0. Walker, Gwill. 
 1231 ; 2 Bligh, N. S. 94, 103. 
 
 («) Bac. Ab. Tythes, (K). 
 
 (0) Ibid. 
 
 (l>) Com. Dig. Dismes, G. 1. 
 Small tithes are sometimes called 
 privy tithes. Vide Clee v. Hall, 7 
 C. & F. 744. 
 
 (7) This of course is meant to re- 
 fer only to the ordinary methods of 
 exemption, and not to those of a 
 local kind. For it sometimes hap- 
 pens that tithes are extinguished in 
 particular parishes by act of parlia- 
 ment, such as inclosure acts. In 
 London, an annual sum of money is 
 paid in lieu of tithes; vide 27 Hen. 8, 
 c. 21 ; 37 Hen. 8, c. 12. As to 
 
 churches destroyed by the fire of 
 London, 22 & 23 Car. 2, st. 2, c. 15, 
 and 44 Geo. 3, c. lxxxix. As to par- 
 ticular parishes, 4 Geo. 4, c. cxviii. ; 
 7 Geo. 4, c. cxvi. ; 6 Geo. 4, c. clxxvi. ; 
 1 Geo. 4, c. lix. ; 7 Geo. 4, c. liv. On 
 the whole subject of tithes in Lon- 
 don, see Pulling's Law of London, 
 254. 
 
 (r) Wright v. Wright, Cro. Eliz. 
 511. According to other authorities, 
 however, the crown is not discharged 
 except by special prescription. Bac. 
 Ab. Tythes (Q) 1; Hardr. 315. 
 
 (s) Blinco v. Marston, Cro. Eliz. 
 479; Wright (.Wright, ibid. 511; 
 Sav. 3 ; Moore, 910, S. C. 
 
 (t) Blinco v. Marston, ubi sup.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 79 
 
 teries, abbots, bishops, and the like, have been always 
 capable of having their lands totally discharged of tithes 
 by various ways (u), [as, 1 , by real composition ; 2, by the 
 pope's bull of exemption ; 3, by unity of possession ; as 
 when the rectory of a parish, and lands in the same parish, 
 both belonged to a religious house, those lands were dis- 
 charged of tithes by this unity of possession; 4, by pre- 
 scription ; having never been liable to tithes, by being 
 always in spiritual hands ; 5, by virtue of their order ; as 
 the knights templars, cistercians, and others, whose lands 
 were privileged by the pope with a discharge of tithes (x) : 
 though upon the dissolution of abbeys by Henry the eighth 
 most of these exemptions from tithes would have fallen 
 with them, and the lands become titheable again, had they 
 not been supported and upheld by the statute 31 Hen. 
 VIII. c. 13, which enacts that all persons who should 
 come to the possession of the lands of any abbey then dis- 
 solved, should hold them free and discharged of tithes in 
 as large and ample a manner as the abbeys themselves for- 
 merly held them. And from this original have sprung all 
 the lands which, being in lay hands, do at present claim to 
 be tithe-free ; for if a man can show his lands to have been 
 such abbey lands, and also immemorially discharged of 
 tithes by any of the means before mentioned, this is now a 
 good exemption.] 
 
 Again, all persons, spiritual or lay, may claim an exemp- 
 tion from tithes, either partial or total, by reason of a real 
 composition ; which is an agreement [made between the 
 owner of the lands and the parson or vicar, with the con- 
 sent of the ordinary and the patron, that such lands shall, 
 for the future, be discharged from payment of tithes by 
 reason of some land or other real recompence given to the 
 parson, in lieu and satisfaction thereof (y). This was per- 
 mitted by law, because it was supposed that the clergy 
 would be no losers by such composition, since the consent 
 
 (u) Wright v. Gerrard, Hob. 309. Rep. 44; Seld. Tithes, c. 13, s. 2. 
 (a) Bishop of Winchester's case, 2 (y) 2 Inst. 490; 13 Rep. 40.
 
 80 I3K. IV. OP PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [of the ordinary, whose duty it is to take care of the church 
 in general, and of the patron, whose interest it is to protect 
 that particular church, were both made necessary to render 
 the composition effectual ; and hence have arisen all such 
 compositions as exist at this day, by force of the common 
 law. But experience showing that even this caution was 
 ineffectual, and the possessions of the church being by this 
 and other means every day diminished, the disabling sta- 
 tute 13 Eliz. c. 10, was made, which prevents, among other 
 spritual persons, all parsons and vicars from making any 
 conveyances of the estates of their churches other than for 
 three lives, or twenty-one years (z). So that now, by virtue 
 of this statute, no real composition made since the thirteenth 
 year of Elizabeth is] in general [good for any longer term 
 than three lives or twenty-one years, though made by con- 
 sent of the patron and ordinary.] But by 2 & 3 Will. IV. 
 c. 100, s. 2, it is enacted, that every composition for tithes, 
 which had then been made or confirmed by the decree of 
 any court of equity in England, in a suit to which the or- 
 dinary, patron, and incumbent, were parties, and which had 
 not been since set aside or departed from, shall be valid in 
 law. 
 
 Moreover all persons, spiritual or lay, may claim a par- 
 tial exemption from tithes by custom (a) ; which is where, 
 by immemorial usage, a particular manner of tithing has 
 been allowed, different from the payment of one-tenth of 
 the annual increase. [And this immemorial usage is bind- 
 ing upon all parties, as it is in its nature an evidence of 
 universal consent and acquiescence, and with reason sup- 
 poses a real composition to have been formerly made.] 
 Such customary mode of tithing is called a modus deci- 
 mandi, or, more simply, a modus. [It is sometimes a pe- 
 cuniary compensation; as twopence per acre for the tithe of 
 land : sometimes it is a compensation in work and labour ; 
 as that the parson shall have only the twelfth cock of hay 
 
 (s) Vide sup. vol. i. p. 454. 
 
 (a) As to custom, vide sup. vol. i. p. 54.
 
 CHAP. III. OF THE ENDOWMENTS AND PROVISIONS. 81 
 
 [and not the tenth, in consideration of the owner's making 
 it for him : sometimes in lieu of a large quantity of crude 
 or imperfect tithe, the parson shall have a less quantity, 
 when arrived to greater maturity ; as a couple of fowls in 
 lieu of tithe eggs : and the like. Any means, in short, 
 whereby the general law of tithing is altered, and a new 
 method of taking them is introduced, is called a modus de- 
 cimandi, or special manner of tithing. 
 
 To make a good and sufficient modus, the following rules 
 must be observed : 1. It must be certain and invariable (b) ; 
 for payment of different sums will prove it to be no modus, 
 that is, no original real composition, because that must 
 have been one and the same, from its first original to the 
 present time. 2. The thing given in lieu of tithes must be 
 beneficial to the parson, and not for the emolument of third 
 persons only (c) ; thus a modus to repair the church, in lieu 
 of tithes, is not good, because that is an advantage to the 
 parish only ; but to repair the chancel is a good modus, for 
 that is an advantage to the parson {d). 3. It must be 
 something different from the thing compounded for (e). 
 One load of hay in lieu of all tithe hay is no good modus, 
 for no parson would bona, fide make a composition to re- 
 ceive less than is due in the same species of tithe; and 
 therefore the law will not suppose it possible for such com- 
 position to have existed. 4. One cannot be discharged 
 from payment of one species of tithe, by paying a modus 
 for another (f). Thus a modus of one penny for every 
 milch cow will discharge the tithe of milch kine, but not of 
 barren cattle ; for tithe is of common right due for both, 
 and therefore a modus for one shall never be a discharge 
 for the other. 5. The recompence must be in its nature as 
 durable as the tithes discharged by it, — that is, an inherit- 
 
 (b) Towerson v. Winget, 1 Keb. (e) Shepperd v. Penrose, 1 Lev. 
 602. 179. 
 
 (c) 1 Rol. Abr. 649. (/) Grysman v. Lewes, Cro. Eliz. 
 
 (d ) Vide sup. p. 64. 446; Startupp v. Dodderidge, Salk. 
 
 657. 
 VOL. III. G
 
 82 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [ance certain (g) ; and therefore a modus that every inha- 
 bitant of a house shall pay fourpence a year in lieu of the 
 owner's tithes, is no good modus; for possibly the house 
 may not be inhabited, and then the recompence will be 
 lost. 6. The modus must not be too large ; which is called 
 a rank modus ; as if the real value of the tithes be 60/. per 
 annum, and a modus is suggested of 40/., this modus will 
 not be established, though one of 40s. might have been 
 valid (A). Indeed, properly speaking, the doctrine of rank- 
 ness in a modus is a mere rule of evidence drawn from the 
 improbability of the fact, rather than a rule of law {i). For 
 in these cases of customary moduses, it is supposed that an 
 original real composition was antiently made, which being 
 lost by length of time, the immemorial usage is admitted 
 as evidence to show that it once did exist, and that from 
 thence such usage was derived. Now time of memory hath 
 been long ago ascertained by the law, to commence from 
 the beginning of the reign of Richard the first (k) ; and 
 any custom may be destroyed by evidence of its non-exist- 
 ence in any part of the long period from that time to the 
 present. Wherefore as this real composition is supposed 
 to have been an equitable contract, or the full value of the 
 tithes at the time of making it, if the modus set up is so 
 rank and large as that it beyond dispute exceeds the value 
 of the tithes in the time of Richard the first, this modus is 
 (in point of evidence) felo de se, and destroys itself. For 
 as it would be destroyed by any direct evidence to prove 
 its non-existence at any time since that era, so also it is 
 destroyed by carrying in itself this internal evidence of a 
 much later original.] 
 
 Lastly. All persons, spiritual or lay, may, in certain cases, 
 claim exemption from tithes, in respect of long usage; that 
 is, such usage as can be shown to have lasted for a certain 
 
 ( g) 2 P. Wms. 462. (i) Pykei>. Dowling, H. 19 Geo. 3, 
 
 (h) Startupp v. Dodderidge, 11 C. B. 
 Mod. 60. (k) 2 Inst. 238, 239 ; vide sup. 
 
 vol. i. pp. 57, 660.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 83 
 
 period of time, even though it may have fallen short of im- 
 memorial duration. This sort of exemption is given by a 
 late statute, and it may either be by way of modus, (in 
 which case the discharge is partial only,) or may be founded 
 on an usage to pay no tithe whatever. But in either case 
 its principle is new; for the common law recognized no 
 modus that had not existed immemorially ; and allowed no 
 total discharge from tithes by force of any custom or pre- 
 scription whatever, except in the case of spiritual persons 
 before mentioned ; maintaining inviolably the maxim, that, 
 [in lay hands, modus denon decimando non valet (/).] 
 
 The statute above referred to, is the 2 & 3 Will. IV. 
 c. 100 (amended by 3 & 4 Will. IV. c. 83) (m), whereby it 
 is provided, that when tithe is demanded by any lay person, 
 not being a corporation sole, or by any corporation aggre- 
 gate, any modus or discharge set up in answer to such 
 claim shall be deemed valid, upon evidence showing an 
 usage in support of it for thirty years, unless it can be met 
 by evidence that such usage has been by virtue of some 
 agreement in writing, or that before the thirty years the 
 usage was different ; and a modus or discharge shall in such 
 case be deemed absolutely valid, upon evidence showing an 
 usage for as much as sixty years in support of it, unless it 
 be proved to have been by virtue of some agreement in 
 writing. And farther, that when tithe is demanded by any 
 bishop, parson, or other corporation sole, any claim of 
 modus or discharge shall be valid and indefeasible upon 
 evidence of usage during the whole time that two persons 
 in succession shall have held the benefice, and for three 
 years after the institution of a third incumbent, unless it 
 shall be proved that such usage was by some agreement in 
 
 (0 Wright v. Wright, Cro. Eliz. W. 822 ; Knight v. Waterford (Mar- 
 
 511. quis of), 15 Mee. & W. 419 ; Fel- 
 
 (m) See the following cases which lowes v. Clay, 4 Q. B. 313 ; Salkeld 
 
 have arisen under these acts: Thorpe v. Johnson, 2 C. B. 749; 2 Exch. 
 
 v. Mattingley,5Mee. &W.302; Earl 256; Toymhee v. Brown, 3 Exch. 
 
 of Stamford v. Dunbar, 13 Mee. & 117. 
 
 G. 2
 
 84 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 writing; provided always, that if the whole time of the 
 holding of such two persons shall be less than sixty years, 
 then it shall be necessary to show such usage not only 
 during the whole of such time, but also during such farther 
 period as shall, with such time, be sufficient to make up the 
 full period of sixty years, and the farther period of three 
 years aforesaid. 
 
 Such, in a general point of view, is the state of the law 
 with respect to tithes. But a system is now in progress 
 (and has nearly reached its final result) for commutation of 
 this species of property throughout the kingdom into rent- 
 charge ; and to this subject it is now time to call the 
 reader's attention. 
 
 The institution of tithes, though venerable from its scrip- 
 tural origin and its antiquity, and though entitled, so far as 
 the principle of making a competent provision for the minis- 
 ters of religion is concerned, to universal approbation, is 
 nevertheless, in its specific form, odious to the people, and 
 unsatisfactory to the political economist. A tax, consisting 
 of a fixed proportion of the gross produce, is open to this 
 objection, that it takes advantage of increased fertility, 
 while it makes no allowance for increased expenditure, and 
 thus tends to check the spirit of agricultural improvement. 
 It is obvious, too, that the produce of the soil cannot be 
 collected in kind, without much waste and expense to the 
 tithe-owner, nor without the danger of engendering animo- 
 sities between him and his flock. It is, however, on the 
 other hand, of not less manifest importance to the church, 
 that the legal provision for its members should be such as 
 to secure to them, upon some steady basis, a competent 
 portion of the necessaries of life, and to make them inde- 
 pendent of any fluctuations in the value of money. It is 
 therefore with great wisdom that parliament has lately con- 
 sented to the adoption of a plan for commuting the tithes of 
 every parish into a rent-charge, the amount of which is to be 
 adjusted annually, according to the average price of corn. 
 
 This measure has been carried into effect by the Tithe 
 Commutation Act, 6 & 7 Will. IV. c. 71, and the various
 
 CHAP. III. OF THE ENDOWMENTS AND PROVISIONS. 85 
 
 acts since passed for its amendment (n). They establish 
 a board of commissioners, under the title of " The Tithe 
 Commissioners for England and Wales" (o) ; and provide 
 (in general) that the commutation may be effected in two 
 ways, either by a voluntary parochial agreement, provided 
 it be entered into by a certain proportion of the parties 
 interested (p), and confirmed by the commissioners (q) ; or 
 by the compulsory award of the commissioners ; for which 
 latter purpose they are required to take, as the basis of the 
 commutation (but with power to a certain extent, and in 
 certain cases, to depart from it), the clear average value of 
 the tithes of the parish, or of the composition payable for 
 the same, where they have been compounded for, for the 
 period of seven years ending Christmas, 1835 (r). The 
 value so voluntarily agreed upon, or awarded by the com- 
 missioners, (as the case may be,) is to be considered as the 
 amount of the total rent-charge to be paid in respect of the 
 tithes in that parish (s), and is to be afterwards apportioned 
 among the lands of the parish, having regard to their aver- 
 age titheable produce and productive quality (t) ; and after 
 the apportionment shall have been confirmed, such lands 
 are to be absolutely discharged from the payment of all 
 tithes, and instead thereof shall be subject to their portion 
 of the rent-charge, which shall be thenceforth payable to 
 the former tithe-owner, by two half-yearly payments (u). 
 The amount of these payments is to fluctuate according to 
 
 (n) 7 Will. 4 & 1 Vict. c. 69 
 1 & 2 Vict. c. 64 ; 2 & 3 Vict c. 62 
 3 & 4 Vict. c. 15 ; 5 & 6 Vict. c. 54 
 
 of the duties of these commissioners 
 as still remain to be performed are 
 now, by 14 & 15 Vict. c. 53, trans- 
 
 9 & 10 Vict. c. 73 ; 10 & 11 Vict. ferred to the "Copyhold and Inclo- 
 
 c. 104. The following are some of sure Commissioners." 
 
 the cases which have arisen upon the (p) Sect. 17. 
 
 construction of the Tithe Commuta- (q) Sect. 27. See Re Appledore 
 
 tionAct: Barker v. The Tithe Com- Tithe Commission, 8 Q. B. 139; 
 
 missioners, 9 Mee. & W. 130 ; S. C. Matthews v. Leapingwell, 3 C. B. 
 
 11 Mee. &W. 320; In re Tithe Com- 912. 
 
 missioners, IDowl.N.S. 810; Fisher (r) Sect. 37. 
 
 r. Berrell, ibid. 565 ; R.v. Tithe Com- (s) Sect. 50. 
 
 missioners, 15 Q. B. 620. (t) Sects. 33, 54. 
 
 (o) 6 & 7 Will. 4, c. 71, s. 2. Such («) Sect. 67.
 
 86 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 the price of corn ; and the machinery for that purpose is as 
 follows. It is provided that immediately after the passing 
 of the act, and also in January every year, an advertisement 
 shall be inserted by authority in the London Gazette; 
 stating the average price of wheat, barley, and oats, for 
 seven years ending on Thursday before Christmas then next 
 preceding (x) ; and that every rent-charge shall be deemed 
 of the value of so many bushels of wheat, barley, and oats, 
 in equal quantities, as the same would have been competent 
 to purchase according to the prices inserted in the first ad- 
 vertisement (y) ; and that after every first of January it 
 shall vary, so as always to consist of the price of the same 
 quantities, according to the advertisement then next pre- 
 ceding (z). 
 
 The rent-charge created under these acts differs from 
 rent-charges in general (a), not only in the variableness of 
 its amount, but in another important particular; for in these, 
 not only the land of the party charged, but his person, is 
 usually liable ; but as to a tithe rent-charge, it is expressly 
 provided (b), that no person whatever shall be personally 
 liable to the payment. The remedy in general where the 
 rent-charge is in arrear for twenty-one days, is only by dis- 
 tress on the land, as in the case of landlord and tenant (c) ; 
 but if it be in arrear for forty days, and there be no suf- 
 ficient distress, a writ may then be obtained from one of 
 
 (x) Sect. 56. (u) As to rent-charges in general, 
 
 (y) Sect. 57. vide sup. vol. i. p. 649. 
 
 (z) Sect.67. We may remark here, (b) 6 & 7 Will. 4, c. 71, s. 67. 
 
 that unless by special provision, to (c) Sect. 81. As to costs on dis- 
 
 be inserted in some parochial agree- training fora rent-charge, see Newn- 
 
 ment, and specially approved by the ham v. Bever, 8 C. B. 560. When 
 
 commissioners, the acts do not ex- apportioned on lands taken by a rail - 
 
 tend to the tithes of fiah, or to per- way, distress may be had on the goods 
 
 sonat tithes (other than tithes of milk), of the company wherever situated ; 
 
 or to mineral tithes, or to payments 7 & 8 Vict. c. 83, s. 22. When an 
 
 in lieu of tithes in London, or rent- out-going tenant has quitted, leav- 
 
 charges in lieu of tithes under any ing tithe rent-charge unpaid, the 
 
 custom or private act, or any tithes succeeding tenant or landlord may 
 
 commuted or extinguished under any pay it to prevent a distress, and may 
 
 former act, — sect. 90; 2 & 3 Vict. charge him with the amount, 14 & 
 
 c 62, s. 9. 15 Vict. c. 25, s. 4.
 
 CHAP. III. OF THE ENDOWMENTS AND PROVISIONS. 87 
 
 the judges at Westminster, to assess the arrears ; after 
 which the owner of the rent-charge may sue out a writ of 
 execution for taking possession of the lands and holding 
 them till his debt and costs be fully satisfied (d). But it 
 is provided that neither the distress nor writ of execution 
 shall be taken out for more than two years' arrears at any 
 one time (e). These rent-charges, it may also be remarked, 
 are made subject to all parliamentary, parochial, and other 
 rates and charges, to which the tithes commuted have there- 
 tofore been subject (/); and such rates and charges are to 
 be assessed in the first instance upon the occupier of the 
 lands; who may, after paying them, deduct the amount 
 from the rent next payable to his landlord, and the landlord 
 may, in his turn, recover that amount from the owner of 
 the rent-charge {g). But in some cases lands may obtain 
 an exemption under the commutation acts, from all liability 
 either to tithe or rent-charge. For to the extent of twenty 
 acres in the same parish, land is allowed to be given to the 
 tithe-owner as an equivalent (h) ; and any person seised in 
 possession of an estate in fee simple or fee tail of any tithes 
 or rent-charge, may dispose of the same so that it shall be 
 merged in the inheritance of the lands charged (i). 
 
 The commutation acts provide that any person having 
 any interest in any tithes shall have the same claim upon 
 the substituted rent-charge (j); and that every estate in the 
 rent-charge shall be subject to the same liabilities and in- 
 cidents as the like estate in the tithes commuted; and that 
 when any lands were exempted from tithe while in the oc- 
 cupation of the owner, by reason of being glebe, or having 
 been heretofore parcel of the possessions of any privileged 
 
 (rf) Sect. 82. See In re Ham- der 3 & 4 Will. 4, c. 90, or under the 
 
 mersmith Rent-charge, 4 Exch. 87. " Public Health Act," see 14 & 15 
 
 (e) Sects. 81, 82. Vict. c. 50. 
 
 (/) Sect. 69. (/*) Sects. 29, 62, 68; 2 & 3 Vict. 
 
 (g) Sect. 70. As to the assess- c. 62, ss. 19, 20,21; 5 & 6 Vict, 
 
 ment, &c. of property tax on these c. 54, s. 6 ; et vide ibid. sect. 7. 
 
 rent-charges, vide 5 & 6 Vict. c. 35, (i) 6 & 7 Will. 4, c. 71 ; 1 & 2 
 
 sched. A. No. IV. As to the assess- Vict. c. 64 ; 2 & 3 Vict. c. 62. 
 
 ment of tithe rent-charges to rates (j) See Tasker v. Bullman, 3 
 
 levied for watching and lighting, un- Exch. 351.
 
 88 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 order, the same lands shall be in like manner exempted 
 from the payment of the rent-charge, while in the occupa- 
 tion of the owner thereof; and that where by any act of 
 parliament tithes are authorized to be sold, exchanged, or 
 applied in any way, the same powers shall apply to the 
 rent-charge (k). It follows, therefore, that notwithstanding 
 the new system of commutation, the former tithe law will 
 in some respects always retain its importance, and require 
 to be noticed in our law books. But, on the other hand, 
 when that commutation shall have extended to every parish 
 in the realm, many branches of the former law will for all 
 practical purposes be superseded ; and in this may be in- 
 cluded (besides many others which we have thought it 
 allowable to pass by) the important and difficult subjects 
 of modus and total exemption, of which we have above 
 endeavoured to give some general idea. For it is provided 
 by the commutation acts, that if any question shall arise as 
 to any composition real, modus, or exemption from tithe, 
 in respect of any of the lands or produce thereof in any 
 parish, such question shall be definitively settled in the 
 manner therein provided, and due allowance made in the 
 parochial agreement, or award of the commissioners, (as 
 the case may be,) for every modus or exemption that shall 
 be so established (/). 
 
 II. As to the estates which ecclesiastical persons may 
 have in the several descriptions of property above enume- 
 rated, it is to be remarked, that their case differs from that 
 of ordinary proprietors, in several particulars. A dean and 
 chapter always constitute a corporation aggregate, and 
 every bishop, parson, vicar, and the like, a corporation 
 sole ; and consequently they take lands and hereditaments, 
 when granted in perpetuity, to hold to them and their suc- 
 
 (fc) 6 & 7 Will. 4, c. 71, s. 71. (/) 6 & 7 Will. 4, c. 71, ss. 21, 
 
 As to partial exemption, see also 24, 44, 45 ; Barker v. Tithe Com- 
 
 2 & 3 Vict. c. 62, ss. 11, 12 ; 3 & 4 missioners, 9 Mee. & W. 129 ; S. C. 
 
 Vict. c. 15, s. 14. 11 Mee. & W. 320.
 
 CHAP. III.— OF THE ENDOWMENTS AND PROVISIONS. 89 
 
 cessors, instead of their heirs (m). And in connection with 
 this, is the distinction to be found in the books, that if 
 land be granted to a corporation aggregate, they take a fee 
 simple without the word successors ; but if to a bishop, 
 parson, or the like, then the word successors, (except indeed 
 in case of the antient tenure in frankalmoign,) must be 
 added to give him a perpetuity in right of his church. In- 
 deed, the estate of a parson or vicar, even when perpetual 
 as regards his church, is considered for most purposes, as 
 regards himself personally, an estate for life only, with the 
 fee simple in abeyance; though for other purposes it is said 
 to amount to a fee simple qualified (n). But if a bishop or 
 dean, or dean and chapter, have lands in perpetuity in right 
 of their churches, they are always described in law, as seised 
 in their demesne as of fee (o). It is also held, that eccle- 
 siastical persons, on account of their corporate character, 
 cannot be seised, as such, in tail, though they may have an 
 estate determinable upon the death of a person without 
 issue (p). And for the same reason they cannot in general, 
 (and subject to the large exceptions introduced by modern 
 statutes on this subject,) hold the lands that are granted 
 to them without obtaining a licence of mortmain (q). 
 
 III. As to the power of alienation which ecclesiastical 
 persons are competent to exercise. 
 
 At common law, though an ordinary tenant for life could 
 make no alienation which would bind longer than while he 
 himself lived (an incapacity to which he is still subject), 
 [yet some tenants for life, w 7 here the fee simple was in 
 abeyance, might (with the concurrence of such as have the 
 guardianship of the fee) make leases of equal duration 
 
 (m) 3 Inst. 202; Co. Litt. 300; (») Co. Litt. 341 d. 
 
 Wats. C. L. 372. As to corpora- (o) Wats. C. L. 373. 
 
 tions aggregate and sole, vide sup. (/>) Ibid. 
 
 vol. i. pp. 3-12, 453, et post, bk. iv. (q) Wats. C. L. 374 ; vide sup. 
 
 pt. 3, ch. 1. vol. i. pp. 436, 441, 453.
 
 90 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [with those granted by tenants in fee simple, such as parsons 
 and vicars, with consent of the patron and ordinary (s). 
 So also bishops and deans, and such other sole ecclesias- 
 tical corporations as are seised of the fee simple of lands 
 in their corporate right, might, with the concurrence and 
 confirmation of such persons as the law requires, have 
 made leases for years or for life, estates in tail or in fee, 
 without any limitation or control. And corporations aggre- 
 gate might have made what estates they pleased, without 
 the confirmation of any other person whatsoever. Where- 
 as now by several statutes this power, where it was unrea- 
 sonable and might be made an ill use of, is restrained, and 
 where in the other cases the restraint by the common law 
 seemed too hard, it is in some measure removed. The for- 
 mer statutes are called the restraining, the latter the ena- 
 bling statutes. We will take a view of them all, in order 
 of time (t). 
 
 And, first, the enabling statute 32 Hen. VIII. c. 28, em- 
 powers three manner of persons to make leases to endure 
 for three lives or one-and-twenty years, which could not do 
 so before. As, first, tenant in tail may by such leases bind 
 his issue in tail, but not those in remainder or reversion. 
 Secondly, a husband seised in right of his wife in fee simple 
 or fee tail, provided the wife joins in such lease, may bind 
 her and her heirs thereby. And, lastly, all persons seised 
 of an estate of fee simple in right of their churches (which 
 extends not to parsons or vicars) may (without the concur- 
 rence of any other person) bind their successors. But then 
 there must be many requisites observed which the statute 
 specifies, otherwise such leases are not binding.] These 
 requisites we had occasion in a former part of the work to 
 
 (») Co. Litt. 44; Bac. Ab. Leases, Bac. Abr. tit. Leases and Terms of 
 
 (E.) ; Vivian ». Blomberg, 3 Bing. Years, supposed to be from the pen 
 
 N. C. 311. of Chief Baron Gilbert, where this 
 
 (t) The account here introduced subject is learnedly and copiously 
 
 of the enabling and restraining sta- discussed; see also Doe d. Bram- 
 
 tutes is from 2 Bl. Com. 318. See mall v. Collinge, 7 C. B. 939.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 91 
 
 specify, when speaking of the alienation of tenants in tail(u). 
 We therefore need only remind the reader that the leases 
 must be for three lives or twenty-one years, must be of 
 lands commonly letten for twenty years past, must reserve 
 the rent that for that period has been usually reserved 
 thereon, and must not be made without impeachment of 
 waste. 
 
 [Next follows in order of time the disabling or restrain- 
 ing statute, 1 Eliz. c. 19 (made entirely for the benefit of 
 the successor), which enacts that all grants by archbishops 
 and bishops (which include even those confirmed by the 
 dean and chapter, the which, however long or unreason- 
 able, were good at common law), other than for the term of 
 twenty-one years or three lives from the making, or without 
 reserving the annual rent, shall be void. But by a saving 
 expressly made, this statute of the first year of Elizabeth 
 did not extend to grants made by any bishop to the crown ; 
 by which means Queen Elizabeth procured many fair pos- 
 sessions to be made over to her by the prelates, either for 
 her own use or with intent to be granted out again to her 
 favourites, whom she thus gratified without any expense to 
 herself. To prevent which for the future, the statute 1 Jac. 
 I. c. 3, extends the prohibitions to grants and leases made 
 to the king, as well as to any of his subjects. 
 
 Next comes the statute 13 Eliz. c. 10 (explained and en- 
 forced by the statutes 14 Eliz. cc 11 and 14, 18 Eliz. c. 11, 
 and 43 Eliz. c. 29), which extends the restrictions laid by 
 the last-mentioned statutes on bishops to] parsons, vicars, 
 and [other inferior corporations, both sole and aggregate.] 
 From laying all which together, and examining the parti- 
 cular provisions of the before-mentioned statutes, [we may 
 collect that] (subject to the relaxations introduced by some 
 recent statutes to be presently noticed) [all colleges, cathe- 
 
 (u) Vide sup. vol. i. p. 564; in ditaments, and not such as merely lie 
 
 which place, we may remember, one in grant ; but as to church leases this 
 
 of the requisites was stated to be that is now dispensed with by 5 Geo. 3, 
 
 the lease must be of corporeal here- c. 17.
 
 92 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 [drals, and other ecclesiastical or eleemosynary corporations, 
 are restrained from making any grants or leases of their pos- 
 sessions, unless under the following regulations. 1. They 
 must not exceed twenty-one years or three lives from the 
 making ;] but may be for a shorter time. [2. They must 
 be of lands commonly letten for twenty years past. 3. The 
 accustomed rent, or more, must be yearly reserved there- 
 on (y). 4. Houses in corporations or market towns may be 
 let for forty years, provided they be not the mansion-houses 
 of the lessors, nor have above ten acres of ground belonging 
 to them, and provided the lessee be bound to keep them in 
 repair; and they may also be aliened in fee simple for lands 
 of equal value in recompence. 5. Where there is an old 
 lease in being, no new lease shall in general be made, unless 
 where the old one will expire or shall be surrendered or 
 otherwise ended within three years (z). 6. No lease, by the 
 equity of the statutes, shall be made without impeachment 
 of waste (a). 
 
 Concerning these restrictive statutes, there are two ob- 
 servations to be made ; first, that they do not by any con- 
 struction enable any persons to make such leases as they 
 were by common law disabled to make. Therefore a par- 1 " 
 son or vicar, though he is restrained from making longer 
 leases than for twenty-one years or three lives, even with 
 the consent of the patron and ordinary, yet is not enabled 
 to make any lease at all, so as to bind his successor, with- 
 out obtaining such consent (b). Secondly, that though 
 leases contrary to these acts are declared void, yet they are 
 good against the lessor during his life, if he be a sole cor- 
 poration, and are also good against an aggregate corpora- 
 tion, so long as the head of it lives, who is presumed to be 
 
 ( y) As to this requisite, see Doe new lease be confirmed by the dean 
 
 v. Lock, 2 Ad. & El. 705. and chapter. Bac. Abr. Leases (E), 
 
 (c) But according to the construe- rule 3 ; Co. Litt. 45. 
 
 tion of these statutes, an archbishop (a) As to these statutes, see also 
 
 or bishop may make a new lease be- 39 & 40 Geo. 3, c. 41, by which they 
 
 fore the expiration of the first, with- are explained and amended, 
 
 out any such limitation, provided the (b) Co. Litt. 44.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 93 
 
 [the most concerned in interest. For the act was intended 
 for the benefit of the successor only ; and no man shall 
 make an advantage of his own wrong (c). 
 
 There is yet another restriction with regard to college 
 leases, by statute 18 Eliz. c. 6 ; which directs that one-third 
 of the old rent then paid should for the future be reserved 
 in wheat or malt, reserving a quarter of wheat for each 
 65. 8d., or a quarter of malt for every 55., or that the 
 lessees should pay for the same according to the price that 
 wheat and malt should be sold for in the market next ad- 
 joining to the respective colleges on the market day before 
 the rent became due. This is said (d) to have been an in- 
 vention of Lord Treasurer Burleigh and Sir Thomas Smith, 
 then principal Secretary of State ; who, observing how 
 greatly the value of money had sunk, and the price of all 
 provisions risen, by the quantity of bullion imported from 
 the new found Indies (e) (which effects were likely to increase 
 to a greater degree), devised this method for upholding the 
 revenues of colleges. Their foresight and penetration has 
 in this respect been very apparent, for though the rent so 
 reserved in corn was at first but one-third of the old rent, 
 or half of what was still reserved in money, yet now the 
 proportion is] reversed, and the money arising from corn 
 rents very greatly exceeds the rents reserved in money (/). 
 
 Such continued to be the state of the law in this matter 
 from the reign of Queen Elizabeth until a recent period ; 
 and such it still continues, subject to the following altera- 
 tions. First, by 6 & 7 Will. IV. c. 20(g), relative to the 
 renewal of church leases (h), it is provided, that no arch- 
 bishop or bishop, ecclesiastical corporation sole or aggre- 
 gate, or other spiritual person, nor any master or guardian 
 
 (c) Co. Litt. 45. (h) For the former state of the law 
 
 (d) Strype's Annals of Eliz. as to the grant of a new lease before 
 
 (e) Vide sup. vol. ii. p. 508, n. that in being is expired, or, as they 
 
 (f) Blackstone states the propor- are usually termed, concurrent leases, 
 tion in his time as " almost double." vide Bac. Abr. Leases (E), rule 3 ; 
 
 (g) Explained and amended by 6 Vivian v. Blomberg, 3 Bing. N. C. 
 & 7 Will. 4, c. 64. 311.
 
 94 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 of any hospital, shall grant any new lease of their lands or 
 hereditaments by way of renewal of a lease previously 
 granted for two or more lives, until one or more of the per- 
 sons for whose lives it was granted shall die ; and then only 
 for the surviving life or lives and such new life or lives as 
 shall serve to make up the number of lives, not exceeding 
 three, for which the first lease was granted ; that where 
 such previous lease was for forty, thirty, or twenty-one 
 years, the renewed lease shall not be granted until four- 
 teen, ten or seven years of the first term shall have expired 
 respectively; and that where it was for any term of years 
 whatever, no renewal thereof shall be granted for any life 
 or lives ; provided, however, that when it shall be certified 
 by such parties as in the act mentioned, that for ten years 
 last before the act, it had been the usual practice (such prac- 
 tice having, in the case of a corporation sole, commenced 
 prior to the time of the person for the time being represent- 
 ing the corporation) to renew such leases for forty, thirty, 
 or twenty-one years at shorter periods than fourteen, ten or 
 seven years respectively, a renewed lease may be granted 
 conformably to such usual practice; and that nothing in the 
 act shall prevent granting a renewed lease by way of ex- 
 change of any life or lives in being, for which a lease shall 
 have been granted, in case such exchange shall be approved 
 by such authority as in the act specified ; nor prevent a lease 
 from being granted with a view to confirm any title or other- 
 wise for the life or lives of the same person or persons, or 
 the survivors or survivor of them, or for the same term of 
 years as the lease last granted (h). 
 
 Next, it is provided by 5 & 6 Vict. c. 27 (an act to en- 
 able incumbents to demise the lands belonging to their 
 benefices on farming leases), that it shall be lawful for an 
 incumbent, with consent of the patron and bishop, by deed 
 to lease for a term not exceeding fourteen years any part of 
 
 (h) See also 14 & 15 Vict. c. 104, church lands to the lessees thereof, 
 as to enabling ecclesiastical corpora- or purchase from the lessees, Sec- 
 tions, with approval of the church hut the duration of this act is limited 
 estates commissioners, to sell their to three years.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 95 
 
 the glebe lands, or other lands, belonging to the benefice, 
 to take effect in possession and not in reversion ; provided 
 that there be a reservation quarterly, of the best rent that 
 can be gotten, that no fine or foregift be taken for the 
 same, that no lessee shall be made dispunishable for waste, 
 and that the lease shall contain such covenants as to culti- 
 vation, management, and other particulars, as the act parti- 
 cularly specifies (i). It is also provided that where covenants 
 are taken for a particularly expensive mode of cultivation, 
 the term may be extended to twenty years ; but that before 
 any lease shall be granted, a competent surveyor shall be 
 appointed by the bishop, patron, and incumbent, who shall 
 certify that the lands and buildings are proper to be leased 
 under the provisions of the act, and otherwise report upon 
 the circumstances of the case (/e) ; and that no lease shall 
 be valid unless there be reserved out of the same the house 
 of residence and at least ten acres of the land lying within 
 five miles of it, and situate most conveniently for actual oc- 
 cupation (7). 
 
 It is also enacted by 5 & 6 Vict. c. 108 (passed to enable 
 ecclesiastical persons to grant long leases for building, re- 
 pairs, or other improvements), that any ecclesiastical corpo- 
 ration, aggregate or sole, (except any college or corporation 
 of vicars choral, priest vicars, senior vicars, custos and vicars, 
 or minor canons, and also, except any ecclesiastical hospital 
 or the master thereof,) may, with consent of the Ecclesias- 
 tical Commissioners for England, (to which, where the lessor 
 is incumbent of a benefice, the consent of the patron also 
 must be added,) demise, by deed, the corporate lands or 
 houses for any term not exceeding ninety-nine years, to 
 take effect in possession and not in reversion, to any person 
 willing to improve or repair the same ; but so as there be 
 reserved the best yearly rent, payable half yearly or oftener, 
 and so as the lease be made without fine or foregift, and 
 contain such covenants as in the act particularly specified. 
 
 (i) Sect. 1. (/ ) Sect. 2. 
 
 (/c) Sect. 3.
 
 96 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 It is also provided that on the grant of such leases, a small 
 rent may be reserved during the six first years, with an 
 increased rent afterwards (m) ; but no such lease is to com- 
 prise the usual house of residence, its outbuildings, or plea- 
 sure grounds (n). The act also contains a similar power of 
 leasing, but for the term of sixty years only, with respect 
 to watercourses, way leaves, railroads, and other like ease- 
 ments upon or over the property belonging to such eccle- 
 siastical persons (o), and also with respect to their mines, 
 minerals, or quarries (p). But it directs that any increase 
 in the annual value of benefices and preferments to be ob- 
 tained by means of any leases thereby authorized, or a por- 
 tion of such increase (as the case may be), shall upon the 
 next vacancy thereof be paid over to the ecclesiastical com- 
 missioners, to be applied in making additional provision for 
 the cure of souls, according to the statutes in that behalf 
 provided (q). The act also provides that, before any lease 
 shall be granted under its authority, a competent surveyor 
 shall be appointed by the ecclesiastical commissioners, with 
 consent of the intended lessor, who shall make such report 
 or certificate as to the intended plan as shall be deemed 
 necessary (r). Provisions are also contained as to the sur- 
 render of existing leases and underleases, for the purpose of 
 granting a new lease under the act (s). And it is enacted 
 that no ecclesiastical person or his representatives shall be 
 liable to the successor on account of any dilapidations which 
 may occur in houses or buildings, while the same are held 
 under a lease granted by the act for building or repairing 
 purposes (t). This act, however, is made without prejudice 
 to any right that ecclesiastical persons have under the for- 
 mer law to grant or lease, whether by renewal or otherwise, 
 save and except that in every lease hereafter granted under 
 the former law, of lands or houses which shall have been 
 
 (m) 5 & 6 Vict. c. 108, s. 2. (</) Sects. 10—15. 
 
 (n) Sect. 9. (r) Sect. 18. 
 
 (o) Sect. 4. (s) Sects. 16, 17. 
 
 (p) Sect. 6. See Doe d. Bram- (t) Sect. 19. 
 mall v. Collinge, 7 C. B. 954.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 97 
 
 previously leased under this act, there shall be always re- 
 served the best improved rent (payable half yearly or of- 
 tener), without taking any fine or foregift for the sanie(a). 
 
 In addition to the restrictions on alienation which have 
 been mentioned, the object of which is the protection of the 
 successor, ecclesiastical persons (having the cure of souls) (x) 
 are restrained from charging their benefices so as to render 
 them liable to the payment of pension or profit thereout, 
 even in their own time ; a provision intended for the pro- 
 tection of the incumbents themselves. This is by force of 
 the 13 Eliz. c. 20, a statute that was once repealed by the 
 43 Geo. III. c. 84, s. 10, but which has been since revived 
 by 57 Geo. III. c. 99 (y). Under this statute of Elizabeth, 
 it has been held that an instrument framed as a lease, but 
 amounting in substance and design to a charge, is illegal 
 and void (z) ; and that not only a direct charge, but an 
 agreement to charge a living, falls under the same consi- 
 deration (a). 
 
 Having thus endeavoured to explain in some measure 
 the state of the law with respect to the endowments and 
 provisions of the church properly so called (a subject too 
 large and intricate to admit of fuller exposition within the 
 limits of a work like the present), we shall conclude with 
 some notice of certain profits of little comparative impor- 
 tance, which, as forming a part (however trivial) of the 
 revenues of the clergy, ought to be considered in connec- 
 tion with the subject of the chapter. We allude to those 
 fees and dues which go by the name of surplice fees (being 
 payable on baptisms, burials, marriages, and the like), and 
 to Easter offerings and mortuaries ; all which are men- 
 
 («) Sect. 8. ( fl ) Flight v. Salter, 1 B. & Ad. 
 
 (.t) Bac. Ab. Leases (F). 673 ; Newland v. Watkin, 9 Bing. 
 
 (u) Shaw v. Pritchard, 10 B. & C. 113 ; Alchin n. Hopkins, 1 Bing. N. 
 
 241. The 57 Geo. 3, c. 99, has been C. 99. Et vide as to this statute, 
 
 itself in turn repealed by 1 & 2 Vict. Saltmarshe v. Hewett, 1 Ad. & El. 
 
 c. 106, but without affecting the re- 812, and the cases there cited. See 
 
 vival of 13 Eliz. c. 20. also. Walthen v. Crofts, 20 L. J. 
 
 (s) Shaw v. Pritchard, ubi sup. (Exch.) 257. 
 
 VOL. III. H
 
 98 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 tioned generally in our books by the name of oblations, 
 and are of great antiquity. Indeed, it is said that volun- 
 tary oblations (from which these probably emanated) once 
 formed, with the produce of such lands as had been volun- 
 tarily bestowed, the whole revenue of the church ; until in 
 the fourth century it was enriched with tithes (b). 
 
 With respect to the surplice fees, it is said that none are 
 due to the minister as of common right, but that they de- 
 pend upon special custom only (c) ; while as to Easter offer- 
 ings, on the other hand, it is laid down that they are due 
 of common right, and that at twopence per head (unless 
 it has been usual to pay more), to him who exercises the 
 spiritual function (d ). However this may be, the liability 
 to pay oblations generally is recognized by the statute law. 
 For by 2 & 3 Edw. VI. c. 13, all who, by the laws and 
 customs of the realm, ought to pay offerings, shall yearly 
 pay them to the parson or vicar of the parish at the four 
 most usual offering days, or otherwise at Easter ; and by 
 7 & 8 Will. III. c. 6, and 53 Geo. III. c. 127, every person 
 shall henceforth pay all offerings, oblations, and obventions 
 to the several rectors, vicars, and others to whom they are 
 due; and they are made recoverable before two justices of 
 the peace, where their amount does not exceed £10, or 
 (where due from Quakers) £50 (e). Moreover in new 
 churches and chapels built under the Church Building Acts 
 (of which we shall presently speak more at large), the pay- 
 ment both of fees and offerings to the minister and clerk 
 respectively is specially regulated and secured (/). 
 
 (/>) Jac. Law Diet. Oblations; (e) By the same statutes, and by 5 
 
 Rennell v. Bish. of Lincoln, 7 Barn. & 6 Will. 4, c. 74, and 4 & 5 Vict. 
 
 & Cress. 153. c. 36, offerings and other ecclesias- 
 
 (c) 3 Bl. Com. 90; Com. Dig. tical dues, cannot be recovered in 
 Dismes (B. 1); Burdeaux v. Lan- the superior courts, or in the eccle- 
 caster, 1 Salk. 332 ; Andrews v. siastical courts, where the amount 
 Cawthorne, Willes, 536 ; Littlewood does not exceed 10/. (or in the case 
 v. Williams, 6 Taunt 277 ; Gilbert of Quakers 50/.), and no matter of 
 v. Buzzard, 3 Phill. 360 ; Spry v. title comes in question. 
 
 Gallop, 16 Mee. & W. 716. (/) 59 Geo. 3, c. 134, s. 11 ; 1 & 
 
 (d) Com. Dig. Dismes (B. 1); 2 Will. 4, c. 38, s. 14; 14 & 15 Vict. 
 Laurence v. Jones, Bunb. 173 ; Eger- c. 97, ss. 2—6, 18. 
 
 ton». Still, Bunb. 128.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 
 
 99 
 
 As to mortuaries (on which the learning is more copious), 
 they are stated by Blackstone to be [a sort of ecclesiastical 
 heriots {g), being a customary (h) gift claimed by and due 
 to the minister in very many parishes, on the death of his 
 parishioners. They seem originally to have been, like lay 
 heriots, only a voluntary bequest to the church, being in- 
 tended (as Lyndewoode informs us, from a constitution of 
 Archbishop Langham) as a kind of expiation and amends 
 to the clergy, for the personal tithes and other ecclesiastical 
 duties which the laity in their lifetime might have neglected 
 or forgotten to pay. For this purpose, after (i) the lord's 
 heriot or best good was taken out, the second best chattel 
 was reserved to the church as a mortuary (&). And there- 
 fore in the laws of King Canute (/) this mortuary is called 
 soul-scot (jf aplr*cea"e), or symbolum. animce (m). 
 
 It was antieutly usual in this kingdom to bring the mor- 
 tuary to church, along with the corpse, when it came to be 
 buried, and thence it is sometimes called a corse-present, a 
 term which bespeaks it to have been once a voluntary do- 
 nation. However, in Bracton's time, so early as Henry the 
 
 (g) As to heriots, vide sup. vol. i. 
 p. 604. It is to be observed that 
 mortuaries are not the same as bu- 
 rial fees. Willes, 538, (n.) 
 
 (Ji) None is due of common right ; 
 but by custom only. 2 Inst. 491. 
 
 (0 Co. Litt. 185. 
 
 (k) " Si decedens plura hairnet it ani- 
 malia, optima cui de jure fuerit de- 
 hitum reservato, ecclesice sua: sine dolu, 
 J'raude, seu contradictione qualibet, pro 
 recompensatione subtractaiinnis deci- 
 marum personalium, necnon et obia- 
 tionum, secundum melius animal reser- 
 vetur, post obitum, pro salute animce 
 sua." — Provinc. 1. 1, tit. 3. 
 
 (/) C. 13. 
 
 (m) " In pursuance of the same 
 " principle," says Blackstone, vol. ii. 
 p. 425, " by the laws of Venice, 
 
 H. 
 
 " where no personal tithes have been 
 " paid during the life of the party, 
 " they are paid at his death, out of 
 " his merchandize, jewels, and other 
 " moveables (Panormitan. ad De- 
 " cretal. 1. 3, t. 20, c. 32)." He also 
 remarks that previously to the year 
 1409, by a similar policy in France, 
 every man that died without be- 
 queathing a part of his estate to the 
 church, which was called dying with- 
 out confession, was formerly deprived 
 of Christian burial ; or, if he died 
 intestate, the relations of the de- 
 ceased, jointly with the bishop, 
 named proper arbitrators to deter- 
 mine what he ought to have given 
 to the church, in case he had made 
 a will. And he cites Montesquieu, 
 Sp. L. b. 28, c. 41. 
 9
 
 100 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 [third, we find it riveted into an established custom ; inso- 
 much that the bequests of heriots and mortuaries were held 
 to be necessary ingredients in every testament of chattels. 
 " Imprimis autem debet quilibet qui testamentum fecerit, do- 
 minium suum de meliori re quam habuerit recognoscere, et 
 postea, ecclesiam de alia meliori." But yet this custom was 
 different in different places, " in quibusdam locis habet ec- 
 clesia melius animal de consuetudine ; in quibusdam secun- 
 dum, vel tertium melius ; et in quibusdam nihil. Et ideo 
 consideranda est consuetudo loci (n)." This custom still 
 varies in different places, not only as to the mortuary to be 
 paid, but the person to whom it is payable. In Wales, a 
 mortuary or corse-present was due upon the death of every 
 clergyman to the bishop of the diocese, till abolished upon 
 a recompence given to the bishop by the statute 12 Ann. 
 st. 2, c. 6. And in the Archdeaconry of Chester, a custom 
 also prevailed that the bishop, who was also archdeacon, 
 should have at the death of every clergyman dying therein 
 his best horse or mare, bridle, saddle, and spurs, his best 
 gown or cloak, hat, upper garment under his gown, and 
 tippet, and also his best signet or ring (o). But by statute 
 28 Geo. II. c. 6, this mortuary is directed to cease, and the 
 act settled upon the bishop an equivalent in its room.] 
 
 [The variety of customs with regard to mortuaries, giving 
 frequently a handle to exactions on the one side, and frauds 
 or expensive litigations on the other, it was thought proper 
 by statute 21 Hen. VIII. c. 6, to reduce them to some kind 
 of certainty. For this purpose it is enacted, that all mor- 
 tuaries or corse-presents to parsons of any parish shall be 
 taken in the following manner ; unless where by custom 
 less or none at all is due, viz. for every person who does 
 not leave goods to the value of ten marks, nothing ; for 
 every person who leaves goods to the value of ten marks 
 and under thirty pounds, 3s. 4d. ; if above thirty pounds 
 and under forty pounds, 6s. 8d. ; if above forty pounds, of 
 
 (n) Bract. 1. 2, c. 26 ; Flet. 1. 2, (») Hinde v. Bishop of Chester, 
 
 c. 57. Cro. Car. 237.
 
 CHAP. III. — OF THE ENDOWMENTS AND PROVISIONS. 101 
 
 [what value soever they may be, 10s. and no more. And 
 no mortuary shall, throughout the kingdom, be paid for the 
 death of any feme covert, nor for any child, nor for any one 
 of full age that is not a housekeeper, nor for any wayfaring 
 man ; but such wayfaring man's mortuary shall be paid in 
 the parish to which he belongs. And upon this statute 
 stands the law of mortuaries to this day.]
 
 102 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 CHAPTER IV. 
 
 OF EXTENSIONS OF THE ORIGINAL CHURCH ESTA- 
 BLISHMENT AND HEREIN OF CHAPELS — OF NEW 
 
 CHURCHES AND CHAPELS AND NEW ECCLESIAS- 
 TICAL DISTRICTS AND PARISHES. 
 
 The constitution of the church of England, in what regards 
 its regular and proper establishment of prelates, ministers, 
 churches and endowments, as above explained, is, for the 
 most part, as antient as the common law itself. But since 
 the original foundations of that establishment were laid, 
 and particularly in our own times, various alterations have 
 been introduced, tending greatly to improve and enlarge 
 the venerable edifice — and we shall endeavour to give some 
 account of these in the course of the following chapter. 
 
 The spiritual ministrations of the church are mainly in- 
 trusted (as may be inferred from the preceding statements) 
 to the parochial clergy — in other words, the rectors, vicars, 
 and perpetual curates of the different parishes of which the 
 realm is composed, with the temporary curates whom they 
 may think fit to employ for their assistance. Each parish 
 contains a church, with a permanent incumbent of one 
 of the three descriptions above enumerated, the parochial 
 division of the kingdom being indeed itself referential to the 
 establishment of churches therein ; every district in which 
 a church has happened to be erected and endowed, having 
 received from remote times the denomination of a parish (a). 
 
 (a) " Parorhia est locus in quo elegit vide sup. vol. i. p. 112; Seld. Hist. 
 
 populus alicujus ecclesim." Jeffrey's Tithes, ch. ix. 1 — 4; Hallam, Mid. 
 
 case, 5 Rep. 67 a. As to the forma- Ag. vol. ii. p. 205. 
 tion of parishes and parish churches,
 
 CHAP. IV. OF EXTENSIONS OF THE ESTABLISHMENT. 103 
 
 These parishes when first founded were presumably in 
 general of a size and population proportioned to the esta- 
 blishment of the single church and minister thus respectively 
 provided for them ; and the number of them has from a 
 very early period been such as to comprehend almost the 
 entire realm — there being comparatively but very few and 
 scanty portions of territory which have remained extra- 
 parochial. 
 
 To the uniformity of this system the only exception was, 
 that in certain parishes chapels were founded, in which 
 divine service, and (in some instances) the rites of sacra- 
 ment and sepulture, might be lawfully celebrated, in the 
 same manner as in the parochial churches themselves. 
 These chapels were of various descriptions. Some were 
 pricate, being erected for the use only of particular persons 
 of rank, to whom this privilege was conceded by the proper 
 authorities — while others were public, and designed for the 
 benefit of particular districts lying within the parochial 
 ambit (b). These last were in general founded at some 
 period later than the church itself, and were designed for 
 the accommodation of such of the parishioners as in course 
 of time had begun to fix their residence at a distance from 
 its site; and chapels so circumstanced were described as 
 chapels of ease, because built in aid of the original church (c). 
 But there were others which seem to have been coeval 
 with, and independent of, the church, and to have been 
 designed for the benefit of some particular districts never 
 included within its pale, though locally embraced by the 
 parochial division (d). With respect to the chapels of ease 
 (also called chapels belonging to the mother church (e) ), they 
 were either parochial, in which both divine worship and 
 the rites of sacrament and sepulture were performed — or 
 mere chapels of ease, and designed for divine worship only. 
 
 (b) Godolph. Ab. 145 ; Fafnworth v. Foley, 2 C. B. 664. 
 
 v. Bishop of Chester, 4 B. & C. 568. (rf) Craven v. Sanderson, 7 Ad. & 
 
 (c) Wats. C. L. 645; Farnworth El. 880. 
 
 v. Bishop of Chester, ubi sup. ; Reg. (e) Wats. C. L. ubi sup.
 
 104 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 But as to chapels of ease of either description, these doc- 
 trines equally prevailed and are still law — that of common 
 right the nomination to them is in the incumbent, and 
 cannot be taken from him except by agreement between 
 himself, the patron and the ordinary (/) ; and that their 
 establishment in any parish does not of itself deprive the 
 inhabitants accommodated therein of the right of resorting 
 to the church ; nor, on the other hand, exempt them from 
 liability to its repairs, or any other parochial burthen (g). 
 
 To the number of chapels thus created in antient times 
 considerable additions were afterwards made at compara- 
 tively modern periods — many new chapels of ease (parti- 
 cularly in towns) having latterly been built and endowed, 
 to meet the demands of a population beginning to overflow ; 
 and among these may be particularly noticed a species of 
 recent introduction (h), called proprietary chapels, so called 
 because they are the property of private persons, who have 
 purchased or erected them with a view to profit or other- 
 wise. 
 
 But these casual additions to our regular establishment, 
 though numerous, were not found adequate to the growing 
 exigency of the case; and in 1818 the legislature began to 
 apply itself systematically to the great object of extending 
 the accommodation afforded by the national church, so as 
 to make it more commensurate with the wants of the 
 people. In that year, and during the interval which has 
 since elapsed, a variety of statutes have been passed for 
 this purpose, which are known by the denomination of the 
 Acts for Church-building;. 
 
 (f) Farnworth v. Bishop of Ches- liable to the visitation of the ordi- 
 ter, ubi sup. ; and see Dixon v. Ker- nary, as churches and chapels gene- 
 shaw, Amb. 528 ; Duke of Portland rally are. These free chapels are al- 
 v. Bingham, 1 Hagg. 1C8. ways of royal foundation, or founded 
 
 (g) Ball v. Cross, 1 Salk. 165 ; at least by private persons to whom 
 see Dent v. Rob, 1 You. & C. 1. In the crown thought fit to grant the 
 chapels another distinction exists, privilege. Wats. C. L. 645 ; 1 Burn, 
 with which it did not seem neces- E. L. 298. 
 
 sary to incumber the text. Some (h) Moysey v. Hilcoat, 2 Hagg. 30. 
 
 are free chapels, so called because not
 
 CHAP. IV. -OF EXTENSIONS OF THE ESTABLISHMENT. 105 
 
 By these acts (i ) the crown is empowered to appoint a 
 body of commissioners, who constitute a body corporate, 
 under the name of " Her Majesty's Commissioners for 
 Building New Churches," and whose office, though limited 
 originally to a period of ten years, has been since pro- 
 longed (k). They are directed to examine into the state of 
 parishes and extra-parochial places in England and Wales, 
 and to ascertain where the accommodation of additional 
 churches or chapels is wanted ; and are empowered, out of 
 funds placed at their disposal by parliament, to cause such 
 churches or chapels as they think requisite to be built, or 
 to assist the parishioners, or any persons subscribing for 
 the purpose, with grants or loans of money (Z). They have 
 also the power, by consent of the bishop and patron, to re- 
 commend the division of one parish into several, so far as 
 ecclesiastical purposes are concerned, or to recommend, by 
 consent of the bishop, the division of any parish into sepa- 
 rate ecclesiastical districts, called district parishes, for all 
 purposes of worship (m), and for the celebration of mar- 
 riages, christenings, churchings, and burials. And such 
 recommendations, when made, are to be carried into effect 
 by order in council. They may also, by consent of the 
 bishop, unite parts of contiguous parishes and extra-paro- 
 chial places into consolidated chapelries (n) ; or assign a 
 particular district to any church or chapel already existing ; 
 and by consent of the ordinary, patron, incumbent, and lay 
 impropriator (if any), may convert vicarages into rectories. 
 
 (i) 58 Geo. 3, c. 45; 59 Geo. 3, these acts it is to continue till the 
 
 c. 134; 3 Geo. 4, c. 72; 5 Geo. 4, 20th July, 1853, and thence to the end 
 
 c. 103 ; 7 & 8 Geo. 4, c. 72 ; 1 & 2 of the next session of parliament. 
 
 Will. 4, c. 38 ; 2 & 3 Will. 4, c. 61 ; (/) 58 Geo. 3, c. 45, ss. 9, 13, 14, 
 
 7 Will. 4 & 1 Vict. c. 75 ; 1 & 2 &c. 
 
 Vict. c. 106, ss. 25,80; c. 107; 2&3 (m) 58 Geo. 3, c. 45, ss. 16, 20, 
 
 Vict. c. 49; 3&4Vict. c. 60; 7&8 24; 1 & 2 Will. 4, c. 38 ; 1 & 2 
 
 Vict. c. 56 ; 8 & 9 Vict. c. 70 ; 9 & Vict. c. 107, s. 12 ; 8 & 9 Vict. c. 70. 
 
 10 Vict. cc. 68, 88 ; 11 & 12 Vict. s. 15; 11 & 12 Vict. c. 37, s. 2. 
 
 cc. 37, 71 ; 14 & 15 Vict. c. 97. (") 59 Geo. 3, c. 134, s. 6 ; 2 & 3 
 
 (k) 58 Geo. 3, c. 45 ; 7 & 8 Geo. Will. 4, c. 61 ; 8 & 9 Vict. c. 70, s. 9 ; 
 
 4, c. 72 ; 7 Will. 4 & 1 Vict. c. 75 ; 12 & 13 Vict. c. 37, s. 3; 14 & 15 
 
 11 & 12 Vict. c. 71. By the last of Vict. c. 97, s. 19—21.
 
 106 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 In connection with all these purposes, the acts contain a 
 great variety of provisions too numerous and complex for 
 particular notice in this place, and of which we can only- 
 say, in general, that they relate to the extent and manner 
 in which parishes can be compelled to contribute to the 
 new accommodation so provided ; the patronage of the new 
 churches and chapels (m) ; the pews (n), free sittings, and 
 repairs thereof; the constitution and boundaries of the new 
 districts ; the establishment of ministers, churchwardens, 
 and special vestries therein ; and many other particulars. 
 
 The acts also give power to the churchwardens of any 
 parish, with consent of the vestry, and also of the ordinary, 
 patron, incumbent and lay impropriator (if any), to take 
 down the existing church and rebuild it on the same or 
 another site — and to make rates on the parish to defray the 
 expenses incurred — but only on condition that no dissent be 
 expressed by as much as one-third in value of the landed 
 proprietors, qualified as in the acts mentioned (o). 
 
 There are also provisions empowering the bishop of any 
 diocese to grant his consent for the building or purchasing 
 of a church or chapel for any parish or extra-parochial 
 place in his diocese, upon the application of twelve substan- 
 tial householders there, certifying that they are desirous of 
 raising by subscription the sum required, and that there is 
 not at present accommodation for more than one-fourth of 
 the inhabitants (p) ; or upon the application of any person 
 or persons belonging to the Church of England, who may 
 be willing to subscribe half the money required, jointly 
 with the parishioners of the place who may be willing to 
 raise the remainder by rates (q). It is besides enacted, that 
 in any parish or extra-parochial place, so circumstanced 
 with respect to church accommodation as in the acts par- 
 ticularly described, any person or persons belonging to the 
 Church of England may, by permission of the bishop of 
 
 (to) See 8 & 9 Vict. c. 70. s. 23 ; & 15 Vict. c. 9, s. 26. 
 11 & 12 Vict. c. 37. s. 4; 14 & 15 (n) See 14 & 15 Vict. c. 97, s. 1. 
 
 Vict. c. 97, ss. 8 — 15. As to the (o) 59 Geo. 3, c. 134, s. 40. 
 
 right of nomination to new churches, (}>) 5 Geo. 4, c. 103, s. 5. 
 
 built in extra parochial places, see 14 (q) 5 Geo. 4, c. 103. s. 9.
 
 CHAP. IV.— OF EXTENSIONS OF THE ESTABLISHMENT. 107 
 
 the diocese, and upon making such endowment as therein 
 also mentioned, and setting apart a certain proportion of 
 the sittings as free, be at liberty to build or purchase a 
 church or chapel for such parish or place, and obtain for 
 himself, his heirs, or assigns, the right of nominating a 
 minister to the same (r). And in all cases whatever the 
 like permission to build or purchase, and the like right of 
 patronage, may be obtained by any person or persons, 
 upon procuring the sanction of the church commissioners, 
 and their approbation of the endowment proposed as well 
 as the consent of the bishop (s). But previously to any 
 application for leave to build, purchase, or endow a church, 
 whether made to the commissioners and bishop, or to the 
 bishop alone, (as the case may be,) notice of the intention 
 to do so must be served by the proposed founder upon the 
 patron and incumbent ; and the patron, if he thinks fit to 
 enter upon the same undertaking, and to fulfil the same 
 conditions, shall be entitled to a preference (t). A prefer- 
 ence also is given in certain cases to persons who propose 
 to enlarge an existing church, over those who propose to 
 build a new one (u). The acts moreover contain a pro- 
 vision with respect to chapels of ease in parishes of large 
 extent, situate at a considerable distance from the parish 
 church, and having chapelries or districts annexed thereto, 
 that any person may by permission of the bishop, and by 
 consent of the patron and incumbent, endow the same 
 with a competent provision for the minister, and any such 
 chapel shall thenceforth be separated from the parish church, 
 and become a distinct parish for spiritual purposes; and 
 regulation is made by the acts as to the future right of 
 nominating a minister to the same (x). The church com- 
 missioners may also, with consent of the bishop and patron, 
 
 (r) 1 & 2 Will. 4, c. 38, s. 2 ; 1 & Vict. c. 49, s. 12 ; 3 & 4 Vict. c. 60, 
 
 2 Vict. c. 107, ss. 1—6, 11 ; 2 & 3 ss. 2, 9. 
 
 Vict. c. 49, s. 12 ; 3 & 4 Vict. c. (JO, (() 1 & 2 Will. 4, c. 38, s. 7. 
 
 ss. 2, 12, 15, 16, &c. ; 14 & 15 Vict. («) Ibid. s. 8. 
 
 c. 97, s. 7. (x) Ibid. s. 23 ; 1 & 2 Vict. c. 107, 
 
 (s) 1 & 2 Will. 4, c. 38, s. 5 ; 1 & s. 7. As to district churches, see 
 
 2 Vict. c. 107, ss. 4, 5, 11 ; 2 & 3 King v. Alston, 12 Q. B. 471.
 
 108 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 and the vestry of any parish, order that any church or 
 chapel therein shall become the parish church in lieu of the 
 former parish church ; and such former parish church shall 
 from thenceforth be deemed to be a district church, or a 
 chapel with or without a district, as the commissioners 
 shall direct. But no such alteration can take place in the 
 time of an existing incumbent, without also procuring his 
 consent as well as that of the other authorities (y). 
 
 During this course of legislation upon the subject of 
 church-building, the zeal of the nation was also gradually 
 awakened for the improvement of our ecclesiastical esta- 
 blishment in other particulars — and in the year 1835 gave 
 birth to a measure of high importance. This was the 
 issuing of certain royal commissions, directed to consider 
 the state of the several dioceses of England and Wales, with 
 reference to the amount of their revenues and the more 
 equal distribution of episcopal duties, and also to consider 
 the state of the cathedral and collegiate churches in England 
 and Wales, with a view to the suggestion of such measures 
 as may render them most conducive to the efficiency of the 
 established church — and farther, to devise the best mode of 
 providing for the cure of souls, with special reference to the 
 residence of the clergy in their respective benefices. 
 
 The persons appointed under these commissions having 
 proceeded to the execution of their duties, presented several 
 reports, containing a variety of recommendations for im- 
 provement of our ecclesiastical system; and these were 
 followed by an act of parliament, 6 & 7 Will. IV. c. 77 (z), 
 forming certain prelates and laymen of distinction (whose 
 constitution has been since regulated by other statutes (a) ) 
 
 (y) 1 & 2 Vict. c. 107, s. 16 ; 2 & protect them from lapse, and also to 
 
 3 Vict. c. 49, s. 9 ; 8 & 9 Vict. c. 70, protect their revenues in the interim. 
 
 s. 1. These acts were repealed by 3 & 4 
 
 (s) This act was preceded by 5 & Vict. c. 113, s. 60, except as regards 
 
 6 Will. 4, c. 30, and 6 & 7 Will. 4, the dioceses of St. Asaph and Ban- 
 
 c. 67, the object of which was to gor. And as to these see 5 & 6 Vict, 
 
 suspend the appointment to certain c. 112, and 6 & 7 Vict. c. 77. See also 
 
 dignities, &c. in order to carry out 5 & 6 Vict. c. 26 ; 13 & 14 Vict. c. 94, 
 
 the recommendations of the commis- s. 16, as to ecclesiastical residences, 
 
 sioners with regard thereto, and to (a) 3 & 4 Vict. c. 113, s. 78 ; 4 &
 
 CHAP. IV. — OF EXTENSIONS OF THE ESTABLISHMENT. 109 
 
 into a body corporate, by the style of " The Ecclesiastical 
 Commissioners for England ;" and empowering them to lay 
 before the sovereign in council (c) such schemes as might 
 be best adapted to carry the aforesaid recommendations into 
 effect. And it was enacted, that when any such scheme 
 should be ratified by an order in council, duly registered in 
 the registry of the diocese, and gazetted, it should have the 
 same effect as if it had formed part of that act. 
 
 In pursuance of this provision certain schemes were ac- 
 cordingly prepared, and embodied in orders in council (d), 
 which have accordingly acquired the force of parliamentary 
 law ; and by which, among other matters of less impor- 
 tance, many alterations are made in the arrangement of 
 dioceses, including the erection of the new sees of Ripon 
 and Manchester — and in order to augment the income of 
 the smaller bishoprics, contribution is required to be made 
 from time to time from the revenues of the larger, without 
 prejudice, however, to the rights of any then existing pre- 
 lates. 
 
 Independently of these measures of improvement, some 
 important enactments, for rendering our church establish- 
 ment more efficient, were inserted in the statute 1 & 2 Vict, 
 c. 106 (amended by 13 & 14 Vict. c. 98), to which we have 
 before had occasion to refer for other purposes (e). By that 
 act (after repealing certain statutes (f) made in reference 
 
 5 Vict. c. 39 ; 5 & 6 Vict. c. 79 ; 6 fore the secretary of state, to be by 
 
 6 7 Vict. c. 72; 13 & 14 Vict. c. 94. him submitted to parliament, of all 
 By this last act the body is to com- their proceedings for the current 
 prise two lay members and a mem- year. The acts which have passed, 
 ber of the church, who are to be founded on the reports of the corn- 
 called " Church Estate Commis- missioners, are enumerated in a note 
 sioners," and to form, together with sup. vol. i. p. 112, n. (p). 
 
 two other members, an " Estate (d) These orders in council were, 
 Committ e," and to this committee up to 24th August, 1838, twenty- 
 all matters relating to the sale, pur- three in number. Rogers' Ec. L. 
 chase, management, &c, of lands, 368. 
 &c, are to be entrusted. (p) Vide sup. p. 32. 
 
 (c) By 13 & 14 Vict. c. 94, s. 26, (/) 37 Hen. 8, c. 21; and 17 
 
 the ecclesiastical commissioners are Car. 2, c. 3. 
 required to lay an annual report be-
 
 1 10 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 to the same subject) it is provided, that, on the represen- 
 tation of the bishop of any diocese (or the bishops of two 
 dioceses, as the case may be), that (g) two or more bene- 
 fices circumstanced as therein described, may, with advan- 
 tage to the interests of religion, be united into one, the 
 archbishop shall inquire into the circumstances, and, if he 
 approve the union, shall (with consent of the patron (h) or 
 patrons), and provided no cause, after public notice, be 
 shown to the contrary, certify such inquiry and consent to 
 her majesty in council ; and thereupon her majesty in coun- 
 cil may make an order for uniting such benefices, for eccle- 
 siastical purposes, into one, and may regulate the course 
 and succession in which the patrons (if more than one) 
 shall present (i). On the other hand, where from the in- 
 crease of population, or other circumstances, a representa- 
 tion is made by a bishop or two bishops (as the case may 
 be), that two or more benefices which have been united 
 into one may, with advantage to the interests of religion, 
 be separated, her majesty in council is by the same act (k) 
 empowered, after the same course of proceedings as above 
 described shall have been observed on the part of the arch- 
 bishop, (and even without consent of the patron or patrons, 
 unless the union had lasted for more than sixty years prior 
 to the act,) to issue an order for separating one or more of 
 such benefices from the union, and for declaring the rights 
 of patronage of the several patrons (if more than one) whose 
 interests are affected. The same act farther provides (7), 
 that whereas in some instances tithings, hamlets, chapelries, 
 and other places and districts may be separated from the 
 
 (g) Sect. 16. By the 1 & 2 Vict. allowing exchanges of advowsons by 
 
 c. 106, it was necessary that the two consent of the ecclesiastical com- 
 
 benefices should not exceed the ag- missioners, with a view to the union 
 
 gregate value of 500/., but by the of benefices. 
 
 13 & 14 Vict. c. 98, this restriction is (k) 1 & 2 Vict. c. 106, s. 21. 
 
 removed. (0 Sect. 26. Et vide 2 & 3 Vict. 
 
 (h) See as to this, Daniel v. Mor- c. 49, ss. 6, 7, 8 ; 8 & 9 Vict. c. 70, 
 
 ton, 20 L. J. (Q. B.) 98. s. 6. 
 
 (i) See also 4 & 5 Vict. c. 39, s. 23,
 
 CHAP. IV. — OF EXTENSIONS OF THE ESTABLISHMENT. Ill 
 
 parishes and mother churches to which they belong, with 
 great advantage, and places altogether extra parochial may 
 with advantage be annexed to parishes or districts to which 
 they are contiguous, or be constituted separate parishes for 
 ecclesiastical purposes; such several changes may in like 
 manner respectively be made by order in council on the 
 previous representation of the bishop of the diocese, if 
 approved by the archbishop, and if the latter certify his 
 approbation to her majesty in council. This enactment, 
 however, is subject to a proviso, that, where the existing 
 incumbent of the benefice to be affected by such change 
 shall refuse his consent, the order in council shall not come 
 into operation until the next avoidance of such benefice. 
 
 This act was followed by the 2 k 3 Vict. c. 30, which 
 recites, that there are several benefices in every of which 
 more than one spiritual person is admitted to the cure of 
 souls, and makes provision in such cases for an apportion- 
 ment, by the bishop of the diocese, of the spiritual duties, 
 if no satisfactory cause is shown why such apportionment 
 should not be made. And also by the 2 & 3 Vict. c. 49, 
 which provides (among other things) that any church or 
 chapel augmented or to be augmented by the governors of 
 Queen Anne's bounty (m), and to which any district cha- 
 pelry has been or may be assigned under the provisions of 
 the Church Building Acts, shall, after such augmentation 
 and assignment, be a perpetual curacy and benefice, and 
 the minister thereof a perpetual curate, with the exclusive 
 cure of souls therein (n). And farther, that when by any 
 order of her majesty in council a separate parish for eccle- 
 siastical purposes is constituted, the same shall, on registra- 
 tion thereof and with consent in writing of the incumbent, 
 become in like manner a perpetual curacy and benefice, 
 with exclusive cure of souls, independent of the incumbent ; 
 
 (m) As to this bounty, vide sup. vernors of that bounty, shall be per- 
 
 vol. ii. p. 520. And see 1 Geo. 1, c. manently cures and benefices, &c. 
 
 10, which provides that all churches (u) Sect. 2. 
 or chapels augmented by the go-
 
 1 12 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 and that if the consent of the incumbent is refused, shall 
 become so on the next avoidance of the benefice (n). And 
 moreover, that where any church or chapel has been built or 
 purchased, and endowed, and the patronage thereof granted 
 under the Church Building Acts, and where a particular 
 district has been assigned thereto, the minister or perpetual 
 curate thereof shall have exclusive cure of souls, and be 
 independent of the incumbent of the parish church (o). 
 
 Some additional recommendations of the commissioners 
 appointed in 1835(p) were afterwards carried into effect by 
 the statute 3 & 4 Vict. c. 113, and 4 & 5 Vict. c. 39 (q). 
 These principally relate to cathedral and collegiate churches, 
 and, among a great variety of other arrangements relative 
 to these subjects, provide for the suspension of a large num- 
 ber of canonries (subject, in certain events, to a power of 
 revival, upon condition of their being newly endowed (r) ), 
 and for the suppression of all sinecure rectories (s), except 
 those in the patronage of private persons (t), and of certain 
 deaneries (?/,), and for the vesting of the estates and profits 
 of all such preferments, together with the endowments of 
 non-residentiary prebends, and some other dignities and 
 offices, in the Ecclesiastical Commissioners (a;); and for the 
 consolidation of all the property so vested, with the accruing 
 interest, into a common fund, to be applied (in general, and 
 under such authority as in the acts provided) to make ad- 
 ditional provision for the cure of souls, in parishes where 
 such assistance shall be most required (y). 
 
 The latest, however, and the most decisive advance that 
 has been made towards the great object of putting the 
 church into a state of full efficiency, is to be found in the 
 
 (n) Sect. 8. (t) As to these also provision is 
 
 (0) Sect. 10. made for suppressing them, with the 
 
 (p) Vide sup. p. 108. concurrence of the patrons, sect. 48. 
 
 (</) See also 6 & 7 Vict. c. 77, in- ( u ) 3 & 4 Vict. c. 113, ss. 21, 51 ; 
 
 tituled " An Act for regulating the 4 & 5 Vict. c. 39, s. 6. 
 
 Cathedral Churches of Wales." (x) 3 & 4 Vict. c. 113, ss. 49, 51 ; 
 
 (r) 3 & 4 Vict. c. 113, s. 20. 4 & 5 Vict. c. 39, ss. 6, 7. 
 
 (») Ibid. ss. 48, 54; 4 & 5 Vict. (y) 3 & 4 Vict. c. 113, s. 67. 
 
 c. 39, s. 17 ; and vide sup. p. 25.
 
 CHAP. IV. OF EXTENSIONS OF THE ESTABLISHMENT. 1 13 
 
 enactments of the 6 & 7 Vict. c. 37 (s). This statute (which 
 applies to England and Wales, the Isle of Man, Guernsey, 
 Jersey, Alderney, Sark, and the Scilly Islands (t),) after 
 reciting that it is expedient to make better provision for 
 the spiritual cure of populous parishes, and to render the 
 estates and revenues vested in the Ecclesiastical Com- 
 missioners for England, and the funds at the disposal of 
 the governors of Queen Anne's bounty, applicable imme- 
 diately to such purpose, enables the former to borrow from 
 the latter, the capital sum of 600,000/. three per cent, re- 
 duced bank annuities; which capital may be afterwards 
 increased by similar loans, if required. And all monies 
 accruing to the said commissioners, by reason of the sus- 
 pension of canonries under the Cathedral Acts of 3 & 4 
 Vict, and 4 & 5 Vict, above referred to, together with all 
 the lands and hereditaments thereby vested in them, are 
 charged by way of security for the repayment of such 
 loans \u). The statute in question then proceeds farther to 
 recite, that there are divers parishes, chapelries, and dis- 
 tricts of great extent, and containing a large population, 
 wherein the provision for worship and pastoral superin- 
 tendence is insufficient; and enacts, that if at any time it 
 shall be made to appear to the Ecclesiastical Commission- 
 ers, that it would promote the interests of religion that any 
 part of such parishes, chapelries, or districts, or any extra- 
 parochial places, should be constituted a separate district 
 for ecclesiastical purposes, (the same not containing any 
 consecrated church or chapel in use for divine worship,) it 
 shall be lawful by the authority in the Cathedral Acts pro- 
 vided, (that is to say, a scheme prepared by the Ecclesi- 
 astical Commissioners, and an order issued by her majesty 
 in council ratifying such scheme,) and with consent of the 
 bishop of the diocese under his hand and seal, to set out 
 such district accordingly by metes and bounds, and to fix 
 
 (s) Amended by 7 & 8 Vict. c. 94, (() Sect. 26. 
 
 and 13 & 14 Vict. c. 94, s. 27. (u) Sect. 4. 
 
 VOL. III. I
 
 114 BK. IV. OF PUBLIC RIGHTS. — PT. II. OF THE CHURCH. 
 
 and declare its name (y). The scheme, however, is to be 
 first laid before the incumbent and patron, so as to give 
 them an opportunity of making such remarks or objections 
 as may • occur (z). 
 
 Upon the district being thus constituted, a minister is 
 to be nominated thereto, with an income of not less than 
 100/. per annum (a); and the right of nomination of such 
 minister may be granted to any ecclesiastical corporation, 
 or any of the universities of Cambridge, Oxford, or Dur- 
 ham, or any of their colleges, or to any private person, or 
 their nominees, upon condition of their contributing to the 
 permanent endowment of such minister, or towards pro- 
 viding a church or chapel for the district, in such proportion 
 and manner as shall be approved by the like authority (b) ; 
 but until the patronage shall be so granted, it shall belong 
 to her majesty and the bishop of the diocese alternately (c). 
 The funds placed by this act, and the Cathedral Acts, in 
 the hands of the Ecclesiastical Commissioners, are also to 
 be made available for the purpose of endowing or aug- 
 menting the income of the ministers of the new districts to 
 such an amount, and in such proportion and manner, as 
 the same authority may deem expedient (d). And the com- 
 missioners for building new churches are also authorized to 
 apply their funds to the erection of any new church or 
 chapel under this act (e) ; and in order farther to facilitate 
 its objects, the Ecclesiastical Commissioners and the new 
 ministers to be appointed under the same, may, notwith- 
 standing the Statutes of Mortmain, take any grants of real 
 or personal property without licence from the crown (/"). 
 
 At any time after the constitution of such district, and 
 while it is still unprovided with a church, the bishop is also 
 empowered to license any building within the same for per- 
 
 (y) 6 & 7 Vict c. 37, s. 9. (d ) Sects. 7, 19. 
 
 (=) Ibid. (e) Sect. 24. 
 
 («) Ibid. (/) Sects. 22, 12. These provi- 
 
 (b) Sect. 20. sions have been farther extended by 
 
 (c) Sect. 21. 14 & 15 Vict. c. 97, s. 21.
 
 CHAP. IV. OF EXTENSIONS OF THE ESTABLISHMENT. 115 
 
 formance of divine service (g) ; and may, either after such 
 building is procured or before, license the minister to per- 
 form any pastoral duties (with the exception only of burials 
 and marriages) in such district ; and the minister so licensed 
 shall be considered as having, to that extent, the cure of 
 souls within the district, and that independently of the 
 incumbent of the parish church (A); and shall be a body 
 corporate, with perpetual succession, by the style of the 
 minister of such district. But after a church or chapel 
 shall have been built or purchased for the district, ap- 
 proved by the commissioners by an instrument under their 
 common seal, and duly consecrated, the district shall im- 
 mediately upon such consecration become a new parish for 
 ecclesiastical purposes, and shall be known by the name of 
 
 the new parish of , instead of the district of ; 
 
 and it shall become lawful to solemnize marriages, baptisms, 
 churchings, and burials therein (i); and the minister, having 
 been first duly licensed by the bishop to such new parish, 
 shall thereupon ipso facto become perpetual curate thereof, 
 and shall be endowed with an income of not less than 
 1501. per annum (k) ; and the new parish and church shall 
 be deemed to be a perpetual curacy and a benefice with 
 cure of souls to all intents and purposes ; and two fit per- 
 sons, being members of the Church of England, shall be 
 annually chosen, by the perpetual curate and inhabitants of 
 the new parish, as churchwardens ; and be charged with 
 all the ordinary duties of churchwardens in ecclesiastical 
 matters, but not with any duties as overseers of the poor(Z). 
 It is farther provided, that until parliament shall other- 
 wise determine, nothing in the act contained shall affect 
 any right or liability, ecclesiastical or civil, of any parish, 
 chapel ry, or district, except as therein expressly pro- 
 
 (g) Sect. 13. certain district churches, see 7 & 8 
 
 (h) Sect. 11. Vict. c.56. 
 (i) Sect. 15; 9 & 10 Vict. c. 68, (fc) Sect. 9. 
 
 s. 1. As to banns and marriages in (/ ) Sect. 17. 
 
 i.2
 
 1 16 BK. IV. OF PUBLIC RIGHTS. PT. II. OF THE CHURCH. 
 
 vided (m) ; and by way of compensation to the incumbents 
 of mother churches, whose fees or emoluments shall have 
 been diminished by the constitution of new districts or 
 parishes, an annual sum may, by the proper authority, be 
 allowed out of the fund in the hands of the ecclesiastical 
 commissioners (n). There is also an enactment that so 
 much of a repealed act (17 Car. II. c. 3) shall be revived, 
 as enables any impropriator or owner of tithes, to annex 
 the same or any part thereof unto the parsonage, vicarage, 
 or curacy of the parish church or chapel where the same 
 lie or arise, or to settle the same in trust for the benefit of 
 such parsonage, vicarage, or curacy ; and authorizes par- 
 sons, vicars, or incumbents, whose emoluments are under 
 100Z. per annum (clear of charges), to receive lands, tithes, 
 or other hereditaments, without licence of mortmain (o). 
 
 (m) Sect. 18. (») Sect. 19. (o) Sect. 25.
 
 ( U7 ) 
 
 PART III. 
 
 OF THE SOCIAL ECONOMY OF THE 
 REALM. 
 
 In our examination of public rights we have now taken a 
 distributive view of those which concern the relation be- 
 tween persons in authority, and persons subject to autho- 
 rity ; and have thus been led to treat successively of the 
 Civil Government and of the Church. But there are many 
 other institutions which belong, equally with these, to the 
 division of public rights, as relating immediately to the 
 community at large, or to large classes of it, and not 
 merely to the individual ; and which yet, as having no 
 connection with the subject of government, whether civil or 
 ecclesiastical, have hitherto found no proper place in our 
 disquisitions. In conformity with the division laid down 
 at the outset of the Book (a), these may be designated with- 
 out impropriety, it is conceived, (though perhaps without 
 sufficient authority,) as the laws of Social Economy — and 
 the followino- Part will be devoted to the examination of 
 them under their principal heads. 
 
 (a) Vide sup. vol. ii. p. 310.
 
 118 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 CHAPTER I. 
 
 OF THE LAWS RELATING TO CORPORATIONS («). 
 
 The principle of those social institutions, called bodies cor- 
 porate {corpora corporata) or corporations, has already been 
 in some measure explained ; and we have seen that they are 
 artificial persons endowed with the legal capacity of perpe- 
 tual succession (b). 
 
 Of these [there is a great variety, subsisting for the ad- 
 vancement of religion, of learning, or of commerce ; in 
 order to preserve entire and for ever those rights and im- 
 munities, which, if they were granted only to those indivi- 
 duals of which the body corporate is composed, would 
 upon their death be utterly lost and extinct. To show the 
 advantages of these incorporations let us consider the case 
 of a college in any of our universities, founded ad studen- 
 dum et orandum, for the encouragement and support of re- 
 ligion and learning. If this were a mere voluntary assem- 
 bly, the individuals which compose it might indeed pray, 
 
 (a) In law treatises it has been 
 usual to treat of corporations at an 
 earlier stage ; and there is some con- 
 venience in this course, because there 
 are branches of the law which can- 
 not be discussed without supposing 
 an acquaintance, to a certain extent, 
 with the law of corporations. Black- 
 stone has accordingly inserted them 
 in his first volume prior to any con- 
 sideration of the laws of property ; a 
 position, it is conceived, which is 
 liable to much objection. But the 
 arrangement adopted for the present 
 
 work necessarily assigns the subject 
 to the place it occupies in the text ; 
 these institutions being incident to 
 the division of public rights, but 
 having no immediate connection with 
 church, or state. And no inconve- 
 nience appears likely to attend our 
 method in this respect, as the nature 
 of corporations has already been ex- 
 plained in anticipation, so far as ap- 
 peared necessary for the information 
 of the student at the time. Vide 
 sup. vol. i. pp. 342, 436, 453. 
 (/*) Vide sup. vol. i. p. 342.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 119 
 
 [study, and perform scholastic exercises together so long as 
 they could agree to do so ; but they could neither frame 
 nor receive any laws or rules of their conduct — none at 
 least which would have any binding force, for want of 
 a coercive power to create a sufficient legal obligation. 
 Neither could they be capable of retaining any privileges 
 or immunities, for if such privileges be attacked, which of 
 all this unconnected assembly has the right or ability to 
 defend them ? And when they are dispersed by death or 
 otherwise, how shall they transfer these advantages to an- 
 other set of students equally unconnected as themselves ? 
 
 So also with regard to holding estates or other property, 
 if land be granted for the purposes of religion or learning 
 to twenty individuals not incorporated, there is no legal way 
 of continuing the property to any other persons for the 
 same purposes, but by endless conveyances from one to the 
 other as often as the hands are changed. 
 
 But when they are consolidated and united into a cor- 
 poration, they and their successors are then considered as 
 one person in law ; as one person they have one will, which 
 is collected from the sense of the majority of the indivi- 
 duals : this one will may establish rules and orders for the 
 regulation of the whole (which are a sort of municipal laws 
 of this little republic), or rules and statutes may be pre- 
 scribed to it at its creation, which are then in the place of 
 natural laws.] Again, [the privileges and immunities, the 
 estates and possessions of the corporation, when once vested 
 in them, will be for ever vested, without any new convey- 
 ance to new successors. For all the individual members 
 that have existed from the foundation to the present time, 
 or that shall ever after exist, are but one person in law, a 
 person that never dies : in like manner as the river Thames 
 is still the same river, though the parts which compose it 
 are changing every instant. 
 
 The honour of originally inventing these politicial consti- 
 tutions entirely belongs to the Romans. They were intro- 
 duced, as Plutarch says, by Numa ; who finding upon his
 
 120 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [accession the city torn to pieces by the two rival factions 
 of Sabines and Romans, thought it a prudent and politic 
 measure to subdivide these two into many smaller ones, by 
 instituting separate societies of every manual trade and 
 profession. They were afterwards much considered by the 
 civil law (c), in which they were called wiiversitates, as 
 forming one whole out of many individuals ; or collegia, 
 from being gathered together. They were adopted also by 
 the canon law, for the maintenance of ecclesiastical disci- 
 pline ; and from them our spiritual corporations are derived. 
 But our laws have considerably refined and improved upon 
 the invention, according to the usual genius of the English 
 nation — particularly with regard to sole corporations, con- 
 sisting of one person only— of which the Roman lawyers 
 had no notion, their maxim being that tres faciunt col- 
 legium (d); though they held that if a corporation originally 
 consisting of three persons be reduced to one, si universitas 
 ad unum redit, it may still subsist as a corporation, et stet 
 nomen universitatis (e). 
 
 Before we proceed to treat of the sub-incidents of cor- 
 porations as regarded by the law of England, let us first 
 take a view of the several sorts of them — and then we shall 
 be better enabled to apprehend their respective qualities. 
 The first division of corporations is into aggregate and sole. 
 Corporations aggregate consist of many persons united 
 together into one society, and are kept up by a perpetual 
 succession of members so as to continue for ever — of which 
 kind are the mayor and commonalty of a city, the head and 
 fellows of a college, the dean and chapter of a cathedral 
 church. Corporations sole consist of one person only and 
 his successors in some particular station, who are incor- 
 porated by law in order to give them some legal capacities 
 and advantages, particularly that of perpetuity, which in 
 their natural persons they could not have had. In this 
 sense the sovereign is a sole corporation (f); so is a bishop; 
 
 (r) Ff. 1. 3, t. 4, per tot. (e) Ff. 3, 4, 7. 
 
 (d) Ff. 50, 16, 8, 9. (/) Co. Litt. 43.
 
 CHAP. T. — OF THE LAWS RELATING TO CORPORATIONS. 121 
 
 [so are some deans distinct from their several chapters ; and 
 so is every parson and vicar. And the necessity, or at least 
 use, of this institution will be very apparent, if we consider 
 the case of a parson of a church. At the original endow- 
 ment of parish churches the freehold of the church, the 
 church-yard, the parsonage-house, the glebe, and the tithes 
 of the parish, were vested in the parson by the bounty of 
 the donor, as a temporal recompence to him for his spiritual 
 care of the inhabitants, and with intent that the same emo- 
 lument should ever afterwards continue as a recompence 
 for the same care. But how was this to be effected? the 
 freehold was vested in the parson ; and if we suppose it 
 vested in his natural capacity, on his death it might descend 
 to his heirs, and would be liable to his debts and incum- 
 brances ; or at least the heir might be compellable, at some 
 trouble and expense, to convey these rights to the succeed- 
 ing incumbent. The law, therefore, has wisely ordained 
 that the parson, quatenus parson, shall never die any more 
 than the sovereign — by making him and his successors a 
 corporation. By which means all the rights of the parson- 
 age are preserved entire to the successor ; for the present 
 incumbent and his predecessor who lived eight centuries 
 ago, are in law one and the same person ; and what was 
 given to the one was given to the other also. 
 
 Another division of incorporations, either sole or aggre- 
 gate, is into ecclesiastical and lay. Ecclesiastical corpora- 
 tions are where the members are entirely spiritual persons,] 
 and incorporated as such, — [such as bishops ; certain deans ; 
 parsons and vicars, which are sole corporations ; deans and 
 chapters ; and formerly prior and convent, abbot and monks, 
 and the like bodies aggregate. These are erected for the 
 furtherance of religion and perpetuating the rights of the 
 church. 
 
 Lay corporations are of two sorts, civil and eleemosynary. 
 The civil are such as are erected for a variety of temporal 
 purposes. The sovereign, for instance, is made a corpora- 
 tion to prevent in general the possibility of an interregnum,
 
 122 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [or vacancy of the throne, and to preserve the possessions 
 of the crown entire. For immediately upon the demise of 
 a sovereign, his heir is, as we have formerly seen(^r), in full 
 possession of the regal rights and dignity. Other lay cor- 
 porations are erected for the good government of a town 
 or particular district, as a mayor and commonalty, bailiff 
 and burgesses, and the like ;] and these are now commonly- 
 denominated municipal corporations, of which we shall 
 have occasion to speak more at large before the conclusion 
 of this chapter ; others [for the advancement and regulation 
 of manufactures and commerce, as the trading companies 
 of London and other towns (h), and others for the better 
 carrying on of divers special purposes, — as] the Colleges 
 of Physicians and Surgeons, [for the improvement of the 
 medical science — the Royal Society, for the advancement 
 of natural knowledge, and the Society of Antiquaries, for 
 promoting the study of antiquities. And among these the 
 general corporate bodies of Cambridge and Oxford must 
 be ranked (i) ; for it is clear they are not spiritual or eccle- 
 siastical corporations, being composed of more laymen than 
 
 ( g) Vide sup. vol. ii. p. 468. 
 
 (h) By 7 Geo. 3, c. 48 (reciting 
 that by divers acts of parliament and 
 royal charters founded thereupon, 
 certain public companies or corpora- 
 tions have been instituted for the 
 purpose of carrying on particular 
 trades or dealings with joint stocks, 
 and the management of their affairs 
 is vested in general courts composed 
 of the members at large, in which 
 courts every member of the company 
 possessed of the necessary amount 
 of stock is qualified to vote), it is 
 enacted that no member shall be 
 qualified to vote in respect of any 
 stock until he shall have been pos- 
 sessed thereof six calendar months, 
 unless the same was acquired by 
 bequest, marriage, succession, &c. 
 
 Also that no declaration of a divi- 
 dend shall be made by any general 
 court other than a half-yearly or 
 quarterly one, at the distance of five 
 calendar months at least from the 
 last declaration of a dividend ; and 
 that no declaration of more than one 
 half-yearly dividend shall be made 
 by one general court ; and that no 
 question for increasing the rate of 
 dividend shall be decided otherwise 
 than by ballot, to be taken at the 
 distance of three entire days at the 
 least from the adjournment of the 
 general court in which such ques- 
 tion shall have been proposed. 
 
 (/) Rex v. Cambridge Vice Chan- 
 cellor, 3 Burr. 1656. Secus as to the 
 colleges in these universities. Vide 
 post, p. 123.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 123 
 
 [clergy ; neither are they eleemosynary foundations, though 
 stipends are annexed to particular magistrates and profes- 
 sors, any more than other corporations where the acting- 
 officers have standing salaries ; for these are rewards pro 
 opere et labore, not charitable donations only, since every 
 stipend is preceded by service and duty. 
 
 The eleemosynary sort are such as are constituted for the 
 perpetual distribution of the free alms or bounty of the 
 founder of them, to such persons as he has directed. Of 
 this kind are all hospitals for the maintenance of the poor, 
 sick and impotent, and all colleges both in our universities 
 and out of them (k), which colleges are founded for two 
 purposes; 1. for the promotion of piety and learning by 
 proper regulations and ordinances. 2. For imparting as- 
 sistance to the members of those bodies, in order to enable 
 them to prosecute their devotion and studies with greater 
 ease and assiduity. And all these eleemosynary corpora- 
 tions,] though in some things (Z) partaking of the nature 
 of ecclesiastical bodies, [are strictly speaking lay and not 
 ecclesiastical, even though composed of ecclesiastical per- 
 sons (w).] And accordingly they are not subject to the 
 jurisdiction of the Ecclesiastical Courts, or to the visitations 
 of the ordinary or diocesan in their spiritual characters (n). 
 
 [Having thus marshalled the several species of corpora- 
 tions, let us next proceed to consider— I. How corporations 
 in general may be created. II. What are their powers, 
 capacities and incapacities. III. How corporations are 
 visited. And IV. How they may be dissolved. 
 
 I. Corporations, by the civil law, seem to have been 
 created by the mere act and voluntary association of their 
 members; provided such convention was not contrary to 
 law, for then it was illicitum collegium (o). It does not 
 
 (/c) Such as at Eton, Winchester, (n) Christian's Blackstone, vol. i. 
 
 Manchester, &c. p. 472 (note). 
 
 (/) 1 Bl. Com. p. 470. (o) Ff. 47, 22, 1. 
 (m) Philips n. Bury, 1 Ld. Raym. 6.
 
 124 BK. IV. OF PUBLTC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 [appear that the prince's consent was necessary to be ac- 
 tually given to the foundation of them, but merely that the 
 original founders of these voluntary societies, for they were 
 little more than such, should not establish any meetings in 
 opposition to the laws of the state. 
 
 But with us in England, the sovereign's consent is ab- 
 solutely necessary to the erection of any corporation — 
 either impliedly or expressly given. 
 
 The crown's implied consent is to be found in corpora- 
 tions which exist by force of the common law, to which our 
 former kings are supposed to have given their concurrence.] 
 Of this sort are [the king himself, all bishops, parsons, 
 vicars, and some others (p), who by common law have 
 been held, as far as our books can show us, to have been 
 corporations virtute officii ; and this incorporation is so in- 
 separably annexed to their offices that we cannot frame a 
 complete legal idea of any of these persons, but we must 
 also have an idea of a corporation capable to transmit his 
 rights to his successors at the same time. Another method 
 of implication, whereby the crown's consent is presumed, 
 is as to all corporations by prescription, such as the city of 
 London and many others (q), which have existed as corpo- 
 rations time whereof the memory of man runneth not to 
 the contrary (r), and therefore are looked upon in law to be 
 well created. For though the members thereof can show 
 no legal charter of incorporation, yet in cases of such high 
 antiquity the law presumes there once was one, and that 
 by the variety of accidents which a length of time may 
 produce, the charter is lost or destroyed. 
 
 The methods by which the crown's consent is expressly 
 given, are either by act of parliament or charter. By act 
 of parliament (of which the royal assent is an indispensable 
 ingredient) corporations may undoubtedly be created ;] as 
 well as by royal charter : but it is observable that the au~ 
 
 (/)) Blackstone enumerates church- kins, 8 Mee. & W. 362. 
 wardens also. But these are only a (q) 2 Inst. 330. 
 
 quan corporation. See Smith v. Ad- (r) Vide sup. vol. i. p. 45.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 125 
 
 thority of parliament as regards their creation has been fre- 
 quently exercised only in aid or corroboration of the royal 
 prerogative ; as when the charter of the College of Physi- 
 cians, of the tenth year of Henry the eighth (t)), was after- 
 wards confirmed by the statute 14 & 15 Hen. VIII. c. 5 ; or 
 when the crown was permitted by statute 5 & 6 W. & M. 
 c. 20, to erect the corporation of the Bank of England with 
 certain powers ; or when by the more recent statute of 5 
 & 6 Will. IV. c. 76, it was enacted, that upon petition of 
 the inhabitant householders of any borough in England or 
 Wales, the king might, by his charter, incorporate such 
 borough according to the provisions of that act (n). 
 
 The creation by the crown of a body corporate [may be 
 performed by the words creamus, erigimus,fundamus, incor- 
 poramus, or the like. Nay, it is held that if the crown 
 grants to a set of men to have cjildam mercatoriam, a mer- 
 cantile meeting or assembly (r), this is also sufficient to 
 incorporate and establish them for ever (y).] 
 
 [The crown, it is said, may grant to a subject the power 
 of erecting corporations (z), though the contrary was for- 
 merly held («) ; that is, it may permit the subject to name 
 the persons and powers of the corporation at his pleasure ; 
 but it is really the sovereign that erects, and the subject is 
 but the instrument ; for though none but the crown can 
 make a corporation, yet qui facit per alium, facit per se. 
 In this manner the Chancellor of the University of Oxford 
 
 (t) 8 Rep. 114. curious information as to the Anglo- 
 (u) Vide Rutter v. Chapman, 8 Saxon gilds or cluhs will be found in 
 Mee. & W. 1. Turner's Hist. Ang. Sax. vol. iii. p. 
 (x) GiWsignifiedamongthe Saxons 98, 6th ed. ; where mention is made, 
 a fraternity, and was derived from the among other instances, of a gild of 
 verb giiban, to pay, because every the clergy at Canterbury, and a gild 
 man paid his share towards the ex- of thegns at Cambridge, 
 penses of the community. Such of (y) 10 Rep. 30; 1 Roll. Ab. 513. 
 these gilds as were commercial, gra- (s) Bro. Ab. tit. Preroo-. 53 ; Vin. 
 dually took the shape of our present Prerog. 88, pi. 76. 
 municipal corporations, whose place (a) Year Book, 2 Hen. 7, 13 ; et 
 of meeting, it may be observed, is vide per Lord Kenyon, R. v. Coo- 
 still called the Guild-hall. Some pers' Company, 7 T. R. 5 IS.
 
 126 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [has power by charter to erect corporations ; and has ac- 
 tually often exerted it in the erection of several matriculated 
 companies of tradesmen subservient to the students.] 
 
 When a corporation is erected, a name is always given 
 to it (b), or supposing none to be actually given, will attach 
 to it by implication ; [and by that name alone it must sue 
 and be sued, and do all legal acts, though a very minute 
 variation therein is not material ;] and the name is capable 
 of being changed (by competent authority (c) ) without 
 affecting the identity or capacity of the corporation in 
 other respects (d). But some name [is the very being of 
 its constitution ; and though it is the will of the sovereign 
 that erects the corporation, yet the name is the knot of its 
 combination, without which it could not perform its corpo- 
 rate functions (e). The name of incorporation, says Sir E. 
 Coke, is as a proper name or name of baptism ; and there- 
 fore when a private founder gives his college or hospital a 
 name, he does it only as a god-father, and by that same 
 name the king baptizes the incorporation (f). 
 
 II. After a corporation is so formed and named it ac- 
 quires many powers, rights, capacities and incapacities; 
 which we are next to consider.] 
 
 Among them are some which attach both to corporations 
 sole and aggregate, viz. 1. They may purchase lands and 
 hold to them and their successors (g), as natural persons 
 may, to hold to them and their heirs (h) ; though their 
 power of holding lands is subject to the provisions of the 
 statutes of mortmain, of which we have spoken in a former 
 place (i). 2. Aggregate corporations, when of the eleemo- 
 synary, or ecclesiastical, or municipal kind, and corporations 
 
 (/<) Blackstone says a name must (d ) 4 Rep. 87. 
 
 be given (1 Bl. Com. p. 475), but it (e) Gilb. Hist. C. P. 182. 
 
 appears by 1 Salk. 191, tbat a name (/) 10 Rep. 28. 
 
 of incorporation may be implied. ( g) As to title by succession, see 
 
 (c) See Queen v. Registrar of 2 Bl. Com. 430. 
 
 Joint-Stock Companies, 10 Q. B. (h) 10 Rep. 30. 
 
 839. (j) Vide sup. vol. i. p. 435.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 127 
 
 sole, are, in general, subject to certain restrictions with 
 regard to the alienation of their lands, a point to which we 
 have also had occasion elsewhere to refer(j). But the other 
 incidents of which we speak belong in general to corpo- 
 rations aggregate only : viz. 3. [They may sue or be sued, 
 implead or be impleaded, grant or receive,] and do all other 
 acts [by the corporate name,] as natural persons may by 
 their individual names. 4. And, as a corollary from this, 
 they are amenable to such judgments as shall be given 
 against them in any suit, in respect of the corporate pro- 
 perty only, and not so as to fix any liability on the mem- 
 bers or corporators individually (k). 5. Their acts are to 
 be under their common seal ; [for a corporation, being an 
 invisible body, cannot manifest its intentions by any per- 
 sonal act or oral discourse. It therefore acts and speaks 
 only by its common seal. For though the particular 
 members may express their private consents to any act, by 
 words, or signing their names, yet this does not bind the in- 
 corporation : it is the fixing of the seal, and that only, which 
 unites the several assents of the individuals who compose the 
 community, and makes one joint assent of the whole (I).] 
 There are some personal acts however as to which con- 
 venience has introduced an exception to this rule. Thus 
 a corporation may (through its head) give command to a 
 bailiff to make a distress, and this needs not to be authen- 
 
 (j) Vide sup. vol. i. p. 453. Q. B. 526 : Paine v. Strand Union, 
 
 (k) The maxim of the civil law is 8 Q. B. 326; Sanders v. St. Neot's 
 
 the same : " Si quid universitati de- Union, ib. 810; Queen v. Council of 
 
 betur, singulis non debet ur ; nee quod Warwick, ib. 926; Cope v. Thames 
 
 debet universitas, nnguti debent." — Haven Dock and Railway Company, 
 
 Ff. p. 3, 4, 7. 3 Exch. 841 ; Governor and Com- 
 
 (/ ) Dav. 44, 48. See the follow- pany of Copper Mines v. Fox and 
 
 ihg cases as to the necessity (in ge- others, 20 L. J. (Q. B.), 174; Diggle 
 
 neral) that the acts of a corporation v. London and Blackwall Railway 
 
 should be under seal. Ludlow v. Company, 5 Exch. 412. See also 
 
 Charlton, 6 Mee. & W. 815 ; Arnold Smith v. Hull Glass Company, 8 
 
 v. Poole, 4 Man. & G. 860 ; Fish- C. B. 668. As to ecclesiastical cor- 
 
 mongers' Company t'. Robertson, 5 porations, vide 5 & 6 Vict. c. 108, 
 
 Man. & G. 130 ; Hall v. Swansea, 5 s. 27.
 
 128 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 ticated under the common seal (m). 6. They may [make 
 bye-laws or private statutes for the better government of 
 the corporation, which are binding on themselves unless 
 contrary to the laws of the land (ri),~\ or contrary to or in- 
 consistent with their charter (o), or manifestly unreason- 
 able (p). [For as natural reason is given to the natural 
 body for the governing it, so bye-laws or statutes are a sort 
 of political reason to govern the body politic. And this 
 right of making bye-laws, for their own government, not 
 contrary to the law of the land, was allowed by the law 
 of the Twelve Tables at Rome.] And in our law it is held 
 to be a right so much of course, as regards every corpora- 
 tion, that if the charter by which certain persons are incor- 
 porated give to a select body, out of their whole number, 
 a power to make bye-laws as to certain specified matters, 
 the body at large is nevertheless at liberty to make them 
 with regard to all matters not specified (q). Every cor- 
 poration, too, has a right, as of course, to alter or repeal 
 the bye-laws which itself has made (r). 7. It is subject 
 to certain disabilities, which may compendiously be stated 
 as follows. A corporation [must always appear by attor- 
 ney, for it cannot appear in person, being, as Sir E. Coke 
 says, invisible, and existing only in intendment and con- 
 sideration of law.] It cannot be executor or administrator, 
 
 (m) Lutw. 1497; 1 Salk. 191. 
 
 (n) As where a bye-law is made 
 limiting the number of apprentices 
 which each member shall take, which 
 is illegal. R. v. Coopers' Company, 
 7 T. R. 543. No trading company 
 can make laws which may affect the 
 royal prerogative, or the common 
 profit of the people, under penalty 
 of 40/., unless approved by the chan- 
 cellor, treasurer, and chief justices or 
 judges in their circuits ; and, even if 
 approved, still, if contrary to law, 
 they are void. 19 Hen. 7, c. 7 ; 11 
 Rep. 54. 
 
 (o) Rex v. Cutbush, 4 Burr. 2204; 
 Hoblyn v. Rose, in error, 2 Bro. P. C. 
 329 ; R v. Cambridge, 2 Selw. N. P. 
 1144. 
 
 (p) Carter v. Sanderson, 5 Bing. 
 79 ; Framework Knitters v. Green, 
 1 Lord Raym. 113 ; R. v. York, 3 
 B. & A. 770 ; Kirk v. Nowill, 1 T. R. 
 118; Piper v. Chappell, 14 Mee. & 
 W. 624. 
 
 (7) R. v. Westwood, 7 Bing. 1 ; 
 S. C. 4 B. & Cress. 781 ; 4 Bligh, 
 N. S. 213. 
 
 (r) R. v. Ashwell, 12 East, 22.
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 129 
 
 [nor perform any personal duties, for it cannot take an oath 
 for the due execution of the office. It cannot be seised of 
 lands to the use of another, for such kind of confidence is 
 foreign to the end of its institution (s).] And in general 
 it can be guilty of no crime in its corporate capacity (t). 
 Yet it is liable, in certain cases, to an indictment, as where 
 it allows a bridge, the repair of which belongs to it by law, 
 to fall into decay. And it is capable of suing or being 
 sued for breach of contract, and for many other kinds of civil 
 injury. But a corporation cannot be excommunicated [for 
 it has no soul, as is gravely observed by Sir E. Coke (u) ; 
 neither is it liable to be summoned into the ecclesiastical 
 courts upon any account, for those courts act only pro 
 salute anhnce (V).] Moreover, [aggregate corporations that 
 have by their constitution a head, as a dean, warden, 
 master, or the like, cannot do any acts during the vacancy 
 of the headship, except only appointing another ; neither 
 are they then capable of receiving a grant, for such cor- 
 poration is incomplete without a head (y). But there may 
 be a corporation aggregate constituted without a head ; as 
 the collegiate church of Southwell in Nottinghamshire (z), 
 which consists only of prebendaries ; and the governors of 
 the Charter-house, London, who have no president or supe- 
 rior, but are all of equal authority. 8. Another incident of 
 corporations aggregate is, that the act of the major part is 
 esteemed the act of the whole (a). By the civil law, the 
 major part must have consisted of two-thirds of the whole, 
 else no act could be performed (b) ; which perhaps may be 
 one reason why they required three at least to make a cor- 
 poration. But with us any majority is sufficient to determine 
 
 («) Bro. Abr. tit. Feoffment al Vict. c. 113, ss. 18, 36,41; 4 & 5 
 
 Uses, 40 ; Bac. on Uses, 347. Vict. c. 39, s. 12. 
 
 (t) 1 Bl. Com. 476. (a) Bro. Abr. Corporation, 31,34. 
 
 (u) 10 Rep. 32. As to the consent of the majority 
 
 (a) 1 Bl. Com. 477. present being sufficient, Cotton v. 
 
 ( y) Co. Lift. 263, 264. Davies, 1 Str. 53 ; Oldknow v. Wain- 
 
 (z) See as to suspension of canon- wright, 2 Burr. 1017. 
 
 ries or prebends at Southwell, 3 & 4 (ft) Ff. 3, 4, 3. 
 
 VOL. III. K
 
 130 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [the act of the whole body. And whereas, notwithstanding 
 the law stood thus, some founders of corporations had made 
 statutes in derogation of the common law, — making, very 
 frequently, the unanimous assent of the society to be neces- 
 sary to any corporate act, which King Henry the eighth 
 found to be a great obstruction to his favourite scheme of 
 obtaining a surrender of the lands of ecclesiastical corpo- 
 rations, — it was therefore enacted by stat, 33 Hen. VIII. 
 c. 27, " that all private statutes shall be utterly void 
 " whereby any grant or election made by the head with 
 " the concurrence of the major part of the body, is liable 
 " to be obstructed by any one or more being the minority ;" 
 but this statute extends not to any negative or necessary 
 voice given by the founder to the head of any such so- 
 ciety (6).] 9. It is also incident to corporations aggregate to 
 have the power of electing their own members and officers, 
 and thus perpetuating their own succession. When this 
 power is not specially assigned, by the charter which cre- 
 ates a corporation, to a particular portion of the members, 
 it belongs to the major part of the whole members duly 
 assembled for the purpose. It may be delegated, however, 
 by a bye-law, (except in the case of municipal corpora- 
 tions (c),) to a select body of the corporators, who then 
 become the representatives, as regards this matter, of the 
 whole community (d). But though (to prevent confusion) 
 the number of electors may be thus restrained, on the other 
 hand, the number of persons out of whom the election is to 
 be made cannot be diminished by a bye-law (e). 10. It is 
 also incident to a corporation aggregate, that they [may 
 take goods and chattels for the benefit of themselves and 
 
 (b) It has been remarked by Mr. " of which has been questioned. For 
 
 Justice Coleridge, in his edition of " no such doubt could have arisen if 
 
 Blackstone, that " every case in " the statute of Hen. 8 had taken 
 
 " which the doubt has been whether " away such negative in alt in- 
 
 " the statutes. in fact give a negative " stances." — 'Bl. Coin, by Coleridge, 
 
 " or necessary voice to the head or vol. i. p. 479. 
 
 " any other member of the corpo- (c) As to these, vide post, p. 141. 
 
 " ration, confirms by implication (d) Rex v. Spencer, 3 Burr. 1827. 
 
 " Blackstone's position, the accuracy (e) Ibid. 1833.
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 131 
 
 [their successors, as natural persons may for themselves, 
 their executors and administrators ; but a sole corporation 
 cannot take goods in his corporate capacity (_/"),] because 
 [such moveable property is liable to be lost or embezzled, 
 and would raise a multitude of disputes between the suc- 
 cessor and executor, which the law is careful to avoid (#).] 
 With regard to sole corporations, however, [a consider- 
 able distinction must be made. For if such sole corpo- 
 ration be the representative of a number of persons, as the 
 master of a hospital, who is a corporation for the benefit 
 of the poor brethren ; an abbot, or prior, by the old law 
 before the Reformation, who represented the whole con- 
 vent ; or the dean of some antient cathedral, who stands in 
 the place of, and represents, in his corporate capacity, the 
 chapter; such sole corporations as these have, in this re- 
 spect, the same powers as corporations aggregate have, to 
 take personal property or chattels in succession. And, 
 therefore, a bond to such a master, abbot, or dean, and his 
 successors, is good in law ; and the successor shall have 
 the advantage of it, for the benefit of the aggregate society 
 of which he is in law the representative (h). Whereas, in 
 the case of sole corporations, which represent no others but 
 themselves, as bishops, parsons, and the like, no chattel 
 interest can regularly go in succession ; and therefore, if a 
 lease for years be made to the Bishop of Oxford and his 
 successors, in such case his executors or administrators, 
 and not his successors, shall have it (i).] 
 
 All these capacities and incapacities belong as of course 
 to all bodies corporate, and result from the very act of 
 incorporation, without any express mention being made 
 of them in the charter. But none of them in general 
 
 (/) Co. Litt. 46. successor be appointed; which is 
 
 ( g) Another reason is elsewhere contrary to the nature of a chattel 
 
 stated by Blackstone(vol. ii. p. 431), interest. 
 
 viz. that if such chattel interest were (h) Dyer, 48; Byrd v. Wilford, 
 
 allowed to descend to a successor, the Cro. Eliz. 464. 
 
 property itself would be in abeyance (i) 2 Bl. Com. p. 431, cites Co. 
 
 from the death of the owner till a Litt. 46. 
 
 K. 2
 
 132 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 attach to any bodies of persons unincorporated, however 
 connected they may be in point of social position, or how- 
 ever united by express compact. Thus the inhabitants of 
 a particular parish are not capable, without being incorpo- 
 rated, of holding lands to them and their successors; though 
 they are capable of receiving a general grant of incorpora- 
 tion, which would enable them to hold such an inheritance (A). 
 And though a voluntary society of numerous individuals 
 should unite together by mutual agreement for common 
 purposes, provide a common stock by subscription, and 
 subject themselves to laws of their own creation for the 
 government of their society, yet all this will not entitle 
 them to the privilege of suing or being sued in their social 
 capacity, or protect them from individual liability ; but 
 each member, even though a holder only of a particular 
 share, and chargeable only to a limited amount according 
 to the articles of agreement, will be liable nevertheless to 
 be sued in his individual capacity, by all strangers having 
 demands upon the society at large, in the same manner as 
 if he were a member of an ordinary partnership, to the full 
 amount of those demands (I). Indeed, it has been held 
 
 (k) Ashby v. White, Lord Raym. 
 951 ; S. C. 3 Salk. 18 ; 12 Rep. 
 121. It is to be observed, however, 
 that there is much property in lands 
 and houses throughout the kingdom 
 which is said popularly to belong to 
 the parish. Such property has gene- 
 rally been given or devised to cha- 
 ritable purposes connected with the 
 poor of that parish ; but the instru- 
 ment of gift or will is often lost, and 
 the trustees not known. In some 
 instances too it happens that the 
 property is given or devised not to 
 any individual trustees, but to the 
 overseers, &c. in trust, though these 
 officers are not competent in law to 
 hold to them and their successors. 
 See 9th Poor Law Rep. p. 29. To meet 
 such inconvenience there exist some 
 
 legislative provisions. See 59 Geo. 3, 
 c. 12, ss. 12, 17, 25 ; 5 & 6 Will. 4, 
 c. 69, s. 5 ; 5 & 6 Vict. c. 18. 
 
 (/ ) To establish such a liability, 
 however, it must appear that the 
 demand is one for which the so- 
 ciety at large is properly answerable, 
 which must depend on its constitu- 
 tion, and the course of dealing out 
 of which the demand arises. For 
 the law relating to the liability of 
 members or directors of non-incor- 
 porated companies or clubs, see Att- 
 wood v. Small, 7 B. & C. 390 ; Bra- 
 mah v. Roberts, 3 Bing. N. C. 963 ; 
 Flemyng v. Hector, 2 Mee. & W. 
 179 ; Todd v. Emly, 7 Mee. & W. 
 427 ; 8 Mee. & W. 505. Et vide 
 sup. vol. ii. p. 95.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 133 
 
 that for such a society, or for any persons, to assume to 
 themselves the character of a corporation, and to attempt 
 to act and to hold themselves out as such without a 
 charter, is an invasion of the royal prerogative, and in the 
 nature of a criminal offence at the common law (m). 
 
 By a late statute, however, 7 Will. IV. & 1 Vict. c. 73, 
 reciting that " divers associations are and may be formed 
 " for trading or other purposes, some of which associations 
 " it would be inexpedient to incorporate by royal charters, 
 " though it would be expedient to confer on them some of 
 " the privileges of and incident to corporations created by 
 " royal charters, and also to invest such associations, or 
 " some of them, with certain other powers and privileges," 
 her Majesty is empowered by her letters-patent to grant to 
 any company or body of persons associated for any trading 
 or other purposes whatever (n), and to the heirs, executors, 
 administrators, and assigns of any such persons, although 
 not incorporated by such letters-patent, any privilege or 
 privileges which, according to the common law, it would 
 be competent to the crown to grant to any such company 
 by charter of incorporation. And the letters-patent may 
 contain provisions declaring the members individually lia- 
 ble in their persons and property for the engagements and 
 liabilities of the company, to such extent only as shall be 
 limited by such letters-patent. And as regards charters 
 of incorporation, this act also provides that her Majesty 
 may limit the duration of them for a term of years, or any 
 other period whatsoever, and may also make the corpora- 
 
 (m) Duvergieri;. Fellowes, .5 Bing. this act was repealed by 6 Geo. 4, c. 
 
 248; S. C. in error, 10 B. & C. 826. 91, which at the same time remitted 
 
 By the statute 6 Geo. 1, c. 18 (com- such companies to the general pro- 
 
 monly called the Bubble Act), enact- hibition of the common law. See 
 
 ed, says Blackstone, " in the year Duvergier v. Fellowes above cited, 
 
 " after the infamous South Sea pro- and Garrard v. Hardey, 5 Man. & 
 
 " ject had beggared half the nation," Gr. 471 ; and Harrison v. Heathorn, 
 
 it was made highly penal for sub- 6 Man. & G. 140. 
 scribers to public undertakings to (n) As to charters under this act, 
 
 " presume to act as if they were cor- see Rutter v. Chapman, 8 Mee. & W. 
 
 " porate bodies," by making their 1 ; Philipson i>. Egremont, 6 Q. B. 
 
 shares in stock transferable, &c. But 587.
 
 134 BK.IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 tion thereby formed subject to all the provisions in the act 
 contained as to unincorporated companies. Another act, 
 also, 7 & 8 Vict. c. 110(o), has been lately passed with 
 respect to Joint- Stock Companies, a term that, within the 
 meaning of this act of parliament, comprises (generally 
 speaking, and without attempting a precise definition, for 
 which the act itself must be consulted,) every partnership, 
 the capital whereof is divided into shares, transferable with- 
 out the express consent of all the partners, or dealing in in- 
 surances or life annuities, or consisting of more than twenty- 
 five members (/;). As to all such companies, if established 
 in England or Ireland for any commercial purpose, or pur- 
 pose of profit, or purpose of insurance (but subject to certain 
 exceptions, and among others the exception of all banking 
 companies (q), and of all companies incorporated or privi- 
 leged to sue in the names of their officers, by virtue of any 
 statute or charter), a particular plan of registration is ap- 
 pointed by this act, provisional upon their first projection, 
 and complete upon their actual formation ; and such com- 
 panies, when completely registered, are to be considered as 
 partially incorporated, that is, incorporated for a variety of 
 purposes (r), but so as not in any wise to prevent the lia- 
 bility of the shareholders, if due diligence have been first 
 used to obtain satisfaction out of the corporate property (s) ; 
 and regulations are made as to their constitution, and the 
 management of their affairs (t). And as to the individual 
 
 (o) This act has been amended in Q. B. 563 ; Bousfield v. Wilson, 16 
 
 certain of its details by 10 & 11 Vict. Mee. & W. 185; and Young v. 
 
 c. 78. Smith, 15 Mee. & W. 121, as to the 
 
 (p) The term "joint-stock com- sale of shares before complete re- 
 
 panies had been applied prior to gistration. 
 
 this act to all voluntary associations (s) 7 & 8 Vict. c. 110, ss. 25, 26. 
 
 (that is, associations not incorpo- As to the course of proceeding, see 
 
 rated) with transferable shares, but Corder v. Universal Gas Company, 
 
 to these only. 6 C. B. 196, 554 ; Peat v. Universal 
 
 (9) The case of joint-stock bank- Salvage Company, ib. 478 j Thomp- 
 
 ing companies is separately pro- son v. Doe, 3 Exch. 310; Marson v. 
 
 vided for by other acts of parlia- Lund, 20 L.J. (Q. B.), 190. 
 
 ment; vide post, bk. iv. pt. 3, c. 13. (t) As to the legal position of 
 
 (<•) See Lawton v. Hickman, 9 these quasi corporations in reference
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 135 
 
 liability of each particular member, it is provided that it 
 shall last for three years after he shall cease to be a share- 
 holder. By another act of the same session, 7 & 8 Vict, 
 c 111, such registered companies, and all companies regu- 
 larly incorporated, and companies privileged by letters- 
 patent (u), and, by 7 & 8 Vict. c. 113, s. 48, all banking 
 partnerships consisting of more than six persons, shall be 
 liable in certain cases to be proceeded against by a petition 
 in bankruptcy in their corporate or associated capacity, if 
 established for commercial purposes, and the court of bank- 
 ruptcy acting under any such petition shall inquire into the 
 cause of the company's failure, and report thereon to the 
 Board of Trade, which may recommend her Majesty to re- 
 voke the company's charter. By the same acts, moreover, 
 and by 11 & 12 Vict. c. 45 (v), and 12 & 13 Vict. c. 108, 
 provisions are made for compelling the dissolution of such 
 companies when unable to meet their engagements, and for 
 winding up their affairs, and enforcing payment from con- 
 tributories, (that is, members or others liable to contribute 
 to its funds) : and these provisions are besides extended to 
 all associations (whether incorporated or not), whose part- 
 ners are not less than seven, with the exception however of 
 railway companies incorporated by act of parliament (w). 
 
 III. Returning from this digression [we proceed next 
 to inquire how corporations may be visited. For corpora- 
 tions, being composed of individuals subject to human 
 
 to their contracts, see the observa- Lords, 1852. See also the following 
 tions of Parke, B., in Ridley v. acts with regard to companies: — 8& 
 Plymouth Grinding and Baking 9 Vict. c. 16, " Companies Clauses 
 Company, 2 Exch. 716; Banmere Consolidation Act, 1845," 8 &9 Vict. 
 Iron Company v. Barnett, 8 C. B. c. 184, " Lands Clauses Consolida- 
 406 ; Agriculturist Cattle Insurance tion Act, 1845," consolidating the 
 Company v. Fitzgerald, 20 L, J. provisions usually inserted in acts of 
 (Q. B.), 244. parliament for the incorporation of 
 (u) Vide sup. p. 133. joint-stock companies established for 
 (t>) As to this statute see Mac- undertakings of a public nature ; and 
 gregor v. Keiley, 1 L. M. & P. 182. 9 & 10 Vict. c. 28, as to the dissolu- 
 (w) As to the Winding-up Acts tion and winding up of certain rail- 
 see Bright v. Hutton, in House of way companies.
 
 136 UK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 [frailties, are liable, as well as private persons, to deviate 
 from the end of their institution. And for that reason the 
 law has provided proper persons to visit, inquire into, and 
 correct all irregularities that arise] in them. 
 
 [With regard to all ecclesiastical corporations (y), the or- 
 dinary is their visitor, so constituted by the canon law, and 
 from thence derived to us. The pope formerly, and now 
 the crown, as supreme ordinary, is the visitor of the arch- 
 bishop or metropolitan : the metropolitan has the charge 
 and coercion of all his suffragan bishops : and the bishops 
 in their several dioceses are in ecclesiastical matters the 
 visitors of all deans and chapters, of all parsons and vicars, 
 and of all other spiritual corporations (w?).] 
 
 With respect to lay corporations of the eleemosynary 
 kind (a-), [the founder, his heirs, or assigns, are the visitors;] 
 for in a lay incorporation the ordinary cannot visit. Yet 
 [if the sovereign and a private man join in endowing an 
 eleemosynary foundation, the sovereign alone shall be the 
 founder of it ;] for here the royal prerogative prevails. 
 And the founder has also a right to appoint a visitor, and 
 to limit the jurisdiction that he is to possess; and if the 
 heirs of a private founder fail, and no visitor has been ap- 
 pointed by him, the right of visitation devolves in such 
 case upon the crown, and is exercised on behalf of the 
 crown in the Court of Chancery (y). 
 
 As to a civil lay incorporation (z) it has no visitor, in the 
 sense of the term here intended — but the misbehaviour of 
 all bodies corporate of this class are inquired into and 
 redressed, and their controversies decided, in the Court of 
 Queen's Bench, according to the rules of the common 
 law (a). And accordingly in the case of the College of 
 Physicians, though the king by his letters-patent had sub- 
 jected that body [to the visitation of four very respectable 
 persons, the Lord Chancellor, the two Chief Justices, and 
 the Chief Baron, though the college had accepted tins 
 
 (v) Vide sup. p. 121. (y)R.v. Catharine Hall, 4 T.R.233. 
 
 (w) See Re Dean of York, 2 Adol. (s) Vide sup. p. 121. 
 
 & E - N - s - 1- (a) Per Holt, Philips v. Bury, Ld. 
 
 (x) Vide sup. p. 123. Raym. 8.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 137 
 
 [charter with all possible marks of acquiescence, and had 
 acted under it for more than a century, yet in 1753 the 
 authority of the provisions coming into dispute on an ap- 
 peal preferred to these supposed visitors, they directed the 
 legality of their own appointment to be argued; and as 
 this college was merely a civil and not an eleemosynary 
 foundation, they at length determined, upon several days' 
 solemn debate, that they had no jurisdiction as visitors, and 
 remitted the appellant, if aggrieved, to his regular remedy 
 in his majesty's Court of King's Bench.] 
 
 Hospitals are eleemosynary corporations. [These were 
 considered by the popish clergy as of mere ecclesiastical 
 jurisdiction; however the laws of the land judged other- 
 wise, and with regard to these institutions it has long been 
 held (b), that if the Hospital be spiritual, the bishop shall 
 visit— but if lay, the patron. This right of lay patrons 
 was indeed abridged by statute 2 Hen. V. c. 1, which or- 
 dained that the ordinary should visit all hospitals founded 
 by subjects, though the king's right was reserved to visit 
 by his commissioners such as were of royal foundation. 
 But the subject's right was in part restored by 14 Eliz. 
 c. 5, which directs the bishop to visit such hospitals only 
 where no visitor is appointed by the founders thereof; and 
 all the hospitals founded by virtue of the statute 39 Eliz. 
 c. 5, are to be visited by such persons as shall be nominated 
 by the respective founders. But still if the founder appoints 
 nobody, the bishop of the diocese must visit (c). 
 
 Colleges in the Universities] (though, as before remarked, 
 not the universities at large (d) ) are also eleemosynary 
 corporations ; and [(whatever the common law may now 
 or might formerly judge) were certainly considered by the 
 popish clergy, under whose direction they were, as ecclesi- 
 astical, or, at least, as clerical corporations ; and therefore 
 the right of visitation was claimed by the ordinary of the 
 
 (6) Year Book, 8 Edw. 3, 28 ; 8 (d) Vide sup. p. 122; R. v. Cam- 
 
 Ass. 29. bridge, 3 Burr. 1 656. 
 
 (V) 2 Inst. 725.
 
 138 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [diocese. This is evident, because in many of our most 
 antient colleges, when the founder had a mind to subject 
 them to a visitor of his own nomination, he obtained for 
 that purpose a papal bull to exempt them from the jurisdic- 
 tion of the ordinary, several of which are still preserved in 
 the archives of the respective societies. And in some of 
 the colleges of Oxford, where no special visitor is appointed, 
 the Bishop of Lincoln, in whose diocese Oxford was for- 
 merly comprised, has invariably exercised visitorial autho- 
 rity; which can be ascribed to nothing else but his supposed 
 title as ordinary to visit these among other ecclesiastical 
 foundations.] 
 
 [But whatever might be formerly the opinion of the 
 clergy, it is now held as established law, that colleges are 
 lay corporations, though sometimes totally composed of 
 ecclesiastical persons (e), and that where the founder has 
 appointed no other visitor, and his heirs become extinct, 
 the right of visitation belongs to the crown ; that is, to the 
 Lord Chancellor sitting as the crown's representative in 
 the Court of Chancery (/).] 
 
 So much with respect to the persons by whom the dif- 
 ferent classes of corporations are respectively to be visited. 
 With respect to the nature of a visitor's duties it may be 
 laid down generally, that they are to control all irregu- 
 larities in the institution over which he presides, and to 
 decide and give redress in all controversies arising among 
 the members, as to the interpretation of their laws and 
 statutes — that in the exercise of these duties he is to be 
 guided by the intentions of the founder, so far as they can 
 be collected from the statutes or from the design of the in- 
 stitution — that as to the course of proceeding he is restrained 
 to no particular forms (g), — and that while he keeps within 
 his jurisdiction, [his determinations as visitor are final and 
 
 (e) Philips v. Bury, Ld. Raym. 8. ( g) Bishop of Ely v. Bentley, 2 
 
 (/ ) Rex t>. Catherine Hall, 4 T. R. Bro. & C. 220 ; R. v. Bishop of Ely, 
 
 233 ; Ex parte Wrangham, 2 Ves. 2 T. R. 290 ; see Re Dean of York, 
 
 jun. 609. ubi sup.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 139 
 
 [examinable in no other court whatsoever (A).] Also it is 
 said, [that where the founder of an eleemosynary foundation 
 appoints a visitor, and limits his jurisdiction by rules and 
 statutes, if the visitor in his sentence exceeds these rules, 
 an action lies against him, but it is otherwise where he 
 mistakes in a thing within his power (i).] 
 
 IV. [We come now in the last place to consider how 
 corporations may be dissolved. Any particular member 
 may be disfranchised or lose his place in the corporation, 
 by acting contrary to the laws of the society or the laws of 
 the land, or he may resign it by his own voluntary act (k). 
 But the body politic may also itself be dissolved in several 
 ways — which dissolution is the civil death of the corpora- 
 tion; and in this case their lands and tenements shall 
 revert to the person or his heirs who granted them to the 
 corporation ; for the law doth annex a condition to every 
 such grant, that if the corporation be dissolved the grantor 
 shall have again the lands, because the cause of the grant 
 faileth (I). The grant is indeed only during the life of the 
 corporation, which may endure for ever — but when that 
 life is determined by the dissolution of the body politic, 
 the grantor takes it back by reversion, as in the case of 
 every other grant for life. The debts of a corporation] 
 aggregate, [either to or from it, are totally extinguished by 
 its dissolution (m) ; for it has no longer a corporate cha- 
 racter in which to sue or be sued, and as during its exist- 
 ence the members of it could not recover or be charged with 
 the corporate debts in their natural capacities, so neither 
 can they when it has ceased to exist.] 
 
 [A corporation may be dissolved — 1. By act of parlia- 
 
 (h) Philips v. Bury, Ld. Raym. 5 ; CO 11 Rep. 98 ; R. v. Liverpool, 
 
 S. C. 4 Mod. 106; Shaw, 35, 407 ; 2 Burr. 723; R. v. Harris, 1 B. & 
 
 Salk. 403 ; Carth. 180 ; St. John's Adol. 936. 
 
 College v. Todington, 1 Burr. 200; (/) Co. Litt. 13. 
 
 R. v. Bishop of Ely, ubi sup. ; R. v. (m) Edmunds v. Brown, 1 Lev. 
 
 Bishop of Worcester, 4 M. & S. 415. 237. 
 
 (0 2 Lutw. 1566.
 
 140 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 [ment, which is boundless in its operations.] And as to a 
 corporation aggregate — [2. By the natural death of all its 
 members.] 3. By the loss of such an integral part of its 
 members as is necessary, according to the charter, to the 
 validity of corporate elections, for in such cases the corpo- 
 ration has lost the power of continuing its own succes- 
 sion (n). [4. By surrender of its franchises into the hands 
 of the sovereign, which is a kind of suicide. 5. By for- 
 feiture of its charter, through negligence or abuse of its 
 franchises; in which case the law judges that the body 
 politic has broken the condition upon which it was incor- 
 porated, and thereupon the incorporation is void (o). And 
 the regular course is to brino- an information in the nature 
 of a writ of quo warranto (p), to inquire by what warrant 
 the members now exercise their corporate power, having 
 forfeited it by such and such proceedings. The exertion of 
 this act of law for the purposes of the state, in the reigns 
 of King Charles and King James the second, particularly 
 by revoking the charter of the city of London, gave great 
 and just offence; though perhaps, in strictness of law, the 
 proceedings in most of the cases that occurred were suffi- 
 ciently regular; but the judgment against the charter of 
 London was reversed by act of parliament (q) after the 
 Revolution, and by the same statute it is enacted, that the 
 franchises of the city of London shall never more be for- 
 feited for any cause whatever.] 
 
 We have already remarked, that there is a species of lay 
 
 (») See 11 Geo. 1, c. 4, s. 5 ; R. of this statute are expressly extended 
 
 v. Pasmore, 3 T. R. 199; R. v. Mil- to elections under the Municipal 
 
 ler, 6 T. R. 268 ; R. v. Morris, 3 Reform Act, by 7 Will. 4 & 1 Vict. 
 
 East, 213 ; S. C. 4 East, 17. But by c. 78, s. 26. 
 
 11 Geo. 1, c. 4, it is provided, that (o) R. v. Ponsonby, 1 Ves. jun. 8. 
 
 municipal corporations shall not be (p) As to a quo warranto, vide post, 
 
 dissolved by the non-election or void bk. v. c. 12. 
 
 election of the mayor or other chief ((/) Stat. 2 W. & M. c. 8 ; vide 
 
 officer on the day mentioned in the R. v. Amery, 2 T. R. 515 ; S. C. in 
 
 charter, and this is held to extend to error, 4 T. R. 122. 
 other officers also. The provisions
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 141 
 
 corporation, which is erected for the good government of a 
 town. An institution of this kind has lately been termed 
 a municipal corporation ; and may be defined generally as 
 a body politic or corporate, established in some town to 
 protect the interests of its inhabitants as such, and the 
 maintenance of order therein, and consisting of the bur- 
 gesses or freemen, that is, such persons as are duly and 
 legally admitted as members of the corporate body. 
 
 The earlier history of the incorporation of the English 
 towns (r) is involved in some degree of obscurity. What 
 may be stated with certainty, however, is as follows. 
 
 First, a diligent examination of our antient historical 
 remains will suffice to establish the point, that even prior 
 to the Norman Conquest there existed, at least, the germ 
 of municipal corporations in this country (s) ; it having 
 been usual for such persons of free condition as were not 
 landowners, to settle in the towns and occupy houses there, 
 as tenants to the crown, or some inferior lord, under the 
 name of burgesses (t) ; to form themselves, by licence from 
 the crown, (as many classes of persons did in that age,) 
 into voluntary associations or fraternities, called gilds, or 
 
 (?•) A full account of the esta- 
 blishment of the communities in Italy, 
 France, Germany and Spain, is given 
 in Robertson's Chas. V. vol. i. p. 33, 
 notes xv., xvi., xvii., xviii. By this 
 account it appears, that in France 
 charters of date as early as a.d. 974 
 and 1025, are known to have been 
 granted in favour of certain French 
 towns, conferring liberties and privi- 
 leges upon them ; but the communi- 
 ties did not acquire the privilege of 
 municipal government and some 
 other of the more important conces- 
 sions till the time of Louis the sixth, 
 about a.d. 1120. 
 
 (.«) Robertson says (ubi sup.), that 
 in England the establishment of com- 
 
 munities or corporations was posterior 
 to the Conquest, " and that the prac- 
 " tice was borrowed from France." 
 He adds, however, " that it is not im- 
 " probable that some of the towns in 
 " England were formed into corpo- 
 " rations under the Saxon kings, and 
 " that the charters granted by the 
 " kings of the Norman race were not 
 " charters of enfranchisement from 
 " a state of slavery, but a confirma- 
 " tion of privileges which they al- 
 " ready enjoyed." And he cites 
 Lord Lyttleton's Hist, of Hen. 2, 
 vol. ii. p. 317. 
 
 (t) Turner's Hist. Anglo-Sax. vol. 
 iii. pp. 106, 107 ; Domesday Book, 
 passim.
 
 142 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 guilds (u); to be entitled in their capacity of burgesses to cer- 
 tain property (x), and in the same capacity to be exempt from 
 certain burthens, and to be subject to certain liabilities ( y). 
 It is also clear, that very soon after the Conquest, and from 
 thence downwards to the time of Henry the sixth, or there- 
 abouts, charters were from time to time conceded by the 
 Anglo-Norman kings to the same towns (z), and to others, 
 either confirming the former grants, or (as the case might 
 be) conferring new ones ; that by such charters the boroughs 
 were frequently demised in fee farm to the burgesses (a) ; 
 and these persons were also authorized to have a guild- 
 merchant (b) ; to have officers, such as mayors, aldermen, 
 bailiffs, and the like, for government of their towns (c) ; to 
 hold courts of their own for administration of justice within 
 the same precinct (d) ; and to enjoy many other liberties 
 and privileges, of which it may be said, in general, that 
 they chiefly consisted of exemptions from arbitrary taxation 
 and from feudal oppressions. 
 
 And, lastly, we find that from about the reign of Henry 
 the sixth to the present day, other charters of a similar 
 character (though varying of course with the change of 
 times, as to the nature of the specific privileges conferred) 
 
 (u) As to gilds, vide supra, p. 125, (a) Madox, Firma Burgi, p. 37. 
 
 n. (a). There seems reason to be- (b) Thus Henry the second grants 
 
 lieve, that gilds were always founded to the burgesses of Southampton, 
 
 by the crown's licence. After the " quod hubeant et teneant gildinn snam 
 
 Conquest this was undoubtedly the et omnes libertates et consuetudines," 
 
 case. See Madox, Firma Burgi, &c, and King John grants to Dun- 
 
 p. 26. wich " hansamet gildam mercatoriam." 
 
 (x) This appears from some of the — Madox, Firma Burgi, 27, where 
 
 entries in the Domesday. Thus in see other instances. 
 
 Canterbury, burgesses " de rege 33 (c) Madox, Firma Burgi, 28, 116, 
 
 acrus prati in gildam siinmJ" Domes- 136,139. 
 
 day, p. 2. (d) See charter of Richard the 
 
 (y) Domesday, passim. first, granting to the burgesses of 
 
 (2) The enumeration of the towns Colchester, " quod ipsi ponant de 
 
 particularly noticed in Domesday in seipsis batlivos quoscnnqtie volueriiit et 
 
 reference to their services and cus- judiciarios ad sumandutn placita corona 
 
 toms, will be found in the Introduc- nostra et ad placilandum eadem placita 
 
 tion to Domesday by Sir H. Ellis, infra burgum suum." — Ibid. 28. 
 vol. i. p. 191.
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 143 
 
 have been repeatedly granted to the same and to other 
 towns by our different monarchs; but in a form more 
 strictly adapted to the legal idea of an incorporation ; these 
 instruments containing an express grant that the mayor, 
 bailiff, (or other officers,) and burgesses of the particular 
 towns, should be a "a body corporate" by a certain name, 
 and by that name have perpetual succession, and be com- 
 petent to sue and be sued, and the like (e). 
 
 Under all these different grants a very large proportion 
 of the different towns of England have successively become 
 incorporated ; but until a recent period their constitutions 
 were in many respects defective, and of a nature liable to 
 abuse ; and being founded besides on charters granted by 
 different kings at different times, or on the immemorial cus- 
 tom applicable to each particular town, where the charter 
 was lost or silent, were subject to a great and inconvenient 
 variety of structure. To place these important institutions 
 upon a more satisfactory and uniform basis, and to purify 
 their internal economy, it was deemed necessary in the 
 course of the last reign to pass an act " to regulate the 
 municipal corporations in England and Wales" (f). 
 
 By this statute, 5 &c 6 Will. IV. c. 76 (commonly called 
 the Municipal Corporation Act), the corporate towns, or, as 
 
 (e) See the charters of Henry the 
 sixth and Edward the fourth, cited 
 ibid. Before the reign of Henry the 
 sixth demises in fee farm, or other 
 grants to burgesses, were to hold to 
 them and their " heirs," or sometimes 
 to their " successors or their heirs." 
 Ibid. 39. 
 
 (/) This act was preceded by the 
 appointment of a commission (dated 
 18 July, 4 Will. 4), "to inquire into 
 " the existing state of municipal cor- 
 " porations in England and Wales, 
 " and to collect information respect- 
 " ing the defects in their constitu- 
 " tion, &c." The first report of the 
 commissioners, dated 30th March, 
 1835, contained the following state- 
 
 ment : " There prevails among the 
 " inhabitants of a great majority of 
 " the incorporated towns a general, 
 " and, in our opinion, a just dissa- 
 " tisfaction with the municipal in- 
 " stitutions — a distrust of the self- 
 " elected municipal councils, whose 
 " powers are subject to no popular 
 " control, and whose acts and pro- 
 " ceedings being secret are not 
 " checked by the influence of public 
 " opinion — a distrust of the muni- 
 " cipal magistracy, tainting with sus- 
 " picion the local administration of 
 " justice — a discontent under the 
 " burthen of local taxation, while 
 " revenues are diverted from their 
 " legitimate use," &c. p. 49.
 
 144 CK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 they are denominated in this statute, boroughs (g), enume- 
 rated in the schedules A. and B. annexed thereto, (com- 
 prising, with the exception of London and a few other places, 
 the whole of those in England and Wales (//),) are placed 
 under one uniform plan of constitution thereby newly de- 
 vised. According to this plan the definition of a burgess (i) 
 in the boroughs comprised in the act (that is, a burgess 
 entitled to such new rights as the act for the first time con- 
 fers on those boroughs (k),) is a male person of full age 
 not an alien, nor having received within the last twelve 
 months parochial relief, or alms, or pensions, or charitable 
 allowance from the charitable trustees of the borough; who 
 on the last day of August in any year shall have occupied 
 any house, warehouse, counting-house or shop within the 
 borough, during that year and the whole of the two pro- 
 ceeding years; and during such occupations shall also have 
 been an inhabitant householder within the borough, or 
 within seven miles thereof; and shall during such time have 
 been rated in respect of such premises to all rates for relief 
 of the poor (Z), and have paid all such rates and all borough 
 
 (g) The term borough is employed 
 in this act in a somewhat novel sense. 
 It seems originally to have signified 
 a town of note or importance, but 
 generally in later times a town send- 
 ing members to parliament. Vide 
 sup. vol. i. p. 120, (n.) f. ; Madox, 
 Firma Burgi, p. 2. And it is used 
 in that sense in the Reform Act, 2 
 Will. 4, c. 45, s. 79. In neither of 
 these applications of the word did 
 it necessarily involve the idea of a 
 municipal corporation. 
 
 (h) The act provides, sect. 136 — 
 138, that nothing therein contained 
 shall alter or affect the rights of the 
 universities of Cambridge, Oxford, 
 or Durham, or the jurisdiction over 
 precincts of cathedrals, or the let- 
 ters-patent granted to the Grammar 
 School at Louth. It also contains 
 
 several savings as to the dock yards, 
 &c. s. 89, and the Cinque Ports, ss. 
 108, 134, 135. As to the boundaries 
 of the boroughs to which the act 
 applies, and of the wards thereof, vide 
 sects. 7, 8, 39, 41 of 6 & 7 Will. 4, 
 c. 103 ; 7 Will. 4 & 1 Vict. c. 78, 
 ss. 29, 41. As to boroughs incorpo- 
 rated since the Municipal Corpora- 
 tion Act, see 11 & 12 Vict. c. 93 ; 13 
 & 14 Vict. c. 42. 
 
 (0 See 5 & 6 Will. 4, c. 76, ss. 9, 
 13. 
 
 (k) Ibid, and see sects. 2 — 5. As 
 to burgesses, see farther 6 & 7 Will. 4, 
 c. 104, s. 7 ; 7 Will. 4 & 1 Vict. c. 
 78, ss. 4, 5, 6, 7, 8, 9, 24. 
 
 (/ ) R. v. Bridgenorth (Mayor), 10 
 Ad. & E. 66 ; R. v. Eye (Mayor), 9 
 Ad. & E. 670.
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 145 
 
 rates iii respect of the same premises, except those payable 
 for the last six calendar months ; and shall be duly enrolled 
 in that year as a burgess on the burgess roll (in). Which 
 definition however is to be understood as subject to the 
 following rule, that when the premises came to the party 
 by descent, marriage, marriage settlement, devise, or pro- 
 motion to any benefice or office, he shall be entitled to 
 reckon in the occupancy and rating of the former party 
 from whom they were so derived (n). 
 
 The new municipal constitution farther provides, that in 
 every borough there shall be elected annually a " mayor" (o), 
 and periodically a certain number of " aldermen" (/?), and 
 of " councillors" (q), who together shall constitute " the 
 council" (r) of the borough (s) ; — that they shall be re- 
 spectively chosen from among persons on, or entitled to be 
 on, the burgess list, and otherwise qualified as in the act 
 described (t) ; — that the councillors shall be elected by the 
 
 (m) As to the burgess roll, see R. 
 v. Hardwich (Mayor), 8 Ad. & E. 
 919; Queen v. Mayor of Dover, 11 
 Q. B. 260 ; Queen D.Dixon, 15 Q. B. 
 33 ; R. v. Kidderminster, 2 L. M. & 
 P. 201 ; and see 5 & 6 Will. 4, c. 76, 
 s. 22. Before this act the title of 
 burgess (or the freedom, as it is 
 called) was generally acquired by 
 birth, marriage or servitude, that is, 
 by being born of a freeman, by mar- 
 rying the daughter or widow of a 
 freeman, or by apprenticeship for 
 seven years within the borough to a 
 freeman. It might also be obtained 
 by gift or purchase. First Report 
 of Commissioners, pp. 18, 19. 
 
 (n) Sect. 12 ; 7 Will. 4 & 1 Vict. 
 c. 78, s. 8. 
 
 (o) Sect 49. The case of the 
 
 death, absence, or incapacity of the 
 
 mayor, is provided for by sect. 36 ; 
 
 of the aldermen by 7 Will. 4 & 1 Vict. 
 
 VOL. III. 
 
 c. 78, s. 16. By 6 & 7 Will. 4, c. 105, 
 s. 4, the mayor is to hold over till 
 acceptance of office by his successor. 
 
 (p) Sect. 25. 
 
 (?) Sects. 25, 31. 
 
 (r) As to the powers of the coun- 
 cil, see sects. 72, 73 ; 6 & 7 Will. 4, 
 c. 104, s. 2 ; 6 & 7 Will. 4, c. 105, 
 s. 8 ; 7 Will. 4 & 1 Vict. c. 78, ss. 
 45, 46, 47 ; Staniland v. Hopkins, 9 
 Mee. & W. 178. 
 
 (s) Sect. 25. 
 
 (0 Sect. 28. Vide 6 & 7 Will. 4, 
 c. 104, s. 7. Since the Municipal 
 Act there have been several addi- 
 tional statutes regulating the subject 
 of municipal elections. Vide 6 & 7 
 Will. 4, c. 105, s. 5 ; 7 Will. 4 & 1 
 Vict. c. 78, ss. 1,11, 14, 18,25,26; 3 
 & 4 Vict. c. 47, s. 1 ; 6 & 7 Vict. c. 
 89, ss. 1, 2, 3, 5 ; 15 & 16 Vict. c. 5. 
 See also 1 & 2 Vict. cc. 5, 15, as to 
 the relief of Quakers, Moravians and 
 L
 
 14G BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 burgesses (u), and the mayor and aldermen by the coun- 
 cil (x) ; — that the council shall meet once a quarter (and 
 oftener if due notice be given), for transaction of the general 
 business of the borough ( y), and make their decisions 
 according to the majority of members present (if those 
 present amount to one-third of the whole), and that the 
 mayor, or other member presiding in his absence, shall 
 have a casting vote (2) ; — that at any meeting at which two- 
 thirds at least of the whole shall attend, the council may 
 make bye-laws for the good rule and government of the 
 borough, for the prevention and suppression of nuisances, 
 and for the imposition of fines on persons in that behalf 
 offending (a); — that the burgesses shall annually elect, from 
 among those qualified to be councillors, two auditors and 
 two assessors (b) ; the former to audit the accounts of the 
 borough, the latter to assist in revising the burgess lists (c); — 
 and that the council also may appoint a town clerk and a 
 treasurer (neither of whom is to be a member of the coun- 
 cil), and such other officers as have been usual or shall be 
 
 Separatists, and 8 & 9 Vict. c. 52, 
 by which Jews are now rendered 
 capable of being elected to munici- 
 pal offices. 
 
 (m) Sects. 29, 30. See Harding 
 v. Stokes, 1 Mee. & W. 354 ; S. C. 
 2 Mee. & W. 233 ; R. v. Oxford, 6 
 A. & E. 349. It is to be observed 
 that certain boroughs of large popu- 
 lation are by the act divided into a 
 certain number of wards (vide sect. 
 39 ; 6 & 7 Will. 4, c. 103, s. 3), and 
 it is provided that a certain number 
 of councillors shall be assigned to 
 each ward (sect. 40), and that the bur- 
 gesses of each ward and none others 
 shall separately elect the number of 
 councillors assigned thereto (sect. 43). 
 Two assessors are also to be sepa- 
 rately elected for each ward. (Ibid.) 
 
 (j) Sects. 49, 25. As to the elec- 
 
 tion of an outgoing alderman to be 
 mayor, vide R. v. Stanley, 3 Per. & 
 D. 501. As to the election to the 
 office of alderman, R. v. Brightvvell, 
 10 A. & E. 171 ; R. v. Delghton, 5 
 Q. B. 896 ; R. v. Bradford, 20 L. J. 
 Q. B. 226. As to the re-election of 
 mayor, 3 & 4 Vict. c. 47. As to the 
 disqualification of councillor, &c. in 
 respect of a contract or office of profit, 
 R. v. York, 2 Gale & D. 105 ; and 
 see 5 & 6 Vict. c. 104. 
 
 (y) Sect. 69. 
 
 (e) Ibid. 
 
 («) Ibid. 
 
 (6) Sects. 37, 29. 
 
 (c) Sects. 93, 18. By 7 Will. 4 
 & 1 Vict. c. 78, s. 15, the auditors 
 and assessors are disqualified to be 
 of the council; by sect. 17 the as- 
 sessor may appoint a deputy.
 
 CHAP. I. OF THE LAWS RELATING TO CORPORATIONS. 147 
 
 necessary, and shall be empowered to fix their salaries (d), — 
 and, if the borough have a separate court of quarter ses- 
 sions, shall also appoint a coroner (e) and a clerk of the 
 peace (/). 
 
 The council also of any borough which is desirous that 
 a separate court of quarter sessions (g) should be holden 
 there, may petition the crown for that purpose : and if the 
 application be granted, the crown shall appoint a recorder, 
 who shall be sole judge of such court of quarter sessions, 
 as also of the court of record for civil actions, if there be 
 any, and if it be not regulated by any local act of parlia- 
 ment and no barrister of five years standing sat therein 
 when the act passed (h). 
 
 To certain boroughs, and to such others as may petition 
 for it, the crown may also grant a commission of the 
 peace, and nominate such persons to be justices as the 
 crown shall think proper (i) ; and the mayor and recorder 
 are respectively justices of the peace ex officio (k). 
 
 It is provided also, that generally, and subject to certain 
 
 (d) Sect. 58. As to the town 
 clerk, see R. v. Simkins, 5 A. & E, 
 423 ; Jones v. Carmarthen (Mayor), 
 8 Mee. & W. 685. As to the trea- 
 surer, see 6 & 7 Vict. c. 89, s. 6. 
 
 (e) Sect. 62. By 6 & 7 Will. 4, 
 c. 105, s. 6, the coroner may appoint 
 a deputy. 
 
 (/) Sect. 103. The clerk of the 
 peace may appoint an assistant, 7 
 Will. 4 & 1 Vict. c. 19. 
 
 (»•) Sect. 103. As to borough courts 
 of quarter sessions, see farther 7 Will. 
 4 & 1 Vict. c. 19 ; 6 & 7 Will. 4, c. 
 105. As to petty sessions of the 
 peace in boroughs, see 12 & 13 Vict. 
 c. 18. As to the trial in the county 
 at large of offences committed within 
 the borough, see 38 Geo. 3, c. 52, 
 ss. 2, 3 ; 51 Geo. 3, c. 100 ; 60 Geo. 3 
 & 1 Geo. 4, c. 14 ; 5 & 6 Will. 4, 
 c. 76, s. 109. As to the trial in the 
 
 L. 
 
 next adjoining county of offences 
 committed in a county of a town cor- 
 porate, and not triable at its quar- 
 ter sessions, 14 & 15 Vict. c. 55, s. 19. 
 As to the offences not triable at the 
 quarter sessions, whether in counties 
 or boroughs, 5 & 6 Vict. c. 38. 
 
 (h) Sects. 105, 118. The recorder 
 may appoint a deputy without con- 
 sent of council, 6 & 7 Vict. c. 89, s. 8. 
 As to the recorder's oath, 6 & 7 Will. 
 4, c. 105, s. 3. As to the court for 
 civil action, 6 & 7 Will. 4, c. 105, 
 s. 9 ; 7 Will. 4 & 1 Vict. c. 78, s. 31; 
 2 & 3 Vict. c. 27. 
 
 (i) Sect. 98. Et vide as to borough 
 justices, 7 Will. 4 & I Vict. c. 78, 
 ss. 30, 31 ; 12 & 13 Vict. cc. 8, 18, 
 64; 13 & 14 Vict. c. 91 ; 15 & 16 
 Vict. c. 38. 
 
 (/<) Sects. 57, 103.
 
 148 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 exceptions, the council shall not sell or mortgage the land 
 or public stock of the borough, or demise them for more 
 than a certain term (/), and that the rents, profits, and in- 
 terest of all corporate property shall be paid to the trea- 
 surer, and carried to the account of the borough fund (m), 
 which, after discharging debts, shall be applied to the 
 payment of salaries, the expenses connected with the cor- 
 porate elections, prosecutions, gaols and maintenance of 
 offenders, and other public purposes in), — that the surplus 
 (if any) shall be expended for the public benefit of the 
 inhabitants (o), and the deficiency (if any) made up by a 
 rate ( p), — and that the accounts shall be at all times open 
 to inspection, and regularly audited and printed for the use 
 of the rate-payers (q), and submitted to the Secretary of 
 State, and laid before both Houses of Parliament (r). 
 
 Such are the principal features of the new municipal 
 corporation scheme, as to which however it is farther to be 
 understood that it distinguishes between the rights newly 
 
 (l) Sects. 94, 95, &c. As to the 
 sale of the right of nomination to 
 church patronage, &c. see 1 & 2 
 Vict. c. 31 ; as to the power of leas- 
 ing, 6 & 7 Will. 4, c. 104, s. 2 ; sup. 
 vol. i. p. 454. 
 
 (;«) As to the borough fund, see 
 sect. 92 ; 6 & 7 Will. 4, c. 104 ; R. v. 
 Ledgard, 1 A. & E. N. S. 16. As to 
 property held by corporations on cha- 
 ritable or other trusts, see sects. 71 
 — 75. As to discharge of debt, see 
 7 Will. 4& 1 Vict. c. 7S, s. 28. 
 
 (n) Sect. 92. As to prosecutions 
 and maintenance of offenders, see R. 
 v. Bridgwater (Council), 2 Per. & D. 
 558 ; Attorney- General v. Norwich 
 (Mayor), 2 Mylne & C. 406 ; R. v. 
 Johnson, 10 A. & E. 740 ; 5 & 6 
 Will. 4, c. 76, ss. 114, 117 ; 5 & 6 
 Vict. c. 9S ; 13 & 14 Vict. c. 91 ; 15 
 & 16 Vict. c. 81, s. 38. As to gaols, 
 see 6 & 7 Will. 4, c. 105, s. 1 ; 7 Will. 
 4 & 1 Vict. c. 78, s. 37 ; 5 & 6 Vict. 
 cc. 53, 98 ; 7 & 8 Vict. c. 50 ; 7 & 8 
 
 Vict. c. 93; 11 & 12 Vict. c. 33; 12 & 
 13 Vict. c. 82 ; 13 & 14 Vict. c. 91. 
 As to lunatic asylums, 8 & 9 Vict. c. 
 126, ss. 8, 9, 10 ; 9& 10 Vict. c. 84, 
 s. 9 ; 12 & 13 Vict. c. 82. As to 
 bridges, 13 & 14 Vict. c. 64. 
 
 (o) By 13 & 14 Vict. c. 65, the 
 councils of populous boroughs may 
 establish public libraries and mu- 
 seums. 
 
 (p) Sect. 92. As to levying bo- 
 rough rate and watch rate, see 6 & 7 
 Will. 4, c. 104, s. 5 ; 7 Will. 4 & 1 
 Vict. c. 78, s. 29 ; 7 Will. 4 & 1 Vict, 
 c. 81 ; 2 & 3 Vict. c. 28 ; 3 & 4 Vict, 
 c. 28 ; 8 & 9 Vict. c. 110. As to 
 rating the corporate property to poor 
 rates, see 4 & 5 Vict. c. 48. As to 
 the collection of county rate for pa- 
 rishes partly comprised in boroughs 
 not subject to the county rate, 15 & 
 16 Vict. c. 81, s. 32. 
 
 (<)) Sect. 93. 
 
 (r) 6 & 7 Will. 4, c. 104, s. 10; 
 7 Will. 4 & 1 Vict. c. 78, ss. 43, 49.
 
 CHAP. I. — OF THE LAWS RELATING TO CORPORATIONS. 149 
 
 conferred by the act, and the former rights of the corpo- 
 rators with regard to the corporate property, and with re- 
 gard to voting at parliamentary elections ; both which for- 
 mer rights are expressly preserved. For it is provided that 
 every inhabitant, and every person admitted a freeman or 
 burgess, and the wife or widow, or son or daughter of any 
 freeman or burgess, and every person married to the 
 daughter of a freeman or burgess, and every apprentice, 
 shall enjoy the same share and benefit of the lands and 
 public stock of the borough, as he or she might have 
 enjoyed in case the act had not been passed ; subject to 
 the limitation however that the total amount to be divided 
 among such persons shall not exceed the surplus which 
 shall remain after payment of the expenses by the act 
 charged upon the borough fund (s). And farther, that 
 every person who if the act had not been passed would 
 have enjoyed as a burgess or freeman, or might thereafter 
 have acquired in respect of birth or servitude, the right of 
 voting in the election of members of parliament, shall be 
 entitled to enjoy or acquire such right of voting as fully as 
 he might in that case have done (t). It is also enacted 
 that the town clerk of every borough shall make out a list 
 (to be called the freemen s roll) of all persons admitted 
 burgesses or freemen for the purpose of such reserved 
 rights as aforesaid (m), as distinguished from the burgesses 
 newly created by the act, and entitled to the rights which 
 it newly confers; who are to be entered (as before ex- 
 plained) on another roll, called the burgess roll. 
 
 There are some other points of importance, besides 
 these already noticed, on which the act has innovated upon 
 the laws and customs which formerly prevailed in corpo- 
 rate towns. It enacts that no person shall in future be 
 made a burgess or freeman by gift or purchase (x) ; the 
 
 (s) Sect. 2. of 10/., 2 Will. 4, c. 45, s. 27; sup. 
 
 (() Sect. 4. Vide 7 Will. 4 & 1 vol. ii. p. 352. 
 
 Vict. c. 78, s. 27. See also as to the («) Sect. 5. 
 
 right of voting for boroughs in re- (,v) Sect. 3. 
 spect of an occupation to the value
 
 150 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 effect of which is to leave no other title in force, as regards 
 the right to be placed on the freemen's roll, but those of 
 birth, marriage, and servitude as an apprentice (y). It 
 abolishes (though with a reservation of the rights of the 
 then existing claimants) the exemptions that had been 
 ordinarily claimed by burgesses, inhabitants, or the like, for 
 such tolls or dues as are levied to the use of the body cor- 
 porate (z). And whereas in divers boroughs a custom had 
 prevailed, and bye-laws had been made, that no person 
 not being free of the borough, or of certain guilds, myste- 
 ries, or trading companies therein, should keep a shop for 
 merchandize, or use certain trades or occupations for gain 
 within the same, the act provides that every person may in 
 future keep any shop, and use every lawful trade and 
 occupation therein, any such custom or bye-laws notwith- 
 standing (a). 
 
 It remains only to observe, that the several provisions 
 of this act are applicable not only to the boroughs enume- 
 rated in the schedules, but to every other (whether before 
 incorporated or not) which shall obtain a new charter of 
 incorporation, or petition to the crown for that purpose (b) ; 
 and that with respect to every borough falling within the 
 act, the former statutes, charters and usages by which it 
 was governed, so far as consistent with these provisions, 
 are to be considered as still in force, while on the other 
 hand, so much of them as is inconsistent with the act is in 
 express terms repealed (c). 
 
 (y) Sect. 5. As to the right of («) Sect. 14. 
 
 persons on the freemen's roll to vote (b) Sect. 141 ; 7 Will. 4 & 1 Vict, 
 
 for members of parliament, however, c. 78, s. 49. By 13 & 14 Vict. c. 42, 
 
 it is to be observed, that it belongs to the expenses attending the incorpo- 
 
 those only who have been admitted ration of a borough, and of all elec- 
 
 by birth or servitude, as stated in tion acts and proceedings under the 
 
 the preceding page, and no longer same, may be paid out of borough 
 
 to those admitted by marriage. rates. 
 
 0) Sect. 2. Vide 6 & 7 Will. 4, (c) Sect. 1. 
 
 c. 104, s. 9.
 
 ( 151 ) 
 
 CHAPTER II. 
 
 OF THE LAWS RELATING TO THE POOR. 
 
 [The poor of England, till the time of Henry the eighth, 
 subsisted entirely upon private benevolence, and the charity 
 of well-disposed Christians (a). For though it appears by 
 the Mirror (b), that by the common law the poor were to 
 be " sustained by parsons, rectors of the church, and the 
 " parishioners, so that none of them die for default of suste- 
 " nance," yet till the statute 27 Hen. VIII. c. 25, we find 
 no compulsory method chalked out for this purpose; but the 
 poor seem to have been left to such relief as the humanity 
 of their neighbours would afford them. The monasteries 
 were, in particular, their principal resource ; and among 
 other bad effects which attended the monastic institutions, 
 it was not perhaps one of the least, (though frequently 
 esteemed quite otherwise,) that they supported and fed a 
 very numerous and very idle poor, whose sustenance de- 
 pended upon what was daily distributed in alms at the 
 gates of the religious houses. But before the total disso- 
 lution of these, the inconvenience of thus encouraging the 
 poor in habits of indolence and beggary was quickly felt 
 
 (a) The poor in Ireland had till 
 of late no relief but from private 
 charity. But by 1 & 2 Vict. c. 56, 
 the authority of the Poor Law Com- 
 missioners was extended to that part 
 of the realm. This act has been 
 amended by 2 & 3 Vict. c. 1 ; 4 & 5 
 Vict. c. 41 ; 6 & 7 Vict. c. 92 ; 10 & 
 11 Vict. cc. 31, 90; 11 & 12 Vict. c. 
 25; 14 & 15 Vict. c. 68; 15 & 16 
 Vict. c. 37. And, by 10 & 1 1 Vict, 
 c. 90, a board of commissioners for 
 administering the laws for relief of 
 
 the poor in Ireland is established, 
 distinct from the commissioners for 
 England. See also the following 
 temporary statutes which have been 
 recently passed for the alleviation of 
 distress caused by a late failure of 
 crops in that country, 9 & 10 Vict. 
 cc. 6, 107 ; 10 & 11 Vict. cc. 7, 10, 
 22, 55; 11 & 12 Vict. c. 106. As 
 to the relief of the poor in Scotland, 
 see 8 & 9 Vict. c. 83. 
 (h) Chap. 1, sect. 3.
 
 152 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 [throughout the kingdom, and abundance of statutes were 
 made in the reigns of King Henry the eighth and his 
 children for providing for the poor and impotent; which, 
 the preambles to some of them recite, had of late years 
 greatly increased. 
 
 These poor were principally of two sorts : sick and im- 
 potent, and therefore unable to work ; idle and sturdy, and 
 therefore able but not willing to exercise any honest em- 
 ployment. To provide in some measure for both of these, 
 in and about the metropolis, Edward the sixth founded 
 three royal hospitals : Christ's and St. Thomas's, for the 
 relief of the impotent, through infancy or sickness , and 
 Bridewell, for the punishment and employment of the 
 vigorous and idle. But these were far from being sufficient 
 for the care of the poor throughout the kingdom at large ; 
 and therefore, after many other fruitless experiments, by 
 statute 43 Eliz. c. 2, (which is generally considered as the 
 foundation of the modern poor law,) overseers of the poor 
 were appointed in every parish.] It is provided by this 
 statute, that the churchwardens of every parish (c) shall be 
 overseers of the poor, and that, besides these, there shall 
 be appointed as overseers in each parish two, three, or four, 
 but not more, of the inhabitants (d), such last-mentioned 
 overseers to be substantial householders, and to be nomi- 
 nated yearly in Easter week, (or within one month after,) 
 by two justices dwelling near the parish (e). 
 
 (r) As to churchwardens and over- men, dissenting ministers, practising 
 
 seers for separate townships, see R. v. barristers and attornies, members of 
 
 Justices of North Riding of York- the colleges of physicians and sur- 
 
 shire, 6 A. & E. 863 ; R. v. Worces- geons, apothecaries, officers of the 
 
 tershire, 1 W. W. & H. 432 ; and 7 courts of law, of the army and navy, 
 
 & 8 Vict. c. 101, ss. 22, 23. As to and of the customs and excise. Vide 
 
 the appointment of overseers in Archbold's Justice of the Peace 
 
 cities and boroughs, see 12 & 13 (Poor), 13. By 12 & 13 Vict. c. 103, 
 
 Vict. c. 8; 15 & 16 Vict. c. 38. s. 6, no person shall be appointed 
 
 (d) The following classes of per- overseer who is engaged in any con- 
 sons are exempted from serving the tract for the supply of food for the 
 office of overseers. Peers and mem- relief of the poor, 
 bers of parliament, justices of the (e) It may be observed that where- 
 peace, aldermen of London, clergy- ever by 43 Eliz. c. 2, powers are
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 153 
 
 [Their office and duty, according to the same statute, 
 were principally these :] first, to provide work for all per- 
 sons who had no means to maintain themselves, and used 
 no ordinary trade ; and, secondly, to raise competent sums 
 for the necessary relief of the lame, impotent, old, blind, and 
 such other persons as were poor and not able to work. [For 
 these joint purposes they were empowered to make and 
 levy rates upon the several inhabitants of the parish by the 
 same act of parliament, which has been farther explained 
 and enforced by several subsequent statutes.] 
 
 The act, it will be observed, involved two principles; 
 first, that every poor person should be either relieved, or 
 (what is equivalent) provided with work ; next, that this 
 should be done parochially, that is, out of funds to be 
 raised and applied by parish officers within the limits of 
 their respective parishes (/). It is to be understood, how- 
 ever, that the law did not allow paupers to resort for relief 
 indiscriminately to any parish they preferred ; for by certain 
 statutes of date anterior to the forty-third year of Eliza- 
 beth (g), persons unable or unwilling to work we're compel- 
 lable to remain in the particular parishes where they were 
 settled, that is, where they were born, or had made their 
 abode for three years, or (in case of vagabonds) for one 
 year only (h). And this was the origin of the law of set- 
 tlement, with which that of relief holds a close connection, 
 these being in fact the two main branches of which the 
 poor-law (as established by the act of Elizabeth) consists. 
 Still there was no regulation either prior to that act, or for 
 a long period afterwards, to prevent an able-bodied and 
 industrious pauper from resorting to any parish that he 
 pleased for employment. But soon after the Restoration 
 
 given in respect of the poor to jus- ships and subdivisions of parishes, 
 
 tices in counties, the same powers are vide 13 & 14 Car. 2, c. 12, s. 22. 
 
 by 12 & 13 Vict. c. 64, (amended by (g) 19 Hen. 7, c. 12 ; 1 Edvv. 6, c. 
 
 15 & 16 Vict. c. 38,) given to justices 3 ; 3 & 4 Edw. 6, c. 16 ; 14 Eliz. c. 
 
 in cities and boroughs. 5 ; see also 7 Jac. 1, c. 4, s. 8. 
 
 (/') As to extra-parochial town- (h) 1 Black. Com. 361.
 
 154 BK.IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 the more restrictive principle was introduced, of confining 
 to his existing place of settlement every person whatever 
 whose circumstances were such as to make it probable that 
 he would become a charge upon the public ; and new re- 
 gulations were devised for carrying that principle into full 
 effect. For by stat. 13 & 14 Car. II. c. 12, s. 1, it was 
 provided (in substance) that persons newly coming to settle 
 in any parish, and likely to become chargeable, might be 
 removed by the warrant of two justices of the peace, on 
 complaint of the parish officers, to the parish where they 
 were last legally settled (i). But that act also materially 
 altered the legal idea and definition of settlement, for it 
 abridged the period, at which a man becomes settled by 
 residence, to forty days (k) ; and as it subjected the poor to 
 removal from every place in which they were not settled, 
 it had the farther and indirect effect of attaching to the 
 condition of settlement the quality of a right, because that 
 condition gave an exemption from removal. This state 
 of the law led to unforeseen consequences. Persons who 
 were desirous (for any reason) of gaining a settlement-right 
 in particular parishes, were soon found to resort to the ex- 
 pedient of intruding into them furtively, with the view of 
 completing their forty days' residence before they should 
 be discovered (I). To prevent this, provision was after- 
 wards made that the forty days should be computed only 
 from the period when notice in writing of the party's new 
 abode should be given to the parish officers; such notice 
 being dispensed with only in cases where the residence 
 was attended with certain circumstances of notoriety, such 
 as entering into a yearly service, or an apprenticeship (m). 
 At a subsequent period, however, the principle of giving 
 notice was abandoned altogether (n) ; but the circumstances 
 
 (i) In R. v. Inhabitants of St. " was passed to prevent this." 
 James, in Bury St. Edmonds, 40 (k) 1 Bl. Com. 362 ; see Jac. 2, 
 
 East, 31, Bayley, J. says, " that be- c. 17, s. 3. 
 " fore the statute of Charles the (/) Ibid. 
 
 " second a settlement was gained by (m) Ibid. ; and 3 W. &M.c. 11. 
 
 " mere inhabitancy, and the statute (n) 35 Geo. 3, c. 101, s. 3.
 
 CHAP. II.— OF THE LAWS RELATING TO THE POOR. 155 
 
 of notoriety remained, and some of them still remain, (as 
 we shall in the course of this chapter explain more parti- 
 cularly,) indispensable accompaniments of the forty days' 
 residence, so that without them no settlement can he 
 gained. Other consequences in the mean time flowed 
 from the principle that settlement was in the nature of an 
 acquired right; for it became established by a series of ju- 
 dicial decisions, that (like other rights) it might be claimed 
 derivatively, that is, that the child was entitled to the 
 parent's settlement, and the wife to the husband's (o) ; and 
 this addition completes the outline of the settlement law 
 as it still exists, — subject, however, to one very important 
 alteration introduced in the reign of George the third (p), 
 viz. that a man coming to settle in a parish is no longer 
 liable to removal upon the mere 'probability of his becoming- 
 chargeable, but it is required that he should have actually 
 become chargeable by receiving or applying for relief; an 
 alteration (it may be observed) which reverts in some mea- 
 sure to the principle of the system as it stood anterior to 
 the statute of Charles the second. 
 
 The law as to relief was stationary to a much later 
 period, though it has latterly undergone fundamental alter- 
 ations of the greatest importance. Not only the collection 
 of the rate, but the relief of the poor, with all its attendant 
 management, was long left (conformably to the institution 
 of the statute of Elizabeth) to the overseers of the respec- 
 tive parishes. But these officers were found unequal to 
 the proper discharge of the latter duty. In modern times 
 
 (o) Fort. 313 ; 1 Nol. 274. coming actually chargeable ; and on 
 ( p) 35 Geo. 3, c. 110, s. 1. Even the other hand could not, during such 
 prior to this act, if a certificate were residence, acquire a settlement there 
 granted by the officers of one parish by any act of his own except by rent- 
 to the officers of another, that a par- ing a tenement, or executing an an- 
 ticular person was legally settled in nual office ; nor could his servant or 
 the former parish, he was entitled by apprentice. See 8 & 9 Will. 3, c. 30 ; 
 virtue of such certificate to go to re- 9 & 10 Will. 3, c. 11 ; 12 Ann. c. 18, 
 side in the latter, without being liable s. 2 ; 3 Geo. 2, c. 29, ss. 8, 9. 
 to removal, except in the event of be-
 
 156 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 at least, when, by the gradual increase of population and 
 of paupers, its services had become more onerous, they 
 were rarely performed to the satisfaction of the public ; 
 and various measures were from time to time devised by 
 the legislature for improvement of the practical system. 
 By the statute 22 Geo. III. c. 83 (commonly called Gil- 
 bert's Act) (q), parishes were authorized by consent of two- 
 third parts in number and value of the owners or occu- 
 piers, with the approbation of two justices of the peace, to 
 appoint guardians to act in lieu of overseers, in all matters 
 relative to the relief and management of the poor, and also 
 to enter into voluntary unions with each other for the more 
 convenient accommodation, maintenance and employment 
 of paupers. This was followed by the statute called " The 
 Select Vestry Act," or " Sturges Bourne's Act," 59 Geo. 
 III. c. 12 (r), by which the inhabitants of any parish in 
 vestry assembled were enabled to commit the management 
 of its poor to a committee of the parishioners appointed for 
 that purpose, and called a select vestry (s), to whose orders 
 the overseers are bound to conform. 
 
 But these new methods, though found to be beneficial, 
 were upon the whole not attended by results sufficiently 
 effective. Their introduction, too, not being made com- 
 pulsory by law, but left to the option of the inhabitants, 
 the conflict of opinions which generally attends all subjects 
 of political economy, or the dislike of change, or some in- 
 activity in the public mind, prevented their adoption in the 
 great majority of the parishes. 
 
 - In the meantime the evils resulting from the mismanage- 
 ment of the poor continued to increase. 
 
 The negligent and injudicious administration of the paro- 
 chial funds, which prevailed in various parts of the king- 
 
 (</) Henderson v. Sherborne, 2 M. Commissioners ; Archbold's Poor 
 
 & W. 239 ; R. v. Poor Law Com- Law Act, p. 46, («.) ; Report on 
 
 missioners, in re Wbitechapel Union, Local Taxation, p. 55. 
 
 6Ad.&E.49; and see Reports of the (s) See as to select vestries and 
 
 Poor Law Commissioners. vestries generally, supra, vol. i. pp. 
 
 (»•) See Reports of the Poor Law 116, 117.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 157 
 
 dom, had the effect of withdrawing from the impotent poor 
 part of the provision intended for them by law, and wasting 
 it on those who were able, but unwilling to work ; and this 
 led by natural consequence to the encouragement of idle- 
 ness, improvidence and vice among the lower classes of 
 society, and to a progressive and alarming increase in pau- 
 perism and in the amount payable for poor rates. 
 
 The case was aggravated by some inherent defects in 
 the existing system, which, while it remained unaltered in 
 principle, tended strongly to prevent its practical improve- 
 ment. 
 
 For the duty of executing the poor law being upon this 
 system left in every instance to the parish itself, which 
 stood in no subordination, and owed no deference, to any 
 external authority, reforms suggested from without seldom 
 met with much attention, and little benefit was derived 
 from any example of superior management exhibited in 
 other parts of the kingdom. The size of a very large pro- 
 portion of the parishes was also in general so limited, as 
 to expose them to great disadvantages, both as to the em- 
 ployment and maintenance of the poor ; the difficulty and 
 expense of which are both obviously reduced, when the 
 field of operation is wider, and provision can be made on 
 a larger scale. It was under such circumstances that par- 
 liament recommended, in the year 1833, the issuing of a 
 royal commission for inquiring into the state and adminis- 
 tration of the laws relating to the poor. The persons to 
 whom that task was confided exposed the evils of the 
 existing system with great ability and effect, and from the 
 views which they succeeded in impressing upon parliament, 
 emanated the important statute 4 & 5 Will. IV. c. 76 (t), 
 commonly denominated " The Poor Law Amendment Act." 
 
 (() The following are the statutes 2 & 3 Vict. c. 83 ; 2 & 3 Vict. c. 84 ; 
 
 which have been passed since the 3 & 4 Vict. c. 42 ; 5 & 6 Vict. c. 57 ; 
 
 4 & 5 Will. 4, c. 76, for the continu- 7 & 8 Vict. c. 101 ; 10 & 11 Vict. c. 
 
 ation and amendment of the system 109 ; 11 & 12 Vict. cc. 31, 82, 110, 
 
 thereby introduced : 5 & 6 Will. 4, 111 ; 12 & 13 Vict. cc. 13, 103 ; 13 
 
 c. 69; 6 & 7 Will. 4, c. 107 ; 7 Will. & 14 Vict. cc. 11, 101; 14 & 15 
 
 & 1 Vict. c. 50 ; 1 & 2 Vict c. 25 ; Vict. c. 105 ; 15 & 16 Vict. cc. 14, 59.
 
 158 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 By this statute the administration of the parochial funds, 
 and the management of the poor throughout the country, 
 were placed for a period of five years under the superin- 
 tendence and control of a central board, called " The Poor 
 Law Commissioners," who had power to make such regu- 
 lations as they thought proper, for guidance of the paro- 
 chial authorities, (whether consisting of guardians, select 
 vestries, or overseers,) in all matters of that description, 
 and who were aided in their operations by a certain number 
 of assistant commissioners (u). This commission was sub- 
 sequently extended to the year 1847, and was then super- 
 seded. But in lieu thereof a new board of commissioners 
 was established (for five years) by 10 & 11 Vict. c. 109, 
 under the style of " Commissioners for administering the 
 Laws for the Relief of the Poor in England ;" to consist of 
 the lord president of the council, the lord privy seal, the 
 principal secretary of state for the home department, and 
 the chancellor of the exchequer for the time being, in 
 virtue of their offices, and of such other persons as her 
 Majesty by letters-patent or commission shall appoint, and 
 to this board (which has since received the appellation of 
 the " Poor Law Board "(u), and been continued for a far- 
 ther period (w),) all the powers and duties of the former 
 poor law commissioners are transferred (x). The person 
 first named in such letters-patent or commission is " pre- 
 sident" (y); and all general rules (a term which, for the pur- 
 poses of this act, is declared to extend to all rules directed 
 to affect more than one union (z) ) promulgated by this 
 commission, must be under the seal of the body, and under 
 
 (»/) As to the appointment of the ( v) The president and two secre- 
 
 poor law commissioners, Src. see also laries appointed by the commission- 
 
 1 & 2 Vict. c. 56, s. 119 ; 5 &r 6 Vict. ers receive remuneration for their 
 
 c. 57, s. 2. services. The office of president is 
 
 (v) 12 & 13 Vict. c. 103, s. 21. declared not to be one inconsistent 
 
 (w) By 15 & 16 Vict. c. 59, the with a seat in the House of Corn- 
 board is continued to 23 July, 1854, mons ; but only one of the secretaries 
 and thenceforth to the end of the may sit and vote there at the same 
 then next session of parliament. time ; 10 & 11 Vict. c. 109, ss. 8, 9. 
 
 (x) 10 & 11 Vict. c. 109, s. 10. (:) 10 & 11 Vict. c. 109, s. 15.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 159 
 
 the hands of a quorum, of whom the president must be 
 one; and any such rule may be disallowed by her Majesty 
 in council («). They are, moreover, directed once in every 
 year to submit to both houses of parliament a general re- 
 port of their proceedings (b). By the Poor Law Amendment 
 Act of 1834, in connection with the new act of 10 & 1 1 Vict., 
 which we have just noticed, the commissioners are em- 
 powered, where they think it desirable, to direct that the 
 relief of the poor in any parish shall be administered by a 
 board of guardians, to be elected by the owners of property 
 and rate-payers in such parish (c), in such manner as in the 
 acts particularized. And they are directed to appoint a 
 certain number of inspectors, for the purpose of exercis- 
 ing a visitorial power over workhouses (d), and of being 
 present at meetings of guardians, or other local meetings 
 held for the relief of the poor(e). They are also entrusted 
 by the legislature with the important power of consoli- 
 dating at their own discretion, so far as the relief and 
 management of the poor is concerned, several parishes into 
 one united body, or union, under the government of a 
 single board of guardians (/), to be elected by the owners 
 
 («) 10 & 11 Vict. c. 109, s.l 7. As 
 to the removal of rules or orders of 
 the commissioners by certiorari into 
 the Court of Queen's Bench, see 11 
 & 12 Vict. c. 110, s. 4; 12 & 13 Vict, 
 c. 103, s. 13. 
 
 (/>) Ibid. s. 13. 
 
 (<•) 4 & 5 Will. 4, c. 76, ss. 39, 40 ; 
 Robinson v. Todmorden Union (in 
 error), 3 Ad. & L. N. S. 675. 
 
 (d) By 12 & 13 Vict. c. 13, the 
 superintendence of the Poor Law 
 Board, and their power of visitation, 
 appointing inspectors, regulations, 
 &c, is extended to the case of poor 
 persons lodged and maintained by 
 contract in establishments not lu- 
 natic asylums or workhouses of any 
 union or parish, or under the effec- 
 
 tive control of any parochial or other 
 local authorities. 
 
 (e) 10 & 11 Vict. c. 109, ss. 19, 20. 
 
 (/) 4 & 5 Will. 4, c. 76, s. 38. By 
 7 & 8 Vict. c. 101, s. 24, county jus- 
 tices residing in a union or parish 
 are to be guardians ex officio. By 12 
 & 13 Vict. c. 103, s. 19, the chair- 
 man at any meeting of the board of 
 guardians is to have a casting vote. 
 By the acts as to marriage and re- 
 gistration, 6 & 7 Will. 4, cc. 85, 86, 
 and 7 Will. 4 & 1 Vict. c. 22 ; the 
 Metropolitan Police Act, 2 & 3 Vict. 
 c. 71, s. 41 ; the act for protection of 
 apprentices and servants, 14 & 1 5 
 Vict. c. 11; and the County Rate 
 Act, 15 & 16 Vict. c. 81, the guar- 
 dians are now intrusted with various
 
 160 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 and rate-payers of the component parishes (i) ; and the 
 united parishes are to have a common workhouse provided 
 and maintained at their common expense (k), though each 
 is to remain separately chargeable with the expense of 
 its own poor, whether relieved in or out of such work- 
 house (I). The principle of consolidation may indeed be 
 carried farther, if such a measure shall appear expedient to 
 those who represent the different parochial interests ; for 
 by consent of the guardians in any union, whether formed 
 under the act, or previously existing, the component parishes 
 may (under sanction of the commissioners) be united for 
 the purposes of settlement and of rating, as well as that of 
 relief and management (m). On the other hand, however, 
 it is provided that no union shall in future take place under 
 Gilbert's Act without the previous consent of the commis- 
 sioners (n). 
 
 This short historical review of the principles on which 
 the poor law is founded seemed a proper preliminary to the 
 consideration of the present practical system, which may be 
 compendiously explained as follows. 
 
 According to the present law, a settlement is acquired 
 by the following methods. 1. By birth. For wherever a 
 child is first known to be, that is always prima facie, and 
 until some other can be shown, the place of its settlement. 
 But if its parents can be proved to have acquired a settle- 
 other duties in addition to those con- situate; ibid. s. 58, as to running 
 nected with the administration of the away from workhouses, &c. 
 poor law. (/) 4 & 5 Will. 4, c. 76, s. 26. See 
 
 (i) As to their election, see 7 & 2 & 3 Vict. c. 84, as to the manner 
 8 Vict. c. 101, ss. 14 — 21; 14 & 15 of recovering from eacli of the united 
 Vict. c. 105, ss. 2, 3. parishes its contribution; and 11 & 
 
 (k) 4 & 5 Will. 4, c.76, ss. 26, 28. 12 Vict. c. 110 (post, p. 170), as to 
 See 5 & 6 Will. 4, c. 69 ; 7 Will. 4 & the cases in which, by exception 
 1 Vict. c. 50 ; 7 & 8 Vict. c. 101, s. from the general rule, the expense 
 73, as to the conveyance of work- is thrown not on the individual pa- 
 houses and other property of parishes rish, but on the common fund of the 
 and unions; 7 & 8 Vict. c. 101, s. 56, union. 
 
 as to the parish where the workhouse (m) 4 & 5 Will. 4, c. 76, ss. 33, 34. 
 
 shall for certain purposes be deemed (n) Sect. 37.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 161 
 
 ment, cither by birth or otherwise, in another parish, then 
 the •prima facie settlement of the child will be superseded 
 by a derivative one, viz. the settlement by parentage, of 
 which we are about to speak next(o). 2. By parentage. 
 For all legitimate children take the last settlement of the 
 father, and after his death, of the mother, till they are 
 emancipated from parental authority by marriage, or by- 
 attaining the age of twenty-one and living permanently 
 separate from the parent, or contracting some relation in- 
 consistent with domestic subjection (p); and when eman- 
 cipated they retain the parental settlement last acquired 
 before that event took place. A bastard child, on the 
 other hand (having in the eye of the law no parent), was 
 formerly held incompetent to claim a derivative settle- 
 ment. By a provision (q), however, in the Poor Law 
 Amendment Act, an illegitimate child born since the act 
 passed, is now to follow the settlement of his mother, until 
 he attains the age of sixteen, or gains another for him- 
 self (r). But besides those of birth or parentage, there are 
 also settlements acquired by the party's own act. For a 
 female gains a derivative settlement : 3. By marriage,!, e. 
 she may claim the settlement which belongs to her hus- 
 band, and she retains that settlement after his death. If 
 the man has no settlement (being born abroad and having 
 acquired none), or his settlement is unknown, she retains 
 that which belonged to her before marriage. But she can- 
 not in any case acquire one in her own right during the 
 marriage. A settlement may also be acquired, 4. By rent- 
 ing a tenement (s), coupled with residence in the same parish 
 
 (o) R. v. Inhabitants of St. Mary, (q) 4 & 5 Will. 4, c. 76. s. 71; 
 
 Leicester, 3 Ad. & El. 644 ; R. v. vide R. v. Walthamstow, ubi sup. ; 
 
 Walthamstow, 6 Ad. & El. 301. R. v. Wendron, 7 A. & E. 819. 
 
 (p) R. v. Witton cum Twan- (r) R. v. St. Mary, Newingtou, 4 
 
 brookes, 3 T. R. 355; R. v. Inha- Q. B. 581. 
 
 bitants of Sowerby, 2 East, 276 ; R. (s) R. v. Inhabitants of Snape, 6 A. 
 v. Inhabitants of Everton, 1 East, & E. 278 ; R.v. Inhabitants of Berks- 
 526 ; Queen v. Inhabitants of Lille- well, 6 A. & E. 282 ; R. v. Henley- 
 shall, 7 Q. B. 159 ; Queen v. Inha- upon-Thames, ibid. 294; R. v. Inha- 
 bitants of Scammonden, 8 Q. B. 349. bitants of Hockworthy, 7 A. & E. 492. 
 VOL. III. .'. M
 
 162 BK. IV. OF PUBLIC BIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 for forty days. For this purpose, however, it is requisite 
 that the party should have bona fide rented a tenement, 
 consisting - of a separate or distinct dwelling-house or build- 
 ing, or of land, or of both, for the sum of 10Z. a-yearatthe 
 least for the term of one whole year ; and that he should 
 have occupied the same under such hiring, and actually 
 paid the rent to the amount of 10/. for the term of one 
 whole year at the least ; and that for the same period he 
 should have been assessed to and paid the poor rate in 
 respect thereof (t). 5. A settlement may also be gained 
 by being bound apprentice (u), under indenture or other 
 deed, and inhabiting for forty days under such binding 
 either in the same parish where the service takes place, 
 or a different one. But no settlement can be acquired by 
 being apprenticed in the sea service, or to a householder 
 exercising the trade of the seas, as a fisherman or other- 
 wise (x). The deed must in all cases be executed by the 
 apprentice, except in the case of parish apprentices {y). 
 6. A settlement is gained (of a temporary kind) in any 
 parish by having an estate of one's own (z) there, of what- 
 ever value, and whether the interest be legal or equitable (a). 
 This particular species of settlement is founded on the prin- 
 ciple of the common law, that a man shall not be removed 
 
 (t) 6 Geo. 4, c. 57, s. 2 ; 1 Will. 4, 
 c. 18, s. 1 ; 4 & 5 Will. 4, c. 76, s. 66 ; 
 R. v. Inhabitants of Hertsmonceaux, 
 7 Barn. & Cress. 551 ; R. v. Parish 
 of Stow, 4 Barn. & Cress. 87; R. v. 
 Inhabitants of Kibworth Harcourt, 
 7 Barn. & Cress. 790 ; R. v. Inha- 
 bitants of Great and Little Usworth, 
 5 Ad. & E. 261. 
 
 (it) As to what is a hiring as ap- 
 prentice, R. v. Inhabitants of Billing- 
 hay, 5 A. & E. 676. As to service by 
 apprenticeship, R. v. Inhabitants of 
 Sandhurst, 6 A. & E. 130 ; R. v. In- 
 habitants of Closworth, ibid. 286 ; 
 R. v. Inhabitants of Exminster, ibid. 
 598. As to fraudulent apprentice- 
 
 ship, R. v. Inhabitants of Barmston, 
 7 A. & E. 858. 
 
 (i) 4 & 5 Will. 4, c. 76, s. 67 ; R. 
 v. Inhabitants of Maidstone, 5 A. & 
 E. 326. By 7 & 8 Vict. c. 112, s. 32, 
 it is enacted that parish boys may be 
 put out apprentices in the sea ser- 
 vice with their own consent. 
 
 (y) R. v. Inhabitants of Arnesby, 
 3 Barn. & Aid. 584 ; R. v. inhabit- 
 ants of Cromford, 8 East, 25. 
 
 (s) As to settlement by estate, R. 
 v. Inhabitants of Ardleigh, 7 A. & 
 E. 70 ; R. v. Inhabitants of Knares- 
 borough, 20 L. J. (M. C), 147. 
 
 (a) R. v. Inhabitants of Belford, 
 10 B. & C. 54.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 163 
 
 from his own property (b). It is provided, however, that 
 no person shall retain a settlement gained by virtue of any 
 estate or interest in a parish for any longer time than he 
 shall inhabit within ten miles thereof (c); and in case he 
 shall cease to inhabit within that distance, and shall after- 
 wards become chargeable, he shall be liable to be removed 
 to the parish in which he was settled previously to such 
 inhabitancy, or if he have gained a settlement in some 
 other parish since the inhabitancy, then to such other pa- 
 rish (d). 7. Lastly, a settlement may be gained by being 
 charged to and "paying the public taxes, and levies of the 
 parish (e), excepting those for scavengers and highways, 
 and the duties on houses. But it is provided by the 35 Geo. 
 III. c. 101, s. 4, that no person shall gain a settlement on 
 this ground in respect of any tenement or tenements not 
 being of the yearly value of 10/.; and by 6 Geo. IV. c. 57, 
 that a settlement shall not be acquired by paying parochial 
 rates for any tenement (not being the person's own pro- 
 perty), unless it consists of a separate and distinct dwel- 
 ling-house or building, or land, or both, bond fide rented 
 by him for 10/. a year at the least for a whole year, and be 
 occupied under such hiring for a year at least. This title 
 to a settlement is therefore nearly merged in that of renting 
 a tenement {f). 
 
 Such are the modes in which a settlement may now be 
 acquired, and in which it has been capable of being ac- 
 quired, since the 14th August, 1834, the date of the passing 
 of the Poor Law Amendment Act; by which statute, some 
 material alterations were made in this branch of the law. 
 As questions however may still, for some time to come, 
 arise with respect to settlements gained under the law as 
 it stood immediately before those alterations, it may be 
 desirable to observe, that before the 14th August, 1834, a 
 
 (b) 2 Nolan, 58. R. v. Hendon, 2 Q. B. 455. 
 
 (c) As to the mode of calculating (e) R. v. Stoke Damerel, 6 A. & E. 
 this distance, see Queen v. Inhabit- 308. See 1 & 2 Will. 4, c. 42, s. 5. 
 ants of Saffron Walden, 9 Q. B. 76. (/) Arch. P. L. Act, Introduction, 
 
 (d) 4 & 5 Will. 4, c. 76, s. 68 ; see p. 3. 
 
 M. 2
 
 164 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 settlement might be gained by forty days residence, accom- 
 panied with other circumstances of notoriety in addition to 
 those which have been above enumerated, viz. 1. By hiring 
 and service (g) ; which was where a person, being unmar- 
 ried and childless, was hired for a year, and served a year 
 in the same service, 2. By executing any public annual 
 office or charge within the parish for one whole year. We 
 may also notice that the settlement by renting a tenement 
 was at that period capable of being acquired without pay- 
 ment of the poor rate, or being assessed to the same. 
 
 On this part of our subject we shall only add, that when 
 by any of the modes above enumerated a person has 
 gained a settlement in any parish, he is considered as 
 settled there until he acquires a new one in some other 
 place ; but the latter acquisition supersedes the earlier (h). 
 
 All those who in any parish stand in need of relief, and 
 apply for it, are entitled to be relieved there, or, as it is 
 commonly expressed, are chargeable to that parish (i). If 
 settled there, they constitute its settled poor. If not settled 
 there, they are termed its casual poor(j). 
 
 (g) As to hiring and service, see Vict. c. 66 (cited post, p. 169), from 
 
 R. v. Cowpen, 5 Ad. & E. 333 ; R. removal, shall, if such parish be com- 
 
 v. Rettendon, 6 Ad. & E. 296 ; R. prised within any union, be charged 
 
 v. Pilkington, 5 Q. B. 662. to the common fund of such union. 
 
 (h) As to the effect of a union of We may remark here that there 
 
 two parishes upon the settled poor are several other instances in which 
 
 of each before such union, see Queen charges under the poor law are in- 
 
 v. Inhabitants of St. Martin, New cumbent on the common fund of the 
 
 Sarum, 9 Q. B. 211. union, as in the case of the relief of 
 
 (i) This is the general principle. " a destitute wayfarer or wanderer, 
 
 But where the parish is comprised or foundling" (11 & 12 Vict. c. 110, 
 
 in any union, there are cases in ss. 1, 10; 12 & 13 Vict, c, 103, s. 2), 
 
 which the charge falls not on the or the procurement of burial grounds 
 
 individual parish but on the common for paupers in the workhouse (13 & 
 
 fund of the union. For by 11 & 12 14 Vict. c. 101, s. 2), or the annual 
 
 Vict. c. 110, s. 3, and 12 & 13 Vict. subscription to hospitals (14 & 15 
 
 c. 103, s. 5, (continued by 13 & 14 Vict. c. 105, s. 4). 
 Vict. c. 101; 14 & 15 Vict. c. 105; (j) See 33 Geo. 3, c. 35, s. 3 ; R. 
 
 and 15 & 16 Vict. c. 14,) all the v. St. Pancras, 7 A. & E. 750 ; see 7 
 
 costs of the relief of any poor person & 8 Vict. c. 101, s. 26, as to the relief 
 
 not settled in the parish where he of widows in certain cases residing 
 
 resides, but exempted, by 9 & 10 out of their places of settlement.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 165 
 
 The parish, however, will be immediately exonerated from 
 the burthen, if the pauper has any relation competent, and 
 by law compellable, to maintain him. The relations who 
 are so compellable are the father and grandfather, mother 
 and grandmother, or children of the pauper (k). They are 
 liable to maintain him at such rate as shall be assessed by 
 an order of the justices at their general, quarter or petty 
 sessions (/) : and on refusal to obey such order, the sums 
 so assessed are recoverable (with penalties) by a summary 
 proceeding before two justices of the peace, and may be 
 levied by distress and sale of the goods and chattels of the 
 offender ; in default of which he may be committed to 
 prison (in). To secure the performance of this duty it is 
 moreover provided by 5 Geo. I. c. 8, that where persons 
 run away from their place of abode, leaving their wives or 
 children chargeable to a parish, their goods, or the annual 
 profits of their lands, may be seized under the warrant or 
 order of two justices, and (if such warrant or order be 
 confirmed by the sessions) may be applied towards the 
 discharge of the parish, and the maintenance of the wife 
 and children. It is also enacted by 5 Geo. IV. c. 83, that 
 persons able wholly or in part to maintain themselves or 
 families by work or other means, and refusing or neglecting 
 to do so, whereby they become chargeable to a parish, shall 
 be deemed idle and disorderly persons; and may be punished 
 by a single justice, on oath of one witness, by imprisonment 
 in the house of correction with hard labour, for any time not 
 exceeding one calendar month. And by the same statute, 
 the desertion of a family is still more severely penal ; for 
 persons running away and leaving their wives or children 
 chargeable are deemed rogues and vagabonds, and incur by 
 
 (h) 43 Ehz. c. 2, s. 7. shall be considered as given to the r 
 
 (/) 59 Geo. 3, c. 12, s. 26. parent; and every person is to main- 
 
 (m) 4 & 5 Will. 4, c. 76, ss. 78, tain his wife's children before mar- 
 
 99; 11 & 12 Vict. c. 110, s. 8. By riage, until sixteen or the death of 
 
 sections 56 and 57 of the former the mother. Vide sup. vol. ii. p. 
 
 statute, relief given to a child under 283. 
 
 sixteen (not blind or deaf and dumb),
 
 166 IiK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 the same act the like imprisonment for any time not ex- 
 ceeding three calendar months (o). 
 
 If there are no relations to whom recourse can be had, 
 the settled poor are then to be relieved by the parish, so 
 long as their necessity continues ; but if paupers who are 
 able to work refuse to do so, they may be committed to 
 the common gaol or house of correction (p). 
 
 With respect to the casual poor, they may in general be 
 removed in the manner to be presently described ; and they 
 are entitled to relief only till such removal can be effected. 
 All such as were born in Scotland or Ireland, the Isle of 
 Man, Scilly, Jersey or Guernsey, and not settled in Eng- 
 land, may, upon complaint of any guardian, relieving officer 
 or overseer, be removed at the expense of the union or 
 parish (q) to the place of their birth, with their families, 
 (that is, with their wives and children, or such of them as 
 are chargeable and have yet acquired no settlement in their 
 own right,) by virtue of a warrant under the hands and seals 
 of two justices of the peace (r). Those who have a known 
 place of settlement in England (wherever born) may also 
 be removed to it with their families under an order (or 
 
 (o) As to the expense of prosecu- 
 tions in offences of this nature, see 
 
 7 & 8 Vict. c. 101, s. 69. By 12 & 
 13 Vict. c. 103, s. 3, the chargeability 
 to the common fund of a union shall 
 have the same effect, so far as re- 
 gards such offences, as chargeability 
 to a parish. 
 
 ( p) 43 Eliz. c. 2, s. 4 ; 55 Geo. 3, 
 c. 137 ; 7 & 8 Vict. c. 101, ss. 57, 58. 
 
 (?) The expenses in the case of a 
 parish not in union, and not con- 
 taining more than 30,000 persons, 
 are payable out of the county rate, 
 
 8 & 9 Vict. c. 117, s. 5. 
 
 (r) 17 Geo. 2, c. 5 ; 59 Geo. 3, 
 c. 12 ; 5 Geo. 4, c. 83 ; 8 & 9 Vict. 
 c. 1 17 (repealing 1 1 Geo. 4 & 1 Will. 4, 
 c. 5 ; 3 & 4 Will. 4, c. 40 ; 7 Will. 4 
 
 6 1 Vict. c. 10 ; 3 & 4 Vict. c. 27 ; 
 
 7 & 8 Vict. c. 42). And see the 
 following cases under the old law : 
 R. v. Whitehaven, 5 B. & Aid. 720 ; 
 R. v. Great Clacton, 3 B. & Aid. 
 410 ; R. v. Leeds, 4 B. & Aid. 498 ; 
 R. v. Heaton Norris, 7 B. & C. 619 ; 
 R. v. Benett, 2 B. & Adol. 712; 
 R. v. Preston, 12 Ad. & E. 822. By 
 
 8 & 9 Vict. c. 117, s. 4, the justices 
 of the peace of every county are di- 
 rected to make regulations for car- 
 rying out the provisions of that act, 
 and particularly (as respects Irish 
 and Scotch paupers) to provide that, 
 as far as may be, they shall be landed 
 at that port, among those mentioned 
 in the schedule to the act, which is 
 nearest to their native place.
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 1 G7 
 
 warrant) of removal (s). This order is to be obtained from 
 two justices of the peace, upon complaint of the churchwar- 
 dens or overseers of the parish to which they have become 
 chargeable (t). It is usually founded on an examination of 
 the pauper as to the place of his last settlement ; and notice 
 in writing of such order, accompanied by a statement in 
 writing of the ground of the removal, must be sent, by the 
 guardians or overseers, to the overseers of the parish to 
 whom it is directed (u). If that parish submits to the 
 order, or does not give notice of appeal from it within 
 twenty-one days, the pauper is to be removed accordingly ; 
 but if such notice is given within that period, he shall be 
 kept in the original parish until the same (if duly prose- 
 cuted) shall be determined (a-)- The appeal is to the quarter 
 sessions for the county, division, or riding, where the parish 
 is situated from which the removal is directed to take place. 
 If that court think fit, it may order the parish against 
 which the appeal shall be decided to pay costs to the other, 
 to such amount as the court shall certify, and as may ap- 
 pear just and reasonable (y) ; and where the respondents 
 succeed they are entitled to the costs of the relief and main- 
 tenance of the pauper from the time they gave the notice 
 of the order of removal (z). In the event of some point of 
 law arising upon which the justices feel themselves unable 
 to decide, they have the power of making their order or 
 
 (s) As to the procedure in respect 101, s. 69, and 11 & 12 Vict c. 110, 
 
 of orders of removal, see 11 & 12 s. 11, the certificate of the board of 
 
 Vict. c. 31. As to the delivery of guardians as to the chargeability of 
 
 the pauper thereunder, 9 & 10 Vict. a pauper shall be sufficient evidence 
 
 c. 66, s. 7 ; 14 & 15 Vict. c. 105, s. thereof. 
 
 13. As to unlawfully procuring a (it) 4 & 5 Will. 4, c. 76, s. 79 ; 11 
 
 removal, 9 & 10 Vict. c. 66, s. 6; 12 & 12 Vict. c. 31, ss. 2, 3, 4. 
 
 & 13 Vict. c. 103, s. 3. See the more (i) 4 & 5 Will. 4, c. 76, ss. 79, SO, 
 
 modern cases relating to orders of 81, 83; R. i>. Kent (Justices), 6 B. 
 
 removal and appeals thereupon col- & C. 639. 
 
 lected in 12 Q. B. pp. 1-216. (y) 4 & 5 Will. 4, c. 76, s. 82 ; 12 
 
 («) 13 & 14 Car. 2, c. 12, s. 1. & 13 Vict. c. 45, ss. 4, 5. 
 
 Dickenson's Quarter Sessions, by (:) 4 & 5 Will. 4, c. 76, s. 84. 
 Talfourd, p. 71 1. By 7 & 8 Vict. c.
 
 168 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 decision in the appeal, subject to a special case ; that is, to 
 connect it with a statement of the facts proved before them, 
 that the opinion of the Court of Queen's Bench may be 
 taken upon the point of law (ft). The latter court then 
 issues a writ of certiorari (c), to remove the proceedings to 
 its own jurisdiction, which, being delivered to the clerk of 
 the peace for the county, is returned by him together with 
 the order of sessions and the special case. The matter of 
 law is then argued before the Court of Queen's Bench, 
 which delivers its opinion, and affirms or quashes the order, 
 as it may be found to be correct or otherwise. If there is 
 no known place of settlement in England, and if the pauper 
 was not born in any part of the united kingdom to which 
 he can be removed from England, under the provisions in 
 that behalf before mentioned, then (as the law authorizes 
 no removal except in the cases thus specially provided for) 
 he must remain of necessity in the parish where he is 
 chargeable, and he may claim relief there so long as he 
 continues to be in want, upon the same footing with its 
 settled poor, unless some place of settlement be afterwards 
 discovered. 
 
 There are also some particular cases in which the re- 
 moval even of a pauper settled in England, or born in such 
 part of the united kingdom as above referred to, is illegal. 
 For the wife of a person without a settlement cannot be 
 removed to her place of maiden settlement, so as to separate 
 her from her husband, unless by mutual consent (d), nor 
 can a child be taken away from its mother during its nur- 
 
 (b) A special case may now be decision of the court of quarter ses- 
 stated, by consent of parties and or- sions is final, and not subject to be 
 der of a judge of the superior court, reviewed on certiorari, see 12 & 13 
 immediately after notice of appeal, Vict. c. 45, s. 9. As to amendment 
 and without any resort to the court after certiorari, ibid. s. 7. As to the 
 of quarter sessions, 12 & 13 Vict. c. practice on certiorari, R. v. Abergele, 
 45, s. 11. The matter may also be 5 Ad. & E. 795. 
 
 referred to arbitration, ibid. ss. 12 (d ) R. v. Eltham, 5 East, 113 ; R. 
 
 — 15. v. St. Mary, Beverley, 1 B. & Ad. 
 
 (c) As to the cases in which the 201.
 
 CHAP. II. OF THE LAWS RELATING TO THE POOR. 1 GO 
 
 ture (that is, until the age of seven years), whether it be 
 legitimate or a bastard (c). So if the pauper is unable to 
 travel by reason of sickness or infirmity, or cannot travel 
 without danger, the justices making the order or warrant 
 are required to suspend the execution of the same, until 
 they are satisfied that it may be safely executed (d) ; and 
 it is provided that such suspension shall extend to any 
 other of the pauper's family who shall be mentioned in 
 such order or warrant (e). With respect also to persons 
 who are in custody for felony, misdemeanor, debt, or 
 lunacy, they cannot be removed under the poor laws from 
 the parish where they happen to be confined ( f). And by 
 a recent statute (9 & 10 Vict. c. 66, amended by 11 & 12 
 Vict. c. Ill), introducing great alterations of the law on 
 the subject of removal, it is provided that no person can 
 be removed from a parish in which he has resided for five 
 years next before the application for a warrant for his re- 
 moval {g), nor for becoming chargeable in respect of relief 
 made necessary by sickness or accident, unless the justices 
 granting the warrant shall state therein that they are satis- 
 fied that the sickness or accident will produce permanent 
 disability, nor (being a woman residing with her husband 
 at the time of his death) till twelve calendar months after 
 
 (c) Cald. 6 ; R. v. Birmingham, 5 
 Q. B. 210. 
 
 (d) 35 Geo. 3, c. 101, s. 2 ; 49 
 Geo. 3, c. 124. 
 
 (e) 49 Geo. 3, c. 124. 
 
 (/) As to the relief of persons in 
 prison, vide 19 Car. 2, c. 4; 23 Geo. 
 3, c. 23, s. 2; 52 Geo. 3, c. 160; 
 58 Geo. 3, c. 113; 9 Geo. 4, c. 40; 
 R. v. Overseers of Holbech, 20 L. J. 
 (M. C), 107. 
 
 (g) See R. v. Harrow-on-the-IIill, 
 12 Jur. 518. It is to be observed 
 that time passed in prison or in mili- 
 tary or naval service under her Ma- 
 jesty, or as an in-pensionerin Green- 
 wich or Chelsea hospitals, or in con- 
 
 finement in lunatic asylums, or as a 
 patient in a hospital, or during which 
 relief (except bom\ fide charitable 
 gifts) from any parish shall be re- 
 ceived, is to be excluded from the 
 computation of the five years ; and 
 the removal of a pauper lunatic to a 
 lunatic asylum, under the provisions 
 of any acts on that subject, is not to 
 be deemed a removal within the 
 meaning of this act, 9 & 10 Vict c. 
 66, s. 1. See Queen v. Overseers of 
 Wigton, 20 L.J. (M.C.), 110. As to 
 interruption of the residence, see 
 Queen v. Caldecote, 20 L. J. (M. C), 
 187; 12 & 13 Vict. c. 103, s. 4.
 
 170 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 his death (7), if she shall so long continue a widow. And 
 it is farther enacted, that no child under the age of sixteen, 
 whether legitimate or illegitimate, residing in any parish 
 with his or her father or mother, stepfather or stepmother, 
 or reputed father, shall be removed in any case where such 
 his parent or reputed parent, stepfather, or stepmother, may 
 not lawfully be removed ; but that no person exempted by 
 this act from liability to removal shall, by reason of such 
 exemption, acquire any settlement in any parish. 
 
 The duty of relief, where the parish is under the govern- 
 ment of guardians or a select vestry, belongs to those au- 
 thorities, according to the provisions of the acts under which 
 they have been respectively appointed, and subject to the 
 rules of the poor law board (m). Where there are no such 
 authorities it belongs (subject to the same rules) to the 
 overseers ; or, where there is a local act of parliament on 
 the subject, to the authorities by such act established (n). 
 
 In all cases, however, of sudden and urgent necessity 
 arising in a parish under the government of guardians or 
 a select vestry, any overseer is empowered and required by 
 law, whether the applicant for relief is settled in the parish 
 or not, to give such temporary relief as the case may re- 
 quire; which he is directed to do, in articles of absolute 
 necessity, but not in money ; and if the overseer refuses to 
 give -such necessary relief, and the pauper is not settled or 
 usually resident in the parish to which the overseer belongs, 
 any justice of the peace may direct it to be given by an 
 order under his hand or seal, and the overseer disobeying 
 
 (/) See as to this, Queen v. In- parties to the poor law board, 
 
 habitants of St. Marylebone, 20 L. J. («) Where there is a local act, the 
 
 (M. C), 173. poor law board has nevertheless a 
 
 (wi) As to the expense of the relief, power of regulation and superinten- 
 
 as between the individual parish and dence; but cannot abolish the local 
 
 the union of which it forms a com- board; Ninth Annual Report of Poor 
 
 ponent part, vide sup. p. 164. By Law Commissioners, 1843, pp. 18, 
 
 11 & 12 Vict. c. 110, any question as 19. For provisions as to parishes 
 
 to the expense of relief between any under local acts, see also 7 & 8 Vict, 
 
 parishes in a union, or between the c. 101, ss. 64, 65; 11 & 12 Vict. c. 
 
 guardians and any of the parishes 91, s. 12. 
 therein, may be submitted by the
 
 CHAP. II. — OF THE LAWS RELATING TO THE POOR. 171 
 
 such order incurs a penalty of not exceeding 5/. (o) What- 
 ever be the settlement or residence of the pauper, any jus- 
 tice of the peace is also empowered, in a parish similarly 
 circumstanced, to order medical relief in all cases of sudden 
 and dangerous illness, the overseer being subject to the 
 same penalty as in the former case of disobedience (p). 
 And in unions formed under the Poor Law Amendment Act 
 any two justices of the peace usually acting for the district 
 may, at their discretion, order any adult person, who is 
 entitled to relief, and unable to work, to be relieved, if he 
 desires it, without residing in the workhouse (q). It is pro- 
 vided however that one of the justices shall certify in such 
 order, of his own knowledge, that the person is unable to 
 work. 
 
 These powers of overseers and magistrates to afford 
 relief in particular cases apply (it will be observed) only 
 to parishes under the management of guardians or a select 
 vestry (r). In parishes not so circumstanced, their autho- 
 rity in this matter is not specific but general. The duty of 
 administering relief belongs universally, and (in the first 
 instance) exclusively to the overseer. But if he refuses it 
 in any case in which it is reasonably claimed, it may be 
 granted by order of any justice of the peace residing in 
 the parish, or (if there be none resident) in the parish next 
 adjoining, or by order of the justices in their respective 
 quarter sessions ; and if the overseer disobeys such order 
 he may be indicted (s). 
 
 The duty of making and levying (t) the poor-rate, or 
 parochial fund out of which the relief is to be afforded, 
 still belongs (as before the late change in the law of relief) 
 to the churchwardens and overseers ; and the concurrence 
 of the inhabitants is not necessary (?<). But for the better 
 
 (o) 4 & 5 Will. 4, c. 76, s. 54. Geo. 1, c. 7, s. 1. 
 
 (p) Ibid. (t) As to the distress for poor rate, 
 
 (</) Ibid. s. 27. As to out-door 43 Eliz. c. 2, ss. 12, 13 ; 12 & 13 
 
 relief, see 11 & 12 Vict. c. 91, s. 12. Vict. c. 14. 
 
 (r) 4 & 5 Will. 4, c. 76, s. 54. (it) 43 Eliz. c. 2, s. 1 ; 7 & 8 Vict, 
 
 (s) 3 W. & M. c. 11, s. 11 ; 9 c. 101, s. 63.
 
 172 BK. IV. OF PUBLIC RIGHTS.— PT. IIT. SOCIAL ECONOMY. 
 
 execution of these duties, the recent acts relating to the 
 amendment of the poor law authorize the appointment of 
 collectors and assistant overseers (.r). The rate is raised 
 prospectively ( y) for some given portion of the year, and 
 upon a scale adapted to the probable exigencies of the 
 parish (z) ; and the act of Elizabeth directs that it should 
 be raised by " taxation of every inhabitant, parson, vicar, 
 " and other, and of every occupier of lands, houses, tithes 
 " impropriate, propriations of tithes, coal mines, or sale- 
 able underwoods" in the parish (a). As an occupier (b) 
 a man is rateable for all lands (c) which he occupies in the 
 parish whether he is resident or not (d) ; but the tenant 
 (and not the landlord) is considered as the occupier within 
 this statute (e). As an inhabitant (/) a man was formerly 
 
 (i) See 2 & 3 Vict. c. 84 ; 7 & 8 
 Vict. c. 101, ss. 61, 62, As to over- 
 seers and assistant overseers' ac- 
 counts, R. v. Watts, 7 A. & E. 461. 
 
 (y) As to the objection that the 
 rate is retrospective, see R. v. Glou- 
 cester, 5 T. R. 346 ; 1 Nolan, 62. 
 
 (s) 1 Nolan, 61, 62. 
 
 (a) As to the exemption of scien- 
 tific and literary societies, see 6 & 7 
 Vict. c. 36; R. v. Pocock, 15 L.J. 
 132 (M. C); R. v. Jones, ib. 129. 
 As to the exemption of public pro- 
 perty, Reg. v. Shee, 4 Q. B. 2 ; crown 
 property, Netherton v. Ward, 3 B. & 
 A. 21 ; Tracey v. Taylor, 3 Q. B. 966. 
 As to the rateability of premises used 
 for charitable purposes, R. v. Waldo, 
 Cald. 358 ; R. v. Skerry, 12 A. & E. 
 84; R. v. Wilson, ibid. 94 ; R.v. Bad- 
 cock, 6 Q. B. 787 ; R. v. St. George- 
 the-Martyr, 16 L. J. (M. C.) 129. 
 
 (b) As to occupier as servant, R. 
 v. Wall Lynn, 8 A. & E. 379 ; S. C. 
 1 W. W. & II. 366. And see R. v. 
 Ponsonby, 3 Ad. & El. N. S. 14. 
 
 (c) As to rateability of tithes, R. 
 v. Joddrell, 1 B. & Ad. 403 ; R. v. 
 Barker, 6 A. & E. 388. As to the 
 
 rateability of corporations, R. v. Mayor 
 of York, 6 A. & E. 419. As to the 
 rateability of a gas company, R. v. 
 Birmingham and Staffordshire Gas 
 Company, ibid. 634 ; R. v. Commis- 
 sioners for lighting Beverley, ibid. 
 645. As to the rateability of ma- 
 chinery, Reg. v. Guest, 7 A. & E. 
 951. As to the rateability of muni- 
 cipal corporations, 4 & 5 Vict. c. 48. 
 As to the rateability of a box at a 
 theatre, Reg. v. St. Martin in the 
 Fields, 3 Q. B. 204. As to the prin- 
 ciple on which railway companies 
 are rated, see The Queen v. Brigh- 
 ton Railway, 15 Q. B. 313. 
 
 (d) 1 Bott, 112. 
 
 (e) R. v. Welbank, 4 M. & S. 222. 
 The vestry, however, of any parish 
 may order that the owners of tene- 
 ments in such parish, the yearly 
 rateable value whereof shall not ex- 
 ceed £6, shall be rated in lieu of the 
 occupier, 13 & 14 Vict. c. 99. But 
 this will not affect the occupier's 
 right of voting at elections, 14 & 15 
 Vict. c. 39. 
 
 (/) As to the competency of rated 
 inhabitants to give evidence, 3 & 4
 
 CHAP. II. OF THE LAWS RELATING TO THE POOR. 
 
 173 
 
 liable to be rated according to his apparent ability, that is, 
 according to the value of the local and visible personal 
 property he had within the parish, and of which he made 
 profit ( g) ; but by 3 & 4 Vict. c. 89, the liability to taxation 
 in regard to inhabitancy is now taken away until October, 
 1850 (A). 
 
 By 6 & 7 Will. IV. c. 96 (i) it is provided, that after 
 such period as the poor law commissioners shall direct, no 
 poor-rate shall be of any force which shall not be made 
 on an estimate of the net annual value of the several he- 
 reditaments rated, that is to say, the rent at which the 
 same may reasonably be expected to be let from year to 
 year, free of all usual tenant rates and taxes, and tithes 
 commutation rent-charge (if any), and deducting there- 
 from the probable average annual cost of the repairs, in- 
 surance, and other expenses (if any), necessary to main- 
 tain them in a state to command such rent. The act also 
 prescribes in what form the rate shall be made, and what 
 particulars it shall comprise, and requires that the parish 
 officers shall sign a declaration at the foot of it, to the 
 effect that these particulars are true and correct as far as 
 they have been able to ascertain by their best endeavours. 
 The poor law commissioners are also empowered by this 
 act to order a new valuation to be made in any parish or 
 union, upon representation, in writing, from the board of 
 guardians under their common seal, or from the majority 
 of the parish officers (k). 
 
 Vict. c. 26 ; Doe d. Boultbee v. Ad- 
 derley, and Doe d. Batchelor v. 
 Bowles, 8 A. & E. 502 ; S. C. 1 P. 
 & D. 469. 
 
 (g) R. v. Lumsdaine, 1 W. W. & 
 H. 587. 
 
 (h) This statute has been succes- 
 sively continued by 5 & 6 Vict. c. 50 ; 
 6 & 7 Vict. c. 48 ; 7 & 8 Vict, c.40 ; 
 8 & 9 Vict. c. 79 ; 9 & 10 Vict. c. 50 ; 
 10 & 11 Vict. c. 77 ; 11 & 12 Vict, 
 c. 85; 12 & 13 Vict. c. 51; 13 & 14 
 
 Vict. c. 50 ; 14 & 15 Vict. c. 47; and 
 15 & 16 Vict. c. 18. As to the for- 
 mer practice of rating stock in trade, 
 see Report on Local Taxation, pp. 
 21, 35. 
 
 (?) As to this act (the Parochial 
 Assessment Act) see Report on Local 
 Taxation, pp. 28, 48. 
 
 (k) Vide as to the appeal under 
 this act, R. v. St. Alban's, 1 W. W. 
 & H. 680.
 
 174 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 By 43 Eliz. c. 2, s. 1, no rate can be deemed valid unless 
 it be allowed by two justices, and public notice thereof be 
 given in the parish church on the Sunday next after the 
 same has been allowed (/). The allowance by the justices 
 is a mere matter of form (m) ; but after allowance and 
 publication, any person aggrieved by the rate, and having 
 reasonable objection to it, as irregular and unequal, may 
 appeal against it to the next practicable quarter sessions of 
 the county, riding or division (or, in some cases, of the cor- 
 poration or franchise) in which the parish is situate. 
 
 But so far as regards objections on the ground of irre- 
 gularity, unfairness, or incorrectness of valuation, appeals 
 may now also be preferred to another jurisdiction at the 
 option of the party aggrieved ; for by 6 & 7 Will. IV. c. 96, 
 the justices in petty sessions shall, four times at least in 
 every year, hold a special sessions for hearing appeals (n) 
 on any ground of that description within their respective 
 divisions, and their decisions shall be conclusive, unless the 
 parties impugning it shall, within fourteen days, give notice 
 of appeal therefrom to the next general sessions or quarter 
 sessions of the peace. In either course of proceeding the 
 justices have power to affirm, quash, or amend the rate; 
 or, if it become necessary to set the whole aside, may 
 order the overseers to make a new one (o). They have 
 also authority to award costs to the successful party (p) ; 
 and the court of quarter sessions may make its decision 
 (as in the case of an order of removal), subject to a special 
 case. 
 
 It is the duty of the overseers, and of all persons having 
 the collection, receipt, or distribution of the poor rate, to 
 
 (/) As to the mode of publication, ibid. 905 ; R. v. Justices of Cam- 
 see 1 Vict. c. 45 ; Ormerod v. Chad- bridgeshire, 1 L. M. & P. 47 ; Queen 
 wick, 16 Mee. & W. 307. v. Trafford, 15 Q. B. 200. 
 
 (ro) R. v. Dorchester (Justices), 1 (») 17 Geo. 2, c. 38, s. 6; 41 
 
 Str. 393. Geo. 3, c. 23 ; 6 & 7 Will. 4, c. 96, 
 
 (n) 6 & 7 Will. 4, c. 96, s. 6. As s. 6. 
 to an appeal against the rate, R. v. (p) Ibid. 
 
 George, 6 A. & E. 305 ; R. v. Bond,
 
 CHAP. II. OF THE LAWS RELATING TO THE POOR. 
 
 175 
 
 render to the proper (<y) auditors, or, if there be none, to 
 the guardians, or (where there are no such officers) to the 
 justices in petty sessions, once in every half year, (and of- 
 tener if required by the rules of the poor law board,) an ac- 
 count of all monies and things received and expended, and 
 verify the same on oath if required (r) ; and all balances 
 remaining from time to time in their hands may be reco- 
 vered from them by a summary proceeding before two jus- 
 tices of the peace (s). Overseers are also bound to render 
 an account at the end of their year of office (t). 
 
 These are the general heads of the law relating to the 
 poor (u) ; many branches of which are of too recent intro- 
 
 (</) See4&5 Will. 4, c. 76; 7 & 
 8 Vict. c. 101, s. 32, and 11 & 12 
 Vict. c. 91. 
 
 (r) Any parish officer supplying 
 for his own profit goods given in pa- 
 rochial relief, incurs a penalty of 5/. ; 
 
 4 & 5 Will. 4, c. 76, s. 77 ; vide Hen- 
 derson v. Sherbourne, 2 Mee. & W. 
 236. As to sale of parish property, 
 
 5 & 6 Vict. c. 18; Report of Poor 
 Law Commissioners for 1843, p. 29. 
 
 (s) 4 & 5 Will. 4, c. 76, ss. 47, 
 99 ; 2 & 3 Vict. c. 84 ; 7 & 8 Vict. 
 c. 101, ss. 32— 38. See also Sir John 
 Hobhouse's Act, 1 & 2 Will. 4, c. 
 60 ; It. b. St. Marylebone, 5 Ad. & 
 El. 268. 
 
 (0 4 & 5 Will. 4, c. 76, s. 47; 
 vide It. v. Johnson, 5 Ad. & El. 340 ; 
 There are several other rates which 
 in practice are levied parochially 
 upon the same assessment, and by 
 the same officers, as the poor's rate ; 
 as to which, see Report on Local 
 Taxation, p. 62 ; and by 7 & 8 Vict. 
 c. 33, the county rate, and all other 
 like rates, are now to be raised 
 through the agency of the guardians 
 and overseers of the poor, and with- 
 out the intervention (which the law 
 formerly required) of the high con- 
 stable. See farther as to the collec- 
 
 tion of the borough and watch rates, 
 8 & 9 Vict. c. 110 ; and of the county 
 rate, 15 & 16 Vict. c. 81. 
 
 (u) It has been felt important to 
 condense as far as possible the ac- 
 count given of this complex subject. 
 No mention has therefore been made 
 in the text of two provisions recently 
 introduced, which, though of con- 
 siderable interest and importance, 
 did not appear to require notice in 
 so general an exposition of the poor 
 law, namely, those which empower 
 the commissioners to combine unions 
 and parishes into school districts (see 
 7 & 8 Vict. c. 101 ; 11 & 12 Vict. c. 
 82 ; 13 & 14 Vict. c. 11, and c. 101, 
 s. 3), and (as regards certain places) 
 into districts for asylums for the tem- 
 porary accommodation of the houseless 
 poor. See 7 & 8 Vict. c. 101, ss.40— 
 54 ; 14 & 15 Vict. c. 105, s. 14. For 
 the same reason, the provisions as 
 to the burial, and as to emigration 
 of paupers, have been omitted. For 
 the former, see 7 & 8 Vict. c. 101, 
 s. 31 ; 13 & 14 Vict. c. 101, s. 2. 
 As to the latter, 4 & 5 Will. 4, c. 
 76, s. 62 ; 7 & 8 Vict. c. 101, s. 29 ; 
 11 & 12 Vict. c. 110, s. 5; 12 & 13 
 Vict. c. 103, s. 20 ; 13 & 14 Vict. c. 
 101, s. 4.
 
 176 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 duction to have been yet fairly subjected to the test of ex- 
 perience. The great object, however, of the whole system 
 is to give such relief as charity requires to the impotent 
 poor, or those unable to find employment, without afford- 
 ing encouragement to the idle ; and its operation can never 
 be considered as safe or satisfactory, except so far as it 
 tends to promote that combined result. For while huma- 
 nity and religion prescribe the succour of the destitute, 
 nothing is more obviously unreasonable than to compel the 
 industrious part of the community to maintain those who 
 are unwilling to labour ; and surely they must be very de- 
 ficient in foresight as well as in justice [who suffer one 
 half of a parish to continue dissolute and unemployed, and 
 at length are amazed to find that the industry of the other 
 half is not able to maintain the whole.]
 
 ( 177 ) 
 
 CHAPTER III. 
 
 OF THE LAWS RELATING TO CHARITIES AND 
 BENEVOLENT INSTITUTIONS. 
 
 I. Charities. — From the subject of the maintenance 
 provided by law for the poor, we may pass, by no abrupt 
 transition, to that of public charities. 
 
 Charities have been always much favoured by the law (a). 
 Thus, though gifts to superstitious uses were made void by 
 a statute passed at the period of the Reformation (b), a 
 distinction was allowed in favour of those for charitable 
 purposes ; which were held not to fall within the operation 
 of that statute. For " no time," as Lord Coke observes, 
 " was so barbarous as to abolish learning, or so uncha- 
 " ri table as to prohibit relieving the poor" (c). By the 
 statute 39 Eliz. c. 5, (made perpetual by 21 Jac. I. c. 1.) 
 any person is enabled by deed enrolled in Chancery to 
 found a hospital and to give it a corporate existence, with 
 capacity to take and purchase goods and chattels, lands 
 and tenements, to hold to them and their successors, with- 
 out the king's licence (which by the statutes of mortmain 
 is in general required where land is conveyed to a body 
 corporate) ; subject only to these conditions, that the lands 
 be freehold, in fee simple, of the clear value of 10Z. and 
 not exceeding that of 200Z. per annum. 
 
 The same disposition to favour and encourage charities 
 has been evinced in other instances. Thus, by the Statute 
 of Charitable Uses, 43 Eliz. c. 4, the lord chancellor is e'm- 
 
 (a) Bac. Ab. Ch. Uses, E. Edw. 6, c. It 
 
 (b) 23 Hen. 8, c. 10. See also 15 (c) Porter's case, 1 Rep. 26. 
 Rich. 2, c. 5; 37 Hen. 8, c. 4 ; 1 
 
 VOL. III. N
 
 178 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 powered to award commissions to inquire of all gifts to 
 such uses, and of all abuses and breaches of trust relative 
 thereto, and to make orders for the future management of 
 the fund ; though the universities and cathedrals, and all 
 colleges, hospitals, and free-schools, having special visitors 
 or governors, are excepted from this provision (d). 
 
 And whereas the statutes of mortmain prohibit in gene- 
 ral the endowment of collegiate or corporate bodies with 
 land, without the king's licence, and some doubts arose at 
 the time of the Revolution, as to the right of the crown to 
 exercise this dispensing power (e), therefore, by a statute 
 passed at that period (7 & 8 Will. III. c. 37), after re- 
 citing that it would be a great hindrance to learning and 
 other good and charitable works, if persons inclined to 
 grant lands to bodies incorporated for good and public uses 
 should not be permitted to do so, it was enacted (in con- 
 firmation and extension of the prerogative antecedently 
 vested in the crown in this particular) that the king may 
 grant to any persons whatever, licence to alien purchase 
 or hold in mortmain (f). 
 
 So far the interposition of the legislature had been uni- 
 formly favourable to charities. Some abuses, however, 
 were afterwards found or supposed to attend the power of 
 devising lands by will, or making them over at the ap- 
 proach of death, for purposes of this description ; and by 
 9 Geo. II. c. 36, after reciting that many large and impro- 
 vident alienations of land had of late been made by dying 
 persons to charitable uses, it was enacted that no lands or 
 tenements, or money to be laid out in the purchase thereof, 
 shall be given or conveyed, or anyways charged or incum- 
 bered, in trust for the benefit of any such uses, unless by 
 deed indented, sealed and delivered in the presence of two 
 or more credible witnesses, twelve calendar months at least 
 before the death of the grantor, and enrolled, within six 
 calendar months after its execution, in the High Court of 
 Chancery. This provision, with the exceptions to which 
 
 (d) SeeCollison's case, Hob. 136. p. 272. 
 
 (e) SeeHovenden'sBlackst. vol. ii. (/) Vide sup. vol. i. p. 441.
 
 CHAP. III. OF THE LAWS RELATING TO CHARITIES, ETC. 179 
 
 it is subject, we had occasion to consider in a former vo- 
 lume (<j) ; and it will therefore be unnecessary to dwell 
 upon it farther in this place. We shall only remark, that 
 it has no reference to dispositions of mere personal estate, 
 when not directed to be laid out in land ; and that such 
 dispositions, whether by will or otherwise, may conse- 
 quently be made, without restraint, to uses of a charitable 
 description. 
 
 The law has also subjected charitable endowments to 
 some check in the particular case of a lying-in hospital ; 
 for by 13 Geo. III. c. 82, after reciting that such hospitals 
 merited support and encouragement, it is nevertheless en- 
 acted that no establishment of the kind shall be set on foot 
 without a previous licence from the quarter sessions, and 
 regulations are made to prevent illegitimate children, born 
 within such hospitals, from being chargeable to the parish 
 of their births. 
 
 When a charitable commission issues under the 43 Eliz. 
 c. 4 (A), the decree of the commissioners is returned into the 
 Petty Bag Office of the Court of Chancery ; and it may 
 be contested on the equity side of that court (i)- The pro- 
 ceedings for that purpose are treated as an original suit, in 
 which the parties are not bound by the evidence before 
 the commissioners, but may allege what new matter they 
 please (k). Upon these allegations they go to proof, and 
 examine witnesses upon all the matters in issue ; and the 
 court may decree the respondent to pay all the costs, though 
 no such authority is given by the statute ; and as the pro- 
 ceeding is throughout considered as an original cause, an 
 appeal lies of course from the chancellor's decree, notwith- 
 standing any loose opinions to the contrary (I). 
 
 Commissions, however, under the statute of Elizabeth 
 have been long disused, their place being supplied by 
 
 (g) Vide sup. vol. i. p. 441. bk. v. c. 4. 
 
 (ft) Vide sup. p. 177, 178. (fc) 1 Bac. Ab. Ch. Uses, F. ; 3 
 
 (i) See as to the Petty Bag Office Bl. Com. 436. 
 and the Court of Chancery, post, (/) Ibid.; 2 Vern. 118. 
 
 M. 2
 
 180 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 remedies of a more simple and effective kind. For inde- 
 pendently of this statute, [the king, as parens patrice, has 
 the general superintendence of all charities] not otherwise 
 sufficiently protected (h); [which he exercises by the keeper 
 of his conscience, the chancellor. And, therefore, when- 
 ever it is necessary, the attorney-general, at the relation of 
 some informant (who is usually called the relator) files ex 
 officio an information in the Court of Chancery, to have 
 the charity properly established (/) ;] and it is not essential 
 that the relators should be the persons principally inte- 
 rested ; for any persons (though the most remote of them 
 who fall within the contemplation of the charity) may stand 
 in that capacity (??z). 
 
 Indeed, a still more summary redress for abuses in cha- 
 ritable trusts has been in modern times provided by the 
 legislature; for by statute 52 Geo. III. c. 101, it is enacted 
 that in every case of the breach of a trust created for cha- 
 ritable purposes, or wherever the direction of a court of 
 equity shall be deemed necessary for the administration of 
 such a trust, any two or more persons may, on obtaining 
 the previous sanction of the attorney or solicitor-general, 
 apply for relief by petition to the lord chancellor, or master 
 of the rolls, or keeper of the great seal, or to the Court of 
 Exchequer. The petition is to be heard in a summary way, 
 and the order which the court may make is to be final and 
 conclusive, unless within two years afterwards there shall 
 be an appeal to the House of Lords. 
 
 By a statute passed in the same year (52 Geo. III. c. 102) 
 provision was also made for the registering and securing 
 of charitable donations, in order to prevent their benefits 
 from being lost. A memorial of the funds and objects of 
 the then existing charities, and the names of the founders 
 (when known), and of the persons having custody of the 
 
 (k) 3 Bl. Com. 427. As to this 118; Attorney-General v. Middle- 
 qualification of Blackstone's doc- ton, 2 Ves. sen. 329 ; Same v. Brere- 
 trine, see Shelford, 268. ton, ibid. 426. 
 
 (/) 3 Black. Com. 428; Eyre v. (m) Attorney- General v. Buck- 
 Countess of Shaftsbury, 2 P. Wms. nail, 2 Atk. 328.
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITIES, ETC. 181 
 
 deeds of endowments, and of the trustees or possessors of 
 the estates, was required to be registered by such trustees 
 or possessors, within six months from the passing of the 
 act, in the office of the clerk of the peace of the county or 
 town, who was to transmit a duplicate into the enrolment 
 office (») of the Court of Chancery. So, with respect to 
 future charities, created by any deed or instrument, a like 
 memorial is required, within twelve months after the de- 
 cease of the donor ; but donations neither secured on land 
 nor permanently invested in the funds, or the management 
 of which is left to the discretion of trustees, are (with many 
 other particular cases) excepted from the provisions of the 
 act. 
 
 At a subsequent period, the attention of the legislature 
 having been particularly directed to such charitable endow- 
 ments as have in view the great object of imparting useful 
 knowledge to the lower classes of society, the statute 58 
 Geo. III. c. 91, was passed, to authorize the issuing of a 
 commission " to inquire into the amount, nature and appli- 
 " cation of the produce of any estates or funds from time 
 " to time appropriated to the education of the poor;" and 
 a commission having accordingly been appointed, its powers 
 were soon afterwards, by statute 59 Geo. III. c. 81, ex- 
 tended to all endowed charities of whatever description, 
 subject only to certain specified exceptions. By another 
 act, 59 Geo. III. c. 91, passed during the course of their 
 labours, the commissioners were also entrusted with the 
 additional duty of certifying to the attorney-general the 
 particulars of any case that appeared to them to require the 
 interposition of a court of equity ; upon which that officer 
 was authorized to proceed by petition, information, or 
 otherwise (as the case might require) in the Court of Chan- 
 cery or the Exchequer (o). It was also provided, that the 
 trustees of any charity, who conceived its statutes or regu- 
 
 (/<) As to this office, see 5 & 6 the equity side of the Court of Ex- 
 Vict. c. 103. chequer is now abolished by 5 Vict. 
 
 (o) It is to be remembered that c. 5. Vide post, bk. v. c. 4.
 
 182 BK. IV. OF PUBLIC RIOIITS. PT. III. SOCIAL ECONOMY. 
 
 lations to be insufficient, might, by consent of five or more 
 of the commissioners, present a petition to the Court of 
 Chancery or Exchequer, praying for such relief as the 
 case required (p). This commission was continued and its 
 powers enlarged by several successive acts of parliament (</), 
 and after it had expired was again succeeded by a new 
 commission with similar powers, and under the like parlia- 
 mentary authority (r) ; which latter finally terminated on 
 1st July, 1837 (s). The reports presented under the suc- 
 cessive commissions are numerous, and have been printed 
 by order of the House of Commons. 
 
 Of late years, there have been many other enactments 
 of a miscellaneous kind, for the advantage and protection 
 of charities. By 1 & 2 Geo. IV. c. 92, the trustees of 
 charitable estates are empowered to exchange them for 
 other lands ; it being first ascertained, according to a me- 
 thod of proceeding directed by the act, that the proposed 
 exchange will be beneficial to the charity. By 3 Geo. IV. 
 c. 72, s. 11, when the commissioners for building additional 
 churches shall have in any case divided a parish into two 
 or more distinct parishes, or district parishes, or chapelries 
 for ecclesiastical purposes, they may apportion, if they 
 think fit, among the several divisions so made, any chari- 
 table bequest or gifts bestowed upon the entire parish. 
 By 1 & 2 Will. IV. c. 45, the provisions of an act of the 
 29 Car. II. c. 8 (t), for facilitating grants by ecclesiastical 
 persons towards the augmentation of small livings, were 
 confirmed and extended. By Sir J. Hobhouse's Act, 1 & 
 2 Will. IV. c. 60 (passed for regulation of vestries), the 
 vestry of every parish adopting that act is directed to make 
 out, once at least in every year, a list of all charitable foun- 
 dations and bequests belonging to the parish, and under 
 the control of the vestry, with the names of the trustees, 
 
 (p) 59 Geo. 3, c. 91, s. 5. c. 57 ; 5 & 6 Will. 4, c. 71 ; 7 Will. 4 
 
 (q) 5 Geo. 4, c. 58 ; 10 Geo. 4, & 1 Vict. c. 4. 
 
 c 57. 0) See 7 Will. 4 & 1 Vict. c. 4. 
 
 (r) 1 & 2 Will. 4, c. 34 ; 2 Will. 4, (/) Sect. 8.
 
 CHAP. III. -OF THE LAWS RELATING TO CHARITIES, ETC. 183 
 
 and of the persons partaking of the benefit, and to leave 
 the list open for the inspection of the rate-payers (u). By 
 2 Will. IV. c. 57, s. 3, it is provided, that where all the 
 persons in whom real property has been invested for a 
 charitable purpose are dead, it shall be lawful for the Court 
 of Chancery, or the Court of Exchequer (v), on the petition 
 of the Attorney-General, or of the persons administering 
 the fund, to direct advertisements to be inserted in the 
 newspapers, calling on the representatives of the last sur- 
 viving trustee to appear and establish his title, in failure of 
 his doing which within a time limited, the court may 
 appoint new trustees, to whom the land shall be conveyed 
 accordingly. By 2 & 3 Will. IV. c. 115, the laws appli- 
 cable in England to protestant dissenters, in respect of their 
 schools and places for religious worship, education and 
 charitable purposes, are extended to the Roman Catholic 
 subjects of the realm, in respect of their establishments of 
 the same description (w). By the Poor Law Amendment 
 Act, 4 & 5 Will. IV. c. 76 (x), the Poor Law Commission- 
 ers are empowered, at their discretion, to require from all 
 persons holding property in trust for or applicable to the 
 relief of the poor, or being in receipt of the profits, a true 
 and detailed account in writing of all particulars relating to 
 such property and its appropriation ; and the statement so 
 obtained is to be open to the inspection of the rate-payers. 
 But funds raised from time to time by voluntary contribu- 
 tion of the inhabitants, are excepted from the provision. 
 By 3 & 4 Vict. c. 77(?/), passed for improving the condition 
 and extending the benefits of endowed grammar-schools, 
 courts of equity are empowered to extend the system of 
 education in such schools, and regulate the right of admis- 
 sion into the same, and to establish schemes for the appli- 
 cation of their revenues ; paying due regard, nevertheless, 
 
 (u) Sect. 39. « (i) Sect. 74. 
 
 (v) Vide sup. p. 181, n. (<>). (y) As to this statute, see Attor- 
 
 (w) The same privileges are by ney-General v. Bishop of Worcester, 
 
 9 & 10 Vict. c. 59, s. 2, extended to 21 L. J. (Ch. Ca.) 25. 
 
 Jews.
 
 184 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 to the intention of the respective founders or benefactors. 
 And lastly, by 4 & 5 Vict. c. 38, and by many subsequent 
 acts passed in reference to the same subject, various regu- 
 lations are made, calculated to afford facilities for convey- 
 ing lands, to be used as sites for schools for the education 
 of the poor, or schools which are erected or maintained in 
 part by charitable aid and in part are self-supporting, for 
 the religious or educational training of the sons of yeomen 
 or tradesmen, or others, or for the theological training of 
 candidates for holy orders (?/). 
 
 Some account having been now given of the legislative 
 enactments relating to charities (z), we will next advert to 
 certain general principles which may be collected from the 
 judicial decisions in regard to this subject. 
 
 The courts of equity (for to these the jurisdiction exclu- 
 sively belongs) take cognizance of all charitable uses or 
 trusts of a public description ; and exercise, in relation to 
 them, powers of a very extensive kind. Under the autho- 
 rity of these tribunals, trustees may be called to account 
 for the charitable funds committed to their charge, or new 
 trustees (where circumstances so require) may be appointed, 
 — improvident alienations of the charitable estates may be 
 rescinded, — schemes for carrying properly into effect the 
 intention of the donor (where the nature of the case re- 
 quires such interference) may be judicially projected and 
 
 (v) The sites of schools acts are of any particular religious denomi- 
 
 the following : — 4 & 5 Vict. c. 38 ; 7 nation, in aid of the numerous schools 
 
 & S Vict. c. 37 ; 12 & 13 Vict. c. 49; established throughout the kingdom 
 
 13 & 14 Vict. c. 28: 14 & 15 Vict. by private benevolence, for the re- 
 
 c. 24; 15 & 16 Vict. c. 49. In con- ligious, moral, and intellectual cul- 
 
 nexion with this subject it is proper ture of the humbler classes, 
 to remark, that it has been the prac- (s) Besides those which it seemed 
 
 tice of parliament for many years necessary to introduce into the text, 
 
 past to vote large annual grants of we may here notice 13 & 14 Vict. c. 
 
 money, to be applied at the discre- 60, s. 45, giving facilities as to the 
 
 tion of her majesty in council to the vesting of lands, &c. by order of the 
 
 purposes of public education (see 7 Court of Chancery, in charity trus- 
 
 & S Met. c. 37); that the distribu- tees; and the 14 & 15 Vict. c. 56, 
 
 tion of this money is intrusted to a facilitating the service of notices on 
 
 committee of the privy council, and the governors and members of chari- 
 
 that it is applied without preference table institutions.
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITIES, ETC. 1 85 
 
 established, and every species of relief afforded which it is 
 in the nature of such institutions to require. This equitable 
 jurisdiction, however, is not allowed to usurp upon the 
 proper province of those to whom the administration of the 
 charity may have been confided. In the case of corpora- 
 tions endowed for charitable purposes, the management is 
 usually vested by charter in governors, subject to a con- 
 trolling or visitatorial power in the founder or his heirs, or 
 in such persons as the founder shall appoint (z) ; and with 
 the proceedings of such functionaries the law does not in- 
 terfere, unless they have also the management of the re- 
 venues, and are found to be abusing their trust (a). It is 
 to be observed, however, that when the king is the founder 
 of an eleemosynary lay corporation, the visitatorial power 
 is vested in the crown (b), and committed by royal autho- 
 rity to the Lord Chancellor, who may thus be called upon 
 to redress abuses properly falling within the province of a 
 visitor ; but this jurisdiction belongs to him in his personal 
 character only, and not as judge of the Court of Chan- 
 cery (c). 
 
 With respect to the nature of the charitable trusts, to 
 which the equitable jurisdiction attaches, we may remark 
 that the word charitable is to be here understood in a very 
 lars;e sense. For not only gifts for the benefit of the poor 
 are included, but endowments for the advancement of learn- 
 ing (d), or institutions for the advancement of science and 
 art, and for any other useful and public purpose (e). 
 
 The term comprises also donations for pious or religious 
 
 (2) Eden v. Forster, 2 P. Wins. v. Price, ibid. 108. 
 
 326 ; 3 Salk. 379 ; 1 Bl. Com. 480 ; (/>) R. t>. St. Catherine's Hall, 4 
 
 Philips v. Bury, Ld. Raym. 8; R. v. T. R. 233; 1 Bl. Com. 480; sup. 
 
 Governors of Darlington Free School, p. 136. 
 
 6 Q. B. 682. (c) Co. Litt.96 a; Ex parte Dann, 
 
 (a) Ex parte Kirkby Ravensworth 9 Yes. 547. 
 
 Hospital, 15 Ves. jun. 314; 2 Ves. (</ ) Ves. sen. 537. 
 
 jun. 42; Ex parte Berkhampstead (e) Attorney- General r. Heelis, 2 
 
 Free School, 2 V. & B. 138. At- Sim. & Stu. 67 ; Trustees of British 
 
 torney- General v. Talbot, 3 Atk. Museums. White, ibid. 594; Howse 
 
 673; Same v. Lock, ibid. 165 ; Same 1. Chapman, 4 Ves. 551.
 
 186 BK.TV. OF PUBLIC RIOIITS. PT. III. SOCIAL ECONOMY. 
 
 objects; as to which we may remark, that all objects are 
 considered as religious, which tend to the benefit either of 
 the Established Church of England, or of any body of dis- 
 senters sanctioned by law (/), and that by a recent act, 
 
 2 & 3 Will. IV. c. 115, trusts for the maintenance of Ro- 
 man Catholic worship are now placed on a similar footing. 
 And though a trust for the advancement of the Jewish re- 
 ligion, or of any faith hostile to Christianity, has been held 
 illegal, so as to be excluded from the protection of a court 
 of equity ( g) ; yet as regards the Jews it is now provided 
 by 9 & 10 Vict. c. 59, s. 2, that from the commencement 
 of that act her Majesty's subjects professing the Jewish 
 religion, in respect to their schools, places for religious 
 worship, education, and charitable purposes, and the pro- 
 perty held therewith, shall be subject to the same laws as 
 her Majesty's protestant subjects dissenting from the Church 
 of England are subject to, and not farther or otherwise. 
 Though the definition of charitable trusts is thus wide, we 
 are, nevertheless, to remark that it does not extend to gifts 
 of a strictly private character; fqr if a sum of money be 
 bequeathed with direction to apply it " to such purposes of 
 benevolence and liberality as the executor shall approve," 
 or even " in private charity," the law will take no notice of 
 such a trust (h). On the other hand, where a gift is for 
 a purpose clearly falling within the description of public 
 charity, though expressed in the most general and indefinite 
 terms, the trust will never be allowed to fail on account of 
 the uncertain limitation of the objects, but the law will 
 provide for it some particular mode of application. In 
 some cases of this description, the right of disposition be- 
 longs to the queen, who makes it under her sign manual ; 
 in others, it is made by the courts of equity (i). 
 
 (/) Attorney-General v. Pearson, (h) Morice v. Bishop of Durham, 
 
 3 Meriv. 409 ; Attorney-General v. 9 Ves. 399 ; S. C. 10 Ves. 522 ; 1 
 Cock, 2 Ves. sen. 273. Turn. & Russ. 260. 
 
 (g) In re Masters, &c. of the (i) 1 Turn. & Russ. 2C0 ; 10 Ves. 
 
 Bedford Charity, 2 Swanst. 487 ; 1 522 ; Bac. Ab. Ch. Uses. 
 Dickens, 258.
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITIES, ETC. 187 
 
 It is a rule with respect to all charities, that the intention 
 of the donor, so far as it is practicable and legal, shall be 
 strictly observed ; the law not permitting it to be varied 
 without necessity, even by consent of his heir (&). But 
 where it is incapable of being literally acted upon, or its 
 literal performance would be unreasonable, a decree will be 
 made for its execution, cypres, that is, in some method con- 
 formable to the general object, and adhering as closely as 
 possible to the specific design of the donor (7). Thus, 
 where a sum of money was bequeathed to trustees, to be 
 distributed among the inhabitants of several specified 
 parishes, in money, provision, physic, or clothes, as the 
 trustees should think fit, and the fund ultimately became 
 too large to be suitably confined to those objects, the court 
 directed it to be applied to the farther objects of instruc- 
 ing and apprenticing the children in the parishes for which 
 the charity was designed (m). Moreover by a recent act, 
 7 & 8 Vict. c. 45, it is provided, as to meeting-houses 
 founded for dissenters, that so far as no particular religious 
 doctrines or mode of worship shall have been prescribed 
 by the deed or instrument of trust, the usage for twenty- 
 five years shall be taken as conclusive evidence of the doc- 
 trines and worship which may be properly observed in such 
 meeting-houses. 
 
 Lastly, we may remark, that though among the civilians 
 a legacy to pious or charitable uses was entitled to a pre- 
 ference, it is not so by our law, which directs that in the 
 case of a deficiency of assets, the charitable legacies shall 
 abate in proportion with the others (n). When the assets, 
 however, are sufficient, all such legacies remaining unpaid 
 carry interest at four per cent, from the end of one year 
 after the testator's death (o). 
 
 (k) Attorney-General v. The Mar- Hereford v. Adams, 7 Ves. 324 ; At- 
 
 garet and Regius Professors in Cam- torney-General v. Bovill, 1 Phill. 
 
 bridge, 1 Vern. 55. 762; Attorney-General v. Mansfield 
 
 (/) 2 Ves. jun. 380; 2 Mylne & (Earl of), 14 Sim. 601. 
 
 Keen, 576. («) Bac. Ab. Ch. Uses, E. 
 
 (m) Attorney-General v. Whit- (<>) Attorney-General v. Hayes, 1 
 
 church, 3 Ves. 141 ; The Bishop of Atk. 356, n.
 
 188 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMV. 
 
 II. Benevolent Institutions. — Besides charities, there 
 are various institutions in this country, designed to en- 
 courage the industrious classes in frugal and provident 
 habits, and to afford them some protection from those or- 
 dinary casualties which are incident to all men, but fall 
 most severely on persons in the humbler ranks of life. Of 
 these it is remarkable, that they were originally suggested 
 and brought into use by private individuals, though they 
 attracted at length the favourable notice of the legislature, 
 and acts of parliament have been passed to sanction and 
 promote them. Nor is it possible to refer to them, without 
 pausing to pay the tribute justly due to the humanity and 
 wisdom displayed in their establishment; for while they 
 materially contribute to the physical and moral welfare of 
 an important portion of society, they tend by direct con- 
 sequence to prevent the increase of the public burthens con- 
 nected with pauperism, and the public disorders resulting 
 from distress among the lower classes. It is but seldom 
 that human laws are able so successfully to reconcile the 
 interests of rich and poor, and to blend, in such perfect har- 
 mony, the considerations of benevolence and expediency. 
 
 1. Savings banks. — These are institutions devised within 
 the last thirty years, for the safe custody and increase of 
 the small savings of the industrious poor. When regu- 
 lated according to act of parliament, certain benefits and 
 protections are afforded to them by law. The statutes con- 
 taining the regulations are the 9 Geo. IV. c. 92 (repealing 
 several former provisions), 3 & 4 Will. IV. c. 14 (p), and 
 7 & 8 Vict. c. 83. The institutions sanctioned by these 
 acts, consist of banks to receive small deposits of money, 
 the produce of which is to accumulate at compound interest, 
 and the principal and interest whereof are to be paid out 
 to the depositors as required, deducting only from the pro- 
 duce the necessary expenses of management. The deposits 
 are not to exceed 30/. in the whole in any one year(y); 
 
 (/)) See also 5 & 6 Will. 4, c. 57, as to Ireland, 
 as to Scotland ; 15 & 16 Vict. c. 60, (q) 9 Geo. -1, c. 92, s. 35.
 
 CHAP. III. OF THE LAWS RELATING TO CHARITIES, ETC. 189 
 
 and no fresh deposit is to be received when the sum to 
 which the depositor is entitled amounts to 150Z. And where 
 the sum standing in the name of any depositor amounts to 
 200/. (principal and interest included), no interest shall be 
 paid on such deposit so long as it remains at that amount (r). 
 The management is vested in trustees, who are prohibited 
 from receiving, directly or indirectly, any benefit from the 
 institution (s) ; and are required to invest the money depo- 
 sited (beyond what necessarily remains in the hands of the 
 treasurer to answer exigencies) in the Bank of England or 
 Ireland, as the case may require (t). The monies invested 
 are to be carried to an account kept in the names of the 
 commissioners for reduction of the national debt, and de- 
 nominated " The Fund for the Banks for Savings," which 
 affords interest to the trustees at the rate of 3/. 5s. per cent, 
 per annum, the arrears of which are to be carried half-yearly 
 to the account of the principal (u). The interest payable 
 to depositors is limited to 3/. 0s. 10c/. per cent, (x), but the 
 acts permit its accumulation by yearly or half-yearly rests (y). 
 By way of farther protection to the funds of the society, 
 every treasurer or cashier is to give security for the due 
 execution of his office, and in case of his refusal to account 
 to the trustees, or to pay over the monies in his hands, 
 may be compelled to do so, in a summary way, by petition 
 to the justices at quarter sessions (z). The trustees are 
 also required to send to the office of the commissioners for 
 reduction of the national debt annual accounts, exhibiting 
 the balance due to the depositors (a) ; and to affix publicly 
 to some conspicuous part of the office of the savings bank 
 a duplicate of such account, and a list of the trustees and 
 managers (/>)• To guard, on the other hand, against abuses 
 of another description, no deposit is to be received without 
 
 (/) Sects.35,37; and 3& 4 Will. 4, (..) 7 && Vict. c.83. 
 
 c. 14, s.29. (v) 9 Geo. 4, c. 92, s. 17. 
 
 (s) 9 Geo. 4, c. 92, s. 6. (z) Sect. 10. See also 7 & 8 Vict. 
 
 (J) Sect. 11. c.83, s. 17. 
 
 (u) Sect. 16 ; and 7 & 8 Vict. (a) 9 Geo. 4, c. 92, s. 46. 
 
 c. 83. (6) Sect. 47.
 
 190 BK. IV. OF PUBLIC RIGHTS. — KT. III. SOCIAL ECONOMY. 
 
 a disclosure of the name, occupation, and residence of the 
 depositor, who is also, at the same time, or at any other 
 time, when required by the trustees, to sign a declaration 
 that he is entitled to no benefit from any other bank of the 
 same description (c) ; and it is provided, that if such decla- 
 ration be untruly made, he shall forfeit his deposit (d). 
 Provisions are also made of a nature calculated to save 
 expense to the members of these institutions. In case of 
 the decease of a depositor whose estate does not exceed 50/., 
 no legacy duty attaches ; and no stamp duty is payable on 
 the probate or administration (e); and if any person die, 
 having a deposit not exceeding 50Z. exclusive of interest, 
 and no will or letters of administration be produced within 
 one month afterwards, the money may be paid to or among 
 such person or persons as shall appear to the trustees or 
 managers to be the widow, or entitled under the Statute of 
 Distributions if). Upon the same principle it is directed, 
 that the trustees may pay upon any deposit by a woman to 
 the woman herself, unless her husband or his representative 
 interferes (g), and that all disputes between the institution 
 at large and any of its members or representatives, shall be 
 referred to a cheap method of arbitration pointed out for 
 that purpose, and such cases are consequently withdrawn 
 from the jurisdiction of the courts of law (h). 
 
 Any persons forming themselves into a society for the 
 purpose of establishing a savings bank, are entitled to 
 claim for it the benefit of the parliamentary provisions, upon 
 causing the rules and regulations which they shall establish 
 for its management to be entered in a book, to be kept by 
 one of its officers, for the inspection of depositors. It is 
 also requisite, however, that two copies of the rules shall be 
 
 (c) Sect. 34. Crisp v. Bunbury, 8 Bing. 394 ; R. 
 
 (d) Sect. 34. See also 7 & 8 Vict. v. Witham Savings Bank, 1 Ad. & E. 
 c 83. 320 ; R. v. Mildenhall Savings Bank, 
 
 (e) 9 Geo. 4, c. 92, s. 40. 6 Ad. &E. 952; and see R.v. Norwich 
 (/) 7 & 8 Vict. c. 83, s. 10. Savings Bank (Trustees), 9 Ad. & E. 
 (g) Ibid. 729. 
 
 {h) 9 Geo. 4, c. 92, s. 45. See
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITI ES, ETC. 191 
 
 submitted to a barrister, officially appointed for the purpose, 
 who is to certify whether the rules are in conformity to law, 
 and pursuant to the legislative enactments (i). And one of 
 the copies so certified is to be returned to the trustees, and 
 the other to be transmitted to the commissioners for reduc- 
 tion of the national debt (k). 
 
 A separate system of savings banks has recently been 
 provided for the army ; it being enacted by 5 & 6 Vict. c. 
 71 (amended by 8 & 9 Vict. c. 27), that her Majesty may 
 establish military or regimental savings banks, for the pur- 
 pose of receiving sums of money from such of the non- 
 commissioned officers and soldiers employed in her service 
 either in the united kingdom or on foreign stations (the East 
 Indies excepted), as shall be desirous of depositing the 
 same, and the regulation for the management of such insti- 
 tution is entrusted to the secretary at war for the time being, 
 in concurrence with the commander in chief and the lords 
 of the treasury. 
 
 Savings banks have proved so acceptable to the people of 
 this country, that on 20th November, 1851, the deposits in 
 England, Ireland and Scotland amounted, in the aggregate, 
 to more than thirty millions sterling, and the number of 
 accounts opened was 1,161,086 (/). It seems reasonable, 
 therefore, to consider them as of high importance, both in 
 a moral and political aspect, and as amply deserving that 
 degree of attention which they have received from the legis- 
 lature. 
 
 2. Friendly societies (m).— These establishments are of 
 earlier date than any others of the class under consideration. 
 The statute, however, by which they are now governed, is 
 of recent enactment, being the 13 & 14 Vict. c. l\5(n). 
 
 (i) 9 Geo. 4, c. 92, s. 4. the Rules of Savings Banks." 
 
 (k) 7 & 8 Vict. c. 83, s. 19. (w) R. v. Bannatyne, 2 L. M. & P. 
 
 (I) A Summary of the Savings 213 ; Queen v. Cotton, 15 Q. B. 569 ; 
 
 Banks in the United Kingdom, by Queen v. Oldham Society, 21 L. J. 
 
 J. Tidd Pratt, Esq., " Registrar of (Q. B.) 49 ; Burbidge r. Cotton, ib. 
 
 Friendly Societies in England, and (Ch.) 201. 
 
 the Barrister appointed to certify (n) Continued and amended by 15
 
 192 BK. TV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 A society of this description has for its object the raising 
 of a fund by subscription, for any of the following purposes: 
 1. The insurance of money, to be paid on the death of a 
 member to the widower or widow, child, executors, adminis- 
 trators or assigns of such member, or the defraying the ex- 
 pense of the burial of a member, or the husband, wife, child, 
 or kindred of a member. 2. The relief, maintenance, or en- 
 dowment, of the members, their husbands, wives, children, 
 or kindred, in infancy, old age, sickness, widowhood, or 
 any other natural state of which the probability may be cal- 
 culated by way of average. 3. The insuring or making good 
 any loss or damage of live or dead stock, goods, or stock 
 in trade, implements and tools, sustained by any member by 
 fire, flood, or shipwreck, or any contingency of which the 
 probability may be calculated by way of average. 4. The 
 frugal investment of the savings of the members, for better 
 enabling them to purchase food, firing, clothes, or other ne- 
 cessaries, or the tools, implements or materials of their trade 
 or calling, or to provide for the education of their children or 
 kindred. But the shares in a society formed for this object 
 must not be transferable. 5. The enabling any member or 
 the husband, wife, or children, or nominee, of such mem- 
 ber, to emigrate, provided, that, in the case of any society 
 for this purpose, one of the trustees shall be a justice of the 
 peace residing in and acting for the place. 6. Any other 
 purpose certified to be legal by the attorney general, and 
 to be one to which the powers and facilities of the acts 
 should be extended. But the amount assured to any one 
 member by any friendly society must not exceed £100; 
 nor shall any annuity exceed £30 per annum ; nor shall 
 a sum in sickness exceed 20s. a week. And special pro- 
 visions are made to prevent fraud and malpractices in the 
 
 & 16 Vict. c. 65; which also pro- blished under any of those acts ; but 
 
 vides that every act relating to that every friendly society established 
 
 friendly societies, passed previously under acts previous to the 13 & 14 
 
 to 10 Geo. 4, c. 56, shall be deemed Vict. c. 115, shall be at liberty to 
 
 in force as regards societies esta- come under its provisions.
 
 CHAP. III. OF THE LAWS RELATING TO CHARITIES, &C. 193 
 
 case of the insurance of money payable on death, particu- 
 larly the death of a child under ten years. 
 
 The treasurer or trustees of friendly societies are re- 
 quired from time to time (with the consent of the society) 
 to lay out such surplus of the fund as is not wanted for 
 immediate exigencies, either in savings banks or in the 
 public funds or such real or other securities as in the act 
 directed, and to bring the dividends to account from time 
 to time for the use of the society (o). 
 
 If any person entrusted with the funds refuse to account 
 or to pay over the balance in his hands, the society is em- 
 powered to obtain relief by petition to the " registrar of 
 friendly societies," who is to proceed thereon in a sum- 
 mary way and make such order as may seem just (p) ; and 
 in the event of the death, bankruptcy, or insolvency of, or 
 process issued against, any officer of the society having its 
 monies in his hands, a priority of payment is secured to the 
 institution (q). If any person, being, or representing himself 
 to be, a member, shall fraudulently obtain possession of the 
 monies of the society, or fraudulently withhold them, the 
 money may be recovered, and the offender subjected to a 
 penalty, by a summary proceeding before justices of the 
 peace (r). Upon the death of a member entitled to a sum 
 not exceeding £50, the trustees, if satisfied that no will was 
 made by him, and that no administration will be taken out, 
 may pay the amount to the persons entitled to the effects 
 of the deceased (s). And provisions are also made in re- 
 ference to the settlement of disputes between such societies 
 and their members, or persons claiming under members, and 
 for enforcing; the awards made in certain cases of arbitra- 
 tion(i). Annual statements of the funds of these institutions 
 are to be transmitted to the registrar, and to be supplied to 
 
 (o) 13 & 1-1 Vict. c. 115, s. 12. (9) Sect. 36; 12 & 13 Vict. c. 106, 
 
 (p) Sect. 28. As to the manner s. 167. 
 of appointing this officer, his salary (?) 13 & 14 Vict. c. 115, s. 26. 
 
 and fees, see sect. 10, and 15 & 16 (s) Sect. 40. 
 
 Vict. c. 65, s. 2. (t) Sect. 22-25. 
 
 VOL. III. O
 
 194 BK. IV. OF PUBLIC RIGHTS.— PT. III. SOCIAL ECONOMY. 
 
 every member on payment of sixpence (it) ; and in order 
 to promote the correct calculation of tables, every friendly 
 society, in which any benefits are assured for an allowance 
 in sickness, an annuity deferred or immediate, or a sum to 
 be paid on death, is required to send once in five years to 
 the registrar a return of the rate of sickness and mortality 
 which it has experienced, an abstract or report of which 
 returns shall be laid by him before one of the principal 
 secretaries of state and before parliament (v). 
 
 Any persons wishing to establish a society of this de- 
 scription, may make rules for the purpose (V). But to 
 ascertain their conformity with law, and that no part is re- 
 pugnant to another, two copies of the rules must be made 
 out and transmitted to the registrar of friendly societies ; 
 and when certified by him as conformable to law and to 
 the act, one of them is to be returned to the society, and 
 the other he is to keep in such manner as shall be from 
 time to time directed by one of the principal secretaries of 
 state (y). Upon being so certified, the rules take imme- 
 diate effect, and are binding in point of law on all the par- 
 ties concerned. 
 
 3. Government annuity societies. — The formation of these 
 is authorized by 3 & 4 Will. IV. c. 14. The object is to 
 enable persons among the industrious classes to make pro- 
 vision for themselves by purchasing, on advantageous terms, 
 a government annuity for life or term of years. Societies 
 regularly constituted under the act of parliament are em- 
 powered to be the medium for such contracts in favour of 
 any persons whom they deem to be proper objects for the 
 intended benefit. The trustees or managers of the society 
 are to act as the agents of the commissioners for reduction 
 of the national debt in this transaction (z), and the expense 
 
 (it) Sect. 15. Vide 4 & 5 Will. 4, c. 40, s. 4 ; R. 
 
 (b) Sect. 17, 18. v. Gilkes, 8 B. & C. 439 ; R. v. Cam- 
 
 (x) Sect. 4. bridgeshire, (Justices of) 8 A. & E. 
 
 (y) Sect. 7. Before this act, the 338. 
 rules had also to be confirmed by (3) Sects. 1, 13. 
 
 the justices at sessions and enrolled.
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITIES, &C. 195 
 
 to the party purchasing (who is relieved from all stamp 
 duties (a) ) is limited by the act to a very trivial amount (J). 
 The annuity is charged on the consolidated fund (c), and 
 made payable half-yearly (d), upon the draft of the trus- 
 tees (e), supported (in the case of life annuity) by proof 
 of the existence and identity of the nominee (f). It may 
 either be immediate or deferred (g), so as to commence at 
 any future period to be named by the purchaser. If deferred, 
 it may be purchased either by a single sum paid in the first 
 instance or by annual payments (h) ; and supposing the 
 purchaser to live to the period of its commencement he 
 becomes entitled to an annuity equivalent to the value of 
 all his payments, with the accumulation of compound in- 
 terest. If on the other hand, in the case of a deferred life 
 annuity, he dies before its commencement (i), or (having 
 agreed to pay by annual instalments) becomes incapable, 
 before that time, of continuing the payments (k), the whole 
 money that has been actually paid is returned, exclusive 
 of interest, to his representatives or to himself, as the case 
 may be. In the case of a life annuity, whether immediate 
 or deferred, that has come into possession, this advantage 
 is also given to the purchaser, — that, on the death of the 
 person on whose life the annuity depended, the purchaser 
 or his representatives become entitled, over and above the 
 arrears, to a sum equal to one-fourth of the annuity, pro- 
 vided it be claimed within two years after the decease (I). 
 All annuities under this act are declared to be personal 
 estate, are exempt from taxes and other charges (m), and 
 are incapable of being sold or assigned so as to pass the 
 interest of the party entitled during his lifetime, unless in 
 the case of his bankruptcy or insolvency ; but where that 
 
 (a) Sect. 19. (g) Sect. 1. 
 
 (6) Sects. 3, 13. (h) Sect. 18. 
 
 (r) Sect. 10. (i) Ibid. 
 
 (d) Sect. 11. (k) Ibid. 
 
 (e) Sect. 14. (I) Sect. 11. 
 (/) Ibid. (m) Sect. 17. 
 
 o. 2
 
 196 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 happens, they are to be repurchased by government at a 
 valuation, and the value paid over for the benefit of credi- 
 tors (ri). The annual amount of annuity to be granted to 
 any one person is not to be less than £4 nor more than £30 
 per annum (o) ; and no purchase can be made for the life 
 of a person under the age of fifteen (p). Any inhabitants of 
 a parish, forming themselves into a society for the purposes 
 contemplated by the act, are entitled to claim its benefits, 
 provided that the rector, vicar or minister of the parish for 
 the time being, or a resident justice of the peace, be one of 
 the trustees, and provided that there be no savings bank 
 legally established in the parish under the provisions of 9 
 Geo. IV. c. 92 (g). But if there be a savings bank there 
 of that description, a separate society for the purpose is un- 
 necessary, and not authorized by the 3 & 4 Will. IV. c. 14; 
 for in that case any two of the trustees or managers of the 
 savings bank may contract for government annuities under 
 the latter act, in favour of any person to whom they may 
 think proper to extend the benefit (r), and who is either a 
 depositor in the savings bank, or entitled in their opinion to 
 become a depositor therein (s). And it is to be observed, 
 that through whichever of these mediums annuities are 
 purchased, all transactions relative to them are to be subject 
 in either case (as far as possible) to the regulations made 
 by 9 Geo. IV. c. 92, and 7 & 8 Vict. c. 83, as to savings 
 banks (t). 
 
 4. Loan societies. — The law also affords protection to 
 societies established for the purpose of advancing money 
 on loan to the industrious classes, and receiving back pay- 
 ment for the same by instalments, with interest. By 3 & 
 4 Vict. c. IIO(m) (which repealed a former act of 5 & 6 
 
 («) Sect. 16. (s) Sect. 1. 
 
 (o) Sect. 2 ; 7 & 8 Vict. c. 83. (t) Sects. 26, 27 ; 7 & 8 Vict. 
 
 (/<) Ibid. c. 83, s. 21. 
 
 (</) Sect. 27. (u) Continued by 4& 5 Vict.c. 5,<3; 
 
 (r) Sect. 1. 5 & 6 Vict. c. 5 ; 6 & 7 Vict. c. 41 ;
 
 CHAP. III. — OP THE LAWS RELATING TO CHARITIES, &C. 197 
 
 Will. IV. c. 23, as far as it related to the establishment of 
 loan societies), forms of proceeding of a similar nature to 
 those prescribed in the acts for savings banks and friendly 
 societies are requisite to enable a society for advancing 
 loans to avail itself of this act. Three copies of the rules 
 must be transmitted to the barrister appointed to certify the 
 rules for savings banks (x) ; one of which he is directed to 
 keep, another to return to the society, and the third to for- 
 ward to the clerk of the peace for the county, city or bo- 
 rough in which the society is formed, in order that they 
 may be laid by him before the general quarter sessions for 
 the confirmation and allowance of that court (y). The legis- 
 lature also directs the rules of the society to be inserted in 
 a book, which is to be open at seasonable times for the 
 inspection of the members ; and it enacts that they shall be 
 binding on all persons obtaining loans, or their representa- 
 tives (z). The property of the society is vested in one or 
 more trustees for its use, who are empowered to maintain 
 and defend actions and other proceedings in their own name 
 on account of the body at large (a) ; and the treasurer and 
 other persons entrusted with the pecuniary affairs of the 
 society must give to the trustees security for the faithful 
 discharge of their duties (b). 
 
 These societies are entitled to issue debentures for money 
 deposited with them (otherwise than by way of gift) ; and 
 these, as well as all other notes and instruments given in 
 pursuance of this act, are exempted from stamp duty (c). 
 They are also placed on the same footing with savings 
 banks, in the event of the death of a claimant intestate, 
 
 7 & 8 Vict. c. 54 ; 8 & 9 Vict. c. 60 ; Whitbread, 5 Man. & G. 439. 
 
 9 & 10 Vict. c. 52; 10 & 11 Vict. (z) Sect. 7. See Brown v. Lang- 
 
 c. 53 ; 12 & 13 Vict. c. 37 ; 13 & 14 ley, 4 M. & S. 466. 
 
 Vict. c. 45 ; 14 & 15 Vict. c. 31 ; and («) Sect. 8. 
 
 15 & 16 Vict. c. 15, to 1st October, (6) Sect. 12. 
 
 1853. (c) Sects. 9, 14. Vide Bradburne 
 
 (i) Vide sup. p. 191. v. Whitbread, ubi sup. 
 
 (y) Sect. 4. See Bradburne v.
 
 198 BK. IV. OF PUBLIC BIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 who is entitled to less than £50, the production of a will or 
 letters of administration not being requisite (d). 
 
 The amount of loan which it is lawful for these societies 
 to advance is limited to £15 (e); and no second loan can 
 be granted until the first is repaid. The society is per- 
 mitted to receive, by way of discount, at the time of the 
 loan, such interest as shall be specified by its enrolled rules, 
 not exceeding £12 per cent, per annum, and to receive 
 the principal by instalments at such times and proportions 
 as its rules specify, but so that the first repayment shall 
 not be sooner than the eleventh day from the time of the 
 advance (/). 
 
 With respect to the recovery of loans, the act has pro- 
 vided a form of note, payable to the treasurer for the time 
 being, to be signed by the borrower and two sureties ; and 
 upon failure in payment, the party liable may be summoned 
 before any one of her majesty's justices of the peace, who 
 is empowered to levy what is due by distress and sale of 
 the goods of the defaulter. The society (in the person of its 
 treasurer) may also proceed against the party liable in any 
 county court having jurisdiction (</). 
 
 An abstract of the accounts of the society is to be made 
 out yearly up to the 31st December, and sent during the 
 month of January to the certifying barrister, and by him 
 laid before both houses of parliament (h). 
 
 5. Benefit building societies. — The sanction and assist- 
 ance of the legislature have also been granted to societies 
 established to raise a subscription fund, by advances from 
 which the members shall be enabled to build or purchase 
 dwelling-houses, or to purchase land, such advances being 
 secured to the society by mortgage of the premises so built 
 or purchased. By an act of the 6 & 7 Will. IV. c. 32, 
 
 (d) Sect. 11. regard to the recovery of loans ad- 
 
 (e) Sect. 13. vanced by these societies, see Timms 
 (/) Sect. 21. v . Williams, 3 Q. B. 424 ; Albon v. 
 (g) Sects. 16—18. As to the ju- Pyke, 4 Man. & Gr. 421. 
 
 risdiction of the superior courts in (h) Sect. 27.
 
 CHAP. III. — OF THE LAWS RELATING TO CHARITIES, &C. 199 
 
 societies of this description (i), upon the certificate and de- 
 posit of their rules, as required by the acts relative to friendly 
 societies, are enabled to transfer shares without payment of 
 stamp duty, and to effect reconveyances of the mortgaged 
 property by a mere receipt for the money advanced, without 
 incurring the expense of a formal instrument. They are 
 also made subject in general to the various provisions of the 
 law relating to friendly societies. 
 
 6. Industrial and provident societies. — Lastly, it has been 
 deemed expedient to extend the provisions of the act relat- 
 ing to friendly societies to such associations of working 
 men as have been formed for the mutual relief, main- 
 tenance, education and endowment of the members, their 
 husbands, wives, children or kindred, and for procuring to 
 them food, lodging, clothing and other necessaries, by exer- 
 cising or carrying on in common their respective trades or 
 handicrafts; and in favour of such associations under the 
 name of " industrial and provident societies" it has been 
 provided, by 15 & 16 Vict. c. 31, that all the provisions re- 
 lating to friendly societies shall in general, and subject to 
 certain exceptions, be applicable to them. But it is enacted 
 that no society shall be entitled to the benefit of that act 
 of which the rules shall not provide that the interest of any 
 one member shall not exceed £100, exclusive of any an- 
 nuity, and in the case of annuity, shall not exceed £30 per 
 annum ; and that nothing in the act shall be construed to 
 restrict the liability of any member to the lawful debts and 
 engagements of the society, subject however to a proviso 
 that such liability shall cease at the expiration of two years 
 from his ceasing to be a member of the society. 
 
 In conclusion we may observe, that while these benefits 
 are conferred upon the different species of institutions above 
 enumerated, upon condition that their rules are duly cer- 
 
 (i) See Cutbill v. Kingdom, 1 v. Giles, 6 C. B. 662; Reeves v. 
 Exch. 494; Morrison v. Glover, 4 White, 21 L. J., Q. B. 169. 
 Exch. 430 ; 15 Q. B. 103 ; Walker
 
 200 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 tified, one of them is partially extended even to institutions 
 whose object is different, and which do not comply with 
 that condition. For by 9 Geo. IV. c. 92, s. 27, any cha- 
 ritable or provident institution, or endowment whatever, if 
 " for the benefit of the poor," may be allowed to deposit its 
 funds in the savings bank, at a rate not exceeding £100 
 per annum, to the aggregate amount of £300.
 
 ( 201 ) 
 
 CHAPTER IV. 
 
 OF THE LAWS RELATING TO LUNATIC ASYLUMS, 
 AND THEIR MANAGEMENT. 
 
 We had occasion in a former place to explain the general 
 state of the law in reference to idiots and lunatics (a). But 
 the numerous provisions made by the legislature, in regard 
 to the safe custody and proper treatment of these persons, 
 are of a nature to deserve more particular attention than 
 we were able at that part of the work to bestow upon them ; 
 and we shall now advert to them more fully, under the 
 head of Lunatic Asylums. 
 
 By this term we understand all houses established for 
 the reception of insane persons. 
 
 They are of various descriptions : some being established 
 by law for the public benefit, under the denomination of 
 County (or Borough) Lunatic Asylums ; others instituted 
 for the public benefit by the endowment of charitable 
 donors ; and others being private houses kept by indivi- 
 duals for their own profit. 
 
 We propose under the present head to treat, I. Of the 
 provisions made by law for the establishment and main- 
 tenance of county or borough lunatic asylums. II. Of the 
 regulations as to the care and custody of insane persons in 
 lunatic asylums in general. 
 
 I. County lunatic asylums are of modern origin, having 
 been first established by 48 Geo. III. c. 96, but the regula- 
 tions at present in force are those contained in 8 & 9 Vict. 
 
 (</) Vide sup. vol. i. p. 4*55 ; vol. ii. pp. 57, 242, 49S.
 
 202 BK. TV. OF PUBLIC RIGHTS.— M. HI. SOCIAL ECONOMY. 
 
 c 126(a), 9 & 10 Vict. c. 84, and 10 & 11 Vict. c. 43. By 
 
 the provisions of these acts, it is incumbent on the justices 
 of every county or borough (not being already provided 
 therewith) to take measures to erect or provide a sufficient 
 asylum for its pauper lunatics, either separately or in union 
 with one or more other counties or boroughs (b), or with 
 the subscribers to some asylum already established by vo- 
 luntary subscription ; and the expenses of such institutions, 
 so far as they are not covered by voluntary contributions, 
 are to be defrayed by county or borough rates, and the 
 management to be vested in a committee of visitors, to be 
 elected yearly by the justices of the county or borough, or 
 (in case of union with an asylum supported by voluntary 
 subscription) partly by the justices and partly by the sub- 
 scribers (c). . 
 
 The purpose for which they are mainly designed is to re- 
 ceive the insane paupers or insane criminals of the county 
 —classes of persons for whom it may be said in general 
 that there is no other resource; particularly since the recent 
 provision of the Poor Law Amendment Act, 4 & 5 Will. 1 V . 
 c. 76, s. 45, by which it is made penal to confine insane 
 persons, who are dangerous, more than fourteen days m 
 any workhouse. . 
 
 The provisions for the reception of these classes are briefly 
 as follows: Any poor person chargeable to a parish (d), 
 and deemed to be lunatic, is, by 8 & 9 Vict. c. 126, s. 48, 
 and 9 & 10 Vict. c. 84, (an order being first obtained under 
 the hand and seal of a justice of the peace for that purpose,) 
 to be brought up by the overseers, or (if the parish form 
 part of a union) by the relieving officer, to be examined by 
 a justice; or if on account of his health or other cause he 
 cannot safely be taken before a justice, the examination 
 may be taken at the house of the supposed lunatic or else- 
 
 (a) By this act the 9 Geo. 4, c. 10 Vict. c. 84. 
 
 40 containing the former provisions (d) The chargeability to a union is 
 
 on this head, is repealed. by 12 & 13 Vict. c. 103, s. 3, to have 
 
 (ft) 10 & 11 Vict. c. 43, s. 1. the same effect. 
 
 (r) 8 & 9 Vict. c. 126, s. 12 ; 9 &
 
 CH. IV. — OF THE LAWS RELATING TO LUNATIC ASYLUMS. 203 
 
 where, either by a justice, or by an officiating clergyman of 
 the parish, together with an overseer or relieving officer. 
 In any case the assistance of a medical man must be ob- 
 tained, and if the justice (or in the case last supposed, the 
 clergyman and overseer, or relieving officer) shall be satis- 
 fied of the person's insanity, and of the propriety of his 
 confinement in a lunatic asylum (e), or if a medical certifi- 
 cate to that effect be signed by both the medical officer of 
 the parish or union, and the medical man called in to give 
 his assistance (f), such justice (or such clergyman together 
 with the overseer or relieving officer) shall order such per- 
 son to be received into the county or borough asylum ; or 
 if there is none, or it be full, then into any house licensed 
 or hospital registered for the reception of lunatics ; and 
 may make order on the parish of his last settlement or 
 county to which he is chargeable (g), for the expenses of 
 his conveyance and maintenance, and also of his removal 
 when discharged (/*). The same statute of 8 & 9 Vict. 
 c. 126, also authorizes (i) a similar mode of proceeding in 
 the case of lunatics wandering about or not properly taken 
 care of, although not chargeable to any parish (j), unless 
 they have some relative or friend willing to receive them. 
 But where any lunatic of this description is found to have 
 an estate more than sufficient to maintain his family, the 
 justices may authorize the application of such surplus to 
 
 (e) 9 & 10 Vict c. 84, s. 1. R. v. St. Maurice, ib. Q. B. 376. 
 
 (/) Ibid. s. 2. (><) 8 & 9 Vict. c. 126, s. 61. See 
 
 (g) 8 & 9 Vict.c. 126, s. 63. The 7 & 8 Vict. c. 101, s. 27, as to the 
 
 following are some of the cases power of justices over the property 
 
 which have occurred in reference to of pauper lunatics, and for farther 
 
 the settlement and removal of pau- provisions in the case of their re- 
 
 per lunatics under this statute. Ex- moval to an asylum, see 12 & 13 
 
 parte Monkleigh, 17 L.J. (M. C), Vict. 103, s. 45 ; 13 & 14 Vict.c. 
 
 76 ; R. v. Middlesex, 5 D. & L. 9 ; 101, s. 5. 
 
 R. v. Heyop, 8 Q. B. 547 ; R. v. (i) 8 & 9 Vict. c. 126, s. 49. 
 
 Radnorshire, 9 Q. B. 159; R. v. (j) If the lunatic, however, be not 
 
 Droitwich; ibid. 886; R. v. West chargeable, it is indispensable that the 
 
 Riding, 10 Q. B. 763; R. v. Tyr- order for admission should be signed 
 
 whitt, 12 Q. B. 292 ; R. v. Chatham, by two justices. 8 & 9 Vict. c. 126, 
 
 ib. 300 ; R. v. Lancashire, ib. 305 ; s. 49. 
 R. v. Wilson, 20 L. J. (M. C), 232 ;
 
 204 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 defray the expenses incurred. By another statute, 1 & 2 
 Vict. c. 14, it is farther provided as to lunatics meditating 
 crime, that if any person shall be discovered and appre- 
 hended under circumstances that denote a derangement of 
 mind, and a purpose of committing an indictable crime, and 
 two justices (assisted by a medical man) shall be satisfied 
 that he is insane, or a dangerous idiot, they may order him 
 to be conveyed to the county lunatic asylum ; or if there be 
 none in that county, then to some public hospital, or house 
 duly licensed for reception of insane persons (k). And by 
 3 & 4 Vict. c. 54, it is moreover enacted with respect to in- 
 sane criminals, that if any person in custody under sentence 
 of death, transportation or imprisonment, or under any 
 charge, or under any other than civil process, shall appear 
 to be insane, and his insanity shall be certified by any two 
 justices of the peace of the county, city, borough, or place 
 where such persons shall be confined, and also by two phy- 
 sicians or surgeons, a principal secretary of state may direct 
 his removal to some county lunatic asylum, or other proper 
 receptacle for insane persons, there to remain until a like 
 certificate has been given that his reason is restored (/). 
 
 It is not, however, for the lunatic paupers of the respec- 
 tive counties and boroughs for which they have been pro- 
 vided, or for lunatic criminals, or lunatics meditating crime, 
 that the county and borough lunatic asylums are exclusively 
 appropriated ; for by 8 & 9 Vict. c. 126, s. 70, they are also 
 made available, when the accommodation is sufficient, for 
 the reception of insane paupers, who belong to other coun- 
 ties or places (m). In order to introduce such patients, how- 
 
 (k) As to the settlement of criminal dered to be confined as the crown 
 
 pauper lunatics, see 1 & 2 Vict. c. 14, shall direct. And see Ex parte Hill, 
 
 s. 2; Regina v. Clerk of the Peace Coop. C. C. 54. And by 14 & 15 
 
 of West Riding of Yorkshire, 20 L.J. Vict. c. 81, provisions are made for 
 
 (Q. B.), 56. removing from India to the united 
 
 (/) As to this statute, see R. v. kingdom persons of European birth 
 
 Justices of Berkshire, 6 D. & L. 507. charged with crime but acquitted on 
 
 By 39 & 40 Geo. 3, c. 94, and 3 & 4 the ground of insanity. 
 Vict. c. 54, persons acquitted on the (»») By 8 & 9 Vict. c. 126, s. 29, 
 
 ground of insanity may also be or- the committee of visitors are also au-
 
 CH. IV. — OF THE LAWS RELATING TO LUNATIC ASYLUMS. 205 
 
 ever, an order must be obtained from the committee of 
 visitors or justices at sessions, as well as a certificate of the 
 pauper's insanity, and of the propriety of confining him in 
 a lunatic asylum, indorsed by a visitor or justice of the 
 county to which the asylum belongs ; and an undertaking- 
 must also be entered into by the guardians or overseers of 
 the union or parish to which such lunatic shall belong, for 
 the due payment of the expenses and for the removal of the 
 lunatic, after three days' notice (n). 
 
 For the better government of these institutions, it is pro- 
 vided by the last mentioned statute (o), that the committee 
 of visitors shall submit general rules for the government of 
 the asylum under their superintendence to a principal secre- 
 tary of state for his approval, and shall from time to time 
 make such regulations, not inconsistent with such general 
 rules, as they may deem expedient for the management of 
 the asylum, in which regulations shall be set forth the num- 
 ber and description of officers and servants to be kept, with 
 their duties and salaries ; and may also appoint and dismiss 
 such officers, and from time to time fix the weekly rate to 
 be paid for each person confined. The visitors are also 
 expressly enjoined to appoint for each asylum (among their 
 other officers) a chaplain in priest's orders, and a resident 
 medical officer ; and also a clerk, by whom a register of 
 patients is to be kept. The committee of visitors are farther 
 directed to inspect every part of every asylum in which 
 there shall be any lunatics for the counties or boroughs for 
 which they shall be visitors, once at the least in every three 
 months ; and lists of the pauper lunatics in every asylum 
 are to be sent in by the medical officer every half-year, to 
 the clerk of the peace and the commissioners in lunacy (p). 
 
 II. As to the regulations, care, and custody of lunatics in 
 general, they may be summarily stated as follows. 
 
 thorized to contract with the pro- (n) 8& 9 Vict. c. 126, s. 70. 
 
 prietors of licensed houses (vide post, (o) Sect. 40. 
 
 206) for the care and maintenance of (p) As to these commissioners, 
 
 pauper lunatics. vide post, p. 206.
 
 206 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 By 8 & 9 Vict, c 100 (r), it is not lawful for any person 
 to receive two or more lunatics into any house, unless such 
 house shall be a county or borough lunatic asylum (s), or a 
 hospital duly registered under that act, or a house for the 
 time being duly licensed under that or some other act of 
 parliament (t) ; and in general no such persons can be legally 
 received in a house so licensed without a written order from 
 the person sending him, and a medical certificate of two 
 physicians, surgeons, or apothecaries, in such form as pre- 
 scribed by the acts (u) ; nor can even a single person be 
 legally received or taken charge of in an unlicensed house 
 as a lunatic without such order and certificate, unless the 
 person receiving him be one deriving no profit from the 
 charge, or be his committee, appointed by the lord chan- 
 cellor (x). But in the case of pauper lunatics the order is 
 to be under the hand and seal of a justice of the peace, or 
 signed by the officiating clergyman and one of the overseers 
 or the relieving officer of the parish to which he belongs, 
 and the medical certificate (y) is to be signed by one phy- 
 sician, surgeon, or apothecary. The licences in question 
 are to be granted (for any period not exceeding thirteen 
 calendar months) in London and Westminster, and many 
 of the suburban parishes, by a board of persons composed 
 in part of medical men and of barristers, established by 8 
 & 9 Vict. c. 100, s. 3, under the name of " Commissioners 
 in Lunacy," at a quarterly or special meeting ; in the coun- 
 try, by the justices for the county or borough (z) in general 
 
 (r) By this act the 2 & 3 Will. 4, (u) See Budd v. Foulks, 3 Camp, 
 
 c. 107 ; 3 & 4 Will. 4, c. 64 ; 5 & 6 404 ; 8 & 9 Vict. c. 100, s. 45 ; R. 
 
 Will. 4, c. 22; 1 & 2 Vict. c. 73 ; 5 ». Jones, 2 B. & Ad. 611 ; Re Fell, 3 
 
 Vict. c. 4 ; and 5 & 6 Vict. c. 87, are D. & L. 373 ; Re Shuttleworth, 9 
 
 repealed, except so far as theyrepeal Q. B. 651 ; Norris v. Seed, 3 Exch. 
 
 any other acts. The Royal Hospital 782. 
 
 of Bethlem is (in general) excepted (i) 8 & 9 Vict. c. 100, s. 90. 
 
 from the provisions of 8 & 9 Vict. (y) Ibid. s. 48. 
 
 cc. 100, 126. (s) If it is in a borough, the con- 
 
 (s) 8 & 9 Vict. c. 100, s. 114. sentof the recorder must be obtained. 
 
 (0 Ibid. s. 44. 8 & 9 Vict. c. 100, s. 31.
 
 CH. IV. — OF THE LAWS RELATING TO LUNATIC ASYLUMS. 207 
 
 or quarter sessions (a) ; and many provisions are made, but 
 of a kind too minute and specific to be particularly detailed 
 in this place, for the effectual superintendence of licensed 
 houses, among which are comprised, inter alia, enactments, 
 that the keepers of such houses shall constantly report the 
 admission, death, removal, discharge, or escape of pa- 
 tients (b); that the houses shall be provided with proper 
 medical attendance (c) ; that they shall be frequently visited 
 and inspected by the commissioners, and by visitors ap- 
 pointed in the country by the magistrates at quarter ses- 
 sions (d), at uncertain and unexpected intervals, and in 
 certain cases even by night (e); that reports shall be made 
 by the visitors to the commissioners, and by the commis- 
 sioners to the lord chancellor, in June in every year, of the 
 state of the houses visited by them, and the care of the 
 patients therein (/) ; and that any person detained therein 
 without sufficient cause, with the exception of persons 
 found lunatic under a commission, or confined by order of 
 the secretary of state for the home department, or under 
 the order of any court of criminal jurisdiction, may be set 
 at liberty by the commissioners or visitors (g). 
 
 Besides these provisions in regard to licensed houses, the 
 commissioners are moreover directed, by the 8 & 9 Vict. 
 c. 100, s. 110, to visit once in every year the county lunatic 
 asylums and every gaol or workhouse where any lunatics 
 may be confined, and to report as to their condition, system, 
 and regulations. Authority is also given to the lord chan- 
 cellor, or a principal secretary of state, to direct any of the 
 commissioners or any other person to visit and examine at 
 any time any lunatic under the care of a committee, or under 
 the care of a person deriving no profit from the charge, or 
 confined as a criminal or state prisoner, or under any re- 
 straint whatever as a lunatic, and also to visit the Royal 
 
 («) 8 & 9 Vict. c. 100, s. 17. (e) Sect. 71. 
 
 (6) Sects. 53, 54, 55. (/) Sect. 88. 
 
 (c) Sects. 57, 58, 59. (g) Sects. 76—81. 
 
 (d) Sects. 61, 62.
 
 208 BK.IV. OF PUBLIC RIHGTS. PT. III. SOCIAL ECONOMY 
 
 Hospital of Bethlehem, which is otherwise excepted from 
 the operation of this act (//). 
 
 In addition to all which regulations, we may notice, 
 lastly, the provisions of 3 & 4 Will. IV. c. 36, and 5 & 6 
 Vict. c. 84, applicable only to the particular case of per- 
 sons found idiot or insane under an inquisition in the nature 
 of a writ de lunatico inquirendo ; by which it is enacted, 
 that the lord chancellor may appoint three persons, two of 
 whom shall be physicians, and one a barrister of five years' 
 standing, to be visitors for superintending, inspecting, and 
 reporting upon the care and treatment of all persons so 
 circumstanced ; and that for this purpose there should be 
 joined with them the "Masters in Lunacy," being two ju- 
 dicial persons lately appointed for the discharge of all the 
 duties, generally, under commissions in the nature of writs 
 de lunatico inquirendo (i). 
 
 (h) Sects. 112, 113, 116. tue of that act, dated 1st December, 
 
 (i) Vide 8 & 9 Vict. c. 100, s. 2 ; 1845. 
 and orders in lunacy made by vir-
 
 CHAP. V. — OF THE LAWS RELATING TO GAOLS. 209 
 
 CHAPTER V. 
 
 OF THE LAWS RELATING TO GAOLS. 
 
 Another subject on which very anxious and elaborate at- 
 tention has been repeatedly bestowed by the legislature is 
 that of gaols. 
 
 It is a principle of the common law, founded on a due 
 regard to the public liberty and welfare, that a gaol can be 
 erected only by the authority of parliament (a) ; and the 
 same policy has also established the doctrine that a gaol 
 when once erected belongs in every instance to the sove- 
 reign (b) ; being thus placed under the general control and 
 protection of the same executive power from which ema- 
 nates, in contemplation of law, the whole administration of 
 civil and criminal justice. 
 
 With respect to the immediate care and superintendence 
 of gaols, they are vested in some particular cases, by im- 
 memorial usage, in the lords of franchises (c), or privileged 
 jurisdictions, but these instances are few; and, by the gene- 
 ral effect of the statute law on this subject, they belong in 
 other cases to the sheriffs of the counties in which the 
 gaols are respectively situate (d). The actual keeper or 
 gaoler is in contemplation of law only the sheriff's deputy, 
 and if he negligently suffers a prisoner to escape, the sheriff, 
 
 (a) 2Inst.705; Bac. Ab. Gaol(A.); thereof shall be made, intrust for the 
 
 R. v. Earl of Exeter, 6 T. R. 373 ; public purpose. See 5 & 6 Vict. c. 
 
 et vide R. v. Justices of Lancashire, 98, s. 1. 
 
 11 Ad. & El. 144. (c) 2 Inst. 598; 1 Hale, P. C. 
 
 (6) 2 Inst. 589. The lands pur- 598 ; Bac. Ab. Gaol (B.) 
 
 chased for a prison or a court-house (d) 14 Edw. 3, st. 1, c. 10; 19 
 
 are vested in the persons or body Hen. 7, c. 10 ; 4 Geo. 4, c. 64, s. 6. 
 corporate to whom the conveyance 
 
 VOL. III. P
 
 210 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 as his principal will be responsible (e). The gaoler him- 
 self, however, is punishable for any official misconduct, 
 and that by fine and imprisonment, and, in general, for- 
 feiture of office. In the case, indeed, of his voluntarily 
 permitting the escape of a felon, he becomes implicated in 
 his crime ( /). 
 
 There is a species of gaol which does not fall under the 
 sheriff's charge ; but is governed by a keeper wholly inde- 
 pendent of that officer. It is termed, by way of distinction 
 from the gaol properly so called or common gaol, a House 
 of Correction, or (in the city of London) a Bridewell (g). 
 
 These houses of correction (which were first established, 
 as it would seem, in the reign of Elizabeth) were originally 
 designed for the penal confinement (after conviction) of 
 paupers refusing to work, and other persons falling under 
 the legal description of vagrant (h). And this was at first 
 their only application ; for in other cases the common gaol 
 of the county, city, or town in which the offence was 
 triable, was (generally speaking) the only legal place of 
 commitment (£). The practice however in this respect was 
 to a certain extent altered in the reign of George the first, 
 when " vagrants and other persons charged with small 
 offences" were for the first time allowed to be committed 
 to the house of correction for safe custody before convic- 
 tion (k) ; and at a subsequent period it was provided, that 
 as to vagrants the house of correction should be the only 
 legal place of commitment (/). The uses however of a 
 gaol of this description have been lately carried much far- 
 ther. For by 5 & 6 Will. IV. c. 38, ss. 3, 4, reciting that 
 
 (e) 1 Hale, P. C. 597 ; 2 Hawk. Correction ; Style, 57. As to Bride- 
 
 c. 19, ss. 27, 29; R. v. Fell, 1 Ld. well, see Strype's Stow, 1. 5, c. 30. 
 
 Raym. 424. As to the liability of By 15 & 16 Vict. c. 70, a new house 
 
 the sheriff in general, vide sup. vol. of correction is established for the 
 
 ii. p. 610. city of London. 
 
 (/) Vide post, bk. vi. c. 9, tr. 5 ; (/,) 39 Eliz. c. 4; Jacob, Diet, in 
 
 R. v. Fell, 1 Ld. Raym. 424. As to tit. 
 
 the liability of gaolers for abuses (i) 5 Hen. 4, c. 10; 23 Hen. 8, 
 
 committed, vide Yorke v. Chapman, c. 2 ; 6 Geo. 1, c. 19. 
 
 10 Ad. & El. 207 ; S. C. 11 Ad. & (k) Ibid. s. 2. 
 
 El. 813; 32 Geo. 2, c. 28. (/) 4 Geo. 4, c. 64, s. 7. 
 
 (g) Jacob, Diet. tit. House of
 
 CHAP. V. — OF THE LAWS RELATING TO GAOLS. 21 1 
 
 great inconvenience and expense had been found to result 
 from the practice of committing to the common gaol, where 
 it happens to be remote from the place of trial, it is enacted, 
 that a justice of the peace or coroner may commit for safe 
 custody to any house of correction situate near the place 
 where the assizes or sessions are to be held, and that of- 
 fenders sentenced in those courts to death, transportation, 
 or imprisonment, may be committed, in execution of such 
 sentence, to any house of correction for the county. And 
 by 14 & 15 Vict. c. 55, ss. 20, 21, it is provided, that, after 
 any gaol or house of correction for any county has, by order 
 of the justices at quarter sessions (approved by a principal 
 secretary of state), been declared a fit prison for the pur- 
 pose, it shall be lawful to commit to such gaol or house of 
 correction for trial at the next assizes for the county any 
 person charged with an offence triable at such assizes; it 
 being directed, however, that every person so committed 
 shall, in due time, be removed to the common gaol, in order 
 to take his trial (m). 
 
 The erection, maintenance, and regulation of gaols are 
 provided for by certain acts of parliament, of which the 
 4 Geo. IV. c. 64, is the principal (?i). These acts, which 
 apply generally to all gaols (subject only to a few excep- 
 tions), provide (among other things) that at the expense of 
 every county in England and Wales there shall be main- 
 tained one common gaol (o) ; and at the expense of every 
 
 (m) By 13 & 14 Vict. c. 91, the Geo. 4, c. 40 ; 7 Geo. 4, c. 18 ; 5 & 
 
 justices of a borough with a separate 6 Will. 4, c. 38, and c. 76, s. 114, 
 
 gaol or house of correction, may com- &c ; 6 & 7 Will. 4, c. 105; 7 Will, 
 
 mit prisoners to the same for trial at 4 & 1 Vict. c. 78, s. 37 ; 2 & 3 Vict, 
 
 the assizes, but no prisoner charged c. 56 ; 3 & 4 Vict. c. 25 ; 5 & 6 Vict, 
 
 with murder can be so dealt with, but cc. 53, 98 ; 7 & 8 Vict. c. 50 ; 11 & 
 
 must be committed to the county 12 Vict. c. 39. The former acts are 
 
 gaol, and all the prisoners must be almost all recited in 4 Geo. 4, c. 64, 
 
 transferred to such county gaol be- and are (for most purposes) repealed 
 
 fore their trial. by that statute. 
 
 («) As to 4 Geo. 4, c. 64, see R. (o) As to the particular case of 
 
 v. Cope, 6 A. & E. 226 ; see also as the gaol of Newgate, which, though 
 
 to prisons, 5 Geo. 4, cc. 12, 85 ; 6 in London (a county in itself), is 
 
 p. 2
 
 212 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 county or division having a distinct commission of the 
 peace, at least one house of correction (p) ; the jurisdiction 
 as to maintaining and visiting these prisons being vested in 
 the justices of the peace in quarter sessions assembled, or 
 (in the case of separate divisions) in a court of gaol ses- 
 sions, of which the justices of each division shall be 
 members ((/). Powers are besides given to the justices 
 at quarter sessions to direct gaols (where wanting) to be 
 built, or those already existing to be rebuilt, altered, or re- 
 paired, as occasion may require (r) ; the expenses thereby 
 incurred, as well as those attending the maintenance of the 
 prisoners, being defrayed by the means of rates assessed 
 on the county (s). Similar powers as to building, enlarging 
 and repairing gaols are also given, as regards boroughs, 
 to the town councils of such boroughs (t), and they are 
 authorized to borrow money for those purposes (u) ; and it 
 is enacted in favour of places too small to afford a separate 
 gaol, that boroughs may contract with counties for the 
 support and maintenance of town prisoners in the county 
 gaol or house of correction (v), and may enter into similar 
 contracts in certain cases with persons having charge of 
 the gaol of any other borough (a:). Provision is also made 
 enabling the justices of any county, and the council of any 
 
 nevertheless a gaol for the county of 
 Middlesex, see R. v. Cope, 6 Ad. & 
 E. 226. 
 
 (p) 4 Geo. 4, c. 64, s. 2. 
 
 (<y) 4 Geo. 4, c. 64, s. 4 ; 5 Geo. 4, 
 c. 12,s.l. By7Will.4&l Vict.c.78, 
 s. 14, all county gaols, courts, &c, 
 though locally included within the 
 boundaries of a city or borough, 
 under 6 & 7 Will. 4, c. 103, shall be 
 nevertheless considered as still under 
 the exclusive jurisdiction of the 
 county. 
 
 (r) 4 Geo. 4, c. 64, s. 45 ; 5 & 6 
 Will 4, c. 76, s. 116. 
 
 (s) 4 Geo. 4, c. 64, s. 68. The 
 expenses of conveying to prison, are 
 
 also a charge on the county rates, 11 
 
 6 12 Vict. c. 42, s. 26; or in the 
 case of boroughs with a separate 
 court of quarter sessions, on the bo- 
 rough rates, 12 & 13 Vict. c. 82. 
 
 (0 7 Will. 4 & 1 Vict. c. 78, s. 37. 
 
 (») 5 & 6 Vict. c. 98, s. 3. And 
 see 11 & 12 Vict. c. 39, to facilitate 
 the raising of money by corporate 
 bodies for building or repairing pri- 
 sons. 
 
 (v) 5 Geo. 4, c. 85, s. 1 ; et vide 
 
 7 Will. 4 & 1 Vict. c. 78, s. 42. 
 
 (j) 5 & 6 Will. 4, c. 76, ss. 115, 
 117. See Queen v. Birmingham, 10 
 Q. B 116.
 
 CHAP. V. — OF THE LAWS RELATING TO GAOLS. 213 
 
 borough, to agree with one or more other counties or 
 boroughs towards building, altering or repairing any prison 
 to be used as a district prison, and towards providing and 
 maintaining a court-house for the district (?/). And it is 
 provided that every borough that has obtained a grant of a 
 separate court of sessions of the peace, and that has not 
 entered into any such contract or agreement as aforesaid, 
 shall be bound to maintain at least one common gaol and 
 one house of correction of its own (z). 
 
 It thus appears that the expenses connected with gaols 
 are in general to be defrayed at the public charge of the 
 county or town to which they respectively belong. In 
 some cases, however, that obligation attaches, by antient 
 custom or otherwise, to certain individuals or bodies cor- 
 porate ; and it is to be observed that the general provisions 
 above referred to have no effect in exempting such persons 
 from their antecedent liability (a). 
 
 From the manner in which gaols are erected and main- 
 tained, we may now pass to the consideration of the 
 manner in which they are regulated. Every prison to 
 which these acts extend is to have a resident keeper, and 
 resident matron to superintend the female prisoners, as also 
 a visiting chaplain and surgeon (b), and to be visited three 
 times a year by two or more justices of the peace ap- 
 pointed at the quarter sessions for that purpose (c). The 
 
 (y) 5 & 6 Vict. c. 53, s. 1 ; 7 & 8 sess a sufficient gaol and house of 
 
 Vict. c. 50. And see 5 & 6 Vict. correction, shall he liahle to contri- 
 
 c. 109, and 11 & 12 Vict. c. 101, as bute to any new gaol for the county, 
 
 to providing lock-up houses for tem- though it shall be liable to a charge 
 
 porary confinement previous to com- in respect to the expenses of persons 
 
 mitmentfor trial, and enabling coun- committed for offences within the 
 
 ties and boroughs to enter into agree- borough, and sent to the prison of 
 
 ment with each other as to erecting the county, 
 
 the same. (a) 5 Geo. 4, c. 85, s. 15. 
 
 (s) 5 & 6 Vict. c. 98, s. 15 ; etvide (b) 4 Geo. 4, c. 64, ss. 10, 28, 33. 
 
 7 & 8 Vict. c. 93. By 12 & 13 Vict. As to the appointment of the sur- 
 
 c. 82, no borough to which a sepa- geon, see Hammond v. Peacock, 1 
 
 rate court of quarter sessions has Exch. 41. 
 
 been granted, and which shall pos- (c) 4 Geo. 4, c. 00, s. 16.
 
 214 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 visitors thus appointed are to make reports at every session 
 as to the state of the prisons and prisoners within their ju- 
 risdiction (rl); which are to be the basis of a general report 
 from the quarter sessions, to be drawn up and transmitted 
 annually by the chairman to a principal secretary of state, 
 and to be afterwards laid before both Houses of Parlia- 
 ment^). It is also provided, that any justice of the peace 
 within whose jurisdiction a gaol is situate, may enter and 
 examine it and report upon abuses without being appointed 
 a visitor (_/*). 
 
 With respect to the particular management of the pri- 
 soners the acts contain a variety of provisions too numer- 
 ous and specific for insertion in this place. In addition to 
 which permanent legislative regulations, others may from 
 time to time (g) be laid down at the discretion of the 
 proper authorities; that is (as regards the London prison- 
 ers), the court of mayor and aldermen of that city, and (as 
 regards all others) the justices of the peace within whose 
 jurisdiction the prison is situate (A). But it is provided (i) 
 that no such additional rules shall be enforced until they 
 shall be submitted to one of the principal secretaries of 
 state, and his certificate as to their propriety shall be ob- 
 tained. The subject of prison discipline indeed is placed 
 still more directly under the control of her majesty's go- 
 vernment; for the clerks of the peace for every county, and 
 the chief magistrates of all towns, are directed to transmit 
 annually to one of the principal secretaries of state copies 
 of all regulations in force in their respective prisons, and 
 also of such new and additional rules as may be proposed 
 for the government thereof; and the secretary of state may 
 make such alterations in the same or such additions thereto 
 as he may think expedient — or in any case where no copies 
 
 (d) 4 Geo. 4, c, CO, s. 23. (h) 4 Geo. 4, c. 64, s. 12 ; 5 & 6 
 
 (e) Ibid. ss. 22, 24; 2 & 3 Vict. Will. 4, c. 76, s. 116; 7 Will. 4 & 1 
 c. 56, s. 10. Vict. c. 78, s. 38. 
 
 (/) 4 Geo. 4, c. 64, s. 17. (i) 5 & 6 Will. 4, c. 38. 
 
 (g) Preamble to 4 Geo. 4, c. 64.
 
 CHAP. V.— OF THE LAWS RELATING TO GAOLS. 215 
 
 are transmitted he may certify what rules he may deem 
 necessary for the government of the prison in respect of 
 which such omission takes place — and the rules so certified 
 shall take effect in law and supersede all others heretofore 
 established by the subordinate authorities. A principal 
 secretary of state is also empowered to appoint a sufficient 
 number of proper persons as inspectors for every place of 
 imprisonment in Great Britain; who are to visit and inquire 
 into the state of these establishments, and make annual 
 reports of the results of their inquiries to a principal secre- 
 tary of state ; which reports shall be afterwards laid before 
 both houses of parliament (k). 
 
 Besides the ordinary gaols and houses of correction for 
 counties and boroughs, there are some particular prisons 
 which are the subject of separate and specific regulation. 
 As- 
 
 1. The Queens Prison; which is appropriated to the 
 debtors and criminals confined under process or by autho- 
 rity of the superior courts at Westminster, and the High 
 Court of Admiralty, and also to persons imprisoned under 
 the bankrupt law(Z). There existed till of late three sepa- 
 rate gaols for the reception of such prisoners, viz. the 
 Queen's Bench, the Fleet, and the Marshalsea Prisons. 
 But by 5 & 6 Vict. c. 22, (amended by 11 & 12 Vict. c. 7,) 
 these are now consolidated into one(m). Towards the main- 
 tenance of the prisoners herein contribution is made out of 
 the county stock or rates of the several counties and divi- 
 sions in England and Wales (w) ; and as to management it 
 is subject to such regulations as in the acts contained, and 
 to such as shall be made from time to time by one of her 
 majesty's principal secretaries of state, and afterwards laid 
 before parliament (o). 
 
 {k) 5 & 6 Will. 4, c. 38, s. 7. (m) See Wade v. Wood, 1 C. B. 
 
 (0 5 & 6 Vict. c. 22. See as to 1G3. 
 
 Admiralty prisoners under sentence (») 55 Geo. 3, c. 50 ; 5 & 6 Vict. 
 
 of Courts Martial, 5 & 6 Vict. c. 98, c. 22. 
 
 s. 27. (o) 5 &6 Vict. c. 22.
 
 216 BK. IV. OF PUBLIC EIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 2. The Milbank Prison (p) (formerly called the Peni- 
 tentiary at Milbank) ; for the reception of convicts under 
 sentence or order of transportation, to be there confined 
 until the sentence or order shall be executed, or until the 
 convict shall be entitled to his freedom, or be removed to 
 some other place of confinement (q). The justices of the 
 peace have no authority over this prison > r), but it is placed 
 by 13 & 14 Vict. c. 39, under a board of three persons, to 
 be appointed by a principal secretary of state, as directors of 
 the prisons of Parkhurst, Pentonville, Milbank, and of the 
 places for confinement of male offenders in England under 
 sentence of transportation, and to be a body corporate, by 
 the name of " The Directors of Convict Prisons." These 
 directors are to make regulations for the government of the 
 Milbank prison, subject to the approbation of a principal 
 secretary of state, and to make yearly reports to such secre- 
 tary, as to all matters relating to the prison or the convicts; 
 which reports are to be afterwards laid before both houses 
 of parliament (s). A principal secretary of state is also to 
 appoint for the prison a governor, a chaplain, a medical 
 officer, a matron, and such other officers as may be deemed 
 necessary (t), 
 
 3. The Parkhurst Prison ; established in the Isle of 
 Wight, for the confinement and correction of young of- 
 fenders (u), male or female, as well those under sentence 
 of transportation as those under sentence of imprisonment. 
 The rules for this prison are to be made by one of the 
 principal secretaries of state, and afterwards laid before 
 parliament, and they may include the infliction of corporal 
 punishment on all such offenders. By the same authority 
 a governor, chaplain, surgeon, and matron, and all other 
 
 (p) 6 & 7 Vict. c. 26, repealing (r) Sect. 8. 
 
 the former acts relating to the Peni- (s) Sects. 10, 11. Et vide 13 & 14 
 
 tentiary, amended by 11 & 12 Vict. Vict. c. 39, s. 1. 
 c. 104. Et vide 5 & 6 Vict. c. 98, (t) Sect. 5. 
 
 s. 26 ; 11 & 12 Vict. c. 104 ; 13 & (u) 1 & 2 Vict* c. 82. See 5 & 6 
 
 14 Vict. c. 39. Vict. c. 98, s. 12. 
 
 (q) 6 & 7 Vict. c. 26, sects. 12, 14.
 
 CHAP. V. — OF THE LAWS RELATING TO GAOLS. 217 
 
 necessary officers, are to be appointed. This establishment 
 is moreover placed by 13 &: 14 Vict. c. 39, under the super- 
 intendence of the " Directors of Convict Prisons (u)," who, 
 if they discover any abuses, are to report the same to a 
 principal secretary of state, and shall also make a half- 
 yearly report as to its state and condition. 
 
 4. The Pentonville Prison ; established by 5 & 6 Vict, 
 c. 29, and provided for the confinement of male convicts 
 under sentence or order of transportation (x), until they 
 shall be transported or entitled to their freedom, or re- 
 moved to some other place of imprisonment (y). It is 
 placed by 13 & 14 Vict. c. 39, under the superintendence 
 of the same authority as the prisons of Milbank and Park- 
 hurst, viz. " The Directors of Convict Prisons" (z), and 
 power is conferred on them to hold meetings and make 
 rules, subject to the approbation of a principal secretary of 
 state (a), and with the like approbation to appoint officers, 
 consisting of a governor, a chaplain, a medical officer, and 
 such others as may be found necessary (b). And it is pro- 
 vided, that the directors shall from time to time appoint 
 one or more of themselves to visit the prison during the 
 intervals between their meetings, and, if they think fit, may 
 delegate power to such visitors to make orders in cases of 
 pressing emergency (c). And farther, that the directors 
 shall annually make reports to the secretary of state as to 
 all matters relating to the prison, its discipline and manage- 
 ment, which reports shall afterwards be laid before both 
 houses of parliament (d). 
 
 (v) Vide sup. p. 216. (a) 5 & 6 Vict. c. 29, sect. 9. 
 
 (a) 5 & 6 Vict. c. 29, s. 14. (b) Sect. 6. 
 
 (_y) Sect. 16. (c) Sect. 10. 
 
 (s) 5 & 6 Vict. c. 29, s. 11. Et (d) Sect. 13. 
 vide 13 & 14 Vict. c. 39.
 
 218 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 CHAPTER VI. 
 
 OF THE LAWS RELATING TO HIGHWAYS. 
 
 Highways (or public roads) are those ways which all the 
 subjects of the realm have a right to use; and the term (for 
 some purposes at least) also applies to ways common to the 
 inhabitants of some particular parish or district only, as in 
 the case of church paths (a). The roads now in use have 
 generally either existed by prescription (that is, from time 
 immemorial), or have been constructed under the authority 
 of local acts of parliament. They may be traced, however, 
 in some cases, to a different origin ; for the owner of any 
 land may, if he think fit, dedicate a way over it to the use 
 of the public; and if he long permit strangers to pass over 
 it, at their free will and pleasure, and without molestation, 
 a dedication of this kind will be presumed (b). 
 
 The liability to keep highways in repair (in whatever 
 manner they may happen to have first originated) is of 
 common right incumbent in general upon the parishes in 
 which they respectively lie(c), but in some cases it attaches 
 (by prescription) to particular townships, or other divisions 
 of parishes ; and occasionally to private individuals, bound 
 ratione tenures, or in right of their estates, to repair some 
 particular highway (d). Where an individual is liable to 
 repair, he often claims, by grant or prescription, a toll of 
 
 (u) See the Highway Act, 5 & 6 Roberts v. Hunt, 15 Q. B. 17. 
 Will. 4, c. 50, s. 5. (c) See Queen v. Inhabitants of 
 
 (/)) As to highways by dedication, Lordsmere, 15 Q. B. 689. 
 vide Barraclough v. Johnson, 8 A. & (d ) 3 Geo. 4, c. 126, s. 107 ; 5 & 6 
 
 E. 99 ; Surrey Canal Company v. Will. 4, c. 50, s. 62 ; R. v. Eastring- 
 
 Hall, 1 Man. & G. 392 ; Poole v. ton, 5 A. & E. 765 ; R. v. Heage, 1 
 
 Huskinson, 11 Mee. & W. 827; Q. B. 128.
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 219 
 
 that species called toll thorough ; or (where the soil is his) 
 toll traverse{e). The case of bridges is differently provided 
 for. The expense of maintaining these is defrayed indeed 
 (like that of roads) by the public, this having been part of 
 the trinoda necessitas, to which every man's estate was by 
 the antient law subject, viz., expeditio contra hostern, arcium 
 constructio, et pontium rcparatxo (/). But it is incumbent, 
 not on the parishes, but generally, on the counties at large, 
 in which the bridges are situate (g). And where a parish 
 is bound by prescription (as is sometimes the case(/«)) to 
 repair a bridge, there is a statutory provision, which gives 
 effect to any contract between the county and the parish, for 
 performing the repairs in future at the expense of the former, 
 and relieving the latter from the charge. The liability of 
 the county extended at common law, not only to the bridge 
 itself, but to so much of the road as passed over it, and 
 even to so much as formed its ends or approaches, — and by 
 stat 22 Hen. VIII. c. 5, the county was bound to repair 
 three hundred feet either way from the bridge. And such 
 is still the state of the law as to all bridges built prior to 
 the passing of the Highway Act, 5 & 6 Will. IV. c. 50. 
 But by that act (i) it is provided, that in the case of all 
 bridges thereafter to be built, the repair of the road itself 
 passing over or adjoining to a bridge shall be done by the 
 parish, or other parties bound to the general repair of the 
 highway, of which it forms a portion ; the county being 
 still subject, however, to its former obligation, as regards 
 
 (e) Com. Dig. Toll; Willes, 115 ; of county bridged, see 4 & 5 Vict. 
 
 Brett v. Beales, 10 B. & C. 508; c. 49. As to the repair of them 
 
 Lord Middleton v. Lambert, 1 A. & ratione tenura, Baker v. Greenhill, 3 
 
 E. 401; R. v. Marquis of Salisbury, Q. B. 148. As to the manner of 
 
 8 A. & E. 716 ; 3 Nev. & P. 476. providing for the repair of bridges in 
 
 (/) 1 Bl. Com. 357. any borough, in cases in whicb the 
 
 (g) Viner's Ab. Bridges (A); R. borough, and not the county, is lia- 
 
 i: West Riding of Yorkshire, 5 Burr. ble to the repair, see 13 & 14 Vict. 
 
 2594 ; R. v. New Sarum, 7 Q. B. c. 64. 
 
 )41. As to borrowing money on (h) R. v. Hendon, 4 B. & Ad. 62. 
 
 Tedit of the county rate, for repair (i) Sect. 21.
 
 220 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 " the walls, banks, or fences of the raised causeways, and 
 " raised approaches to any bridge, or the land arches 
 " thereof." 
 
 The same act (j) contains provisions, designed to protect 
 parishes from being subjected to unreasonable charge, in 
 respect of ways dedicated to the public. It enacts, that 
 no road made at the expense of any individual, or body 
 corporate, shall be deemed a highway which the parish is 
 liable to repair, unless three calendar months' notice shall 
 be given to the parish surveyor, of an intention to dedicate 
 such road to the public (/e). Upon notice being so given, 
 a vestry is to be called to consider whether the road is of 
 sufficient utility to justify its being kept in repair by the 
 parish, and in the event of the vestry holding the negative, 
 the justices, at the next special sessions for the highways, 
 are to determine the matter. Other provisions are added, 
 the object of which is to ensure that the road shall be 
 originally constructed in a proper and substantial man- 
 ner, before the expense of repairing it is cast upon the 
 parish (I). 
 
 Any parish, county, or other party bound to repair a road 
 or bridge, and neglecting the duty, is liable at common law 
 to an indictment (m). 
 
 Though the maintenance of all the highways in the king- 
 dom is legally chargeable, either upon the parishes through 
 which they respectively pass, or on some particular district 
 or individual, the expense of the most frequented and im- 
 portant roads is nevertheless chiefly defrayed by other 
 means. These are kept in order (and many of them were 
 originally constructed) under the authority of local acts of 
 parliament, called Turnpike Acts, by which the manage- 
 ment of such roads is usually vested, for a certain term of 
 years, in trustees or commissioners, who are empowered 
 
 0) 5 & 6 Will. 4, c. 50, s. 23. (m) Viner's Ab. Bridges (B). As 
 
 (k) As to the liability before this to the form of this indictment, see 
 
 statute, see R. v. Leake, 5 B. & Ad. Queen v. Inhabitants of Turweston, 
 
 469. 20L.J. (M. C.)46. 
 (/) R. v. Leake, 5 B. & Ad. 469.
 
 CHAP. VI. OF THE LAWS RELATING TO HIGHWAYS. 221 
 
 to erect toll-gates, and to levy tolls from passengers, as a 
 fund for defraying the expense of repairs or improvements. 
 There is thus a distinction between highways in general and 
 turnpike roads. It is to be understood, however, with re- 
 spect to the latter, that the collection of toll does not su- 
 persede the other means provided by law for maintaining 
 highways. If a turnpike road or bridge is allowed by the 
 trustees to fall out of repair, the parishes or other parties 
 who would have been bound to make it good, supposing it 
 not to have become the subject of a turnpike trust, are still, 
 in general, liable to that obligation (n). But they may be 
 exempt from it under particular circumstances; for the 
 trustees of a turnpike road may, in certain cases, enter into 
 contract with such parties, and undertake to repair exclu- 
 sively out of the trust (o) ; and where any contract of this 
 description is in force, the persons originally liable are of 
 course discharged from all responsibility. The turnpike 
 trusts are very numerous, but there is one, which, from its 
 importance, deserves a specific notice. It is that of the 
 " turnpike roads of the metropolis, north of the Thames," 
 the different trusts of which were consolidated into one by 
 7 Geo. IV. c. cxlii. amended by 10 Geo. IV. c. 59. 
 
 With respect to those highways, or parts of highways, 
 which pass through, and form the streets of towns (p), we 
 may observe that they are generally the subject of distinct 
 provision, under acts of parliament of another description, 
 usually called Paving acts (q), among which, we may 
 notice particularly the 57 Geo. III. c. xxix. (r), for paving 
 and regulating the streets of the metropolis (s). There are 
 
 (») 7 & 8 Geo. 4, c. 24, s. 17; 3 (?) See 10 & 11 Vict. c. 34, con- 
 
 Geo. 4, c. 126, s. 110; 4 & 5 Vict, solidating into one statute the enact- 
 
 c. 59 ; R. v. Netherthong, 2 B. & A. ments usually inserted in acts of this 
 
 179; Bussey v. Storey, 4B. & Adol. description. 
 
 109. (r) Called Angelo Taylor's Act. 
 
 (o) 3 Geo. 4, c. 126, ss. 106, 107, As to this statute see Filbey v. 
 
 108. Combe, 2 Mee. & W. 677; Love- 
 
 (p) As to streets taken in hand by ridge v. Hodsell, 2 B. & Adol. 602 ; 
 
 a " Local Board of Health," esta- R. v. Halls, 3 Ad. & E. 494. 
 
 blished under 11 & 12 Vict. c. 63, (s) See 5 & 6 Will. 4, c. 50,ss. 112, 
 
 (vide post, p. 260,) see ss. 69, 70, of 1 13 ; R. v. Halls, 3 Ad. & El. 494. 
 that statute.
 
 222 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 also acts in force with respect to the city of London in 
 particular, containing provisions for the prevention of the 
 misconduct of drivers of carriages, and regulating the 
 loads of carts and waggons, and the construction of their 
 wheels (t). 
 
 Having thus taken some view of the general state of the 
 law relative to public roads or highways, we propose now 
 to notice the particular practical provisions applicable to 
 the several classes. — I. Of highways in general. II. Of 
 turnpike roads. 
 
 I. Highways in general. — These are regulated by the 
 Highway act, 5 & 6 Will. IV. c. 50, (amended by 4 & 5 
 Vict. cc. 51, 59, and 8 & 9 Vict. c. 71,) which has re- 
 pealed (n) all former enactments on the subject (v), and is 
 applicable to all highways whatever (a:), except turnpike 
 roads, and roads, pavements or bridges falling under the 
 provisions of local or personal acts of parliament — a de- 
 scription which applies generally to the streets of towns. 
 
 The general plan of the act is to place highways under 
 the care of surveyors, to be appointed for the respective 
 parishes, subject to a superintending power to be exercised, 
 in certain cases by the justices of the peace, at special ses- 
 sions to be holden for the highways; and to provide for 
 the expenses connected with this subject, by a rate to be 
 made and levied by the surveyor, upon the same principle 
 (generally) as the poor rate (?/). A surveyor of the highways 
 
 (t) These are the 1 Geo.l, st. 2, (i>) Sect. 113; vide post, p. 227, as 
 
 c. 57 ; 6 Geo. 1, c. 6; 18 Geo. 2, to the application of highway rate to 
 
 c. 33 ; 24 Geo. 2, c. 43 ; 30 Geo. 2, the repairs of turnpike roads. As to 
 
 c. 22 ; 11 Geo. 3, c. 51. Some of the recovery of the costs of distrain- 
 
 these acts are repealed by 5 & 6 ing for highway rates, and the course 
 
 Will. 4, c. 50, s. 1, except so far as of proceeding on such distress, see 
 
 regards the City of London. 12 & 13 Vict. c. 14. As to the power 
 
 (u) R. v. Mawgan, 8 A. & E. 496. of vestries to order that the owner, 
 
 (v) 5 & 6 Will. 4, c. 50, s. 1. instead of the occupier, shall be as- 
 
 (x) The highways of South Wales sessed to highway rate, in the case 
 
 are specially regulated by 14 & 15 of tenements not exceeding 61. per 
 
 Vict. c. 16, but in all points not annum in rateable yearly value, see 
 
 otherwise provided for by that act, 13 & 14 Vict. c. 99. Et vide 14 & 
 
 are within the 5 & 6 Vict. c. 50. 15 Vict. c. 39.
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 223 
 
 is to be elected annually by the inhabitants in vestry as- 
 sembled (z), and is to possess certain qualifications in point 
 of property. When elected, he is compellable (unless he 
 can show some grounds of exemption (a) ) to take upon 
 himself the office ; but he is permitted to appoint a deputy, 
 who is subject to the same reponsibilities with his prin- 
 cipal (b). The vestry may appoint a surveyor if they think 
 proper, with a salary (c). Any two or more parishes may, 
 by mutual agreement and by consent of the justices of the 
 peace at special sessions, or at quarter sessions (according 
 to circumstances), be united into one district, for the pur- 
 poses of the act, under the superintendence of a district 
 surveyor (d). This officer, however, is to have no autho- 
 rity to make or levy the rate, but each parish must elect its 
 own separate surveyor for that purpose (e). On the other 
 hand, in large parishes the duties of the office of surveyor 
 may be committed to more than one person. For where a 
 parish has a population of more than five thousand, a board 
 of surveyors may be appointed, to be called the " board for 
 repair of the highways" in that parish ; and they are autho- 
 rized to appoint collectors, an assistant surveyor, a clerk 
 and a treasurer (/). 
 
 The principal duty of the surveyor is to keep the parish 
 highways in repair ( g). Where any of them is out of order, 
 complaint may be made to any justice of the peace, on the 
 oath of one witness, and that magistrate may grant a sum- 
 mons thereon ; but the charge is to be heard before the 
 justices at special sessions for the highways ; and if those 
 
 (s) Sect. 6. As to the election poor hold also as to a surveyor of the 
 
 and appointment of surveyor, see roads. Vide sup. p. 152, n. (d). 
 
 also R. v. Best, 2 N. S.C. 655 ; Reg. (b) Sects. 7, 8. 
 
 v. Justices of Surrey, 16 L. J. (M.C.) (c) Sect. 9. 
 
 102. S. C. 5 D. & L. 40. In places (d) Sects. 13—15; R. v. King's 
 
 within which the Public Health Act, Newton, 1 B. & Adol. 826. 
 
 1848, is in force, the " local board" (e) Sects. 16, 17; R. v. Bush, 9 
 
 is to be the surveyor of the highways, Ad. & E. 820. 
 
 vide post, p. 260. (/) Sect. 18. 
 
 (a) The same grounds of exemp- (g) Seet. 6. 
 tion that apply to an overseer of the
 
 224 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 justices, either on their own view, or on the report of an in- 
 spector to be appointed by them for the purpose, find that 
 the highway is not in thorough and effectual repair, they 
 may convict the surveyor in a penalty not exceeding 5/., 
 and order him to repair within a limited time. If the order 
 is not complied with, he incurs the farther forfeiture of such 
 sum as shall be judged adequate to the probable expense 
 of the repairs required ; and the money is to be applied 
 accordingly to that purpose (/*). The same course of pro- 
 ceeding, mutatis mutandis, is applicable to the case where 
 a body corporate or private person is chargeable ratione 
 tenures, — and if the highway is part of a turnpike road, the 
 justices are to summon the treasurer, surveyor or other 
 officer of the trust, and to make such order upon him as is 
 already stated with regard to the parish surveyor (i). They 
 have however no power to make an order in any case 
 where the obligation of repairing comes into question (A). 
 The only remedy, where that occurs, is by indictment ; 
 which is to be preferred by order of the justices against the 
 parish or party charged before them, at the next assizes or 
 quarter sessions for the county or place where the highway 
 is situate (I). The fine which may be imposed by the court 
 upon the party convicted on such indictment, is to be paid 
 to such person residing in or near the parish as the court 
 shall direct ; and is to be applied to the repair of the high- 
 way {m). If the highway which is the subject of indict- 
 ment happens to be turnpike road, the fine, with the costs 
 and charges thereof, is to be apportioned between the in- 
 
 (/<) Sect. 94. A surveyor cannot (i) Sect. 94. 
 
 be convicted under this act for not (k) Ibid. 
 
 removing nuisances himself, or for (/) Sect. 95. As to the costs there- 
 
 not fencing places that are dan- of, see R. v. Inhabitants of Heanor, 
 
 gerous. Morgan v. Leach, 10 Mee. 6 Q. B. 745 ; R. v. Inhabitants of 
 
 & W. 658. The surveyor is also Vowchurch, 2 Car. & Kir. 393 ; R. v. 
 
 liable to be sued in that capacity by Inhabitants of Watford, 2 N. M. C. 
 
 any person suffering damage from 162. 
 
 the obstruction or ill-repair of the (m) Sect. 96. 
 highway. See Davis v. Curling, 8 
 Q. B. 286.
 
 CHAP. VI. — OP THE LAWS RELATING TO HIGHWAYS. 225 
 
 habitants of the parish and the trustees of the road, in such 
 manner as to the court shall seem just (n). 
 
 The surveyor is to maintain the highways and gates 
 thereon at such width as the act directs (o) ; and where the 
 parish is more than three miles from the General Post 
 Office of London, he is (by direction of the vestry or jus- 
 tices at special sessions) to put up direction posts (in cer- 
 tain cases) and boundary stones or posts (p). In order to 
 enable him to maintain the roads, he may, with consent of 
 the vestry, contract for the purchase and carriage of the 
 materials; and (subject to certain restrictions and condi- 
 tions) may take materials from any waste land or common 
 ground gratis {q), or from private inclosed lands, upon 
 making satisfaction to the owner (r). 
 
 Any injury whatever done to a highway, by which it is 
 rendered less commodious to the passengers, is a public 
 nuisance, and an indictable offence at common law; and 
 any person is at liberty to abate the nuisance by removing 
 the materials (s). But by the Highway Act, the surveyor 
 is specially required to remove all obstructions on the high- 
 ways, and to impound cattle found straying thereon (t) ; 
 and the act provides that any person or persons committing 
 such particular nuisances as it enumerates on highways, or 
 (in general) doing injury to the same, or obstructing the 
 free passage thereof, shall incur a forfeiture not exceeding 
 40s. (a). 
 
 Many provisions are also made to prevent the miscon- 
 duct of drivers of carriages, who are subject in a variety of 
 cases specified of misbehaviour (including the offence of 
 
 («) 3 Geo. 4, c. 126, s. 110; vide Brook v. Jenney, 1 Gale & D. 567. 
 
 post, p. 227, as to the application of (t) Sects. 64-69, &c. 
 
 highway rate to the repair of turn- (u) Sects. 72, 71. By the " Nui- 
 
 pike roads. sances Removal and Diseases Pre- 
 
 (o) 5 & 6 Will. 4, c. 50, s. 80. vention Act, 1848" (vide post, p. 
 
 (p) Sect. 24. 261), the surveyor is also expressly 
 
 (q) Sect. 51. required (sect. 6) to keep cleansed 
 
 ()•) Sect. 54. and open all ditches, drains, &c, by 
 
 (s) 1 Hawk. P. C. c. 76, ss. 48, 61 ; the side of the highway. 
 
 Marriott v. Stanley, 1 M. & Gr. 568 ; 
 
 VOL. III. Q
 
 226 BK. IV. OF PUBLIC RIGHTS. FT. III. SOCIAL ECONOMY. 
 
 furious riding or driving, or taking the wrong side of the 
 road) to a penalty not exceeding 5L, to be recovered before 
 any two justices of the peace (x). And for the better dis- 
 covering of offenders, the owner of every waggon, cart, or 
 other such carriage used on any highway, is required, under 
 a penalty not exceeding 40s., to paint upon it, in such 
 manner as the act specifies, his christian name and sur- 
 name, or common style and title, and the place of his trade 
 or abode, or the christian and surname and place of abode 
 of a partner or owner thereof (y). While on this part of 
 our subject, we may observe that all the powers vested in 
 surveyors of highways, either as to the getting of materials 
 or the removal of nuisances, belong equally to the surveyors 
 of county bridges, and that bridges are subject as w r ell as 
 roads (whenever the nature of the case admits) to all the 
 provisions of the Highway Act (z). 
 
 By the common law, the course of an antient highway 
 cannot be changed without the king's licence, to be obtained 
 after suing out a writ of ad quod damnum, and the finding 
 of an inquisition thereon, that the alteration will not be 
 prejudicial to the public (a). But by the Highway Act 
 any two justices of the division may (subject to certain con- 
 ditions and restrictions) order highways to be widened or 
 enlarged (b). The inhabitants in vestry assembled may 
 also direct the surveyor to apply to two justices of the 
 division to examine a highway with a view to its being- 
 diverted or stopped up ; and if a certificate of the justices 
 in favour of such proceeding is sent to the quarter sessions, 
 the justices there assembled are to make the order accord- 
 ingly (c). But, in case of a diversion, the proceeding must 
 be by consent of the owner of the lands through which the 
 new highway is to pass id). And in either case, any per- 
 son who may think himself aggrieved by the proceeding, 
 may appeal from the certificate of the justices to the quarter 
 
 (x) Sect. 78. Fowler v. Sanders, Cr. Jac.J46. 
 
 (y) Sect. 76. (b) Sect. 82. 
 
 (z) Sect. 22. (c) Sects. 84, 91. 
 
 (a) 1 Hawk. P. C. c. 76, s. 3; (rf) Sect. 85.
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 227 
 
 sessions before the order of that court is made (e) ; and the 
 propriety of the stoppage or diversion is then to be deter- 
 mined by a jury (/). 
 
 The highway rate is chargeable upon the same property 
 that is liable to the poor rate, and also on such woods, 
 mines, quarries of stone and other hereditaments, as have 
 been usually rated to the highways (g). The rate is to be 
 made and signed by the surveyor, and the mode of allow- 
 ing, publishing, levying and recovering it, is the same as in 
 the case of the poor rate (A). 
 
 The surveyor is to keep a weekly account of all money 
 which has come to his hands, and of the manner of its 
 application ; and the account book is to be open, at all 
 reasonable times, to the inspection of the rated inhabitants, 
 without fee or reward (i). The surveyor is also at the end 
 of his year to lay his accounts before the vestry, and before 
 the justices of the peace at the special sessions for the high- 
 ways ; and the justices are required to examine him as to 
 the truth of the accounts, and to hear any complaints against 
 the same (k). 
 
 These sessions for the highways are to be held not less 
 than eight nor more than twelve times in the year ; and at 
 one of them the surveyor of each parish in the division is to 
 
 (e) Sect. 88; seeSelwoodu.Mount, (h) See 43 Eliz. c. 2, s. 4 ; 17 
 
 1 Ad. & El. N. S. 726. Geo. 2, c. 38 ; 41 Geo. 3, c. 23 ; 54 
 (/) Sect. 89. Geo. 3, c. 170 ; 6 & 7 Will. 4, c. 63. 
 (g) Sect. 27. As to the mode of (i) 5 & 6 Will. 4, c. 50, s. 40. 
 
 claiming an exemption, see Bletch- (k) Sect. 44 ; and see 2 & 3 Vict, 
 
 ingdon v. Peyton, 6 D. & L. 288. c. 40 ; R. v. West Riding of York- 
 
 As to the application of highway shire (Justices), 1 Q. B. 624 ; R. v. 
 
 rates to repair of turnpike roads, see Lewis, 1 Dowl. P. C. 530. By 12 & 
 
 2 & 3 Vict. c. 81 ; 3 & 4 Vict. c. 98 ; 13 Vict. c. 35, the clerk to the justices 
 4 & 5 Vict. c. 59 ; 6 & 7 Vict. c. 59 ; in counties and the town clerk in 
 8 & 9 Vict. c. 59 ; 9 & 10 Vict. c. 49; boroughs are annually to prepare, 
 10 & 11 Vict. c. 93 ; 13 & 14 Vict. from the accounts of the surveyors, 
 c. 58 ; 14 & 15 Vict. c. 30 ; 15 & 16 statements of the receipt and expen- 
 Vict. c.19; R. v. Berks (Js.), 8 Dowl. diture on highways, and transmit 
 P. C. 727 ; R. v. Derbyshire (Js.), 7 them to a principal secretary of state, 
 Q. B. 193; Queen v. Preston, 12 Q. and abstracts of these statements are 
 B. 816. to be laid before parliament. 
 
 q2
 
 228 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 make a return in writing, showing (among other particulars) 
 the state of the roads and bridges under his care, and the 
 nuisances and encroachments (if any) made thereon (I). 
 
 II. Turnpike roads (m). — These do not in general fall 
 within the operation of the Highway Act (ri), but are regu- 
 lated primarily by the local acts relative to each particular 
 road, which (though temporary) are continued by the legis- 
 lature from time to time as they are about to expire (o) ; 
 and, in the next place, by statutes of a general descrip- 
 tion, applicable (with very few exceptions) to all turnpike 
 roads (p), that is, all roads maintained by tolls and placed 
 under the management of trustees or commissioners for 
 a limited period of time (q). Of these general turnpike 
 acts (which are numerous (7-) ), the 3 Geo. IV. c. 126, 
 (amended by 4 Geo. IV. c. 95, and 4 & 5 Vict cc 33, 
 •51 (s),) is the principal. 
 
 The general effect of their leading provisions is as fol- 
 lows : — 
 
 Every trustee or commissioner of a turnpike road must 
 possess a certain qualification in point of property (t) — 
 must be sworn (u) to the due execution of his duties, and 
 is prohibited (w) from holding any profitable office or con- 
 tract, under the act of which he is trustee. Among them 
 are included the justices of the peace of the different 
 
 (/) Sect. 45. (r) 2 D'Oyly's Burn's J. 880 ; 3 
 
 («) As to the legal meaning of the Geo. 4, c. 126; 4 Geo. 4, c. 95 ; 7 
 
 words " turnpike road," see Northam & 8 Geo. 4, c. 24 ; 9 Geo. 4, c. 77, 
 
 Bridge and Road Company v. London s. 19 ; 1 & 2 Will. 4, c. 25; 2 & 3 
 
 and Southampton Railway Company, Will. 4, c. 124 ; 3 & 4 Will. 4, c. 80 ; 
 
 6 Mee. & W. 428. 4 & 5 Will. 4, c. 81. See as to the 
 
 («) 5 & 6 Will. 4, c. 50, s. 113. turnpike roads in South Wales, 7 & 8 
 
 (o) See the last of these acts for Vict. c. 91 ; 8 & 9 Vict. c. 61 ; and 
 
 continuance, 15 & 16 Vict. c. 58. 10 & 11 Vict. c. 72. 
 
 (p) See 3 Geo. 4, c. 126, s. 4 ; 9 (s) See also 14 & 15 Vict. c. 38, 
 
 Geo. 4, c. 77, s. 20 ; 1 & 2 Will. 4, s. 4. 
 
 c. 25, s. 4; 4 Geo. 4, c. 95, s. 88; («) 3 Geo. 4, c. 126, s. 62. 
 
 9 Geo. 4, c. 77, s. 19. («) 4 Geo. 4, c. 95, s. 32. 
 
 (q) See 4 Geo. 4, c. 95, s. 90 ; 3 («) 3 Geo. 4, c. 126, s. 65. 
 
 Chitty's Burn, 177.
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 229 
 
 counties or divisions through which the road passes, who 
 are ex officio commissioners (x). 
 
 They are are not only to maintain and keep in repair 
 roads committed to their management, but to construct 
 and maintain causeways at the sides of them for the use of 
 foot passengers (?/), to place milestones (z), and to widen, 
 divert, or improve the roads as they shall think proper; 
 and for the latter purpose they are empowered to purchase 
 land, and (subject to certain conditions and restrictions) to 
 turn the road over the property of individuals («), and to 
 take materials from the lands of private owners (b). To 
 facilitate the performance of the duty relative to repairs, 
 they are also empowered (if they think proper) to contract, 
 by the year or otherwise, with any person for repairing or 
 amending the road, or any bridges or buildings thereon (c). 
 The trustees are also bound to prevent or remove all 
 nuisances and annoyances on the roads under their ma- 
 nagement, and they are to direct prosecutions for these 
 offences, or any other offence, committed on the same (d). 
 These offences are of various kinds, there being regulations 
 in the turnpike acts (as well as in that relative to highways) 
 inflicting pecuniary penalties in many specified cases of 
 misbehaviour on the roads (e) ; and in order to detect of- 
 fenders with more facility, the owners of every waggon or 
 cart, or other such carriage to be used on a turnpike road, 
 shall paint thereon, in such manner as required by the 
 acts, his christian and surname and the place of abode, 
 or the christian and surname and place of abode of the 
 principal partner or owner thereof, under a penalty not ex- 
 ceeding 5/. (/). 
 
 To meet the expenses incurred, the trustees or commis- 
 si-) 3 Geo. 4, c. 126, s. (31. c. 95, s. 65 ; 3 Geo. 4, c. 126, s. 84. 
 (y) Ibid. ss. Ill, 112 ; Loveridge (6) 3 Geo. 4, c. 126, s. 97. 
 v. Hodsoll, 2 B. & Ad. 602; R. t>. (c) 4 Geo. 4, c. 95, s. 78. 
 Higgins, 5 B. & Adol. 555. (d) 3 Geo. 4, c. 126, s. 133. 
 (s) 3 Geo. 4, c. 126, s. 119. (e) Ibid. ss. 114 to 121. 
 (a) 9 Geo. 4, c. 77, s. 9 ; 4 Geo. 4, (/) 4 Geo. 4, c. 95, s. 15.
 
 230 BK. IV. OP PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 sioners of every road are to erect toll gates (g) thereon, 
 and the tolls are to be taken every day ; the computation 
 of which is to be from twelve at night to twelve the night 
 following (h). They are to put up at every toll gate a table 
 of tolls, and to provide toll tickets to acknowledge the 
 receipt (i). No person is to pass without paying (j), and 
 if a passenger liable to pay refuses, the collector may seize 
 and distrain the beast or carriage, or any of the goods and 
 chattels of the passenger, and, in default of payment for 
 four days, sell the distress (A). If any dispute arises about 
 the amount of the toll due, or the charges of a distress, it 
 may be settled by any justice of the peace acting for the 
 place where the toll gate is situate (/). Regulations are 
 also made as to the weight and the construction of the 
 wheels of waggons and carts, and carriages of the like 
 description, used on turnpike roads. Those which have 
 wheels of a particular construction, or exceed a certain 
 weight, pay higher tolls (m). There are, on the other hand, 
 various cases of exemption from tolls, of which we shall 
 only notice the following: — No toll is taken on horses or 
 carriages in attendance on her Majesty, or on any of the 
 royal family, or returning therefrom (n) : nor upon horses 
 of officers or soldiers on duty(o), or being in uniform (p), 
 or carriages employed in or returning from the conveyance 
 of materials for turnpike roads or highways, or (in general) 
 of manure, or of implements of husbandry (q), or of produce 
 grown on the land of the owner, and not sold or going to 
 be sold (r). An exemption is also allowed (where a turn- 
 
 (g) 9 Geo. 4, c. 77, s. 5. (n) 3 Geo. 4, c. 126, s. 32 ; 4 Geo. 
 
 (h) Ibid. s. 10. 4, c. 95, s. 24. 
 
 (i) 3 Geo. 4, c. 126, s. 37 ; 4 Geo. 4, (o) As to the exemption of police 
 
 c. 95, s. 28. and other officers, see 2 & 3 Vict. c. 
 
 (j) As to 3 Geo. 4, c. 126, ss. 41, 47, s. 10 ; 3 & 4 Vict. c. 88, s. 1 ; 14 
 
 139, vide R. v. Irving, 12 Q. B. & 15 Vict. c. 38, s. 4. 
 
 429. 
 
 (p) 8 Vict. c. 9, s. 55. 
 
 (/c) 3 Geo. 4, c. 126, s. 39. ( v ) As to what these words in- 
 
 (0 Ibid. s. 40. elude, see 14 & 15 Vict. c. 38, s. 4. 
 (to) 3 Geo. 4, c. 126, ss. 7, 9, 11, (?) 3 Geo. 4, c. 126, s. 32; 5 & 
 
 12, 21 ; 4 Geo. 4, c. 95, ss. 2, 19. 6 Will. 4, c. 18 ; 3 & 4 Vict. c. 51 ;
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 231 
 
 pike gate is not within five miles of the Royal Exchange 
 or Westminster Hall) to any person going to or returning 
 from his proper parochial church or chapel, or his usual 
 place of religious worship tolerated by law, on Sundays, or 
 any day on which divine service is by authority ordered 
 to be celebrated (s). Parishioners also are exempted in 
 attending or returning from the funeral of persons who die 
 and are buried in the parish in which the turnpike road 
 lies ; as also are rectors, vicars, or curates going or return- 
 ing from their parochial duties, and persons going to, or 
 returning from, the election of a member for the county in 
 which the road is situated ; and horses or other cattle, and 
 vehicles of all descriptions, are also exempted which only 
 cross the road or do not pass above a hundred yards there- 
 on (t). It is to be observed, however, that any person 
 claiming or taking an exemption, by fraudulent means, is 
 liable to be convicted in a penalty not exceeding 51. (u). 
 The trustees are empowered to borrow money, as they may 
 think proper, on the credit of the tolls, and may mortgage 
 them, by way of security, to the lenders (?;). They may 
 also let them to farm for three years at a time (x), subject 
 to such regulations as the acts prescribe — compound for 
 them with any person or persons for a year at a time — 
 reduce them (by consent of creditors), or advance them to 
 the full amount authorized by the particular act(?/). 
 
 For their assistance in the performance of their duties, 
 
 14 & 15 Vict. c. 38, s. 4; R. v. («) 3 & 4 Vict. c. 33, s. 36. 
 
 Adams, 6 M. & S. 52. (v) Ibid. s. 81. A sinking fund 
 
 (s) 3 Geo. 4, c. 126, ss. 32, 33; for discharge of the debt is to be 
 
 Lewis v. Hammond, 2 B. & A. 206. formed where monies are borrowed 
 
 (t) 3 Geo. 4, c. 126, s. 32 ; 3 & 4 on the credit of the tolls, unless dis- 
 
 Vict. c. 33 ; Harris v. Morrice, 10 pensed with by a principal secretary 
 
 Mee. & W. 260. By 13 & 14 Vict. of state ; 12 & 13 Vict. c. 87 ; 13 & 
 
 c. 79, s. 3, the trustees of any turn- 14 Vict. c. 79. 
 
 pike road may, with approval of a (.r) 3 & 4 Vict. c. 33, s. 55. 
 
 principal secretary of state, reduce (y) 4 Geo. 4, c. 95, s. 13; 3 Geo. 
 
 or take off the tolls on beasts or 4, c. 126, s. 43 ; R. v. Trustees of 
 
 carriages used in conveying lime for Bury and Stratton Roads, 4 B. & C. 
 
 the improvement of land. 361.
 
 232 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 the trustees or commissioners of turnpike roads are em- 
 powered to appoint from time to time such toll collectors, 
 clerks, treasurers, surveyors, or other officers, as they think 
 necessary, and also to remove them and appoint others in 
 their stead ; and, out of the monies arising on the road, to 
 allow them such salaries and remuneration as they shall 
 think proper (z). With respect to toll collectors it is pro- 
 vided, that every such person shall place in front of his 
 toll house, his christian and surname, painted on a board, 
 in such manner as the acts specify, and shall also tell his 
 christian and surname to any person who shall demand the 
 same on having paid toll, and shall give to every person 
 making such payment a ticket with such particulars as the 
 acts require. If he omits to comply with any of these 
 regulations, or hinders any person from reading the board 
 in front of his toll house, or gives a false name, he may be 
 proceeded against before one justice of the peace, and 
 incurs such forfeiture not exceeding 51. as the justice shall 
 think proper. He is punishable in like manner for permit- 
 ting carriages to pass contrary to the regulations of the act 
 as to the construction of wheels, or number of horses, or 
 the names or descriptions to be painted thereon, without 
 proceeding to enforce the penalties; or for allowing any 
 carriage or passenger to pass without paying the toll ; or 
 demanding and taking a greater or less toll than is due (a), 
 or any toll from a person exempt and claiming the ex- 
 emption ; or wilfully detaining any passenger who pays or 
 tenders the legal toll ; or making use of any scurrilous or 
 abusive language to any trustee or passenger ; or commit- 
 ting any other misconduct in his office (b). But the only 
 mode of proceeding against a collector for taking more toll 
 than is due is that which is above specified ; and he is not 
 liable to an indictment for extortion or otherwise (c). 
 
 The trustees and commissioners of every road are also 
 
 (s) 4 Geo. 4, c. 95, s. 43. (b) 4 Geo. 4, c. 95, s. 30 ; 3 Geo. 
 
 (a) R. v. Hants (Justices), 1 B. & 4, c. 126, s. 52. 
 Ad. 654. (c) 4 Geo. 4, c. 95, s. 50.
 
 CHAP. VI. — OF THE LAWS RELATING TO HIGHWAYS. 233 
 
 required annually to examine, audit, and settle the accounts 
 of the different officers (d). An annual statement of the 
 debt, revenues, and expenditure of the trust, is then to be 
 transmitted to the clerk of the peace for the county, to be 
 by him produced to the justices at quarter sessions, and 
 registered among the records of that court (c). A similar 
 statement is also to be transmitted to one of the principal 
 secretaries of state ; who is to cause it to be abstracted, and 
 to lay the abstract before both houses of parliament (/*). 
 
 The last regulation of the general turnpike acts which 
 we deem it necessary to notice is, that whenever the trus- 
 tees of a road shall enter into a resolution to apply to par- 
 liament for a continuation of the act under which the road 
 is regulated, or for the alteration or enlargement of then- 
 powers, or an increase of the tolls (g), their clerk is required 
 to transmit a copy of such resolution to one of the principal 
 secretaries of state, together with a copy of any special 
 clauses, and a statement of any increased tolls, which the 
 trustees wish to have inserted in the new act (h). 
 
 (d) 3 Geo. 4, c. 126, s. 78. 
 
 (e) 3 Geo. 4, c. 126, ss. 78, 79. 
 (/) 3&4 Will. 4, c. 80, ss. 1,5; 
 
 12 & 13 Vict. c. 87, s. 5. 
 
 (g) But as to decrease of certain 
 tolls, see 2 & 3 Vict. c. 46. 
 
 (h) 3 & 4 Will. 4, c. 80, s. 7. By 
 12 & 13 Vict. c. 46, and 13 & 14 
 Vict. c. 79, ss. 6, 7, two or more turn- 
 
 pike trusts may in certain cases be 
 consolidated into one "united trust." 
 And see 12 & 13 Vict. c. 87, and 13 
 & 14 Vict. c. 79, for provisions with 
 respect to mortgagees of turnpike 
 tolls, and 14 & 15 Vict. c. 38, and 
 15 & 16 Vict. c. 33, as to arrange- 
 ments for relief of insolvent turnpike 
 trusts.
 
 '234 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 CHAPTER VII. 
 
 OF THE LAWS RELATING TO TRADE AND 
 NAVIGATION. 
 
 In attempting to exhibit in a condensed form the substance 
 of the principal laws relating to the extensive subject of 
 trade and navigation, we shall distribute our statement 
 under the following heads : 
 
 I. The laws of trade and navigation as regards the 
 United Kingdom and the British possessions 
 generally. 
 II. The laws of trade and navigation as regards the 
 East Indies, and China in particular. 
 
 III. The laws relating to merchant seamen. 
 
 IV. The laws relating to ports or harbours, lighthouses, 
 
 beacons and sea-marks (a). 
 
 V. The laws relating to pilotage. 
 
 VI. The laws relating to fisheries. 
 
 I. The laws of trade and navigation, as regards the 
 United Kingdom and the British possessions generally. 
 
 These are mainly comprised in the 8 & 9 Vict. c. 89, for 
 the registering of British vessels ; the 8 & 9 Vict. c. 93, for 
 regulating the trade of British possessions abroad ; and 12 
 & 13 Vict. c. 29, for the encouragement of British shipping 
 and navigation. 
 
 These statutes are to be considered as the representatives 
 
 (a) See also the laws to prevent justment of salvage, sup. vol. ii. pp. 
 depredations on the coast, and the 529, 530. 
 exhibition of false lights, and the ad-
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 235 
 
 and successors of the celebrated Navigation Act in the reign 
 of Charles the second. Of this act Blackstone observes (b), 
 that it was itself an improvement on an earlier system, 
 which was [framed in 1650 (c), and with a narrow partial 
 view, being intended to mortify our own sugar islands, 
 which were disaffected to the parliament, and still held out 
 for Charles the second, by stopping the gainful trade which 
 they then carried on with the Dutch (d) ; and at the same 
 time to clip the wings of those over-opulent and aspiring- 
 neighbours.] This original navigation law [prohibited all 
 ships of foreign nations from trading with any English 
 plantation without licence from the council of state. In 
 1651 the prohibition was extended also to the mother coun- 
 try, and no goods were suffered to be imported into Eng- 
 land or any of its dependencies in any other than English 
 bottoms, or in the ships of that European nation of which 
 the merchandize imported was the genuine growth or ma- 
 nufacture. At the Restoration the former provisions were 
 continued by 12 Car. II. c. 18,] being the Navigation Act 
 before referred to, [with this very material improvement, 
 that the master and three-fourths of the mariners shall also 
 be English subjects.] 
 
 In the reign of George the fourth both the statute last- 
 mentioned and all the former navigation acts were repealed, 
 and a new system introduced, founded in some respects 
 upon different principles, which was embodied in the several 
 acts 6 Geo. IV. cc. 109, 110, 114. These were succeeded 
 by the statutes 3 & 4 Will. IV. cc. 54, 55, 59, which were 
 in their turn superseded by 8 & 9 Vict. cc. 88, 89, 93 ; and 
 of these the first is now repealed, in consequence of farther 
 changes which have taken place in public opinion in refer- 
 ence to this branch of our policy, and its place filled by 
 12 & 13 Vict. c. 29 (e). 
 
 The object of the former navigation acts was generally 
 
 (ft) 1 Bl. Com. 418. (e) By the statute last mentioned, 
 
 (c) Scobell, 132. parts also of the 8 & 9 Vict. cc. 89, 
 
 (d ) Mod. Univ. Hist. xii. 289. 93, are repealed.
 
 236 BK. IV. OF PUBLIC RICxIITS — PT. III. SOCIAL ECONOMY. 
 
 to secure to British shipping and to British commerce, as 
 distinguished from those of foreign countries, a certain 
 amount of exclusive privilege. The principle of the present 
 system is to maintain an exclusive privilege only as regards 
 our coasting trade; and in other respects to admit the ships 
 and goods of any foreign country to a free intercourse, so 
 far as it may be willing to concede to us a reciprocal and 
 equal advantage. To understand the system in detail, it 
 will be necessary, first, to consider what constitutes, accord- 
 ing to the legislative provisions, the character of a " British 
 ship." 
 
 It is required then, by 12 & 13 Vict. c. 29 {g), that in 
 order to claim this character, a ship should in general be 
 duly registered {h), and navigated as such. And of these 
 requisites in their order. 
 
 1st. As to registration, — the provisions are too minute 
 and numerous to be fully stated. It will be sufficient to 
 mention such as appear to be of principal importance. By 
 8 & 9 Vict. c. 89, and 12 & 13 Vict. c. 29, taken together, 
 it is provided that the ship must not only be duly regis- 
 tered, but such certificate of registry must also be obtained 
 as in the last mentioned act described (i); that all natural- 
 born subjects, denizens, and persons naturalized, or autho- 
 rized by proper legislative authority in the colonies to hold 
 shares in British shipping, shall, on taking the oath of 
 allegiance, be deemed qualified to be owners or part owners 
 of British registered vessels (k) ; and that a declaration 
 to the effect that the above-stated requisites are fulfilled 
 must be made by the owner (7), or a certain proportion of 
 
 (g) Sect. 7. (0 8 & 9 Vict. c. 89, s. 2; 12 & 13 
 
 (/() There are certain exceptions Vict. c. 29, s. 19. 
 
 to the necessity of registration. They (k) 12 & 13 Vict. c. 29, s. 17. 
 
 chiefly relate to boats under fifteen (I) In the case of the registry of a 
 
 tons burthen, wholly owned and navi- ship belonging to any corporate body 
 
 gated by British subjects, employed in the united kingdom, the declara- 
 
 in coasting or inland navigation. 12 tion is to be made and subscribed by 
 
 & 13 Vict. c. 29, s. 20. See Benyon the secretary or other proper officer 
 
 v. Cresswell, 12 Q. B. 899. of such corporate body, and^is in a
 
 CHAP. VII. OF THE LAWS RELATING TO TIRADE, &C. 237 
 
 the owners (as the case may be), before the ship is regis- 
 tered (in) ; that every ship shall be deemed to belong to 
 some port at or near which some or one of the owners 
 who subscribes such declaration shall reside (n) ; that no 
 registry shall (in general) be made in any other port or 
 place than that to which the ship so belongs (o) ; and that 
 whenever the original owner or owners shall have trans- 
 ferred all his or their shares, or in case she is so altered 
 as not to correspond with the particulars stated in the cer- 
 tificate of registry, the ship shall be registered de novo (p) ; 
 that the registration shall be made and the certificate 
 thereof granted, by the person who, according to the part 
 of the world in which the ship is to be registered, is autho- 
 rized by the statute to act in that behalf (rj); that the 
 certificate of registry shall set forth (r) (from the informa- 
 tion of the subscribing owner or owners) the names, occu- 
 pation and residence of such owners, the proportions in 
 which they are severally interested (such proportion being 
 required by the act to be always some integral sixty-fourth 
 part of the whole (s) ), the name of the ship, of the port 
 to which she belongs, and of her master; her tonnage (t), 
 and when and where she was built (u), or condemned as 
 prize ; and shall also set forth (from a certificate to be 
 furnished by a surveying officer) her build, rigging and 
 dimensions, and whether she is a sailing vessel or a steamer ; 
 and if a steamer, whether propelled by paddle wheels or 
 screw propellers. It is also provided that no greater num- 
 
 different form. See 12 & 13 Vict. c. (</) Sect. 3. 
 
 29, s. 19. A corporation may be re- (>) 12 & 13 Vict. c. 29, s. 18. 
 
 gistered as owner, though some of (s) 8 & 9 Vict. c. 89, s. 35. 
 
 the members are foreigners. R. v. (t) As to the manner of ascertain- 
 
 Powell, 16 L. J. (Q. B.) 50; Queen ing the tonnage, see 8 & 9 Vict. c. 
 
 v. Arnaud, 9 Q. B. 806. 89, s. 16. 
 
 (m) 8 & 9 Vict. c. 89, s. 13 ; 12 & (u) 12 & 13 Vict, c.29, s. 18. If the 
 
 13 Vict. c. 29, s. 19. ship is of foreign build, and the time 
 
 (n) 8 & 9 Vict. c. 89, s. 11. or place of her building unknown, 
 
 (o) Sect. 10. such facts must appear accordingly 
 
 (p) Sects. 11, 31. on the certificate, ibid.
 
 238 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 ber than thirty-two persons shall be entitled to be legal 
 owners, at one and the same time, of any ship, as tenants 
 in commonCr), or to be registered as such(?/); that as 
 often as the property of any ship, or any part thereof, 
 belonging to any British subject, shall, after registry, be 
 sold to any other subject or subjects, the same shall be 
 transferred by bill of sale or other instrument in writing (z), 
 containing a recital of the certificate of registry, and that 
 otherwise such transfer shall not be valid in law or equity («) ; 
 and that no such instrument shall be valid to pass the pro- 
 perty in the ship, or any share thereof, or for any other 
 purpose, until it shall have been produced to the proper 
 officers for registration, nor until they shall have entered 
 the name, residence, and description of the vendor or mort- 
 gagor (or of each, if more than one), the number of shares 
 transferred, the name, residence, and description of the 
 purchaser or mortgagee (or of each, if more than one), and 
 the date of the instrument, and of its production (b). The 
 officers are also required (unless the ship is about to be 
 registered de novo) to indorse these particulars on the cer- 
 tificate of registry, when produced to them for that pur- 
 pose (c). But it is provided, that as soon as the particulars 
 aforesaid shall have been so entered by the officers of 
 registry, the instrument shall be deemed valid and effectual 
 to pass the property, and for all other purposes, except as 
 against such subsequent purchasers and mortgagees as 
 shall first procure the indorsement to be made on the cer- 
 tificate (d) ; the intent being, that where several purchasers 
 or mortgagees appear to claim the same property or security, 
 the priority between them shall depend, not on the time 
 when the particulars of the bills of sale are entered, but the 
 
 (i) 8 & 9 Vict. c. 89, s. 36 ; Ex Dale. 7 T.R. 306; Biddell v. Leader, 
 
 parte Young, 2 Ves. & B. 242. 1 B. & C. 327. 
 
 (y) Sect. 36. (b) Sect. 37. Boyson v. Gibson, 
 
 (z) Sect. 34. As to assignment of 4 C. B. 1. 
 freight, see Mestaer v. Gillespie, 11 (c) Ibid. 
 
 Ves. jun. 636. (d) Sect 38. 
 
 (a) Sect. 34. See Westerdell v.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 239 
 
 time when the indorsement is made on the certificate of 
 registry (e). 
 
 2- As to the requisite that a British ship must be duly 
 navigated, it is enacted by 12 & 13 Vict. c. 29, that in gene- 
 ral she must be navigated during the whole of every voyage, 
 in every part of the world, by a master who is a British 
 subject, and by a crew whereof three-fourths at least are 
 British seamen (/) ; and that if such ship be employed in 
 a coasting voyage from one part of the united kingdom to 
 another, or in a voyage between the united kingdom and 
 the islands of Guernsey, Jersey, Alderney, Sark or Man, or 
 from one of those islands to another, or from one part of 
 any of them to another part, or be employed in fishing on 
 the coasts of the united kingdom, or of any of the said 
 islands, the whole of the crew shall be Brit^h seamen (g). 
 But one British seaman for every twenty tons of the burthen 
 is declared in all cases (except where all are required to be 
 British seamen) a sufficient proportion, though the number 
 of other seamen exceeds one-fourth (li). The crown also is 
 authorized by proclamation at any time to reduce the pro- 
 portion of British seamen to be required by law (£). 
 
 Such are the requisites for giving a vessel the character 
 of a " British ship." Let us now consider the advantages 
 she obtains as such — which are as follows. 
 
 First. It is enacted by 12 & 13 Vict. c. 29, that no goods 
 or passengers shall be carried coastwise from one part of the 
 
 (e) Sect. 39. See Mestaer v. At- lity or allegiance ; or such Asiatic 
 
 kins, 5 Taunt. 381 ; Bowen v. Fox, sailors or Lascars as are natives of 
 
 10 B. & C. 41 ; Hassack v. Masson, places within the limits of the East 
 
 4 Moore, 361. India Company, and under the go- 
 
 (/) 12 & 13 Vict. c. 29, s. 7. No vernment of that company or of her 
 
 person is " a British seaman" within majesty ; or persons who have in the 
 
 the meaning of this act, except na- time of war served in one of her 
 
 tural born subjects of the realm, majesty's ships of war for three years, 
 
 denizens, or persons naturalized ; or Sect. 8. 
 
 except persons who have become (g) 12 & 13 Vict. c. 29, s. 7. 
 
 such by virtue of conquest or cession (ft) Ibid, 
 
 of some newly-acquired country, and (i) Sect. 9. 
 have taken the requisite oath of fide-
 
 240 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 united kingdom to another, or from the united kingdom 
 to the Isle of Man, or from the Isle of Man to the united 
 kingdom, except in British ships (k). 
 
 That no goods or passengers shall be imported into the 
 united kingdom from any of the islands of Guernsey, 
 Jersey, Alderney, or Sark, nor exported from the united 
 kino-dom to any of those islands, nor carried from Guern- 
 sey, Jersey, Alderney, Sark, or Man, to any other of the 
 said islands, nor from one part of any of the said islands to 
 another part, except in British ships (I). 
 
 That no goods or passengers shall be carried from one 
 part of any British possession in Asia, Africa or America, 
 to another part of the same possession, except in British 
 ships (m) — subject, however, to the following proviso, that 
 if the legislative authority of any British possession shall 
 present an address to her Majesty, praying that the con- 
 veyance of goods and passengers from one part of such 
 possession to another part thereof be permitted in other 
 than British ships, or if the legislatures of any two or more 
 neighbouring possessions shall address her Majesty, pray- 
 ing that the trade between them may be placed on the foot- 
 ing of a coasting trade, or otherwise regulated so far as 
 relates to the vessels in which it is to be carried on, such 
 application may be acceded to on such terms and condi- 
 tions as to her Majesty may seem good (n). 
 
 Secondly. It is provided, by 12 & 13 Vict. c. 29, that in 
 case it shall be made to appear to her Majesty that British 
 vessels are subject in any foreign country to any prohibi- 
 tions or restrictions as to the voyages in which they may 
 engage, or the articles which they may import into or ex- 
 port from such country, it shall be lawful for her Majesty, 
 if she think fit, by order in council, to impose such prohi- 
 bitions or restrictions upon the ships of such foreign coun- 
 try, either as to the voyages in which they may engage or 
 the articles which they may import into or export from any 
 
 (k) 12 & 13 Vict. c. 29, s. 2. (m) Sect. 4. 
 
 (/) Sect. 3. (n) Sect. 5.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 241 
 
 part of the united kingdom or any British possession, as 
 her Majesty may think fit, so as to place the ships of such 
 country on as nearly as possible the same footing in British 
 ports as that on which British ships are placed in the ports 
 of such country; and that, in case it shall be made ap- 
 pear to her Majesty that in any foreign country British 
 trade and navigation are not placed, as to duties or other 
 charges, on as advantageous a footing as the trade and na- 
 vigation of such country, or of the most favoured nation, 
 such duties may, by order in council, be imposed on the 
 ships or goods of such country as may appear justly to 
 countervail the inequality (m). On the other hand, where 
 it shall appear to her Majesty that the trade and shipping of 
 Great Britain, in the ports of any foreign power, have been 
 placed upon the same footing as-the trade and shipping of 
 such foreign power, her Majesty is empowered, by 15 & 16 
 Vict. c. 47, to extend, by her order in council, a reciprocal 
 benefit to the trade and shipping of such foreign power (n). 
 
 II. The laws of trade and navigation as regards the East 
 Indies, and China in particular. 
 
 It will be remembered, that we took occasion in a former 
 volume (o), to notice the peculiarity to which the trade with 
 these countries was formerly subject, viz. that it belonged 
 exclusively to the East India Company; and it was shown, 
 that in 1833 all that remained of this monopoly was abo- 
 lished by act of parliament. Immediately upon this abo- 
 lition it was enacted, by 3 & 4 Will. IV. c. 93, that not- 
 withstanding the former laws to the contrary, any of the 
 
 (m) Sect. 11. and thereupon all the provisions of 
 (n) This is the general effect of the an act of 59 Geo. 3, c. 54, for carry- 
 enactment of the statute last men- ing into effect a convention of com- 
 tioned. Its terms are that her Ma- merce with America and a treaty 
 jesty may, by order in council, to be with Portugal, shall apply to such 
 published in the London Gazette, foreign power as fully as they apply 
 declare that the trade and shipping to the United States and Portugal 
 of such foreign power shall have the under the last mentioned act. 
 benefit of the provisions of that act, (<>) Vide sup. vol. i. p. 107. 
 VOL. III. R
 
 242 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 subjects of the realm might thereafter trade with any 
 countries beyond the Cape of Good Hope, to the Straits 
 of Magellan (o); subject only to this proviso, that the 
 commander of every ship arriving at any place under the 
 government of the East India Company, shall, under the 
 penalty of 1 00/., deliver to the principal officer of the cus- 
 toms, or other authorized person, an accurate list and de- 
 scription of all persons on board his vessel (p). 
 
 Since then, it has been also provided, by 3 & 4 Vict, 
 c. 56 (q), that it may be declared in council by the go- 
 vernor-general of India, that all ships built or to be built 
 within the limits of the charter of the East India Company, 
 being owned by subjects of her Majesty, for whom the 
 governor has power to legislate, and belonging to any ports 
 in the territories under the government of the company, 
 shall be deemed British ships for all the purposes of trade 
 within the said limits, including the Cape of Good Hope, 
 and the territories and dependencies thereof. And the 
 governor in council was also thereby empowered to make 
 regulations concerning the registering, licensing, and gene- 
 rally for the trading, within the limits aforesaid, of such 
 ships; and farther to make regulations for admitting to 
 the privileges of British ships for trade within such limits, 
 any ships belonging to native princes, or states in subor- 
 dinate alliance, or having subsidiary treaties, with the com- 
 pany, or owned by such princes of such subjects or states, 
 — and for granting them fit and convenient licences and 
 passes. And by the 12 & 13 Vict. c. 29, it is now enacted, 
 as to the coasting trade of India, that it shall be lawful for 
 the governor-general of India in council to make any re- 
 gulations permitting the conveyance of goods or passengers 
 from one part of the possessions of the East India Com- 
 pany to another part thereof in other than British ships, 
 subject to such regulations as he may think necessary ; pro- 
 vided however that all such regulations shall be liable to 
 disallowance and repeal in like manner as any other laws 
 («>) Sect. 2. (p) Sect. 3. (r/) Sects. 3, 4.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 243 
 
 made by the governor in council, and be transmitted to 
 England and laid before parliament in like manner with 
 these (r). 
 
 With respect to China, it was enacted by the before- 
 mentioned act of 3 & 4 Will. IV. c. 93, that the crown 
 should have authority to appoint three officers, called 
 " superintendents" (s), to whom was to be committed 
 the regulation of British trade and commerce to and from 
 that country ; and to create a court of justice, with cri- 
 minal and admiralty jurisdiction, for the trial of offences 
 committed by the subjects of the realm in China. But 
 since the passing of this act, her Majesty having acquired 
 the island of Hong Kong, and established a legislative 
 council there, and appointed as governor of the island the 
 officer invested with the office of chief superintendent, it 
 was enacted by 6 & 7 Vict. c. 80, that it should be lawful 
 for her Majesty, by commission, to authorize such super- 
 intendent, so long as he should be also governor of Hong 
 Kong, to enact, with the advice of the said legislative 
 council, all such laws as might be necessary for the good 
 government of British subjects in China, or within any 
 ship not more than 100 miles from China, and to enforce 
 the execution of such laws by pains and penalties. The 
 same power is also given to her Majesty in council ; and it 
 is enacted, that as soon as any such commission shall have 
 been received at Hong Kong, so much of the act of 3 & 4 
 Will. IV. c. 93, as relates to the powers and authorities to 
 be exercised by the superintendent, or to their regulation of 
 trade and commerce, shall be repealed. 
 
 III. The laws relating to merchant seamen. 
 
 These are comprised in the 7 & 8 Vict. c. 1 12, 8 & 9 Vict. 
 c. 116, 13 & 14 Vict. c. 93, and 14 k 15 Vict. c. 96(0, 
 passed with a view to the great national object of improving 
 
 (»•) 12 & 13 Vict. c. 29, s. 6. («) These are called respectively, 
 
 (s) 3 & 4 Will. 4, c. 93, s. 5. " The General Merchant Seamen's 
 
 R. 2
 
 244 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 the condition and promoting the increase of our mercantile 
 seamen, of securing their efficiency and discipline, and of 
 affording them all due encouragement and protection (t). 
 
 They provide that the committee of her Majesty's privy 
 council for matters relating to trade, commonly called the 
 " board of trade," shall have the general superintendence 
 of all matters relating to the British mercantile marine. 
 
 That in the port of London there shall be a " general 
 register and record office for seamen," and at certain of 
 the sea ports a " local marine board," for carrying into 
 effect the provisions of the acts under the superintendence 
 of the board of trade ; and that at each of the same ports 
 there shall be a " shipping office," under the control of a 
 " shipping master," whose duty it shall be to afford facili- 
 ties for engaging seamen, by keeping registries of their 
 names and characters; to superintend and facilitate their 
 engagement and discharge ; to provide means for securing 
 their attendance in pursuance of their engagements ; and, 
 generally, to render such services in respect of seamen as 
 shall be committed to them by the board of trade (u). 
 
 That an examination as to character and ability shall 
 take place with regard to persons intending to become 
 " masters" or " mates," and that no persons but those who 
 on such examination have obtained "certificates of com- 
 petency," or (as regards persons who have attained a cer- 
 tain rank in the service of her Majesty or the East India 
 Company) have obtained a " certificate of service," and 
 shall produce such certificate of competency or service to 
 the shipping master of the place, shall be permitted to pro- 
 ceed on a voyage in a foreign-going ship as master or mate ; 
 
 Act," " The Seamen's Protection (t) See also 14 & 15 Vict. c. 102, 
 
 Act," " The Mercantile Marine Act, to amend the acts relating to the 
 
 1850," and "The Mercantile Ma- Merchant Seamen's Fund, and to pro- 
 
 rine Act Amendment Act, 1851." vide for the winding up of the said 
 
 By the first of these a previous act fund, and for its better management 
 
 of 5 & 6 Will. 4, c. 19, is repealed, in the meantime, 
 except as regards the establishment (u) 7 & 8 Vict. c. 112, ss. 19, 20; 
 
 of the register for seamen. 13 & 14 Vict. c. 93, ss. 6, 7, 28.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 245 
 
 and that in case of misconduct, such certificates may be sus- 
 pended or cancelled (v). 
 
 In addition to these provisions, the acts contain a great 
 variety of others intended for the protection of seamen, and 
 for promoting health, discipline, and careful navigation, — 
 from among the more important of which we may extract 
 the following. 
 
 That every master of a ship shall, on carrying any sea- 
 man to sea as one of his crew, enter into an agreement with 
 him, to be signed by the master, (and in the case of foreign- 
 going ships by each seaman, in the presence of and at- 
 tested by the shipping master), and setting forth the nature 
 and length of the voyage, the time at which the seaman is 
 to be on board, the capacity in which he is to serve, the 
 amount of wages, a scale of provisions, and regulations as 
 to conduct, and such punishments for misconduct as the 
 board of trade shall have sanctioned and as the parties 
 shall agree to adopt (iv). That every stipulation on the 
 part of the seaman for abandoning his right to wages in 
 the event of the loss of the ship, or his right in the nature 
 of salvage, shall be inoperative (x). That every place oc- 
 cupied by seamen or apprentices in any ship shall have a 
 space of nine superficial feet for every adult, and be well 
 ventilated {y). That the ship shall be properly supplied 
 with medicines, to be examined by " inspectors" to be ap- 
 pointed for the purpose (2). That efficient " log books" (a) 
 shall be kept in such form as prescribed by the board of 
 trade, either in connection with or distinct from the ordi- 
 nary log-books. That in all cases entry shall be made in 
 the official log-books as soon as possible after the occur- 
 rences to which they relate. That among the occurrences, 
 
 (u) 13 & 14 Vict. c. 93, ss. 24, 26, (u) Ibid. s. 63. 
 
 27, 28; 14 & 15 Vict. c. 96, s. 6. (z) 7 & 8 Vict. c. 112, s. 18; 13 
 
 (w) 13 & 14 Vict. c. 93, s. 46. & 14 Vict. c. 93, ss. 64—67. 
 This is not to extend to coasters (a) 13 & 14 Vict. c. 93, ss.85 — 88. 
 
 under 80 tons burthen, 14 & 15 Vict. This provision also is not to extend 
 
 c. 96, s. 15. to coasters under 80 tons burthen, 14 
 
 (1) 13 & 14 Vict. c. 93, s. 53. & 15 Vict. c. 96, s. 15.
 
 246 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 all offences committed, all inflictions of punishment, and all 
 illnesses, injuries or deaths shall be entered, and such en- 
 tries shall be signed by the mate ; and that some time before 
 the discharge of the crew true entries shall be made con- 
 cerning the conduct and character of the several seamen. 
 That in the case of foreign-going ships, such official log- 
 book shall within forty-eight hours after the ship's arrival or 
 discharge of the crew, whichever shall first happen, be deli- 
 vered to the shipping master (a). A nd that in the case of 
 foreign-going ships, all seamen discharged in the united 
 kingdom shall be discharged and receive their wages in the 
 presence of the shipping master (b). 
 
 IV. The laws relating to ports or harbours, lighthouses, 
 beacons, and seamarks. 
 
 And here — 
 
 1. As to ports or harbours. 
 
 The common law prerogative of the crown in respect to 
 these has been explained in a former volume (c) ; and it is 
 not intended to recur to that subject on the present occa- 
 sion ; nor is it necessary to notice (farther than simply 
 allude to) the many local acts of parliament, which have 
 from time to time been passed for repairing and improving 
 the harbours to which they respectively relate. Our busi- 
 ness at present is with the acts of general regulation re- 
 lative to ports and harbours ; among which may be noticed 
 19 Geo. II. c. 22, by which certain nuisances in harbours 
 are restrained; and 46 Geo. III. c. 153, by which it is pro- 
 vided that no pier, quay, or embankment, shall be erected 
 in or adjoining to any public harbour in the united king- 
 dom, or any river immediately communicating therewith, 
 so far as the tide flows up the same, without giving one 
 month's notice of the intention to do so to the secretary of 
 the Admiralty. But the principal statute now in force is 
 54 Geo. [II. c. 159. 
 
 By this it is enacted, that the Lords of the Admiralty 
 
 (a) 13 & 14 Vict. c. 93, s. 89. (c) Vide sup. vol. ii. p. 490. 
 
 (6) Ibid. s. 96.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 247 
 
 shall from time to time, make such regulations as they shall 
 think fit for the preservation of the royal moorings, and for 
 the mooring, anchoring or placing all private ships of war, 
 merchant vessels, and all other craft whatsoever, in all 
 ports, harbours and navigable rivers of the united king- 
 dom, so far as the tide flows and re-flows, in or near which 
 there are any royal docks, arsenals, wharfs, or moorings, 
 for the purpose of insuring safe and free ingress and egress 
 to and from such docks, arsenals, wharfs, and moorings ; 
 and, to enforce such regulations, shall from time to time 
 appoint proper persons, to be called " the king's harbour 
 masters" (d). The act also contains provisions prohibiting 
 private ships from being fastened to the royal moorings, 
 and regulations as to ships laden with gunpowder, as to 
 keeping fires on board of private ships, or casting ballast 
 or rubbish into harbours, and as to vessels sunk in har- 
 bours. We may also notice the provisions of 9 & 10 Vict. 
 c. 102, s. 14, by which the commissioners of the treasury 
 are enabled to ascertain the limits of ports, and assign pro- 
 per wharfs and quays therein; and, lastly, the 10 & 11 
 Vict. c. 27, an act passed to consolidate into one statute the 
 provisions usually contained in the local acts to which we 
 have above alluded (e). 
 
 2. As to lighthouses, beacons, and other sea-marks. 
 
 The power of erecting and maintaining these is (as for- 
 merly shown) a branch of the royal prerogative (f). By 
 8 Eliz. c. 13, however, it is specially committed to the cor- 
 poration of the Trinity House of Deptford Strond, which is 
 a company of masters of ships, charged by various charters 
 with providing for the increase of ships and mariners for 
 the royal service. By 6 Geo. IV. c. 125 (g), the provisions 
 of the act of Elizabeth are extended also to all vessels 
 appointed to exhibit lights for the preservation of vessels 
 at sea. By 6 8c 7 Will. IV. c. 79, the Trinity House was 
 farther empowered to purchase the existing interests of pri- 
 
 (d) Sect. 2. (/) Vide sup. vol. ii. p. 492. 
 
 (e) As to the cinque ports, vide (g) Sects. 90, 91. 
 sup. vol. ii. p. 491, n. (t).
 
 248 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 vate persons in certain specified lighthouses, so as to place 
 under their immediate authority all edifices of that descrip- 
 tion in England (A); and the lighthouse at Heligoland (i) 
 was also vested in them ; and it is provided that no new 
 light, beacon, or sea-mark, should be placed without the 
 sanction of the said company. Regulation is also made as 
 to the manner in which the tolls of lighthouses are to be 
 collected from ships ; and it is enacted that the Trinity 
 House may from time to time, upon the requisition, or with 
 the consent of the king in council, remove and discontinue 
 any lighthouses and erect others, and may direct the owners 
 of kilns or furnaces, so kept as to be liable to be mistaken 
 for lighthouses, to make the necessary alteration therein, so 
 that such mistake may be in future prevented (k). And, 
 lastly, by 1 & 2 Vict. c. 66, the lighthouse at Gibraltar is 
 vested in the same company, and the powers given to them 
 by the act of 6 & 7 Will. IV. are for the most part extended 
 to the lighthouse at Gibraltar, and all other lighthouses not 
 within the united kingdom which shall be at any time 
 vested in such company. 
 
 V. The laws relating to pilotage. 
 
 The statutes in force on this subject are 6 Geo. IV. c. 
 125(0; 9 Geo. IV. c. 86; 3 & 4 Vict. c. 68; and 12 & 13 
 Vict. c. 88. 
 
 By the first of these acts (which is the principal one, 
 and repeals all former provisions on the subject) it is en- 
 acted, that the corporation of the Trinity House of Deptford 
 Strond shall grant annual licences to persons qualified, as 
 in the act mentioned, to act as pilots in conducting vessels 
 
 (It) The lighthouses on the coast 79, s. 1). As to this corporation, 
 
 of Scotland are under the control of see also 6 & 7 Will. 4, c. 117. 
 
 the "Commissioners of Northern (i) Sect. 35. 
 
 Lights" (appointed by 26 Geo. 3, (k) Sect. 51. 
 
 c. 101); and those on the coast of (/) As to the construction of this 
 
 Ireland under that of the " corpora- statute, vide Williams v. Newton, 14 
 
 tion for improving and preserving Mee. & W. 747 ; Peake v. Screech, 
 
 the Port of Dublin" (appointed by 7 Q. B. 603. 
 52 Geo. 3, c. 115 ; 6 & 7 Will. 4, c.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 249 
 
 up and down the Thames and Med way and the adjoining- 
 channels, between Orfordness and London Bridge, or from 
 London Bridge to the Downs, or from the Downs west- 
 ward as far as the Isle of Wight, or in the English Channel 
 from the Isle of Wight up to London Bridge ; and that all 
 vessels within those limits, except as after mentioned, shall 
 be conducted by pilots so licensed, and by no other person 
 whatsoever (m). The same corporation is also required 
 to appoint " Sub-commissioners of Pilotage," who shall 
 license in the same manner qualified pilots at such ports 
 and places in England as they may think requisite (except 
 the liberty of the Cinque Ports, and such other places as 
 may be otherwise specially provided for), to act within 
 particular limits to be specified (w), to the exclusion of all 
 other pilots whatsoever (o) : and is moreover authorized to 
 establish and alter, as circumstances may require, rates of 
 pilotage in relation to all services performed in any river, 
 port or place, or on any coast, by any pilot licensed by the 
 corporation (p), and also to make bye-laws for the regula- 
 tion of licensed pilots (q) ; such bye-laws to be transmitted 
 to the privy council and commissioners of the customs, and 
 afterwards to receive the sanction of the Chief Justice of 
 the Queen's Bench or Common Pleas (r). 
 
 With respect to the excepted liberty of the Cinque Ports, 
 the act in like manner provides, that the lord warden of the 
 Cinque Ports and constable of Dover Castle, or his lieu- 
 tenant, shall license pilots, qualified as therein mentioned, 
 for conducting vessels sailing from or by Dungeness up 
 the rivers Thames and Medway to London Bridge and 
 Rochester Bridge, and all the channels of the same, and 
 
 (wi) Sect. 2. By a later enactment, limits specified in the certificate the 
 
 however (12 & 13 Vict. c. 88), the vessel whereof he may be master or 
 
 masters and mates of vessels who, mate, 
 
 after such examination as therein (n) Sect 5. 
 
 prescribed, shall have obtained such (o) Sect. 7, 
 
 certificate as therein mentioned, are (p) Sect. 8. 
 
 permitted, while such certificate is in (</) Sect. 11. 
 
 force, to pilot and conduct within the (»■) Sect. 12.
 
 250 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 from the south buoy of the Brake to the westward, as far 
 as the west end of the Owers; and that all vessels within 
 those limits, except as in the act mentioned, shall be con- 
 ducted by pilots so licensed, and by no other persons 
 whatever (s). 
 
 By another exception from the general jurisdiction, the 
 Corporation of the Trinity House of Hull and Newcastle 
 respectively, may also license qualified pilots to conduct 
 ships in and out of any ports or places within their respec- 
 tive limits (t). 
 
 Among various other provisions, too minute for notice 
 in this place, the act requires in general that all masters of 
 vessels coming from the westward, and bound to any place 
 in the Thames or Medway, shall, on the arrival of the 
 vessel off Dungeness, and continually while within certain 
 limits, display and keep flying the usual signal for a pilot 
 to come on board, and shall facilitate any duly qualified 
 Cinque Port pilot's getting on board accordingly, under 
 penalty of forfeiting double the amount of pilotage (u) ; 
 and that, on the other hand, no owner or master shall be 
 answerable to any person for any loss which shall happen 
 through the default or incapacity of the licensed pilot on 
 board, or so long as no duly qualified pilot shall have 
 offered to take charge of the vessel (x). 
 
 The authorities appointed by the act for granting licences 
 to persons to act as pilots, are also respectively authorized 
 to license vessels of such size and description as they think 
 proper, for the purpose of having pilots constantly in at- 
 tendance in such vessels at sea ; and for the better support 
 of such pilot-vessels, any number of licensed pilots may, 
 by consent of the authorities, constitute a joint-stock 
 
 (s) Sect. 14. Vide sup. vol. ii. (») Sect. 19. 
 
 p. 491, n. (t). As to the extent of (x) Sect. 55. Hammond v. Blake, 
 
 the jurisdiction of the Cinque Ports, 10 B. & C. 424 ; Chaney v. Payne, 
 
 see also 9 Geo. 4, c. 86. 1 Q. B. 712 ; R. v. Chaney, 6 Dowl. 
 
 (0 6 Geo. 4, c. 125, s. 6; Dodds P. C. 281 ; Beilby v. Scott, 7 Mee. 
 
 v. Embleton, 9 D. & R. 27 ; Beilby & W. 93 ; Beilby v. Shepherd, 3 
 
 v. Raper, 3 B. & Ad. 284. Exch. 40.
 
 CHAP. VII.— OF THE LAWS RELATING TO TRADE, &C. 251 
 
 company for the providing and maintaining of such pilot- 
 vessels (y). By 3 & 4 Vict. c. 68, it is also provided that 
 every such pilot-boat or vessel, or any vessel belonging to 
 a licensed pilot, shall be painted or tarred entirely black, 
 except the name or other description required by law to be 
 painted on such boat or vessel. And by 14 & 15 Vict. c. 
 96, it is enacted, that any pilot in charge of a ship who, by 
 wilful breach or neglect of duty, or by reason of drunken- 
 ness, does any act tending to the immediate loss, destruc- 
 tion, or serious damage of such ship, or immediately en- 
 dangering, or tending immediately to endanger, the life or 
 limb of any person on board, or refuses or omits to do any 
 lawful act proper and requisite for preserving such ship 
 from loss, destruction, or serious damage, or for preserving 
 any person on board of or belonging to such ship from 
 danger of life or limb, shall for each such offence be deemed 
 guilty of a misdemeanor. 
 
 VI. The laws relating to Fisheries. 
 
 We cannot consistently with the design and necessary 
 limits of the present work, attempt to detail the numerous 
 provisions which our statute book contains in regard to 
 fisheries. It will suffice to point out some of the principal 
 features of our policy in relation to this subject. 
 
 And first we may remark (as to England and Scotland), 
 that a great variety of acts of parliament are in force re- 
 lating to fisheries, and chiefly for the protection of the breed 
 of fish, and the prevention of any practices tending to 
 destroy the spawn or fry (2). They are as follows: 13 
 Edw. I. st. 1, c. 47; 13 Ric. II. st. 1, c. 19; 17 Ric. II. 
 c. 9; 2 Hen. VI. c. 15; 1 Eliz. c. 17; 3 Jac. I. c. 12; 30 
 Car. II. st. 1, c. 9 ; 1 Geo. I. st. 2, c. 18 ; 33 Geo. II. c. 27, 
 s. 13, &c; 15 Geo. III. c. 31; 58 Geo. III. c. 43; 7 & 8 
 Geo. IV. c. 29, s. 36; c. 30, s. 15; 9 Geo. IV. c. 39; 
 6 & 7 Vict. c. 33; 7 & 8 Vict. c. 95; 8 & 9 Vict. c. 26; 
 
 (y) Sect. 31. 
 
 (s) Vide Mayor of Maldon v. Woolvet, 12 Ad. & Ell. 13.
 
 252 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 9 & 10 Vict. c. 80 ; 10 & 1 1 Vict. cc. 91, 92; 11 & 12 Vict, 
 c. 52; 13 & 14 Vict. c. 80; 14 & 15 Vict. c. 26. 
 
 Secondly, that the trade in fish, as regards the cities 
 of London and Westminster, is regulated by certain acts 
 passed for that special purpose; the general object of 
 which is to secure a supply of fresh fish to those cities, 
 and to prevent the forestalling of the same. The acts are 
 22 Geo. II. c. 49; 29 Geo. II. c. 39; 33 Geo. II. c. 27; 
 2 Geo. III. c. 15; 30 Geo. III. c. 54; 36 Geo. III. c. 118; 
 4 & 5 Will. IV. c. 20. 
 
 Thirdly, that persons employed in the fisheries in such 
 manner and under such circumstances as defined by the 
 statute 50 Geo. III. c. 108, are by that statute exempted 
 from impressment. 
 
 Fourthly, that the importation in fishing vessels of fish 
 of foreign taking (with the exception of certain kinds only) 
 is by 5 & 6 Vict. c. 47 (a), prohibited altogether ; and its 
 importation in any other vessels is also prohibited, except 
 in such as are regularly cleared out for a foreign port ; and 
 that when imported in such vessels as last mentioned, it is 
 subject to duty on importation; but that fish of British 
 taking (fresh or cured) may be imported and exported in 
 all cases duty-free (6). 
 
 Fifthly, that acts have been of late years frequently 
 passed enabling commissioners appointed for that purpose 
 to sanction the advance of public monies, on loan, for the 
 encouragement of the fisheries, as well as of public works 
 and other national undertakings ; the last of these acts was 
 the 14 & 15 Vict. c. 23. 
 
 Sixthly, that bounties were formerly payable by act of 
 parliament upon the taking and curing of fish of various 
 descriptions, and on the vessels employed in various branches 
 of the fisheries, but that the policy in this respect having 
 been lately altered, these bounties are abolished by 1 & 2 
 Geo. IV. c. 79 ; 5 Geo. IV. c. 64 ; 7 Geo. IV. c. 34 (c). 
 
 (a) Sects. 4, 5. 54. The curing of herrings is regu- 
 
 (6) Tables annexed to same act. lated by 14 & 15 Vict. c. 26. 
 
 (c) See 11 Geo. 4 & 1 Will. 4, c.
 
 CHAP. VII. — OF THE LAWS RELATING TO TRADE, &C. 253 
 
 Seventhly, that the fisheries of Ireland are now regu- 
 lated by recent acts, 5 & 6 Vict. c. 106 ; 7 & 8 Vict. c. 108 ; 
 8 & 9 Vict. c. 108; 9 & 10 Vict. cc. 3, 114; 10 & 11 Vict. 
 c. 75; 11 & 12 Vict. c. 92; and 13 k 14 Vict. c. 88 ; by 
 which almost all the former statutes on that subject are re- 
 pealed, and their provisions consolidated and amended. In 
 the Irish fisheries, as regulated by these acts, the principle 
 of bounty (which as to those as well as the British fisheries 
 had been previously abandoned (d) ) is not revived. 
 
 Lastly, that a treaty was concluded in 1839 between 
 her Majesty and the late King of the French, defining the 
 limits of exclusive fishery between the British Islands and 
 France, and agreeing to appoint commissioners, consisting 
 of an equal number of each nation, to prepare regulations 
 for the guidance of the fishermen of the two countries in 
 the interjacent seas. And that by the 6 & 7 Vict. c. 79 (e), 
 the said treaty was carried into effect, and the articles 
 agreed upon by the said commissioners and annexed to 
 the act, declared to be binding on all persons and to have 
 the force of law, and various regulations made for their 
 more effectual observance. 
 
 (d) 1 & 2 Geo. 4, c. 79 ; 5 Geo. 4, Vict. c. 96, continued by 5 & G Vict, 
 c. 64 ; 7 Geo. 4, c. 34. c. 63. 
 
 (e) See also the interim act, 2 & 3
 
 254 BK. IV. OP PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 CHAPTER VIII. 
 
 OF THE LAWS RELATING TO THE SANATORY 
 CONDITION OF THE PEOPLE. 
 
 The attention of the legislature has from the reign of James 
 the first been at various times directed to the subject of 
 pestilent and contagious disease, and to the establishment 
 of such precautions as human knowledge and sagacity 
 might devise, for averting its course or mitigating its 
 effects. 
 
 The enactments which have been introduced in reference 
 to this matter have principally had in view the particular 
 maladies of Plague, Cholera, and Small-pox, but sanatory 
 regulations of a more general character have within a recent 
 period been very copiously established. 
 
 First. With respect to Plague, various provisions were 
 made by 1 Jac. I. c. 31. By this statute it was enacted, 
 that if any person infected with the plague, or dwelling in 
 any infected house, should be commanded by the mayor 
 or constable, or other head officer of his town or place, to 
 keep his house, and should wilfully and contemptuously 
 disobey such direction, he should be enforced with violence, 
 by the watchmen appointed, to obey such necessary com- 
 mand ; and if any hurt ensued by such enforcement, the 
 watchmen were not to be impeached. And farther, if such 
 person so commanded to confine himself went abroad and 
 conversed in company, if he had any infectious sore upon 
 him uncured, should suffer death as a felon ; but if no such 
 sore should be found upon him, should be punished as a 
 vagabond, and, moreover, bound to his good behaviour. 
 
 The necessity, however, of these, or of any regulations
 
 CHAP. VIII. — OF THE LAWS RELATING TO HEALTH, &C. 255 
 
 adapted to an actual prevalence of this disease among us, 
 has been long since at an end, no plague having by the 
 blessing of Providence been known in this island for more 
 than 170 years past; and the statute of James, after re- 
 maining for so long a period dormant, was at length in the 
 reign of her present Majesty repealed (a). 
 
 But besides the act of James above referred to, our 
 statute book contains several others on the subject of the 
 plague ; the main object of which is not so much to regu- 
 late the conduct of infected persons during its prevalence, 
 as to exclude it altogether from our population. 
 
 We here refer to the laws relating to quarantine (b), the 
 term applied to that period of probation during which ves- 
 sels ariving from countries infected with plague, or other 
 contagious disorder, are restrained by law from general 
 intercourse. 
 
 The first statute on the subject was 9 Ann. c. 2, which 
 was followed by several others in the reigns of George the 
 first and George the second ; but at length all former pro- 
 visions were repealed by 6 Geo. IV. c. 78, which con- 
 solidates the whole law now in force with respect to 
 quarantine. 
 
 By this last mentioned statute it is enacted, that all ves- 
 sels, as well of war as others, coming from any place, from 
 whence the crown, by the advice of the privy council, shall 
 have adjudged it probable that the plague or other infec- 
 tious disease of a highly dangerous kind may be brought, 
 and all vessels and boats receiving persons or goods out of 
 the same, and all persons and goods on board the vessels 
 so arriving, or so receiving as aforesaid, shall be liable to 
 quarantine within the meaning of the act., and of any order 
 or orders in council concerning quarantine ; and shall be 
 obliged to perform quarantine in such place or places 
 
 (a) 7 Will. 4 & 1 Vict. c. 91, s. 4. tinian, a.d. 542. In modern times 
 
 (A) The earliest known regulations the example has been followed in all 
 
 in the nature of quarantine laws are the principal countries of Europe. 
 
 those contained in an edict of Jus-
 
 256 BK. IV. OP PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 (known by the name of lazarets), for such time, and in 
 sucli manner, as shall from time to time be directed by any 
 order in council, notified by proclamation or published in 
 the London Gazette : and until they shall have been dis- 
 charged from such quarantine shall not come on shore, or 
 be put on board any other vessel or boat, except in such 
 cases, and by such licence, as the order in council may 
 direct (c). And in case of breach of quarantine, either as 
 to persons or goods, the offender is visited with heavy fine, 
 and any person escaping from quarantine is besides punish- 
 able with imprisonment for six months (d). But, on the 
 other hand, the privy council are empowered, if they shall 
 think fit, to shorten in any case the period of quarantine, 
 or absolutely release therefrom any particular vessels, per- 
 sons, or goods (e). 
 
 Every commander or other person having the charge of 
 any vessel liable to the performance of quarantine, is also 
 required, whenever he shall meet any vessel at sea, or be 
 within two leagues of the coast or its adjacent islands, to 
 hoist, and keep hoisted, such signal as required by the act, 
 to denote that he is liable to the performance of quaran- 
 tine, or (if the fact be so) that he has the plague or other 
 highly dangerous and infectious disease on board (f); and 
 every commander, or other person having the charge of 
 any vessel coming from foreign parts, is also directed to 
 give to the pilot who shall go on board, a written paper 
 containing a true account of the places where the vessel 
 has traded or touched • and, if the vessel is not liable to 
 quarantine in respect of place, a written paper containing a 
 true account of the different articles composing the cargo ; 
 and if, by any order in council made since his departure, 
 such places or goods have been made liable to quarantine, 
 the pilot is forthwith bound to give him notice thereof, and 
 the commander shall thereupon hoist a signal according to 
 the act ; and the pilot is prohibited from taking such vessel 
 
 (c) Sect. 2. ( e ) Sect. 6. 
 
 (d) Sects. 17, 26. (/) Sects. 8,9.
 
 CHAP. VIII. — OF THE LAWS RELATING TO HEALTH, &C. 257 
 
 into any port not specially appointed for performing quaran- 
 tine ((/). 
 
 Besides many other regulations too minute to be here 
 set forth, it is farther provided, as to such sorts of goods 
 and merchandize as are more especially liable to retain in- 
 fection, and which shall be specified for that purpose by 
 any order in council, that as well such goods, if conveyed 
 into any port or place in the united kingdom from any 
 foreign country or place in any vessel whatever, as the 
 vessel in which the same shall be conveyed, shall be liable 
 to such regulations as the crown by any order in council 
 shall make respecting the same (A). And power is more- 
 over given to the lords of the privy council, or to any two 
 of them, to make such order as they shall see necessary 
 upon any unforeseen emergency, or in any particular case, 
 with respect to any vessel and goods arriving and having 
 any infectious disease on board, or arriving under any 
 suspicious circumstances as to infection; although such 
 vessels shall not have come from any place from which the 
 crown has declared it probable that the plague or other 
 disease may be brought (i). 
 
 A similar power is likewise committed to them in the 
 case of any infectious disease or distemper breaking out in 
 the united kingdom ; and for cutting off communication 
 between persons afflicted therewith, and the rest of the 
 subjects of the realm (k). 
 
 This act also authorizes the privy council, as often as 
 they see reason to apprehend that the yellow fever, or 
 other highly infectious disorder, prevails on the continent 
 of America or in the West Indies, to require that every 
 vessel coming from or having touched at those parts shall 
 come to an anchor at certain places to be appointed from 
 time to time by the commissioners of customs, for the pur- 
 pose of having the state of health of their crews examined, 
 before such vessel can enter any port of the united kingdom. 
 
 (g) Sects. 11, 12. (t) Sect. 6. 
 
 (h) Sect. 5. (k) Ibid. 
 
 VOL. III. S
 
 258 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 But such vessel shall not be liable to quarantine unless it 
 be so specially ordered (I). 
 
 The crown is also enabled, if it shall happen that the 
 united kingdom or the adjacent islands, or France, Spain, 
 Portugal, or the low countries, shall be infected with 
 plague or such disease as aforesaid, to issue a proclamation 
 restraining all vessels under one hundred tons from sailing 
 out of any port in the united kingdom, or the adjacent 
 islands, until a bond be given with sufficient sureties against 
 going to, or touching at, the place so infected, or having 
 any intercourse therewith (m). 
 
 Secondly. As to Cholera. 
 
 The visitation of the kingdom by the spasmodic or In- 
 dian cholera, gave occasion in 1832 to the act 2 Will. IV. 
 c. 10, by which the privy council were empowered to issue 
 orders such as might appear expedient, with a view to 
 prevent the spread of this fearful disease, or for the relief 
 of persons afflicted thereby, or the interment of those who 
 became its victims. And by the 3 & 4 Will. IV. c. 75, 
 this act was continued until the end of the then next session 
 of parliament. But at the expiration of that period the 
 cholera had wholly disappeared, and the act was not farther 
 continued, nor has it been hitherto revived. 
 
 Thirdly. As to Small-pox. 
 
 By 3 & 4 Vict. c. 29, intituled An Act to extend the 
 Practice of Vaccination, (amended by 4 & 5 Vict. c. 32,) 
 the guardians of parishes or unions, or the overseers of 
 parishes where there are no guardians, are directed to con- 
 tract (subject to the regulation of the commissioners for 
 administering the laws for the relief of the poor) with the 
 medical officers of the parish, or other persons, for the 
 vaccination of all persons there resident ; and such medical 
 officers, or other practitioners, shall report to the overseers 
 or guardians, from time to time, the number of persons 
 successfully vaccinated, with such farther particulars as the 
 guardians and overseers, under direction of the commis- 
 (0 Sect. 3. (m) Sect. 27.
 
 CHAP. VIII. — OF THE LAWS RELATING TO HEALTH, &C. 259 
 
 sioners, may require ; and any person who may produce, 
 or attempt to produce, by inoculation or otherwise, the 
 disease of small-pox in any person in England, Wales, or 
 Ireland, shall be liable to be proceeded against and con- 
 victed summarily before two or more justices of the peace 
 in petty sessions, and for every such offence be imprisoned 
 for a term not exceeding one month. 
 
 As for the more general provisions which tend to the 
 preservation and improvement of the public health, they 
 have issued from the legislature during the last tew years 
 with a profusion that makes it impossible to enter into a 
 full detail of them, without allotting more space to the par- 
 ticular subject than the plan of the work permits. We can 
 only advert to such as are of a more directly sanatory cha- 
 racter, and which relate either to the public health in general, 
 or more particularly to the removal of nuisances. 
 
 First. By 11 & 12 Vict. c. 63 (n), (called " The Public 
 Health Act, 1848,") a board of three persons is consti- 
 tuted (for five years), under the appellation of " The 
 General Board of Health," with pow r er (subject to the 
 approval of the lords commissioners of the treasury) to 
 appoint, for the purposes of the act, certain officers, called 
 " Superintending Inspectors." And it is provided, that, 
 upon the petition of not less than one-tenth of the inhabi- 
 tants rated to the relief of the poor in any place (not being 
 less than thirty in the whole), or if it shall appear from the 
 last return of the registrar-general that the number of 
 deaths registered in not less than seven years in that place 
 has on an average exceeded annually the proportion of 23 
 to 1000 of the population, the general board of health may 
 direct a superintending inspector to visit the place, and in- 
 stitute a preliminary inquiry into all matters connected with 
 
 (n) Amended as to the rating of amending " The Public Health Act, 
 
 tithes and tithe-rent charges by 14 1818," in certain particulars, 12 & 
 
 & 15 Vict. c. 50. And see the follow- 13 Vict. c. 94 ; 13 & 14 Vict. cc. 90, 
 
 ing acts for confirming provisional 108; 14 & 15 Vict. cc. 80, 98, 103 ; 
 
 orders of the board of health, and 15 & 16 Vict. cc. 42, 69. 
 
 s. 2
 
 260 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 its sanatory condition, and report thereon to the board ; 
 and if it shall appear to the board expedient that the act 
 should be applied to that place, the same shall be applied 
 accordingly, either by order in council, or, under certain 
 circumstances (n), by a provisional order of the board, to 
 be confirmed by an act of parliament. The act, when so 
 made applicable to any place, is to be carried into effect 
 there by a " Local Board of Health," (which, as regards 
 corporate boroughs, is to be the town council of the borough, 
 and, as regards other places, is to be elected by the owners 
 and rate-payers) ; and this board is to have power to ap- 
 point officers, and to be charged with a great variety of 
 duties, and to be clothed with corresponding powers, in 
 relation to sewers (o), drains, privies, the removal of nui- 
 sances, the regulation of slaughter-houses, and common 
 lodging houses ; the control over streets (])), water and gas 
 works, the supply of water (through the medium of existing 
 water companies, if any are already established adequate to 
 such supply), and other matters connected with the sana- 
 tory improvement of the place. The local board of health 
 is also to have the power (with approval of the general 
 board) to provide premises for the purpose of being used as 
 public walks or pleasure grounds, and to contribute towards 
 any premises provided by private benevolence for such 
 purposes, and to make representation to the general board 
 as to any burial grounds, churchyards, or vaults, which 
 may be in a state dangerous to health. And the expenses 
 connected with all these duties are to be defrayed out of 
 local rates, to be made either prospectively orret respec- 
 tively, and to be levied in general on the occupiers of pro- 
 perty liable to the poor rate. 
 
 (a) That is, in cases where the act ever, as to sewers under the autho- 
 
 is to be put in force within boun- rity of commissioners of sewers, ss. 
 
 claries not the same with those of 43, 145. 
 
 the place petitioning, or from which (p) Within the limits of their dis- 
 
 there is no petition, or in which any trict the local board of health are to 
 
 local act of parliament for paving, be (exclusively of any other person) 
 
 cleansing, &c, is in force, s. 10. the surveyor of the highways, s. 117. 
 
 (») There is an exception, how-
 
 CHAP. VIII. — OF THE LAWS RELATING TO HEALTH, &C. 261 
 
 Secondly. It is enacted by 11 & 12 Vict. c. 123 (q), 
 called " The Nuisances Removal and Diseases Prevention 
 Act, 1848," that upon receipt by the town council, or such 
 other public authority in any place as in the act mentioned, 
 of a proper notice signed by two or more inhabitant house- 
 holders of that place, relative to the existence there of any 
 public nuisance injurious to health, and such as the act more 
 particularly describes, the authorities so addressed shall 
 examine as to the alleged nuisance, and if they find it to 
 exist, shall make complaint to the magistrates; and if two 
 justices of the peace shall be satisfied (after summons and 
 hearing of the owner or occupier of the premises examined) 
 of the existence of the nuisance, they shall order its removal 
 or abatement, by proper cleansing or otherwise; and if 
 such order be not complied with, the owner or occupier 
 shall be liable to the penalty of 10s. a day during the con- 
 tinuance of his default; and the authorities complaining 
 shall themselves cause the nuisance to be removed or abated 
 at his expense (r). 
 
 And it is farther provided, that no hospital for the re- 
 ception of patients afflicted with contagious or infectious 
 diseases shall be built in any place without previous notice 
 to the general board of health, nor until that board has ap- 
 proved thereof in writing (.<>). 
 
 And farther, that if any part of the united kingdom shall 
 be threatened or affected with any formidable epidemic or 
 endemic, or contagious disease, her Majesty's privy council, 
 or any three or more of them (the lord president or a secre- 
 tary of state being one), may order that the provisions of 
 this act may be put in force in any place ; and after such 
 order the general board of health may issue such directions 
 
 (q) There had been a previous act shall be in force, unless and except 
 
 of 9 & 10 Vict. c. 96, which expired so far as the general board of health 
 
 in 1848. shall direct. And by the same sec- 
 
 (r) 11 & 12 Vict. c. 123, sect. 1,2. tion nothing in the act contained is 
 
 By sect. 5, however, these provisions to impair any authority vested in 
 
 are not to apply to any place in which any commissioners of sewers. 
 
 "The Public Health Act, 1848," (s) 11 & 12 Vict. c. 123, s. 8.
 
 262 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 as it may think fit for the prevention or mitigation of such 
 disease, by removal of nuisances, or the purifying, ventila- 
 ting and disinfecting houses and buildings, or otherwise (J) 
 (a medical member being in such cases added to the board 
 for the purpose (u) ) ; and the poor law board may require 
 the persons acting under them to inquire into, superintend, 
 and report upon the execution of such directions (v). 
 
 Thirdly, by 12 & 13 Vict. c. Ill, called "The Nuisances 
 Removal and Diseases Prevention Amendment Act, 1849," 
 it is provided that the guardians and other officers having 
 the management of the poor, or acting under any local act 
 of parliament for paving, cleansing, drainage or lighting, 
 may from time to time direct any prosecution for the wilful 
 violation or neglect of any direction of the general board of 
 health so issued as in the former act mentioned, and defray 
 the expenses out of the fund applicable to the relief of the 
 poor (x) ; and may on receipt of a certificate from their 
 medical or relieving officer of the existence of such nui- 
 sances as in the former act mentioned, take all such pro- 
 ceedings as are therein required to be taken on receipt of a 
 notice of the existence of a nuisance from two inhabitant 
 householders {y). 
 
 And farther, that the general board of health may cause 
 inquiry to be made into the state of the burial grounds in 
 any part of England or Wales excepted from the powers 
 of "The Public Health Act, 1848," or in any populous city 
 or place in England or Wales to which for the time being 
 that act has not been applied, and if it shall appear that the 
 state of the burial grounds in any parish, or in any parishes 
 which may be conveniently united for the purposes of in- 
 terment, render it expedient that a burial ground should be 
 provided for such parish, or for the common use of such 
 parishes, the board may direct a superintending inspector 
 to inquire and report upon the subject, and upon such 
 
 (0 Sects. 9, 10. (x) 12 & 13 Vict. c. HI, s. 3. 
 
 (u) Sect. 11. (y) Sect. 6. 
 
 (i) Sect. 12.
 
 CHAP. VIII. OF THE LAWS RELATING TO HEALTH, &C. 263 
 
 report the board may frame a scheme for providing a 
 burial ground for such parish or parishes, and for prohibit- 
 ing (so far as may appear proper) interments elsewhere; 
 provided, however, that such scheme shall be subject, as to 
 matters of ecclesiastical jurisdiction, to the approval of the 
 bishop of the diocese, and also that it be presented to both 
 houses of parliament (z). 
 
 (2) 12 & 13 Vict. c. Ill, s. 9—12. 
 In addition to the three statutes of 
 which some account is above given, 
 there are the following more or less 
 immediately connected with the sub- 
 ject of the sanatory condition of the 
 people : — 
 
 3 & 4 Will. 4, c. 103 ; 7 & 8 Vict, 
 c. 15 ; 10 & 11 Vict. c. 29 ; 13 & 14 
 Vict. c. 54, for limiting the hours of 
 labour of young persons and females in 
 factories. 
 
 9 & 10 Vict. c. 74; 10 & 11 Vict, 
 c. 61, for encouraging the establish- 
 ment of public baths and washhouses. 
 
 9 & 10 Vict. c. 101 ; 10 & 11 Vict, 
 cc. 11,38, 79; 11 & 12 Vict. c. 119; 
 12 & 13 Vict. c. 100 ; 13 & 14 Vict. 
 c. 31, for promoting the improve- 
 ment of land and the general health 
 of the community by works of drain- 
 age. 
 
 11 & 12 Vict. cc. 105, 107; 13 & 
 
 14 Vict. c. 71 ; 14 & 15 Vict. c. 69 ; 
 
 15 & 16 Vict. c. 11, to prevent the 
 spreading of contagious or infectious 
 disorders among slieep, cattle and other 
 animals. 
 
 13 & 14 Vict. c. 100, for inspection 
 of coal mines, so as to ascertain that 
 the works, &c, thereof are not dan- 
 gerous to the persons employed, and 
 for requiring notices to be given of 
 accidents therein, &c. 
 
 14 & 15 Vict. c. 13, for placing the 
 sale of arsenic under certain restric- 
 tions. 
 
 14 & 15 Vict. c. 28, for regulating 
 common lodging houses, with a view to 
 the comfort and welfare of her Ma- 
 jesty's poorer subjects. 
 
 14 & 15 Vict. c. 34, for encou- 
 raging the establishment of lodging 
 houses for the labouring classes, with 
 a view to their health, comfort and 
 welfare. 
 
 See also as to the Metropolis, 11 & 
 12 Vict. c. clxiii, Sanatory improve- 
 ment, cleansing, §c., of London ; 11 & 
 12 Vict. c. 112; 12 & 13 Vict. c. 93 ; 
 
 14 & 15 Vict. c. 75 ; 15 & 16 Vict. c. 
 64, Metropolitan sewers ; 13 & 1 1- Vict. 
 c. 52 ; 14 & 15 Vict. c. 89 ; 15 & 16 
 Vict, c. 85, Metropolitan interment; 
 
 15 & 16 Vict. c. 84, Metropolitan sup- 
 ply of water.
 
 ( 264 ) 
 
 CHAPTER IX. 
 
 OF THE LAWS RELATING TO PUBLIC CARRIAGES AND 
 CONVEYANCES. 
 
 It has been the policy of the legislature of this country to 
 exercise, over this department of social economy, merely a 
 general supervision, and to trust to the enterprise of indi- 
 viduals or societies for providing for the welfare and conve- 
 nience of the public in this important particular. 
 
 At an early period however it was found expedient to 
 place the hackney coaches and chairs in and about the 
 metropolis under strict control, both for the purpose of 
 keeping in some tolerable order a very refractory race of 
 men, and also of procuring an acceptable addition to the 
 revenue, by compelling them to take out licences and to 
 pay duties (a). 
 
 Other modes of locomotion have in later times been in- 
 vented, the laws relating to which will also form a part of 
 the subject of the present chapter, which may be conve- 
 niently divided into the following heads — I. The provisions 
 relating to hackney carriages ; II. To stage coaches; III. 
 To railways ; and IV. To conveyances by water. 
 
 I. The provisions relating to hackney coaches are to be 
 found in the 1 & 2 Will. IV. c. 22, (amended by 6 & 7 
 Vict. c. 86, and 13 & 14 Vict. c. 7,) which repealed all pre- 
 vious acts on this subject, and provided new enactments. 
 
 According to these acts a hackney carriage is determined 
 
 0) 13 & 14 Car. 2, c. 2 ; 5 W. & M. c. 22 ; 6 & 7 Will. 3, c. 18 ; 9 Ann. 
 c. 23, &c. &c.
 
 CH. IX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 265 
 
 to be every carriage (except a stage carriage) which shall 
 stand on hire or ply for a passenger for hire at any place 
 within the limits of the city of London and the liberties 
 thereof, and metropolitan police district (6). 
 
 These acts require in the first place that both the hack- 
 ney carriages themselves, and their drivers, should be re- 
 spectively licensed. 
 
 For by the first act no person may let to hire any hack- 
 ney carriage (if used for the purpose of standing or plying 
 within five miles from the General Post Office) without 
 having a licence so to do from the Commissioners of Excise 
 — in respect of which certain duties are periodically pay- 
 able (c) — or without having such proper numbered plates as 
 therein described, placed and fixed upon the carriage in 
 manner therein directed (d). 
 
 And by the second and third of the acts above-mentioned 
 no person shall act as driver of a hackney carriage, or as 
 " waterman" (e) within the limits of the act, without a licence 
 and a numbered metal ticket, to be granted by the com- 
 missioners of police of the metropolis (/). 
 
 This licence (on which a certain stamp duty is imposed, 
 and which must be renewed every year) can be granted 
 only on a satisfactory certificate of good behaviour and fit- 
 ness for the situation, and cannot be granted to any driver 
 
 (b) 6 & 7 Vict, c 86, ss. 2, 3. managing or taking care of the horses 
 
 (c) These duties formerly were or carriages, and every attendant 
 classed among those arising from upon any metropolitan stage car- 
 stamps. They now form part of the riage at places where such carriages 
 excise. See 1 & 2 Will. 4, c. 22, s. usually stop or ply for passengers. 6 
 6 ; 6 & 7 Vict. c. 86, s. 3 ; 10 & 11 & 7 Vict. c. 86, s. 2. These stand- 
 Vict. c. 42, s. 2. ings are fixed and regulated by the 
 
 (d) 1 & 2 Will. 4, c. 22, s. 22. commissioners of police. 13 & 14 
 
 (e) The term waterman is defined Vict. c. 7, s. 4. 
 
 to include every person supplying (/) 6 & 7 Vict. c. 86, ss. 5, 8, 
 water to the drivers of hackney car- 10 ; 13 & 14 Vict. c. 7, s. 2. The:-e 
 riages at the standings or places where licences were formerly granted by an 
 hackney carriages usually stand or officer called " Registrar of Metro- 
 ply for hire, and every person assist- politan Public Carriages." 
 ing the drivers at such standing in
 
 266 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 who is under sixteen years of age {g); and may be revoked 
 or suspended by a justice of the peace on the conviction of 
 the driver or waterman for any offence (h) ; and with re- 
 spect to the numbered ticket it is provided, that the driver 
 or waterman shall carry it, while engaged in his employ- 
 ment, conspicuously upon his breast, and permit it to be 
 freely inspected, at the request of any person whatever (i). 
 
 Very minute and careful regulations are also provided by 
 the legislature for the protection of the public against the 
 incivility, extortion, or other misconduct of hackney coach 
 drivers. 
 
 It would be improper in a work like the present to enu- 
 merate the whole of these ; but among the principal pro- 
 visions we may notice that penalties are imposed upon 
 any dfiver who refuses to drive to any place to which he is 
 ordered to go, within the distance of five miles from the 
 Post Office (k), or refuses to wait as long and where he is 
 ordered (7), or neglects to hold in his hand the check- 
 string belonging to such carriage while he is driving the 
 same (m), or omits to carry to the proper office any pro- 
 perty which may be inadvertently left behind in his car- 
 riage (ri), or authorizes any other person than himself to 
 drive, without the consent of the proprietor (o), or is guilty 
 of wanton or furious driving, or by carelessness or wilful 
 misbehaviour causes any hurt or damage to any person or 
 property in any street or highway (p), or plies for hire else- 
 where than at an appointed stand, or by loitering or wilful 
 misbehaviour causes any obstruction, or improperly delays 
 the carriage, or wilfully deceives any person as to its route 
 or destination, or refuses to admit and carry at the lawful 
 fare any passenger for whom there is room, and to whom 
 there is no visible objection, or demands more than the 
 
 (g) 6 & 7 Vict. c. 86, ss. 8, 14. (m) 1 & 2 Will. 4, c. 22, s. 48. 
 
 (h) Sect. 25. (n) Ibid. s. 49. 
 
 (i) Ibid. s. 17. (o) 6 & 7 Vict. c. 86, s. 27. 
 
 (k) \ &2 Will. 4, c. 22, s. 34. (;.) Ibid. s. 28. 
 
 (/) Ibid. s. 47.
 
 CH. IX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 267 
 
 legal fare, or, except in case of accident or unavoidable 
 necessity, stops his carriage upon any place where foot 
 passengers usually cross, or plies by blowing a horn or 
 using a noisy instrument within the liberty of the metro- 
 polis (rj). And heavy penalties are also imposed on every 
 person, whether driver or waterman, who during his em- 
 ployment shall be drunk or make use of any abusive or 
 insulting language, or be guilty of any insulting gesture or 
 misbehaviour (r), 
 
 On the other hand, any one refusing to pay his legal fare, 
 or injuring the carriage, must make such satisfaction to the 
 driver as a justice of the peace shall direct, or be committed 
 to prison (s). And if the driver be ordered to wait at any 
 place, he may require a reasonable deposit (t). 
 
 It is also to be noticed that when any complaint is made 
 before any justice of the peace against the driver, the pro- 
 jwietor may (if the justice shall think fit) be summoned to 
 produce the driver, and that on the failure of the proprietor 
 to do so, the justice may impose a fine on him for such 
 default, or may proceed to determine the case in the absence 
 of the driver, and order the penalty to be paid by the pro- 
 prietor (?<)• 
 
 II. The provisions relative to stage coaches will be found 
 embodied in 2 & 3 Will. IV. c. 120, amended by 3 & 4 
 Will. IV. c. 48 ; 2 & 3 Vict. c. 66 ; and 5 & 6 Vict. c. 79. 
 
 By the first of these acts a " stage carriage" is deter- 
 mined to be every carriage (whatever be its form or con- 
 struction) which is drawn by animal power, and used for 
 the purpose of conveying passengers for hire to and from 
 any place in Great Britain, and travelling at the rate of 
 three miles or more in the hour, and for which separate 
 fares shall be charged to separate passengers (x). 
 
 No carriage is to be kept for this purpose unless the 
 
 person who keeps it has a licence so to do from the Com- 
 
 (q) G & 7 Vict. c. 86, s. 33. (u) 6 & 7 Vict. c. 86, s. 35 ; 12 & 13 
 
 (?) Ibid. s. 28. Vict. c. 92, s. 22. 
 (s) 1 &2 Will, 4, c.22, s.41. (x) 2&3Will.4, c. 120.S.5. 
 
 (0 Ibid. s. 47.
 
 268 I3K. IV. OF PUBLIC RIGHTS. — TT. III. SOCIAL ECONOMY. 
 
 missioners of Inland Revenue, which must be yearly re- 
 newed, and in respect of which certain duties are made 
 payable (?/); nor unless there be fixed on such carriage, in 
 manner as by the several acts provided, such numbered 
 plates and particulars as are thereby directed to be fixed 
 and painted on the carriage; and such painted particulars 
 are to specify the christian and surname of the proprietor, 
 or one of the proprietors, the extreme places to which the 
 licence extends, and the greatest number of inside and out- 
 side passengers which the carriage may lawfully convey (z). 
 
 The drivers and conductors of these carriages however 
 (with the exception of that description of them called " Me- 
 tropolitan Stage Carriages") are not obliged to be licensed, 
 nor to carry on their person any distinctive badge, but nu- 
 merous penalties are imposed for offences or neglects which 
 would seem to militate against the safety or convenience 
 of the public. Among these may be mentioned — driving 
 a staoe coach without or with a defective licence, or with- 
 out having such plates and painted particulars as above 
 referred to (a) ; carrying too many passengers or too much 
 luggage (b) ; and in short any intoxication, negligence, 
 furious driving, or other misconduct, in the driver or con- 
 ductor, which shall endanger the safety of any passenger 
 or other person, or the property of any person, including 
 the proprietor of the coach (c). 
 
 Besides all which, by 2 & 3 Will. IV. c. 120 (d), it is pro- 
 vided, that if it shall happen that the driver, conductor, or 
 
 (y) Sect. 6. These duties now (c) 2 & 3 Will. 4, c. 120, s. 48. 
 
 form part of the excise, 10 & 1 1 Vict. As to the right of action of passen- 
 
 c. 42, s. 2. gers for negligence, &c. of the driver, 
 
 (s) 2 & 3 Will. 4, c. 120, s. 36 ; vide post, hk. v. c. 8. By 1 Geo. 4, 
 
 5 & 6 Vict. c. 79, ss. 11, 13, 14. As c. 4, wanton and furious driving or 
 
 to mail coaches, and how far they are racing of puhlic carriages, when fol- 
 
 excepted, see 2 & 3 Will. 4, c. 120, lowed by maim or other injury to the 
 
 s. 46 ; 5 & 6 Vict. c. 79, s. 12. person, is a misdemeanor, punishable 
 
 («) 2 & 3 Will. 4, c. 120, ss. 30— by fine and imprisonment. 
 
 36 ; 5 & 6 Vict. c. 79, s. 14. (d) As to the production of the 
 
 (6) 3 & 4 Will. 4, c. 48, ss. 2, 3, driver, &c, by the proprietor, see 
 
 4 ; 5 & 6 Vict. c. 79, s. 15. also sup. p. 267, n. (w).
 
 CH. IX. OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 269 
 
 guard of any stage carriage, shall have committed any of- 
 fence against that act, but is not known, or, being known, 
 cannot be found, the proprietor shall be liable to the same 
 penalty as if he had been driver when the offence was com- 
 mitted, unless he can prove by any other evidence besides 
 his own testimony, and to the satisfaction of the justice of 
 the peace before whom the complaint was heard, that the 
 offence was committed without his privity or knowledge, 
 and that he has derived no benefit therefrom, and that he 
 has used his endeavours to find out such driver, conductor, 
 or guard, and given all reasonable information in answer to 
 inquiries respecting him. 
 
 Stage carriages, it is to be observed, are expressly ex- 
 empted {d) from the provisions with respect to hackney 
 coaches before discussed ; but the branch of them already 
 referred to under the name of " metropolitan stage car- 
 riages" is comprised (in common with hackney coaches) 
 under the provisions of the before mentioned statute of 
 6 & 7 Vict. c. 86. 
 
 By this act, a " metropolitan stage carriage" is deter- 
 mined to be any stage carriage except such as shall on 
 every journey go to or come from some town or place be- 
 yond the limits of the city of London and the liberties 
 thereof, and metropolitan police district (e) ; and it is pro- 
 vided that the proprietor of every metropolitan stage car- 
 riage shall keep distinctly painted, both on the outside and 
 inside, in such manner as shall from time to time be directed 
 by the registrar, the words metropolitan stage carriage, or 
 such other words as the registrar shall direct, together with 
 the number of the plate relating to it ; and shall also on 
 the inside keep distinctly painted in a conspicuous manner 
 a table of fares (/). In addition to which we shall only 
 remark, that the provisions made by this act with respect 
 to the drivers of hackney coaches, comprise also in general 
 
 (d ) 2 & 3 Will. 4, c. 120, s. 31. (/) 6 & 7 Vict. c. 86, s. 3. 
 
 (e) 6 & 7 Vict. c. 86, s. 2.
 
 270 BK.IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 the drivers and conductors (g) of metropolitan stage carri- 
 ages, who are required to have the same description of 
 licences and numbered tickets, and are subject to the same 
 penalties for the same species of misbehaviour as the drivers 
 of hackney coaches (h). 
 
 III. Railways. 
 
 Besides the several acts from time to time passed which 
 authorize the construction of particular railways, there exist 
 the following acts of general regulation (i) : 3 & 4 Vict, 
 c. 97 ; 5 & 6 Vict. c. 55 ; 7 & 8 Vict. c. 85 ; 8 & 9 Vict, 
 c. 96 ; 9 & 10 Vict. cc. 28, 57, 105 ; 13 & 14 Vict. c. 83 ; 
 14 & 15 Vict. c. 64. 
 
 By these statutes the general supervision and regulation 
 of all railways is intrusted to the committee of her Majesty's 
 privy council for trade and foreign plantations, commonly 
 called the Board of Trade (k). These acts, moreover, 
 render it unlawful to open any railway (/), or portion of 
 railway, for the public conveyance of passengers, until a 
 month's notice in writing shall have been given by the com- 
 pany to whom it may belong to the board of trade, of 
 their intention of opening the same, and ten days' notice of 
 the time when the railway will be open for inspection (m). 
 
 It is also enacted, by the statutes above mentioned, that 
 the board of trade may postpone the opening of any rail- 
 way, until satisfied that it may take place without danger 
 to the public; may order every railway to make returns 
 of the aggegrate traffic in passengers, cattle, and goods ; 
 
 (g ) The word conductor includes (k) By an act of 9 & 10 Vict. c. 
 
 every director or other person, ex- 105, this jurisdiction was transferred 
 
 cept the driver, who attends on the from the hoard of trade to certain 
 
 passengers. 6 & 7 Vict. c. 86, s. 2. commissioners appointed by her Ma- 
 
 (/i) Ibid. s. 33. See also as to jesty,called "Commissioners of Rail- 
 
 duties, 5 & 6 Vict. c. 79 ; 10 & 11 ways," but this act is now repealed 
 
 Vict. c. 42, s. 1. by 14 & 15 Vict. c. 64, and the juris- 
 
 (i) See also the " Railways Clauses diction restored to the board of trade. 
 
 Act," 8 & 9 Vict. c. 20, consolidating (/) 3 & 4 Vict. c. 97 ; 5 & 6 Vict, 
 
 into one act the provisions usual in c. 55, s 2. 
 
 making railways. (m) 5 & 6 Vict. c. 55, ss. 4, 5.
 
 OH. IX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 271 
 
 of the occurrence of any serious accident, and a table of all 
 tolls and rates from time to time levied (o) ; and may also 
 appoint proper persons as inspectors of railways (/;). 
 
 Every railway company is also required (whether so 
 called upon or not) to report to the board of trade every 
 accident attended with serious personal injury within forty- 
 eight hours of its occurrence (rj), and to lay before the 
 board for their approbation certified copies of the bye-laws 
 and regulations by which the railway is governed (r), 
 which bye-laws may be disallowed by the board at its 
 pleasure ; and the board is moreover empowered to direct 
 the attorney-general to proceed against any railway com- 
 pany for their non-compliance with the provisions either of 
 particular acts, or the acts of general regulation, or their 
 commission of any act unauthorized by law (s). 
 
 Provision is also made for the summary apprehension 
 and punishment of any engine-driver or other servant of 
 the company guilty of any misconduct, and for the punish- 
 ment of ill-disposed persons who shall obstruct any engine 
 or carriage, or endanger the safety of the passengers (t). 
 
 Railway companies are obliged to maintain and repair 
 good and sufficient fences along their lines (u) ; to trans- 
 port, at a settled rate, military and police forces (.c), and 
 mails ( y) ; to permit and facilitate the introduction of elec- 
 trical telegraphs upon their lines (s) ; to construct then- 
 railway (as a general rule) on a gauge of four feet eight 
 inches and a half in England, and five feet three inches in 
 Ireland («) ; to keep a strict account of money received for 
 
 (-.) 3 & 4 Vict. c. 97, s. 3 ; 5 & 6 (>) 7 cS; 8 Vict. c. 85, ss. 16—18. 
 
 Vict c. 55, s. 8. As to the railway (0 Sect. 15; 5 Sz 6 Vict. c. 55, 
 
 clearing system, and the regulations s. 17. 
 
 as to legal proceedings by or against (it) 5 Si 6 Vict. c. 55, s. 10. 
 
 the associated committees, see 13 & (a) Sect. 20 ; 7 & 8 Vict. c. 85, 
 
 14 Vict. c. xxxiii. s. 12. 
 
 (p) 3 & 4 Vict. c. 97, s. 5 ; 7 & 8 (y) 1 & 2 Vict. c. 98 ; 7 & 8 Vict 
 
 Vict. c. 85, s. 15. c. 85, s. 11. 
 
 (v) 5 & (i Vict. c. 55, s. 7. (:) 7 & 8 Vict. c. 85, ss. 14, 15. 
 
 (r) 3 & 4 Vict. c. 97, ss. 7, 8. (a) 9 & 10 Vict. c. 57.
 
 272 BK. IV. OF PUBLIC IJIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 the conveyance of passengers, or from other sources, upon 
 their respective lines ; to deliver the same to the commis- 
 sioners of excise ; and to pay a monthly duty thereupon (b). 
 It is also to be observed upon this subject, that by 7 & 
 8 Vict. c. 85, it is provided, that if twenty-one years after 
 the establishment of any passenger railway by act of that 
 or any future session, the average profit for the three last 
 years upon the paid-up capital stock shall be found to have 
 amounted to 10/. per cent., her Majesty's government shall 
 be at liberty (an act of parliament being first obtained for 
 that purpose) to revise and reduce the fares, upon condition 
 of giving the company a guarantee to make good their pro- 
 fits to the amount of 10/. per cent, during the existence of 
 such reduced scale ; or may, by the like sanction, (whether 
 the average profits have been of that amount or not,) pur- 
 chase the railway on behalf of her Majesty, at a rate to be 
 fixed, in case of disagreement, by arbitration. The same 
 act also directs the appointment on all passenger railways, 
 established in that or any succeeding session, of cheap trains 
 for the benefit of third class passengers, with such accom- 
 modation as shall be approved by the commissioners of 
 railways ; and prohibits all railway companies whatever 
 from raising loans for the future on negotiable securities, 
 except as authorized by parliamentary enactment (c). 
 
 IV. Conveyance by water. 
 
 Of these the most antient kind, that have been subject 
 to regulation by law, are boats and barges on the river 
 Thames. 
 
 By 2 & 3 P. & M. c. 16, the watermen and bargemen of 
 the Thames were formed into a company, and many regu- 
 
 (b) 5 & 6 Vict. c. 79, s. 4; 10 & holders of three fifths of the shares 
 1 1 Vict. c. 42. or stock, and by warrant of the board 
 
 (c) See also 13 & 14 Vict. c. 83, of trade; and 12 & 13 Vict. c. xl., 
 for facilitating the abandonment of and 15 & 16 Vict. ch. c, as to the 
 railways, and the dissolution of rail- Railway Passengers Assurance Corn- 
 way companies, by consent of the pany.
 
 CII. IX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 273 
 
 lations were framed for their well-ordering, for the safety 
 and convenience of their boats, and for the assessment and 
 moderation of their fares. 
 
 By 10 Geo. II. c. 31, and some intermediate statutes, 
 the regulations were modified or extended (c), but by 7 & 
 8 Geo. IV. c. lxxv. they were all repealed and new provi- 
 sions enacted. 
 
 By this act the " watermen, wherrymen, and lightermen 
 of the Thames" were consolidated into one body corporate, 
 in the freemen and apprentices whereof is vested, subject 
 to certain exceptions, the exclusive right of navigating that 
 river for hire (d). 
 
 The affairs of this company are governed by a court, 
 consisting of twenty-six members (e), whose bye-laws are 
 subject to alteration and amendment by the court of mayor 
 and aldermen of the city of London, and are to be ulti- 
 mately approved by the courts at Westminster, or a judge 
 thereof (/"); and among whose duties are comprised the ap- 
 pointing of plying-places, and inspectors of plying-places(^), 
 the admission of freemen, and the binding of apprentices (A), 
 the granting licences to freemen to use boats for hire(i), 
 and the registration of such boats (k). 
 
 The fares to be taken by the boatmen are to be fixed 
 (subject to the approval of the privy council) by the court 
 of mayor and aldermen (I); and lists thereof are to 
 be publicly advertised, and fixed up at certain plying- 
 places (m). 
 
 The act also contains various provisions by which boat- 
 men are subject to penalties for misbehaviour, particularly 
 for demanding more than their legal fare, refusing to take a 
 passenger, or to do what such passenger directs, preventing 
 
 (c) lJac.l,c.l6; 11<&12WU1. 3, (g) Sect 25. 
 c. 21 ; 4 Anne, c. 13 ; and see Jacob's (h) Sect. 2(i. 
 Law Diet, in tit. Watermen. (i) Sect. 38. 
 
 (d) 7 & 8 Geo, 4, c. lxxv. ss. 4, 37. (fc) Sect. 41. 
 
 (e) Ibid. s. 7. (I) Sect. 61. 
 (/) Sects. 57, 58. (m) Sect. 64. 
 
 VOL. 111. T
 
 274 BK. IV. OF PUBLIC BIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 any person from reading the name or number of their boats, 
 or making use of scurrilous or abusive language (n). 
 
 Similar remedies are also provided in favour of the boat- 
 men, against persons who refuse to pay their fares, or do 
 damage to the boats. 
 
 This act, it is to be observed, contains clauses reserving 
 the rights of the Trinity House, particularly as to licensing 
 mariners; and such mariners are to be subject, not to the 
 bye-laws of the court of mayor and aldermen, but to those 
 of the corporation of the Trinity House. The fares, how- 
 ever, which shall be fixed by the former authority, shall be 
 equally binding on the mariners of the Trinity House, as 
 on the freemen of the Company of Watermen (o). 
 
 Another class of legislative provisions that require to be 
 noticed under the head of conveyances by water, are those 
 which relate to the carriage of passengers in merchant 
 vessels. 
 
 The statutes on this subject are, first, the 4 Geo. IV. 
 c. 88, by which provision is made as to vessels carrying 
 passengers between Great Britain and Ireland ; and, se- 
 condly, the 15 & 16 Vict, c 44, called " The Passengers 
 Act, 1852," (p) which in part relates to seagoing vessels 
 generally, but chiefly to such as carry passengers from the 
 united kingdom to any place out of Europe, and not being 
 in the Mediterranean Sea. 
 
 By 4 Geo. IV. c. 88, it is provided that no master of any 
 vessel employed in the conveyance of passengers between 
 Great Britain and Ireland, under two hundred tons, may 
 take more than twenty passengers, unless a licence for the 
 conveyance of passengers shall have been previously granted 
 to him, or his owner, by the collector or chief officer of the 
 customs at the port from whence such vessel shall sail ; 
 which licence must be annually renewed, and can be ob- 
 tained only on certificate that such vessel is seaworthy, and 
 
 (n) Sects. 67, 69, 74, 78. are repealed. The previous acts as 
 
 (o) Sects. 71, 73. to passengers from the united king- 
 
 (p) By this act the 5 & 6 Vict. dom to any place out of Europe, &c. 
 
 c. 107, and the 10 & 1 1 Vict. c. 103, were repealed by 5 & 6 Vict. c. 107-
 
 C1I. IX. OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 275 
 
 properly found in every respect (</). And the number of 
 passengers which may be lawfully conveyed in a ship so 
 licensed is to be in such proportion to the tonnage as in the 
 said act is particularly specified. 
 
 The same statute also provides, with respect to trading 
 or coasting vessels not wholly employed in the conveyance 
 of passengers, and not licensed, which shall sail between 
 Great Britain and Ireland, that no greater number of pas- 
 sengers than ten shall be taken if the burthen of the vessel 
 be not above one hundred tons, nor more than twenty if it 
 do not exceed two hundred (r). 
 
 By 15 & 16 Vict. c. 44, the number of passengers (ex- 
 clusive of bona fide cabin passengers) in any sea-going ship 
 is fixed in a certain proportion to the number of superficial 
 feet, and unless propelled by steam (s), in a certain propor- 
 tion to the registered tonnage (t). 
 
 No person except the colonial land and emigration com- 
 missioners (u) (to whom it is entrusted to carry this act into 
 effect, and to appoint for that purpose " emigration offi- 
 cers" (u),) shall act as a passage broker in respect of pas- 
 sages from the united kingdom to any place out of Europe 
 and not being within the Mediterranean Sea, without having 
 taken out a licence from the justices at petty sessions to 
 carry on such business (x). 
 
 No "passenger ship" (that is, a ship carrying a certain 
 number of passengers in proportion to her tonnage (y) ) 
 shall proceed to sea on any voyage from the united king- 
 dom to any place out of Europe and not being within the 
 Mediterranean Sea, unless she shall have been surveyed by 
 
 (9) 4 Geo. 4, c. 88, s. 1. in the colonies, and for superintend- 
 
 (?•) Sect. 4. ing the emigration of the poorer 
 
 (s) As to steam vessels, vide post, classes to the colonies. See 15 & 
 
 p. 277. 10 Vict. c. 44, s. 5. They are now 
 
 (() 15 & 16 Vict. c. 44, s. 12. a quasi corporation, sect. 6. 
 
 (it) Persons appointed in 1847 by (v) Sect. 5. 
 
 her Majesty to be, during her Ma- (x) 15 & 16 Vict. c. 44, s. 61. 
 
 jesty's pleasure, commissioners for (y) See the definition of a " pas- 
 
 the sale of waste lands of the crown senger ship," ibid, s, 3. 
 
 T. 2
 
 276 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 surveyors appointed by the land and emigration commis- 
 sioners for each port at which there may be an emigration 
 officer, and for other ports by the commissioners of the cus- 
 toms, and reported " seaworthy" and fit in all respects for 
 her voyage (z). And every passengers' ship shall be of a 
 certain construction as to her beams and deck, and the ar- 
 rangement and size of berths, and shall have proper fittings- 
 up as to privies, light and ventilation (a) ; and shall carry a 
 certain number of boats in proportion to her tonnage (b) ; 
 and shall be manned with an efficient crew to the satisfac- 
 tion of the officer from whom clearance is demanded (c) ; 
 and shall have for cargo or ballast no horses, cattle, gun- 
 powder or other articles likely to be dangerous, nor in 
 general any cargo or stores placed on the upper deck or 
 passenger decks (d); nor shall be cleared out without a 
 proper supply of provisions and water and stores (e) ; and 
 on the voyage an allowance of provisions and water shall 
 be made to each passenger according to the dietary scale 
 in the act (f) ; and in voyages of a certain length, or with 
 a certain number of passengers, every passengers' ship shall 
 carry a duly qualified medical practitioner, and a proper 
 supply of medicines and instruments (g). 
 
 Besides these and other regulations tending to secure the 
 accommodation and safety of passengers, the act contains 
 several provisions for their protection in other respects, par- 
 ticularly, that they shall not be landed at any place other 
 than the port contracted for, without their previous con- 
 sent (A); and that if any sea-going ship shall not proceed 
 on her voyage on the day appointed by the contract, the 
 passengers shall receive subsistence money in respect of 
 each day of delay, provided however that if the ship be 
 unavoidably detained by wind or weather, and the passen- 
 gers be maintained on board in the same manner as if the 
 
 (:) Sect. 16. of " passenger deck," sect. 3. 
 
 (a) Sects. 22, 23. (e) Sects. 28—31. 
 
 (b) Sect 24. (/) Sects. 32- 34. 
 
 (c) Sect. 25. (g) Sects. 38—41. 
 (rf) Sect. 26. See the definition (ft) Sect. 52.
 
 CTI. TX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 277 
 
 voyage had commenced, no such subsistence money shall 
 be payable (i). 
 
 The act also makes provisions in regard to the carriage 
 of passengers on any " colonial voyage" (that is, a voyage 
 from a place within her Majesty's possessions abroad, ex- 
 cept those under the government of the East India Com- 
 pany, to any place whatever, of which the duration shall 
 exceed three days (h) ) ; and in regard to voyages into the 
 united kingdom from any place out of Europe (/). And it 
 is enacted that it shall be lawful for her Majesty, by order 
 in council, to prescribe rules for preserving order, health, 
 cleanliness and ventilation on board of passenger ships 
 proceeding from the united kingdom to any place in her 
 Majesty's possessions abroad, as occasion may require (m) ; 
 and also that it shall be lawful for the governor-general of 
 India in council from time to time to declare that this act 
 or any part thereof shall apply to the carriage of passengers 
 from any specified places within such territories to any other 
 specified places whatsoever («). 
 
 This act, it is to be observed, has no application to any 
 ship of war or vessel in the service of the admiralty, or of 
 the East India Company, or steam vessel carrying royal 
 mails or mails under contract with the government of the 
 country to which such steam vessel may belong (o); but 
 subject to these exceptions, its provisions extend not only 
 to British but to foreign vessels (p). 
 
 Provisions have been also made for the regulation of 
 steam navigation, and as to the boats and lights to be car- 
 ried by sea-going vessels. 
 
 By 14 & 15 Vict. c. 79 (n), called "The Steam Naviga- 
 tion Act, 1851," (which places this subject under the ma- 
 nagement of the board of trade, assisted by the naval 
 
 (i) Sect. 45. (n) Sect. 87. 
 
 (k) Sect. 83. As to the manner (o) Sect. 4. 
 
 of ascertaining the length of voyage, (p) Sect. 3. 
 
 see sect. 85. (q) Repealing the previous acts 
 
 (/) Sects. 88—90. of 9 & 10 Vict. c. 100, and 11 & 12 
 
 (m) Sect. 55. Vict. c. 81.
 
 278 BK. IV. OP PUBLTC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 department of the board of trade (r),) the owner of every 
 steam vessel intended to carry passengers (except mail 
 packets) shall twice a year cause it to be surveyed, and 
 obtain a declaration of its sufficiency and good condition, 
 and a certificate thereon from the board of trade that the 
 provisions of the law have been complied with, which cer- 
 tificate shall be renewable half-yearly ; and it is provided 
 that no steam vessel (other than a mail packet) shall pro- 
 ceed to sea on any voyage or excursion with passengers on 
 board, without having obtained a certificate of the descrip- 
 tion applicable to the voyage on which the vessel is so pro- 
 ceeding and still in force, or without having the same or a 
 copy thereof affixed in some conspicuous part of the ves- 
 sel (s) ; and that no greater number of passengers shall be 
 carried on board than is authorized by the certificate (t) ; 
 and that surveyors appointed by the board of trade may at 
 all reasonable times go on board of any steam vessel and 
 inspect the same, and, if for any reason they deem it neces- 
 sary to do so, may require the vessel to be taken into dock 
 for the purpose of surveying the hull (u) ; and that the 
 board of trade may also from time to time, and whenever 
 it shall appear expedient, send an inspector on board any 
 vessel to report whether the provisions of the act have been 
 complied with, and also on the cause of any accident which 
 the vessel may have sustained (x) ; and that whenever a 
 steam vessel (other than a ship of war) shall have sustained 
 any accident occasioning loss of life or serious injury to any 
 person, or has received material damage, or there is reason 
 to apprehend that such vessel has been lost, notice shall as 
 soon as possible be transmitted to the board of trade (y). 
 
 It is also provided that every steam vessel built of iron 
 (except steam tugs) shall be divided by transverse water- 
 tight partitions, so that the fore part shall be separated 
 from the engine-room by one partition, and the after part 
 
 (r) Sect. 2. (u) Sect. 18. 
 
 (s) Sect. 11. (i) Sect. 31. 
 
 (t) Sect. 12. (y) Sects. 29, 30.
 
 CH. IX. — OF LAWS RELATING TO PUBLIC CARRIAGES, &C. 279 
 
 from the engine-room by another (c) ; and that no steam 
 boat, of which a survey is required by the act, shall go to 
 sea or steam in a river without having a safety-valve upon 
 each boiler free from the care of the engineer and out of his 
 control and interference (a) ; and that no decked vessel (ex- 
 cept steam tugs) shall proceed to sea from any place in the 
 united kingdom unless provided according to its tonnage 
 with boats duly supplied with all requisites for their use, 
 and not being fewer in number or less in cubic extent than 
 specified in a table contained in the act (b); nor, if carrying 
 more than ten passengers, shall proceed to sea, unless also 
 provided with a life boat, furnished with all requisites, and 
 two life buoys (c) ; and that no steam vessel (except steam 
 tugs) shall proceed to sea, unless provided with a hose for 
 extinguishing fire ; nor, if carrying passengers, without the 
 means specified in the act, of making signals of distress (d). 
 
 And it is also enacted that the Admiralty shall from time 
 to time make regulations as to the establishment of lights 
 by steam or sailing vessels as they think fit (e) • and rules 
 are laid down in the act, to be observed by vessels passing- 
 each other (/) ; and it is provided that, where a collision 
 takes place by non-observance of these regulations or rules, 
 the owner of the vessel violating them shall not be entitled 
 to recover compensation, unless it appears to the court that 
 an exception should be permitted in that particular case(^r). 
 
 But this act has no application to any ship belonging to 
 her Majesty, nor to any vessel not being either a British 
 vessel, or a vessel owned wholly or in part by British sub- 
 jects ; nor to any steam ferry boat working in chains, com- 
 monly called a steam floating bridge ; nor is the act to 
 derogate from the privileges of the city of London (Ji). 
 
 (z) Sect. 20. (h) Sects. 48, 49. It may be pro- 
 
 («) Sect. 21. per to notice that the master of 
 
 (b) Sect. 22. every steam vessel, to which the act 
 
 (c) Ibid. applies, is required to provide him- 
 
 (d) Sect. 23. self with a copy of it, and of all regu- 
 
 (e) Sect. 26. lations as to the exhibition of lights; 
 (/) Sect. 27. and to keep them on board his ves- 
 (g) Sect. 28. sel, under a penalty of 51. Sect. 50.
 
 280 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 CHAPTER X. 
 
 OF THE LAWS RELATING TO THE PRESS. 
 
 The law of property in books and other publications has 
 been already discussed under the head of copyright, in that 
 part of the present work in which the right to that species 
 of property fell under consideration (a). Our attention will 
 now be directed to the law which relates to the means of 
 publication — in other words, to the press. 
 
 This mighty engine for good or for evil is one that in its 
 nature requires to be kept under some restraint, while it is 
 perhaps even yet more essential that the restraint should 
 not be carried so far as to preclude a reasonable liberty of 
 discussion. In this country no censorship is exercised over 
 the press ; yet its excesses are held in check by restrictive 
 provisions, the general object of which is to ascertain in 
 every instance the persons by whom publications are 
 printed, so as to make them amenable, whenever the case 
 so requires, to the civil remedy of injured parties, or to the 
 correction of criminal justice (b). 
 
 The nature of these provisions will appear on an exa- 
 mination, — first, of those statutes which bear upon printing 
 in general, — secondly, of those which relate to particular 
 species of publication. 
 
 (a) Vide sup. vol. ii. p. 33. as regards dp/amatory libels, an in- 
 
 (b) It may be remarked here that formation will not be granted unless 
 the offence of libel may be prosecuted the person applying for leave to file 
 either by indictment or information, as the same makes an affidavit pointedly 
 we shall have occasion hereafter to asserting his innocence of the charge. 
 explain (vide post, bk. v. c. 8); but, 4 Bl. Com. 451, n. by Christian.
 
 CHAP. X. — OF THE LAWS RELATING TO THE FFESS. 281 
 
 I. As to printing in general. 
 
 The regulations which concern this subject are to be 
 found in the statute 39 Geo. III. c. 79, amended by 51 
 Geo. III. c. 65, and by 2 & 3 Vict. c. 12(c). The neces- 
 sity for them was originally suggested (as the act first 
 mentioned sets forth) by the multitude of writings of an 
 irreligious, treasonable and seditious nature, which had 
 latterly been published by certain societies ; the substance 
 of their enactments is as follows. — 
 
 Every person, who possesses any printing press or types 
 for printing, must, by the 39 Geo. III. c. 79, deliver notice 
 thereof (attested by one witness) to the clerk of the peace 
 of the county or other division where the same is intended 
 to be used, according to the form in the schedule to the 
 act annexed ; and that officer is required to file such notice, 
 and transmit an attested copy thereof to one of the princi- 
 pal secretaries of state, and must also give to the possessor 
 of the printing press a certificate in such form as the act 
 specifies (d), expressing that such notice has been delivered. 
 A similar notice is to be delivered to the clerk of the peace 
 by any person who intends to carry on the business of a 
 letter-founder or printing-press maker; and a similar cer- 
 tificate must be obtained (e). And every person who shall 
 keep or use any printing-press or types, or make or sell 
 any type for printing or printing-press, without having 
 given such notice and obtained such certificate, shall for- 
 feit 20Z. But an exception is made in favour of the royal 
 printers, and of the public presses of the Universities of 
 Cambridge and Oxford. 
 
 It is also provided by the same act, under the like 
 penalty, that every person, who shall sell types for printing 
 
 (c) See also the acts 39 & 40 6 & 7 Will. 4, c. 66, ajnended by 8 
 
 Geo. 3, c. 95, and 41 Geo. 3, c. 80, & 9 Vict.c. 74, as to printing or pub- 
 
 to indemnify persons who had printed lishing advertisements of lotteries. 
 papers by order of public authorities, (</) Sect. 23. 
 
 without complying with the regula- (e) Sect. 25. 
 
 tions of 39 Geo. 3, c. 79. See also
 
 282 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 or printing-presses, shall keep a fair account in writing, of 
 all persons to whom they shall be sold, and produce such 
 account to any justice of the peace who shall require the 
 same ( f) ; and that every person who shall print any paper 
 for hire or reward shall carefully preserve one copy of it 
 at least, and shall write on the same, in fair and legible 
 characters, the name and place of abode of the person or 
 persons by whom he shall have been employed to print the 
 same, and produce the copy to any justice of the peace who 
 within six calendar months shall demand a sight thereof (g). 
 
 And it is farther enacted, that if any justice of the peace 
 shall, from information upon oath, have reason to suspect 
 that any printing-press or types for printing are used or 
 kept for use, without notice given and certificate obtained 
 as required by the act, or in any place not included in the 
 notice and certificate, he may, by warrant under his hand 
 and seal, direct any peace officer in the day time to enter 
 such place, and seize and carry away every printing-press 
 found therein, together with the types and other articles 
 thereto belonging, as well as all printed papers (h). 
 
 It is moreover provided by the last of the statutes above 
 enumerated (repealing a clause to the same general effect 
 contained in the 39 Geo. III. c. 79), that every person who 
 shall print any paper or book whatsoever, which shall be 
 meant to be published or dispersed, and who shall not 
 print upon the front of every such paper (if the same be 
 printed upon one side only), or upon the first or last leaf 
 of every paper or book which shall consist of more than 
 one leaf, in legible characters, his name and usual place of 
 abode or business (i), — and every person who shall publish 
 or disperse, or assist in publishing or dispersing, any paper 
 or book printed with such unlawful omission, — shall for 
 every copy so printed forfeit a sum not exceeding 51. But 
 no action or proceeding in any court or before any justice 
 
 (/) Sect. 26. (i) Bensley v. Bignold, 5 B. & A. 
 
 (g) Sect. 29. 335 ; Marchant v. Evans, 2 Moore, 
 
 (h) Sect. 33. 14.
 
 CHAP. X. OV THE LAWS RELATING TO THE PRESS. 283 
 
 of the peace shall be commenced, except in the name of 
 the attorney-general or solicitor-general. And it is farther 
 enacted, that in the case of books or papers printed at the 
 University Press of Oxford or the Pitt Press of Cambridge, 
 the printer, instead of printing his name thereon, shall print 
 the following words, " Printed at the University Press, 
 Oxford," or " The Pitt Press, Cambridge," as the case 
 may be. 
 
 There is also a clause to the effect that this and the pre- 
 ceding statutes shall be construed as one act of parliament; 
 from which, and from certain enactments contained in 
 these statutes, it follows that the provision with respect to 
 the printer's name and place of abode extends not to any 
 papers printed by the authority and for the use of either 
 House of Parliament (j), or public board or office (Jt), or to 
 the impression of any engraving, or the printing by letter- 
 press of the name, or the name and address, or business 
 or profession of any person, and the articles in which he 
 deals, or any papers for the sale of estates or goods by 
 auction or otherwise, or to any bank note or security for 
 payment of money, bill of lading, policy of insurance, letter 
 of attorney, deed or agreement, transfer or assignment of 
 public stock, or securities, or dividend warrant thereon, 
 receipt for money or goods, or proceedings in any court 
 of law or equity ; notwithstanding the whole or any part of 
 the said securities, instruments and matters aforesaid shall 
 be printed (7). 
 
 II. As to particular species of publications. 
 
 And herein — 1. As to JVeivspapers. — Shortly before the 
 introduction of the regulations relative to printed books and 
 papers in general, provisions of the same tendency had 
 been devised by the legislature in reference to that highly 
 influential class of publications just mentioned. But the 
 
 (j) 39 Geo. 3, c. 79, s. 28. (/) 51 Geo. 3, c. 65, s. 
 
 (k) 51 Geo. 3, c. (i5, s. 3.
 
 284 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 act at that time passed (m) has been since repealed ; and 
 the provisions now in force for the control of newspapers 
 are contained in 60 Geo. III. & 1 Geo. IV. c. 9; 11 Geo. 
 IV. & 1 Will. IV. c. 73, and 6 & 7 Will. IV. c. 76. 
 
 By the first of these acts it is among other things pro- 
 vided, that no person, under a penalty of 201., shall print 
 or publish for sale any newspaper (n), or any pamphlet or 
 other paper containing any public news, intelligence or oc- 
 currence, or any remarks or observations thereon, or upon 
 any matter in church and state, which shall not exceed two 
 sheets, or which shall be published for sale at a less price 
 than 6d., until he shall have entered into a recognizance, 
 if the printing be in London or Westminster, or into a 
 bond, if in the country, together with two or three sufficient 
 sureties, conditioned that the printer or publisher shall pay 
 every such fine or penalty as may be at any time adjudged 
 against him for printing or publishing any blasphemous or 
 seditious libel (o). 
 
 By the second of these acts the amount of such recog- 
 nizances and bonds is fixed at 400/. or 300/. (as the case 
 may be), and it is provided that they shall be made with 
 such conditions as to secure the payment of any damages 
 or costs to be recovered in actions for libels, as well as to 
 secure the payment of fines or penalties upon convictions. 
 
 By the last of these acts (which relates in part to the 
 stamp duties on newspapers, a subject not now under con- 
 sideration), it is enacted, among other things, that no person 
 shall, under a penalty of 50Z. per diem, print or publish, or 
 cause to be printed or published, any newspaper (p), (the 
 London Gazette only excepted,) before there shall be de- 
 
 (m) 38 Geo. 3, c. 78. This and 76, s. 4. See also Attorney-General 
 
 the subsequent act, 5 Will. 4, c. 2, v. Bradbury, 21 Law J. (Exch.), 12. 
 
 are repealed by 6 & 7 Will. 4, c. 76, (o) Sect. 8. As to the mode of 
 
 s. 32. enforcing these recognizances, see 
 
 (n) As to the definition of a news- Ex parte Duke of Brunswick, 3 
 
 paper within the meaning of these Exch. 829. 
 
 acts, see 60 Geo. 3 & 1 Geo. 4, c. (;;) See Ex parte Higginbotham, 
 
 9, ss. 1, 2, 3, and 6 & 7 Will. 4, c. 9 Dowl. P. C. 200.
 
 CHAP. X. OF THE LAWS RELATING TO THE PRESS. 285 
 
 livered to the commissioners of stamps and taxes, or at the 
 head office for stamps, or the proper officer appointed by 
 the commissioners for the district, a declaration in writing, 
 containing the correct title of the newspaper — the true de- 
 scription of the house in which it is to be printed, and of 
 that in which it is to be published, — the true name, addition, 
 and place of abode of every intended printer and publisher 
 thereof, and (with certain qualifications) those of the pro- 
 prietors (rj) ; and that every such declaration shall be signed 
 by the printers and publishers therein specified, and by 
 such of the proprietors therein specified as shall be resident 
 within the united kingdom, and shall be renewed as often 
 as changes in the concern shall occur ; and that any false 
 statement in such declaration as to the printers, publishers, 
 or proprietors, shall be deemed a misdemeanor (r;. 
 
 It is also enacted, that copies of such declarations, cer- 
 tified as true copies, shall be admitted in all proceedings, 
 civil or criminal, and on all occasions touching such news- 
 papers, as conclusive evidence, against the persons signing 
 the same, of the truth of all matters therein set forth (s) ; 
 and that the commissioners of stamps and taxes shall cause 
 to be entered, in a book to be kept at the head office for 
 stamps in Westminster, the title of every newspaper regis- 
 tered at the office, and also the names of the printers and 
 publishers, as the same appear in the declarations ; and all 
 persons shall have free liberty to inspect such book without 
 fee or reward (t). 
 
 The printer or publisher of every newspaper shall, more- 
 over, under a penalty of 20/., deliver at the ordinary price, 
 at the head office for stamps, one copy of such newspaper 
 as often as published, with the name and place of abode of 
 the printer or publisher written thereon in his proper hand, 
 or by some person duly appointed to sign for him ; and in 
 
 (</) See Holcroft v. Hoggins, 2 Robinson, 2 Tyr. 280 ; Houstoun v. 
 C. B. 488. Mills, 1 M. &r Rob. 325. 
 
 (</) Sect. 6. Vide Stephens v. (r) Sect. 8. 
 
 (s) Sect. 10.
 
 286 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 case any person shall make application within two years 
 afterwards for the newspaper so signed, in order that it 
 may be produced in evidence in any proceeding, civil or 
 criminal, the commissioners shall either deliver it to him, 
 or cause it to be produced in court for that purpose (t). 
 
 There is an additional regulation, that at the end of every 
 newspaper, and of every supplement sheet to the same, 
 shall be printed the Christian name and surname, addition 
 and place of abode of the printer and publisher, and a true 
 description of the house or building wherein the same is 
 printed and published respectively, and the day of the 
 week, month and year on which the same is published ; 
 and any person knowingly printing or publishing without 
 these particulars, or with a false statement as to name, 
 addition, place or day, or a description of place different 
 from that in the declaration before mentioned, shall forfeit 
 20/. (u). 
 
 And it is farther provided, that all penalties under this 
 act, and that of 60 Geo. III. and 1 Geo. IV. above-men- 
 tioned, may be sued for in the name of the attorney-general 
 or solicitor-general, or the solicitor of stamps and taxes, or 
 any officer of stamp duties, but by no other person what- 
 ever (x). 
 
 2. With respect to Pamphlets. 
 
 It is to be observed that all the above noticed provisions 
 of 60 Geo. III. & 1 Geo. IV. c. 9, and of 11 Geo. IV. & 
 1 Will. IV. c. 73, apply not only to newspapers, but to any 
 pamphlet or other paper containing any public news, in- 
 telligence or occurrence, or any remarks or observations 
 thereon, or upon any matter in church or state, which shall 
 not exceed two sheets, or which shall be published for sale 
 at a less price than sixpence (y). And also, that the above- 
 mentioned act of 6 & 7 Will. IV. c. 76, applies not only 
 
 (0 Sect. 13. (^) See the sections of these acts 
 
 (") Sect. 14. cited supra. And see farther provi- 
 
 (.t) 60 Geo. 3 & 1 Geo. 4, c. 9 ; sions as to pamphlets, 60 Geo. 3 & 1 
 
 6 & 7 Will. 4, c. 76, s. 27. Geo. 4, c. 9, ss. 1—5.
 
 CHAP. X. OF THE LAWS RELATING TO THE PRESS. 287 
 
 to papers containing public news, but to those containing 
 any remarks or observations thereon, if printed in any part 
 of the united kingdom for sale, and published periodically, 
 or in parts or numbers at intervals not exceeding twenty- 
 six days between the publication of any two numbers, 
 where any of the numbers shall not exceed two sheets of 
 twenty-one inches in length, and seventeen inches in breadth 
 each, (exclusive of any cover or blank leaf, or any other 
 leaf upon which any advertisement or other notice shall be 
 printed) ; or shall be published for sale for a less sum than 
 sixpence, exclusive of the duty by that act imposed (z). 
 
 (x) Sect. 4, Sched. (A).
 
 288 BK. IV. OF PUBLIC RIGHTS. I>T. III. SOCIAL ECONOMY. 
 
 CHAPTER XI. 
 
 OF THE LAWS RELATING TO HOUSES OF PUBLIC 
 RECEPTION AND ENTERTAINMENT. 
 
 Under this general head we shall comprise, I. The Laws 
 relating to Public Houses. II. Those relating to Theatres. 
 And as to the first of these, we may remark, that the sta- 
 tutes affecting public houses are of two kinds : the first 
 having in view the subject of revenue, the other of police, 
 that is, the proper regulation of these places of public re- 
 ception, and the prevention of the abuses to which they 
 are naturally liable. 
 
 The statutes first referred to are those relative to the 
 Excise, (a tax the general nature of which has been suffi- 
 ciently noticed in a former volume (a) ) ; and by one of 
 these (6 Geo. IV. c. 81) it is provided (b), that every person 
 who shall sell beer, cider or perry by retail, to be drunk or 
 consumed in his house or premises, and every retailer of 
 spirits or of wine, who shall carry on his business without 
 taking out an excise licence (c), (upon which the act imposes 
 a certain amount of duty,) shall for every such offence 
 forfeit 501. 
 
 The other description of acts are those which relate pro- 
 perly to the licensing of publicans, (a system established 
 by a variety of statutes, commencing with the reign of Ed- 
 
 (a) Vide sup. vol. ii. p. 550. I Exch. 281. 
 
 (6) Sect. 26. See also 6 Geo. 4, (c) As to excise licences, see also 
 
 c. 80. As to what are "spirits" the general acts (7 & 8 Geo. 4, c. 53; 
 
 within the meaning of the excise 4 & 5 Will. 4, c. 51 ; 4 & 5 Vict. c. 
 
 act, see Attorney-General v. Bailey, 20) for the collection of excise. 
 16 Mee. & W. 74; Same v. Same,
 
 CHAP. XI. OF THE LAWS RELATING TO PUBLIC HOUSES. 289 
 
 ward the sixth (d) ) ; and of these the principal one now 
 in force is 9 Geo. IV. c. 61 (e), by which, in addition to the 
 excise licence (/), publicans are required to obtain a licence 
 from the justices of the peace of the county or place, autho- 
 rizing them to sell in their public houses exciseable liquors 
 by retail. 
 
 By this last-mentioned act a penalty is imposed upon 
 any person selling any exciseable liquor by retail, to be 
 drunk or consumed in his house or premises, without being 
 duly licensed so to do (g); and it is farther provided, that 
 no licence for the sale of exciseable liquors shall be granted 
 to any person who has not previously obtained from the 
 magistrates a licence under that act {It) ; from which pro- 
 vision, however, an exception is now introduced by a sub- 
 sequent act, in the case of beer, cider and perry, as we shall 
 have occasion presently to explain. 
 
 For the purpose of granting these licences (i ) (which are 
 to be annually renewed (k) ) to the keepers of inns, ale- 
 houses and victualling-houses, the statute directs that there 
 shall be holden a special session of the justices of the peace 
 (to be called the General Annual Licensing Meeting) once 
 in every year, in every division, county, riding, city, town 
 or town corporate throughout England (/) ; and also, that 
 from four to eight special sessions shall be held in each 
 year for the purpose of transferring the licences (m) so 
 
 (<«) See 5 & 6 Edw. 6, c. 25. to the amount of one pound and up- 
 
 (e) See also 35 Geo. 3, c. 113; wards. See Hughes v. Done, 1 Q. B. 
 R. v. Dr. Drake, 6 M. & S. 116; 294; Lansdale v. Clarke, 1 Exch. 
 R. v. Hanson, 4 B. & A. 519; 1 78. 
 
 Wms. Burn, 49. (h) Sect. 17. 
 
 (f) R. v. Drake, ubi sup.; R. v. (i) If a licence is refused, an ap- 
 Downes, 3 T. R. 560 ; 1 Wms. Burn, peal lies to the county quarter ses- 
 29. sions. See R. v. Middlesex Justices, 
 
 (g) Sect. 18. We may take occa- 3 B. & Adol. 938 ; Reg. v. Deane, 3 
 sion to observe here, that by 14 Geo. Q. B. 96; Queen v. Belton, 11 Q. B. 
 2, c 40, s. 12 (commonly called the 379. 
 
 " Tippling Act"), no action can be (k) Sect. 13. 
 
 maintained fot any debt on account (/) Sect. 1. 
 
 of spirituous liquors, unless the debt (m) Bryant v. Beattie, 4 Bing. N. 
 
 be bond fide contracted at one time, C. 254. 
 
 VOL. III. U
 
 290 BK. IV. OF PUBLIC RIGHTS. - PT. III. SOCIAL ECONOMY. 
 
 granted to other parties proposing to succeed to the same 
 public houses, (which last-mentioned jurisdiction may, by 
 a subsequent act (w), be also exercised at any petty sessions 
 of the justices) ; and it is farther provided, that no justice 
 who shall be, or shall be in partnership with, a common 
 brewer or maker of exciseable liquor, shall act or be pre- 
 sent at any meeting for granting or transferring licences ; 
 and that no justice whatever shall act in the case of any 
 house of which he is owner, or to the owner of which he 
 is agent, father, son, brother or partner (o). 
 
 These licences (which cannot be granted to a sheriff's offi- 
 cer, or any officer employed to execute judicial process (/>)) 
 are in a fixed form prescribed by the act, and purport to 
 empower the grantee to sell by retail in a certain inn, ale- 
 house, or victualling-house, as therein more particularly 
 described, all such exciseable liquors as he shall be licensed 
 to sell under the authority of any excise licence, and to 
 permit all such liquors to be drunk or consumed in such 
 house; provided that he do not fraudulently dilute or adul- 
 terate the same, or sell the same, knowing them to have 
 been fraudulently diluted and adulterated, and do not use in 
 selling thereof any weights or measures that are not of 
 legal standard, and do not wilfully or knowingly permit 
 drunkenness or other disorderly conduct in his house, and 
 do not knowingly suffer any gaming whatsoever therein, 
 and do not knowingly permit persons of notoriously bad 
 character to assemble therein, and do not keep open his 
 house, except for the reception of travellers, or permit any 
 exciseable liquors to be conveyed from his premises, during 
 the usual hours of morning or afternoon service, on Sun- 
 days, Christmas Day, or Good Friday, but do maintain 
 good order and rule therein (q). 
 
 Certain penalties are provided by the act for offences 
 against the tenor of these licences, and such penalties 
 
 (n) 5 & 6 Vict. c. 44. (q) See Sched. (C) ; and 2 & 3 
 
 (o) 9 Geo. 4, c. 61, s. 6. Vict. c. 47, ss. 42, 43, 44. 
 
 ( p) Sect. 16.
 
 CHAP. XI. OF THE LAWS RELATING TO PUBLIC HOUSES. 29 I 
 
 (which are generally recoverable before two justices) in- 
 crease in magnitude on repetition of the offence; and should 
 the defendant be guilty of a third offence, and be convicted 
 thereof at the quarter sessions, he may, in addition to a 
 pecuniary penalty, be adjudged to have forfeited his licence, 
 and to be incapable of selling exciscable liquors for the 
 space of three years (r). 
 
 The act, moreover, provides (s) that any two justices, 
 acting for a county or place where any riot or tumult shall 
 happen, or be expected, may direct all such persons as are 
 licensed under that act to close their houses, and every 
 person who shall fail to comply with the order shall be 
 deemed " not to have maintained good order and rule 
 " therein." 
 
 Such are the chief regulations in force, with respect to 
 obtaining a licence for selling exciseable liquors at a house, 
 kept as an inn, ale-house, or victualling house; but by an 
 exception recently introduced into the system, this licence 
 is not now required, if beer or cider (t) be the only liquors 
 intended to be retailed; for by 11 Geo. IV. & 1 Will. IV. 
 c. 64 ; 4 & 5 Will. IV. c. 85, and 3 & 4 Vict. c. 61, various 
 provisions have been made for giving greater facilities for 
 the sale of these liquors, than was afforded by the former 
 statutes. 
 
 By these acts, every householder assessed to the poor- 
 rates, in any parish or place, (and not being a sheriff's 
 officer, or officer employed to execute judicial process,) 
 may, without any licence from the magistrates, apply for 
 and obtain an excise licence, (on which a certain duty is 
 payable, and which is duly registered and must be annu- 
 ally renewed,) to enable him to sell beer and cider (w), or 
 
 (»■) Sect. 21. (») 11 Geo. 4 & 1 Will. 4, c. 64, 
 
 (s) Sect. 20. s. 30. As to this licence, see 3 & 4 
 
 (t) Beer is defined by these acts Vict, c.61, s. 5 ; 11 & 12 Vict. c. 49, 
 
 to include ale and porter, and cider s. 2; Reg. v. Charlesworth, 2 L. M. 
 
 to include perry, 11 Geo. 4 & 1 Will. & P. 117. 
 
 4, c. 64, s. 32. 
 
 u. 2
 
 292 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 (on payment of a lower duty) an excise licence to sell cider 
 only by retail, at some house situate within such parish or 
 place, and specified in such licence (x). 
 
 But in order to obtain such licence, the applicant must 
 produce an overseer's certificate that he is the real resident, 
 holder and occupier of such house, and rated to the poor 
 rate in a certain amount (y), and enter into a bond with one 
 sufficient surety in the penal sum of 201., or two sufficient 
 sureties in the penal sum of 10/. each, for the payment of 
 such penalties as he may incur under the acts (z) ; and if 
 he is also desirous for permission that the liquor should be 
 drunk on the premises, he must, moreover, annually deposit 
 with the commissioners of excise, or other person autho- 
 rized to grant the licence, a certificate " of good character," 
 signed by six rated inhabitants of the parish, of whom none 
 shall be maltsters, common brewers, or licensed publicans, 
 or owners of licensed public houses (a). 
 
 No such certificate, however, is required, when the house 
 to be licensed is situate in London or Westminster, or 
 within the bills of mortality, or within any city or town 
 corporate, or within one mile from the place used at the 
 last election from any town to parliament, where the popu- 
 lation of such city or town exceeds five thousand ; and no 
 licence, on the other hand, may be granted, even upon 
 certificate, to sell in any such city or town (whatever the 
 population), unless the house to be licensed is of the value 
 of 10/. per annum (b). 
 
 It is moreover required, that every person obtaining a 
 licence shall paint conspicuously over the door of his pre- 
 mises, in such form and manner as the acts specify, his 
 
 (x) Sects. 1, 7; Leicester (Mayor) poor rate, a certificate is to be pro- 
 
 v. Burgess, 5 B. & Ad. 246. duced, stating in lieu of his being 
 
 ( y) 3 & 4 Vict. c. 61, s. 2. It rated, the true annual value of the 
 
 may be observed that there is no house, to the belief of two inhabit- 
 
 compulsion on the overseer to give ant householders, sect. 4. 
 this certificate ; The Queen v. Ken- (s) Sect. 4. 
 
 sington, 12 Q. B. 654. In extra- (a) 4 & 5 Will. 4, c. 85, s. 2. 
 
 parochial places, where there is no (b) Ibid. s. 21.
 
 CHAP. XI. OF THE LAWS RELATING TO PUBLIC HOUSES. 293 
 
 christian name and surname at full length, and the words 
 " licensed to sell beer (or cider) by retail," with the addi- 
 tion of " to be drunk on the premises," or, " not to be 
 drunk on the premises," as the case may happen to be (c). 
 
 The beer and cider excise licences are (like those granted 
 by the magistrates) in a fixed form, and purport to empower 
 the applicant to sell the article by retail in the particular 
 house described (and that either generally, or for consump- 
 tion on the premises, as the case may be), provided and on 
 condition that he do not sell any beer, ale, or porter, made 
 otherwise than from malt and hops, nor mix, or cause to 
 be mixed, any drugs or pernicious ingredients in any of 
 the liquors, nor fraudulently dilute, deteriorate, or adulterate 
 the same, nor sell the same, knowing them to be fraudu- 
 lently diluted, deteriorated, or adulterated, nor use in selling 
 the same any measures which are not of the legal standard, 
 nor wilfully or knowingly permit any drunkenness, or any 
 violent or quarrelsome, or other disorderly conduct in his 
 or her house or premises, nor knowingly suffer any gaming 
 therein, nor any persons of notoriously bad character to 
 assemble therein. 
 
 These acts require that persons, licensed to retail beer, 
 or cider, shall make entry of the houses and rooms where 
 the liquors are stored or retailed, pursuant to the laws of 
 excise, and shall incur heavy penalties if they receive or 
 have in their possession, in the places so entered, any wine, 
 spirits, or sweets (d) ; and penalties are besides imposed 
 on every person who shall retail beer or cider without a 
 licence (e) ; or who, being licensed, shall have or keep his 
 house open, or suffer beer or cider to be drunk in his house, 
 except within certain hours (/). 
 
 Penalties are also imposed (as in the case of inns and 
 
 (c) 11 Geo. 4 & 1 Will. 4, c. 64, Mee. & W. 464. 
 
 s. 6 ; 4 & 5 Will. 4, c. 84, s. 18. (e) 11 Geo. 4 & 1 Will. 4, c. 64, 
 
 (rf) 3 & 4 Vict. c. 61, ss. 9, 10, s. 7 ; 3 & 4 Vict. c. 61, s. 13. 
 
 11 ; Attorney-General v. Lockwood, (/) 3 & 4 Vict. c. 61, s. 15; 11 & 
 
 9 M. & W. 378 ; S.C. in error, 10 12 Vict. c. 49, s. 2.
 
 294 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 alehouses) on every retailer of beer or cider, who shall 
 transgress or allow to be transgressed, any of the condi- 
 tions in his licence, and the penalties (which are generally 
 recoverable before two justices) increase in severity, accord- 
 ing to the frequency of the offence; and on conviction 
 of a third offence at the quarter sessions, the justices may 
 not only inflict a pecuniary fine, but adjudge the premises 
 to be disqualified for the sale of liquors, and the licence to 
 be forfeited. In addition to which, the offender becomes 
 incapable of selling such liquor by retail in any house for 
 the space of two years {g). It is besides enacted, that 
 every person who shall be lawfully convicted of felony, or 
 selling spirits without licence, shall for ever thereafter be 
 disqualified for selling beer and cider by retail ; and if he 
 has obtained a licence, and after such conviction shall con- 
 tinue so to sell the same, he shall incur the same penalty 
 as an unlicensed person (ft). 
 
 It is moreover provided (as in the case of inns and ale- 
 houses), that in case of apprehended riots, the publicans 
 may be required, by order of two justices, (or, in case of 
 actual riots, one justice only,) to close their houses at such 
 times as the justices shall direct, and on non-compliance 
 with such order, shall be deemed " not to have maintained 
 good order and rule therein" (i). 
 
 And power is besides given to all constables and officers 
 of police, to enter into all houses licensed to sell beer or 
 spirituous liquors to be consumed on the premises, when 
 and so often as they shall think proper ; and if the pub- 
 lican refuse to admit them, he is liable to a pecuniary 
 penalty; and, upon a second offence, to be disqualified 
 for selling beer and cider for two years (k). 
 
 By a subsequent statute also of 11 & 12 Vict. c. 49, it is 
 
 (g) 11 Geo. 4 & 1 Will. 4, c. 64, (i) 11 Geo. 4 & 1 Will. 4, c. 64, 
 
 s. 13, &c. ; 4 & 5 Will. 4, c. 85, s. 11 j s. 1 1 ; Newman v. Hardwicke, 8 Ad. 
 
 3&4Vict. c. 61, s. 17. See Wray & E. 124; Newman v. Bendyshe, 
 
 v. Toke, 12 Q. B. 492. 2 Per. & D. 340. 
 
 (h) 3 & 4 Vict. c. 61, s. 7. (k) 4 & 5 Will. 4, c. 85, s. 7.
 
 CHAP. XI. OF THE LAWS RELATING TO PUBLIC HOUSES. 295 
 
 provided, both as to licensed victuallers and persons licensed 
 to sell beer by retail, and indeed as to all persons generally, 
 that they shall open no house or place of public resort for 
 the sale of fermented or distilled liquors, or sell such liquors 
 therein, before the hour of half-past twelve in the afternoon 
 of Sundays, Christmas Days, Good Fridays, or fast or 
 thanksgiving days, or before the termination of morning 
 service on those days, except only by way of refreshment 
 to travellers. 
 
 It only remains to be noticed, while we are upon the 
 subject of licenses to sell exciseable liquor, that by 9 
 Geo. IV. c. 47, provisions are made by which it is lawful 
 for masters and commanders of packets and other vessels 
 used for the conveyance of passengers from one part of the 
 united kingdom to another, to retail to their passengers 
 foreign wines, strong beer, cider, perry, spirituous liquors, 
 and tobacco, by taking out a licence so to do from the com- 
 missioners of excise ; for which licence a duty is payable, 
 and which must be yearly renewed ; but by the provisions 
 of the act it is made transferable. 
 
 II. The laws relating to theatres and other places of 
 public amusement. 
 
 First, As to theatres. 
 
 It appears by acts of parliament and other documents, 
 that theatrical exhibitions were introduced at an early 
 period of our history ; and took place in some instances 
 under the protection of the king or the nobles, or of the 
 superiors of religious houses; in others, by the sanction 
 of the municipal authorities. By a statute however of 39 
 Eliz. c. 4, players were declared to be " rogues and vaga- 
 bonds," unless acting as " players of enterludes" to some 
 baron, or person of high degree; by 3 Jac. I. c. 21, pro- 
 vision was made against the use of profane expressions in 
 stage plays; and by 12 Anne, st. 2, c. 93, all common 
 players of interludes were again classed among rogues and 
 vagabonds. Afterwards, to put this subject on a more
 
 296 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 precise footing, the act 10 Geo. II. c 28, was passed (7); 
 by which it was enacted, that no person shall for hire or 
 gain, act, or cause to be acted, any stage entertainment, 
 except under the authority of letters-patent from the crown, 
 or licence from the lord chamberlain of the household (m), 
 nor without first sending a copy thereof to the lord cham- 
 berlain, in order to obtain his permission to act the same. 
 And farther, that no patent or licence should be granted 
 for performance in any part of Great Britain, except the 
 city of Westminster and the liberties thereof, or some place 
 where the sovereign should for the time be resident (n). 
 
 In consequence of this latter restriction, various local 
 acts of parliament were afterwards made, from time to 
 time, to enable the crown to license theatrical perform- 
 ances, in such provincial towns as were desirous of pos- 
 sessing theatres of their own; and at length was passed, 
 for the general accommodation of such towns, the statute 
 28 Geo. III. c. 30, by which the justices at quarter sessions 
 were permitted (o), at their discretion, to grant licences to 
 act in any place, within their jurisdiction, such tragedies, 
 comedies, interludes, operas, plays, or farces, as should 
 have been represented at the patent or licensed theatres in 
 Westminster, or should have been duly submitted to the 
 inspection of the lord chamberlain as aforesaid (p). 
 
 The subject, however, has now been placed under new 
 regulations by the 6 & 7 Vict. c. 68, intituled " An Act for 
 regulating Theatres." This statute (after repealing the then 
 existing enactments) inflicts penalties upon any person who 
 shall have or keep any house or other place of public re- 
 sort in Great Britain, for the public performance of stage 
 
 (0 See R. v. Handy, 6 T. R. 286; (n) This restriction was repealed 
 R. v. Neville, 1 B. & Adol, 489. in favour of the city of Edinburgh, 
 This statute (itself repealed by 6 & 7 by 7 Geo. 3, c. 27, s. 19. 
 Vict. c. 68) amends and explains the (o) But such place must not have 
 12 Anne, st. 2, c. 23, by which latter been within twenty miles of West- 
 act the statute of Elizabeth was re- minster, or eight of any patent thea- 
 pealed. tre, or ten of a royal residence. 
 
 (m) GaUinit>.Laborie,5T.R.242. (p) Sect. 1.
 
 CHAP. XI. OF THE LAWS RELATING TO PUBLIC HOUSES. 297 
 
 plays (<y), without the authority of letters-patent from the 
 crown, or licence from the lord chamberlain of the house- 
 hold, or licence from at least four justices assembled at a 
 special session, to be holden in the division where the pro- 
 posed theatre is to be situate (r). 
 
 The jurisdiction of the lord chamberlain in this matter 
 is defined by the act as extending to all theatres, (not being 
 patent theatres,) within the parliamentary boundaries of 
 London and Westminster, and the boroughs of Finsbury 
 and Marylebone, the Tower Hamlets, Lambeth, and South- 
 wark, and also within those places where the sovereign 
 shall occasionally reside (s). The jurisdiction of the jus- 
 tices extends generally to all places beyond these limits (t) ; 
 but it is provided, that no licence shall be granted by either 
 of these authorities, except to the actual and responsible 
 manager of the proposed theatre for the time being, who is 
 to give security for the due observance of such regulations 
 as the authorities may impose; and also that no licence 
 shall be in force at the universities, or within fourteen 
 miles thereof, without consent of the chancellor or vice- 
 chancellor (u). Penalties are moreover imposed on any 
 person who for hire acts, or causes to be acted, any part of 
 a stage play, in any place not being a patent theatre or 
 duly licensed (x). 
 
 The statute farther empowers the justices to make suit- 
 able rules for ensuring order and decency in the theatres 
 to be licensed by them, and for regulating the times when 
 
 (q) This word includes any tra- may authorize any superintendent, 
 
 gedy, comedy, farce, opera, hurletta, with constables, to enter any place 
 
 interlude, melo-drama, pantomime, used within the metropolitan police 
 
 or other entertainment of the stage, district for dramatic entertainment, 
 
 or any part thereof ; but not a thea- and which is not a licensed theatre, 
 
 trical representation in a booth or and take into custody all persons 
 
 show duly allowed by the justice of found therein, 
 
 the peace or other person having (s) Sect. 3. 
 
 authority in that behalf at a fair or (t) Sect. 5. 
 
 feast, &c. 6 & 7 Vict. c. 68, s. 23. (it) Sect. 10. 
 
 (r) Sect. 2. By 2 & 3 Vict. c. 47, (i) Sect. 1 1. 
 s. 46, the commissioners of police
 
 298 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 they are to be open, which rules may be rescinded or al- 
 tered by a secretary of state ; and in case of any riot or 
 breach of rule in such theatre, the justices may order the 
 same to be closed. 
 
 The lord chamberlain may also, as to all theatres licensed 
 by him, or patent theatres, order the same to be closed, 
 in case of riot or any public occasion whatever; and it 
 is provided, that one copy of every new stage play, and of 
 every new act, scene or part, prologue or epilogue, or new 
 addition to a prologue or epilogue, intended to be acted for 
 hire at any theatre in Great Britain, shall be sent seven 
 days previously to the lord chamberlain, for his allowance, 
 without which it shall not be lawful to act the same. The 
 lord chamberlain is moreover empowered to forbid the re- 
 presentation or performance of any stage play, or any part 
 thereof, in any theatre whatever, in any case where such a 
 course shall appear to him advisable, whether for the pre- 
 servation of good manners or decorum, or with a view to 
 preserve the public peace ; and it is enacted, that every 
 person who shall, for hire, act or present, or cause to be 
 acted or presented, any new stage play, act, scene, part, 
 prologue, or epilogue, or any part thereof, until allowed by 
 the lord chamberlain, or contrary to his prohibition, shall 
 incur certain heavy pecuniary penalties, and the theatre 
 shall also forfeit its licence. 
 
 Secondly. As to other places of amusement. 
 
 It is provided by 25 Geo. II. c. 36, s. 2 (?/), that every 
 house, room, garden, or other place kept for public dancing, 
 music, or other public entertainment of the like kind, in 
 London and Westminster, or within twenty miles thereof, 
 without a licence from the last preceding Michaelmas quar- 
 
 (y) This act, which at first was Archer v. Willingrice, ibid. 186 ; 
 
 enacted only for three years, was Shutt v. Lewis, 5 Esp. 128; Green 
 
 made perpetual by 28 Geo. 2, c. 19, v. Botheroyd, 3 Car. & P. 471 ; Gre- 
 
 s. 1. The following are some of the gory v. Tuffe, 6 Car. & P. 271 ; Gre- 
 
 cases which have arisen under its gory j;. Tavernor, ibid. 281 ; Marks 
 
 provisions, Bellis v. Burghall, 2 Esp. v. Benjamin, 5 Mee. & W. 565 ; 
 
 722 ; Clarke v. Searle, 4 Esp. 25 ; Levy v. Yates, 8 A. & E. 129.
 
 CHAP. XI. — OF THE LAWS RELATING TO PUBLIC HOUSES. 299 
 
 ter sessions, shall be deemed a disorderly house, and the 
 keeper thereof shall forfeit the sum of 100/., and be other- 
 wise punishable as the law directs in the case of disorderly 
 houses (z). And it is farther enacted, that over the door 
 or entrance of all such licensed places, there shall be affixed 
 and kept up the words " Licensed pursuant to act of par- 
 liament of the twenty-fifth of King George the second," 
 and that no house of this description is to be opened for 
 the purpose of amusement before five o'clock in the after- 
 noon (a). 
 
 But this act has no application to the Theatres Royal in 
 Drury Lane and Covent Garden, or the King's Theatre in 
 the Haymarket ; nor to theatres licensed by the crown, or 
 the lord chamberlain of the household (b). 
 
 (z) Sect. 2. (b) Sect. 4. 
 
 (a) Sect. 3.
 
 300 BK. IV. OF PUBLIC RIGHTS,— PT. III. SOCIAL ECONOMY. 
 
 CHAPTER XII. 
 
 OF THE LAWS RELATING TO PROFESSIONS. 
 
 In most employments the rewards resulting from success, 
 and the discredit and failure consequent upon incompe- 
 tency, form a natural and sufficient security to the public, 
 that they will not be undertaken without the necessary 
 qualifications ; but there are professions productive of evils 
 so serious or irremediable, when improperly exercised, and 
 so liable at the same time to be exercised by unfit persons, 
 as to make it reasonable to subject them to the restraints 
 of leaal regulation. Those which our law deems to be 
 of that character (or those at least which have especially 
 attracted the notice of our legislature as such), are the pro- 
 fessions of physicians, surgeons, and apothecaries ; attornies 
 and solicitors («). 
 
 I. As to physicians, surgeons, and apothecaries: and 
 herein, 
 
 1. As to physicians. The necessity of placing under 
 supervision the practitioners of physic and surgery appears 
 from our statute book to have been early acknowledged, 
 for we find in the third year of Henry the eighth (b) a sta- 
 tute, intituled " An Act for the appointing of Physicians 
 and Surgeons," in which, after reciting the inconveniences 
 and " grievous hurt, damage, and destruction of many of 
 the king's liege people," forasmuch as " common artificers, 
 as smiths, weavers, and women, boldly take upon them great 
 cures, in which they partly use sorcery and witchcraft," it 
 
 (a) As to barristers, vide sup. vol. i. pp. 19, 20 ; et post, bk. v. c. 3. 
 (/>) C. 11.
 
 CHAP. XII. OF THE LAWS RELATING TO PROFESSIONS. 301 
 
 is enacted, that no person within London, or seven miles 
 thereof, shall practise as a physician or surgeon without 
 examination, and licence of the Bishop of London or of the 
 Dean of Paul's (duly assisted by the faculty) ; or beyond 
 these limits, without licence from the bishop of the diocese, 
 or his vicar general, similarly assisted. There is a saving, 
 however, of the privilege of the universities of Cambridge 
 and Oxford. 
 
 Five years afterwards, during the reign of the same 
 monarch, a royal charter, dated the 23rd of September, in 
 the tenth year of Henry the eighth, was granted for erect- 
 ing a corporation of physicians in London, by which the 
 above-mentioned superintendence of the bishops, so far at 
 least as related to that profession, would seem to have been 
 taken away. 
 
 By the statute 14 & 15 Hen. VIII. c. 5, this charter was 
 confirmed, and in virtue of such act and charter a perpetual 
 college of physicians was established, with a constitution 
 of eight elects, to be renewed as need should require, of 
 whom one was to be annually elected president ; and it 
 was ordained, that this college should choose four physi- 
 cians yearly, to supervise all others within London and 
 seven miles thereof, " as also their medicines and receipts," 
 so that such as offended should be punished with fines, 
 imprisonment, or other means ; and that no person should 
 be at liberty to practise within that circle, except by the 
 licence of the college, under the penalty of 5/. per month. 
 All persons were likewise forbidden to practise even beyond 
 that circle, unless they should have been first examined and 
 approved by the president and three elects, or should be 
 graduates of Cambridge or Oxford. 
 
 Afterwards, by 32 Hen. VIII. c. 40, it was farther pro- 
 vided, that any of the said company or fellowship of phy- 
 sicians being admitted by the said president and fellowship, 
 might, from time to time, as well within London as else- 
 where, practise surgery, as part of the general science of 
 physic, any law to the contrary notwithstanding.
 
 302 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 The charter of the college was subsequently confirmed 
 and enlarged by the act of 1 Mar. sess. 2, c. 9, and by 
 certain other charters of later dates, viz. the 8th of October, 
 in the fifteenth year of James the first, and the 26th of 
 March, in the fifteenth year of Charles the second, by 
 which many important privileges and immunities are far- 
 ther secured to that body (c). 
 
 2. As to surgeons. It will be seen that the first of the 
 statutes we have cited, viz. 3 Hen. VIII. c. 11, expressly 
 includes this class of practitioners within its provisions. 
 In the same reign surgeons were again regulated by the 
 statute 32 Hen. VIII. c. 42 • which, after reciting that in 
 London there were then two distinct companies of sur- 
 geons, the one called the barbers of London, and the other 
 the surgeons of London, the first incorporated by King Ed- 
 ward the fourth, the second not incorporated, united these 
 companies together into one body corporate, called " The 
 Masters or Governors of the Mystery and Commonalty of 
 Barbers and Surgeons of London," and allowed them 
 (among other privileges) to take yearly, for the purposes of 
 anatomy, the bodies of four persons, out of those executed 
 for felony. 
 
 Afterwards, by the statute 34 & 35 Hen. VIII. c. 8, 
 notice is again taken of the surgical profession, but of a 
 kind by no means complimentary ; for it is recited, that the 
 surgeons admitted by virtue of the antecedent act of the 
 third year of Henry the eighth, though for the most part 
 of small cunning, took great sums of money, and impaired 
 their patients instead of doing them good ; and it is conse- 
 quently enacted, that it shall be lawful for all the king's 
 subjects, having knowledge of the nature of herbs, roots, 
 and waters, to minister to any outward disease, any thing 
 
 (c) The following are some of the College (in error), 5 Bro. P. C. 553; 
 
 cases in which questions respecting R. v. Physicians' College, 7 T. R. 
 
 the privileges of the college of phy- 282 ; Moises v. Thornton, 8 T. R. 
 
 sicians have arisen. R. v. Askew, 4 303 ; Collins v. Carnegie, 1 Ad. & 
 
 Burr. 2186; Rose v. Physicians' El. 695.
 
 CHAP. XII. OF THE LAWS RELATING TO PROFESSIONS. 303 
 
 in the act of the third year of Henry the eighth to the con- 
 trary notwithstanding. 
 
 The company of barbers and surgeons, however, still 
 continued to subsist ; and afterwards by a charter in their 
 favour, dated the 15th of August, in the fifth year of 
 Charles the first, all persons (except such physicians as 
 therein mentioned) were prohibited from exercising surgery 
 within London and Westminster, or within seven miles 
 from London, for profit, unless they should be first ex- 
 amined by the company's examiners, and be therein duly 
 admitted by the company (d). But at length, by statute 18 
 Geo. II. c. 15, the body compounded of the two callings 
 of barber and surgeon (so ill assorted according to our 
 modern notions) was broken into two distinct corpora- 
 tions (e) ; those thereof who had been admitted to practise 
 surgery being now constituted a body corporate, by the 
 name of "The Master, Governors, and Commonalty of the 
 Art and Science of Surgeons of London ;" and at the same 
 time authorized to choose governors, examiners, and other 
 officers; and it was enacted, that it should for ever enjoy 
 all the same privileges and franchises as the members of 
 the former company, being admitted surgeons, could have 
 enjoyed under the original act of union and the several 
 letters-patent. The letters-patent were again confirmed by 
 charter, the 22nd of March, in the fortieth year of George 
 the third, re-incorporating the company by the style of 
 " The Royal College of Surgeons, in London," and again 
 by charter, the 14th of September, in the seventh year of 
 Victoria, when it received the appellation of " The Royal 
 College of Surgeons of England." The charter last-men- 
 tioned recites that the college then consisted of members 
 constituted such, either by the charter of the fortieth year 
 of George the third, or by letters testimonial under the 
 common seal of the college, as to the qualification of such 
 members to practise the art and science of surgery ; and 
 
 (d) Preamble, 18 Geo. 2, c. 15. (e) Sharpe v. Law, 4 Burr. 2133.
 
 304 BK. IV. OP PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 that the governing body of the college consisted of a 
 council, some of whom were examiners for the college ; 
 and it proceeds to create a new class of members, called 
 fellows, from whom and by whom the council are to be 
 in future elected, and provides that all future examiners 
 be elected by the council, and hold their office at pleasure 
 of the council. The charter also contains a clause, that no 
 bye-law or ordinance thereafter to be made by the council 
 shall be of any force, until the royal approbation thereof 
 shall have been signified to the college, under the hand of 
 a principal secretary of state, or shall have been otherwise 
 approved in such manner as parliament shall direct. 
 
 As to physicians and surgeons it is farther to be ob- 
 served, that the former cannot maintain an action for their 
 fees, their employment (like that of a barrister) being of a 
 merely honorary description (f) ; but surgeons are entitled 
 to recover at law a reasonable compensation for their ser- 
 vices (g). We have also to notice, in connexion with these 
 professions, the late act, 2 & 3 Will. IV. c. 75, intituled 
 "An Act for regulating Schools of Anatomy ;" by which it 
 is provided, that the executor or other person having law- 
 ful possession of the body of a deceased person, and not 
 being intrusted with it for interment only, may permit such 
 body of such person to undergo anatomical examination, 
 unless in his lifetime he shall have expressed, in such man- 
 ner as in the act provided, a wish to the contrary ; or unless 
 the surviving husband or wife, or other known relation of 
 such person, shall otherwise require. And farther, that the 
 secretary of state for the home department may grant 
 licences to practise anatomy to any members of the college 
 of physicians or surgeons, or to any graduates or licentiates 
 
 (/) Co. Litt. 265, n. ; Chorley v. (g) Lipscombeu. Holmes, 2 Camp. 
 
 Bolcot, 4t T. R. 317 ; Little v. Old- 441 ; Baxter v. Gray, 4 Scott, N. R. 
 
 aker, 1 Car. & M. 370 ; Buttersby v. 374; Handley v. Henson, 4 C. & P. 
 
 Lawrence, ibid. 277. Seats, where 110; Simpson v. Rolfe, 4 Tyr. 325 ; 
 
 there is an actual contract, Veitch v. Richmond v. Coles, 1 Dowl. N. S. 
 
 Russell, 3 Q. B. 928. 560.
 
 CHAP. XII. — OF THE LAWS RELATING TO PROFESSIONS. 305 
 
 in medicine, or any professor or teacher of anatomy, 
 medicine or surgery, or any student attending any school 
 of anatomy, on application by such parties for the purpose 
 countersigned by two justices of the peace in such manner 
 as the act provides ; and that it shall be lawful for persons 
 so licensed to receive or possess for anatomical examina- 
 tion, or to examine anatomically, the body of any person 
 deceased, if permitted so to do by a person having lawful 
 authority as aforesaid in that behalf. But no anatomical 
 examination shall be lawful, unless conducted at some 
 place, of which such secretary of state shall have had a 
 week's notice, as a place where it is intended to practise 
 anatomy; and the secretary of state is to appoint inspectors 
 for all such places, who are to make quarterly returns as to 
 the subjects carried in for examination. By this act also, 
 together with some preceding statutes relating to the crimi- 
 nal law, all former provisions of that law authorizing the 
 dissection of offenders after execution, are repealed. 
 
 3. With respect to apothecaries. — The statute by which 
 apothecaries are regulated is the 55 Geo. III. c. 194, which, 
 after reciting (and for the most part confirming) a charter 
 of James the first, by which the " Society of the Art and 
 Mystery of Apothecaries of the City of London" was in- 
 corporated, proceeds to enact, that no person shall practise 
 as an apothecary, or act as an assistant to an apothecary, 
 in any part of England or Wales, unless he shall have 
 been examined by a court of examiners (to be chosen by 
 the master and wardens of the said company, in such man- 
 ner as the act directs), and have received therefrom a cer- 
 tificate of his being duly qualified to practise as such (h). 
 
 This certificate (for which a certain sum is to be paid, 
 
 (h) Sect. 14, As to what con- son holding a warrant as surgeon or 
 
 stitutes practice as an apothecary, see assistant surgeon in the army or 
 
 Apothecaries' Comp. v. Warburton, navy may practise as an apothecary 
 
 3 B. & Aid. 40 ; Same v. Greenough, without undergoing the examination 
 
 1 Q. B. 799. As to the certificate, or obtaining the certificate required 
 
 see Young v. Geiger, 6 C. B. 541. by 55 Geo. 3, c. 194. 
 By C Geo. 4, c. 133, s. 4, every per- 
 
 VOL. III. X
 
 306 BK. IV. OF PUBLIC RIGHTS.— PT. III. SOCIAL ECONOMY. 
 
 for the benefit of the company's funds) is not to be granted 
 to any person below the age of twenty-one, or who has not 
 served an apprenticeship of five years to an apothecary, 
 and can produce testimonials of sufficient medical educa- 
 tion and good moral conduct; and any person practising 
 without such certificate, is disabled from recovering his 
 charges (k), and is moreover liable to a penalty of 20/. for 
 every such offence (/). 
 
 It is also provided that (inasmuch as it is the duty of 
 every apothecary to prepare with exactness such medicines 
 as may be directed for the sick by any physician lawfully 
 licensed) any apothecary refusing to compound or sell, or 
 negligently compounding or selling, any medicines as di- 
 rected by any prescription or order, signed by any physician 
 lawfully licensed with his initials, shall incur such penal- 
 ties and forfeitures as therein set forth. And, farther, that 
 the master, wardens, and society of apothecaries for the 
 time being, or any persons by them appointed, and being 
 not fewer than two, and properly qualified, may at all rea- 
 sonable times in the day time enter the shops of any apo- 
 thecaries throughout England and Wales, and search and 
 examine whether the medicines and drugs be wholesome, 
 and meet for the health of the subjects of the realm ; and 
 destroy such as they find to be otherwise ; and report to 
 the master and wardens of the society the names of the 
 offenders, who are made liable to a fine of 51. for the first, 
 10/. for the second, and 20/. for the third offence (m). 
 
 The act contains, however, a proviso that nothing therein 
 shall affect the business of a chemist and druggist (ri), in 
 the buying, preparing, compounding, dispensing (o), and 
 vending drugs, medicines, and medicinable compounds 
 
 (k) Sect. 21. See Young v. Geiger, (m) Sect. 3. 
 
 ubi sup. ( B ) Sect. 28, See, as to this ex- 
 
 (/) Brown v. Robinson, 1 Car. & ception, The Apothecaries' Company 
 
 P. 264 ; Apothecaries' Company v. v. Greenough, ubi sup. 
 
 Greenwood, 2 B. & Adol. 709 ; Apo- (<>) As to the meaning of dispensa- 
 
 thecaries' Company v. Burt, 5 Exch. tion in pharmacy, see Apothecaries' 
 
 363. Company v. Burt, ubi sup.
 
 CHAP. XII. — OF THE LAWS RELATING TO PROFESSIONS. 307 
 
 wholesale and retail (p) : nor interfere with the rights of 
 the Universities of Cambridge or Oxford, the College of 
 Physicians or of Surgeons, or the Society of Apothecaries 
 respectively, except as altered by that act(g). 
 
 II. As to attornies and solicitors (r). 
 
 The statutes relating to this branch of the legal profes- 
 sion being very numerous and complicated, were amended 
 and consolidated by 6 & 7 Vict. c. 73 (s), by which the 
 previous enactments as to the qualification, admission, and 
 regulation of attornies and solicitors are repealed. 
 
 By this statute it is enacted, that no person shall act as 
 an attorney or solicitor, or as such sue out any writ or 
 
 (p) By 14 & 15 Vict. c. 13, the 
 sale of arsenic and arsenious prepa- 
 rations is subjected to restrictions. 
 Particulars are to be entered by the 
 vendor, and signed by the purchaser, 
 of the day of sale, the name, abode, 
 and condition of the purchaser, the 
 quantity sold, and the purpose for 
 which required. Where the pur- 
 chaser is unknown to the vendor, 
 the sale must be in the presence of a 
 person known to the vendor, and to 
 whom also the purchaser is known. 
 The purchaser must be a person of 
 full age, and the arsenic must be 
 coloured with an admixture of in- 
 digo or soot, unless where repre- 
 sented by the purchaser to be re- 
 quired for some purpose for which it 
 would be rendered unfit by such ad- 
 mixture, when it may be sold in a 
 quantity of not less than ten pounds. 
 But the act does not extend to ar- 
 senic forming part of the prescription 
 of a member of the medical profes- 
 sion, or sold by wholesale to retail 
 dealers upon orders in writing in the 
 ordinary course. 
 
 (q) By 15 & 16 Vict. c. 56 (re- 
 citing that a society had been formed 
 
 and incorporated in 1843, called 
 " The Pharmaceutical Society of 
 Great Britain," and that it was ex- 
 pedient to prevent ignorant and in- 
 competent persons from assuming 
 the title of pharmaceutical chemists, 
 (or of members of that society), it is 
 provided that every person duly ex- 
 amined by the examiners of the so- 
 ciety, and having obtained from them 
 certificates of competency to practise 
 as pharmaceutical chemists, shall be 
 entitled to be registered, and that 
 none but persons so registered shall 
 assume that title. And it is also 
 enacted that the examinations shall 
 not include the theory and practice 
 of medicine, surgery, or midwifery, 
 and that no member of the medical 
 profession shall be entitled to be re- 
 gistered. 
 
 (r) As to attornies and solicitors, 
 see also post, bk. v. c. 3. As to 
 notaries public, see 41 Geo. 3, c. 79 ; 
 6 & 7 Vict. c. 90 ; Queen v. Scriven- 
 ers' Company, 3 Q. B. 939. 
 
 (s) As to how far 2 Geo. 2, c. 23, 
 is repealed by this statute, see Hodge 
 v. Bird, 6 Man. & G. 1020. 
 
 x. 2
 
 308 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 process, or commence, carry on, solicit or defend, any ac- 
 tion or other proceeding in the name of any other person 
 or in his own name, in any court of civil or criminal juris- 
 diction, or in any court of law or equity in England or 
 Wales, unless he shall have been admitted, enrolled, and 
 be otherwise duly qualified, to act as attorney or solicitor, 
 either previously to, or else in pursuance of, that statute (u). 
 
 To entitle a person, for the future, to this admission, and 
 enrolment, it is required, 1st, that he shall have served 
 (having been duly bound by contract in writing so to do), 
 with some practising attorney or solicitor in England or 
 Wales, a clerkship of five years (x) ; or (if he shall have 
 taken a degree, under such circumstances as in the act 
 mentioned, at Cambridge, Oxford, Dublin, Durham, or 
 London) a clerkship of three years (y). And, 2ndly, that 
 in addition and subsequently to such services he be ex- 
 amined by, or by direction of, one or more of the judges at 
 Westminster, or (in the case of a solicitor) by the Master 
 of the Rolls, touching his articles, service, fitness and capa- 
 city to act. 
 
 For this purpose the judges, or any eight of them, in- 
 cluding the three chiefs, or (in the case of a solicitor) the 
 Master of the Rolls, may from time to time appoint ex- 
 aminersj and make such rules as to the examination as they 
 may think proper^); and the judges, or any one of them, 
 upon being satisfied by such examination, or by the certi- 
 
 (u) A person who acts as an at- 5 Q. B. 561 ; Ex parte Bateman, 
 
 torney without being properly quali- 6 Q. B. 853. See 7 & 8 Vict. c. S6, 
 
 fied, is liable to be indicted for a mis- repealing 34 Geo. 3, c. 14, as to the 
 
 demeanor. Ex parte Buchanan, 8 enrolment of the indenture of clerks 
 
 Q. B. 883. By 7 & 8 Vict. c. 101, to attornies. 
 
 s. 68, however, clerks and officers to (y) 6 & 7 Vict. c. 73, s. 7. By 14 
 
 boards of guardians, &c, under the & 15 Vict. c. 88, the same privilege 
 
 Poor Laws, may commence or de- is now granted in respect of degrees 
 
 fend proceedings before magistrates in the Queen's University, Ireland. 
 in special or petty sessions, or out (s) 6 & 7 Vict. c. 73, sects. 16, 17, 
 
 of sessions, without being so qua- 18. See the present regulations ap- 
 
 lified. proved by the judges, H. T. 1853. 
 
 (a) Sects. 2, 3 ; Ex parte Davies,
 
 CHAP. XII. OF THE LAWS RELATING TO PROFESSIONS. 309 
 
 ficates of such examiners, of the competency of any can- 
 didate for admission, shall administer to him such oath as 
 specified in the act, viz. " that he will truly and honestly 
 demean himself in practice," and also the oath of alle- 
 giance; and after such oaths shall cause him to be admitted 
 as an attorney of the said courts of law at Westminster, or 
 as solicitor of the High Court of Chancery, as the case may 
 be, and his name to be enrolled as an attorney or solicitor 
 of such courts ; which admission shall be written on parch- 
 ment, signed by such judge or judges, or Master of the 
 Rolls, and impressed with the proper stamps (a). 
 
 It is moreover enacted, that there shall be a registrar of 
 attornies and solicitors, whose duty it shall be to keep an 
 alphabetical list or roll of all attornies and solicitors, and 
 to issue certificates as to persons who have been duly ad- 
 mitted and enrolled ; and the duties of this office are by the 
 act committed to the " Incorporated Law Society," until 
 some person shall be appointed in their room (b). 
 
 Such a certificate from the registrar of due admission 
 and enrolment must be produced to the commissioners of 
 stamps and taxes by any person desirous of practising as 
 an attorney or solicitor, before he can obtain from them 
 the stamped certificate required by the Stamp Act, 55 
 Geo. III. c. 184 (c), authorizing him to practise for the 
 ensuing year (7/); and in order to obtain such registrar's 
 certificate, a declaration in writing, signed by the attorney 
 desirous of practising, or by his partner, or in some cases 
 by his London agent, containing his name and address, 
 the courts of which he is an admitted attorney or solicitor, 
 and the date of his admission, must be delivered to the 
 registrar (e). And if any attorney or solicitor shall prac- 
 tise in any of the courts aforesaid, without having obtained 
 a stamped certificate for the current year, he shall be in- 
 capable of maintaining any action or suit to recover his 
 
 («) Sects. 15, 16. 7 Vict. c. 73. 
 
 (6) Sect. 21. (d) Sect. 22. 
 
 (c) See schedule 1, part ii. of 6 & (e) Sect. 23.
 
 310 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 fees or disbursements for business done under such cir- 
 cumstances (f). 
 
 The statute we are considering also contains the fol- 
 lowing regulations ; — among others of less general in- 
 terest : — 
 
 That no attorney or solicitor shall have more than two 
 clerks bound by contract in writing as aforesaid at one 
 and the same time, nor any such clerk after he shall have 
 left off business, nor while he himself acts as a clerk ; and 
 that if he become bankrupt, or take the benefit of the 
 Insolvent Act, or be imprisoned for debt for twenty-one 
 days, the court may order his clerk to be discharged or 
 assigned over to some other person (g). 
 
 That a person so bound as aforesaid as clerk for five 
 years, to an attorney or solicitor, may serve one of those 
 years as pupil with a practising barrister, or certificated 
 special pleader, or with the London agent of the attorney 
 or solicitor to whom he is bound (A). 
 
 That clerks whose masters have died or left off business 
 during the term, or whose articles have been cancelled 
 or discharged, may enter into new articles with other 
 masters, which shall be available for the residue of the 
 term (i). 
 
 That all persons admitted as attornies of one of the su- 
 perior courts of law at Westminster, may, upon production 
 of a certificate thereof, be admitted in any other court of 
 law in England or Wales, upon signing the roll of the 
 same ; and that persons admitted as solicitors in the High 
 
 (/) 6 & 7 Vict. c. 73, s. 26. See procure one from the registrar, or 
 
 Brunswick v. Crowl, 4 Exch. 492. cause his original one to be renewed, 
 
 Although uncertificated, an attorney without the order of a court or judge, 
 
 may recover fees, &c, due for busi- As to this, see 6 & 7 Vict. c. 73, s. 
 
 ness not having reference to any 25 ; Reg. Gen. E. T. 1846, 8 Q. B. 
 
 suits or proceedings, Richards v. 638 ; Ex parte Howard, 1 L. M. & P. 
 
 Suffield, 2 Exch. 616 ; Greene v. 710. 
 
 Reece, 8 C. B. 88. It may be ob- (g) Sects. 4, 5. 
 
 served that an attorney who neglects (ft) Sect. 6. 
 
 to procure or renew his certificate (i) Sect. 13. 
 for one whole year cannot afterwards
 
 CHAP. XIT. OF THE LAWS RELATING TO PROFESSIONS. 311 
 
 Court of Chancery may in like manner obtain their ad- 
 mission in all other courts of equity, and in the Court of 
 Bankruptcy (A). 
 
 That no attorney or solicitor, who shall be a prisoner in 
 any gaol or prison, may commence or defend any action, 
 suit, or proceeding in law, equity, or bankruptcy, or main- 
 tain an action for fees for business done during such his 
 confinement (/) ; and that no practising attorney or solicitor 
 shall be a justice of the peace in England or Wales, except 
 in counties or towns corporate having justices by charter or 
 otherwise (m). 
 
 And that no attorney or solicitor shall commence an 
 action or suit for his fees or charges in respect of any busi- 
 ness whatever, until after the expiration of one calendar 
 month after a bill of such costs and charges, signed by 
 such attorney or solicitor, shall have been delivered to the 
 party to be charged (n) ; and such party may, on a proper 
 application, obtain an order for referring such bill to be 
 taxed (o), and for staying all proceedings to recover the 
 amount thereof in the meantime. An order may also be 
 
 (k) Sect. 27. See as to Welch at- 
 tornies, Ex parte Roberts, 6 Man. 
 & G. 1049. See as to admission 
 to practise in the Lord Mayor's 
 Court, Queen v. Lord Mayor, &c, 
 of London, 13 Q. B. 1. An attorney 
 has by the common law the privi- 
 lege of not being liable to be sued 
 (generally), except in the court or 
 courts to which he belongs. See 
 Gage's case, Hob. 177; Gardner i'. 
 Jessop, 2 Wils. 42 ; Lewis v. Kerr, 
 2 Mee. & W. 226 ; Walford v. Fleet- 
 wood, 14 Mee. & W. 449. But this 
 privilege cannot be claimed in a 
 county court, 12 & 13 Vict. c. 101, 
 s. 18. He is also (in general) privi- 
 leged from arrest eundo, manendo, et 
 redeundo in the superior courts. Vide 
 post, p. 365. 
 
 (I) Sect. 31. 
 
 (m) Sects. 33, 39. 
 
 (n) Sect. 37. As to the delivery 
 of an attorney's bill in compliance 
 with this section, see the following 
 cases: Engelheart v. Moore, 15 Mee. 
 & W. 548 ; Ivimey v. Marks, 16 Mee. 
 & W. 843 ; Macgregor v. Keildy, 3 
 Exch. 794 ; Sargent u. Gannon, 7 
 C. B. 742 ; Tate v. Hitchins, ibid. 
 875 ; Dimes v. Wright, 8 C. B. 831 ; 
 Martindale v. Falkner, 3 D. & L. 
 600 ; Anderson v. Boynton, 7 D. & L. 
 25 ; Brooks v. Bochett, 9 Q. B. 847. 
 As to its delivery when the party to 
 be charged is a joint-stock company, 
 see Blandy v. De Burgh, 6 C. B. 
 623 ; Edwards v. Lawless, 6 D. & L. 
 105 ; Phipps v. Daubney, 2 L. M. 
 & P. 180. 
 
 (o) As to taxing bills for agency 
 business, see Smith v. Dimes, 4 Exch. 
 32.
 
 312 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 obtained directing an attorney or solicitor to deliver his bill, 
 (when he has not done so,) and also an order for his deli- 
 vering up, upon payment of what is due, all deeds, papers 
 and documents in his possession or power touching the 
 business in such bill comprised ( p). 
 
 It is provided, however, that the act shall not extend to 
 the examination, admission, lights, or privileges of any 
 person appointed to be solicitor to the treasury, customs, 
 excise, post-office, stamp duties, or any other branch of 
 the revenue, or the solicitor of the city of London, or the 
 assistant of the council for the affairs of the admiralty or 
 navy, or the solicitor to the board of ordnance (//). 
 
 (p) Sect. 37. This section is re- Q. B. 847. 
 trospective; Brooks v. Bockett, 9 (<?) Sect. 47.
 
 ( 313 ) 
 
 CHAPTER XIII. 
 
 OF THE LAWS RELATING TO BANKS. 
 
 The invention of banking appears to be due to the Re- 
 public of Venice. So early as the year 1171, Jews were 
 accustomed to keep benches in the market place of that 
 state for the exchange of money and bills; and banco being 
 the Italian for bench, banks may have taken their denomi- 
 nation from this circumstance. 
 
 In our own country the business of banking appears to 
 have been originally carried on by the goldsmiths ; and 
 accordingly we find it recited in an act of the 22 & 23 
 Car. II., "that several persons, being goldsmiths and others, 
 " by taking up or borrowing great sums of money, and 
 " lending out the same for extraordinary hire and profit, 
 " have gained and acquired to themselves the reputation 
 " and name of bankers" (a). 
 
 Afterwards, in the reign of William and Mary, the pro- 
 ject was conceived (in imitation, as it would seem, of the 
 banks of Amsterdam and Genoa, already founded) of esta- 
 blishing- in England a national institution of the same de- 
 scription ; and in 1694, parliament was accordingly pre- 
 vailed upon, though with difficulty (owing to apprehensions 
 then entertained of the policy of the measure), to pass an 
 act sanctioning the creation of that great corporate body, 
 which has since become so celebrated, under the denomi- 
 nation of " The Governor and Company of the Bank of 
 England." 
 
 Our present laws relative to banking apply either to the 
 Bank of England, or to certain establishments of a very 
 (a) See Jacob's Diet, in tit. Bankers.
 
 314 BK. IV. OF PUBLTC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 recent origin, commonly denominated joint-stock banks, or 
 to private banks. In proceeding to give some account of 
 the legal history of the first, we shall be led by necessary 
 connexion to notice that of the two latter also. 
 
 The act already referred to as the origin of the Bank of 
 England, was the 5 W. & M. c. 20. It empowered their 
 majesties to receive voluntary subscriptions from any per- 
 sons, native or foreign, or any bodies corporate, to the 
 amount of 1,200,000/., to be paid into the Exchequer 
 towards the prosecution of the war with France (Z>) ; and, 
 by letters-patent under the great seal (which were in fact 
 afterwards granted under date 27th July, 1694), to incor- 
 porate all such subscribers into a company, to be called 
 " The Governor and Company of the Bank of England ;" 
 and such subscribers were to be paid, out of the duties to 
 be levied under that act, 100,000/. per annum (c). It was 
 provided, however, that they should not borrow more than 
 1,200,000/., so as to owe more than that sum at a time, 
 unless upon such funds as should be agreed in parlia- 
 ment (d); and that their majesties' subjects might not be 
 oppressed by the said corporation, by their monopolizing 
 or " engrossing any sort of goods, wares, or merchandize," 
 they were prohibited from buying and selling goods (e). 
 But the act declared the Bank entitled, nevertheless, to deal 
 in bills of exchange, or to buy and sell bullion, gold, or 
 silver, or to sell any goods whatsoever, which should be 
 left with it in pledge, and not redeemed at the time agreed 
 upon, or within three months after, or to sell goods, the 
 produce of lands which it should have purchased (f) ; and 
 from the time of the passing of the act, or soon afterwards, 
 we find that the Bank began the practice, which it has 
 ever since maintained, of issuing its own notes (g). 
 
 By subsequent acts its capital was progressively en- 
 
 (6) Sects. 19, 41. (/) Sect. 28. 
 
 (c) Sects. 19, 20. (g) Vide Bank of England v. An- 
 
 (<l) Sect. 26. derson, 3 Bing. N. C. 653, 654. 
 
 (e) Sect. 27.
 
 CHAP. XIII.— OF THE LAWS RELATING TO BANKS. 615 
 
 larged, and an exclusive privilege or monopoly established 
 in its favour (h) ; for by one of these, 8 & 9 Will. III. c. 20, 
 (explained by 15 Geo. II. c. 13, s. 6,) it was enacted, that 
 no other bank, or company in the nature of a bank, should 
 be allowed to be established by act of parliament within 
 this kingdom (i) ; and by another, 6 Ann. c. 22, that it 
 should not be lawful for any other corporation, or for more 
 than six persons united in partnership, in England, to bor- 
 row, owe, or take up any money on their bills or notes, 
 payable on demand, or at less time than six months from 
 the borrowing thereof (k). And though these exclusive 
 privileges (popularly called the Bank Charter) have been 
 since in part relinquished, they are also in part still extant, 
 as we shall have occasion more particularly to explain in 
 the course of the chapter. 
 
 Subject, however, to the Bank Charter, as from time to 
 time modified, the trade of banking has, from its first in- 
 troduction, been always free ; and other banks besides the 
 Bank of England have consequently been long established 
 among us, and that both in London and the country ; 
 though as between the country and the London banks, the 
 following distinction has practically obtained, that the 
 former have usually carried on business, like the Bank of 
 England, as banks of issue, that is, have made payments 
 by their own notes, while, on the other hand, the latter 
 have been banks of mere deposit, that is, have made pay- 
 ments in cash and Bank of England notes only, and not 
 in notes of their own. 
 
 The character of the Bank of England, and of its trans- 
 actions, has always maintained, nevertheless, an importance 
 far greater than that of any of these establishments ; for 
 while it has carried on the business ordinarily incident to 
 
 (h) As to the Bank's exclusive of England, 6 Bing N. C. 415. 
 privilege, vide Bank of England v. (i) 8 & 9 Will. 3, c. 20, s. 28. 
 
 Anderson, ubi sup. ; Booth v. Bank (k) 6 Ann. c. 22, s. 9.
 
 316 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 banking, such as receiving deposits of money, issuing its 
 own paper, and discounting mercantile bills, it has been 
 also employed as a great engine of state, by receiving and 
 paying the interest due to the public creditors (m), (for 
 which it has received an allowance from the public («),) by 
 circulating exchequer bills, by accommodating the govern- 
 ment with immediate advances, on the credit of distant 
 funds, and assisting generally in all the great operations 
 of finance. Its advances to the government, however, are 
 subject to the restrictions imposed by 59 Geo. III. c. 76, 
 which enacts, in conformity with an early regulation (o), 
 that it shall not be lawful for the Bank to advance or lend 
 to the crown any money whatever, upon the credit of any 
 exchequer bill or treasury bill, or other government secu- 
 rity, or in any other manner whatever, without the express 
 and distinct authority of parliament for that purpose first 
 obtained ; but without prejudice to its right of purchasing 
 any exchequer bills or government securities, then by law 
 permitted, or to its advancing at the receipt of the Exche- 
 quer any money whatever, not exceeding in the whole the 
 sum necessary to make good any deficiency in the Con- 
 solidated Fund(p) at the close of any quarter, upon the 
 credit of exchequer bills, issued under the authority of the 
 act 57 Geo. III. c. 48, or the act 59 Geo. III. c. 19. 
 
 In the year 1797, owing to a temporary failure in public 
 credit, and a consequent run upon the Bank, it was deemed 
 necessary to restrain it for a limited period from making 
 payments in cash; and an act of parliament, 37 Geo. III. 
 c. 45, was passed in that year for the purpose, the provisions 
 of which were continued, by subsequent acts {(f), until the 
 1st of May, 1823, when the restriction ceased. 
 
 In the year 1826, the Bank consented to an arrange- 
 
 (m) As to the national debt, vide (o) 5 W. & M. c. 20, s. 30. 
 
 sup. vol. ii. p. 558. (p) Vide sup. vol. ii. p. 562. 
 
 (») As to this allowance, see 48 (y) 37 Geo. 3, c. 91 ; 38 Geo. 3, 
 
 Geo. 3, c. 4, s. 6 ; 7 & 8 Vict. c. 32. c. 1 ; 42 Geo. 3, c. 40 ; 43 Geo. 3,
 
 CHAP. XIII. — OF THE LAWS RELATING TO BANKS. 317 
 
 ment (r), by which it was authorized (so far as its already 
 existing powers might be deemed inadequate to the pur- 
 pose) to extend the circulation of its paper, by establishing 
 in country districts banks of its own, managed by its agents 
 on the spot, while on the other hand it relinquished in part 
 its exclusive privileges, so as to admit (within certain limits, 
 and subject to certain conditions) the introduction of other 
 banking corporations and banking companies exceeding six 
 in number, with power to issue bills or notes, though pay- 
 able on demand, or at less time than six months from the 
 borrowing; which companies have been since commonly 
 denominated joint-stock batiks (s). 
 
 Both these objects were carried into effect by the 7 Geo. 
 IV. c. 46. As to the first it is provided, that it shall be 
 lawful for the said governor and company to authorize any 
 committee or agents to carry on banking in their behalf, at 
 any place in England, and to give them the necessary 
 powers of management and superintendence, and to issue 
 to such agents, or their officers or servants, cash, bills, notes, 
 and other securities ; subject however to a proviso, that 
 this power shall be exercised in such manner as may from 
 time to time be appointed by bye-laws made at a general 
 court, and, in default of such bye-laws, by the governor, 
 deputy governor and directors, or the major part of them ; 
 and also to a proviso, that in any place where banking- 
 shall be so carried on, on behalf of the said governor and 
 company, any promissory note, issued on their account in 
 such place, shall be made payable in coin in such place as 
 well as in London (t). In addition to which enactments, 
 with respect to branch banks, it has been since provided by 
 3 & 4 Will. IV. c. 98, that after 1st August, 1834, all the 
 
 c. 18; 44 Geo. 3, c. 1 ; 54 Geo. 3, & 2 Vict. c. 96, and 7 & 8 Vict 
 
 c. 99; 55 Geo. 3, c. 28; 56 Geo. 3, c. 113, &c. As to joint-stock cora- 
 
 c. 40 ; 58 Geo. 3, c. 37 ; 59 Geo. 3, parries in general, see Bramah v. Ro- 
 
 c. 49. berts, 3 Bing. N. C. 171. Et vide 
 
 (r) Vide 7 Geo. 4, c. 46, ss. 1, 15. sup. p. 134. 
 
 (s) So called also in the title of 1 (<) 7 Geo. 4, c. 46, s. 15.
 
 318 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 Bank of England's promissory notes on demand, which 
 shall be issued at any place in England out of London, 
 where banking shall be carried on on behalf of the Bank 
 of England, shall be made payable at the place where such 
 notes shall be issued. And farther, that the Bank of Eng- 
 land shall not be liable to pay at a branch bank any note 
 of the Bank of England not made specially payable there ; 
 but, on the other hand, shall be bound to pay in London 
 all notes, whether those of the Bank of England itself, or 
 its branches (u). 
 
 As to the introduction of the joint-stock banks, the 
 same statute, 7 Geo. IV. c. 46 (x), provides, that after the 
 passing of that act it shall be lawful for any corporation 
 erected for the purpose of banking, or for any number of 
 persons in co-partnership, though consisting of more than 
 six, to carry on the trade of bankers, in England, and to 
 issue their bills or notes at any places in England exceed- 
 ing sixty-five miles from London, payable on demand, or 
 otherwise, at some place or places specified upon such bills 
 or notes, exceeding sixty-five miles from London, and not 
 elsewhere ( y). But it also enacts as follows : — that before 
 any such corporation or co-partnership begin to issue bills 
 or notes, and also in every year afterwards, an account or 
 return shall be made out and delivered to the stamp office 
 in London (z), to be there registered, setting forth, among 
 other particulars, the names and places of abode of all the 
 members, and of two or more persons being members and 
 resident in England, who shall have been appointed public 
 officers of such corporation or partnership, with their title 
 of office or other description («). Also, that all proceed- 
 ings at law or in equity commenced by such co-partnership 
 against any persons, whether members thereof or other- 
 
 (u) Sects. 4, 6. (y) Sect. 1. 
 
 (i) On the subject of joint-stock (:) As to this return, see Edwards 
 
 banks, see also 1 & 2 Vict. cc. 10, v. Buchanan, 3 B. & Adol. 788 ; Ar- 
 
 96; 2 & 3 Vict. c. 68 ; 3 & 4 Vict. c. mitage v. Hamer, ibid. 793. 
 
 Ill; 5 & 6 Vict. c. 85 ; et vide post, (a) Christie v. Peart, 9 Dowl. P. C. 
 
 p. 323. 291.
 
 CHAP. XIII. OF THE LAWS RELATING TO BANKS. 
 
 19 
 
 wise (J), or commenced by any person, whether members or 
 otherwise, against such co-partnership, shall (c) be brought 
 by or against such public officer as the nominal plaintiff 
 or defendant, by whom such co-partnership shall be repre- 
 sented {d); but that every judgment or decree against its 
 public officer shall have the like effect against the property 
 of the co-partnership and its members, as if such judgment 
 or decree had been against the partnership itself; and that 
 execution upon any judgment against the public officer of 
 such corporation or co-partnership, whether as plaintiff or 
 defendant, may be issued against any member or members 
 for the time being of such corporation or co-partnership ; 
 and in case that shall be ineffectual, then (by leave of the 
 court first obtained) against any person who, though no 
 longer actually a member, was so at the time the contract 
 was entered into, or before such contract was executed, or 
 at the time of the judgment obtained, provided only that he 
 shall not have ceased to be a member for three years (e). 
 
 Since this act, banks may be considered as having be- 
 come subject to the distribution referred to at the outset of 
 the chapter, that is, as consisting either of the Bank of 
 England (including its branches), of joint-stock banks, or 
 of private banks, by the last of which terms are to be un- 
 
 (6) Manners v. Rowley, 10 Sim. 
 471. 
 
 (c) Chapman v. Milvain, 1 I.. M. 
 & P. 209; 5 Exch. Gl. 
 
 (d ) Sect. 9. See Robinson v. 
 Steward, 1 Man. & G. 511 ; Beech 
 t>. Eyre, 5 Man. & G. 415 ; Spiller v. 
 Johnson, 6 Mee. & W. 570; Steward 
 v. Greaves, 10 Mee. & W. 711. 
 
 (e) Sect. 13. As to the cases in 
 which execution may be had under 
 this section, and the mode of pro- 
 ceeding thereon, see Eardley v. Law, 
 12 Ad. & El. 802 ; Ransford v. Bo- 
 sanquet, 2 Q. B. 972 ; Bosanquet v. 
 Woodford, 5 Q. B. 310 ; Philipson v. 
 
 Egremont, 6 Q. B. 587 ; Harvey v. 
 Scott, 1 1 Q. B. 92 ; Cross v. Law, 6 
 Mee. & W. 217; Harwood v. Law, 
 7 Mee. & W. 203 ; Ricketts v. Bow- 
 hay, 3 C. B. 889 ; Field v. Mac- 
 kenzie, 4 C. B. 705 ; 6 C. B. 384 ; 
 Dodgson v. Scott, 2 Exch. 457 ; Bur- 
 mester v. Cropton, 3 Exch. 397 ; 
 Nunn v. Lomer, ib. 471 ; Bank of 
 England v. Johnson, ib. 598; Nunn 
 v. Claxton, ib. 712; Ness v. An- 
 gas, ib. 805 ; Ness v. Armstrong, 
 4 Exch. 21^ Ness v. Bertram, ib. 
 194 ; Bosanquet v. Shortridge, ib. 
 699.
 
 320 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 derstood all banking establishments distinct from the Bank 
 of England, and not registered as joint-stock banks. 
 
 The Bank Charter had been originally limited to deter- 
 mine upon twelve months' notice after 1st August, 1705; 
 but the period has been since from time to time enlarged 
 by many successive acts of parliament (f). By one of 
 these, already alluded to, the statute 3 & 4 Will. IV. c. 98, 
 the former privileges are confirmed, subject to the modifi- 
 cation they had received ; but it is declared that any cor- 
 poration or partnership, though consisting of more than 
 six, may carry on banking in London, or within sixty-five 
 miles thereof, provided that it do not borrow, owe, or take 
 up in England any money on their bills or notes payable 
 on demand, or at less than six months from the borrow- 
 ing. And the act reserves a power to any corporation or 
 partnership carrying on business beyond the radius of 
 sixty-five miles, and not having any house of business or 
 establishment as bankers in London or within the radius, 
 to make and issue their bills and notes, payable on demand 
 or otherwise, at the place where issued (being beyond the 
 radius), and also in London ; and to have an agent or 
 agents in London, or at any other place at which such bills 
 or notes shall be made payable, for the purpose of payment 
 only (g). But it is provided that no such bill or note shall 
 be for any sum less than 51., or be re-issued in London or 
 within sixty-five miles thereof (A). 
 
 This act also contains the following regulation : that 
 after the 1st August, 1834, unless and until the legislature 
 shall otherwise direct, tender of a note of the Bank of 
 England, expressed to be payable to bearer on demand, 
 shall be a legal tender to the amount therein expressed, for 
 all sums above 51., so long as such bank shall continue to 
 
 (/) See the following acts: 3 7 Geo. 4, c. 46 ; 3 & 4 Will. 4, c. 98 ; 
 
 Geo. I, c. 8 ; 15 Geo. 2, c. 13 ; 24 7 & 8 Vict. c. $2; 
 
 Geo. 2, c. 4; 4 Geo. 3, c. 25; 21 ( g) 3, & 4 Will. 4, c. 98, s. 2. See 
 
 Geo. 3, c. 60 ; 39 & 40 Geo. 3, c. 28 ; also 3 & 4 Will. 4, c. 83. 
 
 55 Geo. 3, c. 16 ; 56 Geo. 3, c. 96 :, (h) 3 & 4 Will. 4, c.98, s. I,
 
 CHAP. XIII. OF THE LAWS RELATING TO BANKS. 321 
 
 pay, on demand, their notes in legal coin ; but subject to a 
 proviso, that it shall not be a legal tender by the Bank itself 
 or its branches (i). 
 
 Such was the history of the law relative to banks, prior 
 to the passing of the act of 7 & 8 Vict. c. 32, for farther 
 continuance of the Bank Charter. But by that statute 
 great changes have been introduced. For it lays down a 
 new system of regulation affecting not only the Bank of 
 England, but all bankers whatever; its main object being 
 to place the general circulation of the country upon a 
 sounder footing, and to prevent as much as possible those 
 fluctuations in the currency, to which many of our com- 
 mercial embarrassments have been ascribed. 
 
 First, then, as to the Bank of England. This act con- 
 tinues its charter or exclusive privilege (subject to the mo- 
 difications therein contained), but makes it determinable 
 upon twelve months' notice to be given after 1st August, 
 1855, and upon re-payment of certain debts therein par- 
 ticularized. It also provides that the issue of its notes 
 payable on demand shall hereafter be kept distinct from 
 its general banking business; that it shall, on 31st August, 
 1844, transfer to its "issue department" securities to the 
 value of 14,000,000/. (including the debt due to it by the 
 public), and so much of its gold coin, and gold and sil- 
 ver (k) bullion, as shall not be required for its banking 
 department ; that thereupon there shall be delivered out 
 of the issue department into the banking department, such 
 an amount of Bank of England notes as, together with 
 those in circulation, shall be equal to the aggregate amount 
 of the securities, coin, and bullion so transferred to the issue 
 department ; that the whole amount of its notes in circula- 
 tion shall be deemed to be issued on the credit of such 
 securities, coin and bullion ; that the amount of such secu- 
 rities shall not be increased, but may be diminished as from 
 
 (i) Sect. (j. As to tender, vide exceed one-fourth of the gold coin 
 sup. vol. ii. p. 509. and bullion. 
 
 (k) The silver bullion is not to 
 VOL. III. Y
 
 322 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 time to time occasion may require; and that, after such 
 transfer to its issue department, it shall not be lawful for 
 the Governor and Company to issue Bank of England 
 notes, either into its banking department, or to any per- 
 son whatever, save in exchange for other Bank of England 
 notes, or gold coin, or gold or silver bullion, or securities 
 taken by the issue department under the provisions of the 
 act. And farther, that an account of the notes issued by 
 the issue department, and of the securities, gold coin and 
 gold and silver bullion therein, and also of the capital stock 
 and deposits, money and securities in the banking depart- 
 ment, shall be transmitted weekly to the commissioners of 
 stamps and taxes, in such form as the act prescribes, and 
 published by them in the London Gazette. And by the 
 same statute it is also provided, that all persons shall be 
 entitled to demand from the issue department Bank of 
 England notes in exchange for gold bullion, at the rate of 
 3/. 175. 9d. per ounce of standard gold (I). 
 
 As to banks of issue (other than the Bank of England) : 
 the act provides, that in future it shall not be lawful for any 
 banker to draw, accept, make, or issue any bill or note, or 
 engagement for the payment of money, payable to bearer 
 on demand, or to borrow, owe, or take up any money on 
 his bills or notes payable to bearer on demand, — except 
 that it shall be lawful for any banker, who on the 6th May, 
 1844, was carrying on the business of a banker, and was 
 then lawfully issuing his own notes, to continue to issue 
 them. But if he become bankrupt, or cease to carry on 
 the business, or discontinue the issue of notes, either by 
 agreement with the Bank of England, or otherwise, his 
 privilege in this respect is at an end, and incapable of re- 
 vival. It is also provided, that he shall not hereafter have 
 in circulation a greater amount of notes than the average 
 
 (l) Sect. 4. As to the standard, notes payable on demand. See, as 
 
 vide sup. vol. ii. p. 510. By sect. 7, to stamps on bankers' notes in ge- 
 
 the Bank of England is discharged neral, 55 Geo. 3, c. 184; 9 Geo. 4, 
 
 from liability to stamp duty on their c. 23.
 
 CHAP. XIII. — OF TIIE LAWS RELATING TO BANKS. 323 
 
 amount which he had circulated before the act ; such aver- 
 age to be ascertained in such manner as the act provides, 
 And farther, that if any such banker as last aforesaid shall 
 cease to issue, it shall be lawful for her Majesty in council, 
 upon application of the Bank of England, to authorize the 
 Bank of England to increase the 14,000,000Z. of securities 
 in the issue department, in the proportion of two-thirds of 
 the amount so withdrawn from circulation. 
 
 And lastly, as to banks in general (other than the Bank 
 of England) : that every banker shall, on the 1st of January 
 in every year, or within fifteen days after, make a return to 
 the commissioners of stamps and taxes, of his name, resi- 
 dence and occupation, and that of each of his partners, and 
 the name of his firm, and the place where the business is 
 carried on; and the commissioners shall, on or before 1st 
 March in every year, publish the same in some newspaper 
 circulating either in the town or county. 
 
 And that for the future it shall be lawful for all partner- 
 ships, though exceeding six in number, carrying on the 
 business of banking in London, or within sixty-five miles 
 thereof, to draw, accept, or indorse bills of exchange not 
 being payable to bearer on demand, any thing in the act of 
 3 & 4 Will. IV. c. 98, to the contrary notwithstanding (ni). 
 
 By another act, 7 & 8 Vict. c. 113, new provisions are 
 also made for the regulation of joint-stock banks (n). Be- 
 sides others, which cannot be conveniently particularized 
 within our present limits, it is enacted, that it shall not 
 be lawful for any company of more than six persons, under 
 an agreement of co-partnership entered into on or after 6th 
 May, 1844, to carry on business in England, unless the 
 deed of partnership shall contain such particulars as in 
 the act set forth ; nor unless the shares have been all sub- 
 scribed for, the deed of partnership executed by all the 
 shareholders, and the half of each share paid up ; nor un- 
 
 (m) As to the recovery of penal- (h) As to these, vide sup. pp. 317, 
 
 ties under the provisions of 7 & 8 318. 
 Vict. c. 32, see 8 & 9 Vict. c. 76, s. 5. 
 
 Y. 2
 
 324 BK.IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 less it shall have obtained from her Majesty letters-patent 
 of incorporation, which she is empowered to grant (for a 
 term of years not exceeding twenty) upon petition, such 
 petition being first referred to the Board of Trade and a 
 report made therefrom • nor unless a memorial shall have 
 been filed with the commissioners of stamps, containing 
 such particulars relative to such companies as in the act 
 prescribed, which memorial is to be annually renewed and 
 registered. And as to the effect of such incorporation, it 
 is provided, that it shall be without prejudice to the per- 
 sonal liability of individual shareholders, against whom 
 execution may be taken out by leave of the court, pro- 
 vided an execution against the corporate property has been 
 found to be ineffectual, and provided the individual pro- 
 ceeded against had not ceased to be a shareholder for three 
 years before judgment was obtained ; but that, on the other 
 hand, every shareholder may, subject to the regulations 
 in the act contained, and to the provisions in the deed of 
 settlement, freely sell and transfer his shares in the com- 
 pany (o). 
 
 As to banking partnerships of more than six persons, 
 which were established before the 6th May, 1844, they re- 
 main, until they apply for such letters-patent as aforesaid, 
 subject to the provisions of the former law relative to joint- 
 stock banks : with this additional provision, however, that 
 such partnerships, established on the 6th May, 1844, for the 
 purpose of carrying on the business of bankers within sixty- 
 five miles of London, and not -within the provisions of that 
 act, shall have the same powers and privileges of suing 
 and being sued in the name of a public officer, and be 
 subject to the same regulations for enforcing judgments 
 obtained in such suits, as belong to companies carrying on 
 business beyond that radius under 7 Geo. IV. c. 46 {})). 
 
 (o) As to the distinctions between partnerships, see Davison v. Farmer, 
 
 the liability of the shareholders of 20 L. J. (Exch.), 177 ; Powles v. 
 
 joint-stock banking companies and Page, 3 C. B. 16. 
 
 that of the members of ordinary co- (p) Vide sup. p. 318.
 
 CHAP. XIII. — OF THE LAWS RELATING TO BANKS. 325 
 
 In conclusion, we may remark, that companies, or part- 
 nerships of more than six persons, carrying on the trade of 
 bankers in England, are within the acts relative to the 
 bankruptcy and winding-up of joint-stock companies (q). 
 
 (7) See 7 & 8 Vict. c. Ill, s. 1; the bankruptcy and winding-up of 
 c. 113, s. 48 ; 11 & 12 Vict. c. 45, s. joint-stock companies, vide sup. vol. 
 1; 12 & 13 Vict. c. 108, s. 1. As to ii. p. 142 ; vol. iii. p. 135.
 
 326 BK.IV. OF PUBLIC FIGHTS. FT. iit. social economy. 
 
 CHAPTER XIV. 
 
 OF THE LAWS RELATING TO THE REGISTRATION OF 
 BIRTHS, DEATHS, AND MARRIAGES. 
 
 The registration of births, deaths and marriages, a practice 
 so important in every country for the authentication of the 
 civil rights of individuals, and the promotion of many ob- 
 jects connected with the sicence of political economy, has 
 been but very recently introduced among us ; though an- 
 other species of registration, having reference to baptisms, 
 burials, and marriages, had been long in use, and is, in re- 
 gard to the two former ceremonies, still in force. It is to 
 this more antient method, which (as connected with the 
 offices of the church, and originally directed by the canon 
 law,) may be termed the ecclesiastical, that we shall first 
 advert, and our attention will next be directed to the new 
 method of registering births, deaths and marriages, which 
 may be termed, by way of distinction from the former, the 
 civil. 
 
 I. As to the ecclesiastical mode of registration. 
 
 This system is said to be coeval with the Protestant 
 Church ; having been first established by Cromwell, Lord 
 Vicegerent, in the thirtieth year of Henry the eighth, 
 1538 («). Various enactments for its confirmation were 
 passed in succeeding reigns ; and by a canon (b) in the 
 time of James the first, still in force, and by several statutes, 
 particularly 52 Geo. III. c. 146, farther provisions were 
 made for its regulation (c). 
 
 (o) Godolph. Abridg. 144. (c) See also 6 & 7 Will. 3, c. 6, 
 
 (b) Canon 70, 1 Jac. 1, 16G7. s. 24, and the Marriage Act, 4 Geo. 4,
 
 CH. XIV. — OF THE LAWS RELATING TO REGISTRATION. 327 
 
 This statute, so far as it relates to the registry of mar- 
 riages, was repealed (d) on the introduction of the civil 
 method, hereafter to be described, but still remains in force 
 as regards baptisms and burials, and provides, that registers 
 of public and private baptisms and burials solemnized ac- 
 cording to the rites of the established church, in any parish 
 or chapelry in England, shall be made (within seven days 
 after the celebration of the same) (e) by the rector, vicar, 
 curate, or other officiating minister of the parish, in books 
 of parchment or durable paper, wherein such particulars 
 shall be inscribed, and in such form and manner as by the 
 schedule to the act annexed is set forth (/). 
 
 In cases where the baptism or burial is performed in any 
 place other than the parish church or churchyard, by a 
 clergyman not being the rector, vicar or curate of the 
 parish, he must transmit on that or the following day a 
 certificate that he has performed such ceremony, to the 
 minister of the parish, who shall duly enter it among the 
 parish registers (g). 
 
 The books wherein such entries are made are to be care- 
 fully preserved by the officiating minister in a dry well- 
 painted iron chest, and are not to be removed therefrom 
 except for the purpose of making such entries, or other 
 such specific purposes as mentioned in the act (h). 
 
 An annual copy of the contents of these register books, 
 certified by the minister, is to be transmitted by the church- 
 wardens, by post, to the registrar of the diocese (i), who is 
 bound to make report to the bishop whether he has duly 
 received such copy or not (j) ; and alphabetical lists of the 
 entries are directed to be made out by the registrar, which 
 
 c. 76 ; the last of which was repealed, (h) Sect. 5. 
 
 as far as regards the subject of re- (i) The registrar of every vicar - 
 
 gistration and marriages, by 6 & 7 general or diocese has also, by 7 & 8 
 
 Will. 4, c. 86, s. 1. Vict. c. 68, s. 2, to transmit a yearly 
 
 (d) 6 & 7 Will. 4, c. 86, s. 1. report of his fees, &c. to a principal 
 
 (e) 52 Geo. 3, c. 146, s. 3. secretary of state. 
 (/) Sect. 1. (j) Sects. 7, 8. 
 (g) Sect. 4.
 
 328 bk. iv. or puulic rights. — pt. hi. social economy. 
 
 are to be open to public search at reasonable times upon 
 payment of certain fees (k). 
 
 It is farther enacted, that any person who knowingly 
 inserts any false entry into these registers or the certified 
 copies, or who forges any part thereof, or wilfully destroys 
 the same, or knowingly certifies any fraudulent or defective 
 copy, shall be guilty of felony, and subject to transportation 
 for fourteen years (I). 
 
 II. Of the civil system of registration. 
 
 The above is a succinct account of the ecclesiastical and 
 more ancient method of registration ; but the entries there- 
 by obtained were found in fact to be often both incomplete 
 and inaccurate, and otherwise inadequate to the purposes 
 designed, being (among other objections) commemorative 
 not of births and deaths generally, but only of such as are 
 attended with the proper ceremonies of the church. Ac- 
 cordingly, on the 28th March, 1833, a committee of the 
 House of Commons was appointed to consider and report 
 upon " the general state of parochial registers, and the 
 " laws relating to them, and on a general registration of 
 " births, baptisms, deaths, and marriages in England and 
 " Wales ;" and the report of this body led to the intro- 
 duction (wholly independent of and co-existent with the 
 method for registering baptisms and burials above-men- 
 tioned) of the system for registering births, marriages and 
 deaths, which we are about to describe. 
 
 The statutes which contain the law upon this subject are 
 the 6 & 7 Will. IV. c. 86 (considered as one act with the 
 preceding chapter of the same year, intituled " An Act for 
 Marriages in England" (m)); 7 Will. IV. & 1 Vict. c. 22 ; 
 and 3 & 4 Vict. c. 72. 
 
 By these acts the guardians of every poor law union 
 throughout England and Wales (or the commissioners for 
 
 (k) Sect. 12. ( m ) 6 & 7 Will. 4, c. 85, s. 4k As 
 
 (/) Sect. 14. to this act, vide sup. vol. ii. p. 245.
 
 en. xiv. — of the laws relating to registration. 329 
 
 administering the laws for the relief of the poor in the case 
 of places not possessing a board of guardians (o)) are di- 
 rected to divide the union or parish, of which they have 
 the care, into as many districts as they shall think proper 
 (subject, in case of a division by guardians, to the approval 
 of the registrar-general hereinafter mentioned), each of 
 which districts is to be called by a distinct name, and shall 
 possess a registrar, who shall be resident therein (p). 
 
 The registrars of each union are subjected to the super- 
 vision of their " superintendent registrar," an office to be 
 filled as of right (in case of his due qualification and ac- 
 ceptance) by the clerk to the guardians of the union, during 
 the pleasure of the registrar-general (q). 
 
 These " superintending registrars" are in their turn sub- 
 jected to the authority of an officer, to be appointed under 
 the great seal, and to hold office during the pleasure of the 
 crown, called " the registrar-general of births, deaths, and 
 marriages in England" (r), to whom, subject to such regu- 
 lations as shall be made by a principal secretary of state (s), 
 the general superintendence of the whole system and the 
 practical details (where no specific directions are given by 
 the acts) are entrusted. 
 
 Provision is also made by the acts for the establishment 
 of a proper office, to be called the " General Register 
 Office"(0; and register offices for each union (to be placed 
 under the respective superintendents), for the preservation 
 and safe custody of the registers when collected (u) ; and 
 they contain regulations as to the uniform construction and 
 durable materials of the books wherein the entries are to be 
 made (v). 
 
 Such is an outline of the machinery of the system — the 
 
 (o) Sect. 10. may be established in any place or 
 
 (p) 6 & 7 Will. 4, c. 86, ss. 7, 10, places that may appear to the com- 
 
 11, 16. missioners of the treasury to be fit 
 
 ((]) Ibid. s. 7. and convenient. 
 
 (r) Sect. 2. («) Sect. 9. 
 
 (s) Sect. 5. (>;) Sect. 17. 
 (t) By 15 & 16 Vict. c. 25, this
 
 330 BK. IV. OF PUBLIC RIGHTS. — PT. III. SOCIAL ECONOMY. 
 
 practical working out of which in the first instance depends, 
 it will be seen, upon the registrars. 
 
 Their duties are threefold. 
 
 1. As to births. Every registrar is authorized and re- 
 quired to inform himself carefully of every birth which 
 shall happen in his district, and to learn and register, as 
 soon after the event as may conveniently be done, such 
 particulars as are required by the schedule annexed to 
 the 6 & 7 Will. IV. c. 86, to be registered touching such 
 birth (.r) : and the father or mother of any child born, or 
 the occupier of any house in England wherein any child 
 shall be born, may, within forty-two days after the day of 
 such birth, give notice thereof to the registrar of the dis- 
 trict ( y) ; and within the same period, the father or mother 
 of any child born in England, or, in case of their death or 
 other inability, the occupier of the house, shall, upon being 
 requested so to do (z), give information, to the best of his 
 or her knowledge and belief, of the several particulars re- 
 quired to be known and registered touching the birth of 
 such child (a). 
 
 After the expiration of the above-mentioned period of 
 forty-two days, registration may still take place ; but in 
 this case a solemn declaration as to the truth of the parti- 
 culars required must be made by the father or guardian, or 
 some person present at the birth (b); and the entry of the 
 birth must be signed not only by the registrar but the su- 
 perintendent registrar ; and a fee is payable to each of 
 these officers by the person requiring the registry to be 
 made (c). And after the expiration of six calendar months 
 from the time of the birth, no registry thereof can upon 
 any pretence be made, except in the case of a child born at 
 sea (d). 
 
 (x) Sect. 18. (a) Sect. 20. 
 
 (v) Sect. 19. (6) Sect. 22. 
 
 (2) Upon pain of being liable to (r) Ibid, 
 
 an indictment for a misdemeanor. (d) Sect. 23. 
 R. v. Price, 11 Ad. & El. 727.
 
 CH. XIV. OF THE LAWS RELATING TO REGISTRATION. 331 
 
 It is also to be observed, that on the registry of a bap- 
 tized child, the baptismal name is one of the particulars 
 required to be entered ; and that, where the child registered 
 is not yet baptized, there is a provision authorizing the 
 baptismal name to be added to the other particulars, at any 
 time within seven days from the baptism, provided that 
 ceremony has been performed within six calendar months 
 after the registry took place (e). 
 
 The acts also contain these farther provisions, — that in 
 case of the exposure of any new-born child, the overseers 
 of the poor shall forthwith give notice thereof, and of the 
 place where the child was found, to the registrar (f) ; and 
 in the case of a birth at sea, information of the particulars 
 required to be registered are to be forthwith minuted by 
 the commander of the vessel, and, on his arrival at any port 
 in the united kingdom, certified by him to the registrar- 
 general (g). 
 
 2ndly. As to marriages. — The forms as to the registra- 
 tion of marriages were incidentally described in a former 
 part of the work (h), so far as to supersede the necessity of 
 now recurring to them ; and it therefore only remains to 
 advert to the duties of the registrar — 
 
 3rdly. As to deaths. — Every registrar is authoiized and 
 required to inform himself carefully of every death which 
 shall happen in his district, and learn and register, as soon 
 after the event as conveniently may be done, such parti- 
 culars concerning the same as in the schedule before men- 
 tioned contained (i) : and the occupier of every house in 
 England, in which any death shall happen, may, within five 
 days after the day of such death, give notice thereof to the 
 registrar of the district^') ; and some person present at the 
 death, or in attendance during the last illness of any per- 
 son dying in England, or in default of all such persons, the 
 occupier of the house in which such death has happened 
 
 (e) Sect. 24. (h) Vide sup. vol. ii. p. 245. 
 
 (/) Sect. 19. (i) Sect. 18. 
 
 (g) Sect. 21. (j) Sect. 19.
 
 332 BK. IV. OF PUBLIC RIGHTS PT. III. SOCIAL ECONOMY. 
 
 (or if the occupier be the person dying, then some inmate) 
 shall, within eight days after the day of the death, give in- 
 formation, upon being requested so to do, to the registrar, 
 according to the best of his or her knowledge and belief, 
 touching such particulars as are required to be known and 
 registered touching the death ; and in the case of an in- 
 quest upon the body, such information is to be conveyed 
 to the registrar by the coroner before whom such inquest 
 is held (k). 
 
 And it is farther enacted, that, upon entering any death, 
 the registrar is to deliver to the undertaker, or other person 
 having charge of the funeral, a certificate of the due regis- 
 tration of the same, which is to be delivered over by him 
 to the minister ; provided always, that in case of inquests 
 the coroner may order the body to be buried, if he think 
 fit, before registry ; and that every person who shall per- 
 form the service for the burial of a dead body for which no 
 certificate shall have been delivered as aforesaid, either by 
 the registrar or coroner, and who shall not within seven 
 days give notice thereof to the registrar, shall incur a pecu- 
 niary penalty (I). 
 
 Also, that if any dead body shall be found at any time 
 exposed, the coroner shall forthwith give notice thereof, 
 and of the place where it was found, to the registrar (m). 
 And in the case of the death of an English subject at sea 
 on board of a British vessel, the commander shall forthwith 
 make a minute of the several particulars required to be in- 
 serted in the register, and the name of the vessel ; and on 
 arrival of the vessel in the united kingdom, or by an 
 earlier opportunity if it occurs, send a certificate of such 
 minute to the registrar-general (n). 
 
 And farther, that, four times in every year, each district 
 registrar shall deliver to his superintendent a certified copy 
 of all the entries made by him (o), — and finally the register 
 
 (k) Sect. 25. (nj Sect. 26. 
 
 (/) Sect. 27. (o) Sect. 32. 
 
 (m) Sect. 19.
 
 CH. XIV. — OF THE LAWS RELATING TO REGISTRATION. 333 
 
 itself, upon the book being filled ; and that the superin- 
 tendent, at the same intervals, shall transmit the same to 
 the registrar-general (/?). 
 
 The duties of this last-mentioned officer, into whose 
 hands the documents thus ultimately fall, consist, in addi- 
 tion to the general supervision of the working of the whole 
 system, in examining, arranging and indexing the certified 
 copies so sent, and in compiling abstracts of their contents, 
 to be transmitted once a year to a principal secretary of 
 state, by whom such abstracts are afterwards to be laid 
 before parliament (q). 
 
 The abstracts which have been in fact delivered by the 
 registrar-general, in pursuance of the duty last mentioned, 
 are the more valuable from its having been required (as a 
 matter of official regulation) that, in the registers of deaths, 
 a medical statement in each instance of the cause of death 
 should be annexed, in addition to the particulars required 
 by the statute. This part of the information obtained under 
 the new system, though sufficient time has yet scarcely 
 elapsed to allow us to form a very accurate judgment of 
 the extent of its utility, seems calculated to advance, in a 
 very important degree, the interests of mankind, by fur- 
 nishing accurate data, upon a large scale, to those who are 
 engaged in nosological inquiries, or in endeavours to im- 
 prove the sanatory condition of the labouring classes. 
 
 Before we conclude this chapter, we may remark, that, at 
 the time of the introduction of the new system of registra- 
 tion, certain commissioners were appointed for inquiring 
 into the state and authenticity of any registers (other than 
 parochial) which at that time existed. This commission, 
 in the year 1840, had succeeded in discovering about 7000 
 which they deemed authentic ; and the documents so dis- 
 covered were, by 3 & 4 Vict. c. 92, placed under the care 
 of the registrar-general, together with records of the mar- 
 riages and baptisms heretofore performed in the Fleet and 
 King's Bench prisons, and at other irregular places. And 
 (p) Sect. 34. (7) Sect. 6.
 
 334 BK. IV. OF PUBLIC RIGHTS. PT. III. SOCIAL ECONOMY. 
 
 the same statute provides that all registers and records de- 
 posited in the general register office by virtue of that act, 
 except such registers as therein particularized of marriages 
 and baptisms at the Fleet and elsewhere, shall be deemed 
 to be in legal custody, and shall be receivable in evidence 
 in all courts of justice, subject to the provisions of that 
 act (r). 
 
 (r) 3 & 4 Vict. c. 92, s. 6.
 
 ( 335 ) 
 
 BOOK V. 
 
 OF CIVIL INJURIES. 
 
 CHAPTER I. 
 
 OF THE REDRESS OF CIVIL INJURIES BY THE MERE 
 ACT OF THE PARTIES. 
 
 At the opening of these Commentaries, the objects of muni- 
 cipal law were considered as consisting in the establishment 
 and maintenance of the rights severally due to the different 
 members of the community ; rights having been previously 
 defined as the liberties and advantages guaranteed by the 
 implied contract of society to each individual, in return for 
 his submission to those laws by which the same rights are 
 secured to his fellow citizens (a). And this occasioned the 
 distribution of our laws into two portions ; one relating to 
 rights, and the other to violation of rights, or (in more 
 ordinary language) wrongs. 
 
 In the consideration of the first of these subjects, rights 
 were distinguished into four kinds, viz. 1, Personal rights; 
 2, Rights of property ; 3, Rights in private relations ; 4, 
 Public rights ; which have respectively formed the subject 
 of the four preceding Books of these Commentaries ; and 
 we are now therefore to proceed to the examination of 
 wrongs, an inquiry evidently posterior in its nature to the 
 former, as right is the positive idea of which wrong is the 
 
 (a) Vide sup. vol. i. pp. 29, 130.
 
 336 BK. V. OF CIVIL INJURIES. 
 
 mere privation ; and the two subjects stand in the same 
 connexion with each other as jus with injuria, or fas with 
 nefas (b). 
 
 Wrongs (as we had also occasion before to remark (c) ) 
 are divisible into two sorts: civil injuries and crimes. The 
 former are the violations of private or public rights, when 
 considered in reference to the injury sustained by the indi- 
 vidual, and consequently as subjects for civil redress or com- 
 pensation ; the latter are the violations of private or public 
 rights, when considered in reference to their evil tendency 
 as regards the community at large, and accordingly visited 
 with punishment (d). To investigate the first of these spe- 
 cies of wrongs, with their legal remedies, or modes of re- 
 dress, will be our employment in the present Book, and the 
 other species will be reserved till the- next or concluding 
 volume. 
 
 [The more effectually to accomplish the redress of civil 
 injuries, courts of justice are instituted in every civilized 
 society, in order to protect the weak from the insults of 
 the stronger, by expounding and enforcing those laws by 
 which rights are defined, and wrongs prohibited. This 
 remedy is therefore principally to be sought by application 
 to these courts of justice ; that is, by civil suit or action. 
 For which reason our chief employment in this volume will 
 be to consider the redress of private wrongs, by suit or 
 action in courts. But as there are certain injuries of such 
 a nature, that some of them permit, and others require, a 
 
 (b) 3 Bl. Com. 2. " as a community."— 3 Bl. Com. 2 
 
 (c) Vide sup. vol. i. p. 133. But there is an inaccuracy in this 
 ((/) According to Blackstone, "the form of definition. It makes the 
 
 " former are an infringement or pri- difference depend on the natnre of 
 
 " vation of the private or civil rights the right violated. But it is clear 
 
 "belonging to individuals, consi- that a violation of the same right will 
 
 " dered as individuals. The latter sometimes amount to a civil injury, 
 
 " are a breach and violation of pub- and sometimes to a crime, as in case 
 
 " lie rights and duties which affect of a battery. 
 " the whole community, considered
 
 CHAP. I. OF REDRESS BY ACT OF PARTIES. 337 
 
 [more speedy remedy, than can be had in the ordinary 
 forms of justice, there is allowed in those cases an extra- 
 judicial or eccentrical kind of remedy; of which we shall 
 first of all treat, before we consider the several remedies 
 by suit : and, to that end, shall distribute the redress of 
 private wrongs into three several species ; first, that which 
 is obtained by the mere act of the parties themselves ; 
 secondly, that which is effected by the mere act and ope- 
 ration of law ; and, thirdly, that which arises from suit 
 or action in courts, which consists in a conjunction of the 
 other two, the act of the parties co-operating with the act 
 of law. 
 
 And, first, of that redress of private injuries, which is 
 obtained by the mere act of the parties. This is of two 
 sorts ; first, that which arises from the act of the injured 
 party only ; and, secondly, that which arises from the joint 
 act of all the parties together ; both of which we shall con- 
 sider in their order. 
 
 Of the first sort, or that which arises from the sole act 
 of the injured party, is, 
 
 I. The defence of one's self, or the mutual and reciprocal 
 defence of such as stand in the relations of husband and 
 wife, parent and child, master and servant. In these cases, 
 if the party himself, or any of these his relations, be forcibly 
 attacked in his person or property, it is lawful for him to 
 repel force by force ; and the breach of peace which hap- 
 pens, is chargeable upon him only who began the affray (e). 
 For the law, in this case, respects the passions of the human 
 mind, and when external violence is offered to a man him- 
 self, or those to whom he bears a near connexion, makes it 
 lawful in him to do himself that immediate justice, to which 
 he is prompted by nature, and which no prudential motives 
 
 (<?) 2 Roll. Abr. 546 ; 1 Hawk. P. that on the master's right to defend 
 
 C. 131. But see Bac. Abr. Waster the servant there has been a differ- 
 
 and Servant (P), where it is observed ence of opinion. 
 
 VOL. III. Z
 
 338 BOOK V. OF CIVIL INJURIES. 
 
 [are strong enough to restrain. It considers, that the future 
 process of law is by no means an adequate remedy for in- 
 juries accompanied with force ; since it is impossible to 
 say to what wanton lengths of rapine or cruelty outrages 
 of this sort might be carried, unless it were permitted a 
 man immediately to oppose one violence with another. 
 Self-defence, therefore, as it is justly called the primary law 
 of nature, so it is not, neither can it be in fact, taken away 
 by the law of society. In the English law particularly, it 
 is held an excuse for breaches of the peace, nay, even for 
 homicide itself (f); but care must be taken that the re- 
 sistance does not exceed the bounds of mere defence and 
 prevention; for then the defender would himself become 
 an aggressor. 
 
 A, II. Recaption or reprisal is another species of remedy 
 by the mere act of the party injured. This happens when 
 any one hath deprived another of his property in goods or 
 chattels personal, or wrongfully detains one's wife, child, or 
 servant; in which case the owner of the goods, and the hus- 
 band, parent, or master, may lawfully claim and retake them, 
 wherever he happens to find them ; so it be not in a riotous 
 manner, or attended with a breach of the peace. The rea- 
 son for this is obvious, since it may frequently happen that 
 the owner may have this only opportunity of doing himself 
 justice : his goods may be afterwards conveyed away or 
 destroyed, and his wife, children, or servants, concealed or 
 carried out of his reach, if he had no speedier remedy than 
 the ordinary process of law. If, therefore, he can so con- 
 trive it as to gain possession of his property again, without 
 force or terror, the law favours and will justify his proceed- 
 ing. But as the public peace is a superior consideration 
 to any one man's private property ; and as, if individuals 
 were once allowed to use private force as a remedy for 
 private injuries, all social justice must cease, the strong 
 
 (/) 1 Hale, P. C. 485, 486.
 
 CHAP. I. OF REDRESS BY ACT OF PARTIES. 339 
 
 [would give law to the weak, and every man would revert 
 to a state of nature ; for these reasons it is provided, that 
 this natural right of recaption shall never be exerted, where 
 such exertion must occasion strife and bodily contention, 
 or endanger the peace of society. If, for instance, my 
 horse is taken away, and I find him in a common, a fair, 
 or a public inn, I may lawfully seize him to my own use : 
 but I cannot justify breaking open a private stable, or en- 
 tering on the grounds of a third person to take him, except 
 he be feloniously stolen (h) ; but must have recourse to an 
 action at law. >yC 
 
 III. As recaption is a remedy given to the party him- 
 self, for an injury to his personal property, so, thirdly, a 
 remedy of the same kind for injuries to real property, is 
 by entry on lands, when another person without any right 
 has taken possession thereof.] In this case (which depends 
 in some measure on like reasons with the former), [the 
 party entitled may make a formal but peaceable entry (i) 
 on the lands, declaring that thereby he takes possession, 
 which notorious act of ownership is equivalent to a feodal 
 investiture by the lord ; or he may enter on any part of it 
 in the same county, declaring it to be in the name of the 
 whole (/) ; but if it lies in different counties, he must make 
 different entries, for the notoriety of such entry or claim to 
 the pares or freeholders of Westmoreland is not any noto- 
 riety to the pares or freeholders of Sussex. Also, if there 
 be two disseisors, the party disseised must make his entry 
 on both, or if one disseisor has conveyed the lands with 
 livery to two distinct feoffees, entry must be made on 
 both (k) ; for as their seisin is distinct, so also must be the 
 act which divests that seisin.] But no entry can in the 
 
 (/i) Higginst). Andrews, 2 Roll. R. entry accrues, vide 3 & 4 Will. 4, 
 
 55, 56 ; Masters and Powlie's case, c. 27. Et vide post, bk. v. c. 9. 
 
 ibid. 208 ; 2 Roll. Abr. 565, 566. (j) Co. Litt. 417. 
 
 (i) As to the time within which an (A.) Ibid. 252. 
 entry may be made, after the right of 
 
 z. 2 
 
 s-
 
 340 BOOK V. OF CIVIL INJURIES. 
 
 nature of things be made on hereditaments incorporeal (I) ; 
 and in every case where this remedy is available, it [must 
 be pursued in a peaceable and easy manner ; and not with 
 force or strong hand (m). For, if one turns or keeps another 
 out of possession forcibly, this is an injury of both a civil 
 and a criminal nature. The civil is remedied by immediate 
 restitution ; which puts the antient possessor in statu quo ; 
 the criminal injury or public wrong, by breach of the king's 
 peace, is punished by fine to the king.] For by 5 Rich. II. 
 st. 1, c. 8, 15 Rich. II. c. 8, and 8 Hen. VI. c. 9, forcible 
 entries are prohibited ; [and by the last of these statutes, 
 upon complaint made to any justice of the peace, of a for- 
 cible entry, with strong hand, on lands or tenements ; or a 
 forcible detainer after a peaceable entry ; he shall try the 
 truth of the complaint by jury, and upon force found, shall 
 restore the possession to the party so put out : and in such 
 case, or if any alienation be made to defraud the possessor 
 of his right (which is likewise declared to be absolutely 
 void), the offender shall forfeit, for the force found, treble 
 damages to the party grieved, and make fine and ransom 
 to the king. But this, by a subsequent clause in the same 
 statute, enforced by 31 Eliz. c. 11, does not extend to such 
 as endeavour to keep possession manu forti after three 
 years' peaceable enjoyment of either themselves, their an- 
 cestors, or those under whom they claim (n).~\ 
 
 IV. [A fourth species of remedy by the mere act of the 
 party injured, is the abatement, or removal, of nuisances. 
 What nuisances are, and their several species, we shall find 
 a more proper place to inquire under some of the subse- 
 quent divisions (o). At present we shall only observe, that 
 whatsoever unlawfully annoys or doth damage to another 
 
 (/) 3 Bla. Com. 206. c . 15 ; l\. v. Wilson, 3 Ad. & El. 817 ; 
 
 (wi) Newton n. Harland, 1 Man. & R. v. Harland, ibid. 826; Newton v. 
 
 G. 644. Harland, nbi sup. 
 
 (n) As to forcible entry and de- (..) Vide post, bk. v. c. 8, s. 3. 
 
 tainer, see also 4 Inst. 176 ; 21 Jac. 1,
 
 CHAP. I. — OF REDRESS BY ACT OF PARTIES. 341 
 
 [is a nuisance ; and such nuisance may be abated, that is, 
 taken away or removed, by the party aggrieved thereby, so 
 as he commits no riot in the doing of it (/>),] nor occasion 
 (in case of a private nuisance (q) ) any damage, beyond 
 what the removal of the inconvenience necessarily re- 
 quires (r). [If a house or wall is erected so near to mine 
 that it stops my antient lights, which is a private nuisance, 
 I may enter my neighbour's land and peaceably pull it 
 down (s) ;] or if the boughs of my neighbour's tree are 
 allowed to grow so as to overhang my land, which they 
 had not been accustomed to do, I may, on his refusal to 
 remove such part of them as are in that position, effect the 
 removal myself (t). [Or if a new gate be erected across 
 the public highway, which is a common (or public) nuisance, 
 any of the king's subjects passing that way may cut it 
 down and destroy it (?/). And the reason why the law 
 allows this private and summary method of doing one's 
 self justice is, because injuries of this kind, which obstruct 
 or annoy such things as are of daily convenience and use, 
 require an immediate remedy ; and cannot wait for the 
 slow progress of the ordinary forms of justice. 
 
 V. A fifth case, in which the law allows a man to be 
 his own avenger, or to minister redress to himself, is that 
 of distreining cattle or goods for non-payment of rent or 
 other duties ; or, distreining another's cattle damage fea- 
 sant, that is, doing damage or trespassing upon his land ; 
 the former intended for the benefit of landlords, to prevent 
 tenants from secreting or withdrawing their effects to his 
 prejudice ; the latter arising from the necessity of the 
 thing itself, as it might otherwise be impossible at a future 
 
 (p) 5 Rep. 101; 9 Rep. 55; (0 Norris v. Baker, 1 Roll. Rep. 
 
 Houghton v. Butler, 4 T. R. 3u'4. 394; Lodie v. Arnold, ubi sup. As 
 
 (7) Lodie v. Arnold, 2 Salk. 458. to trees overhanging public ways, 
 
 (r) Cooper v. Marshall, 1 Burr. vide 5 & 6 Will. 4, c. 50, s. 65. 
 
 2G1. (11) James 0. Hayward, Cro. Car. 
 
 (s) R. v. Rosewell, 2 Salk. 459. 184.
 
 342 BOOK V. — OF CIVIL INJURIES. 
 
 time to ascertain whose cattle they were that committed 
 the trespass or damage. 
 
 [As the law of distresses is a point of great use and con- 
 sequence, it shall be considered with some minuteness : by 
 inquiring, first, for what injuries a distress may be taken ; 
 secondly, what things may be distreined ; and, thirdly, the 
 maimer of taking, disposing of, and avoiding distresses. 
 
 And, first, it is necessary to premise, that a distress (x), 
 districtio, is the taking of a personal chattel out of the 
 possession of the wrongdoer into the custody of the party 
 injured, to procure a satisfaction for the wrong commit- 
 ted. 1. The most usual injury for which a distress may 
 be taken, is that of non-payment of rent. It was observed 
 in a former volume (?/), that distresses were incident by 
 the common law to every rent service, and by particular 
 reservation to rent charges also ;] and that by statute 4 
 Geo. II. c. 28, the same remedy was also extended in 
 general to rents seek, rents of assize, and chief rents. [So 
 that now we may lay it down as an universal principle, 
 that a distress may be taken for any kind of rent in 
 arrere (2), the detaining whereof beyond the day of pay- 
 ment is an injury to him that is entitled to receive it («).] 
 But as it is of the definition of rent, that its amount be 
 certain or capable of being readily reduced by either party 
 to certainty, so it is held that where the sum to be paid by 
 the tenant is not fixed by agreement express or implied, 
 but depends on what shall be considered as a reasonable 
 
 (1) The thing itself taken hy this the year, quarter, or other period, at 
 process, as well as the process itself, which it may have been made pay- 
 is in our law books very frequently able. Thus in a yearly tenancy, and 
 called a distress. with absence of any express stipula- 
 (y) Vide sup. vol. i. p. 619. tion to the contrary, it is not in arrear 
 (s) Vide Bradbury v. Wright, 2 till after the expiration of the year. 
 Doug. 624; Newman v. Anderton, 2 See Buckley v. Taylor, 2 T. R. COO ; 
 N. R. 224 ; Buttery v. Robinson, 3 Collett v. Curling, 10 Q. B. 785. 
 Bing. 392. Rent is said to be in (a) As to distress by the executor 
 arrere (or arrear), if it remain unpaid of a lessor seised in fee, see 32 Hen. 
 at any time after the expiration of 8, c. 37 ; 3 & 4 Will. 4, c. 42, s. 37.
 
 CHAP. I. — OF REDRESS BY ACT OF PARTIES. 
 
 343 
 
 compensation for the use of the premises, no distress for it 
 can legally be made (b). 2. [For neglecting to do suit to 
 the lord's court (c), or other certain personal service (d), 
 the lord may distrein of common right. 3. For amerce- 
 ments in a court leet a distress may be had of common 
 right; but not for amercements in a court baron, without 
 a special prescription to warrant it (e). 4. Another injury, 
 for which distresses may be taken, is where a man finds 
 beasts of a stranger wandering in his grounds damage fea- 
 sant, that is, doing him hurt or damage, by treading down 
 his grass, or the like ; in which case,] supposing the trespass 
 not to be rendered excusable by the defective state of the 
 fences, or the like (f), [the owner of the soil may distrein 
 them,] while they so remain on his grounds, [till satisfac- 
 tion be made him for the injury he has thereby sustained. 
 5. Lastly, for several duties and penalties inflicted by 
 special acts of parliament (as for assessments made by 
 commissioners of sewers (g) ), or for the relief of the 
 poor (h), remedy by distress and sale is given ; for the par- 
 ticulars of which we must refer the reader to the statutes 
 themselves, remarking only that such distresses are partly 
 analogous to the antient distress at common law, as being 
 repleviable and the like ; but more resembling the com- 
 mon law process of execution (£), by seizing and selling 
 
 (b) Regnart v. Porter, 7 Bing. 
 451 ; Warner v. Potchett, 3 B. & 
 Adol. 928 ; Dunk v. Hunter, 5 B. & 
 A. 322. As to the term within which 
 a distiess may be made after the right 
 to distrain accrues, vide 3& 4 Will. 4, 
 c. 27, ss. 2, 3, 42; James v. Salter, 
 2 Bing. N. C. 505 ; 3 Bing. N. C. 
 544. As to distraining for an appor- 
 tioned rent, vide Neale v. Mackenzie, 
 1 Mee. & W. 75S; Revis v. Watson, 
 5 Mee. & W. 255. As to the extent 
 of the remedy by distress in cases of 
 bankruptcy and insolvency, and as 
 against execution creditors, see 7 
 
 & 8 Vict. c. 90, ss. 18, C>7 ; Phillips t>. 
 Shervill, 6 Q. B. 944. 
 
 (c) Bro. Abr. tit. Distress, 15. 
 
 (d) Co. Litt. 96; 2 Saund. by 
 Wins. 168, n. (1). 
 
 (e) Brownl. 36. 
 
 (/) 2 Saund. by Wins. 284 e, note 
 (4) ; vide post, pp. 344, 345. 
 
 (<r) Stat. 7 Ann. c. 10. 
 
 (h) Stat. 43 Eliz. c. 2 ; 17 Geo. 
 2, c. 38, s. 7 ; 4 & 5 Will. 4, c. 76, 
 s. 99. 
 
 (i) Hutchins v. Chambers, 1 Burr. 
 5S9.
 
 344 BOOK V. OF CIVIL INJURIES. 
 
 [the goods of the debtor under a writ of fieri facias ; — of 
 which hereafter (k). 
 Y Secondly : as to the things which may be distreined, or 
 taken in distress, we may lay it down as a general rule, 
 that all chattels personal are liable to be distreined, unless 
 particularly protected or exempted. Instead therefore of 
 mentioning what things are distreinable, it will be easier to 
 recount those which are not so, with the reason of their 
 particular exemptions (7). And, 1, as every thing which is 
 distreined is presumed to be the property of the wrong- 
 doer, it will follow that such things wherein no man can 
 have an absolute and valuable property (as clogs, cats, 
 rabbits, and all animals fera natures) cannot be distreined. 
 Yet if deer (which are fcra, natural) are kept in a private 
 inclosure for the purpose of sale or profit, this so far changes 
 their nature, by reducing them to a kind of stock or mer- 
 chandize, that they may be distreined for rent(w). 2. What- 
 ever is in the personal use or occupation of any man, is for 
 the time privileged and protected from any distress,] in 
 order to prevent the danger, which might otherwise arise, 
 of a breach of the peace (n) ; as an axe with which a man 
 is cutting wood, or a horse while a man is riding him (o). 
 [But horses drawing a cart may (cart and all) be distreined 
 for rent arrere.] 3. Things delivered to a person exercising 
 a public trade, to be carried, wrought, or managed in the 
 way of his trade (p), [shall not be liable to distress : as a 
 horse standing in a smith's shop to be shoed, or in a com- 
 
 (k) Vide post, bk. v. c. 10. Storey v. Robinson, ubi sup. And 
 
 (1) Co. Litt. 47. see Field v. Adames, 12 Ad. & EI. 
 
 («i) Davies v. Powel, C. B. Hil. 649. 
 
 11 Geo. 2; Willes, 47. (p) Simpson v. Hartopp, Willes, 
 
 (n) Storey v. Robinson, 6 T. R. 512; Gisbourn v. Hurst, 1 Salk. 
 
 138 ; Co. Litt. 47. 250 ; 1 Smith's Leading Cases, 187 ; 
 
 (o) It is laid down by Blackstone, Muspratt v. Gregory, 3 Mee. & W. 
 
 vol. iii. p. 8, on the authority of a case u'77 ; Joule v. Jackson, 7 Mee. & W. 
 
 in 1 Sid. 440, that a horse may be 454; Gibson v. Ireson, 3 Q. B. 39; 
 
 distreined while his rider is upon Finden v. M'Laren, 6 Q. B. 891. 
 him. But the contrary is the law;
 
 CHAP. I. OF REDRESS BY ACT OF PARTIES. 345 
 
 [irion inn ; or cloth in a tailor's house (7) ; or corn sent to 
 a mill or a market. For all these are protected and privi- 
 leged for the benefit of trade; and are supposed in common 
 presumption not to belong to the owner of the house, but 
 to his customers. But, generally speaking, whatever goods 
 and chattels the landlord finds upon the premises, whether 
 they in fact belong to the tenant or a stranger, are distrein- 
 able by him for rent (r) : for otherwise a door would be 
 open to infinite frauds upon the landlord ; and the stranger 
 has his remedy over by action on the case against the te- 
 nant, if by the tenant's default the chattels are distreined, 
 so that he cannot render them when called upon. With 
 regard to a stranger's beasts which are found on the te- 
 nant's land, the following distinctions are however taken. 
 If they be put in by consent of the owner of the beasts, 
 they are distreinable immediately afterwards for rent arrere 
 by the landlord. So also if the stranger's cattle break the 
 fences, and commit a trespass by coming on the land, they 
 are distreinable immediately by the lessor for his tenant's 
 rent, as a punishment to the owner of the beasts for the 
 wrong committed through his negligence (.s). But if the 
 lands were not sufficiently fenced, so as to keep out cattle, 
 the landlord cannot distrein them till they have been levant 
 and couchant (levantes et cubantes) on the land; that is, have 
 been long enough there to have laid down and risen up to 
 feed ; which in general is held to be one night at least (t) ; 
 and then the law presumes, that the owner may have notice 
 whether his cattle have strayed, and it is his own negli- 
 gence not to have taken them away. Yet, if the lessor or 
 his tenant were bound to repair the fences, and did not, 
 
 (q) Read v. Burlcy, Cro. Eliz. 5-19. 30. But as to cattle of a drover, put 
 
 (r) So held as to horses or car- in to graze on their way to market, 
 
 riages standing in a livery stable, see see 2 Saund. by AVms. 290, n. (f), 
 
 Francis v. Wyatt, 3 Burr. 1498 ; Cro- and Muspratt v. Gregory, ubi sup. 
 sier t>. Tomkinson, 2 Ken. 439 ; Par- (s) Co. Litt. 47. 
 
 sons v. Gingell, 4 C. B. 545. So also (t) Gilb. Dist. by Hunt, 3rd edit, 
 
 as to goods sent to an auctioneer, see 47. As to levancy and couchancy, 
 
 Brown v. Arundell, 20 L. J. (C. P.) vide sup. vol. i. p. 628.
 
 346 
 
 ]ROOK V. — OP CIVIL INJURIES. 
 
 [and thereby the cattle escaped into their grounds without 
 the negligence or default of the owner; in this case, though 
 the cattle may have been levant and couchant, yet they are 
 not distreinable for rent till actual notice is given to the 
 owner that they are there, and he neglects to remove 
 them(tt): for the law will not suffer the landlord to take 
 advantage of his own or his tenant's wrong (#).] 4. Things 
 in the custody of the law, such as property already taken 
 damage feasant or in execution, are not distreinable (?/). 
 Nor, 5 (generally speaking), money ; but it is otherwise 
 should it be deposited in a sealed bag (z). 6. [Nothing 
 shall be distreined for rent, which may not be rendered 
 again in as good plight as when it was distreined (a) : for 
 which reason milk, fruit, and the like, cannot be distreined; 
 a distress at common law being only in the nature of a 
 pledge or security, to be restored in the same plight when 
 the debt is paid. So, antiently, sheaves or shocks of corn 
 could not be distreined, because some damage must needs 
 accrue in their removal: but a cart loaded with corn might, 
 as that could be safely restored, But now, by statute 
 2 Will. & M. c. 5, corn in sheaves or cocks, or loose in 
 the straw, or hay in barns or ricks, or otherwise, may be 
 distreined, as well as other chattels (b). 7. Fixtures (c), 
 
 (m) Hemp v. Crewes, 2 Lutw. 
 1580. 
 
 (.t) See Poole v. Longueville, 2 
 Saund. 289. 
 
 (y) Co. Litt. 47 a ; Smith v. Rus- 
 sell, 3 Taunt. 400 ; Wright v. Dewes, 
 1 Ad. & Ell. G41. See also 56 Geo. 
 3, c. 50, s. 6. On the other hand, 
 goods cannot be taken in execution 
 unless the landlord be first paid his 
 rent to the extent of one year's 
 arrears (8 Ann. c. 14), or (if the 
 tenancy be for a term less than a 
 year) to the extent of the arrears of 
 rent accruing during four such terms 
 (7 & 8 Vict. c. 96, s. 67). And by 
 
 14 & 15 Vict. c. 25, s. 2, if the grow- 
 ing crops of a tenant be seized and 
 sold in execution, such crops, so 
 long as they remain on the lands, 
 shall, in default of other sufficient 
 distress, be liable to be distreined 
 upon for rent becoming due after the 
 seizure and sale. 
 
 (s) Rol. Abr.667; Vin. Abr. Dist. 
 (H); Wilson v. Ducket, 2 Mod. 61. 
 
 (a) Darby v. Harris, 1 Q. B. 895 ; 
 Morley v. Pincombe, 2 Exch. 101. 
 
 (ft) Johnson v. Faulkner, 2 Q. B. 
 925. 
 
 (c) Niblett i>. Smith, 4 T. R. 504 ; 
 Dalton v. Whittem, 3 Q. B. 961.
 
 CHAP. I. — OF REDRESS BY ACT OF PARTIES. 347 
 
 [or things fixed to the freehold, may not be distreined ; as 
 caldrons, windows, doors, and chimney-pieces ; for they 
 savour of the realty. For this reason also corn growing 
 could not be distreined, till the statute 11 Geo. II. c. 19, 
 empowered landlords to distrcin corn, grass, or other pro- 
 ducts of the earth, and to cut and gather them when 
 ripe(fZ).] Besides the preceding articles which are abso- 
 lutely privileged, there are others which are privileged sub 
 ?nodo, — as, 8thly, beasts of the plough (averia caruca?) and 
 sheep, and instruments of husbandry ; and, 9thly, the in- 
 struments of a man's trade or profession ; for example, [the 
 axe of a carpenter, the books of a scholar, and the like.] 
 As to all which the rule is, that they are exempt from dis- 
 tress, provided there be other sufficient distress on the pre- 
 mises, but not otherwise (e). 
 
 Thirdly. Let us next consider [how distresses may be 
 taken, disposed of, or avoided.] And here it must be pre- 
 mised, that in modern times the law of distresses has un- 
 dergone great alterations. [Formerly they were looked 
 upon in no other light than as a mere pledge, or security, 
 for payment of rent or other duties, or satisfaction for da- 
 mage done. And so the law still continues with regard to 
 distresses of beasts taken damage feasant, and for some 
 other causes ; over which the distreinor has no other power 
 than to retain them till satisfaction is made. But distresses 
 for rent arrere being found by the legislature to be the 
 shortest and most effectual method of compelling the pay- 
 
 (d) Miller v. Green, 8 Bing. 92 ; if it consist of growing crops, which 
 Hutt v. Morrell, 16 L. J. (Q. B.), are only distreinable by statute, the 
 240 ; et vide sup. vol. ii. p. 217. landlord may notwithstanding, dis- 
 Trees or shrubs in a nursery-ground trein things privileged sub mndo. 
 are not within this statute. Clark v. And see Hutchins v. Chambers, 1 
 Gaskartb, 8 Taunt. 431. Burr. 580, where it was held that 
 
 (e) Co. Litt. 47 a ; 2 Inst. 132 ; averia caruca were distreinable for 
 Gorton v. Faulkner, 4 T. R. 565 ; poor rate, even though there be other 
 Piggott v. Birtles, 1 Mec. & W. 441 ; distress, on the principle that dis- 
 where it was held that, even though tress, under the 43 Eliz. is in effect 
 there be other sufficient distress, yet an execution.
 
 348 BOOK V. OF CIVIL INJURIES. 
 
 [ment of such rent,] many beneficial laws have, from time 
 to time, been made for rendering the remedy in this case 
 more perfect, and for allowing the thing taken to be sold. 
 
 [In pointing out the methods of distreining, we shall in 
 general suppose the distress to be made for rent ; and re- 
 mark, where necessary, the differences between such dis- 
 tress and one taken for other causes. 
 
 In the first place, then, all distresses must be made by 
 day (_/*), unless in the case of damage feasant ; an exception 
 being there allowed, lest the beasts should escape before 
 they are taken (g). And, when a person intends to make 
 a distress, he must, by himself or his bailiff, enter on the 
 demised premises ; formerly during the continuance of the 
 lease, but now (h), if the tenant holds over, the landlord 
 may distrein within six months after the determination of 
 the lease ; provided his own title or interest, as well as the 
 tenant's possession, continue at the time of the distress (i). 
 If the lessor does not find sufficient distress on the pre- 
 mises, formerly he could resort nowhere else; and therefore 
 tenants, who were knavish, made a practice to convey away 
 their goods and stock fraudulently from the house or lands 
 demised, in order to cheat their landlords.] And in general 
 the distress must still be on the premises (J). [But now (k) 
 the landlord may distrein any goods of his tenant, carried 
 off the premises] fraudulently or [clandestinely, wherever 
 he finds them, within thirty days after, unless they have 
 been bona fide sold for a valuable consideration : and all 
 persons privy to, or assisting in, such fraudulent convey- 
 ance, forfeit double the value to the landlord. The land- 
 lord may also distrein,] for rent service (/), [the beasts of 
 his tenant, feeding upon any commons or wastes, appen- 
 
 (/) 7 Rep. 7 a. Cress. 141. 
 
 (g) Co. Litt. 142. (/<) Stat. 9 Ann. c. 14; 11 Geo. 2, 
 
 (h) Stat. 8 Ann. c. 14. c. 19; Angell v. Harrison, 17 L. J. 
 
 (i) As to what is a continuing pos- (Q. B.), 25. 
 
 session, Taylerson v. Peters, 7 A. & (/) 11 Geo. 2, c. 19, s. 8. See 
 
 E. 110. Miller v. Green, 8 Bing. 92. As to 
 
 (j) Buszard v. Capel, 8 Barn. & rent service, vide sup. vol. i. p. CIS.
 
 CHAP. I. OF REDRESS BY ACT OF PARTIES. 3 19 
 
 [dant or appurtenant to the demised premises. The land- 
 lord might not formerly break open a house to make a 
 distress, for that is a breach of the peace. But when he 
 was in the house, it was held that he might break open 
 an inner door (m) : and now (n) he may, by the assistance 
 of the peace officer of the parish, break open in the day 
 time any place whither the goods have been fraudulently 
 removed and locked up to prevent a distress ; oath being 
 first made, in case it be a dwelling-house, of a reasonable 
 ground to suspect that such goods are concealed therein. 
 
 Where a man is entitled to distrein for an entire duty, he 
 ought to distrein for the whole at once ; and not for part 
 at one time and part at another (o). But if he distrein 
 for the whole, and there be not sufficient on the premises, 
 or if he happen to mistake in the value of the thing dis- 
 treined, and so take an insufficient distress, he may take 
 a second distress to complete his remedy (p). 
 
 Distresses must be proportioned to the thing distreined 
 for. By the statute of Marlbridge, 52 Hen. III. c. 4, if 
 any man take a great or unreasonable distress, for rent 
 arrere, he shall be heavily amerced for the same. As if 
 the landlord distrein two oxen for twelve pence rent ; the 
 taking of both is an unreasonable distress (q) ; but if there 
 were no other distress nearer the value to be found, he 
 might reasonably have distreined one of them ; but for 
 homage or fealty, or suit and service, it is said that no dis- 
 tress can be excessive (r). For as these distresses cannot 
 be sold, the owner, upon making satisfaction, may have his 
 chattels again. The remedy for excessive distresses is by 
 a special action on the statute of Marlbridge ; for an action 
 
 (m) Co. Litt. 161 ; Comberb. 17. Cropp, 1 C. B. 981. 
 
 See Brown v. Glenn, 20 L. J. (Q. B.) (/>) Cro. Eliz. 13 ; stat. 17 Car. 2, 
 
 205, whereby it appears that a land- c. 7 ; Ilutchins v. Chambers, 1 Burr, 
 
 lord has no power at common law to 590. 
 
 break open an outer door to distrein (q) 2 Inst. 107. 
 
 for rent. (>•) Bro. Abr. tit. Assize, 291, Pre- 
 
 (n) Stat. 11 Geo. 2, c. 19. rogative, 98. 
 
 (o) 2 Lutw. 1532 ; Dawson v.
 
 350 BOOK V. OF CIVIL INJURIES. 
 
 [of trespass is not maintainable upon this account, it being 
 no injury at the common law (s). 
 
 When the distress is thus taken, the next consideration 
 is the disposal of it. For which purpose the things dis- 
 treined must in the first place be carried to some pound, 
 and there impounded by the taker. But, in their way 
 thither, they may be rescued by the owner, in case the dis- 
 tress was taken without cause, or contrary to law : as if no 
 rent be due, if they were taken upon the highway, or the 
 like; in these cases the tenant may lawfully make rescue (t). 
 But if they be once impounded, even though taken without 
 any cause, the owner may not break the pound and take 
 them out; for they are then in the custody of the law(w).] 
 Accordingly, by 2 W. & M. sess. 1, c. 5, an action on the 
 case for treble damages will lie for illegally taking out of 
 pound upon a distress for rent (u). And in case of distress 
 damage feasant, it is enacted by 6 & 7 Vict. c. 30, that if 
 any person shall release or attempt to release cattle lawfully 
 seized by way of such distress, from the pound or place 
 where they shall be impounded, or on the way to or from 
 such pound or place, or shall destroy such pound or place, 
 or any part thereof, or any lock or bolt thereof, he shall, on 
 conviction before two justices of the peace, be liable to a 
 penalty not exceeding 5/., and to payment of the reasonable 
 charges and expenses ; and in default may be committed to 
 the house of correction, with hard labour, for not more than 
 three calendar months or less than fourteen days (x). r 
 
 (s) 1 Ventr. 104; Fitzgib. 85; (v) As to the remedy of the owner 
 
 Fisher v. Algar, 2 C. & P. 374 ; against a third party committing 
 
 Hutchins v. Chambers, ubi supra; pound breach, see Turner v. Ford, 
 
 Roden v. Eyton, 4 C. B. 427 ; Tan- 15 Mee. & W. 212. 
 
 credit. Leyland, 20 L. J. (Q. B.) 316. (x) By 6 & 7 Vict. c. 30, s. 2, 
 
 (t) Co. Litt. 160, 161. however, the justices cannot hear 
 
 (i/) Co. Litt. 47. It has been any case in which a question of title 
 
 doubted whether rescue of goods to land arises, or any question as to 
 
 ciistreined, or pound breach (if with- a bankruptcy or insolvency, or exe- 
 
 out breach of the peace), are indict- cution, or the obligation to repair 
 
 able offences. But it seems that walls, &c. 
 they are, 1 Russ. on Crimes, 411.
 
 CHAP. I.— OF REDRESS BY ACT OF PARTIES. 351 
 
 [A pound (parens, which signifies any inclosure,) is either 
 pound overt, that is, open overhead ; or pound covert, that 
 is, close. By the statute 1 & 2 P. & M. c. 12, no distress 
 of cattle can be driven out of the hundred where it is taken, 
 unless to a pound overt within the same shire, and within 
 three miles of the place where it was taken. This is for 
 the benefit of the tenants, that they may know where to 
 find and replevy the distress. And by statute 11 Geo. II, 
 c. 19, which was made for the benefit of landlords, any 
 person distreining for rent may turn any part of the pre- 
 mises, upon which a distress is taken, into a pound, pro 
 hue vice, for securing of such distress (?/).] If a live dis- 
 tress, of animals, be impounded, the onus of their support 
 is thrown by the legislature upon the persons impounding 
 the same. For, by 12 & 13 Vict. c. 92, ss. 5, 6(z), the 
 impounder is bound to supply them with sufficient food and 
 water, upon penalty of twenty shillings for every refusal or 
 neglect so to do, to be adjudged by a justice in a summary 
 way. Any person, moreover, is authorized to enter a place 
 where animals are impounded without sufficient food and 
 water more than twelve hours, and supply them, without 
 being liable to an action for such entry (a) ; and the costs 
 of such food and water are to be paid by the owner of the 
 animal before it is removed, to the person who supplied 
 the same. [A distress of household goods, or other dead 
 chattels, which are liable to be stolen, or damaged by 
 weather, ought to be impounded in a pound covert, else 
 the distreinor must answer for the consequences (b). 
 
 When impounded, the goods were formerly, as was be- 
 fore observed (c), only in the nature of a pledge or security 
 to compel the performance of satisfaction ; and upon this 
 
 (_v) Vide Washborn v. Black, 11 circumstances, to sell the animal im- 
 
 East, 405, n. (u) ; Pitt v. Shew, 4 B. pounded ; as to which, see Layton v. 
 
 & Aid. 208; Swann o. Earl Fal- Hurry, 8 Q. B. 811. 
 
 mouth, 8 Barn. & Cress. 456 ; Woods (u) 12 & 13 Vict. c. 92, s. 6 ; Co. 
 
 v. Durrant, 16 Mee. & W. 149. Litt. 47. 
 
 (z) By the provisions of 5 & 6 (b) Mason v. Newland, 9 C. & P. 
 
 Will. 4, c. 59 (repealed by the sta- 575 ; Wilder v. Speer, 8 A. & E. 547. 
 
 tute mentioned in the text), the im- (c) Vide sup. p. 346. 
 pounder was enabled, under certain
 
 352 BOOK V. — OF CIVIL INJURIES. 
 
 [account it hath been held (d), that the distreinor is not at 
 liberty to work or use a distreined beast. And thus the 
 law still continues with regard to beasts taken damage fea- 
 sant, and distresses for suit or services ; which must remain 
 impounded till the owner makes satisfaction; or contests 
 the right of distreining, by replevying the chattels,] a pro- 
 ceeding of which we shall presently say more. 
 
 [The distress therefore in these cases, though it puts the 
 owner to inconvenience, and is consequently a punishment 
 to him, yet if he continues obstinate, and will make no satis- 
 faction or payment, is no remedy at all to the distreinor. 
 But for a debt due to the crown, unless paid within forty 
 days, the distress was always saleable at the common law(e). 
 And for an amercement imposed at a court leet, the lord 
 may also sell the distress (f): partly because, being the 
 king's court of record, its process partakes of the royal pre- 
 rogative (g) ; but principally because it is in the nature of 
 an execution to levy a legal debt. And so in the several 
 statute distresses, before mentioned, which are also in the 
 nature of executions, the power of sale is likewise usually 
 given, to effectuate and complete the remedy. And, in like 
 manner, by several acts of parliament (A), in all cases of 
 distress for rent, if the tenant or owner do not, within five 
 days after the distress is taken, and notice (i) of the cause 
 thereof given him, replevy the same with sufficient security, 
 the distreinor, with the sheriff or constable, shall cause the 
 same to be appraised by two sworn appraisers, and sell the 
 same towards satisfaction of the rent and charges ; render- 
 ing the overplus, if any, to the owner himself (J). And, by 
 
 (d) Bagshawe v. Goward, Cro. taxes, rates, &c, 7 & 8 Geo. 4, c. 17. 
 Jac. 148. (i) This notice must be in writing, 
 
 (e) Bro. Abr. tit. Distress, 71. Wilson v. Nightingale, 8 Q. B. 1034. 
 (/) 8 Rep. 41. (./) Jacob v. King, 5 Taunt. 451 ; 
 (g) Bro. Abr. tit. Distress, 71; Lyons v. Tomkies, 1 Mee. & W. 693. 
 
 R. v. Speed, 12 Mod. 330. By 57 Geo. 3, c. 93, s. 6, every broker 
 
 (h) 2 W. & M. c. 5 ; 8 Ann. c. 14 ; who makes a distress, in any case 
 
 4 Geo. 2, c. 28; 11 Geo. 2, c. 19. whatsoever, is to give a copy of his 
 
 As to distresses for small rents, 57 charges, &c. Hart v. Leach, 1 Mee. 
 
 Geo. 3, c. 93. As to distresses for & W. 560.
 
 CHAP. I. — OF REDRESS BY ACT OF PARTIES. 353 
 
 [this means, a full and entire satisfaction may now be had 
 for rent in arrere, by the mere act of the party himself, viz. 
 by distress, the remedy given at common law, and sale 
 consequent thereon, which is added by act of parliament.] 
 
 As for the proceeding called a replevin, to which we just 
 had occasion to refer, it will be sufficient for the present to 
 state, that [to replevy (repleyiare, that is, to take back the 
 pledge, is when a person distreined upon] (either for damage 
 feasant, for suit and service, or for rent) [applies to the 
 sheriff or his officers, and has the distress returned into his 
 own possession, upon giving good security to try the right 
 of taking it, in a suit at law, and, if that be determined 
 against him, to return the cattle or goods once more into 
 the hands of the destreinor.] Replevin, however, and the 
 course of proceeding which it involves, is a subject the fuller 
 consideration of which will belong to a subsequent stage of 
 this work (i), and which it will be unnecessary to pursue 
 farther in this place. Enough has been stated to show its 
 general nature and object, and that while it relieves the 
 owner of the cattle or goods from the inconvenience of 
 their being longer detained from him, during the time in 
 which the right is still undecided, it answers on the other 
 hand, to the distreinor, [the same end as the distress itself, 
 since the owner gives security to return the distress, if the 
 right be determined against him.] 
 
 Before we quit the consideration of distresses, it should 
 be observed, that [the many particulars which attend the 
 taking of a distress used formerly to make it a hazardous 
 kind of proceeding : for if any one irregularity was com- & 
 mitted, it vitiated the whole, and made the distreinors tres- 
 passers ah initio (;').] But now, by the statute 1 1 Geo. II. 
 c. 19, s. 19 {k), it is provided, that where any distress shall 
 
 (0 Vide post, bk. v. c. 11. v. Elliott, 5 Ad. & E. 142; West v. 
 
 (j) 1 Ventr. 37. As to when Nibbs, 4 C. B. 172. 
 
 landlords distreining can be consi- (k) Vide Gambrell v. Earl of Fal- 
 
 dered as trespassers, see SixCarpen- mouth, 5 Ad. & El. 403. 
 ters' case, 8 Co. Rep. 14G6 ; Evans 
 
 VOL. III. A A
 
 354 BOOK V. — OF CIVIL INJURIES. 
 
 be made for any kind of rent justly due, and any subse- 
 quent unlawful act or irregularity be committed by the 
 party distreining, the distress itself shall not therefore be 
 deemed unlawful, or the parties making it trespassers ab 
 initio ; [but that the party grieved shall only have an action 
 for the real damage sustained (/) ; and not even that, if 
 tender of amends is made before any action is brought, f- 
 
 VI. The seizing of heriots (m), when due on the death of 
 a tenant, is also another species of self-remedy ; not much 
 unlike that of taking cattle or goods in distress. As for 
 that division of heriots which is called heriot service, and 
 is only a species of rent, the lord may distrein for this, as 
 well as seize : but for heriot custom, (which Sir Edward 
 Coke says (n) lies only in prender, and not in render,) the 
 lord may seize the identical thing itself, but cannot distrein 
 any other chattel for it (o). The like speedy and effectual 
 remedy, of seizing, is given with regard to many things 
 that are said to lie in franchise; as waifs, wrecks, estrays, 
 and the like; all which the persons entitled thereto may 
 seize, without the formal process of a suit or action. Not 
 that they are debarred of this remedy by action ; but have 
 also the other, and more speedy one, for the better assert- 
 ing their property; the thing to be claimed being frequently 
 of such a nature as might be out of the reach of the law 
 before any action could be brought. 
 
 These are the several species of remedies which may be 
 had by the mere act of the party injured (p). We shall next 
 briefly mention such as arise from the joint act of all the 
 parties together. And these are only two, — accord and 
 arbitration. 
 
 1. Accord is an agreement, [between the party injuring 
 
 (l) Harvey v. Pocock, 11 Mee. & (o) Odiham v. Smith, Cro. El. 
 
 W. 740. 590 ; Major i . Brandwood, Cro. Car. 
 
 [m) As to heriots, vide sup. vol. i. 260. 
 
 P- 605. (p) Vide sup. p. 336. 
 
 (n) Cop. s. 25.
 
 CHAP. I. — OF REDRESS BY ACT OF PARTIES. 355 
 
 [and the party injured,] to make satisfaction, [which, when 
 performed, is a bar of all actions upon this account. As if 
 a man contract to build a house or deliver a horse, and fail 
 in it, this is an injury, for which the sufferer may have his 
 remedy by action ; but if the party injured accepts a sum 
 of money, or other thing, as a satisfaction, this is a redress 
 of that injury, and entirely takes away the action (p).] 
 But it is to be observed under this head, first, that the 
 action will not be taken away by mere accord without ac- 
 tual satisfaction. For example, in the case supposed, the 
 mere agreement to accept the sum of money will not, until 
 actual payment of the amount, bar the action on the ori- 
 ginal agreement to build the house or deliver the horse ; 
 for this would only be substituting one right of action for 
 another. Secondly, that the taking a smaller sum of 
 money in lieu of a greater does not amount to the legal 
 idea of satisfaction. Thus, if a man owe 100Z., an accord 
 or agreement between him and the creditor to pay 501. in 
 satisfaction, will not, though the latter sum be actually 
 paid, suffice to bar the action on the original debt (</). 
 
 II. [Arbitration^) is where the parties, injuring and 
 injured, submit all matters in dispute, concerning any per- 
 
 (p) 9 Rep. 79. 615; Stonehewer v. Farrar, ibid. 
 
 (</) Wright v. Acres, 6 A. & E. 730; Re Plews and Middleton, ibid. 
 
 726 ; Bayley v. Homan, 3 B. N. C. 815 ; Berney v. Read, 7 Q. B. 79 ; 
 
 920. As to the nature of an accord, Grenfell v. Edgecome, ibid. 661; 
 
 see Wilkinson v. Byers, 1 A. & E. Grevesv. Gorton, 15 Mee. & W. 186 ; 
 
 106. In an action by several plain- Proudfoot v. Boyle, ibid. 199; Cro- 
 
 tiffs for a joint demand, the defendant mer v. Churt, ibid. 310; Lewis v. 
 
 may plead an accord and satisfaction Curlevvis, 1 C. B. 161 ; Harlow v. 
 
 with one. Wallace o. Kelsall, 7 M. Read, ibid. 733; Doe v. Cox, 4 D. 
 
 & W. 264. As to an accord by a & L. 75 ; Griffiths v. Thomas, ibid. 
 
 stranger, see Thurman v. Wild, 11 109; Bottomby V. Buckley, ibid. 
 
 A. & E. 453. 157 ; Spooner v. Payne, 4 C. B. 328 ; 
 
 (r) Under the head of arbitration, Tillam v. Copp, 5 C. B. 211 ; Toby 
 
 the cases in the books are extremely v. Lovibond, ibid. 770 ; Leslie v. 
 
 numerous. The following, of recent Richardson, 6 C. B. 378; Richardson 
 
 date, may be consulted with advan- v. Worslcy, 5 Exch. 613. See also 
 
 tage. Nicholls v. Warren, 6 Q. B. Watson on Awards. 
 
 A A. 2
 
 356 BOOK V. — OF CIVIL INJURIES. 
 
 [sonal chattels or personal wrong, to the judgment of two 
 or more arbitrators, who are to decide the controversy; and 
 if they do not agree, it is usual to add, that another person 
 be called in as umpire (imperator or impar (s) ), to whose 
 sole judgment it is then referred: or frequently there is only 
 one arbitrator originally appointed. This decision, in any of 
 these cases, must be in writing, and is called an award. And 
 thereby the question is as fully determined, and the right 
 transferred or settled, as it could have been by the agree- 
 ment of the parties or the judgment of a court of justice (t). 
 But the right of real property cannot thus pass by a mere 
 award (u) ; which subtilty, in point of form (for it is now 
 reduced to nothing else), had its rise from feodal princi- 
 ples ; for, if this had been permitted, the land might have 
 been aliened collusively without the consent of the superior. 
 Yet doubtless an arbitrator may now award a conveyance 
 or a release of land ; and it will be a breach of the arbitra- 
 tion bond to refuse compliance (v). For though originally 
 the submission to arbitration used to be,] and may still be, 
 [by word or by deed, yet both of these being revocable in 
 their nature, it is now become the practice to enter into 
 mutual bonds, with condition to stand to the award or ar- 
 bitration of the arbitrators or umpire therein named,] or, 
 in default thereof, to pay a certain penalty. [And expe- 
 rience having shown the great use of these peaceable and 
 domestic tribunals, especially in settling matters of account, 
 and other mercantile transactions, which are difficult, and 
 almost impossible, to be adjusted on a trial at law, the 
 legislature has now established the use of them, as well 
 in controversies where causes are depending, as in those 
 where no action is brought, enacting by statute 9 & 10 
 Will. III. c. 15, that all merchants and others, who desire 
 to end any controversy, suit, or quarrel (for which there is 
 
 (?) Whart. Angl. Sacr. i. 772; («) ] Roll. Abr. 242; Marks v. 
 
 Nichols. Scot. Hist. Libr. c. i. prcpe Marriott, 1 Ld. Ray. 115. 
 
 Jiitew. (i>) See Doe v. Rosser, 3 East, 15. 
 
 (() Brownl. 55 ; 1 Freem. 410.
 
 CHAP. I.— OF REDRESS BY ACT OF PARTIES. 357 
 
 [no other remedy but by personal action or suit in equity), 
 may agree that their submission (w) of the action or suit 
 to arbitration or umpirage shall be made a rule of any 
 of the courts of record, and may insert such agreement 
 in their submission or promise, or condition of the arbi- 
 tration bond : which agreement being proved upon oath 
 by one of the witnesses thereto, the court shall make a rule 
 that such submission and award shall be conclusive : and 
 after such rule made, the parties disobeying the award 
 shall be liable to be punished as for a contempt of the 
 court, unless such award shall be set aside for corruption,] 
 or undue means used in its procurement, [or other mis- 
 behaviour in the arbitrators or umpire, proved on oath to 
 the court, within one term after the award is made (r). And 
 in consequence of this statute, it is now become a con- 
 siderable part of the business of the superior courts to set 
 aside such awards when partially or illegally made ; or to 
 enforce their execution, when legal, by the same process 
 of contempt as is awarded for disobedience of those rules 
 and orders which are issued by the courts themselves (3/).] 
 The law on this subject has also been much improved 
 by more recent enactments, it being provided by 3 & 4 
 Will. IV. c. 42, that the power of any arbitrator or umpire 
 appointed in pursuance of a submission containing such 
 agreement as aforesaid to make the arbitration a rule of 
 court, or appointed by any rule of court or judge's order, 
 or order of nisi prius, in any action, shall not be revocable 
 by either party without leave of the court ; and that the 
 court or a judge may command the attendance of wit- 
 nesses before the arbitrator, wdiose failure to attend shall 
 be deemed a contempt of court; and that if in any such 
 
 (id) If the submission be not in tration of disputes, for which the 
 
 tenting, the case is not within the act, remedy is by appeal to the general 
 
 and cannot therefore be made a rule or quarter sessions of the peace, 
 
 of court. v. Mills, 17 Yes. 419. (y) As to the course of proceed- 
 
 (.1) See also the provisions of the ing by attachment to enforce an 
 
 12 & 13 Vict. c. 45, s. 12 — 15, for award, see Queen v. Hemsworth, 3 
 
 facilitating and giving effect to arbi- C. B. 745.
 
 358 BOOK V. OF CIVIL INJURIES. 
 
 submission, rule or order of reference, it shall be agreed or 
 ordered that the witnesses shall be examined on oath, the 
 arbitrator is required to administer such oath accordingly ; 
 and any such witness giving false evidence shall be deemed 
 guilty of perjury. 
 
 As to the effect of an award, when made and not set 
 aside by the court for invalidity, it is in general conclusive 
 and final ; and upon an action or other proceeding to en- 
 force it, no objection to its validity can be made, unless 
 in respect of such defect as may happen to be apparent on 
 the face of the award itself; the rule being that all extrinsic 
 objections must be taken in the shape of an application to 
 set the award aside (z) ; which application must be made 
 before the last day of the term next after the award is 
 made and published (a). 
 
 (z) Braddickt). Thompson, 8 East, (a) 9 & 10 Will. 3, c. 15, s. 2; 
 
 344; Paull v. Paull, 2 Dowl. 340 ; Young v. Timmins, 1 Tyrw. 230, n. ; 
 
 Grazebrook ». Davis, 5 B. & C. 534 ; Riccard v. Kingdon, 15 L. J. (Q. B.) 
 
 Macartbur v. Campbell, 2 Ad. & El. 269. 
 52; Tellam v. Copp, 5 C. B. 211.
 
 ( 359 ) 
 
 CHAPTER II. 
 
 OF REDRESS BY THE MERE OPERATION OF LAW. 
 
 [The remedies for private wrongs, which are effected by 
 the mere operation of the law (a), will fall within a very 
 narrow compass, there being,] it is believed, [only two in- 
 stances of this sort] capable of being suggested ; [the one, 
 that of retainer, where a creditor is made executor or admi- 
 nistrator to his debtor ; the other, in the case of what the 
 law calls remitter.] 
 
 I. As to retainer. The law relating to executors and 
 administrators has been already discussed in a former part 
 of the work (b), where it appeared that [if a person indebted 
 to another, makes his creditor his executor, or if such cre- 
 ditor obtains letters of administration to his debtor, in these 
 cases the law gives him a remedy for his debt, by allowing 
 him to retain so much as will pay himself, before any other 
 creditors whose debts are of equal degree (c). This is a 
 remedy by the mere act of law, and grounded upon this 
 reason, that the executor cannot, without an apparent ab- 
 surdity, commence a suit against himself as representative 
 of the deceased, to recover that which is due to him in his 
 own private capacity; but, having the whole personal estate 
 in his hands, so much as is sufficient to answer his own 
 demand is, by operation of law, applied to that particular 
 purpose. Else, by being made executor, he would be put 
 in a worse condition than all the rest of the world besides.] 
 
 (a) Vide sup. p. 336. 922 ; Plowd. 543 ; Glaholm v. Rown- 
 
 (b) Vide sup. vol. ii. p. 182. tree, 6 A. & E. 710. 
 
 (c) Ibid. 204 ; et vide 1 Roll. Abr.
 
 360 BOOK V. OF CIVIL INJURIES. 
 
 For every other creditor but himself is in a condition to 
 commence an action and obtain judgment for recovery of 
 his debt. The effect, however, of this right of retainer (it 
 will be observed) is to put him in some measure in a better 
 position than others ; because it enables him to obtain pay- 
 ment first (among all creditors of equal degree), and before 
 any other has had time to commence an action. And this 
 seems to illustrate a remark of Lord Bacon, that [the be- 
 nignity of the law is such, as when, to preserve the prin- 
 ciples and grounds of law, it depriveth a man of his remedy 
 without his own fault, it will rather put him in a better de- 
 gree and condition than in a worse (d).~] But [the executor 
 shall not retain his own debt in prejudice to those of a 
 higher degree ; for the law only puts him in the same situ- 
 ation as if he had sued himself as executor, and recovered 
 his debt ; which he never could be supposed to have done, 
 while debts of a higher nature subsisted. Neither shall one 
 executor be allowed to retain his own debt in prejudice to 
 that of his co-executor in equal degree ; but both shall be 
 discharged in proportion (e). Nor shall an executor of his 
 own wrong be in any case permitted to retain (f ).] 
 
 • 
 
 II. Remitter is where he who hath the right of entry 
 in lands, but is out of possession, obtains afterwards the 
 possession of the lands by some subsequent, and of course 
 defective title ; in this case he is remitted, or sent back, by 
 operation of law, to his antient and more certain title (g). 
 The possession which he hath gained by a bad title shall 
 be ipso facto annexed to his own inherent good one ; and 
 his defeasible estate shall be utterly defeated and annulled 
 by the instantaneous act of law, without his participation 
 or consent (h). As, if A. disseises B., that is, turns him 
 
 (d) Bac. Elem. c. 9. modifying the doctrine of remitter, 
 
 (c) Vin. Abr. tit. Executors, D. 2. vide 1 Saund. Uses, 166. As to re- 
 
 (/) 5 Rep. 30. mitter generally, Doe v. Woodroffe, 
 
 (g) Litt. ss. 659, 693, 695; Co. 10 Mee. &W. 608. 
 
 Litt. 363 b ; Gilb. Ten. 129. As to (h) Co. Litt. 358 ; Wood v. Sir J. 
 
 the effect of the Statute of Uses in Shurley, Cro. Jac. 409.
 
 CHAP. II. — OF REDRESS BY MERE OPERATION OF LAW. 361 
 
 out of possession, and afterwards demises the land to B. 
 (without deed) for term of years, by which B. entereth, 
 this entry is a remitter to B. (z), who is in of his former and 
 surer estate. But if A. had demised to him for years by 
 deed indented or by matter of record, there B. would not 
 have been remitted. For if a man by deed indented takes 
 a lease of his own lands, it shall bind him to the rent and 
 covenants ; because a man can never be allowed to affirm 
 that his own deed is ineffectual, since that is the greatest 
 security on which men rely in all manner of contracting. 
 The same law, if it had been by matter of record ; for that 
 is of its own nature uncontrollable evidence, which a man 
 cannot be allowed to controvert (j). 
 
 [The reason given by Littleton (k), why this remedy, 
 which operates silently and by the mere act of law, was 
 allowed, is somewhat similar to that given in the preceding 
 article, because otherwise he who hath right would be de- 
 prived of all remedy.] For as he himself is in possession of 
 the land, there is no other person upon whom he can make 
 entry (I). 
 
 [And thus much for these extrajudicial remedies, as well 
 for real as personal injuries, which are furnished or permit- 
 ted by the law, where the parties are so peculiarly circum- 
 stanced as not to make it possible to apply for redress in 
 the usual and ordinary methods.] 
 
 (0 Litt. s. 695; Gilb. Ten. 129. sion by entry. (Litt. s. 693; Gilb. 
 
 (J) Gilb. Ten. ubi sup. Ten. 129 ; Co. Litt. by Butl. 347 b, 
 
 (k) Litt. s. 661 ; Co. Litt. by Butl. n.(ll).) And now, inconsequence 
 
 347 b, n. (1). of that recent and important cbange 
 
 (/) Blackstone treats of remitter as of the law, by which real actions in 
 
 if it had no application except to the general are abolished (a subject to 
 
 case where the disseisee was out of which we shall have occasion to refer 
 
 possession under such circumstances more particularly hereafter), the for- 
 
 that he could only recover possession mer case can no longer arise, and it 
 
 by real action. But it was also appli- is only in the latter (altogether passed 
 
 cable (as it still is) to the case stated by in Blackstone) that any example 
 
 in the text, of his being out of posses- of remitter can occur, 
 sion, with right of recovering posses-
 
 362 BOOK V. OF CIVIL INJURIES. 
 
 CHAPTER III. 
 
 OF THE COURTS IN GENERAL. 
 
 [The next object of our inquiries is the redress of injuries 
 by suit in courts (a) : wherein the act of the parties and the 
 act of law co-operate; the act of the parties being necessary 
 to set the law in motion, and the process of the law being 
 in general the only instrument, by which the parties are 
 enabled to procure a certain and adequate redress. 
 
 And here it will not be improper to observe, that al- 
 though, in the several cases of redress by the act of the 
 parties mentioned in a former chapter (b), the law allows an 
 extrajudicial remedy, yet that does not exclude the ordi- 
 nary course of justice : but it is only an additional weapon 
 put into the hands of certain persons in particular instances, 
 where natural equity or the peculiar circumstances of their 
 situation required a more expeditious remedy, than the 
 formal process of any court of judicature can furnish. 
 Therefore, though I may defend myself, or my relations, 
 from external violence, I yet am afterwards entitled to an 
 action of assault and battery : though I may retake my 
 goods, if I have a fair and peaceable opportunity, this power 
 of recaption does not debar me from my action of trover or 
 detinue : I may either enter on the lands, on which I have 
 a right of entry, or may demand possession by] an action 
 of ejectment : [I may either abate a nuisance by my own 
 authority, or call upon the law to do it for me : I may dis- 
 trein for rent, or have an action of debt, at my own option : 
 if I do not distrein my neighbour's cattle damage feasant, 
 I may compel him by action of trespass to make me a fair 
 
 (a) Vide sup. p. 336. (ft) Vide sup. bk. v. c. 1.
 
 CHAP. III. — OF THE COURTS IN GENERAL. 363 
 
 [satisfaction : if a heriot be withheld from me by fraud or 
 force, I may recover it, though I never seized it. And with 
 regard to accords and arbitrations, these, in their nature 
 being merely an agreement or compromise, must indis- 
 putably suppose a previous right of obtaining redress some 
 other way, which is given up by such agreement. But as 
 to remedies by the mere operation of law, those are indeed 
 given, because no remedy can be ministered by action] or 
 entry, without running into the absurdity of a man's bring- 
 ing an action against, or entering upon, himself. 
 
 [In treating of the remedies by suit in courts, we shall 
 pursue the following method : first, we shall consider the 
 nature and several species of courts of justice; and, se- 
 condly, we shall point out what injuries are cognizable and 
 how redressed, in each respective species of court. 
 
 First, then, of courts of justice. And herein we will 
 consider, first, their nature and incidents in general ; and, 
 then, the several species of them erected and acknowledged 
 by the laws of England. 
 
 A court is defined to be a place wherein justice is judi- 
 cially administered (c). And, as by our excellent constitu- 
 tion the sole executive power of the laws is vested in the 
 person of the sovereign, it will follow that all courts of 
 justice, which are the medium by which he administers the 
 laws, are derived from the power of the crown (d). For 
 whether created by act of parliament, or letters-patent, or 
 subsisting by prescription, (the only methods by which any 
 court of judicature (c) can exist,) the king's consent in the 
 two former is expressly, and in the latter impliedly, given. 
 In all these courts the sovereign is supposed in contempla- 
 tion of law to be always present : but as that is in fact 
 impossible, he is there represented by his judges, whose 
 power is only an emanation of the royal prerogative. 
 
 [For the more speedy, universal, and impartial adminis- 
 tration of justice between subject and subject, the law hath 
 
 (<•) Co. Litt. 58. (e) Co. Litt. 260. 
 
 (d) Vide sup. vol. ii. p. 494, 49o.
 
 364 BOOK V. — OF CIVIL INJURIES. 
 
 [appointed a prodigious variety of courts, some with a more 
 limited, others with a more extensive jurisdiction; some 
 constituted to inquire only, others to hear and determine ; 
 some to determine in the first instance, others upon appeal 
 and by way of review. 
 
 All these in their turns will be taken notice of in their 
 respective places : but we may here mention one distinction 
 that runs throughout them all ; viz. that some of them are 
 + courts of record, others not of record. A court of record is 
 that where the acts and judicial proceedings are enrolled in 
 parchment for a perpetual memorial and testimony : which 
 rolls are called the records of the court, and are of such 
 high and supereminent authority, that their truth is not to 
 be called in question (f). For it is a settled rule and maxim, 
 that nothing shall be averred against a record, nor shall 
 any plea, or even proof, be admitted to the contrary (g). 
 And if the existence of a record be denied, it shall be tried 
 by nothing but itself; that is, upon bare inspection whether 
 there be any such record or no ; else there would be no 
 end of disputes. But if there appear any mistake of the 
 clerk in making up such record, the court will direct him 
 to amend it. All courts of record are the king's courts, in 
 right of his crown and royal dignity (A) ; and therefore] 
 every court of record has authority to fine and imprison for 
 contempt of its authority (i) ; while on the other hand [the 
 very erection of a new jurisdiction, with power of fine or 
 imprisonment, makes it instantly a court of record (J).] But 
 the courts not of record, or those of them at least in which 
 
 (f) As to records, vide Co. Litt. by for contempt of court generally, see 
 Harg. 260,n.(l); sup. vol. i. p. 47. Miller v. Knox, 4 Bing. N. C. 574; 
 
 (g) Co. Litt. 260 ; sup. vol. i. p. Doe d. Cardigan v. Bywater, 7 C. B. 
 462, n. (a). 794. For contempt in county courts, 
 
 (h) Finch, L. 231. 9 & 10 Vict. c. 95, s. 113 j 12 & 13 
 
 (j) 8 Rep. 38 b; Hawk. b. 2, c. Vict. c. 101, s. 2; Levy v. Moylan 
 
 22, s. 1 ; Bac. Ab. Courts, E. j R. v. and others, 1 Lill. & P. 307. 
 
 Clement, 4 B. & Aid. 233; R. v. (j) Groenvelt v. Burwell, Salk. 
 
 Davison, 5 B. & Aid. 337 ; R. v. 200 ; Grenville v. College of Physi- 
 
 James, ibid. 894. As to attachment cians, 12 Mod. 388.
 
 CHAP. III.— OF THE COURTS IN GENERAL. 365 
 
 the common law is administered, are of inferior dignity, 
 and in a less proper sense the king's courts — and these are 
 not intrusted by the law with any power to fine or impri- 
 son the subjects of the realm, unless by the express pro- 
 vision of some act of parliament (k). In these also [the 
 proceedings are not enrolled or recorded ; but as well their 
 existence, as the truth of the matters therein contained, 
 shall, if disputed, be tried and determined by a jury(/). f- 
 
 In every court there must be at least three constituent 
 parts, the actor, reus, a.nd judex : the actor, or plaintiff', who 
 complains of an injury done; the reus, or defendant, who 
 is called upon to make satisfaction for it ; and the judex, 
 or judicial power, which is to examine the truth of the fact, 
 to determine the law arising upon that fact, and, if any 
 injury appears to have been done, to ascertain, and by its 
 officers to apply, the remedy. It is also usual in the higher 
 courts to have attorneys and counsel as assistants. 
 
 An attorney at law] (called in the courts of equity a 
 solicitor) [answers to the j)rocurator, or proctor, of the 
 civilians and canonists (m). And he is one who is put in 
 the place, stead, or turn of another, to manage his pro- 
 ceedings in a cause. Formerly every suitor was obliged 
 to appear in person, to prosecute or defend his suit (accord- 
 ing to the old Gothic constitution (w) ), unless by special 
 licence under the king's letters patent (o).] And an infant, 
 a married woman, or an idiot, cannot to this day, in point 
 of form, appear by attorney ; but, even when an attorney is 
 actually employed for them, should be described as appear- 
 ing in person, or by guardian, according to the nature of 
 the case ( p). [But as in the Roman law, " cum olim in usu 
 
 (k) Dyson v. Wood, 3 Barn. & (o) F. N. B. 25. 
 
 Cress. 449. (p) Bro. Abr. t. Ideot, 4 ; Co. Litt. 
 
 (/) 2 Inst. 311; 8 Rep. 38 b; 11 135 b; 2 Saund. 212, n. (4) ; Bever- 
 
 Rep. 43b; 3 Bl. Com. 24. ley's case, 4 Rep. 124 b; Oulds v. 
 
 (m) Pope Boniface the eighth, in Sansom, 5 Taunt. 261. A lunatic, 
 
 6 Decretal. 1. 3, t. 16', s. 4, speaks of however, may appear by attorney. 
 
 ** procuratoribus, qui in aliquibus pur- Beverley'scase,ubisup.; Humphreys 
 
 tibus atornati nunctipantur." v. Griffiths, 6 Mee. & W. 89. 
 
 («) Stiernh. De Jur. Goth. 1. i. c. 6.
 
 366 
 
 BOOK V.— OF CIVIL INJURIES. 
 
 [ fuisset, alterius nomine agi non posse, set! quia hoc non mini- 
 mam incommoditatem habebat, cosperunt homines per procu- 
 ratores litigare" (q), so with us, upon the same principle of 
 convenience, it is now permitted in general (r), that attor- 
 neys may be made to prosecute or defend any action in the 
 absence of the parties to the suit. These attorneys are now 
 formed into a regular corps ; they are admitted to the exe- 
 cution of their office by the superior courts (s) ; and are in 
 all points officers of the respective courts in which they are 
 admitted : and, as they have many privileges on account of 
 their attendance there (t), so they are peculiarly subject to 
 the censure and animadversion of the judges.] But as to 
 the particular regulations applicable to attorneys and soli- 
 citors we must refer the reader to a former chapter (u), in 
 which we had occasion to consider this matter in detail. 
 
 Of counsel, called, among the civilians, advocates, there 
 are in our courts of common law and equity [two species 
 or degrees : barristers and Serjeants. The former are ad- 
 mitted after a considerable period of study, or at least 
 standing, in the Inns of Court (v) ; and are in our old 
 books styled apprentices, apprenticii ad legem, being looked 
 upon as merely learners, and not qualified to execute the 
 full office of an advocate till they were sixteen years 
 
 (7) Inst. 4, tit. 10. 
 
 (r) According to Blackstone this 
 was first permitted by stat. West. 2, 
 c. 10 (see 3 Bl. Com. 26). It was 
 provided, however, by a previous sta- 
 tute (statute of Merton, 20 Hen. 3, 
 c. 10), that every freeman might 
 make attorney in suit to the court of 
 the county, tithing, hundred, and 
 wapentake, or the court of his lord. 
 And even in the time of Henry the 
 second, a party who had appeared in 
 person might afterwards appoint an 
 attorney (respomalis) to represent him 
 in the cause. Glan. lib. xi. c. 1. 
 
 (s) So early as the statute 15 Edw. 
 2, regulations were made as to the 
 
 admission of attorneys ; and by 4 
 Hen. 4, c. 18, it was enacted, that 
 attorneys should be examined by the 
 judges, and none admitted but such 
 as were virtuous, learned, and sworn 
 to do their duty. The regulations to 
 which they are now subject are to be 
 found in the statute 6 & 7 Vict. c. 
 73, by which the two statutes first 
 mentioned (with others on the same 
 subject) are repealed. See as to at- 
 torneys, Reg. Gen. Hil. T. 1853, r. 
 2—5, 165, 167. 
 
 (t) As to certain of these privi- 
 leges, vide sup. p. 304, n. (h). 
 
 (u) Vide sup. bk. iv. pt. 3, c. 12. 
 
 (i>1 Vide. sup. vol. i. p. 1'.).
 
 CHAP. III. — OF THE COURTS IN GENERAL. 3G7 
 
 [standing ; at which time, according to Fortescue (x), they 
 might be called to the state and degree of Serjeants, or ser- 
 vientes ad legem (y). How antient and honourable this state 
 and degree is, with the form, splendour, and profits attending 
 it, hath been so fully displayed by many learned writers (s), 
 that it need not be here enlarged on.] It is sufficient to 
 observe, [that Serjeants at law are bound by a solemn 
 oath (a) to do their duty to their clients : and that by cus- 
 tom (b) the judges of the courts of Westminster are always 
 admitted into this venerable order before they are advanced 
 to the bench (c). From both these degrees some are usually 
 selected to be her majesty's counsel learned in the law; the 
 two principal of whom are called her attorney and solicitor- 
 general. The first king's counsel, under the degree of Ser- 
 jeant, was Sir Francis Bacon, who was made so hoiroris 
 causa, without either patent or fee(rf); so that the first of 
 the modern order (who are now the sworn servants of the 
 crown, with a standing salary) seems to have been Sir 
 Francis North, afterwards lord keeper of the great seal to 
 King Charles the second (e). These queen's counsel answer 
 
 (j) De LL. c. 50. Dugdal. Orig. Jurid. ; Case of the 
 
 (y) A barrister, upon taking the Serjeants, 6 Bing. N. C. 235. To 
 
 degree of the coif or becoming a ser- which may be added a tract by the 
 
 jeant, retires from the inn of court by late Serjeant Wynne, printed in 1765, 
 
 which he was called to the bar and entitled " Observations touching the 
 
 becomes a member of Serjeants' Inn. "Antiquity and Dignity of the De- 
 
 Of these, in former times, there "gree of Serjeant at Law;" and a 
 
 were three: Scroop's Inn, or Ser- late publication on the same subject, 
 
 jeants' Place, opposite St. Andrew's by Mr. Serjeant Manning. Et vide 
 
 Church, Holborn ; Serjeants' Inn, sup. vol. i. p. 17. 
 
 Fleet Street ; and Serjeants' Inn (a) 2 Inst. 21 K 
 
 (once called Faryndon Inn), Chan- (ft) Fortesc. c. 50. 
 
 eery Lane; but only the last remains (c) Blackstone thinks that "the 
 
 at the present day a law society. In " original of this was probably to 
 
 the Hall of this Inn, during term, " qualify the puisne barons of the 
 
 the judges and Serjeants dine toge- " Exchequer to become justices of 
 
 ther, and there the judges sit as visi- " assize, according to the exigence 
 
 tors of the inns of court. It is also " of the statute 14 Edw. 3, c. 16." — 
 
 used for holding the revenue sittings 3 Bl. Com. p. 27. 
 
 of the Court of Exchequer (vide post, (d) See his Letters, 256. 
 
 p. 372). (e) See his Life by Roger North, 
 
 (0 Fortesc. c. 50; 10 Rep. pref. ; 37.
 
 368 
 
 BOOK V 
 
 -OF CIVIL INJURIES. 
 
 [in some measure to the advocates of the revenue, advocati 
 fisci, among the Romans. For they must not be employed 
 in any cause against the crown without special licence (/) ; 
 in which restriction they agree with the advocates of the 
 fisc (a) ; but in the imperial law the prohibition was carried 
 still farther, and perhaps was more for the dignity of the 
 sovereign ; for, excepting some peculiar causes, the fiscal 
 advocates were not permitted to be at all concerned in pri- 
 vate suits between subject and subject (h). A custom has 
 of late years prevailed of granting letters patent of prece- 
 dence to such barristers as the crown thinks proper to 
 honour with that mark of distinction ; whereby they are 
 entitled to such rank and pre-audience (i) as are assigned 
 in their respective patents : sometimes next after the king's 
 attorney-general, but usually next after his majesty's coun- 
 sel then being. These (as well as the queen consort's 
 attorney and solicitor-general (j) ) rank promiscuously with 
 
 (/) Hence none of the king's 
 counsel can publicly plead in court 
 for a prisoner, or a defendant in a 
 criminal prosecution, without a li- 
 cence, which is never refused, but an 
 expense of about 9/. must be incurred 
 in obtaining it. Christian's Black, 
 vol. iii. p. 27, n. («)• 
 
 (g) Cod. 2, 2, 1. 
 
 (h) Ibid. 2, 7, 13. 
 
 (i) Pre-audience in the courts is 
 reckoned of so much consequence, 
 that it may not be amiss to subjoin 
 a short table of the precedence at the 
 bar. 
 
 1. The king's (or queen's) attor- 
 ney-general. By the king's man- 
 date, 14th December, 1814, the at- 
 torney and solicitor-general are to 
 have place and audience before the 
 king's premier serjeant. See 6 Taunt. 
 424. In the time of Blackstone they 
 took rank after him, and also after 
 the king's antient serjeant and the 
 king's advocate general. 
 
 2. The king's solicitor-general. 
 
 3. The king's premier serjeant 
 
 (so constituted by special pa- 
 tent). 
 
 4. The king's antient serjeant, or 
 
 the eldest among the king's 
 Serjeants. 
 
 5. The king's advocate- general. 
 
 6. The king's Serjeants. 
 
 7. The king's counsel, with the 
 
 queen consort's attorney and 
 solicitor. 
 
 8. Serjeants at law. 
 
 9. The recorder of London. 
 
 10. Advocates of the civil law. 
 
 11. Barristers. 
 
 In the Court of Exchequer two bar- 
 risters, called the />os<-man and the 
 tuft-man (from the places in which 
 they sit), have also a precedence in 
 motions. See R. v. Bishop of Exe- 
 ter, 7 Mee. & W. 188. 
 
 (j) Seld. Tit. of Hon. 1, 6, 7. 
 Vide sup. vol. ii. p. 433.
 
 CHAP. III. OF THE COURTS IN GENERAL. 369 
 
 [the queen's counsel, and together with them sit within the 
 bar of the respective courts ( h) : but receive no salaries, and 
 are not sworn ; and therefore are at liberty to be retained 
 in causes against the crown. And all other Serjeants and 
 barristers indiscriminately (I) may take upon them the pro- 
 tection and. defence of any suitors, whether plaintiff or 
 defendant ; who are therefore called their clients, like the 
 dependents upon the antient Roman orators. Those indeed 
 practised gratis, for honour merely, or at most for the sake 
 of gaining influence : and so likewise it is established with 
 us (m) that a counsel can maintain no action for his fees ; 
 which are given, not as locatio vel conductio, but as (juiddam 
 honorarium ; not as a salary or hire, but as a mere gra- 
 tuity, which a counsellor cannot demand without doing 
 wrong to his reputation (w) : as is also laid down with re- 
 gard to advocates in the civil law (o), whose honorarium was 
 directed by a decree of the senate not to exceed in any case 
 ten thousand sesterces, or about 80/. of English money (p). 
 And, in order to encourage due freedom of speech in the 
 lawful - defence of their clients, and at the same time to 
 
 (k) Utter (or outer) barristers are Vict. c. 18, s. 61, it was afterwards 
 
 those who are not entitled to sit enacted, that, in the particular case of 
 
 within the bar. appeals to the Common Pleas from 
 
 (/) Until a recent period, an ex- the decision of the revising barris- 
 ception to this had immemorially ters, on the right of voting at par- 
 existed as regards the Court of Com- liamentary elections, all barristers 
 mon Pleas, the Serjeants having al- should be entitled to audience. And 
 ways had the exclusive privilege of now by 9 & 10 Vict. c. 54, it is pro- 
 being heard in that court, at its sit- vided generally, that all barristers at 
 tings in banc, and no other counsel law, according to their respective 
 being admitted there. And though rank and seniority, shall have equal 
 in 1834 a warrant issued under the right and privilege of practising, 
 sign manual, directing that this pri- pleading, and audience, in the Court 
 vilege should cease, yet the Court of of Common Pleas at Westminster, 
 Common Pleas refused to act upon with the Serjeants at law. See3C. B. 
 its authority, and decided that the 537. 
 
 privilege, being founded on imme- (m) Davis, pref. 22 ; 1 Ch. Rep. 
 
 morial usage, could not be taken 38. 
 
 away by the warrant of the crown. (;i) Davis, 23. 
 
 Case of the Serjeants, 6 Bing. N. C. (o) Ff. 11, 6, 1. 
 
 235. By statute, however, 6 & 7 (p) Tac. Ann. 1, 11, 7. 
 
 VOL. III. .\ B B
 
 370 BOOK V. — OF CIVIL INJURIES. 
 
 [give a check to the unseemly licentiousness of prostitute 
 and illiberal men, (a few of whom may sometimes insinuate 
 themselves even into the most honourable professions,) it 
 hath been holden that a counsel is not answerable for any 
 matter by him spoken relative to the cause in hand, and 
 suggested in his client's instructions ; although it should 
 reflect upon the reputation of another, and even prove ab- 
 solutely groundless (q) : but if he mention an untruth of 
 his own invention, or even upon instructions, if it be imper- 
 tinent to the cause in hand, he is then liable to an action 
 from the party injured (r). And counsel guilty of deceit 
 or collusion are punishable by the statute of Westminster 
 the first, 3 Edw. I. c. 28, with imprisonment for a year and 
 a day, and perpetual silence in the courts ; a punishment] 
 that even in modern times has been [inflicted for gross mis- 
 demeanors in practice (s).] 
 
 We shall close this chapter with a remark applicable 
 both to attornies and counsel, viz. that they possess the 
 exclusive privilege of transacting business in the courts of 
 justice in matters in which they are not personally con- 
 cerned. For no man can conduct the practical proceed- 
 ings in a cause to which he is himself not party, unless 
 he be an attorney (t) ; nor is any man allowed to address 
 the court in such a cause, unless he be either attorney or 
 counsel (it). In the superior courts, indeed, the latter pro- 
 
 (9) Vide Hodgson v. Scarlett, 1 B. these purposes with the party him- 
 
 & Aid. 232. But the subsequent self. It has been decided, however, 
 
 publication of such matter is unlaw- that there is no compulsory rule on 
 
 ful. Flint, v. Pike, 4 B. & C. 473. this subject, and that it is governed 
 
 (r) Brook ?;. Sir H. Montague, only by the conventional usage of 
 
 Cro. Jac. 90. the bar, founded on considerations 
 
 (s) Ray. 37(5. of propriety and convenience. See 
 
 (0 Vide 6 & 7 Vict. c. 73, s. 2. In- the judgment of Lord Campbell, Doe 
 
 dependently of their exclusive right d. Bennett v. Hale, 15 Q. B. 171. 
 of conducting the practical proceed- (u) It seems that the same rule 
 
 ings (or business out of court), it is exists in the case of proceedings 
 
 by the attornies alone that the coun- before the under-sheriff, vide Tribe 
 
 sel are retained and instructed to v. Wingfield, 2 Mee. & W. 128. The 
 
 address the court; — it being unusual only exception to this rule is, that 
 
 for the latter to communicate for by 15 & 16 Vict. c. 54, s. 10, it is
 
 CHAP. III. — OF THE COURTS IN GENERAL. 
 
 371 
 
 vince belongs to counsel alone, exclusively even of the at- 
 torneys (x). 
 
 provided, as to the county courts, 
 that any person, though not a bar- 
 rister or attorney, rnay hy leave of the 
 judge address the court instead of the 
 party, 
 
 (i) Collier v. Hicks, 2 B. & Ad. 
 668. This privilege of counsel is of 
 great antiquity. Notices of it occur 
 in the reign of Henry the third ; 
 Plac. Ab. 137 ; Cane. Rot. 22, temp. 
 32 Hen. 3 ; Matt. Par. Hist. p. 1077. 
 And it is probable that it was of 
 much earlier date than this. As to 
 this privilege of counsel at quarter 
 sessions, see Ex parte Evans, 9 Q. B. 
 
 279. We may remark here, that by 
 6 Geo. 4, c. 50, s. 2, practising bar- 
 risters and attorneys are exempt from 
 serving on juries ; and by 5 & 6 Vict, 
 c. 109, s. 6, exempt from serving as 
 parish constables ; and they are also 
 exempt from the office of overseers. 
 (See Arch. Justice of the Peace, 
 Poor, 113.) They are also privileged 
 from arrest in civil cases, while at- 
 tending the courts eundo, morundo, 
 et redeundo. Luntly v. Nathaniel, 2 
 Dovvl. P. C. 51 ; Newton v. Constable, 
 2 Q. B. 157 ; Whalley v. Pepper, 7 
 Car. & P. 514. 
 
 13 B. 2
 
 372 BOOK V. — OF CIVIL INJURIES. 
 
 CHAPTER IV. 
 
 OF THE COURTS OF GENERAL JURISDICTION — AND, 
 FIRST, OF THOSE OF COMMON LAW AND EQUITY. 
 
 [We are next to consider the several species and distinc- 
 tions of courts of justice, which are acknowledged and used 
 in this kingdom. And these are either such as are of 
 public and general jurisdiction throughout the whole realm; 
 or such as are only of a private and special jurisdiction in 
 some particular parts of it. Of the former there are four 
 sorts; — the universally established courts of common law 
 and equity (a) ; the ecclesiastical courts ; the courts military; 
 and courts maritime (b). And, first, of such public courts 
 as are courts of common law and equity. 
 
 The policy of our antient constitution, as regulated and 
 established by the great Alfred, was to bring justice home 
 to every man's door, by constituting as many courts of 
 judicature as there are manors in the kingdom; wherein 
 injuries were redressed, in an easy and expeditious manner, 
 by the suffrage of neighbours and friends. These little 
 courts, however, communicated with others of a larger ju- 
 risdiction, and those with others of a still greater power ; 
 ascending gradually from the lowest to the supreme courts, 
 which were respectively constituted to correct the errors of 
 the inferior ones, and to determine such cases as, by reason 
 
 (a) As to the distinction between part of the common law of the realm, 
 
 common law and equity, vide sup. vide sup. vol. i. pp. 60, 61. It will 
 
 vol. i. p. 80. be observed, however, that in the 
 
 (/>) The ecclesiastical, military and distinction above laid down, they are 
 
 maritime laws, though founded on the distinguished (as convenience usually 
 
 imperial and canonical constitutions, requires) from the common law. 
 are in one sense to be considered as
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 373 
 
 [of their weight and difficulty, demanded a more solemn 
 discussion ; the course of justice flowing in large streams 
 from the king, as the fountain, to his superior courts of 
 record ; and being then subdivided into smaller channels, 
 till the whole and every part of the kingdom were plenti- 
 fully watered and refreshed. An institution that seems 
 highly agreeable to the dictates of natural reason, as well 
 as of more enlightened policy; being equally similar to 
 that which prevailed in Mexico and Peru before they were 
 discovered by the Spaniards, and to that which was esta- 
 blished in the Jewish republic by Moses. In Mexico, 
 each town and province had its proper judges, who heard 
 and decided causes, except when the point in litigation 
 was too intricate for their determination ; and then it was 
 remitted to the supreme court of the empire, established 
 in the capital, and consisting of twelve judges (c). Peru, 
 according to Garcilasso de Vega, (an historian descended 
 from the antient Incas of that country,) was divided into 
 small districts containing ten families each, all registered 
 and under one magistrate, who had authority to decide 
 little differences and punish petty crimes. Five of these 
 composed a higher class of fifty families ; and two of these 
 last composed another, called a hundred. Ten hundreds 
 constituted the largest division, consisting of a thousand 
 families; and each division had its separate judge or 
 magistrate, with a proper degree of subordination (d). In 
 like manner we read of Moses, that, finding the sole ad- 
 ministration of justice too heavy for him, he " chose able 
 " men out of all Israel, such as feared God, men of truth, 
 " hating covetousness ; and made them heads over the 
 " people, rulers of thousands, rulers of hundreds, rulers of 
 " fifties, and rulers of tens : and they judged the people at 
 " all seasons; the hard causes they brought unto Moses, 
 " but every small matter they judged themselves" (e).] 
 These inferior courts, at least the name and form of them, 
 
 (c) Mod. Un. Hist, xxxviii. 469. (e) Exod. c. 18. 
 
 (d) Ibid, xxxix. 14.
 
 374 ROOK V. OF CIVIL INJURIES. 
 
 still continue in our legal constitution : but as the superior 
 courts have in practice obtained for the most part a con- 
 current original jurisdiction with the inferior (/*); and as 
 there is besides a power of removing plaints or actions 
 from the. latter to the former ; upon these accounts (among 
 others) [it has happened that these petty tribunals have 
 fallen into decay, and almost into oblivion :] though one 
 of them (as we shall presently see) has recently been 
 selected as the stock on which to graft a new species of 
 inferior court, with an enlarged jurisdiction and of a very 
 efficient character. 
 
 [The order we shall observe in discoursing on these 
 several courts, constituted for the redress of civil injuries, 
 (for with those of a jurisdiction merely criminal we are not 
 at present concerned,) will be by beginning with the lowest, 
 and those whose jurisdiction, though public and generally 
 dispersed throughout the kingdom, is yet (with regard to 
 each particular court) confined to narrow limits ; and so 
 ascending gradually to those of the most extensive and 
 transcendent power. 
 
 1. The court baron (g) is a court incident to every manor 
 in the kingdom, to be holden by the steward within the 
 said manor. This court baron is of two natures (h) : the 
 one is a customary court, of which we formerly spoke (i), 
 appertaining entirely to the copyholders, in which their 
 estates are transferred by surrender and admittance, and 
 other matters transacted relative to their tenures only : 
 
 (/) Over some causes, however, 3 & 4 Vict. c. 24.) And now by 13 
 
 if to the amount of 40s. only, viz. in & 14 Vict. c. 61, s. 11 — 13, if in an 
 
 trespasses for goods, the inferior action ex contractu, brought in the 
 
 courts have, by the statute of Glou- superior courts, the plaintiff recovers 
 
 cester, a jurisdiction exclusive of the no more than 20/., or in an action ex 
 
 superior courts. 3 Bl. Com. It has delicto, no more than 5/., he will in 
 
 also long been the rule, that if it ap- general be allowed no costs (vide 
 
 pear that the sum for which the ac- post, p. 381). 
 
 tion is brought in a superior court is (g) 4 Inst. 268. 
 
 less than 40s. the proceedings will (/i) Co. Litt. 58. 
 
 be stayed ; Arch. Pr. by Chitty, 1206. (i) Sup. vol. i. pp. 207, 212. 
 Seealso43Eliz.c. 6; 21Jac. l.c.16:
 
 CHAP. TV. — OF THE COURTS OF GENERAL JURISDICTION. 375 
 
 [the other, of which we now speak,] and of which we also 
 took some notice in a former place (j), [is a court of com- 
 mon law, and it is the court before the freeholders who 
 owe suit and service to the manor, the steward being rather 
 the registrar than the judge. These courts, though in their 
 nature distinct, are frequently confounded together. The 
 court we are now considering, viz. the freeholders' court, 
 was composed of the lord's tenants, who were the pares of 
 each other, and were bound by their feodal tenure to assist 
 their lord in the dispensation of domestic justice. This 
 was formerly held every three weeks ; and its most im- 
 portant business was to determine, by writ of right, all 
 controversies relating to the right of lands within the ma- 
 nor.] But now by 3 & 4 Will. IV. c. 27, s. 36, all writs 
 of right, and other real and mixed actions (except writs of 
 right of dower, writs of dower, quare impedit, and eject- 
 ment), and all plaints in the nature of such actions (except 
 plaints for dower or freebench) are abolished. [It may 
 also hold plea of any personal actions, of debt, trespass on 
 the case, or the like, where the debt or damages do not 
 amount to 40s. (k) ; which is the same sum, of three marks, 
 that bounded the jurisdiction of the antient Gothic courts 
 in their lowest instance, or fierding courts, so called be- 
 cause four were instituted within every superior district or 
 hundred (/).] But the proceedings [may be removed into 
 the superior courts by the king's writs of pone, or accedas 
 ad curiam, according to the nature of the suit (m) ;] and 
 [after judgment given, a writ also of false judgment (n) lies 
 to the courts at Westminster, to rehear and review the 
 cause;] which circumstances being productive of great 
 
 0) Sup. vol. i. pp. 207, 212. Bing. 344 ; Walker v. Watson, 8 
 
 (fe) Finch, 248. Bing. 414. ; Finch v. Brook, 1 Bing. 
 
 (I) Stiernhook, De Jure Goth. 1. i. N. C. 253 ; S. C. 2 Bing. N. C. 324 ; 
 
 c. 2. Overton v. Swettenham, 3 Bing. N. 
 
 (m) F.N. B. 4, 70; Finch, L. 444, C. 786 ; 1 Man. & Gr. 41, n. (»); 
 
 445. Crookes v. Longden, 5 Bing. N. C. 
 
 (n) F. N. B. 18. As to writs of 410. 
 false judgment, see Scott v. Bye, 2
 
 376 BOOK V.— OF CIVIL INJURIES. 
 
 vexation and delay, this court has now fallen into almost 
 entire disuse (r). The only other point relating to it, which 
 seems worthy of notice in this place, is, that it does not 
 belong to the class of courts of record. 
 
 II. [A hundred court is only a larger court baron, being 
 held for all the inhabitants of a particular hundred, instead 
 of a manor. The free suitors are here also the judges 
 and the steward the registrar, as in the case of a court 
 baron (s). It is likewise no court of record ; resembling the 
 former in all points, except that in point of territory it is of 
 a greater jurisdiction (t). This is said by Sir Edward Coke 
 to have been derived out of the county court for the ease of 
 the people, that they might have justice done to them at 
 their own doors, without any charge or loss of time (u) ; 
 but its institution was probably coeval with that of hun- 
 dreds themselves, which were formerly observed {x) to 
 have been derived from the polity of the antient Germans. 
 The centeni were the principal inhabitants of a district com- 
 posed of different villages, originally in number an hundred, 
 but afterwards only called by that name {y) ; and who 
 probably gave the same denomination to the district out of 
 which they were chosen. Csesar speaks positively of the 
 judicial power exercised in their hundred courts and courts 
 baron. " Principes regionum, atque pagorum, (which we 
 may fairly construe, the lords of hundreds and manors,) 
 inter suos jus dicunt controversiasque minuunt " (z). And 
 Tacitus, who had examined their constitution still more 
 
 (r) By 9 & 10 Vict. c. 95, s. 14, vide Bradley v. Carr, 3 Man. & Gr. 
 
 provision is made enabling the lord 221. 
 
 of any hundred or of any honor, (t) Finch, L. 248; 4 Inst. 267. 
 
 manor, or liberty, having any court («) 2 Inst. 71. 
 
 in right thereof, in which debts or (j) Vol. i. p. 119. 
 
 demands may be recovered, to sur- (y) " Centeni ex singulis pngis sunt, 
 
 render to her Majesty the right of idque ipsum inter suos vocantur ; et, 
 
 holding such court ; after which such quod piimo numerus fuit, jam nomen 
 
 court shall be discontinued. et honor est." — Tac. De Mor. Germ. 
 
 (s) As to the office of steward of c. 6. 
 the hundred court or court baron, (z) De Bell. Gall. 1. 6, c. 22.
 
 CHAP. IV. — OF THE COURTS OF GENERAL, JURISDICTION. 377 
 
 [attentively, informs us not only of the authority of the 
 lords, but of that of the centeni, the hundredors, or jury; 
 who were taken out of the common freeholders, and had 
 themselves a share in the determination. " Kliguntur in 
 conciliis et principes, qui jura per pagos vicosque reddunt; 
 centeni singulis, ex plebc comites, consilium simul et auctori- 
 tas, adsunt' 1 (a). This hundred court was denominated 
 haercda in the Gothic constitution {b).~\ We may remark 
 with respect to it, that [causes are equally liable to removal 
 from hence, as from the common court baron, and by the 
 same writs, and may also be reviewed by writ of false 
 judgment.] But in practice no resort to this court is ever 
 made(c). 
 
 III. [The county court (d).~\ And here, first, we shall 
 speak of the county court as it exists at common law, 
 and independently of the branch now added to it by sta- 
 tute, of which more hereafter. This is a court incident 
 to the jurisdiction of the sheriff. It is not a court of 
 record,] but might, till the introduction of the new court 
 just referred to, [hold pleas of debt or damages under 
 the value of 40s. (e). It might also hold plea of many 
 real actions,] before such actions were abolished, and may 
 still entertain [all personal actions to any amount, by 
 virtue of a special writ called ajusticies; which is a writ 
 empowering the sheriff, for the sake of dispatch, to do the 
 same justice in his county court, as might otherwise be 
 had at Westminster (f ). The freeholders of the county 
 are the real judges in this court, and the sheriff is the minis- 
 terial officer. The great conflux of freeholders, which are 
 supposed always to attend at the county court, (which 
 
 (u) De Morib. Germ. c. 13. 3 C. B. 2 1:5. 
 
 (6) Stiernhook, 1. i. c. 2. (/) Finch, 318 ; F.N.B. 152. The 
 
 (c) As to the surrender of the right writ of justicies has long fallen into 
 of holding a hundred court for the disuse. But it is presumed that it is 
 recovery of debts or demands, vide still in force, and not taken away by 
 sup. p. 37b', note (r). the new County Court Acts (vide 9 
 
 (d) See 4 Inst. 266. & 10 Vict c. 95, s. 4.) 
 
 (e) Ibid. Tinniswood v. Pattison,
 
 378 BOOK V. OF CIVIL INJURIES. 
 
 [Spelman calls "forum plebeice justitics et theatrum comi- 
 tiva potestatis (h),") is the reason why all acts of parlia- 
 ment at the end of every session were wont to be there 
 published by the sheriff; why all outlawries are there 
 proclaimed ; and why all popular elections which the free- 
 holders are to make, as formerly of sheriffs and conser- 
 vators of the peace, and still of coroners, verderors, and 
 knights of the shire, must ever be made in pleno comi- 
 tatu, or in full county court. By the statute 2 Edw. VI. 
 c. 25, no county court shall be adjourned longer than for 
 one month, consisting of twenty-eight days. And this was 
 also the antient usage, as appears from the laws of King 
 Edward the elder (i) : propositus (that is, the sheriff) ad 
 quartam circiter septimanam frequentem populi concionem 
 celehrato : cuique jus dicito : litesque singulas dirimito." 
 In those times the county court was a court of great dig- 
 nity and splendour, the bishop and the ealdorman (or earl), 
 with the principal men of the shire, sitting therein to ad- 
 minister justice, both in lay and ecclesiastical causes (7e). 
 But its dignity became much impaired, when the bishop 
 was prohibited and the earl neglected to attend it;] and in 
 modern times but little resort to it has been had as a court 
 for recovery of debt or damages. And now its jurisdiction 
 in this respect, save only in the case of a writ of justicies, 
 seems to be abolished ; for, though by sect 4 of 9 & 10 Vict. 
 c. 95, it is provided that, for all purposes except those within 
 the jurisdiction of the new county courts, the antient county 
 court shall be holden as before, this exception seems to ex- 
 clude its whole ordinary jurisdiction for recovery of debt 
 and damages. We may observe here, that while that juris- 
 diction existed, proceedings were [removable from the county 
 court into the superior courts, by writ of pone or recordari, 
 in the same manner as from hundred courts and courts 
 baron ;] and any errors corrected by means of the same 
 writ of false judgment {I). 
 
 (h) Gloss, v. Comitatus. (/) As to the practice on removal 
 
 (£) C. 11. y "pone" or "recordari," see Ro- 
 
 (k) LL. Eadgari, c. 5. binson v. Mainwaring, 10 Q. B. 274.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 379 
 
 The disuse into which this court gradually fell was 
 chiefly owing to the dilatory and expensive character of its 
 proceedings, as applied to the recovery of demands of small 
 amount ; and as the remedy afforded by the superior courts 
 was, in this respect, still more objectionable, this state of 
 things gave rise long since to the introduction of courts of 
 requests (or of conscience) in various parts of the kingdom, 
 for recovery of such demands. These latter courts, how- 
 ever, proved in their turn inadequate to the purpose (chiefly 
 because confined to sums of too trivial an amount, and ex- 
 tending only to particular places or small districts); and the 
 necessity being generally felt of establishing throughout the 
 whole kingdom some satisfactory and uniform plan of pro- 
 ceeding (m) for recovery of all debts and demands below 
 the amount which could conveniently be sued for in the 
 superior courts, it was conceived that new inferior courts, 
 with improved machinery, and a more ample jurisdiction, 
 might advantageously be erected, under the name of County 
 Courts, which should form as it were, a graft upon that 
 antient and well known institution (»). This design has 
 been carried out by the statute 9 & 10 Vict. c. 95, (amended 
 by 12 & 13 Vict. c. 101, 13 & 14 Vict. c. 61, and 15 & 16 
 Vict. c. 54,) a short account of the enactments of which 
 shall here be given, premising only that, by the effect of 
 the act first mentioned, and of an order in council subse- 
 quently made thereon (o) pursuant to its provisions (p), the 
 courts of requests have in general been abolished (q), and 
 
 (m) See preamble of 9 & 10 Vict. (o) By order in council, 9th May, 
 
 c. 95. 1847, the several courts hoklen for 
 
 («) Prior to this an attempt had the recovery of small debts or de- 
 been made to improve the means of mands, under the provisions of any 
 recovering small debts in another act or acts cited in schedules (A) 
 way, viz. by extending the jurisdic- and (B) annexed to the 9 & 10 Vict. 
 tion of the courts of requests and c. 95, are abolished, with a few ex- 
 other similar courts, and reforming ceptions. 
 
 their practice, see 8 & 9 Vict. c. 127 (p) 9 & 10 Vict. c. 95, s. 5. 
 
 (repealed, so far as it affects the ju- (q) It is also now farther provided, 
 
 risdiction of the county courts, by 9 by 15 & 16 Vict. c. 54, s. 7, that on 
 
 & 10 Vict. c. 95, s. 6). the petition of the council of any
 
 380 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 new county courts for the recovery of small debts and de- 
 mands established throughout England and Wales. 
 
 It is provided by these acts, that for all purposes, except 
 those within the jurisdiction of the new courts thereby 
 established, the antient county courts shall be holden as 
 before (q) ; but the jurisdiction conferred on the new courts 
 (which we shall describe for the future simply as the 
 " County Courts," by way of distinction from the antient 
 ' ^county courts), includes all personal actions (r), where the 
 debt or damage claimed is not more than 50/., whether on 
 balance of account or otherwise (s), — with the exception 
 however of actions of ejectment (t), and actions in which 
 the title to any corporeal or incorporeal hereditaments (u), 
 or to any toll(u), fair, market, or other franchise, shall be 
 in question, or in which the validity of any devise, bequest, 
 or limitation, under will or settlement, may be disputed, 
 
 borough, or the majority of the rate- 
 payers of any parish, within the li- 
 mits of which a court of local juris- 
 diction other than a county court is 
 established, her Majesty may, by 
 order in council, exclude the juris- 
 diction of such local court through- 
 out the whole or any part of the 
 district of the county court. 
 
 (?) 9 & 10 Vict. c. 95, s. 4. As to 
 the antient county courts, vide sup. 
 p. 377. 
 
 (r) The term "personal actions" 
 is used by way of distinction from 
 real or mixed actions, as to which, 
 vide post, c. vii. A question has 
 been raised whether the action of 
 detinue is included in the jurisdic- 
 tion of the county courts ; Hand v. 
 Daniels, 1 L. M. & P. 420. See 
 however 13 & 14 Vict. c. 61, s. 11. 
 
 (s) As to what is included in the 
 expression " balance of account or 
 otherwise," within the meaning of 
 
 the County Courts Acts, see Wood- 
 hams v. Newman, 7 C. B. 654; Bes- 
 wick v. Capper, ib. 669. 
 
 (t) As to the nature of an eject- 
 ment, vide post, c. xi. 
 
 (it) The county court has a juris- 
 diction, however, to issue a warrant 
 for giving possession to a landlord 
 where his tenant holds over, and the 
 rent did not exceed 50/. per annum; 
 9 & 10 Vict. c. 95, s. 122. As to 
 which, see Banks v. Rebbeck, 2 L. 
 M. & P. 452. And a case will not 
 fall within the exception mentioned 
 in the text, as to actions in which 
 the title is in question, unless it be 
 bond fide in question, see Tinnis- 
 wood v. Pattison, 3'C. B. 243 ; Lloyd 
 v. Jones, 6 C. B. 81 ; Latham v. 
 Spcdding, 20 L. J. (Q. B.) 302. 
 
 (v) As to whatsis a question of 
 title to toll, see Hunt v. Great Nor- 
 thern Railway Company, 2 L. M. & 
 P. 268.
 
 CHAP. IV, OF THE COURTS OF GENERAL JURISDICTION. 38 1 
 
 and actions brought for any malicious prosecution (w), libel, 
 slander, criminal conversation, seduction, or breach of pro- 
 mise of marriage (x). It also extends to the recovery of any 
 demand not exceeding the sum of 50/., being the whole or 
 part of the unliquidated balance of a partnership account, 
 or of the amount claimed by way of distributive share 
 under an intestacy, or of any legacy under a will (?/). And 
 by agreement of both parties, it is also made capable of em- 
 bracing even debts and demands to the amount of more 
 than 50/., and actions in which the title to land, or to any 
 tithe, toll, or franchise shall be in question (z). In order 
 moreover to promote the resort to the county courts in cases 
 of no considerable amount, it is enacted that if in any 
 action commenced in any of the superior courts in cove- 
 nant, debt, detinue, or assumpsit (a), (not being for breach 
 of promise of marriage), the plaintiff shall recover no 
 more than 20/. ; or if in any action commenced in any 
 of those courts in trespass, trover, or case, (not being for 
 malicious prosecution, libel, slander, criminal conversation, 
 
 (w) As to what cause of action 
 is a malicious prosecution within the 
 meaning of this exception, see Jones 
 v. Currey, 2 L. M. & P. 474. 
 
 (2) 9 & 10 Vict. c. 95, s. 58 ; 13 o & 
 14 Vict. c. 61, s. 1. By the first of 
 these acts the jurisdiction was limited 
 to 20/., and by the second raised 
 to 50/. It is to be observed that 
 neither limitation applies to an ac- 
 tion of replevin; 9 & 10 Vict. c. 95, 
 s. 119. As to the nature of this ac- 
 tion, vide post, c. vi. 
 
 (y) 9 & 10 Vict.c. 95, s. 65. These 
 are cases in which an action cannot 
 be entertained even in the superior 
 courts of the common law, the re- 
 medy being in the courts of equity 
 or the courts ecclesiastical. 
 
 (s) While we are on the subject of 
 the jurisdiction of the county courts. 
 
 it may be proper to remark, that be- 
 sides their principal business as 
 common law courts, they are to per- 
 form all such duties relating to cases 
 depending in the Court of Chancery 
 as the Lord Chancellor may from 
 time to time think proper to direct, 
 9 & 10 Vict. c. 95, s. 22 ; that.' they 
 are charged with a jurisdiction under 
 the Insolvent Acts (vide sup. vol. ii. 
 p. 170, n. (d), 181), and with that of 
 enforcing payment from debtors upon 
 judgments obtained in the superior 
 and other courts, for sums not ex- 
 ceeding 20/. ; 10 cS: 11 Vict. c. 102 ; 
 and that they are empowered to de- 
 termine disputes between the mem- 
 bers and trustees, &c. of friendly so- 
 cieties ; 13 & 14 Vict. c. 115, s. 22. 
 (a) As to these forms of action, 
 vide post, c. vii.
 
 382 
 
 BOOK V.— OF CIVIL INJURIES. 
 
 or seduction,) the plaintiff shall recover no more than 51., 
 the plaintiff shall have judgment to recover such sum 
 only, without costs (a), unless the judgment be by de- 
 fault, or unless it be certified by the judge who tries the 
 cause, or it appear to the court itself, that there was suf- 
 ficient reason for bringing the action there (b). To this 
 general rule, however, there are certain exceptions; for 
 where the plaintiff dwells more than twenty miles from the 
 defendant, or where the cause of action did not arise 
 wholly, or in some material point, within the jurisdiction 
 of the court, within which the defendant dwells or carries 
 on his business at the time of the action being commenced, 
 or (in general) where any officer of the county court is a 
 party, in any of these cases all actions and proceedings may 
 be brought in the superior courts, at the election of the 
 party suing or proceeding (c). It is also provided, that no 
 
 (a) The cases which have occurred 
 in reference to the provisions in the 
 County Court Acts, as to coUs of ac- 
 tions brought in the superior courts, 
 are very numerous. See the follow- 
 ing : Harries v. Lawrence, 17 L. J. 
 (Exch.) 101 ; Jones v. Brown, ib. 
 163 ; Lewis v. Hance, ib. (Q. B.) 
 172; Wood v. Perry, 3 Exch. 442 ; 
 Meeten v. Nicholls, 5 C. B. 848 ; 
 Bailey v. Robson, ib. 934 ; Mathew 
 v. Broughall, ib. 937. As to the 
 application of the rule to a writ of 
 inquiry, see Prew v. Squire, 2 L. 
 M. & P. 346 ; Reed v. Shrubsole, 7 
 C. B. 630 ; — to a demurrer, Abley 
 v. Dale, 21 L. J. (C. P.) 104;— to 
 causes in which the superior courts 
 have a concurrent jurisdiction, Sharp 
 v. Eveleigh, 20 L. J. (Exch.) 282; 
 Macdougal v. Paterson, 21 L. J. (C. 
 B.) 27 ; Crake v. Powell, ib. (Q. B.) 
 183. 
 
 (6) 9 & 10 Vict. c. 95, s. 129 ; 13 
 & 14 Vict. c. 61, ss. 11, 12 ; 15 & 16 
 Vict. c. 54, s. 4. This is the general 
 
 effect of the enactments ; but more 
 specifically, the matters which the 
 judge who tries is to certify is, " that 
 it appeared to him at the trial that 
 the cause of action was one for which 
 a plaint could not have been entered 
 in the county court, or that it ap- 
 peared to him at the trial that there 
 was a sufficient reason for bringing 
 the action in the superior court" (13 
 & 14 Vict. c. 61, s. 14) ; and the mat- 
 ters of which the court itself (or a 
 judge at chambers) are to be satisfied 
 are, " that the action was brought for 
 a cause in which concurrent jurisdic- 
 tion is given to the superior courts, 
 or for which no plaint could have 
 been entered in the county court, or 
 that the action was removed from 
 the county court by certiorari, or 
 that there was sufficient reason for 
 bringing the action in the superior 
 court" (15 '& 16 Vict. c. 54, s. 4). 
 
 (c) 9 & 10 Vict.c. 95, s. 128 ; see 
 Hickie v. Salomo, 21 L.J. (Exch.) 
 272.
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 383 
 
 plaint entered in any county court shall be removable into 
 a superior court by any writ or process, unless the debt or 
 damage claimed exceed 5/., and then only by leave of, and 
 on the terms prescribed by, a judge of one of those courts, 
 in cases which shall appear to him fit to be tried in one of 
 those courts (//). When such removal is permitted, the 
 proper writ for the purpose is the writ of certiorari (e). 
 
 The act of 9 & 10 Vict. c. 95, having directed that this 
 new plan of judicature should be established by her Ma- 
 jesty in council in such counties as should be thought fit(/), 
 this has accordingly been done by an order in council of 
 the 9th March, 1847; and by the same order each county 
 has been divided, as the act also directs (g), into a certain 
 number of districts (h). In each of the districts so ap- 
 pointed, and at such towns and places therein as the order 
 in council also specifies, the acts require that the county 
 court shall be held at least once in every calendar month, 
 or at such other interval as shall be directed by a principal 
 secretary of state (i) ; and they constitute the county court 
 a court of record (j ) ; and direct that for such court in each 
 
 (d) 9 & 10 Vict. c. 95, s. 90 ; et 
 vide 13 & 14 Vict. c. 64, s. 16. The 
 case of the action of replevin, how- 
 ever, is an exception to this, for this 
 action may be removed as of course, 
 where the rent or damage exceeds 
 20/., or the title to land or to toll or 
 franchise is in question ; see 9 & 10 
 Vict. c. 95, s. 121. As to the power 
 of the superior courts to remove from 
 the county courts in general, see 
 Parker v. Bristol and Exeter Railway 
 Company, 2 L. M. & P. 136 ; Gold- 
 ing v. Caudwell, ib. 175 ; Brook- 
 man v. Wenham, ib. 233 ; Rees v. 
 Williams, 21 L. J. Exch. 24. 
 
 («) See 13 & 14 Vict. c. 61, s. 13. 
 
 (/) 9 & 10 Vict. c. 95, s. 1. It 
 is provided, however, that no county 
 court shall be established in the city 
 
 of London (sect. 1, et vide post, p. 
 441, n. (c) ) ; and that the courts of 
 the universities of Cambridge and 
 Oxford, and the courts of the Stan- 
 naries, are not to be affected by the 
 acts (sects. 140, 141, et vide post, p. 
 439, 443.) 
 
 (g) 9 and 10 Vict. c. 95, s. 2. 
 
 (h) See the enumeration of the 
 districts as gazetted on 10th March, 
 IS 17, Arch. County Court, App. 372. 
 The act provides (sect. 2), that two 
 or more districts may by order in 
 council be consolidated, and that the 
 districts may by the like authority 
 be altered. (See an order in council, 
 2nd Feb. 1852, making alterations 
 as to several districts.) 
 
 (») 9& 10 Vict. c. 95, ss. 2, 56. 
 
 (j) Ibid. s. 3.
 
 3S4 BOOK V. — OF CIVIL INJURIES. 
 
 district there shall be appointed a judge, with certain officers 
 under him (k) ; and provide that a suit may be commenced 
 in any district in which the defendant, or one of the defen- 
 dants, shall dwell or carry on business at the time, — or (by 
 leave of the court) in any district in which he shall have 
 dwelt or carried on business within six calendar months 
 before, — or (by the like leave) in any district in which the 
 cause of action arose, without regard to the place of resi- 
 dence or business (/). 
 
 The acts also regulate the course of the proceedings, for 
 the particulars of which we must refer to the enactments 
 themselves (m). We may, however, mention generally, that 
 the first step in any suit in the county court is to enter 
 a plaint in a book kept for the purpose (n), to be followed 
 by a summons to be served on the defendant (o) ; and upon 
 the day in that behalf named in the summons the plaintiff 
 shall appear, and the defendant shall be required to appear 
 and answer ; and upon answer being made in court, the 
 judge shall proceed in a summary way to try the cause (p), 
 and, upon such evidence (taken viva voce and upon oath(y) ) 
 as the parties on either side shall adduce, to give judgment. 
 And it is provided, that the judge in all actions shall deter- 
 mine all questions, as well of fact as of law, unless a jury 
 shall be summoned (r). But when the amount claimed ex- 
 
 (k) 9 & 10 Vict. c. 95, s. 3, and B.) 174. 
 see sects. 9, 23, 24, 31. A deputy (o) 9 & 10 Vict. c. 95, s. 59. By 
 
 judge is allowed in case of the illness the 36th of the " Rules of Practice," 
 
 or unavoidable absence of the judge the summons is to be dated of the 
 
 himself, s. 20. day on which the plaint was entered, 
 
 (/) 9 & 10 Vict. c. 95, s. 60. and its date is to be the commence- 
 
 (»i) See also the Rules of Prac- ment of the suit. 
 tice of 20th May, 1851 (Arch. County (p) 9 & 10 Vict. c. 95, s. 74. There 
 Court, App. p. 337) framed by five of are some few special matters of de- 
 the County Court judges, and ap- fence, on which, if the defendant in- 
 proved by three of the judges of the tends to rely, he must give notice in 
 superior courts, pursuant to the pro- writing of them five days before the 
 visions of 12 & 13 Vict. c. 101, s. 12, return of the summons. Ibid. s. 76. 
 in that behalf. (q) Ibid. s. 86. 
 
 (w) 9 & 10 Vict. c. 95, s. 59. See (r) Ibid. s. 69. 
 
 In re Zohrab d. Smith, 17 L. J. (Q.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 385 
 
 ceeds 51., a jury may be summoned at the requisition either 
 of plaintiff or defendant ; and where it does not exceed 5/., 
 a jury may be summoned at discretion of the judge on ap- 
 plication of either of the parties (s). This jury is to consist 
 of five persons qualified to serve as jurors in the superior 
 courts, and they must be unanimous in their verdict (t). It 
 may also be remarked, that a plaintiff may not divide any 
 cause of action for the purpose of bringing two or more 
 suits in any of the new courts (u) ; but if his claim exceed 
 50/., he may abandon the excess and recover that sum, 
 which judgment shall be in full discharge of all demands in 
 respect of such cause of action (v) ; and also that the parties 
 to the action, and (contrary to the rules of evidence in the 
 superior courts (w) ) their wives, may be examined (such 
 examination being on oath) either on behalf of plaintiff or 
 defendant (a;). 
 
 With respect to the recovery of any debt, damages or 
 costs, for which judgment shall be obtained, the judge may 
 make orders as to the time or times, or by what instal- 
 ments, payment shall be made ( y) ; and in case of default, 
 execution may issue against the goods and chattels of the 
 party against whom such order shall be made ; and in 
 certain cases where fraud or contumacy is apparent, such 
 party may be committed to prison for any period not ex- 
 ceeding forty days; which imprisonment, however, is not 
 to operate as a satisfaction or extinguishment of the cause 
 of action (z). 
 
 Finally, we may observe that it is competent to the judge 
 
 (.>.) 9 &• 10 Vict. c. 95, s. 70. (v) As to judgment summons and 
 
 (t) Sects. 72, 73. order thereon, see Ex parte Kin- 
 
 («) Grimbly v. Aykroyd, 1 Exch. ning, 4 C. 13. 507 ; Abley ». Dale, 20 
 
 479 ; Kimpton v. Wilby, 1 L. M. & L. J. (C. P.) 33 ; Ex parte O'Neill, 
 
 P. 280 ; Brunskill v. Powell, ib. 5,50. ib. 69. 
 
 (v) Sect. 63 ; 13 & 1 i Vict. c. 61, (s) 9 & 10 Vict. c. 95, sects. 92, 
 
 s. 1. 94, 99. Lury v. Moylan, 1 L. M. 
 
 (w) Vide sup. vol. i. p. 258, n. & P. 307. As to the prison to which 
 
 ( p). the commitment is to be, see 12 & 13 
 
 (x) 9 & 10 Vict. c. 95, s. 5, 83. Vict. c. 101. 
 
 VOL. III. C C
 
 386 BOOK V. OF CIVIL INJURIES. 
 
 trying the cause to direct that there shall be a new trial if 
 he so think fit, upon such terms as he shall think reason- 
 able (y). And also, that when the debt or damage claimed 
 is above 20/., and not exceeding 50/., an appeal lies from 
 the decision of the county court judge, upon any matter of 
 law, to any of the superior courts at Westminster (z) ■ and 
 that such appeal is to be heard in term time by the full 
 court, or out of term by any two or more of the judges 
 sitting as a court of appeal (a). 
 
 These several species of courts, though confined to par- 
 ticular districts, have nevertheless been considered in this 
 place under the head of courts of general jurisdiction, be- 
 cause dispersed throughout the realm, and at the same 
 time [communicating with, and, as it were, members of] 
 the courts of general jurisdiction, properly so called, [which 
 are calculated for the administration of redress not in any 
 one lordship, hundred, or county only, but throughout the 
 whole kingdom at large. Of which sort is,] 
 
 IV. The Court of Exchequer, — the origin of which is 
 as follows: — [By the antient Saxon constitution there was 
 only one superior court of justice in the kingdom ; and 
 that court had cognizance both of civil and spiritual causes, 
 viz., the wittena gemote or general council (b), which assem- 
 bled annually or oftener, wherever the king kept his Christ- 
 mas, Easter or Whitsuntide, as well to do private justice as 
 to consult upon public business. At the Conquest the ec- 
 clesiastical jurisdiction was diverted into another channel ; 
 and the Conqueror, fearing danger from these annual par- 
 liaments, contrived also to separate their ministerial power, 
 as judges, from their deliberative, as counsellors to the 
 
 (y) Sect. 89. & 16 Vict. c. 54, s. 2. The superior 
 (:) As to the appeal under this courts are empowered to make gene- 
 provision, see East Anglian Railway ral orders for regulating the pro- 
 Company v. Lythgoe, 2 L. M. & P. ceedings on such appeals, 15 & 16 
 221 ; Jonas v. Adams, 20 L. J. (Q. Vict. c. 54, s. 3. 
 B.) 397. (6) See an account of it, Turner, 
 (a) 13 & 14 Vict. c. 61, s. 14; 15 Hist. Ang.Sax. vol. iii. p.177, 6th ed.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 387 
 
 [crown. He therefore established a constant court in his 
 own hall, thence called by Bracton (c), and other antient 
 authors, aula regia or aula regis. This court was composed 
 of the king's great officers of state resident in his palace, 
 arid usually attendant on his person ; such as the lord high 
 constable and lord mareschal, who chiefly presided in mat- 
 ters of honour and of arms; determining according to the 
 law military and the law of nations. Besides these, there 
 were the lord high steward and lord great chamberlain, the 
 steward of the household, the lord chancellor, whose pecu- 
 liar business it was to keep the king's seal, and examine 
 all such writs, grants and letters as were to pass under that 
 authority, and the lord high treasurer, who was the prin- 
 cipal adviser in all matters relating to the revenue. These 
 high officers were assisted by certain persons learned in the 
 laws, who were called the king's justiciars or justices, and 
 by the greater barons of parliament, all of whom had a 
 seat in the aula regia, and formed a kind of court of ap- 
 peal, or rather of advice, in matters of great moment and 
 difficulty. All these, in their several departments, trans- 
 acted all secular business, both criminal and civil, and like- 
 wise the matters of the revenue ; and over all presided one 
 special magistrate, called the chief justiciar, or capitalis jus- 
 ticiarius totius Anglia, who was also the principal minister 
 of state, the second man in the kingdom, and, by virtue of 
 his office, guardian of the realm in the king's absence. And 
 this officer it was who principally determined all the vast 
 variety of causes that arose in this extensive jurisdiction ; 
 and, from the plenitude of his power, grew at length both 
 obnoxious to the people and dangerous to the government 
 which employed him (d). 
 
 This great universal court being bound to follow the 
 king's household in all his progresses and expeditions, the 
 trial of common causes therein was found very burthen- 
 some to the subject. Wherefore King John, who dreaded 
 
 (c) Lib. 3, tr. 1, c. 7. 
 
 (d) Spelm. Gl. 331, 332, 333 ; Gilb. Hist. C. P. Introd. 17. 
 
 c c. 2
 
 388 BOOK V. — OF CIVIL INJURIES. 
 
 [also the power of the justiciar, very readily consented to 
 that article which now forms the eleventh chapter of 
 Magna Charta, and enacts, that, " communia placita non 
 sequantur curiam regis, sed teneantur in aliquo loco certoT 
 This certain place was established in Westminster Hall, 
 the place where the aula regis originally sat, when the 
 king resided in that city ; and there it hath ever since con- 
 tinued. And the court being thus rendered fixed and sta- 
 tionary, the judge became so too, and a chief, with other 
 justices of the Common Pleas, was thereupon appointed, 
 with jurisdiction to hear and determine all pleas of land, 
 and injuries merely civil between subject and subject. 
 Which critical establishment of this principal court of com- 
 mon law, at that particular juncture and that particular 
 place, gave rise to the inns of court in its neighbourhood ; 
 and, thereby collecting together the whole body of the 
 common lawyers, enabled the law itself to withstand the 
 attacks of the canonists and civilians, who laboured to ex- 
 tirpate and destroy it (e). This precedent was soon after 
 copied by King Philip the Fair, in France, who about the 
 year 1302 fixed the parliament of Paris to abide constantly 
 in that metropolis, which before used to follow the person 
 of the king wherever he went, and in which he himself 
 used frequently to decide the causes that were there de- 
 pending ; but all were then referred to the sole cognizance 
 of the parliament and its learned judges (f). And thus 
 also, in 1495, the Emperor Maximilian the first fixed the 
 imperial chamber (which before always travelled with the 
 court and household) to be constantly held at Worms, from 
 whence it was afterwards translated to Spire (g). 
 
 The aula regia being thus stripped of so considerable a 
 branch of its jurisdiction, and the power of the chief jus- 
 ticiar being also considerably curbed by many articles in 
 the great charter, the authority of both began to decline 
 apace under the long and troublesome reign of King 
 
 (e) Vide sup. vol. i. p. I (J. (g) Mod. Un. Hist. xxix. 467. 
 
 (/) Mod. Un. Hist, xxiii. 396.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 389 
 
 [Henry the third. And in farther pursuance of this example, 
 the other several offices of the chief justiciar were, under 
 Edward the first (who new modelled the whole frame of 
 our judicial polity) subdivided and broken into distinct 
 courts of judicature. A court of chivalry was erected, over 
 which the constable and mareschal presided, as did the 
 steward of the household over another, constituted to re- 
 gulate the king's domestic servants. The high steward, 
 with the barons of parliament, formed an august tribunal 
 for the trial of delinquent peers ; and the barons reserved 
 to themselves in parliament the right of reviewing the sen- 
 tences of other courts in the last resort. The distribution 
 of common justice between man and man was thrown into 
 so provident an order, that the great judicial officers were 
 made to form a check upon each other : the Court of Chan- 
 cery issuing all original writs under the great seal to the 
 other courts; the Exchequer managing the king's revenue; 
 the Common Pleas beino- allowed to determine all causes 
 between private subjects ; and the Court of King's Bench 
 retaining all the jurisdiction which was not cantoned out 
 to other courts, and particularly the sole cognizance of pleas 
 of the crown, or criminal causes (/*).] 
 
 The Court of Exchequer, then, (to which our attention 
 is at present particularly directed,) was at first [intended 
 principally to order the revenues of the crown, and to re- 
 cover the king's debts and duties (/),] though it has since 
 acquired, and originally by usurpation (k), the additional 
 
 (/() The King's Bench had also those in the King's Bench itself, are 
 assigned to it the superintendence of now to be redressed exclusively in a 
 both the other courts, as, after judg- court of separate jurisdiction, viz., 
 ment given by either of these, it was the Court of Exchequer Chamber; 
 to the King's Bench that recourse as to which, vide post, p. 410. 
 was to be had to correct any error in (i) !• Inst. 103 — 116; vide Gil- 
 law that might be found in the pro- bert's Exch. ; Attorney-General v. 
 ceedings. And this superiority it Sewell, 4 Mee. & W. 77. 
 continued to retain until a recent (k) The nature of this usurpation 
 period; but by 11 Geo. 4 & 1 Will. was as follows: — By the original con- 
 4, c. 70, s. 8, such errors in the Com- stitution of this court, to which it 
 nion Pleas or Exchequer, as well as was incident, (as stated in the text,)
 
 390 
 
 BOOK V. OF CIVIL INJURIES. 
 
 character of an ordinary court of justice between subject 
 and subject. [It is called the Exchequer (Scaccarium), 
 from the chequed cloth, resembling a chess-board, which 
 covered the table there, and on which, when certain of the 
 king's accounts were made up, the sums were marked and 
 scored with counters. It consists of two divisions, the 
 Receipt of the Exchequer (I), which manages the royal 
 revenue,] and which is not material to our present purpose, 
 [and the Court, or judicial part of it.] 
 
 This court was, from the time of the separation of the 
 Exchequer from the aula regia down to a very recent pe- 
 riod, [subdivided into a court of equity (m) and a court of 
 common law.] But by statute 5 Vict. c. 5, reciting that 
 the business of the latter branch, or plea side, of the court 
 had greatly increased, and that the judges thereof might 
 advantageously be relieved from the equity business, all 
 the power and jurisdiction of the Exchequer, as a court 
 of equity, or otherwise than as a court of law or court of 
 revenue unconnected with equity, was transferred to the 
 Court of Chancery («). The Court of Exchequer is now 
 
 to call the king's farmers and debtors 
 to account, such parties as these were 
 privileged in their turn to sue and 
 implead all manner of persons in 
 the same court that they were them- 
 selves thus called into. For this 
 purpose they resorted to a writ called 
 a quo minus, in which the plaintiff' 
 suggested that he was the king's far- 
 mer or debtor, and that the defend- 
 ant had done him the injury or 
 damage complained of, quo minus 
 sufficiens existit, by which he is the 
 less able to pay the king his debt or 
 rent. Afterwards, and by gradual 
 connivance, this surmise of being 
 debtor to the king was allowed to be 
 inserted by persons who did not 
 really stand in that capacity, and 
 came to be considered as mere words 
 of course, so as to open the court to 
 
 all the nation equally. The same 
 fiction was permitted on the equity 
 side of the court, where any person 
 might file a bill against another upon 
 a bare suggestion that he was the 
 king's accountant, — a suggestion 
 which was never controverted. This 
 usurpation, as well as the analogous 
 one in the Queen's Bench, to be 
 hereafter noticed, long since ripened 
 into an indefeasible and unquestion- 
 able title. And at length, by 2 Will. 
 4, c. 39, the writ of quo minus was 
 abolished, and a new method sub- 
 stituted, giving a direct and proper 
 jurisdiction to this court. 
 
 (/) Vide sup. vol. ii. p. 514. 
 
 (m) Vide 3 Bl. Com. 45. 
 
 (n) As to the equity jurisdiction 
 of the Exchequer as a court of reie- 
 nue since this statute, vide Attorney-
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 391 
 
 therefore a court of revenue and a court of common law 
 only(o). In the former capacity it ascertains and enforces, 
 by proceedings appropriate to the case, the proprietary 
 rights of the crown against the subjects of the realm (p) ; 
 in the latter it administers redress between subject arid 
 subject, in all actions whatever, except in the few species 
 of real actions which still survive the general demolition of 
 that class. It is a court of record, and its judges are at 
 present five in number, consisting of one chief baron and 
 four puisne barons, as in this court the judges are termed (y). 
 Proceedings in error, from this court (that is, proceedings 
 to correct any error that may be found in the judgment 
 of this court), may be taken into the Court of Exchequer 
 Chamber, to which we shall have occasion more particu- 
 larly to advert in the course of the present chapter. 
 
 V. The Court of Common Pleas (r), or, as it is some- 
 
 General v. Hallett, 15 Mee. & W. 
 687 ; Attorney-General j;. The Cor- 
 poration of London, 14 L. J. (Ch.) 
 305. By a subsequent act, 5 & 6 
 Vict. c. 86, certain offices on the 
 revenue side are abolished, and the 
 business theretofore transacted there- 
 in transferred to her majesty's remem- 
 brancer in the Exchequer, whose office 
 the lords commissioners of the Trea- 
 sury are empowered to regulate. The 
 attorneys of the Queen's Bench, Com- 
 mon Pleas, and Exchequer of Pleas, 
 are also by the same statute admis- 
 sible to practise in the Exchequer on 
 the revenue side j and all process 
 from the revenue side may be tested 
 and made returnable either in term 
 or vacation. 
 
 (o) For regulations of the officers 
 of this court on the plea side, see 2 
 & 3 Will. 4, c. 110. 
 
 (/j) In any case in which the pro- 
 fit of the crown comes in question, 
 the cause may, on the application of 
 the attorney - general, bo removed 
 
 into the Exchequer out of the court 
 in which it has been commenced. 
 Attorney-General v. Hallett, 15 Mee. 
 & W. 97 ; Adams v. Freemantle, 2 
 Exch. 453. 
 
 (q) " These," says Blackstone, 
 " Mr. Selden conjectures (Tit. of 
 " Hon. 2, 5, 16,) to have been an- 
 " tiently made out of such as were 
 " barons of the kingdom or parlia- 
 " mentary barons, and thence to have 
 " derived their name ; which con- 
 " jecture receives great strength 
 " from Bracton's explanation of 
 " Magna Charta, c. 14, which di- 
 " rects that the earls and barons be 
 " amerced by their peers, that is, 
 " says he, by the barons of the Ex- 
 chequer. Bract. 1. 3, tr. 2, c. 1, 
 " s. 3." — 3Bla. Com. p. 45. 
 
 (>) See 8 & 9 Vict. c. 34, abolish- 
 ing the separate seal office of the 
 Courts of Queen's Bench and Com- 
 mon Pleas ; and 13 & 14 Vict. c. 75, 
 as to the fees to be received by cer- 
 tain officers of the Common Pleas.
 
 392 BOOK V. — OF CIVIL INJURIES. 
 
 times technically called, the Court of Common Bench, whose 
 origin has been already explained (r), is also a court of 
 record, and in that capacity takes cognizance of all actions 
 between subject and subject, without exception, including 
 formerly the extensive class of real actions, of which it 
 still retains the few surviving species. And over remedies 
 of this kind (which formerly excelled all others in im- 
 portance) it has always exercised an exclusive jurisdiction, 
 as it did also over fines and recoveries, while these modes 
 of assurance existed, and still does, over the forms of con- 
 veyance now substituted for them. For these reasons, and 
 also because its authority in these matters was original and 
 not usurped (as in the case of the Exchequer and Queen's 
 Bench), it has always been considered as the principal seat 
 of the learning relative to ordinary actions between man 
 and man, and is styled by Lord Coke the lock and key 
 of the common law (s). It has no authority, however, like 
 the Exchequer, in matters relating to the revenue. The 
 judges are at present five in number, one chief and four 
 puisne justices; and from their decision proceedings in 
 error may be taken into the Exchequer Chamber. 
 
 VI. [The Court of Queen's Bench (t) (so called because 
 the sovereign used formerly to sit there in person (u), the 
 style of the court still being coram ipso rege)~] is also a court 
 of record, and the [supreme court of common law in the 
 kingdom ; consisting of a chief justice and four puisne jus- 
 
 (?) Vide sup. p. 388. or Common Pleas, might (while the 
 (s) 4 Inst. 99. other judges of the same court were 
 (t) This court is called the King's sitting in banco) sit apart from them, 
 Bench in the reign of a king ; and for the purpose of adding and justi- 
 during the protectorate of Cromwell fying special bail, &c, hearing and 
 it was styled the Upper Bench. deciding matters on motion, and 
 The Bail Court is a branch of making rules and orders. But it is 
 this court, constituted under 11 Geo. only the Queen's Bench that has had 
 4 & 1 Will. 4, c. 70, s. 1, by which occasion to avail itself of this pro- 
 it was enacted, that one of the judges vision, 
 of the Queen's Bench, Exchequer, («) 4 Inst. 73.
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 393 
 
 [tices, who are by their office the sovereign conservators of 
 the peace and supreme coroners of the land. Yet, though 
 the sovereign himself used to sit in this court, and still is 
 supposed so to do ; he did not, neither by law is he em- 
 powered^) to, determine any cause or motion, but by the 
 mouth of his judges, to whom he hath committed his whole 
 judicial authority (?/). 
 
 This court, which (as we have seen) is the remnant of 
 the aula regia, is not, nor can be, from the very nature 
 and constitution of it, fixed to any certain place, but may 
 follow the sovereign's person wherever he goes ; for which 
 reason all process issuing out of this court in the sove- 
 reign's name is returnable " ubicunque fuerimus in Anglia." 
 It hath indeed, for some centuries past, usually sat at West- 
 minster, being an antient palace of the crown ; but might 
 remove with the sovereign to York or Exeter, if he thought 
 proper to command it. And we find that, after Edward 
 the first had conquered Scotland, it actually sat at Rox- 
 burgh (z). And this moveable quality, as well as its dig- 
 nity and power, are fully expressed by Bracton, when he 
 says that the justices of this court are " capitales, geneirdes, 
 
 (i) Vide sup. vol. ii. p. 495. The 
 king used to decide causes in person 
 in the Aula Regia. " In curia domini 
 regis ipse in propria persona jura de- 
 cemit." — (Dial, de Scacch. 1. i, s. 4.) 
 After its dissolution, Edward the 
 fourth, in the second year of his reign, 
 sat in the Court of King's Bench 
 three days together, hut probably not 
 for the purpose of acting as a judge. 
 (See Christian's Black, vol. iii. p. 41, 
 (n.), and Henry's Hist, of Great 
 Britain, vol. v. p. 382.) And, in 
 later times, James the first is said to 
 have sat there in person, but was in- 
 formed by his judges that he could 
 not deliver an opinion. 
 
 (y) 4 Inst. 71. Lord Coke says, 
 
 that the words in Magna Ckarta, c. 
 29, " nee super eum ibimus, nee super 
 eum mittemus, nisi, fyc," signify that 
 we shall not sit in judgment our- 
 selves, nor send our commissioners 
 or judges to try him. 2 Inst. 4G. But 
 that this is an erroneous construc- 
 tion of these words, appears from the 
 Magna Charta granted by King John 
 in the sixteenth year of his reign, 
 which is thus expressed : " Nee super 
 eos per vim vel per artna ibimus, nisi 
 per legem regni nostri, vel per judi- 
 cium parium suorum." See Introd. 
 to Blackstone's Mag. Ch. p. xiii. — 
 Christian's Bl. vol. iii. p. 41, (n.) 
 
 (:) M. 20, 21 Edw. 1 ; Hale, Hist. 
 C. L. 200.
 
 394 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 [perpetui, et majores ; a latere regis residentes; quia omnium 
 aliorum corrigere tenentur injurias et errores" (b). And it 
 is moreover especially provided in the Articuli super Char- 
 tas{c) that the king's chancellor, and the justices of his 
 bench, shall follow him, so that he may have at all times 
 near unto him some that be learned in the laws. 
 
 The jurisdiction of this court is very high and tran- 
 scendant. It keeps all inferior jurisdictions within the 
 bounds of their authority, and may either remove their 
 proceedings to be determined here, or prohibit their pro- 
 gress below. It superintends all civil corporations in the 
 kingdom. It commands magistrates and others to do what 
 their duty requires, in every case where there is no other 
 specific remedy. It protects the liberty of the subject, by 
 speedy and summary interposition. It takes cognizance 
 both of criminal and civil causes ; the former in what is 
 called the crown side or crown office (d) ; the latter in the 
 plea side of the court (e). The jurisdiction of the crown 
 side it is not our present business to consider ; that will be 
 more properly discussed in the ensuing volume. But on the 
 plea side, or civil branch,] it enjoys, though originally by 
 usurpation, as in the case of the Exchequer, a general juris- 
 diction and cognizance over all actions between subject 
 and subject, those of the real class only excepted ( f). It 
 
 (6) L. 3, c. 10. 
 (r) 28 Edw. 1, c. 5. 
 
 (d) Vide 6 & 7 Vict. c. 20, for 
 abolishing certain offices on the 
 crown side of the Queen's Bench, 
 and regulating the crown office. 
 
 (e) Vide 6 Geo. 4, c. 82, to abo- 
 lish the sale of offices in the Court of 
 King's Bench, &c. 
 
 (/) The usurpation of the Queen's 
 Bench originated as follows -.—The 
 jurisdiction of this court in civil ac- 
 tions was formerly confined to actions 
 of trespass, or other injury alleged 
 
 to be committed vi et armis. But 
 this court might always have held 
 plea of any civil action (other than 
 actions real), provided the defendant 
 was an officer of the court, or in the 
 custody of the marshal, that is, of the 
 prison keeper of the court. On this 
 latter privilege was built the fiction 
 of surmising that the defendant had 
 committed a breach of the peace in 
 Middlesex or any other county in 
 which the court sat, and in which it 
 was consequently held to possess an 
 extrarordinary criminal jurisdiction ;
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 395 
 
 does not meddle however with matters of revenue. Pro- 
 ceedings in error may be taken from this court into the 
 Exchequer Chamber (</). 
 
 The three courts last enumerated, when mentioned col- 
 lectively, are usually described as the superior courts of the 
 common law (/«) ; or when taken in connection with the 
 Court of Chancery, to be presently mentioned, as the supe- 
 rior courts generally, or the courts at Westminster, where they 
 are all in fact holden. And by these appellations they are 
 usually distinguished from the courts of special jurisdiction, 
 of which we are to speak hereafter, and also from the court 
 baron, hundred court, and county court, of which we spoke 
 at the beginning of this chapter, all of which are described 
 as inferior courts, though discriminated from each other, 
 as being either of record, or not of record (i). The judges 
 
 and by aid of this false suggestion a 
 writ, called a bill of Middlesex, or a 
 writ of latitat founded on a bill of 
 Middlesex (as the case might be), 
 was issued against him ; by virtue 
 of which he was supposed to be com- 
 mitted to the custody of the marshal, 
 so as to bring him within the juris- 
 diction of the court. See 3 Bl. Com. 
 43, 285. Where the proceeding was 
 against a prisoner (whether by aid of 
 these fictions or otherwise), or against 
 an officer of the court, the action was 
 said to be commenced by bill. But 
 in other cases the commencement 
 was by an original writ ; that is, a 
 writ out of the Court of Chancery, 
 under the great seal. Both of these 
 modes of proceeding are now abo- 
 lished by the effect of 2 Will. 4, c'39, 
 and a new method substituted, giving 
 to this court, as well as to the Court 
 of Exchequer (vide sup. p. 389), a 
 direct and proper jurisdiction in or- 
 dinary suits, instead of that usurped 
 (though well established) one which 
 they had previously exercised. 
 
 (g) This is the case not only in 
 actions first commenced in the 
 Queen's Bench, but also upon judg- 
 ments in the Queen's Bench upon 
 error from a county palatine. Nesbit 
 v. Rishton, 9 A. & E. 126. It is the 
 case, also, where error is brought 
 upon an indictment. R. v. Wright, 
 1 A. & E. 434. 
 
 (h) The legislature has adopted 
 this appellation. See 1 1 Geo. 4 & 
 1 Will. 4, c. 58 ; 3 & 4 Will. 4, c. 42 ; 
 1 & 2 Vict. c. 100 ; 9 & 10 Vict. c. 95, 
 &c. The term of a superior court, 
 however, in its strict and technical 
 application, has a wider meaning, 
 and embraces the courts of the coun- 
 ties palatine. Peacock v. Bell, 1 
 Saund. 73. 
 
 (i) From the inferior courts of re- 
 cord, and from the common law- 
 courts of the counties palatine, er- 
 ror lies in general into the Queen's 
 Bench. 3 Bl. Com. 411 ; 1 Roll. 
 Ab. 715 ; Carter, 222. And see as 
 to the counties palatine, 15 & lb' 
 Vict. c. 7b', s. 233. An appeal also
 
 396 
 
 BOOK V. — OP CIVIL INJURIES. 
 
 of these superior courts of the common law are also often 
 popularly called, by way of pre-eminence, judges of the 
 land, or simply the judges (Ii) ; and though inferior in rank 
 to the chief judge of the Court of Chancery (or lord chan- 
 cellor), are of high dignity and precedence, taking rank be- 
 fore baronets (Z), and being the constitutional advisers of the 
 House of Peers on matters of law (m). They are at present, 
 as we have seen, fifteen in number, that is, five for each 
 court; but the number has varied considerably at different 
 periods of our legal history {n). In modern times, indeed, 
 it remained fixed for a long period at twelve ; but in con- 
 sequence of the increase of business, an additional judge 
 was appointed, about the beginning of the last reign (o), 
 to each of the three courts (p). The salary of the chief 
 justice of the Queen's Bench is fixed at 8,000/., and that 
 of the other chief justices at 7,000Z. ; of the puisne judges 
 at 5,000Z. per annum (q). They are all created by the 
 queen's letters patent; and by 12 & 13 Will. III. c. 2, and 
 1 Geo. III. c. 23, they are not liable to removal except 
 upon address of both houses of parliament (r). 
 
 lies from the county courts into any of 
 the superior courts, vide sup. p. 386. 
 As to the removal into the superior 
 courts of the judgments of inferior 
 courts of record, in order to obtain 
 more effectual execution, see 19 Geo. 
 3, c. 70, s. 4; 1 & 2 Vict. c. 110, s. 
 22. As to bailiffs of inferior courts 
 generally, and execution under pro- 
 cess thereof, 7 Vict. c. 19 ; 7 & 8 
 Vict. c. 96, s. 60, &c. ; 8 & 9 Vict, 
 c. 127. As to appointing assessors for 
 the same, sect. 72. 
 
 (k) As to the judges, see also vol. 
 ii. pp. 446, 461. 
 
 (/) Vide sup. vol. ii. pp. 593, 596. 
 
 (w) Vide sup. vol. ii. p. 337. 
 
 (n) Dugd. Orig. Jurid. c. 18. 
 
 (.>) See stat. 11 Geo. 4 & 1 Will. 4, 
 c. 70, ss. 1, 2. 
 
 (]>) King James, during the greater 
 
 part of his reign, appointed five 
 judges in the Courts of Queen's 
 Bench and Common Pleas for the 
 benefit of a casting voice in case of 
 a difference of opinion, and that the 
 circuits might at all times be fully 
 supplied with judges of the superior 
 courts. And in subsequent reigns, 
 upon the permanent indisposition of 
 a judge, a fifth hath been sometimes 
 appointed. 3 Bl. Com. 40, n., cites 
 Raym. 475. 
 
 (</) 2 & 3 Will. 4, c. 116; and 14 
 & 15 Vict. c. 11. 
 
 (r) As to the judges and officers 
 of the superior courts of common 
 law collectively, the following sta- 
 tutes may also be noticed : 
 3 Geo. 4, c. 69, to enable the judges 
 
 of the several courts of record at 
 
 Westminster to make regulations
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 397 
 
 VII. [The High Court of Chancery is the only remain- 
 ing, and in matters of civil property by much the most 
 important of any, of the king's superior and original courts 
 of justice. It has its name of chancery, cancellaria, from 
 the judge who presides here, the lord chancellor, or can- 
 cellarius ; who, Sir Edward Coke tells us, is so termed a 
 cancellando, from cancelling the king's letters patent when 
 granted contrary to law, which is the highest point of his 
 jurisdiction (s). But the office and name of chancellor 
 (however derived) was certainly known to the courts of the 
 Roman emperors : where it originally seems to have sig- 
 nified a chief scribe or secretary, who was afterwards in- 
 vested with several judicial powers, and a general superin- 
 tendency over the rest of the officers of the prince. From 
 the Roman empire it passed to the Roman church, ever 
 emulous of imperial state ; and hence every bishop has 
 to this day his chancellor, the principal judge of his con- 
 sistory. And when the modern kingdoms of Europe were 
 established upon the ruins of the empire, almost every state 
 
 respecting the fees of the officers, 
 clerks, and ministers of the said 
 courts. (And see 7 Will. 4 & 1 
 Vict. c. 30, s. 6.) 
 
 11 Geo. 4 & 1 Will. 4, c 58, for re- 
 gulating the receipt and future ap- 
 propriation of fees and emolu- 
 ments receivable by officers of the 
 superior courts of common law. 
 (And see 13 & 14 \ ict. c 75.) 
 
 11 Geo. 4 & 1 Will. 4, c. 70, s. 1, 
 enabling one judge to sit apart 
 from the rest. 
 
 3 & 4 Will. 4, c. 42, s. 1, (continued 
 by 1 & 2 Vict. c. 100,) giving 
 power to the judges of the superior 
 courts of common law at West- 
 minster to alter the mode of plead- 
 ing, &c. (And see 13 & 14 Vict, 
 c. 16, and 15 & 16 Vict. c. 76, s. 
 223.) 
 
 7 Will. 4 & 1 Vict. c. 30, to abolish 
 certain offices in the superior 
 
 courts of common law, and to make 
 provision for a more effective and 
 uniform establishment of officers 
 in those courts. 
 
 1 & 2 Vict. c. 32, to enable her ma- 
 jesty's courts at Westminster to 
 hold sittings in banc in time of 
 vacation. 
 
 1 & 2 Vict. c. 45, (extending 11 Geo. 
 4 & 1 Will. 4, c. 70, s. 4,) empow- 
 ering every judge of the superior 
 courts of common law to transact 
 out of court such business relating 
 to the proceedings in any of these 
 courts as may by the practice be 
 transacted by a single judge. 
 
 15 & 16 Vict. c. 73, making provi- 
 sion for a permanent establishment 
 of officers at A'tsi Prius, and for 
 payment at such offices, and of 
 judges' clerks, by salaries. 
 
 (s) 4 Inst. 88.
 
 398 BOOK V. OF CIVIL INJURIES. 
 
 [preserved its chancellor, with different jurisdictions and 
 dignities, according to their different constitutions. But 
 in all of them he seems to have had the supervision of all 
 charters, letters, and such other public instruments of the 
 crown as were authenticated in the most solemn manner : 
 and therefore, when seals came in use, he had always the 
 custody of the king's great seal. So that the office of 
 chancellor, or lord keeper, (whose authority, by statute 5 
 Eliz. c. 18, is declared to be exactly the same,) is with us 
 at this day created by the mere delivery of the king's great 
 seal into his custody (s) ; whereby he becomes, without 
 writ or patent, an officer of the greatest weight and power 
 of any now subsisting in the kingdom ;] and superior, in 
 point of precedency, if a baron, to every temporal lord (t). 
 His salary is 10,000/. per annum (?/). [He is a privy coun- 
 cillor by his office (v) ; and, according to Lord Chancellor 
 Ellesmere^tf), prolocutor of the House of Lords by prescrip- 
 tion. To him (under the crown) belongs the appointment of 
 all justices of the peace throughout the kingdom. Being for- 
 merly usually an ecclesiastic, (for none else were then capable 
 of an office so conversant in writings,) and presiding over the 
 royal chapel (x), he became keeper of the king's conscience; 
 visitor, in right of the king, of all hospitals and colleges of 
 the king's foundation ; and patron of all the king's livings] 
 of the value of 20/. per annum or under (y) in the king's 
 books. [He is the general guardian of all infants, idiots, 
 
 (s) Lamb. Archeion, 65 ; 1 Roll. (y) This limit is stated by Black- 
 
 Abr. 385. stone as " under the value of twenty 
 
 (0 Stat. 31 Hen. 8, c. 10, ss. 4, 8 ; marks ;" and he cites 38 Edw. 3 ; 3 
 
 vide sup. vol. ii. p. 595, n. (»). F. N. B. 35. But, according to Mr. 
 
 (m) 14 & 15 Vict. c. 82, s. 17 ; 15 Christian, since the new valuation of 
 
 & 16 Vict. c. 87, s. 16. The sum, benefices in the time of Henry the 
 
 however, which is payable to him as eighth, it has been considered as 20/. 
 
 speaker of the House of Lords, is to per annum or under, probably on the 
 
 be deducted from this. ground that the twenty marks temp. 
 
 (v.) Selden, Office of Lord Chan- Edward the third were equivalent to 
 
 cellor, sect. 8. 20/. temp. Henry the eighth. Chris- 
 
 («>) Of the Office of Lord Chan- tian's Black, vol. iii. p. 476, n., cites 
 
 cellor, edit. 1651. Gibs. 764; 1 Burn's Ecc. Law, 129. 
 
 (r) Madox, Hist, of Exchequer, And see Lord Chancellor's case, 
 
 42. Hobart, 214.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 399 
 
 [and lunatics ; and has the general superintendence of all 
 charitable uses in the kingdom. And all this over and 
 above the vast and extensive jurisdiction which he exer- 
 cises in his judicial capacity in the Court of Chancery; 
 wherein, as] formerly [in the Exchequer, there are two 
 distinct tribunals ; the one ordinary, being a court of com- 
 mon law] and of record ; the other extraordinary, being a 
 court of equity and not of record (z). 
 
 [The ordinary legal court is much more antient than the 
 court of equity. Its jurisdiction is to hold plea upon a 
 scire facias to repeal and cancel the king's letters-patent, 
 when made against law or upon untrue suggestions (a); and 
 to hold plea of petitions, monstrans cle droit, traverses of 
 offices, and the like ; when the king hath been advised to 
 do any act, or is put in possession of any lands or goods, 
 in prejudice of a subject's right (b). On proof of which, 
 as the king can never be supposed intentionally to do any 
 wrong, the law questions not but he will immediately re- 
 dress the injury ; and refers that conscientious task to the 
 chancellor, the keeper of his conscience.] This court [might 
 likewise hold plea (by scire facias) of partitions of lands in 
 coparcenary (c) ; and of dower (d), where any ward of the 
 crown was concerned in interest, so long as the military 
 tenures subsisted : as it now may also do of the tithes of 
 forest land, where granted by the king and claimed by a 
 stranger against the grantee of the crown (e) ; and of exe- 
 cutions on statutes, or recognizances in nature thereof by 
 the statute 23 Hen. VIII. c. 6 (/).] Suits or proceedings, 
 
 (z) No court can be a court of re- & 16 Vict. c. 83. 
 cord, in the proper and technical (6) 4 Rep. 54. As to suits pro- 
 sense, unless it has been ranked as ceeding from or affecting the crown, 
 such from time immemorial, or been vide post, bk. v. c. 15. 
 made such by the express provision (c) Co. Litt. 171 ; F. N. B. 62. 
 of some act of parliament. The (d) Bro. Abr. tit. Dower, 66 ; 
 Court of Chancery, on the equity Moor, 565. 
 
 side, is in such a predicament, and (e) Bro. Abr. tit. Dismes, 10. 
 
 therefore, notwithstanding its high (/ ) 2 Roll. Ab. 469. It also 
 
 dignity, is no court of record. 4 Inst. formerly belonged to this court to 
 
 p. 84. hold plea of all personal actions 
 
 («) Vide 12 & 13 Vict. c. 109 ; 15 where any of its officers was a party
 
 400 
 
 BOOK V. OF CIVIL INJUHIES. 
 
 however, on the common law side of the Court of Chancery 
 are somewhat rare ; and even where they occur they are not 
 wholly carried on there; it being provided by 12 & 13 Vict, 
 c. 109, that where any issue (or question), either of fact or 
 law, arises in such action, a transcript of the record in 
 Chancery in which such issue is contained is to be sent 
 into one of the superior courts of the common law, to be 
 there determined ; that is, if it be an issue in fact, to be tried 
 by a jury; and if an issue in law, to be determined by the 
 court itself, according to the ordinary course of proceeding 
 before those jurisdictions {g). 
 
 [In this ordinary, or legal, court is also kept the officina 
 justitics ; out of which all original writs that pass under 
 the great seal (A), all commissions of charitable uses, sewers, 
 idiotcy, lunacy and the like, do issue, and for which it is 
 always open to the subject, who may there at any time 
 demand and have, ex debito justitia, any writ that his oc- 
 casions may call for. These writs (relating to the business 
 of the subject) and the returns to them were, according to 
 the simplicity of antient times, originally kept in a hamper, 
 in hanaperio ; and the others (relating to such matters 
 
 (3 Bl. Com. p. 40, cites 4 Inst. 80). 
 But now by 12 & 13 Vict. c. 100, s. 
 42, this privilege of the officers is 
 abolished. 
 
 (g) 12 & 13 Vict. c. 109, s. 32, 
 (repealing 11 & 12 Vict c. 94, so far 
 as it relates to this subject). Even 
 before these statutes, if any cause . 
 came to an issue in fact in the Court 
 of Chancery, that court could not 
 try it, having no power to summon 
 a jury, but was to deliver the record 
 proprid manu into the Court of 
 Queen's Bench. And when an issue 
 in law arose, and was there decided, 
 a writ of error in the nature of an 
 appeal lay into the Court of Queen's 
 Bench (see 3 Bl. Com., citing Year 
 Book, 18 Edw. 3, 25; 17 Ass. 24; 
 29 Ass. 47 ; Dyer, 315 ; 1 Roll Rep. 
 287 ; 4 Inst. 80.) So little, however, 
 
 had usually been done on the com- 
 mon law side of the court, that Black- 
 stone says he had met with no traces 
 of any writ of error being actually 
 brought since the 14 Eliz. a.d. 1572 
 (see 3 Bl. Com. p. 49). But the opi- 
 nion of Lord Keeper North, in 1682 
 (1 Vern. 131 ; 1 Eq. Ca. Ab. 129), 
 that no such writ of error lay, seems 
 not to have been well considered. 
 
 (/i) By 12 & 13 Vict. c. 109, s. 11, 
 a seal is to be provided, to be called 
 " The Chancery Common Law Seal ;" 
 and by sect. 14, all such writs, &c. 
 as have been usually issued out of 
 the petty bag office under the great 
 seal (except certain writs and instru- 
 ments particularly specified), shall 
 in future be under " The Chancery 
 Common Law Seal."
 
 CHAP. IV. — OP THE COURTS OF GENERAL JURISDICTION. 401 
 
 [wherein the crown is immediately or mediately concerned) 
 were preserved in a little sack or bag, in parva baga ; and 
 thence hath arisen the distinction of the hanaper office (i), 
 and petty bag office (Ji), which both belong to the common 
 law court in Chancery. 
 
 But the extraordinary court, or court of equity (/), is 
 now become the court of the greatest judicial consequence.] 
 Its antient and proper province (as may be inferred from 
 its appellation) was to redress the inconveniences occasion- 
 ally resulting from the application of the strict or common 
 law. [This distinction between law and equity, as adminis- 
 tered in different courts (m), is not at present known, nor 
 seems to have ever been known, in any other country at 
 any time (n) : and yet the difference of one from the other, 
 when administered by the same tribunal, was perfectly 
 familiar to the Romans (o) ; the jus prcetorium, or discretion 
 of the prsetor, being distinct from the leges, or standing 
 laws (p) ; but the power of both centred in one and the 
 same magistrate, who was equally intrusted to pronounce 
 the rule of law, and to apply it to particular cases by the 
 
 (i) As to the comptrollers of the 
 hanaper, see 5 & 6 Vict. c. 103, 
 transferring their duties to other 
 officers. 
 
 (k) As to this office, see Baddeley 
 v. Denton, 1 L. M. & P. 172; Still 
 v. Booth, ibid. 440 ; Garrard, dem., 
 Tuck, ten., 8 C. B. 258. 
 
 (/) As to equity, vide sup. vol. i. 
 p. 80. Some interesting information 
 as to the early history of the Court 
 of Chancery, and the gradual growth 
 of its jurisdiction, will be found in 
 the Introduction to Lord Campbell's 
 Lives of the Chancellors. And in Mr. 
 Spence's work on "The Equitable Ju- 
 risdiction of the Court of Chancery." 
 
 (m) This anomaly of administer- 
 ing equity and law in distinct courts, 
 is approved by Lord Bacon ; see De 
 Aug. Scient. lib. viii. ch. 3, app. 45. 
 VOL. III. 
 
 (/i) The council of conscience, insti- 
 tuted by John the third, King of 
 Portugal, to review the sentences of 
 all inferior courts, and moderate 
 them by equity, (Mod. Un. Hist, 
 xxii. 237,) seems rather to have 
 been a court of appeal. 
 
 (o) Thus too the court of session 
 in Scotland, and every jurisdiction 
 in Europe of which we have any 
 tolerable account, found all their 
 decisions as well upon principles of 
 equity as those of positive law. 
 (Lord Kayms, Hist. Law Tracts, i. 
 325, 330 ; Princ. of Equit. 44.) 
 
 (p) Thus Cicero : "jam itlis pro- 
 missis non este stnndum, quis non videt, 
 qua coactus qnis metu el deceptus dolo 
 promiseril ? Qu& quidem pleraque jure 
 pratorio liberantur, nonnulla legibus." 
 — Oftic. 1. i. x. 
 
 D D
 
 402 BOOK V.— OF CIVIL INJURIES. 
 
 [principles of equity. With us, too, the aula regia, which 
 was the supreme court of judicature, undoubtedly adminis- 
 tered equal justice according to the rules of both or either, 
 as the case might chance to require : and, when that was 
 broken to pieces, the idea of a court of equity, as distin- 
 guished from a court of law, did not subsist in the original 
 plan of partition. For though equity is mentioned by 
 Bracton (q), as a thing contrasted to strict law, yet neither 
 in that writer, nor in Glanvil or Fleta, nor yet in Britton, 
 (composed under the auspices and in the name of Edward 
 the first, and treating particularly of courts and their several 
 jurisdictions,) is there a syllable to be found relating to the 
 equitable jurisdiction of the Court of Chancery.] Nor is 
 it very clear in what manner or under what circumstances 
 that anomaly was first established in this country. But it 
 was probably the result of the rude and imperfect constitu- 
 tion of our courts of the common law, which derived their 
 authority in each case from the king's original writ, issued 
 at the commencement of the suit in some fixed and antient 
 form, so that they found, or supposed themselves unable to 
 afford, any remedy beyond what the writ so issued specifi- 
 cally required or authorized. For it seems that owing to 
 this cause there was a frequent failure of justice in the 
 common law courts, and that under such circumstances 
 [the application for redress used to be to the king in per- 
 son, assisted by his privy council, (from whence also arose, 
 the jurisdiction of the Court of Requests (r), which was 
 virtually abolished by the statute 16 Car. I. c. 10,) and 
 they were wont to refer the matter either to the chancellor 
 and a select committee, or by degrees to the chancellor 
 only, who mitigated the severity or supplied the defects 
 
 (</) L. ii. c. 7, fol. 23 ; also f. 3 a, " ally and properly all poor men's 
 
 s. 5; see Plowd. 467. "suits, which were made to his 
 
 (r) The matters cognizable in " majesty by supplication; and upon 
 
 this court, immediately before its " which they were entitled to have 
 
 dissolution, were " almost all suits, " right without payment of any 
 
 " that by colour of equity, or sup- " money for the same." — (Smith's 
 
 " plication made to the prince, might Commonwealth, b. 3, c. 7.) Cam- 
 
 " be brought before him : but origin- den on the Law Courts.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 403 
 
 [of the judgments pronounced in the courts of law, upon 
 weighing the circumstances of the case. This was the cus- 
 tom not only among our Saxon ancestors, before the insti- 
 tution of the aula regia (s), but also after its dissolution, in 
 the reign of King Edward the first (t); and perhaps during 
 its continuance, in that of Henry the second (u). 
 
 In these early times the chief judicial employment of the 
 chancellor must have been in devising new writs, directed 
 to the courts of common law, to give remedy in cases 
 where none was before administered. And to quicken the 
 diligence of the clerks in the chancery, who were too much 
 attached to antient precedents, it is provided by statute 
 Westminster the second, 13 Edward I. c. 24, that " when- 
 " soever from thenceforth in one case a writ shall be found 
 " in the chancery, and in a like case falling under the same 
 " right and requiring the like remedy, no precedent of a 
 " writ can be produced, the clerks in chancery shall agree 
 " in forming a new one : and if they cannot agree, it shall 
 " be adjourned to the next parliament, where a writ shall 
 " be framed by consent of the learned in the law (a:), lest it 
 " happen for the future, that the court of our lord the king 
 " be deficient in doing justice to the suitors." And this 
 accounts for the very great variety of writs of trespass on 
 the case,] as they were called, [to be met with in the 
 register ; whereby the suitor had ready relief, according to 
 the exigency of his business, and adapted to the specialty, 
 reason, and equity of his very case ( y). Which provision 
 
 (■>) "Nemo ad regem appellet pro has these lines : 
 
 aliqua lite, nisi jus domi consequi non " Hie est, qui leges regni cancellut 
 
 possit. Si jus nimis severum sit, alle- iniquas, 
 
 viatio deinde quecratttr apud regem." FA muudata pii principis cequa 
 
 — LL. Edg. c. 2. facit." 
 
 (t) Lambard. Archeion, 71. (j) A great variety of new prece- 
 
 (u) Johannes Sarisburiensis (who dents of writs, in cases before unpro- 
 
 died a.d. 11S2, in the twenty-sixth tided for, are given by this very 
 
 year of Henry the second,) speaking statute of Westminster the second. 
 
 of the chancellor's office in the (y) Lamb. Archeion, 61. 
 
 verses prefixed to his Polycraticon, 
 
 D D. 2
 
 404 BOOK V. — OF CIVIL INJURIES. 
 
 [(with a little accuracy in the clerks of the chancery, and 
 a little liberality in the judges, by extending rather than 
 narrowing the remedial effects of the writ) might have 
 effectually answered all the purposes of a court of equity (z) ; 
 except that of obtaining a discovery by the oath of the de- 
 fendant. 
 
 But when, about the end of the reign of King Edward 
 the third, uses of land were introduced (a), and, though 
 totally discountenanced by the courts of common law, 
 were considered as fiduciary deposits, and binding in con- 
 science by the clergy, the separate jurisdiction of the 
 chancery as a court of equity began to be established (b) ; 
 and John Waltham, who was bishop of Salisbury and 
 chancellor to King Richard the second, by a strained inter- 
 pretation of the above-mentioned statute of Westminster 
 the second, devised the writ of subpoena, returnable to 
 the Court of Chancery only, to make the feoffee to uses 
 accountable to his cestui que use ; which process was after- 
 wards extended to other matters wholly determinable at 
 the common law, upon false and fictitious suggestions ; 
 for which, therefore, the chancellor himself is, by statute 
 17 Rich. II. c. 6, directed to give damages to the party 
 unjustly aggrieved. But as the clergy, so early as the 
 reign of King Stephen, had attempted to turn their eccle- 
 siastical courts into courts of equity, by entertaining suits 
 pro Itesione jidei, as a spiritual offence against conscience, 
 in case of non-payment of debts or any breach of civil 
 contracts (c) ; till checked by the Constitutions of Claren- 
 don (d), which declared that, " placita de debitis, qua fide 
 interposita debentur, vel absque interpositione fidei, sint in 
 
 (:) This was the opinion of Fair- 21 Edw. 4, 23.) 
 fax, a very learned judge in the time (a) Vide sup. vol. i. p. 342. 
 
 of Edward the fourth. " Le subpoena" (h) Spelm. Gloss. 106; R. t'. 
 
 (says he) " ne serroit my cy sovente- Standish, 1 Lev. 242. 
 ment use come il est ore, si nous often- (r) Lord Lyttelt. Hen. 2, Book 3, 
 
 domus tiels actions sur Its cases, et p. 361, note. 
 
 mainteinomus le jurisdiction de ceo (d) 10 Hen. 2, c. 15 ; Speed. 468. 
 
 court, et d'uuter courts. 1 ' — (Year B.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 405 
 
 [justltia regis :" — therefore probably the ecclesiastical chan- 
 cellors, who then held the seals, were remiss in abridging 
 their own new-acquired jurisdiction; especially as the spiri- 
 tual courts continued (e) to grasp at the same authority as 
 before, in suits pro lasione fidei, so late as the fifteenth 
 century (f), till finally prohibited by the unanimous con- 
 currence of all the judges. However, it appears from the 
 parliament rolls (g), that in the reigns of Henry the fourth 
 and fifth, the commons were repeatedly urgent to have the 
 writ of subpoena entirely suppressed, as being a novelty 
 devised by the subtlety of Chancellor Waltham, against 
 the form of the common law; whereby no plea could be 
 determined, unless by examination and oath of the parties, 
 according to the form of the law civil, and the law of holy 
 church, in subversion of the common law. But though 
 Henry the fourth, being then hardly warm in his throne, 
 gave a palliating answer to their petitions, and actually 
 passed the statute, 4 Henry IV. c. 23, whereby judgments 
 at law are declared irrevocable unless by attaint or writ of 
 error, yet his son put a negative at once upon their whole 
 application : and in Edward the sixth's time, the process 
 by bill and subpoena was become the daily practice of the 
 court (h) . 
 
 But this did not extend very far ; for in the antient 
 
 (e) In the fourth year of Henry that statute; though in Lyndewood's 
 
 the third suits in courts christian, pro copy (Prov. 1. 2, t. 2,) and in the 
 
 Itesionejiilei upon temporal contracts, Cotton MS. (Claud. D. 2), that 
 
 were adjudged to be contrary to law, clause is omitted. 
 (Bro. Abr. tit. Prohibition, 15.) But (/) Year Book, 2 Hen. 4, 10; 11 
 
 in the statite or writ of circumspecte Hen. 4, 88; 38 Hen. 4, 29; 20 Edw. 
 
 agatis, supposed by some to have is- 4, 10. 
 
 sued in the thirteenth year of Ed- (g) Rot. Pari. 4 Hen. 4, no. 78 
 
 ward the first, but more probably (3 and 110; 3 Hen. 5, no. 46, cited in 
 
 Pryn. Rec. 336) in the ninth year of Prynne's Abr. of Cotton's Records, 
 
 Edward the second, suits pro Iteiione 410, 422, 424, 548 ; 4 Inst. 83 ; 1 
 
 fidei were allowed to the ecclesiastical Roll. Abr. 370, 371, 372. 
 courts ; according to some antient (/t) Rot. Pari. 14 Edw. 4, No. 33, 
 
 copies, (Berthelet, Stat. Antiq. Lond. (not 14 Edw. 3, as cited 1 Roll. Abr. 
 
 1531, 90 A; 3 Pryn. Rec. 336,) and 370, &c.) 
 the common English translation of
 
 406 BOOK V. OF CIVIL INJURIES. 
 
 [treatise, entitled Diver site des Courtesii), supposed to be 
 written very early in the sixteenth century, we have a ca- 
 talogue of the matters of conscience then cognizable by 
 subpoena in chancery, which fall within a very narrow com- 
 pass. No regular judicial system at that time prevailed 
 in the court ; but the suitor, when he thought himself 
 aggrieved, found a desultory and uncertain remedy, ac- 
 cording to the private opinion of the chancellor, who was 
 generally an ecclesiastic, or sometimes (though rarely) a 
 statesman ; no lawyer having sat in the Court of Chancery 
 from the times of the Chief Justices Thorpe and Knyvet, 
 successively chancellor to King Edward the third, in 1372 
 and 1373(A), to the promotion of Sir Thomas More by 
 King Henry the eighth, in 1530. After which the great 
 seal was indiscriminately committed to the custody of 
 lawyers, or courtiers (Z), or churchmen (m), according as 
 the convenience of the times and the disposition of the 
 prince required, till Serjeant Puckering was made lord 
 keeper in 1592; from which time to the present the Court 
 of Chancery has always been filled by a lawyer, excepting 
 the interval from 1621 to 1625, when the seal was intrusted 
 to Dr. Williams, then Dean of Westminster, but after- 
 wards Bishop of Lincoln, who had been chaplain to Lord 
 Ellesmere, when chancellor (w). 
 
 In the time of Lord Ellesmere (a.d. 1616) arose that 
 notable dispute between the courts of law and equity, set 
 on foot by Sir Edward Coke, then chief justice of the 
 Court of King's Bench ; whether a court of equity could 
 give relief after or against a judgment at the common law. 
 This contest was so warmly carried on, that indictments 
 were preferred against the suitors, the solicitors, the coun- 
 sel, and even a master in chancery, for having incurred a 
 
 (i) Tit. Chancery, fol. 296, Ras- Hatton. 
 
 tell's edit. a.d. 1531. (,») Goodrick, Gardiner, and 
 
 (/c) Spelm. Gloss. Ill ; Dugd. Heath. 
 
 Chron. Ser. 50. («) Biog. Brit. 4278. 
 
 (/) Wriothesley, St. John, and
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 407 
 
 [prcemunire, by questioning in a court of equity a judgment 
 in the Court of* King's Bench, obtained by gross fraud 
 and imposition (o). This matter being brought before the 
 king, was by him referred to his learned counsel for their 
 advice and opinion ; who reported so strongly in favour of 
 the courts of equity (p), that his majesty gave judgment 
 on their behalf: but, not contented with the irrefragable 
 reasons and precedents produced by his counsel (for the 
 chief justice was clearly in the wrong), he chose rather to 
 decide the question by referring it to the plenitude of his 
 royal prerogative (q). Sir Edward Coke submitted to the 
 decision (r), and thereby made atonement for his error ; but 
 this struggle, together with the business of commendams (in 
 which he acted a very noble part (.?)), and his controlling 
 the commissioners of sewers (t), were the open and avowed 
 causes (m), first of his suspension, and soon after of his 
 removal, from his office. 
 
 (o) Bacon's Works, iv. 611, 612, 
 632. 
 
 (/>) Whitelocke of Pari. ii. 390; 1 
 Chan. Rep. Append. 11. 
 
 (<y) " For that it appertained to 
 " our princely office only to judge 
 " over all judges, and to discern and 
 " determine such differences as at 
 " any time may and shall arise be- 
 " tween our several courts touching 
 " their jurisdictions, and the same 
 " to settle and determine as we in 
 " our princely wisdom shall find to 
 " stand most with our honour, Sec." 
 —(1 Chanc. Rep. App. 26.) 
 
 (r) See the entry in the Council 
 Book, 26th July, 1616 (Biogr. Brit. 
 1390). 
 
 (s) In a cause of the Bishop of 
 Winchester, touching a commendam, 
 King James, conceiving that the 
 matter affected his prerogative, sent 
 letters to the judges not to proceed 
 in it till himself had heen first con- 
 sulted. The twelve judges joined in 
 
 a memorial to his majesty, declaring 
 that their compliance would be con- 
 trary to their oaths and the law ; but 
 upon being brought before the king 
 and council, they all retracted and 
 promised obedience in every such 
 case for the future; except Sir Ed- 
 ward Coke, who said, " that when 
 " the case happened he would do his 
 " duty."— (Biogr. Brit. 13S8.) 
 
 (() As to this, vide post, chap. vi. 
 under the head of Court of Commis- 
 sioners of Sewers. 
 
 («) See Lord EUesmerc's speech 
 to Sir Henry Montague, the n w 
 chief justice, 15th November, 1616. 
 (.Moor's Reports, 828.) Though Sir 
 Edward might probably have re- 
 tained his seat, if, during his suspen- 
 sion, he would have complimented 
 Lord Villiers (the new favourite) 
 with the disposal of the most lucra- 
 tive office in his court. (Biogr. Brit. 
 1391)
 
 408 BOOK V. OF CIVIL INJURIES. 
 
 [Lord Bacon, who succeeded Lord Ellesmere, reduced 
 the practice of the court into a more regular system ; but 
 did not sit long enough to effect any considerable revolu- 
 tion in the science itself: and few of his decrees which 
 have reached us are of any great consequence to posterity. 
 His successors, in the reign of Charles the first, did little 
 to improve upon his plan : and even after the Restoration, 
 the seal was committed to the Earl of Clarendon, who had 
 withdrawn from practice as a lawyer near twenty years ; 
 and afterwards to the Earl of Shaftesbury, who (though 
 a lawyer by education) had never practised at all. Sir 
 Heneage Finch, who succeeded, in 1673, and became after- 
 wards Earl of Nottingham, was a person of the greatest 
 abilities and most uncorrupted integrity ; a thorough mas- 
 ter and zealous defender of the laws and constitution of 
 his country ; and endued with a pervading genius, that 
 enabled him to discover and to pursue the true spirit of 
 justice, notwithstanding the embarrassments raised by the 
 narrow and technical notions which then prevailed in the 
 courts of law, and the imperfect ideas of redress which had 
 possessed the courts of equity. The reason and necessities 
 of mankind, arising from the great change in property by 
 the extension of trade and the abolition of military tenures, 
 co-operated in establishing his plan, and enabled him in 
 the course of nine years to build a system of jurisprudence 
 and jurisdiction upon wide and rational foundations; which 
 have also been extended and improved by many great 
 men, who have since presided in chancery. And from 
 that time to this, the power and business of the court have 
 increased to an amazing degree (.r).] 
 
 (t) In recent times a great variety (amended by 4 & 5 Vict. c. 52 ; 5 
 
 of acts have been passed for the im- Vict. c. 5, and 8 & 9 Vict. c. 105,) 
 
 provement of this court. See 2 Will. enabling the Lord Chancellor, with 
 
 4, c. 33, to effectuate the service of advice and consent of the Master of 
 
 process from the Court of Chancery ; the Rolls and Vice-Chancellor, or 
 
 2 & 3 Will. 4, c. Ill ; 5 & 6 Vict. c. one of them, to alter the pleading 
 
 103; for abolition of certain offices and practice ; 11 & 12 Vict. c. 10, 
 
 in Chancery; 3 & 4 Vict. c. 94, empowering certain officers of the
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 409 
 
 The judicial duties of this court of equity have been long 
 shared in some measure by an officer of high rank, called 
 the Master of the Rolls, originally appointed only for the 
 superintendence of the writs and records appertaining to its 
 common law department (t/), but accustomed also to sit on 
 the equity side as a separate, though subordinate judge (z). 
 [Concerning his authority to hear and determine causes* 
 and his general power in the Court of Chancery, there 
 were formerly diverse questions and disputes very warmly 
 agitated; to quiet which it was declared by 3 Geo. II. 
 c. 30, that all orders and decrees by him made, except 
 such as by the course of the court were appropriated to 
 the Great Seal alone, shall be deemed to be valid, subject 
 nevertheless to be discharged or altered by the Lord Chan- 
 cellor, and so as they shall not be enrolled till the same are 
 signed by his lordship (a).] And by a late statute, 3 & 4 
 Will. IV. c. 94(6), the Master of the Rolls is specially 
 
 court to administer oaths ; 12 & 13 
 Vict. c. 109, regulating the petty bag 
 and enrolment office and practice on 
 the common law side; 13 & 14 Vict. 
 c. 35, to diminish the delay and ex- 
 pense of proceedings in Chancery ; 
 14 & 15 Vict. c. 4, for continuing 
 the third Vice-Chancellor, 14 & 15 
 Vict. c. 83, for appointing judges of 
 appeal in Chancery ; 15 & 16 Vict. c. 
 80, abolishing the Masters in Chan- 
 cery, and making provisions for a 
 successor to the Vice-Chancellor ap- 
 pointed by 14 & 15 Vict. c. 4 ; 15 & 
 16 Vict. c. 86, for amending the 
 practice in Chancery; 15 & 16 Vict, 
 c. 87, for relief of the suitors in 
 Chancery. 
 
 (y) 4 Inst. 82. 
 
 (s) The Master of the Rolls was 
 properly the chief of a body of of- 
 ficers called the Masters in Chancery, 
 of whom there have been, until re- 
 cently, ten others, including the ac- 
 countant-general. See as to these 
 officers, 4 Inst. 82; and Smith's 
 
 Commonw. bk. ii. c. 12, where it is 
 said that so late as the reign of Eliza- 
 beth they were commonly doctors of 
 the civil law. The offices of the 
 masters in Chancery, viz. those sub- 
 ordinate to the Master of the Rolls, 
 were newly regulated by 3 &- 4 Will. 
 4, c. 94, (amended by 10 & 11 Vict, 
 c. 60.) And see 10 & 1 1 Vict. c. 97. 
 But now by 15 & 16 Vict. c. 80, 
 these offices are abolished, with re- 
 servation, however, of the power of 
 existing masters to act in certain 
 matters, until they shall be respec- 
 tively released by the Lord Chan- 
 cellor from the performance of all 
 duties. And with a reservation also 
 of the rights, duties, and privileges 
 of the accountant- genera I as a Master 
 in Chancery (sect. 59.) 
 
 (a) 3 Bl. Com. 450. See 7 Will. 
 4 & 1 Vict. c. 46, as to the full salary 
 of the Master of the Rolls, and 1 & 2 
 Vict. c. 94, vesting in him the cus- 
 tody of the public records. 
 
 (6) Sect. 24.
 
 410 BOOK V. — OF CIVIL INJURIES. 
 
 directed to hear motions, pleas, and demurrers, as well as 
 causes generally. The vast increase of business, however, 
 to which reference has been already made, and the pro- 
 gress of which has been particularly marked during the 
 last half century, having at length become such as to ren- 
 der the antient force of the Court of Chancery wholly 
 inadequate to the labours it had to perform, it was found 
 necessary, in the year 1813(c) to appoint another assistant 
 to the Lord Chancellor, under the title of Vice-Chancellor 
 of England ; and upon the recent transfer to this court in 
 1841, of the equity business of the Exchequer, two more 
 Vice-Chancellofs were added to its judicial list(tZ); each of 
 whom sits (like the Master of the Rolls) separately from 
 the Lord Chancellor. Another addition also has been re- 
 cently made(e) by two judges called the lords justices of the 
 Court of Appeal in Chancery ( f), which court is to consist of 
 the Lord Chancellor together with these judges, and pos- 
 sesses all the jurisdiction exercised by the Lord Chancellor 
 himself, so far as his judicial business in Chancery is con- 
 cerned, without prejudice, however, to his right to sit as 
 formerly alone. To this court (the powers of which may 
 be exercised, not only by its full body, but by either of its 
 judges, together with the Lord Chancellor, or by both the 
 judges apart from the Lord Chancellor,) an appeal from the 
 Master of the Rolls and each of the Vice-Chancellors may 
 be referred ; or may be entertained by the Lord Chancellor 
 sitting alone in his proper jurisdiction ; and from these 
 appellate jurisdictions an appeal in turn lies to the House 
 of Lords. 
 
 IX. [The next court that shall be mentioned is one that 
 hath no original jurisdiction, but is only a court of appeal, 
 
 (c) By stat. 53 Geo. 3, c. 24. 4, and that of another successor by 
 
 (d) By stat. 5 Vict. c. 5, s. 19. As 15 & lu' Vict. c. 80, ss. 52—58. 
 to one of these Vice-Chancellorships, (e) By 14 & 15 Vict. c. 83. 
 
 the act provides that nothing therein (/') The lords justices (if privy 
 
 contained shall authorize the ap- councillors) are also to be members 
 
 pointment of a successor. The ap- of the judicial committee of the privy 
 
 pointment of a successor, however, council, as to which vide sup. vol. ii. 
 
 was authorized by 14 & 15 Vict. c. p. 450. 

 
 CHAP. IV.— OF THE COURTS OF GENERAL JURISDICTION. 41 1 
 
 [to correct the errors of other jurisdictions. This is the 
 Court of Exchequer Chamber;] which is subject to con- 
 siderable variety in its form : for first it exists as a court 
 of mere debate, [such causes from the other courts being 
 sometimes adjourned into it as the judges, upon argument, 
 find to be of great weight and difficulty, before any judg- 
 ment is given upon them in the court below (^7).] And it 
 then [consists of all the judges of the three superior courts] 
 of common law, [and now and then the lord chancellor also.] 
 Considered as a court of error, in which light we are now 
 principally concerned with it, it [was first erected by statute 
 31 Edw. III. c. 12, to determine causes upon writs of error 
 from the common law side of the Court of Exchequer. 
 And to that end it consisted of the lord chancellor and lord 
 treasurer, taking unto them the justices of the King's Bench 
 and Common Pleas. In imitation of which, a second 
 Court of Exchequer Chamber was erected by statute 27 
 Eliz. c. 8, consisting of the justices of the Common Pleas 
 and the barons of the Exchequer; before whom writs of 
 error might be brought to reverse judgments in certain 
 suits originally begun in the Court of King's Bench.] 
 But both these constitutions are now abolished. For a 
 royal commission having issued in 1828 to inquire into the 
 pleadings and practice of the superior courts of the common 
 law, it recommended among many other improvements a 
 new arrangement of this court, which was afterwards car- 
 ried into effect by 11 Geo. IV. & 1 Will. IV. c. 70, s. 8. 
 According to this arrangement the judgments of each of 
 the superior courts of common law in all suits whatever are 
 (upon proceedings in error in law being instituted for the 
 purpose (h) ) subject to revision by the judges of the other 
 two, sitting collectively as a court of error for that purpose 
 in the Exchequer Chamber. The composition of this court 
 
 (g) 4 Inst. 119; Warraine v. writ of error. But writs of error are 
 
 Smith, 2 Bulst. 14(i. now abolished by 1 J & 10' Vict. c. "0', 
 
 (li) These proceedings in error s. 148. 
 formerly commenced by suing out a
 
 412 
 
 BOOK V.— OF CIVIL INJURIES. 
 
 consequently admits of three different combinations, con- 
 sisting of any two of the courts below, viz. those which were 
 not parties to the judgment supposed to be erroneous. 
 
 From each combination of this court (?) proceedings in 
 error may be taken into 
 
 X. [The House of Peers ; which is the supreme court of 
 judicature in the kingdom, having at present no original 
 jurisdiction over causes, but only] in case of appeal, or 
 proceedings in error, [to rectify any injustice or mistake of 
 the law, committed by the courts below. To this authority 
 this august tribunal succeeded of course upon the dissolution 
 of the aula regia. For, as the barons of parliament were con- 
 stituent members of that court; and the rest of its jurisdic- 
 tion was dealt out to other tribunals, over which the great 
 officers who accompanied those barons were respectively 
 delegated to preside ; it followed that the right of receiving- 
 appeals, and superintending all other jurisdictions, still re- 
 mained in the residue of that noble assembly, from which 
 every other great court was derived. They are therefore 
 in all causes] of common law or equity commenced in 
 any court of England (subject only to some slight excep- 
 tions (j) ) a tribunal of appeal, (that is, either originally or 
 
 (i) 11 Geo. 4 & 1 Will. 4, c. 70, 
 s. 8. 
 
 ( /) But there is no appeal to the 
 Lords from the Ecclesiastical, Mari- 
 time, or Prize Courts in England, 
 nor from Man, Jersey, Guernsey, 
 Sark, or Alderney, nor from the colo- 
 nies ; the appeal in these cases heing 
 to the Queen in Council. And the 
 appeal from a court martial is to the 
 Queen in person. As is also the ap- 
 peal from the Lord Chancellor in 
 matters of idiotcy or lunacy. There 
 is also an exception in the case of 
 the Court of the Stannaries of Corn- 
 wall, where the appeal is from the 
 vice-warden to the lord-warden and 
 
 thence to the privy council of the 
 Prince of Wales, as Duke of Corn- 
 wall ; and thence to the sovereign 
 in council. And another exception 
 in the case of the court of the vice- 
 chancellor of Lancaster, where the 
 appeal seems to be to the chancellor 
 of the Duchy Court of Lancaster ; 
 vide post, p. 432. From the courts 
 of Scotland and Ireland, however, 
 the appeal is to the House of Lords. 
 As to appeals from Scotland, see 6 
 Ann. c. 26", s. 12 ; 48 Geo. 3, c. 151 ; 
 53 Geo. 3, c. 04 j 59 Geo. 3, c. 35 ; 
 4 Geo. 4, c. 85. As to those from 
 Ireland, 23 Geo. 3, c. 28 ; 39 & 40 
 Geo. 3, c. 67, Art. 8.
 
 CHAP. IV.— OF THE COURTS OF G ENERAL J URISDICTION. 413 
 
 after the intervention of a previous appeal to another court, 
 as the case may be,) and they are also in all such causes 
 [the last resort, from whose judgment no farther appeal is 
 permitted ; but every subordinate tribunal must conform 
 to their determinations ; the law reposing an entire confi- 
 dence in the honour and conscience of the noble persons 
 who compose this important assembly, that (if possible) 
 they will make themselves masters of those questions upon 
 which they undertake to decide, and in all dubious cases 
 refer themselves to the opinions of the judges, who are 
 summoned by writ to advise them ; since upon their deci- 
 sion all property must finally depend. 
 
 Hither may also be referred the tribunal established by 
 statute 14 Edw. III. c. 5, consisting (though now out of 
 use) of one prelate, two earls, and two barons, who are to 
 be chosen at every new parliament, to hear complaints of 
 grievances and delays of justice in the king's courts, and 
 (with the advice of the chancellor, treasurer, and justices 
 of both benches) to give directions for remedying these in- 
 conveniences in the courts below. This committee seems 
 to have been established, lest there should be a defect of 
 justice for want of a supreme court of appeal, during any 
 long intermission or recess of parliament ; for the statute 
 farther directs, that if the difficulty be so great that it may 
 not well be determined without assent of parliament, it shall 
 be brought by the said prelate, earls and barons unto the 
 next parliament, who shall finally determine the same.] 
 
 XI. We have next to notice [an eleventh species of 
 courts, of general jurisdiction and use, which are derived 
 out of, and act as collateral auxiliaries to, the foregoing ; 
 namely, the courts of assise and nisi prius. 
 
 These are composed of two or more commissioners,] 
 called judges of assise (or of assise and nisi prius), [who 
 are twice in every year (k) sent by the queen's special com- 
 
 (A) Occasionally a third circuit is for the purpose of gaol delivery, 
 appointed in the coarse of the year,
 
 414 BOOK V.— OF CIVIL INJURIES. 
 
 [mission] on circuits [all round the kingdom, to try by a 
 jury of the respective counties the truth of such matters of 
 fact as are then under dispute in the courts of Westminster 
 Hall;] there being, however, as to London and Middlesex, 
 this exception, that instead of their being comprised within 
 any circuit, courts of nisi prius are held there for the same 
 purpose, in and after every term, before the chief or other 
 judge of the superior courts, at what are called the London 
 and Westminster sittings (I). [These judges of assise came 
 into use in the room of the antient justices in eyre, justi- 
 ciarii in itiuere ; who were regularly established, if not first 
 appointed, by the Parliament of Northampton, A. d. 1176, 
 in the twenty-second year of Henry the second (m), with a 
 delegated power from the king's great court or aula regia, 
 being looked upon as members thereof: and they after- 
 wards made their circuit round the kingdom once in seven 
 years for the purpose of trying causes (n). They were 
 afterwards directed by Magna Charta, c. 12, to be sent 
 into every county once a year, to take (or receive the ver- 
 dict of the jurors or recognitors in certain actions, then 
 called) recognitions or assises; the most difficult of which 
 they are directed to adjourn into the Court of Common 
 Pleas to be there determined. The itinerant justices were 
 sometimes mere justices of assize, or of dower, or of gaol 
 delivery, and the like ; and they had sometimes a more 
 general commission, to determine all manner of causes, 
 being constituted justiciarii ad omnia placita (o) : but the 
 present justices of assise and nisi jjrius are more imme- 
 diately derived] from the statute of Westminster the second, 
 13 Edw. I. c. 30, and consist principally of the judges of 
 
 (/) These sittings are regulated by justiciarii itinerantes venerunt apud 
 
 the following statutes: 18 Eliz. c. 12; Wignrniam in octuvis S. Johannis bap- 
 
 12 Geo. 1, c. 31 ; 24 Geo. 2, c. 18; tist<e ; — et lotus comitatus eos admittere 
 
 1 Geo. 4, cc. 21, 55 ; 11 Geo. 4 & 1 recusavit, quod sept em anni nondum 
 
 Will. 4, c. 70, s. 7. eruntelapsi, postquam justiciarii ibidem 
 
 (m) Seld. Jan. 1. 2, s. 5 ; Spelm. ultimo sederunt." — (Annal. Eccl. Wi- 
 
 Cod. 329. gorn. in Whart. Angl. Sacr. i. 495.) 
 
 (n) Co. Litt. 293.— "Anno 1261, (..) Bract. 1. 3, tr. 1, c. 11.
 
 CHAP. IV. — OF THE COURTS OF GENERAL JURISDICTION. 415 
 
 the superior courts of common law, to whom the duty 
 is confided of thus superintending the trial of matters of 
 fact at the courts of assises and nisi j)rius, as well as that 
 of deciding matters of law, and transacting other judicial 
 business at their sittings in banc (as it is called), that is, on 
 the bench of their respective courts at Westminster. For 
 by the above-mentioned statute of 13 Edw. I. c. 30, the 
 judges of assize and nisi prius are to be [assigned out of 
 the king's sworn justices, associating to themselves one or 
 two discreet knights of each county : — by statute 27 Edw. I. 
 c. 4, (explained by 12 Edw. II. c. 3,) assises and inquests 
 are allowed to be taken before any one justice of the court 
 in which the plea was brought ; associating to him one 
 knight or other approved man of the county: — by statute 
 14 Edw. III. c. 16, inquests of nisi prius may be taken 
 before any justice of either bench (though the plea be not 
 depending in his own court) or before the chief baron of 
 the Exchequer, if he be a man of the law ; or otherwise 
 before the justices of assise, so that one of such justices be 
 a judge of the King's Bench or Common Pleas, or the 
 king's serjeant sworn :] — and, lastly, by 2 & 3 Vict. c. 22, 
 all justices of assise may on their respective circuits try 
 causes pending in the Court of Exchequer, without issuing 
 (as it had till then been considered necessary to do) a 
 separate commission from the Exchequer for that purpose. 
 [They usually make their circuits in the respective vaca- 
 tions after Hilary and Trinity terms ; assises being allowed 
 to be taken in the holy time of Lent by consent of the 
 bishops at the king's request, as expressed in statute West- 
 minster the first, 3 Edw. I. c. 51 (p). And it was also 
 usual, during the times of popery, for the prelates to grant 
 annual licences to the justices of assise to administer oaths 
 in holy times : for oaths being of a sacred nature, the logic 
 of those deluded ages concluded that they must be of ec- 
 clesiastical cognizance {(f). The prudent jealousy of our 
 
 (/>) Vide post, chap. x. p. 53-1'. Original of the Terms, and in Par- 
 
 (q) Instances hereof may be met ker's Antiquities, 209. 
 with in the Appendix to Spelman's
 
 416 BOOK V.— OF CIVIL INJURIES. 
 
 ancestors ordained (r), that no man of law should be judge 
 of assise in his own county, wherein he was born, or doth 
 inhabit; and a similar prohibition is found in the civil law(s), 
 which has carried this principle so far, that it is equivalent 
 to the crime of sacrilege for a man to be governor of the 
 province in which he was born, or has any civil con- 
 nexion (£)•] But in modern times, this prohibition, always 
 inconvenient, has been also deemed unnecessary, the appre- 
 hensions on which it is founded being sufficiently obviated 
 by the high character and position of our judges. By sta- 
 tute 12 Geo. II. c. 27, and 49 Geo. III. c. 91, it is conse- 
 quently abolished. 
 
 [The judges upon their circuits] (which are eight in num- 
 ber (u) ) [now sit by virtue of] four (a:) [several authorities. 
 1. The commission of the peace (y). 2. A commission of 
 oyer and terminer. 3. A commission of general gaol deli- 
 very. — The consideration of all which belongs properly to 
 the subsequent book of these Commentaries. The other 
 authority is, 4. That of nisi prius (z), which is a consequence 
 of the] antient [commission of assise (a), being annexed to 
 the office of justices of assise by the statute of Westminster 
 the second, 13 Edw. I. c. 30, and it empowers them to try 
 all questions of fact issuing out of the courts at Westmin- 
 ster that are then ripe for trial by jury.] These, by the 
 antient course of the courts, were usually appointed to be 
 tried at Westminster in some Easter or Michaelmas term, by 
 a jury returned from the county wherein the cause of action 
 arose ; but with this proviso, nisi prius, unless before the 
 
 (r) Stat. 4 Edw. 3, c. 2; 8 Rich. 2, (including the commission of assise.) 
 c. 2 ; 33 Hen. 8, c. 24. hut the recent abolition of assises, 
 (s) Ff. 1, 22, 23. and other real actions, have thrown 
 (t) C. 9, 29, 4. the commission of assise, as distin- 
 ct) These are the Home — the guished from the commission of nisi 
 Midland— the Norfolk — the Oxford prius, out of force. 
 — the Northern — the Western — the (y) Vide sup. vol. ii. p. 624. 
 North Wales —and the South Wales (:) As to the officers of nisi prius 
 Circuit. and their fees, 15 & 16 Vict. c. 73. 
 (.i) Blackstone enumerates five, (a) Bullock v. Parsons, Salk. 454.
 
 CHAP. IV. OF THE COURTS OF GENERAL JURISDICTION. 4 1 7 
 
 day prefixed the judges of assise should come into the 
 county in question, which in modern times they have in- 
 variably done in the vacations preceding, so that the trial 
 has always in fact taken place before those judges. And 
 now by the effect of the recent statute 15 & 1 6 Vict. c. 76 (c), 
 the course of proceeding is no longer even ostensibly con- 
 nected with a proviso at nisi prius, but the trial is allowed 
 to take place without the use of any such words, and as a 
 matter of course before the judges sent under the commis- 
 sion into the several counties. [These commissions are 
 constantly accompanied by writs of association, in pursuance 
 of the statutes of Edward the first and Edward the second 
 before mentioned ; whereby certain persons (usually the 
 clerk of assise and his subordinate officers) are directed 
 to associate themselves with the justices and Serjeants, and 
 they are required to admit the said persons into their so- 
 ciety, in order to take the assises, &c, that a sufficient 
 supply of commissioners may never be wanting. But, to 
 prevent the delay of justice by the absence of any of them, 
 there is also issued of course a writ of si non omnes ; di- 
 recting, that if all cannot be present, any two of them (a 
 justice or serjeant being one) ((/) may proceed to execute 
 the commission (e).] 
 
 These are the courts of general jurisdiction for the deter- 
 mination of ordinary causes and matters, whether arising 
 
 (r ) See 15 & 16 Vict. c. 73, s. order in a cause on circuit, whether 
 
 104, abolishing the jury process of in a suit depending in his own court 
 
 distringas juratores, in the award of or not. By 3 Geo. 4, c. 10, the com- 
 
 which the proviso of nisi prius used mission of the judges on circuit may 
 
 to be inserted. be opened on the next day to the one 
 
 (d) By 13 & 14 Vict. c. 25, any appointed, or if that be a Sunday, 
 person being one of her majesty's &c. then on the day following. By 
 counsel, or a barrister at law with 3 & 4 Will. 4, c. 71, the places at 
 patent of precedence, may be named which assizes may be held may be 
 in the commission, though he be not fixed by order in council. By 7 Will, 
 of the degree of the coif, any usage 4 & 1 Vict. c. 24, (amending 7 Geo. 
 to the contrary notwithstanding. 4, c. 63,) provisions are made as to 
 
 (e) By 1 Geo. 4, c. 55, s. 5, any building, &c. shire halls for holding 
 judge or baron of the Exchequer the assizes. 
 
 may amend a record, and make an 
 
 VOL. III. E E
 
 418 BOOK V. -OF CIVIL INJURIES. 
 
 at law or in equity ; but there are other courts whose pro- 
 vince, though more special and peculiar as regards the 
 subject-matter of litigation, are yet of jurisdiction equally 
 general in respect of place and person ; and the present 
 chapter would consequently be incomplete without taking- 
 notice of their existence. The courts to which we refer are 
 the Judicial Committee of the Privy Council, the Court of 
 Bankruptcy, and the Insolvent Court. But this bare men- 
 tion of them will suffice for the present purpose, as we have 
 already given, in the course of the second volume, such ac- 
 count of their constitution and course of proceeding as the 
 nature of this work requires (f). 
 
 (/') Vide sup. as to the first, vol. ii. p. 450 ; as to the two last, ibid, 
 pp. 150—170.
 
 ( 419 ) 
 
 CHAPTER V. 
 
 OF COURTS ECCLESIASTICAL, MILITARY, AND 
 MARITIME. 
 
 [Besides the several courts which were treated of in the 
 preceding chapter, and in which all injuries are redressed 
 that fall under the cognizance of common law, or equity, 
 there still remain some other courts of a jurisdiction equally 
 general;] but which give redress for no injuries but those 
 of an ecclesiastical (a), military, and maritime nature; [and 
 therefore are properly distinguished by the title of Eccle- 
 siastical Courts, Courts Military, and Courts Maritime. 
 
 I. Before we descend to consider particular ecclesiastical 
 courts, it must be premised in general, that in the time of 
 our Saxon ancestors there was no sort of distinction between 
 the lay and the ecclesiastical jurisdiction : the county court 
 w r as as much a spiritual as a temporal tribunal: the rights 
 of the church were ascertained and asserted at the same 
 time, and by the same judges, as the rights of the laity. 
 For this purpose the bishop of the diocese, and the alder- 
 man, or in his absence the sheriff of the county, used to sit 
 together in the county court, and had there the cognizance 
 of all causes as well ecclesiastical as civil : a superior defe- 
 rence being paid to the bishop's opinion in spiritual matters, 
 and to that of the lay judges in temporal (b). This union 
 
 (a) As to Ecclesiastical Courts, 14 Vict. c. 47 and 14 & 15 Vict, 
 
 vide post, bk. v. c. 1 3, tr. 1 ; and see c. 29. 
 
 Bac. Ab. tit. Courts; R. v. Thoro- (h) "Celeherrimohuic cnnventui epis- 
 
 good, 12 Ad. & El. 183; R v. Baines, copus et aldermauntts intersunto ; quo- 
 
 ibid. 210 ; 3 & 4 Vict. c. 93 ; and 10 rum alter jura divina, alter humana 
 
 & 11 Vict. c. 98, continued by 13 & populum edoceto." — LL. Edgar, c. 5. 
 
 E E. 2
 
 420 BOOK V. OF CIVIL INJURIES. 
 
 [of power was] in some respects, it may be presumed, [very 
 advantageous to them both : the presence of the bishop 
 added weight and reverence to the sheriff's proceedings ; 
 and the authority of the sheriff was equally useful to the 
 bishop, by enforcing obedience to his decree on such refrac- 
 tory offenders as would otherwise have despised the thunder 
 of mere ecclesiastical censures. 
 
 But so moderate and rational a plan was wholly incon- 
 sistent with those views of ambition, that were then form- 
 ing by the court of Rome. It soon became an established 
 maxim in the papal system of policy, that all ecclesiastical 
 persons, and all ecclesiastical causes, should be solely and 
 entirely subject to ecclesiastical jurisdiction only; which 
 jurisdiction was supposed to be lodged in the first place 
 and immediately in the pope, by divine indefeasible right 
 and investiture from Christ himself; and derived from the 
 pope to all inferior tribunals. Hence the canon law lays it 
 down as a rule, that " sacerdotes a regibus honorandi sunt, 
 non judicandi" (c) ; and places an emphatical reliance on a 
 fabulous tale which it tells of the Emperor Constantine ; 
 that when some petitions were brought to him, imploring 
 the aid of his authority against certain of his bishops 
 accused of oppression and injustice, he caused (says the 
 holy canon) the petitions to be burnt in their presence, dis- 
 missing them with this valediction; " ite et inter vos causas 
 vestras discutite, quia dignum non est ut nos judicemus 
 Deos" {d). 
 
 It was not, however, till after the Norman conquest, that 
 this doctrine was received in England : when William the 
 first (,whose title was warmly espoused by the monasteries, 
 which he liberally endowed, and by the foreign clergy, 
 whom he brought over in shoals from France and Italy 
 and planted in the best preferments of the English church) 
 was at length prevailed upon to establish this fatal in- 
 croachment, and separate the ecclesiastical court from the 
 civil: whether actuated by principles of bigotry, or by those 
 of a more refined policy, in order to discountenance the 
 (c) Decret. part 2, caus. 11, qu. 1, c. 41. (d) Ibid.
 
 CHAP. V. — OF COURTS ECCLESIASTICAL, MILITARY, &C. 421 
 
 [laws of King Edward, abounding with the spirit of Saxon 
 liberty, is not altogether certain. But the latter, if not the 
 cause, was undoubtedly the consequence, of this separation : 
 for the Saxon laws were soon overborne by the Norman 
 justiciaries, when the county court fell into disregard by 
 the bishop's withdrawing his presence, in obedience to the 
 charter of the Conqueror (e), which prohibited any spiritual 
 cause from being tried in the secular courts, and commanded 
 the suitors to appear before the bishop only, whose decisions 
 were directed to conform to the canon law (f ). 
 
 King Henry the first, at his accession, among other 
 restorations of the laws of King Edward the Confessor, 
 revived this of the union of the civil and ecclesiastical 
 courts (g); which was, according to Sir Edward Coke (A), 
 only a restitution, after the great heat of the conquest was 
 past, of the antient law of England. This, however, was 
 ill-relished by the popish clergy, who, under the guidance 
 of that arrogant prelate Archbishop Anselm, very early dis- 
 approved of a measure that put them on a level with the 
 profane laity, and subjected spiritual men and causes to 
 the inspection of the secular magistrates ; and therefore in 
 their synod at Westminster, in the third year of Henry the 
 first, they ordained that no bishop should attend the dis- 
 
 (e) Hale, Hist. C. L. 102; Selden 
 in Eadm. p. 6, 1. 24 ; 4 Inst. 259 ; 
 Wilk. LL. Angl. Sax. 292. 
 
 ( /') " Nnllusepiscopus vel orchidia- 
 conns de tegibus episcopnlilnis amptius 
 in bandied plarita leneant, nee causa m 
 quw ad regimen animaritm pertinei ad 
 judicium secularium hominum addu- 
 cant : sed qiiicnnque secundum episco- 
 pates leges, de quacunqne causa vel 
 culpa inteipellatus J'uerit, ad locum, 
 quern ad hoc episcopus elegerit et nomi- 
 ttaverit, veniat ; ihiqm de causa vel 
 culpa sua respondeat ; et nou secundum 
 hundred, sed secundum canones et epis- 
 copates leges, rectum Deo et episcopo 
 facial."— Wilk. 292. 
 
 ( g) " Volo et praeipio, ut oinnes de 
 comitatu eant adcomitatus ct huiubeda, 
 sicut fecerint tempore regis Edwardi." 
 (Cart. Hen. 1, in Spelm. Cod. Vet. 
 Legum, 305.) And what is here ob- 
 scurely hinted at is fully explained 
 by his eode of laws extant in the red 
 book of the Exchequer, though in 
 general but of doubtful authority. 
 Cap. 8. " Generalia comitatuum pla- 
 cita certis locis et vicibus teneantur. 
 Intersint aulem episcopi, comites, c\c. ; 
 et agnntur prima debita vertr chiistiun- 
 i tads jura, secundo regis placita, pos- 
 tremo causa- singula) uni dignis satisj'uc- 
 tionihus expleautur." 
 
 (h) 2 Inst. 70.
 
 422 BOOK V. — OF CIVIL INJURIES. 
 
 [cussion of temporal causes (i) ; which soon dissolved this 
 newly effected union. And when, upon the death of King 
 Henry the first, the usurper Stephen was brought in and 
 supported by the clergy, we find one article of the oath 
 which they imposed upon him was, that ecclesiastical per- 
 sons and ecclesiastical causes should be subject only to the 
 bishop's jurisdiction (k). And as it was about that time 
 that the contest and emulation began between the laws of 
 England and those of Rome(Z), the temporal courts ad- 
 hering to the former, and the spiritual adopting the latter as 
 their rule of proceeding ; this widened the breach between 
 them, and made a coalition afterwards impracticable, which 
 probably would else have been effected at the general re- 
 formation of the church. 
 
 In briefly recounting the various species of ecclesiastical 
 courts, or, as they are often styled, courts christian (curies 
 christianitatis), we shall begin with the lowest, and so 
 ascend gradually to the supreme court of appeal (m). 
 
 1 . The Archdeacon s Court is the most inferior court in 
 the whole ecclesiastical polity ] It is held before a judge 
 appointed by the archdeacon himself, and called his official. 
 Its jurisdiction comprises the granting of probates and ad- 
 ministrations, and ecclesiastical causes in general, arising 
 within the archdeaconry ; and in ordinary cases the party 
 may commence his suit either in this court or the bishop's, 
 though in some archdeaconries the suit must be commenced 
 in the former to the exclusion of the latter (»). From the 
 archdeacon's court an appeal lies, by 24 Hen. VIII. c. 12, 
 to that of the bishop. 
 
 2. [The Consistory Court of every diocesan bishop is 
 held in their several cathedrals, for the trial of all ecclesias- 
 
 (i) " Ne ephcopi sxcutarium pluci- Instituteof the Common Law; Ough- 
 
 iorum officium suscipiant." — Spelm. ton's Ordo Judiciorum ; and Report 
 
 Cod. 301. of the Commissioners on Ecclesiasti- 
 
 (A) Spelm. Cod. 310. cal Courts, Feb. 1832. 
 
 (/) See vol. i. p. 12. (n) Woodward v. Fox, 2 Vent. 
 
 (m) For farther particulars, see 267 ; Godolph. 61. 
 Burn's Ecclesiastical Law ; Wood's
 
 CHAP. V. — OF COURTS ECCLESIASTICAL, MILITARY, &C. 423 
 
 [tical causes arising within their respective dioceses (o),] and 
 also for granting probates and administrations (/>). [The 
 bishop's chancellor, or his commissary, is the judge ; and 
 from his sentence an appeal lies, by virtue of the same 
 statute of Henry the eighth, to the archbishop of each 
 province respectively. 
 
 3. The Court of Arches is a court of appeal belonging 
 to the Archbishop of Canterbury, whereof the judge (who 
 sits as deputy to the archbishop) is called the dean of the 
 arches, because he antiently held his court in the church of 
 St. Mary -le-bow (Snncta Maria de arcubus), though all the 
 principal spiritual courts are now holden at Doctors' Com- 
 mons. His proper jurisdiction is only over the thirteen 
 peculiar parishes belonging to the archbishop, in London ; 
 but the office of dean of the arches having been for a long 
 time united with that of the archbishop's principal official, 
 he now, in right of the last-mentioned office (as doth also 
 the official principal of the Archbishop of York), receives 
 and determines appeals from the sentences of all inferior 
 ecclesiastical courts within the province.] Many suits also 
 are brought before him as original judge, the cognizance of 
 which properly belongs to inferior jurisdictions within the 
 province, but in respect of which the inferior judge has 
 waived his jurisdiction under a certain form of proceeding 
 known in the canon law by the denomination of letters of 
 request (q). And from the Court of Arches an appeal 
 formerly lay to the pope ; and afterwards, by statute 25 
 Hen. VIII. c. 19, to the Court of Delegates; but it now 
 lies by 2 & 3 Will. IV. c. 92, to the Privy Council (r). 
 
 4. [The Court of Peculiars is a branch of and annexed 
 to the Court of Arches. It has a jurisdiction over all those 
 
 (c) Vide 6 & 7 Will. 4, c. 77 ; 7 & and the effect thereof with respect to 
 
 8 Vict. c. 68 ; 10 & 11 Vict. c. 98 ; the local limits of the bishop's juris- 
 
 11 & 12 Vict. c. 67 ; 13 & 14 Vict. diction. 
 
 c. 47; and 14 & 15 Vict. c. 29 ; Povv- ( />) Vide sup. vol. ii. pp. 193, 196. 
 ell v. Hibbert, 15 Q. B. 139, as to the (./) 2 Chit. Gen. Prac. 496 ; Bur- 
 new arrangement of dioceses made in goyne r. Free, 2 Add. 406. 
 pursuance of the recommendations (»■) Vide post, p. 424. 
 of the Ecclesiastical Commissioners.
 
 424 book v. — or civil injuries. 
 
 [parishes dispersed through the province of Canterbury in 
 the midst of other dioceses, which are exempt from the 
 ordinary's jurisdiction, and subject to the metropolitan only. 
 All ecclesiastical causes arising within these peculiar or 
 exempt jurisdictions (s) are originally cognizable by this 
 court,] from which an appeal lies to the Court of Arches (t). 
 
 5. [The Prerogative Court is established for the trial of 
 all testamentary causes, where the deceased hath left bona 
 notabilia within two different dioceses : in which case the 
 probate of wills belongs, as we have formerly seen (u), to 
 the archbishop of the province, by way of special preroga- 
 tive (v). And all causes relating to the wills, administra- 
 tions, or legacies of such persons are originally cognizable 
 herein, before a judge appointed by the archbishop, called 
 the judge of the Prerogative Court, from whom an appeal] 
 until of late lay [by stat. 25 Hen. VIII. c. 19, to the king- 
 in Chancery, instead of the pope as formerly.] It now 
 lies, by stat. 2 & 3 Will. IV. c. 92, to the Privy Council (x). 
 
 [We have here passed by such ecclesiastical courts as 
 have only what is called a voluntary, and not a contentious, 
 jurisdiction, which are merely concerned in doing or settling 
 what no one opposes, and keeping an open office for that 
 purpose (as granting dispensations, licences, faculties, and 
 other remnants of the papal extortions), but do not con- 
 cern themselves with administering redress to any injury;] 
 and shall proceed to — 
 
 6. The great court of appeal in all ecclesiastical causes, 
 viz. the Privy Council (y). This has been substituted in 
 our own times for the former appeal court, viz. the Court 
 
 (s) Benefices, "exempt or pecu- Ec. Rep. 223. 
 
 liar," are nevertheless (so far as the (») Vide sup. vol. ii. p. 194. 
 
 act relative to pluralities and resi- (v) The Archbishop of York as 
 
 dence is concerned) to be subject to well as the Archbishop of Canter- 
 
 the jurisdiction of the archbishop or bury has his Prerogative Court. 
 
 bishop within whose province or di- (x) Vide post, p. 426. 
 
 ocese they are locally situate. 1 & 2 (i/) Vide 2 & 3 Will. 4, c. 92; 3 
 
 Vict. c. 106, s. 108. & 4 Will. 4, c. 41, s. 3 ; 6 & 7 Vict 
 
 (0 Parham v. Tempter, 3 Phil. c. 38; 7 & 8 Vict. c. f>9, ss. 9, 12.
 
 CHAP. V. — OF COURTS ECCLESIASTICAL, MILITARY, &C. 425 
 
 of Delegates, [judices delegati, appointed by the king's 
 commission under his great seal, and issuing out of Chan- 
 cery, to represent his royal person,] and hear the appeal. 
 This court was held by virtue of the statute 25 Hen. VIII. 
 c. 19, by which all manner of appeals were authorized to 
 be had and prosecuted from the archbishops' courts to the 
 king in chancery (z) ; and this tribunal consisted of com- 
 missioners named by the crown to hear and determine such 
 appeals (a). Prior to that statute the appeal was to the pope. 
 Appeals to Rome, indeed, [were always looked upon by the 
 English nation, even in the times of popery, with an evil eye, 
 as being contrary to the liberty of the subject, the honour of 
 the crown, and the independence of the whole realm, and 
 were first introduced, in very turbulent times, in the six- 
 teenth year of King Stephen (a. d. 1151), at the same 
 period (Sir Henry S pel man observes) that the civil and 
 canon laws were first imported into England (ft). But in 
 a few years after, to obviate this growing practice, the 
 Constitutions made at Clarendon, in the eleventh year of 
 Henry the second, on account of the disturbances raised 
 by Archbishop Becket and other zealots of the holy see, 
 expressly declare (c), that appeals in causes ecclesiastical 
 ought to lie from the archdeacon to the diocesan; from the 
 diocesan to the archbishop of the province; and from the 
 archbishop to the king; and are not to proceed any farther 
 without special licence from the crown. But the unhappy 
 advantage that was given, in the reigns of King John and 
 
 (s) By a statute of the preceding where the crown is concerned, no 
 year, 24 Hen. 8, c. 12, the appeal appeal lies to the upper house of 
 was given in matters temporal, in convocation ; see Gorham v. Bishop 
 those cases in which the crown ivas con- of Exeter, IS Q. B. 52. 
 cerned, to the upper house of convo- (a) A special commission of review 
 cation ; in spiritual suits this statute sometimes issued to revise the sen- 
 still allowed appeal to the pope. It tences of the Court of Delegates, 
 has recently been determined by the when that court existed. Vide 2(i 
 superior courts of the common law, Hen. 8, c. 1 ; 1 Eliz. c. 1 ; 3 Bl. Com. 
 that the effect of the two statutes, 2 1 67. 
 
 Hen. 8, c. 12, and 25 Hen. 8, c. IP, (fc) Cod. Vet. Leg. 315. 
 
 taken together, is, that even in cases (c) Chap. S.
 
 426 BOOK V. — OF CIVIL INJURIES. 
 
 [his son Henry the third, to the encroaching power of the 
 pope, who was ever vigilant to improve all opportunities 
 of extending his jurisdiction hither, at length riveted the 
 custom of appealing to Rome, in causes ecclesiastical, so 
 strongly, that it never could be thoroughly broken off till 
 the grand rupture happened in the reign of Henry the 
 eighth, when all the jurisdiction usurped by the pope in 
 matters ecclesiastical was restored to the crown, to which 
 it originally belonged ; so that the statute of the twenty- 
 fifth year of Henry the eighth was but declaratory of the 
 antient law of the realm (/).] By 2 & 3 Will. IV. c. 92, it is 
 now provided, that every person who might formerly have 
 appealed under 25 Hen. VIII. c. 19, may now appeal to 
 her Majesty in council ; and by 3 & 4 Will. IV. c. 41, 
 s. 3, and 6 & 7 Vict. c. 38, s. 11, that her Majesty shall by 
 order in council direct that all appeals from ecclesiastical 
 or other courts shall be referred to the judicial committee 
 of the privy council (g). 
 
 [These are now the principal courts of ecclesiastical 
 jurisdiction, none of which,] except perhaps the last, [are 
 allowed to be courts of record, no more than was another 
 much more formidable jurisdiction, but now deservedly 
 annihilated, viz. the court of the king's high commission in 
 causes ecclesiastical. This court was erected and united 
 to the regal power (A) by virtue of the statute 1 Eliz. c. 1, 
 instead of a larger jurisdiction which had before been ex- 
 ercised under the pope's authority. It was intended to vin- 
 dicate the dignity and peace of the church, by reforming, 
 ordering and correcting the ecclesiastical state and persons, 
 and all manner of errors, heresies, schisms, abuses, offences, 
 contempts, and enormities. Under the shelter of which 
 very general words, means were found in that and the two 
 succeeding reigns, to vest in the high commissions extra- 
 ordinary and almost despotic powers of fining and impri- 
 
 (/) 4 Inst. 341. the Judicial Committee of the Privy 
 
 (g) As to the mode of reference, Council, vide sup. vol. ii. p. 450. 
 see 7 & 8 Vict. c. 09, s. 9. As to (h) 4 Inst. .'524.
 
 CHAP. V. OF COURTS ECCLESIASTICAL, MILITARY, &C. 427 
 
 [soiling, which they exerted much beyond the degree of the 
 offence itself, and frequently over offences by no means 
 of spiritual cognizance. For these reasons this court was 
 justly abolished by statute 16 Car. I. c. 1 1. And the weak 
 and illegal attempt that \v;is made to revive it during the 
 reign of King James the second, served only to hasten that 
 infatuated prince's ruin. 
 
 II. Next, as to the courts military (£). The only court 
 of this kind known to, and established by, the permanent 
 laws of the land, is the court of chivalry, formerly held 
 before the lord high constable and marshal of England 
 jointly; but since the attainder of Stafford, Duke of Buck- 
 ingham, under Henry the eighth, and the consequent ex- 
 tinguishment of the office of lord high constable, it hath 
 usually, with respect to civil matters, been held before the 
 earl marshal only (A). This court, by statute 13 Rich. II. 
 c. 2, hath cognizance of contracts and other matters touch- 
 ing deeds of arms and war, as well out of the realm as 
 within it. And from its sentence an appeal lies imme- 
 diately to the king in person (/). This court was in great 
 reputation in the. times of pure chivalry, and afterwards, 
 during our connexions with the continent, by the territories 
 which our princes held in France :] but has long since 
 fallen [entirely out of use, on account of the feebleness 
 of its jurisdiction, and want of power to enforce its judg- 
 ments ; as it can neither fine nor imprison, not being a court 
 of record (m).] 
 
 III. [The maritime courts («)> or such as have power and 
 
 (0 Vide post, bk. v. c. 13, tr. 2; Show. Pari. Cns. 60. 
 
 bk. vi c. 14, tr. 1, s. 4; and see (/) 4 Inst. 125. 
 
 Com. Dig. Courts (E) ; Bac. Ab. (hi) Chambers r. Jennings, 7 Mod. 
 
 Courts, Court of Constable and Earl 127. 
 
 Marshal. As to the office of Earl (u) Vide post, bk. v. c. 13, tr. 3 ; 
 
 Marshal of England, see the Posthu- and see Com. Dig. Admiralty Courts ; 
 
 inous Discourse of Mr. Camden on Bac. Ab. High Court of Admiralty ; 
 
 that subject. Re Blanshard, 2 1). & C. 244. 
 
 (/;) Parker's case, 1 Lev. 230;
 
 428 
 
 BOOK V.— OF CIVIL INJURIES. 
 
 [ jurisdiction to determine all maritime injuries, arising upon 
 the seas or in parts out of the reach of the common law, 
 are only the Court of Admiralty, and its court of appeal ;] 
 though in her Majesty's possessions beyond the seas there 
 are also established courts, with jurisdiction over maritime 
 causes, including those relating to prize, under the deno- 
 mination of Courts of Vice- Admiralty (o). The Court of 
 Admiralty is held before the judge of the admiralty (jj) ; 
 who has besides a special commission from the crown to 
 adjudicate on prize of war {q), and power also to decide 
 on questions of hooty of war (i. e. prize on shore), when 
 specially referred to him by her Majesty (»•). [According 
 . to Sir Henry Spelman (s) and Lambard (£),] this court 
 was first of all erected by King Edward the third. Its 
 proceedings are according to the method of the civil law, 
 like those of the ecclesiastical courts ; upon which account 
 it is usually held at the same place with the superior eccle- 
 siastical courts, at Doctors Commons, in London. It is no 
 court of record, any more than the spiritual courts (?«)•] 
 
 From the sentence of the admiralty judge, the appeal 
 used to lie in general to the Court of Delegates (x) ; and 
 
 (<>) By 2 Will. 4, c. 51, it is enact- 
 ed, that in all cases where a ship 
 comes within the local limits of a 
 court of vice-admiralty, suits may be 
 commenced therein for " seamen's 
 " wages, pilotage, bottomry, damage 
 " to ships by collision, breach of re- 
 " gulations of his majesty's service 
 " at sea, salvage, and droits of admi- 
 " ralty," notwithstanding the cause 
 of action may have arisen out of the 
 local limits of such court. 
 
 (p) This judge sat properly as the 
 deputy of the lord high admiral of 
 England, while an officer of that de- 
 scription was in use. 
 
 (q) 2 Chit. Gen. Pr. 538 a; 1 
 Doug. 594 ; Lindo v. Rodney, 2 
 Doug. 613, (n.); Mitchell «;. Rodney, 
 (in error), 2 Bro. P. C. 423 ; Faith v. 
 
 Pearson, 6 Taunt. 439. 
 
 ( r) 3 & 4 Vict. c. 65, s. 22. 
 
 is) Gloss. 13. 
 
 (t) Archeion, 41. 
 
 (») By 3 & 4 Vict. c. 65, various 
 provisions are made to improve the 
 practice and extend the jurisdiction 
 of this court ; and by c. 66, the re- 
 spective salaries of the officers therein 
 are regulated. See 9 & 10 Vict. c. 
 99, as to its jurisdiction in matters of 
 wreck and salvage; and 13 & 14 
 Vict. cc. 26, 27, as to its jurisdiction 
 in questions arising on the capture 
 of pirates. As to the power of the 
 Court of Chancery to restrain its 
 proceedings, see Glasscot v. Lang, 8 
 Sim. 388. 
 
 (i) 3 Bl. Com. 69. See 2 cSr 3 
 Will. 4, c. 92, s. 1.
 
 CHAP. V. — OF COURTS ECCLESIASTICAL, MILITARY, &C. 429 
 
 from the vice-admiralty courts might be brought either be- 
 fore the Court of Admiralty in England, or the sovereign 
 in council ( y). [But in case of prize vessels taken in time 
 of war in any part of the world, and condemned in any 
 courts of admiralty and vice-admiralty as lawful prize, the 
 appeal lay to certain commissioners, consisting chiefly of 
 the privy council, and called lords commissioners in prize 
 cases. And this by virtue of clivers treaties with foreign 
 nations, by which particular courts are established in all the 
 maritime countries of Europe, for the decision of this ques- 
 tion, whether lawful prize or not ; for this being a question 
 between subjects of different states, it belongs entirely to 
 the law of nations, and not to the municipal laws of either 
 country to determine it.] By 2 & 3 Will. IV. c. 92, how- 
 ever, the appellate jurisdiction of the delegates was trans- 
 ferred to his majesty in council. And by 3 & 4 Will. IV. 
 c. 41, s. 2, all appeals in prize suits, and all other proceed- 
 ings in the courts of admiralty or vice-admiralty courts, or 
 any other court abroad, which might then be made to the 
 High Court of Admiralty in England, or to the lords com- 
 missioners in prize cases, was directed in future to be also 
 made to his majesty in council, and not to the High Court 
 of Admiralty in England, or such commissioners as afore- 
 said. And by the latter statute, and by 6 & 7 Vict. c. 38, 
 the privy council shall refer all such appeals to the judicial 
 committee. But it is provided, that nothing in the 3 & 4 
 Will. IV. c. 41, contained, shall impeach any treaty or 
 engagement with a foreign power by which it shall be 
 stipulated that the appeal in cases of prize shall belong to 
 another jurisdiction, but that the judgments of any persons 
 appointed by such treaty shall be of the same force as if 
 the act had not been passed. 
 
 (y) 3 Bl. Com. 69.
 
 430 HOOK V. OI<" CIVIL INJURIES. 
 
 CHAPTER VI. 
 
 OF COURTS OF A SPECIAL JURISDICTION. 
 
 [In the two preceding chapters we have considered the 
 several courts whose jurisdiction is general; and which are 
 so contrived that some or other of them may administer 
 redress to every possible injury that can arise in the king- 
 dom at large. There yet remain certain others, whose 
 jurisdiction is special, confined to particular spots,] or dis- 
 tricts of the realm. These are, 
 
 I. [The court of piedpoudre («), curia pedis pulverizati : 
 so called from the dusty feet of the suitors ; or, according 
 to Sir E. Coke (b), because justice is there done as speedily 
 as dust can Fall from the foot. Upon the same principle 
 that justice among the Jews was administered within the 
 gate of the city (c), that the proceedings might be the more 
 speedy as well as public. But the etymology given us by 
 a learned modern writer (d) is much more ingenious and 
 satisfactory ; it being derived, according to him, from pied 
 puldreauu, (a pedlar, in old French,) and therefore signify- 
 ing the court of such petty chapmen as resort to fairs or 
 markets (e). It is a court of record (/), incident to every 
 fair and market,] though fallen into disuse, and [now in 
 a manner forgotten ;] of which [the steward of him, who 
 owns or has the toll of the market, is the judge : and its 
 
 (a) See Bac. Abr. Court of Pie- Stat. 337. 
 
 poudre ; Com. Dig. Market, G. 1, 2. (e) As to fairs and markets, vide 
 
 (b) 4 Inst. 272. sup. vol. i. p. 638; vol. ii. p. 505. 
 (r) Ruth, c. 4. (/') As to courts of record, vide 
 (d) Barrington's Observat. on the sup. p. 364.
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 431 
 
 [jurisdiction extends to administer justice for all commercial 
 injuries done in that very fair or market, and not in any 
 preceding- one. So that the injury must be done, com- 
 plained of, heard and determined, within the compass of 
 one and the same day, unless the fair continues longer. 
 The court hath cognizance of all matters of contract that 
 can possibly arise within the precinct of that fair or market; 
 and the plaintiff must make oath that the cause of an action 
 arose there (//). From this court a writ of error lies, in the 
 nature of an appeal, to the courts at Westminster (i). The 
 reason of its original institution seems to have been, to do 
 justice expeditiously among the variety of persons that re- 
 sort from distant places to a fair or market : since it is pro- 
 bable that no other inferior court might be able to serve its 
 process, or execute its judgments on both, or perhaps either 
 of the parties; and therefore, unless this court had been 
 erected, the complainant must necessarily have resorted, 
 even in the first instance, to some superior judicature. 
 
 II. The forest courts (A),] which, though fallen into ab- 
 solute desuetude, may yet, as institutions of some curiosity, 
 deserve notice. These were [instituted for the government 
 of the king's forests in different parts of the kingdom, and 
 for the punishment of all injuries done to the king's deer or 
 venison, to the vert or greenswerd (Z), and to the covert in 
 which such deer are lodged.] They consist of [the courts 
 of attachments, of regard, of siccinmote, and of justice seat. 
 The court of attachments, ivoodmote, or forty days' court, is 
 to be held before the verderors of the forest once in every 
 forty days (m) ; and is instituted to inquire into all offenders 
 against vert and venison (>?) : who may be attached by their 
 
 (h) Stat. 17 Edw. 4, c. 2. Attorney-General v. Hallett, 16 Mee. 
 
 (<) Howel v. Johns, Cro. Eliz. 773. & W. 569. 
 
 (A) As to forests, vide sup. vol. i. (m) Cart, de Forest. 9 Hen. 3, c. 8; 
 
 p. 610 ; and see Com. Dig. Chase, see R. v. Conyers and others, 8Q. B. 
 
 R. 1, 2; Bac. Ah. Courts, Courts of 981. 
 the Forest. (n) 4 Inst. 289. 
 
 (/) As to the vert of a forest, see
 
 432 BOOK V.— OF CIVIL INJURIES. 
 
 [bodies, if taken with the mainour, (or mainceuvre, a manu,) 
 that is, in the very act of killing venison or stealing wood, 
 or preparing so to do, or by fresh and immediate pursuit 
 after the act is done (o) ; else they must be attached by 
 their goods. And in this forty days' court the foresters or 
 keepers are to bring in their attachments, or presentments 
 de viridi et venatione ; and the verderors are to receive the 
 same, and to enrol them, and to certify them under their 
 seals to the court of justice-seat or sweinmote (p); for this 
 court can only inquire of, but not convict offenders. 2. 
 The court of regard, or survey of dogs, is to be holden 
 every third year for the Jawing or expeditation of mastiffs, 
 which is done by cutting off the claws and ball (or pelote) 
 of the forefeet, to prevent them from running after deer (q). 
 No other dogs but mastiffs are to be thus lawed or expedi- 
 tated, for none other were permitted to be kept within the 
 precincts of the forest ; it being supposed that the keeping 
 of these, and these only, was necessary for the defence of 
 a man's house (r). 3. The court of sweinmote is to be 
 holden before the verderors, as judges, by the steward of 
 the sweinmote thrice in every year (s), the sweins or free- 
 holders within the forest composing the jury. The prin- 
 cipal jurisdiction of this court is, first, to inquire into the 
 oppressions and grievances committed by the officers of 
 the forest ; " de super-oneratione f ores tar iorum, et aliornm 
 ministrorum forestce ; et de eorum oppressionibus popido 
 regis illatis:" and, secondly, to receive and try presentments 
 certified from the court of attachments against offences in 
 vert and venison (t). And this court may not only inquire, 
 but convict also, which conviction shall be certified to the 
 court of justice-seat under the seals of the jury; for this 
 court cannot proceed to judgment (u). But the principal 
 court is, 4. The court of justice-seat, which is held before 
 
 (n) Lord Lovelace's case, Carth. (r) 4 Inst. 308. 
 
 79. (s) Cart, de Forest, c. 8. 
 
 (/>) Cart, de Forest, c. lti. (t) Stat, 34 Edw. 1, c. 1. 
 
 ((/) Ibid. c. 6. (u) 4 Inst. 289.
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 433 
 
 [the chief justice in eyre, or chief itinerant judge, capitalis 
 justitiarius in itlnere, or his deputy ; to hear and determine 
 all trespasses within the forest, and all claims of franchises, 
 liberties, and privileges, and all pleas and causes whatso- 
 ever therein arising (#). It may also proceed to try pre- 
 sentments in the inferior courts of the forests, and to give 
 judgment upon conviction of the sweinmote. And the 
 chief justice may therefore, after presentment made or in- 
 dictment found, but not before ( y), issue his warrant to the 
 officers of the forest to apprehend the offenders. It may 
 be held every third year ; and forty days' notice ought to 
 be given of its sitting. This court may fine and imprison 
 for offences within the forest (z), it being a court of record ; 
 and therefore a writ of error lies from thence to the Court 
 of Queen's Bench, to rectify and redress any mal-adminis- 
 trations of justice (a) ; or the chief justice in eyre may 
 adjourn any matter of law into the Court of Queen's 
 Bench (b). These justices in eyre were instituted by King 
 Henry the second, a. d. 1184(c); and their courts were 
 formerly very regularly held ; but the last court of justice- 
 seat of any note was that holden in the reign of Charles 
 the first, before the Earl of Holland; the rigorous proceed- 
 ings at which are reported by Sir William Jones. After 
 the Restoration another was held pro forma only, before 
 the Earl of Oxford (d); but since the era of the Revolution 
 in 1688, the forest laws have fallen into total disuse (e). 
 
 (x) 4 Inst. 291. And his rights and duties in this be- 
 
 (y) Stat. 1 Edw. 3, c. 8 ; 7 Rich. half, and the constitution and nature 
 
 2, c. 4. of the forest courts, came under dis- 
 
 (s) 4 Inst. 313. cussion as late as 1846, in reference 
 
 (a) Ibid. 297. to a licence granted, by the then 
 
 (b) Ibid. 295. chief justice and warden, to take 
 
 (c) Hoveden. game in the royal forest of Waltham. 
 
 (d) North's Life of Lord Guild- See R. v. Comyns, 8 Q. B. 981. 
 ford, 45. That portion of Waltham Forest 
 
 (e) One part of the functions of which was known as Hainault Forest 
 the chief "justice in eyre of the was disafforested by 14 & 15 Vict. c. 
 forest" is to grant licences to hunt 43. As to the New Forest, see 14 
 and shoot over the lands of the crown. & 15 Vict. c. 76. 
 
 VOL. III. F F
 
 434 BOOK V. — OF CIVIL INJURIES. 
 
 III. [A third species of restricted courts is that of com- 
 missioners of sewers (f). This is a temporary tribunal, erected 
 by virtue of a commission under the great seal, which for- 
 merly used to be granted pro re nata at the pleasure of 
 the crown (g), but now at the discretion and nomination 
 of the lord chancellor, lord treasurer, and chief justices, 
 pursuant to the statute of sewers, 23 Hen. VIII. c. 5(h). 
 Their jurisdiction is to overlook the repairs of] the banks 
 and walls of the sea coast and navigable rivers ; or with 
 consent of a certain proportion of the owners and occu- 
 piers to make new ones ; and to cleanse such rivers, and 
 the streams communicating therewith (£) ; [and is confined 
 to such county or particular district as the commission 
 shall expressly name. The commissioners are a court of 
 record, and may fine and imprison for contempts (J); and 
 in the execution of their duty may proceed by jury, or 
 upon their own view, and may take order for the removal 
 of any annoyances, or the safeguard and conservation of 
 the sewers within their commission, either according to the 
 laws and customs of Romney-marsh (k), or otherwise at 
 their own discretion. They may also assess such rates, or 
 scots, upon the owners of lands within their district as 
 they shall judge necessary (I) : and, if any person refuses 
 to pay them, the commissioners may levy the same by dis- 
 
 (f) See, as to the Metropolitan farther as to the extent of their 
 Commissioners of Sewers, 11 & 12 power, sects. 19, 21. 
 
 Vict. c. 112; 12 & 13 Vict. c. 93; (J) Inhabitants of Oldburyu. Staf- 
 
 14 & 15 Vict. c. 75 ; 15 & 16 Vict. ford, 1 Sid. 145. 
 
 c. 64. (/c) Romney-marsh, in the county 
 
 (g) F. N. B. 113. of Kent, a tract containing 24,000 
 (h) This act was made perpetual acres, is governed by certain antient 
 
 by 3 & 4 Edw. 6, c. 8, and amended and equitable laws of sewers, com- 
 
 by 13 Eliz. c. 9; 3 & 4 Will. 4, c. 22; posed by Henry de Bathe, a venerable 
 
 4 & 5 Vict. c. 45, and 12 & 13 Vict. judge in the reign of King Henry 
 
 c. 50. As to the law of sewers gene- the third ; from which laws all com- 
 
 rally, see Callis's Pleading on the missioners of sewers in England may 
 
 Statute of Sewers. receive light and direction. 4 Inst. 
 
 (0 By 3 & 4 Will. 4, c. 22, s. 10, 276. 
 the nature of the banks, streams, &c. (/) As to rates, see new provisions 
 
 falling within the jurisdiction of the 3 & 4 Will. 4, c. 22, s. 14, &c. ; 12 
 
 commissioners is denned. And see & 13 Vict. c. 50, ss. 2, 7.
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 435 
 
 [tress of his goods and chattels; or they may, by statute 23 
 Hen. VIII. c. 5, sell his freehold lands (and by the 7 Ann. 
 c. 10, his copyhold also) in order to pay such scots or as- 
 sessments.] By 4 & 5 Vict. c. 45, they are also empowered, 
 for the purpose of defraying such expenses incident to the 
 commission as in the act particularized, to tax in the gross 
 in each parish (I) such lands as are within the jurisdiction, 
 but so that such lands shall contribute thereto in propor- 
 tion to the benefit received as compared with the lands of 
 the other parishes — which tax shall be denominated the 
 General Sewers Tax, and be recoverable by distress and 
 sale (m). [But their conduct is under the control of the 
 Court of Queen's Bench, which will prevent or punish any 
 illegal or tyrannical proceedings (/*)• And yet in the reign 
 of King James the first (8th Nov. 1616), the privy council 
 took upon them to order, that no action or complaint 
 should be prosecuted against the commissioners, unless 
 before that board ; and committed several to prison who 
 had brought such actions at common law, till they should 
 release the same : and one of the reasons for dischargina: 
 Sir Edward Coke from his office of lord chief justice was 
 for countenancing those legal proceedings (o). The pretence 
 for which arbitrary measure was no other than the tyrant's 
 plea (p) of the necessity of unlimited powers in works of 
 evident utility to the public, " the supreme reason above all 
 " reasons, which is the salvation of the king's lands and 
 " people." But now it "is clearly held, that this (as well as 
 all other inferior jurisdictions) is subject to the discretionary 
 coercion of her majesty's Court of Queen's Bench (rj). 
 
 IV. The court of policies of assurance (r), when subsist- 
 ing, is erected in pursuance of the statute 43 Eliz. c. 12, 
 
 (/) Vide Emerson v. Saltmarshe, (o) Moor, 825, 826. 
 
 7 Ad. & El. 266. (p) Milt. Parad. Lost, iv. 393. 
 
 (m) See Report on Local Tax- (q) Smith's case, 1 Ventr. 66 ; The 
 
 ation, p. 11 ; and App. A. 379. Case of Cardiff Bridge, Salk. 146. 
 
 (n) Hetley v. Sir J. Boyer, Cro. (r) As to policies of insurance, 
 
 Jac. 336. vide sup. vol. ii. p. 119. 
 
 F F. 2
 
 436 BOOK V. OF CIVIL INJURIES. 
 
 [which recites the immemorial usage of policies of assur- 
 ance, " by means whereof it cometh to pass, upon the loss 
 " or perishing of any ship, there followeth not the undoing 
 " of any man, but the loss lighteth rather easily upon many, 
 " than heavy upon few, and rather upon them that adven- 
 " ture not, than upon those that do adventure : whereby 
 " all merchants, especially those of the younger sort, are 
 " allured to venture more willingly and more freely : and 
 " that heretofore such assurers had used to stand so justly 
 " and precisely upon their credits, as few or no controver- 
 " sies had arisen thereupon ; and if any had grown, the 
 " same had from time to time been ended and ordered by 
 " certain grave and discreet merchants appointed by the 
 " lord mayor of the city of London ; as men by reason of 
 " their experience fittest to understand and speedily decide 
 " those causes :" but that of late years divers persons had 
 withdrawn themselves from that course of arbitration, and 
 had driven the assured to bring separate actions at law 
 against each assurer : it therefore enables the lord chan- 
 cellor yearly to grant a standing commission to the judge 
 of the admiralty, the recorder of London, two doctors of 
 the civil law, two common lawyers, and eight merchants ; 
 any three of which, one being a civilian or a barrister, are 
 thereby, and by the statute 13 & 14 Car. II. c. 23, em- 
 powered to determine in a summary way all causes con- 
 cerning policies of assurance in London, with an appeal 
 (by way of bill) to the Court of Chancery. But the juris- 
 diction being somewhat defective, as extending only to 
 London, and to no other assurances but those on merchan- 
 dize (e), and to suits brought by the assured only, and not 
 by the insurers (/),] such commissions have been long 
 wholly disused ; and [insurance causes are "now usually 
 determined by the verdict of a jury of merchants, and the 
 opinion of the judges in case of any legal doubts : whereby 
 the decision is more speedy, satisfactory and final.] 
 
 (e) Styl. 166. (/) Delbye v. Proudfoot, 1 Show. 397.
 
 CHAP. VI. OF COURTS OF A SPECIAL JURISDICTION. 437 
 
 V. [The court of the duchy chamber of Lancaster is 
 another special jurisdiction, held before the chancellor of 
 the duchy, or his deputy, concerning all matter of equity 
 relating to lands holden of the king in right of the duchy 
 of Lancaster {(j) : which is a thing very distinct from the 
 county palatine, (which hath also its separate chancery, for 
 sealing of writs and the like (A),) and comprises much ter- 
 ritory which lies at a vast distance from it; as particularly 
 a very large district surrounded by the city of Westminster. 
 The proceedings in this court are the same as on the equity 
 side in the court of chancery (i) ; so that it seems not to be 
 a court of record : and, indeed, it has been holden that the 
 court of chancery has a concurrent jurisdiction with the 
 duchy court, and may take cognizance of the same causes (j). 
 
 VI. Another species of private courts, which are of a 
 limited local jurisdiction, and have at the same time an 
 exclusive cognizance of pleas, in matters both of law and 
 equity (k), are those which appertain to the counties pala- 
 tine of Lancaster and Durham (/),] viz., the palatine Courts 
 of Common Pleas (m) and of Chancery (»), which are courts 
 
 (g) Owen v. Holt, Hob. 77 ; Fisher 
 v. Patten, 2 Ley. 24. The duchy 
 court of Lancaster has a jurisdiction 
 like the Exchequer, as a court of re- 
 venue, and consisting of both a court 
 of law and a court of equity. See 
 Bl. Com. vol. iii. p. 429. In certain 
 mining districts belonging to the 
 duchy there are also courts called 
 the Barmote Courts, for regulation 
 of the mines, and for deciding ques- 
 tions of title and other matters re- 
 lating thereto. See as to these courts, 
 14 & 15 Vict. c. 94. 
 
 (/i) Fisher v. Patten, 1 Vent. 157. 
 See 13 & 14 Vict. c. 43. 
 
 (0 4 Inst. 206. 
 
 (j) 1 Chan. Rep. 55 ; Toth. 11-3; 
 Hard. 171. 
 
 (k) 4Inst.213,218; Finch, R. 152. 
 
 (Z ) Blackstone speaks also of the 
 
 courts of the counties palatine of 
 Chester, and of the royal franchise 
 of Ely. But these courts are now 
 abolished, see vol. i. pp. 126, 128. 
 
 (m) As to the Courts of Common 
 Pleas of the counties palatine of Lan- 
 caster and Durham respectively, see 
 3 & 4 Will. 4, c. 62, s. 21; 4 & 5 
 Will. 4, c. 62; 2 & 3 Vict. c. 16 ; 6 
 & 7 Vict. c. 73, s. 3; and 15 & 16 
 Vict. c. 76 ; by which last act, sect. 
 229 etseq., the proceedings in these 
 courts are assimilated for the most 
 part to the proceedings of the supe- 
 rior courts at Westminster. See also 
 as to these courts, Potter r. Moss, 
 5 Tyrw. 513 ; Byrne v. Fitzhugh, 8 
 Dowl. P. C. 278. 
 
 (n) As to the Court of Chancery of 
 the county palatine of Lancaster, see 
 13 & 14 Vict. c. 43.
 
 438 BOOK V. — OF CIVIL INJURIES. 
 
 of record. As to these counties, indeed, we may farther re- 
 mark that they have not only these their proper courts, but 
 were formerly exempt in some respects from the jurisdiction 
 of the superior courts at Westminster. For, as originally all 
 jura regalia were granted to the lords of these counties pala- 
 tine, they had of course the sole administration of justice by 
 their own judges appointed by themselves, and not by the 
 crown. It would therefore be incongruous for the king to 
 send his writ to direct the judge of another's court in what 
 manner to administer justice between the suitors. And 
 even after these franchises were re-united to the crown, 
 yet still the maxim continued to prevail, that the king's 
 writs do not run into a county palatine ; and therefore all 
 process issuing out of the superior courts of common law 
 at Westminster, and intended to be executed in one of 
 these counties, used to be directed in the first instance, to 
 the chancellor thereof, who thereupon issued his mandate 
 to the sheriff. And the judges of assise who sit therein, 
 still [sit by virtue of a special commission] from the crown, 
 as owner of the franchise, [and under the seal thereof, and 
 not by the usual commission under the great seal.] But in 
 other respects the former practice is altered, for now, by 15 
 & 16 Vict. c. 76, all writs issuing out of the superior courts 
 of the common law at Westminster, to be executed in the 
 counties palatine, shall be directed and delivered to the 
 sheriff, and executed and returned by him ; and all records 
 of the superior courts shall be brought to trial, and entered 
 and disposed of in the counties palatine in the same manner 
 as in other counties (o). [Hither also may be referred the 
 courts of the cinque ports (p), or five most important havens, 
 as they formerly were esteemed, in the kingdom; viz. Dover, 
 Sandwich, Romney, Hastings, and Hythe ; to which Win- 
 chelsey and Rye have been since added : which have also 
 similar franchises in many respects (q) with the counties 
 
 (o) Sects. 122, 103. ( ? ) Hall v. Norwood, 1 Sid. 166. 
 
 (p) Vide sup. vol. ii. p. 491, n. (t).
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 439 
 
 [palatine, and particularly an exclusive jurisdiction, (before 
 the mayor and jurats of the ports,) in which exclusive juris- 
 diction, the queen's ordinary writ does not run(r). A writ of 
 error lies from the mayor and jurats of each port to the lord 
 warden of the cinque jwrts, in his court of Shepivay ; and 
 from the court of Shepway to the Queen's Bench (s).] So 
 likewise proceedings in error may be taken from the pala- 
 tine courts to the same supreme court of judicature if), [as 
 an ensign of superiority reserved to the crown at the original 
 creation of the franchises.] 
 
 VII. [The stannary courts in Devonshire and Corn- 
 wall (u), for the administration of justice among the tinners 
 therein, are also courts of record,] of the same limited and 
 exclusive nature as those of the counties palatine. [They 
 are held before the lord-warden and his substitutes, in virtue 
 of a privilege granted to the workers in the tin mines there, 
 to sue and be sued only in their own courts, that they may 
 not be drawn from their business, which is highly profitable 
 to the public, by attending their lawsuits in other courts (v). 
 The privileges of the tinners are confirmed by a charter 
 of the thirty-third year of Edward the first, and fully ex- 
 pounded by a private statute (w), 50 Edw. III., which has 
 since been explained by a public act, 16 Car. I. c. 15. 
 What relates to our present purpose is only this : that all 
 tinners and labourers in and about the stannaries shall, 
 
 (r) See the statutes as to the juris- (») See 6 & 7 Will. 4, c. 106; 2 
 
 diction of the cinque ports, cited sup. & 3 Vict. c. 58, for improving the 
 
 vol. i. p. 491, n. (t). practice of the courts of the stanna- 
 
 (s) 4 Inst. 244; Jenk. 71; Dy- ries of Cornwall ; Harvey v. Gilbard, 
 
 versyte des Courts, t. Bank le Roy; 1 W. W. & H. 552 ; Rowe v. Bren- 
 
 Ting v. Meriwether, 1 Sid. 356. ton, 8 B. & C. 737 ; Carew, Hist, of 
 
 (t) Bro. Ab. Error, 74, 101; Davis, Cornwall; Sir G. Harrison's Report, 
 
 62; 4 Inst. 38, 214, 218. The pro- 1835. 
 
 ceeding was formerly by writ of error. («) 4 Inst. 232. 
 
 But see now 15 & 16 Vict. c. 76, s. (u>) Sec this at length in 4 Inst. 
 
 133. 232.
 
 440 
 
 BOOK V. OF CIVIL INJURIES. 
 
 [during the time of their working therein bond fide, be pri- 
 vileged from suits of other courts, and be only impleaded 
 in the stannary courts in all matters] arising within the 
 stannaries (x), [excepting pleas of land, life, and member. 
 No writ of error lies from hence to any court in Westmin- 
 ster-hall, as was agreed by all the judges (y) in the fourth 
 year of James the first. But an appeal lies] from the 
 vice-warden [to the lord-warden, and thence to the privy 
 council of the Prince of Wales, as Duke of Cornwall (2), 
 when he hath had livery or investiture of the same (a) : 
 and from thence the appeal lies to the king himself in the 
 last resort (5).] 
 
 (a) If a cause of action between 
 tinner and tinner arise out of the 
 stannaries, it may be brought else- 
 where if the plaintiff will. 2 Inst. 
 231 ; Com. Dig. Courts (L. 1). And 
 even if it arise within the stanna- 
 ries, the plaintiff has the option of 
 bringing it either in the stannary 
 courts or in the county courts ; see 
 Newton v. Nancarrow, 15 Q. B. 144. 
 
 (y) 4 Inst. 231. But see as to the 
 removal of causes from the stannary 
 courts after judgment for the purpose 
 of obtaining execution, 6 & 7 Will. 
 4, c. 106, s. 11 ; 1 & 2 Vict. c. 110, 
 s. 22. 
 
 (z) Ibid. 230. 
 
 (a) Langworthy v. Scott, 3 Bulst. 
 183 ; Aike v. Hunkin, 1 Sid. 233. 
 
 (b) Doderidge's Hist, of Cornwall, 
 94. In a convocation or parliament 
 of tinners, heldatTruro, 15th August, 
 12 Car. 1, article 5, it is said, "We 
 " present and affirm, that by ouran- 
 " tient custom the spalliard working 
 " with pick and shovel, the water- 
 " man, the boll or barrow-man, the 
 " dresser, the blower, and all other 
 " tinners, labourers and workmen 
 
 " that necessarily attend getting the 
 " tin, or the dressing, blowing, or 
 " whitening it, so long as they con- 
 " tinue their working without fraud, 
 " are properly called privileged tin- 
 " ners, and are not to sue or be sued 
 " out of the stannary courts, saving 
 " in case of life, land, or limb. And 
 " we farther present and affirm, that 
 " all the said former privileged tin- 
 " ners, if they shall discontinue their 
 " working about tin and tin-works, 
 " and also all the officers and minis- 
 " ters of both courts, the affeerers, 
 " the owners of tin works in wastral 
 " or several, the adventurers in tin 
 " works, the buyers of black or white 
 " tin, and generally all others that 
 " intermeddle with tin, are called tin- 
 " ners at large, and have also the li- 
 " berty, privilege, and benefit to sue, 
 " and may be sued, in the stannary 
 " courts, for matters there determin- 
 " able, and may also sue and be sued 
 " at the common law, at the pleasure 
 "of the plaintiff." — Laws of the 
 Stannaries, p. 35. Sec 6 & 7 Will. 
 4, c. 106, as to workers in lead, cop- 
 per, &c.
 
 CHAP. VI. OF COURTS OF A SPECIAL JURISDICTION. 
 
 Ill 
 
 VIII. [The several eourts within the city of London (c), 
 and other cities, boroughs, and corporations throughout the 
 kingdom, held by prescription, charter, or act of parlia- 
 ment, are also of the same private and limited species (<:/).] 
 ( >f these it may be said in general, [that they arose originally 
 from the favour of the crown to those particular districts, 
 wherein we find them erected, upon the same principle that 
 hundred courts and the like were established, for the con- 
 venience of the inhabitants, that they might prosecute their 
 suits and receive justice at home : that, for the most part, 
 the courts at Westminster-hall have a concurrent jurisdic- 
 tion with these, or else a superintendency over them (c), 
 and are bound by the statute 19 Geo. III. c. 70,] and 1 & 
 2 Vict. c. 110, s. 22, [to give assistance to such of them as 
 are courts of record, by issuing writs of execution] on their 
 
 (c) The chief of those in London 
 are as follows : First, the Court of 
 Hustings, which is the antient county 
 court of London, hut in which no ac- 
 tions can be brought that are merely 
 personal. Secondly, the Lord Mayor's 
 Court, which has a jurisdiction in 
 personal actions generally, and also 
 in equity (as to this court, vide Reg. 
 v. Mayor of London, 1(J L. J. (Q. B.) 
 185 ; Webb v. Hun-ell, 4 C. B. 287 ; 
 Day v. Paupierre, 7 D. & L. 12). Of 
 these courts the recorder is, in effect, 
 the sole judge, and a writ of error 
 lies therefrom to certain commis- 
 sioners, usually five of the judges 
 of the Superior Courts, from whose 
 judgment a writ of error lies to the 
 House of Lords (Pulling's Laws of 
 London, 167). Thirdly, the Sheriff's 
 Court, having cognizance of all pleas 
 of personal actions to any amount, 
 and in which, where the debt or da- 
 mages claimed shall not exceed 50/., 
 a summary mode of proceeding has 
 been recently established similar 
 in general to that provided for the 
 
 new county courts. Vide 15 & 16 
 Vict. c. lxxvii. (The London (City) 
 Small Debt Extension Act, 1852), 
 et sup. p. 384. 
 
 (<7) A detailed statement as to all 
 the borough courts, county courts, 
 courts of requests, and other local 
 courts throughout the kingnom (as 
 they existed previously to the 9 & 10 
 Vict. c. 95, as to which, vide sup. 
 p. 383), showing the extent of their 
 jurisdiction, the authority under 
 which they were held, and their 
 form of process, &c, will be found 
 in the Fourth Report of the Com- 
 mon Law Commissioners, Appendix, 
 Part II. No. V. As to the law rela- 
 tive to these courts, see Com. Dig. 
 Courts (O), (P). 
 
 (e) Groenwelt i>. Burwell, Salk. 
 1 14 ; S. C. 263. As to the removal 
 of suits from the inferior courts 
 generally, to the superior courts, see 
 1 & 2 Ph. & M. c. 63 ; 21 Jac. 1, c. 
 23 ; 19 Geo. 3, c. 70 ; 7 & 8 Geo. 4, 
 c. 71 ; 1 & 2 Vict. c. 110, s. 22; 8 
 & 9 Vict. c. 127, s. 20.
 
 442 BOOK V.— OF CIVIL INJURIES. 
 
 judgments ; [and that these proceedings in these special 
 courts ought to be according to the course of the common 
 law, unless otherwise ordered by parliament; for though 
 the king may erect new courts, yet he cannot alter the 
 established course of law.] It is also to be observed, that 
 by the Municipal Act, 5 & 6 Will. IV. c. 76, the recorder 
 is to be the judge in any court of record for civil actions in 
 the boroughs to which the act extends, if such court be not 
 regulated by the provisions of any local act, or if a bar- 
 rister of five years' standing did not sit as a judge or 
 assessor therein when the Municipal Act passed ; and pro- 
 visions are also contained to regulate the jurisdiction of 
 such courts, and the qualification and summoning of jurors 
 therein {g). By 6 & 7 Will. IV. c. 105, s. 9, the recorder 
 may also appoint a deputy, and make rules for the practice 
 of such court, to be approved by the judges of the superior 
 courts (/*). By 7 Will. IV. & 1 Vict. c. 78, s. 35, the 
 crown may on the joint petition of the council of any 
 borough, and the quarter sessions of the adjoining county, 
 extend the jurisdiction of any court of record for civil ac- 
 tions within the borough, over any district adjacent to the 
 borough, and within the jurisdiction of the quarter sessions. 
 And by 2 & 3 Vict. c. 27, every court of record for civil 
 actions within any borough shall be holden for the trial of 
 issues of fact and of law, four times at least in each year, 
 and with no greater interval than four calendar months. 
 From the borough courts of record a writ of error lies in 
 general into the Court of Queen's Bench (i). 
 
 Besides the borough courts of record, which are gene- 
 rally according to the common law, there was another 
 species of courts, not of record, introduced into boroughs 
 
 (g) Sect. 118, &c. ; 6 & 7 Will. 4, have been printed, and those of all 
 
 c. 105, s. 9 ; 7 Will. 4 & 1 Vict. c. other borough courts are nearly the 
 
 78, ss. 32—36. same. 
 
 (/i) Etvide2&3 Vict. c. 27. The (i) Vide sup. p. 395, n. (i). 
 
 rules for the borough court of Wells
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 443 
 
 in comparatively modern times by act of parliament, and 
 varying from the course of the common law, [viz. the courts 
 of requests or courts of conscience, for the recovery of 
 small debts.] The ordinary constitution of these courts, 
 while they continued in use, was to give redress in cases 
 of debt to the amount of 40s. only, (though often to the 
 amount of 5/.,) by examining in a summary way, and with- 
 out jury, by the oaths of the parties themselves or other 
 witnesses, and making such order therein [as was con- 
 sonant to equity and good conscience (A).] But by the 
 introduction of the new species of county court, to which 
 we formerly had occasion to advert, and by the orders in 
 council issued thereon, these courts of request are now, as 
 we have seen, superseded (Z). 
 
 IX. [There is yet another species of private courts, which 
 must not be passed over in silence : viz. the Chancellors' 
 Courts in the two Universities of England (m). Which 
 two learned bodies enjoy the sole jurisdiction, in exclusion 
 of the king's courts, over all civil actions and suits what- 
 soever, when a scholar or privileged person is one of the 
 parties ; except in such cases where the right of free- 
 hold is concerned,] provided the defendant is resident 
 
 (k) This implies that the judgment 
 is not necessarily governed by the 
 rules of the common law. Scott v. 
 Bye, 2 Bing. 348. No writ of false 
 judgment lies therefrom. Ibid. 
 
 (/) The first court of requests that 
 was established was for London. It 
 originated in the reign of Henry the 
 eighth, by an act of the common 
 council of that city, which, however, 
 says Blackstone (3 Bl. Com. p. 82), 
 was certainly insufficient for that pur- 
 pose, and illegal, till confirmed by 3 
 Jac. 1, c. 15, afterwards explained 
 and amended by several statutes, the 
 last of which was the 5 & 6 Will. 4, 
 
 c. xciv. The courts of requests in 
 London were not affected by the 
 new County Court Act, but are now 
 abolished by 10 & 11 Vict. c. lxxi. 
 s. 75. 
 
 (m) Leasingby v. Smith, 2 Wils. 
 406 ; Cases temp. Hardw. 240; Wil- 
 liams v. Brickenden, 11 East, 543; 
 Browne v. Renouard, 12 East, 12; 
 Thornton v. Ford, 15 East, 634; Per- 
 rin v. West, 3 Ad. 8s E. 405 ; R. v. 
 Chancellor of Oxford, 1 Q. B. 952 ; 
 Turner v. Bates, 10 Q. B. 202; 1 
 Woodd. 136. These courts are ex- 
 cepted from the operation of the!) & 
 10 Vict. c. 95.
 
 444 BOOK V. OF CIVIL INJURIES. 
 
 there (n), and provided (in the case of Cambridge at least) 
 the cause of action arose within the town of Cambridge and 
 its suburbs (o). [And these, by the university charter, they 
 are at liberty to try and determine, either according to the 
 common law of the land, or according to their own local 
 customs, at their discretion ; which has generally led them 
 to carry on their process in a course much conformed to the 
 civil law (p).] 
 
 [These privileges were granted, that the students might 
 not be distracted from their studies by legal process from 
 distant courts, and other forensic avocations. And privi- 
 leges of this kind are of very high antiquity, being gene- 
 rally enjoyed by all foreign universities as well as our own, 
 in consequence, it is apprehended, of a constitution of the 
 Emperor Frederick, a.d. 1158 (q). But as to England in 
 particular, the oldest charter that has been cited (r), con- 
 taining this grant to the University of Oxford, was in the 
 twenty-eighth year of Henry the third, a.d. 1244. And 
 the same privileges were confirmed and enlarged by almost 
 every succeeding prince, down to King Henry the eighth ; 
 in the fourteenth year of whose reign the largest and most 
 extensive charter of all was granted. One similar to which 
 was afterwards granted to Cambridge in the third year of 
 Queen Elizabeth. But yet, notwithstanding these charters, 
 the privileges granted therein, of proceeding in a course 
 different from the law of the land, were of so high a nature, 
 that they were held to be invalid ; for though the king- 
 might erect new courts, yet he could not alter the course 
 of law by his letters patent. Therefore, in the reign of 
 Queen Elizabeth, an act of parliament was obtained (s), 
 confirming all the charters of the two universities, and 
 those of the fourteenth year of Henry the eighth and the 
 third year of Elizabeth, by name. Which blessed act, as 
 
 (n) Thornton v. Ford, 15 East, (p) See Bac. Ab. Universities (B). 
 
 634. (,,) Cod. 4, tit. 13. 
 
 (n) Browne v. llenouard, 12 East, (r) Vide 3 Bl. Com. 84. 
 
 12. (s) 13 Eliz. c. 29.
 
 CHAP. VI. — OF COURTS OF A SPECIAL JURISDICTION. 445 
 
 [Sir Edward Coke entitles it (t), established this high 
 privilege without any doubt or opposition (m) : or, as Sir 
 Matthew Hale (x) very fully expresses the sense of the 
 common law and the operation of the act of parliament, 
 " although King Henry the eighth, 14 anno regni sui, 
 " granted to the university a liberal charter, to proceed 
 " according to the use of the university, viz. by a course 
 " much conformed to the civil law ; yet that charter had 
 " not been sufficient to have warranted such proceedings 
 " without the help of an act of parliament. And therefore 
 " in the thirteenth year of Elizabeth an act passed, whereby 
 " that charter was in effect enacted ; and it is thereby that 
 " at this day they have a kind of civil law procedure, even 
 " in matters that are of themselves of common law cog- 
 " nizance, where either of the parties is privileged (?/)." 
 
 This privilege, so far as it relates to civil causes, is ex- 
 ercised at Oxford in the chancellor's court ; the judge of 
 which is the vice-chancellor, his deputy, or assessor. From 
 his sentence an appeal lies to delegates appointed by the 
 congregation ; from thence to other delegates of the house 
 of convocation ; and if they all three concur in the same 
 sentence, it is final, at least by the statutes of the univer- 
 sity (z), according to the rule of the civil law («). But if 
 there be any discordance or variation in any of the three 
 sentences, an appeal lies in the last resort to judges 
 delegates appointed by the crown under the great seal in 
 chancery. 
 
 We have now gone through the several species of special 
 courts, of the greatest note in the kingdom, instituted for 
 the local redress of private wrongs (6),] a subject which 
 
 (0 4 Inst. 227. (a) Cod. 7, 70, 1. 
 
 (u) Jenk. Cent. 2, pi. 88; Cent. 3, (b) Among the courts of special 
 
 pi. 33 ; Hard. 504 ; Godbolt, 201. jurisdiction was formerly that of the 
 
 (x) Hist. C. L. 33. great sessions in Wales. For the king's 
 
 (y) As to the criminal jurisdiction original writ formerly did not run into 
 
 of these courts, vide post, bk. vi. c. Wales, as it did not into the counties 
 
 14, tr. 2, s. 2. palatine of Lancaster and Durham, 
 
 (x) Tit. 21, s. 19. videsup.438. And, like them, Wales
 
 446 
 
 BOOK V 
 
 -OF CIVIL INJURIES. 
 
 may be closed by [one general observation from Sir Ed- 
 ward Coke (c) : that these particular jurisdictions, derogating 
 from the general jurisdiction of the courts of common law, 
 are ever strictly restrained, and cannot be extended farther 
 than the express letter of their privileges will most explicitly 
 warrant.] 
 
 had separate courts of its own. For 
 by stat. 34 & 35 Hen. 8, c. 26, and 
 18 Eliz. c. 8, a session was appointed 
 to be held twice a year in each county 
 of Wales, by judges appointed by the 
 crown, to be called the great session 
 of the several counties in Wales. 
 And though actions might neverthe- 
 less be brought in the English courts 
 on causes of actions arising in "Wales, 
 yet by the Welsh Judicature Act, 13 
 Geo. 3, c. 51, if the defendant in such 
 actions also resided in Wales, and 
 the plaintiff did not obtain a verdict 
 for 10/., he was in general liable to 
 be nonsuited. But the court of great 
 sessions is now abolished by 11 Geo. 
 4 & 1 Will. 4, c. 70, and the Welsh 
 judicature entirely incorporated with 
 that of England. This alteration was 
 founded on the First Report of the 
 Common Law Commissioners ap- 
 pointed in 1828. As to the record- 
 
 ing fines and recoveries levied and 
 suffered in the court of great sessions 
 in Wales, vide 5 & 6 Vict. c. 32. 
 
 Other courts of special jurisdic- 
 tion also lately existed, viz., the 
 Court of the Marshalsea, and the Pa- 
 lace Court at Westminster ; the for- 
 mer holding plea of all trespasses 
 committed within the verge of the 
 court, where one of the parties was 
 of the royal household, and of all 
 debts and contracts where both were 
 of that establishment ; and the latter 
 holding plea of all personal actions 
 arising within twelve miles of the 
 palace at Whitehall. (See 1 Bulst. 
 211 ; 10 Rep. 69; 2 Inst. 548; 1 
 Sid. 180; Salk. 439 ; 3 Bl. Com. p. 
 76.) But these courts are both now 
 abolished by 12 & 13 Vict. c. 101, 
 s. 13. 
 
 (c) 2 Inst. 548.
 
 ( 447 ) 
 
 CHAPTER VII. 
 
 OF CIVIL INJURIES COGNIZABLE IN THE COMMON 
 
 LAW COURTS, AND HEREIN OF THE REMEDY BY 
 
 ACTION GENERALLY. 
 
 We are now to proceed, in pursuance of the method laid 
 down in the third chapter (a), to the examination of civil 
 injuries — for the redress of which the vast variety of courts 
 mentioned in the preceding chapters have been established. 
 And here, first, we may remark, that in one or other of 
 these courts every possible injury that can exist in contem- 
 plation of our laws is capable of being redressed, it being 
 a settled and invariable principle in the laws of England, 
 that every wrong must have a remedy (b). 
 
 The nature of civil injuries, and the law connected with 
 them, will naturally range itself under a division having 
 reference to the courts in which they are thus redressed. 
 For they are distinguished from each other the most 
 obviously, as cognizable either in the general courts of 
 common law or equity, or in the general courts of eccle- 
 siastical, military, or maritime law, or in the courts of 
 special jurisdiction, though the same injury indeed may 
 in some instances find redress in more than one description 
 of court. But those cognizable in the courts last men- 
 tioned have necessarily been remarked upon as those tri- 
 bunals were respectively enumerated, and therefore need 
 not be here again repeated ; which will confine our pre- 
 
 (a) Vide sup. p. 3C3. " is also a legal remedy by suit or 
 
 (6) 3 Bl. Com. 23. " It is a ge- " action at law, whenever that right 
 
 " neral and indisputable rule, that " is invaded." Et vide ibid. 109. 
 
 " where there is a legal right, there
 
 448 BOOK V. OF CIVIL INJURIES. 
 
 Bent inquiry to the civil injuries cognizable in the other 
 courts. And we shall find it convenient to consider these 
 in the following order : — First, the injuries cognizable in 
 the common law courts ; secondly, those cognizable in the 
 ecclesiastical, military and maritime courts ; and, lastly, 
 those cognizable in the courts of equity ; in the examina- 
 tion of each of which, we shall also take occasion to notice 
 in general, the nature of the remedies by suit, which the 
 law has provided for them. But in this course of disquisi- 
 tion [we shall at present confine ourselves to such wrongs 
 as may be committed in the mutual intercourse between 
 subject and subject, which the crown, as the fountain of 
 justice, is officially bound to redress in the ordinary forms 
 of law; reserving such injuries or encroachments as may 
 occur between the crown and the subject to be distinctly 
 considered hereafter, as the remedy in such cases is gene- 
 rally of a peculiar and eccentrical nature.] 
 
 First, then, as to the several injuries between subject and 
 subject, cognizable in the courts of common law. 
 
 [Since all wrong may be considered as merely a privation 
 of right (c), the plain natural remedy for every species of 
 wrong is the being put in possession of that right whereof 
 the party injured is deprived. This may either be effected 
 by the specific delivery or restoration of the subject matter 
 in dispute to the legal owner, as when lands or personal 
 chattels are unjustly withheld or invaded, — or where that 
 is not a possible, at least not an adequate remedy, by 
 making the sufferer a pecuniary satisfaction in damages, as 
 in case of assault, breach of contract, Sec; to which da- 
 mages the party injured has acquired an incomplete or 
 inchoate right the instant he receives the injury (J), though 
 such right be not fully ascertained till they are assessed by 
 the intervention of the law,] that is, by the verdict of a 
 jury. [The instruments whereby this remedy is obtained 
 (which are sometimes considered in the light of the remedy 
 itself),] are a diversity of actions, that is, suits at the com- 
 
 (c) Vide vol. i. p. 131 ; et sup. p. 335. 
 
 (d) Vide sup. vol. ii. p. 11.
 
 CHAP. VII. — OF THOSE COGNIZABLE AT COMMON LAW. 449 
 
 mon law, [which are defined by the Mirror (e) to be " the 
 lawful demand of one's right," or as Bracton and Fleta 
 expresses it, in the words of Justinian (_/"), jus prosequendi 
 in judicio quod alicui debetur. 
 
 The Romans introduced pretty early set forms for actions 
 and suits in their law, after the example of the Greeks ; 
 and made it a rule that each injury should be redressed by 
 its proper remedy only. " Actiones" says the Pandects, 
 " composites sunt, quibus inter se homines disceptarent ; quas 
 actiones, ne populus prout vellet institueret, certas soleunesque 
 esse voluerunt (#)." The forms of these actions were ori- 
 ginally preserved in the books of the Pontifical College as 
 choice and inestimable secrets, till one Cneius Flavius, the 
 secretary of Appius Claudius, stole a copy and published 
 them to the people (h). The concealment was ridiculous ;] 
 but the establishment of some formula was undoubtedly 
 useful, to define the cases in which the law considered a 
 wrong to have been sustained, and to ascertain the nature 
 of the remedy which it allowed, and thus to prevent the 
 uncertainty that would otherwise have attended a subject 
 of so much importance as the right of action (i). [Or, as 
 Cicero expresses it (j), " sunt jura, sunt formulce , de omnibus 
 rebus constitute, ne quis ant in genere injuria, aut in ratione 
 actionis, errarepossit. Expressa, enim sunt ex uniuscujusque 
 damno, dolore, incommodo, calamitate, injuria, publicce a 
 praitore formula, ad quas privata lis accommodatur."^ With 
 us in England, accordingly, the several actions have been 
 from time immemorial conceived in fixed forms of com- 
 plaint, each exclusively appropriate to the particular kind 
 of injury for which redress is demanded (k). 
 
 (e) Ch. 2, s. 1. " true state of a question of right, 
 
 (/) Inst. 4, 6. " lest in a long and arbitrary process 
 
 (g) Ff. 1, 2, 2, s. 6. " it might be shifted continually, and 
 
 (It) Cic. pro. Muraena, s. 11 j De " beat length no longer discernible." 
 
 Orat. 1. i. c. 41. —Vol. iii. p. 116. 
 
 (i) Blackstone says, "the esta- (j) Pro. Q. Roscio, s. 8. 
 
 " blishment of some standard was (k) Vide Glanville, passim ; Bract. 
 
 "undoubtedly necessary to fix the lib. 5,DeExceptionibus, c. 17, s. 2. It 
 
 VOL. III. G G
 
 450 BOOK V. — OF CIVIL INJURIES. 
 
 Actions are subject, in the first place, to this principal 
 division — that they are either real, ■personal, or mixed {I). 
 
 [Real actions, or (as they are called in the Mirror, feu- 
 dal actions) which concern real property only,] are those 
 whereby the plaintiff, here called the demandant, claims 
 the specific recovery of any lands, tenements or heredita- 
 ments. [By these actions formerly all disputes concerning 
 real estates were decided, but in modern times (m)~\ they 
 have been pretty generally laid aside in practice, [upon 
 account of the great nicety required in their management, 
 and the inconvenient length of their process, a much more 
 expeditious method of trying titles being since introduced 
 by other actions,] and particularly by the species called 
 ejectment, of which we shall have occasion presently to 
 speak ; and subject to one or two exceptions, real actions 
 are now at length, by the provisions of 3 & 4 Will. IV. 
 c. 27, abolished. 
 
 Personal actions are those whereby a man either claims 
 the specific recovery of a debt (n), or personal chattel (o), 
 or [satisfaction in damages (p) for some injury done to his 
 person or property; being the same which the civil law 
 calls " actiones in personam, qua adversus eum intenduntur, 
 qui ex contractu vel delicto obligatus est aliquid dare vel 
 concedere (7)." 
 
 Mixed actions are suits partaking of the nature of the 
 other two, wherein some real property is demanded, and 
 also personal damages for a wrong sustained.] But they 
 partake, in the main, of the character of real actions, and 
 
 is to be observed that the Common that " they are now pretty generally 
 
 Law Procedure Act just passed (15 " laid-aside, &c." But this had been 
 
 & 16 Vict. c. 76,) though introducing the case long before his time, see Co. 
 
 the most extensive changes into the Litt. by Harg. 239 a, note (1). 
 
 practice of the common law courts, («) As to debt, vide sup. vol. ii. p. 
 
 yet contains no provision for abo- 134. 
 
 lishing the forms of action. In the (o) As to personal chattels, vide 
 
 present work, therefore, it is assumed sup. vol. ii. p. 2. 
 
 that these forms still remain. ( /;) As to damages, vide sup. p. 
 
 (/) Ch. 2, s. 6. 134. 
 
 (»») Blackstone's expression is, (</) Inst. 4, 6, 15.
 
 CHAP. VII. — OF THOSE COGNIZABLE AT COMMON LAW. 451 
 
 are often so called (r) ; and with the abolition of real 
 actions, these also, with very few exceptions, have been 
 swept away. 
 
 The real and mixed actions which have escaped the 
 general demolition of their class, are the following : writ 
 of right of dower, dower, and rjuare itnpedit ; and to the 
 same class seems to belong, in point of definition, though 
 not in common parlance, the existing action of ejectment (s). 
 The two first of these lie (in the language of the law), that 
 is, are applicable, and are the proper forms to be used, 
 where the demandant claims lands or tenements by the 
 particular title of dower (t) ; the first being applicable 
 where a woman is endowed of part of her dower, and is 
 deprived of the residue, lying in the same town, by the 
 same tenant by whom she was endowed of part(w); and 
 the second, in all other cases where she is entitled to 
 dower (v). Quare impedit lies where the object is to re- 
 cover the presentation to a benefice, the right to present to 
 which is disturbed; ejectment, where the object is to re- 
 cover land improperly withheld, the case of land claimed in 
 dower excepted. And as to the three first of these actions, 
 it may be observed here, that by a peculiarity that has 
 always attached to the class of real and mixed actions, they 
 can be brought in none of the superior courts of common 
 
 (/•) Co. Litt. 285 b; Roscoe, Real new actof 15 & 16 Vict. c. 76, above 
 
 Actions, 1. referred to, it is difficult to fix its 
 
 (s) Ejectment, prior to the statute technical character. It seems to fall 
 
 15 & 16 Vict. c. 76, (by which its under the definition of a real action, 
 
 form has been now remodelled), was because it claims the specific reco- 
 
 often considered as a m'ned action very of land without damages. But 
 
 (see 3 Bl. Com. 214), and'was ex- in its incidents it has no connection 
 
 pressly so denominated in the stat. whatever with the antiquated reme- 
 
 3 h 4 Will. 4, c. 27. The correct- dies to which that appellation com- 
 
 ness, however, of that arrangement monly belongs. 
 
 was doubtful, for in its form it was (f) As to dower, vide sup. vol. i. 
 
 clearly a species of the personal ac- p. 255. 
 
 tion of trespass. (See Fitz. Ah. tit. (it) Roscoe on Real Actions, 29. 
 
 Ejectione Firms, 2.) Under the (u) Ibid. 39. 
 
 G G. 2
 
 452 BOOK V. — OF CIVIL INJURIES. 
 
 law, except the Court of Common Pleas. But ejectment 
 may be brought in any of them. 
 
 Personal actions are founded either on contracts or on 
 ■^ torts, a term used to signify such wrongs as are in their 
 nature distinguishable from breaches of contract; — and 
 these torts are often considered as of three kinds, viz. non- 
 feazance, or the omission of some act which a man is bound 
 to do ; misfeazance, being the improper performance of some 
 act which he may lawfully do ; or malfeazance, being the 
 commission of some act which is unlawful (w). Actions 
 founded on contract are sometimes described as actions ex 
 contractu, and those on tort as actions ex delicto. X 
 
 The forms of personal action in use are the following : 
 debt, covenant, detinue, trespass, trespass on the case (x), and 
 replevin ; the two first being founded generally on contract, 
 the remainder on tort. Of these in their order. 
 
 Debt lies where the object is the recovery of a debt, 
 that is, a certain sum of money alleged to be due to the 
 ■f plaintiff; covenant where redress in damages is sought for 
 the breach of a covenant, that is, of an agreement by 
 + deed(y); detinue where the object is to recover a chattel 
 personal unlawfully detained. Trespass lies where the 
 plaintiff claims damages for a trespass, or (as it is more 
 fully expressed) a trespass vi et armis(z), that is, an injury 
 accompanied with actual force, as in the case of a battery or 
 imprisonment— or at least implied force, as in the case of 
 an unlawful but peaceable entry upon the plaintiff's land. 
 And here it may be observed, that [trespasses savour of 
 
 (w) 1 Chit. PI. 134, 1st edit. being founded on tort, and forming 
 
 (x) The form of trespass on the case a species or subdivision of trespass 
 
 includes, among other species, the on the case. See King v. Sheffing- 
 
 action of assumpsit, which being the ton, 1 C. & M. 363 ; Scrivner v. 
 
 ordinary remedy for a breach of pro- Watling, 1 Har. R. 8. 
 mise, is often considered as an action (y) As to deeds, vide sup. vol. i. 
 
 founded on contract, and is also p. 46'1. 
 
 sometimes separately enumerated as (:) In actions of trespass the for- 
 
 a distinct genus, in addition to the m*al words vi et armis and contra pacem 
 
 six noticed in the text. Its antient have hitherto always been used. But 
 
 and true technical character is never- by 15 & 16 Vict. c. 76, s. 49, they 
 
 theless that above assigned to it, of are hereafter to be omitted.
 
 CHAP. VIT. OF THOSE COGNIZABLE AT COMMON LAW. 453 
 
 the criminal kind — being always attended with some viola- 
 tion of the peace,] real or supposed, [for which in strict- 
 ness of law a fine ought to be paid to the crown, as well 
 as a private satisfaction to the party injured (a).] Trespass 
 on the case is a form of action less antient than the rest, 
 having apparently first come into use in the reign of Ed- 
 ward the third (b). It was invented under the authority of 
 the Statute of Westminster, 13 Edw. I. c. 24 (c), upon the 
 analogy of the old form of trespass, and supplied a great 
 defect in the original scheme of personal actions — a scheme 
 devised in comparatively barbarous times, and comprising 
 no forms adapted to the redress of many of those injuries 
 which in the progress of society gradually attract notice. 
 This kind of action (which derives its name from the com- 
 parative particularity with which the circumstances of the 
 plaintiff's case are detailed in its written allegations (d) ) is 
 very comprehensive in its scope, and may be said to lie in 
 every case where damages are claimed for an injury to 
 person or property, not falling within the compass of the 
 other forms. And as regards its relation to trespass we 
 may notice this [settled distinction, that where an act is <%. 
 done which is in itself an immediate injury to another's 
 person or property, there the remedy is usually by an action 
 of trespass — but where there is no act done, but only a 
 culpable omission, or where the act is not immediately in- a ~/ 
 jurious, but only by consequence or collaterally, there no 
 action of trespass will lie, but an action on the case for the 
 damages consequent on such omission or act (e).] To 
 
 (u) Finch, L. 198 ; Jenk. Cent. " clerks in chancery shall agree in 
 
 158. " forming a new one ; and if they 
 
 (6) Reeves's Hist, of Eng. L. vol. " cannot agree, it shall be adjourned 
 
 3, p. 89 ; et vide ibid. pp. 243, 391. " to the next parliament, where a 
 
 (r) This statute provided, that " writ shall be framed by consent of 
 
 "whensoever from thenceforth in " the learned in the law; lest it hap- 
 
 " one case a writ shall be found in " pen for the future, that the court 
 
 " the chancery, and in a like case, " of our lord the king be deficient in 
 
 " falling under the same right, and " doing justice to the suitors." 
 " requiringlikeremedy, no precedent (rf) 3 Bl. Com. 122. 
 
 " of a writ can be produced, the 
 
 r
 
 454 BOOK V. — OF CIVIL INJURIES. 
 
 which we may add, that where the subject matter affected 
 is not corporeal and tangible, so that the idea of force be- 
 comes inapplicable, there, though the injury be by way of 
 act done, and its operation be direct and immediate, yet 
 the remedy is case and not trespass (/). Lastly, with 
 respect to replevin, it will be sufficient for the present to 
 remark, that it is an action of very limited application, and 
 lies only where the object is to try the legality of a distress 
 levied upon the plaintiff's personal chattels {g). 
 
 A fitter opportunity will be found in the next chapter of 
 entering more at large into the nature and the competency, 
 in different cases, of the different actions above enumerated, 
 and also of referring to the particular species which some 
 of them comprise — but there are some points besides those 
 hitherto mentioned, which, as relating to actions in general, 
 seem to require notice in this place. 
 
 Actions are either local or transitory ; the former being- 
 founded on such causes of action as necessarily refer to some 
 particular locality, as in the case of trespasses to land (h), 
 the latter on such causes of action as may be supposed to 
 take place anywhere, as in the case of trespasses to goods, 
 batteries, and the like. Real actions are always in their 
 nature local, personal are for the most part transitory. Be- 
 tween local and transitory actions, there is this important 
 
 (e) Scott v. Shepherd, 2 Bl. Rep. c. 11. 
 892; see Gilbertson v. Richardson, 5 (h) Another instance of a local 
 
 C. B. 502. action, is one brought upon a matter 
 
 (/) 1 Chitty, PI. 143, cites Com. of record in any of the courts at 
 
 Dig. Action, Case, Disturbance, (A. Westminster ; and therefore former- 
 
 2). ly an action of scire facias to repeal 
 
 (g) It is said to lie in other cases letters patent was local. But now 
 
 also, see Co. Litt. 145 b; Vin. Ab. by 12 & 13 Vict. c. 109, s. 29, any 
 
 Replevin (B.); Com. Dig. Action writ of scire facias, in an action at 
 
 (M. 6); but any other application of suit of her Majesty for repealing 
 
 it is wholly unknown in practice ; letters patent, may be directed to 
 
 and see Galloway v. Bird, 4 Bing. the sheriff of any county, though the 
 
 300, that it does not lie to recover record on which it is founded may 
 
 goods delivered to a carrier and re- remain in Middlesex or any other 
 
 tained by him. See farther as to the county, 
 proceedings in replevin, post, bk. v.
 
 CHAP. VII.— OF THOSE COGNIZABLE AT COMMON LAW. 455 
 
 distinction —that the former must be tried in the proper 
 county where the cause of action arose, and by a jury of 
 that county ; the latter may be tried in any county, at the 
 discretion (in general) of the plaintiff. It follows from this, 
 that when an injury is committed out of England, and its 
 nature is such as to make the action local, no action at all 
 will lie for its redress in any English court. On the other 
 hand, where the nature of the injury is such that the action 
 is transitory, such action will lie in the English courts, 
 whether the injury was committed in England or else- 
 where. In order to justify indeed the institution even of a 
 transitory suit in the English courts when the cause of 
 action arises abroad, it was formerly necessary to have 
 recourse to a legal fiction, and to allege on the face of the 
 proceedings, that the cause of action arose (contrary to the 
 truth of the fact) in an English county. But by the effect 
 of a recent improvement of the practice, any resort to this 
 fiction is now rendered superfluous (i). 
 
 Personal actions are also subject (as sufficiently appears 
 by preceding explanations) to the distinction of being either 
 brought for the specific recovery of property, or for damages. 
 As regards the competency of the latter kind of remedy, it 
 is to be remarked, that an action for damages will in general 
 lie wherever a right has been invaded — or, in other words, an 
 injury committed, — although no damage should have been 
 actually sustained ; it being material to the establishment 
 and preservation of the right itself, that its invasion should 
 not pass with impunity (j ). Thus an action of trespass on 
 the case by one commoner against another, for surcharging 
 the common, (that is, turning on more cattle than he was 
 entitled to do,) may be maintained, although the plaintiff 
 may not himself have turned on any cattle of his own 
 during the same year, and can therefore have sustained no 
 
 (i) Reg. Gen. Hil. 4 Will. 4, r. 8. specify in the margin some English 
 
 The plaintiff, however, in his decla- county, as that in which he proposes 
 
 ration or statement setting forth his that the cause should be tried, 
 cause of action, is still required to (j) 1 Sruind. by Wins. 346 b.
 
 456 BOOK V.— OF CIVIL INJURIES. 
 
 actual loss (k). In such cases, there being no ground for 
 awarding damages to any considerable amount, the plaintiff 
 recovers some trifling sum by way of nominal damages ; — 
 in addition to which, the defendant has in general to sus- 
 tain the costs of the action, including those incurred by his 
 adversary (/). 
 
 It is however requisite, in order to sustain an action for 
 damages, that the plaintiff should have sustained some loss 
 or inconvenience, whether actual or nominal, of a kind 
 proper and peculiar to himself — for where the damage is of 
 a merely public character, affecting the subjects of the realm 
 at large as well as the plaintiff, no civil action lies, although 
 the law considers the injury in that case as amounting to a 
 crime, and consequently as a fit subject for an indictment. 
 Thus no action can be maintained for an encroachment on 
 the highway; but the offender is liable to be indicted as for 
 a public misdemeanor. Wherever extraordinary damage, 
 indeed, is sustained by an individual, he has in general a 
 right of action as for redress of a civil injury, though the 
 case may in its circumstances also amount to a crime. 
 Thus, in the case last supposed, [if by means of a ditch 
 dug across a public way, which is a common nuisance, a 
 man or his horse suffer any injury by falling therein, then 
 for this particular damage, which is not common to others, 
 the party shall have his action (»?).] And so in the case of 
 unlawful violence done to the person, though that always 
 amounts in contemplation of law to a crime, and, under 
 particular circumstances, even to a felony, yet the party 
 injured is entitled to his civil remedy. But even here this 
 distinction is to be observed, that in the case of a felony 
 the remedy for the private injury is suspended until the 
 
 (/<) Wells v. Watling, 2 Bl. Rep. are under a certain amount, the 
 
 1233; et vide Marzetti v. Williams, plaintiff will in general not recover 
 
 1 B. & Adol. 426 ; Blofeld v. Payne, his costs. Vide sup. p. 374, note 
 
 4 B. & Adol. 410. (/), 382. 
 
 (/) Where the action however is (in) 3 Bl. Com. 220 ; Wilks v. 
 
 really not brought to try a right, and Hungcrford Market, 2 Bing. N. C. 
 
 the damages, as recovered by verdict, 281.
 
 CHAP. VII. — OF THOSE COGNIZABLE AT COMMON LAW. 457 
 
 sufferer has fulfilled his duty to the public by prosecuting 
 the offender for the public crime (n); though for a mere 
 misdemeanor, such as assaults, batteries, libels, and the 
 like, the right of action is subject to no such impediment. 
 
 Moreover, though an action will lie (as we have seen) 
 for an injury, unattended with actual loss or damage, yet 
 none can be maintained even for loss or damage actually 
 inflicted, unless it result from an injury ; it being a maxim, 
 that a mere damnum absque injuria is not actionable. Thus, 
 if I have a mill, and my neighbour builds another mill upon 
 his own ground, per quod the profit of my mill is dimi- 
 nished, yet no action lies against him, for every one may 
 lawfully erect a mill on his own ground. But if I have a 
 mill by prescription (o) on my own land, and another erects 
 a new mill, which draws away some portion of the stream 
 from mine, so as to diminish its former power, an action 
 will lie against him of trespass on the case (p). 
 
 It may also be remarked, that a plaintiff is not entitled 
 to recover in respect of any damage that is too remote ; or, 
 in other words, flows not naturally and directly from the 
 alleged injury (q). Thus, where the plaintiff, being director 
 of certain musical peformances, brought an action on the 
 case against the defendant for publishing a libel on a public 
 singer engaged by the plaintiff, alleging that she was thereby 
 deterred from performing in public, through the apprehen- 
 sion of being ill received, so that the plaintiff lost the profits 
 which would otherwise have accrued to him as such direc- 
 tor, it was held that the damage was too remote, and the 
 action not maintainable (r). 
 
 (n) Crosbys. Leng, 12 East, 409; (r) Ashley v. Harrison, 1 Esp. 48; 
 
 7 & 8 Geo. 4, c. 29, s. 57 ; White j; et vide Kelly v. Partington, 5 B. & 
 
 Spettigue, 13 Mee. & W. 603. Vide Adol. 645 ; Knight v. Gibbs, 1 Ad. 
 
 post, bk. vi. c. i. tr. 1. & El. 43 ; Green v. Button, 1 Tyr. & 
 
 (o) Vide sup. vol. i. p. 658. G. 118 ; Langridge v. Levy, 2 Mee. 
 
 (p) Bac. Ab. Actions on the Case, & W. 519 ; S. C. in error, 4 Mee. & 
 
 (C), and the authorities there cited. W. 337 ; 2 Smith's Leading Cases, 
 
 ((j) Com. Dig. Action on Case, 304. 
 Defamation. 
 
 -+
 
 458 BOOK V. OF CIVIL INJURIES. 
 
 As to suits of every class, it is generally true that the 
 right of action is not assignable, so as to enable the assignee 
 to sue in his own name. But in certain cases it is trans- 
 ferred by the operation of law. Thus the rights of action 
 of a bankrupt or an insolvent pass (with certain exceptions) 
 to their assignees ; and upon the death of either of the 
 parties between whom a cause of action has arisen, the 
 right of maintaining such action survives in general to or 
 against his executors or administrators ; and to these, as 
 well as to the assignees of a bankrupt or insolvent, the right 
 also belongs of continuing actions, which the deceased, the 
 bankrupt, or insolvent has commenced (s). But in respect to 
 suits which are founded on the violation of personal rights (t), 
 as in the case, for example, of an action for slander, the 
 maxim is, that they die with the person (u). And by the 
 common law this extended to every case of tort(x). But 
 it is now no longer the rule in all cases. For by 4 Edvv. 
 III. c. 7, trespass may now be maintained by executors or 
 administrators for trespasses to the goods of the testator or 
 intestate. And again, by 3 & 4 Will. IV. c. 42, s. 2, it is 
 provided, that trespass, or trespass on the case, (according 
 to circumstances,) may be maintained by the executors or 
 administrators, for any injury to the real estate of the de- 
 ceased, committed in his lifetime, provided it were committed 
 within six calendar months before his death, and the action 
 brought within one year after his death. And farther, that 
 the same forms of action may be maintained against ex- 
 ecutors or administrators for any wrong committed by the 
 deceased against another, in respect of his property, real or 
 personal, provided it have been committed within six ca- 
 lendar months before his death, and the action be brought 
 within six calendar months after the executors or adminis- 
 trators have taken on themselves the administration. And, 
 
 (s) 15 & 16 Vict. c. 76, ss. 137, («) 3 Bl. Com. 302. 
 
 138. ( x ) 1 Chit. PI. 56. As to torts, 
 
 (t) As to personal rights, vide sup. vide sup. p. 445. 
 vol. i. p. 133.
 
 CHAP. VII. — OF THOSE COGNIZABLE AT COMMON LAW. 459 
 
 lastly, by 9 & 10 Vict. c. 93 (y), it is enacted that whenever 
 the death of a person shall be caused by such wrongful act, 
 neglect or default, as would (if death had not ensued) have 
 entitled the party injured to maintain an action for damages, 
 the person who would have been liable to such action may 
 be sued by the executor or administrator, for the benefit of 
 the wife, husband, parent and child of the person deceased, 
 notwithstanding the death of the person injured, and al- 
 though the death shall have been caused under such cir- 
 cumstances as amount in law to felony; and the jury may 
 give damages proportionable to the injury resulting from 
 such death, to be divided among the parties respectively 
 for whose benefit the action is brought, in such shares as 
 the jury shall by their verdict direct. 
 
 (_!/) As to this statute, see Hut- and North- Western Ra. Co. 20 L. J. 
 
 chinson v. York, Newcastle and Ber- (Ex.) 65 ; Blake v. Midland Ra. Co. 
 
 wick Ra. Co, 5 Exch. 343 ; Wigmore 21 L. J. (Q. B.) 233. 
 v. Jay, ib. 354 ; Reedie v. London
 
 460 BOOK V. — OF CIVIL INJURIES. 
 
 CHAPTER VIII. 
 
 OF CIVIL INJURIES COGNIZABLE IN THE COMMON 
 
 law courts — continued. 
 
 Having in the course of the last chapter entered into some 
 general explanations with regard to the nature of the great 
 common law remedy, by action, (a subject to which we 
 shall have occasion to revert,) we now resume our inquiry 
 into the civil injuries cognizable in the courts of the com- 
 mon law, to the right apprehension of which we have 
 deemed some preliminary acquaintance with the scheme of 
 actions essential. 
 
 The rights which are severally due to the different mem- 
 bers of the community, and the establishment and main- 
 tenance of which we have considered as the great objects 
 of municipal law, were divided (as we may remember) into 
 personal rights, rights of property, rights in private rela- 
 tions and public rights (a). It will be convenient, there- 
 fore, in proceeding to a farther investigation of the civil 
 injuries cognizable in the courts of common law, to subject 
 these injuries (which are but the violations of so many 
 rights) to a similar distribution. 
 
 I. First, then, as to such injuries as affect personal rights, 
 viz. the right of personal security, (comprising those of life, 
 limbs, body, health and reputation,) and the right of per- 
 sonal liberty (b). 
 
 1st. Of injuries which affect the life of man, it is suffi- 
 cient to remark, that they are not merely civil wrongs, but 
 [one of the most atrocious species of crimes ;] and con- 
 
 (a) Vide sup. vol. i. p. 133. (b) Vide sup. vol. i. p. 134.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 461 
 
 sequently [do not fall under our present contemplation, 
 but must be reserved for the next Book of these Com- 
 mentaries (c), viz. that which relates to the criminal law. 
 
 2, 3. The two next species of injuries, affecting the limbs 
 or bodies of individuals, shall be considered in one and the 
 same view. And these may be committed, 1. By threats 
 or menaces of bodily hurt, through fear of which a man's 
 business is interrupted. A menace alone, without a con- 
 sequent inconvenience, makes not the injury : but to com- 
 plete the wrong, there must be both of them together.] 
 
 2. [By assault, which is an attempt or offer to beat another 
 without touching him: as if one lifts up his cane or his fist 
 in a threatening manner at another, or strikes at him, but 
 misses him, this is an assault, insultus, which Finch (d) de- 
 scribes to be " an unlawful setting upon one's person."] 
 
 3. [By battery, which is the beating of another. The least 
 touching of another's person, wilfully or in anger, is a bat- 
 tery (e) ; for the law cannot draw the line between different 
 degrees of violence, and therefore totally prohibits the first 
 and lowest stage of it, — every man's person being sacred, 
 and no other having a right to meddle with it in any the 
 slightest manner. And therefore upon a similar principle, 
 the Cornelian law, De injuriis, prohibited pulsation as well 
 as verberation, — distinguishing verberation, which was ac- 
 companied with pain, from pulsation, which was attended 
 with none (f).~\ Injuries to limbs and body may also be, 
 
 4. [By wounding, which consists in giving another some dan- 
 gerous hurt, and is only an aggravated species of battery.] 
 
 5. [By mayhem, which is an injury still more atrocious. It 
 consists in violently depriving another of the use of a mem- 
 ber proper for his defence in fight. This is a battery at- 
 
 (c) In certain cases, however, an & P. 349 ; Forde v. Skinner, ibid, 
 action for damages may be main- 239 ; James v. Campbell, 5 Car. & 
 tained in behalf of the relations of P. 372 ; Moriarty v. Brooks, 6 Car. 
 the deceased. Vide sup. p. 458. & P. 684 ; Blake v. Barnard, 9 Car. 
 
 (d) Finch, L. 202. & P. 626. 
 
 (e) Vide Pursell v. Horn, 3 Nev. (/) Ff. 47, 10, 5. 
 & P. J(i4 ; Stephens v. Myers, 4 Car.
 
 462 
 
 BOOK V 
 
 -OF CIVIL INJURIES. 
 
 [tended with this aggravating circumstance, that thereby the 
 party injured is for ever disabled from making so good a 
 defence against future external injuries as he might other- 
 wise have done. Among these defensive members are 
 reckoned not only arms and legs, but a finger, an eye, and 
 a foretooth ( g), and also some others (//.). But the loss of 
 one of the jaw-teeth, the ear, or the nose, is no mayhem at 
 common law, as they can be of no use in fighting. For each 
 of these five injuries, threats (i), assault, battery, wound- 
 ing and mayhem, an action of trespass will lie, wherein the 
 jury will give adequate damages (7).] And for the four 
 last, at least, [an indictment may be brought as well as an 
 action] (k). It is to be observed, however, as to all these 
 acts, that to render them either actionable or indictable, they 
 must be committed on an unlawful occasion : for they are 
 all in some cases justifiable, and form no just ground of 
 complaint either civil or criminal. Thus assault and bat- 
 tery are justifiable [where one who has authority, a parent 
 or master, gives moderate correction to his child, his scholar, 
 or his apprentice (I). So also on the principle of self-de- 
 fence ; for if one strikes me first, or even only assaults me, 
 
 (g) Finch, L. 204. 
 
 (h) 1 Hawk. P. C. 111. 
 
 (i) The doctrine that trespass is 
 the proper form of action for a 
 threat, attended with injurious con- 
 sequences, has been questioned. But 
 see Finch, L. 202 ; 2 Rol. Ab. 545 ; 
 Com. Dig. Battery (D.), in accord- 
 ance with Blackstone on this subject. 
 
 (j) \V T ith respect to the action for 
 mayhem, it is said to be attended with 
 this peculiarity, that the court in 
 which the action is brought has a 
 discretionary power to increase the 
 damages if they think the jury at the 
 trial have not been sufficiently liberal 
 to the plaintiff; but this must be 
 done super visum vulneris, and upon 
 proof that it is the same wound con- 
 
 cerning which evidence was given to 
 the jury. Christian's Black, vol. iii, 
 p. 121, (n.), cites Brown v. Seymour, 
 1 Wils. 5 ; 1 Barnes, 106. 
 
 (k) Every battery, wounding, or 
 mayhem, implies an assault, and the 
 term assault is often used to express 
 all these injuries. All assaults, 
 whether including battery, &c, or 
 not, are indictable, and many pro- 
 visions of the criminal law are spe- 
 cially directed to the case of aggra- 
 vated assaults, which, in many cases, 
 are punishable by imprisonment, 
 with hard labour. See 14 & 15 Vict, 
 c. 11; c. 19, s. 4; c. 100, s. 29. 
 
 (/) Hawk. P. C. bk. i. c. 61, s. 23 ; 
 Winstone t>. Linn, 1 B. & C. 469.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 463 
 
 [I may strike in my own defence, and if sued for it, may 
 plead son assault demesne (?n), or that it was the plaintiff's 
 own original assault that occasioned it ;] and supposing a 
 dangerous scuffle thereon to take place, I may even, for my 
 own preservation (but not otherwise) wound or maim my 
 adversary, and justify it under a similar plea (n). [So like- 
 wise in defence of my goods or possessions, if a man endea- 
 vours to deprive me of them, I may justify laying hands upon 
 him to prevent him ; and in case he persists with violence, I 
 may proceed to beat him away (o). Thus, too, in the exercise 
 of an office, as that of churchwarden or beadle, a man may 
 lay hands upon another to turn him out of church, and pre- 
 vent his disturbing the congregation (p) ; and if sued for this 
 or the like battery, he may set forth the whole case, and plead 
 that he laid hands upon him gently, molliter manus imposuit, 
 for this purpose.] 6. The limbs and bodies of individuals 
 may also be affected by indirect or consequential, as well as 
 immediate injury, — particularly by neyliyence'm the perform- 
 ance of duties : as in the case where a passenger in a coach 
 is overturned by the carelessness of the driver (q). The 
 remedy for this sort of injury is an action of trespass on the 
 case (r), which may be brought not only where the coach 
 proprietor is guilty of the negligence in his own person, but 
 also where the fault was that of his servant ; it being a 
 general principle applicable not only to torts of this descrip- 
 tion, but to all other torts, and indeed to trespasses also, 
 that a man is civilly liable not only for what he does in his 
 own person, but what he does in the person of another, 
 acting at the time by his authority. For quifacit per alium, 
 facit per se. Another consequential injury to the bodies of 
 individuals, falling under the same head, is that of damage 
 
 (m) Oakes v. Wood, 3 Mee. & W. & Bing. 54 ; Randleson v. Murray, 
 
 150. 8 Ad. & El. 109; Lynch v. Nurdin, 
 
 (//) Cockcroft v. Smith, 2 Salk. 1 Q. B. 29. 
 G42. (>) Gordon r. Rolt, 4 Exch. 365 ; 
 
 (n) Finch, L. 203. Sharrod v. London and North-West- 
 
 (/>) Vide sup. p. 40, n. (/). era Ra. Co. ibid. 580. 
 
 (q) Broth erton v. Wood, 3 Brod.
 
 464 BOOK V. — OF CIVIL INJURIES. 
 
 done to the person, by a dog or other brute animal, used to 
 do mischief; in which case [the owner must answer for the 
 consequences if he knows of such evil habit,] unless the 
 dog were carefully kept for the protection of the house and 
 yard, and the attack was owing to the plaintiff's having im- 
 properly or incautiously entered the premises by night (r). 
 
 4. [Injuries affecting a man's health are, where by any 
 unwholesome practices of another, a man sustains any 
 damage in his vigour or constitution, as by selling him bad 
 provisions or wine (s) ; by the exercise of a noisome trade, 
 which infects the air in his neighbourhood (t);~\ or by the 
 neglect or unskilful management of the surgeon, apothe- 
 cary, or general practitioner who attends him (u). [For it 
 hath been solemnly resolved (x) that mala praxis is a great 
 misdemeanor and offence at common law, whether it be for 
 curiosity and experiment, or by neglect ; because it breaks 
 the trust which the party had placed in his physician, and 
 tends to the patient's destruction. Thus also, in the civil 
 law ( y), neglect or want of skill in physicians or surgeons 
 " culpa: adnumerantur ; veluti si medicus curationem dereli- 
 querit, male quempiam secuerit, ant pcrperam ei medicamen- 
 tum dederit :" These are wrongs or injuries unaccompanied 
 by force, for which there is a remedy in damages, by an 
 action of trespass on the case;] and in case of gross mis- 
 conduct, the party may in some cases also be indicted (z). 
 
 5. [Injuries affecting a man's reputation or good name] 
 are, first, by malicious and defamatory words. And as to 
 
 (?•) Blyth v. Topham, Cro. Jac. Dewsnap, 16 East, 194. 
 
 158 ; Brock v. Copeland, 1 Esp. 203; (it) Dr. Groenvelt's case, 1 Ld. 
 
 Bird i'. Holbrook, 4 Bing. 642 ; Hart- Raym. 214; Seare v. Prentice, 8 
 
 ley v. Harriman, 1 B. & Aid. 620 ; East, 348 ; Slater v. Baker, 2 Wils. 
 
 Thomas v. Morgan, 5 Tyr. 1085; 359 ; Hancks v. Hooper, 7 Car. & P. 
 
 May v. Burdett, 9 Q. B. 101 ; Card 81 ; Lanphier v. Pliipos, 8 Car. & P. 
 
 v. Case, 5 C. B. 622 ; Hudson v. Ro- 475. 
 
 berts, 20 L. J. (Exch.) 299 ; Jackson (i) Ld. Raym. ubi sup. 
 
 v. Smithson, 15 Mee. & W. 563. (y) Inst. 4, 3, 6, 7. 
 
 (s) 1 Rol. Abr. 90; R. i>. Souther- (s) R. r. Long, 4 Car. & P. 398 ; 
 
 ton, 6 East, 133. ibid. 407, n. («). 
 
 (0 9 Rep. 58; Hutt, 135; R. v.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 465 
 
 this injury (the remedy for which is also by trespass on the 
 case), we may in the first place remark, that though malice 
 is a necessary ingredient, yet where words are in a legal 
 sense defamatory, and it does not appear that they were 
 spoken on any such lawful occasion as to rebut the suppo- 
 sition of malice, the law will always conclude them to be 
 malicious (a). The cases in which words will be considered 
 defamatory, so as to amount to the legal injury of which 
 we now speak, are as follows : viz. where a man utters any 
 thing of another [which may either endanger him in law, 
 by impeaching him of some] punishable (b) [crime, — as to 
 say that he hath poisoned another, or is perjured (c) ; or 
 which may exclude him from society, — as to charge him 
 with having an infectious disorder,] tending so to exclude 
 him (d) ; [or which may impair or hurt his trade or live- 
 lihood (e), — as to call a tradesman a bankrupt, a physician 
 a quack, or a lawyer a knave;] or which may disparage 
 him in an office of public trust, — as to say of a magistrate 
 that he is partial and corrupt (/). But scandalous words 
 
 (a) Bromage v. Prosser, 4 B. & C. 
 247; Haire v. Wilson, 9 B. & C. 
 643 ; Pearson v. Lemaitre, 5 Man. & 
 G. 700. It has been usual in many 
 cases for the plaintiff in an action 
 for verbal slander, or for a libel, to 
 insert in his declaration (or com- 
 plaint), prefatory uverments of such 
 facts, as tended to explain the drift 
 and meaning of the slander, — and 
 also to insert innuendoes, — that is, 
 averments that such and such par- 
 ticular words were meant to refer to 
 him, the plaintiff. But as to prefa- 
 tory averments, these may now by 
 15 & 16 Vict. c. 76, s. 61, be dis- 
 pensed with, provided there be a 
 general allegation that the words 
 were used in a defamatory sense, — 
 specifying such defamatory sense. 
 And with respect to innuendoes, they 
 seem (however usual) to have been 
 VOL. III. 
 
 always unnecessary where the decla- 
 ration contains (as it always ought 
 to do) a general allegation that the 
 words (or libel) were spoken or pub- 
 lished " of and concerning the plain- 
 tiff." 
 
 (b) Holt o. Scholefield, 6 T. R. 
 691 ; Rowcliffe v. Edmonds, 7 M. & 
 W. 12 ; Heming v. Power, 10 Mee. 
 & W. 5G4. 
 
 (c) Finch's Law, 1S5. 
 
 (d) Such as leprosy, &c. ; Com. 
 Dig. Act. Def. (D. 28) ; Bloodworth 
 v. Gray, 7 Man. & G. 334. 
 
 (e) Jones v. Littler, 7 Mee. & W. 
 423 ; Bellamy v. Burch, 16 Mee. & 
 W. 590; Southee v. Denny, 1 Exch. 
 196. 
 
 (/) Com. Dig. ubi sup.; 2 Cro. 
 90 ; Ashton v. Blagrave, Ld. Raym. 
 1369. 
 
 II H
 
 466 BOOK V. OF CIVIL INJURIES. 
 
 [which concern matters merely spiritual, as to call a man 
 heretic or adulterer, are cognizable only in the ecclesiastical 
 court (#).] And the case is the same as words imputing 
 unchastity to a woman, except that, by the custom of 
 London, an action may be maintained for that species of 
 slander in the city courts (A). [Words spoken in derogation 
 of a peer or judge, or other great officer of the realm, which 
 are called scandalum magnatum,~] are held to be particularly 
 heinous (i) ; [and though they may be such as would not 
 be actionable in the case of a common person, yet when 
 spoken in disgrace of such high and respectable characters, 
 they amount to an atrocious injury, which is redressed by 
 an action on the case, founded on many antient statutes (A), 
 as well on behalf of the crown, to inflict the punishment of 
 imprisonment on the slanderer, as on behalf of the party, 
 to recover damages for the injury sustained.] But no resort 
 to this action having been made in modern times, it is now 
 in a maimer forgotten. [It is said that formerly no actions 
 were brought for words, unless the slander were such as, 
 if true, would endanger the life of the object of it (7)- But 
 too great encouragement being given by this lenity to false 
 and malicious slanderers, it is now held, that for scandalous 
 words of the several species before mentioned (that may 
 endanger a man by subjecting him to the penalties of the 
 law, may exclude him from society, may impair his trade, 
 or may affect a peer of the realm, a magistrate, or one in 
 public trust), an action on the case may be had, without 
 proving any particular damage to have happened, but 
 merely upon the probability that it might happen. But 
 with regard to words that do not thus apparently, and upon 
 
 (g) Parret v. Carpenter, Noy, 64 ; (i) Earl of Peterborough v. Sir J. 
 
 vide post, bk. v. c. 13. Mordant, 1 Vent. 60. 
 
 (h) Com. Dig. ubi sup. (F. 20); (k) Westm. 1, 3 Edw. 1, c. 34; 
 
 Pulling's Laws of London, 186, and 2 Rich. 2, st. 2, c. 5 ; 12 Rich. 2, 
 
 see the authorities there cited. As to c. 11. 
 
 a similar custom in the city of Bris- (/) King v. Sir E. Lake, 2 Vent, 
 
 tol, vide Power v. Shaw, 1 Wils. 62. 28.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 467 
 
 [the face of them, import such defamation as will of course 
 be injurious, it is necessary that the plaintiff should aver 
 some particular damage to have happened, which is called 
 laying his action with a per quod (m).] As if I say of a com- 
 mission agent, that he is an unprincipled man, and borrows 
 money without repaying it, this is not actionable unless 
 there be special damage ; but if I say this to a person who 
 was going to deal with him, and he forbear to do so in 
 consequence of its being said, an action will lie against 
 me (n). So if I impute heresy or adultery to another, 
 which are matters merely spiritual, yet if he can show that 
 he was thereby exposed to temporal damage, he may sue 
 me in a court of common law (o) ; and the case is the same 
 if I impute unchastity to a woman, and she can show that 
 she has thereby lost a marriage (p). And [in like manner 
 to slander another man's title, by spreading such injurious 
 reports as, if true, would deprive him of his estate (as to 
 call the issue in tail, or one who hath land by descent, a 
 bastard), is actionable,] provided it be not done in the bond 
 fide assertion of the defendant's own title, and [provided 
 any special damage accrues to the proprietor thereby, as if 
 he loses an opportunity of selling the land (q). It is, how- 
 ever, to be understood, that even where special damage has 
 thus been sustained in consequence of words spoken with 
 respect to person or property, yet if the words are not dispa- 
 raging in themselves, it is damnum absque injuria, and no 
 action can be maintained upon them (r).] So even where 
 
 (m) See Hopwood f.Thorn, 8 C. B. Wilby v. Elston, 8 C. B. 142. 
 
 293. (</) As to slander of title, vide 
 
 (») Storey v. Challands, 8 Car. & Smith v. Spooner, 3 Taunt. 246 ; 
 
 P. 234. Robertson v. M'Dougall, 4 Bing. 
 
 (<>) 3 Bla. Com. 125; Carslake v. 670; Malachy v. Soper, 3 Bing. 
 
 Mapledoram, 2 T. R. 473 ; Bois v. N. C. 371 ; Pitt v. Donovan, 1 M. & 
 
 Bois, 1 Lev. 134; Stephens v. Cor- S. 639 ; Pater v. Baker, 3 C. B. 831 ; 
 
 ben, 3 Lev. 395. See Pemberton v. Brook v. Raul, 4 Exch. 521. 
 
 Colls, 10 Q. B. 461. ()) Kelly v. Partington, 5 B. & 
 
 (p) Com. Dig. ubi sup. (D. 30). Ad. 645. 
 H H. 2
 
 468 
 
 BOOK V. 
 
 OF CIVIL INJURIES. 
 
 A 
 
 the words are disparaging, and attended with special 
 damage, or of such a kind as even without special damage 
 will sustain an action, yet if they be [spoken in a friendly 
 manner, as by way of advice, admonition, or concern, 
 without any tincture or circumstance of ill-will,] they are 
 not actionable, [for in such case they are not maliciously (s) 
 spoken,] which is part of the definition of the injury in 
 question. And on the same principle are protected all such 
 statements as it is usual to comprehend under the name of 
 privileged communications (t), viz. those which are made 
 on such lawful occasions as tend to rebut the prima facie 
 inference of malice which otherwise arises from a state- 
 ment derogatory to private character; as where a man com- 
 municates to another circumstances which it is right that 
 he should know in relation to a matter in which they have 
 a mutual interest, but tending to the disparagement of a 
 third person; or where a master, being called upon for 
 the character of a servant who has left him, charges him 
 with a theft («). For in such cases as these no action 
 lies, unless some proof of malice beyond the uttering of 
 the words be given, as that the defendant knew them 
 to be false (y). Also, if the defendant be able to prove 
 
 (s) See Pater v. Baker, ubi sup. 
 
 (t) As to friendly or privileged 
 communications, see Wetherston v. 
 Hawkins, 1 T. R. 110; Rogers v. 
 Clifton, 3 Bos. & Pul. 594 ; Knight 
 v. Gibbs, 1 A. & E. 43; Martin v. 
 Strong, 5 A. & E. 535 ; Padmore v. 
 Lawrence, 1 1 A. & E. 380 ; Tusan v. 
 Evans, 12 A. & E. 733; Wright v. 
 Woodgate, 1 Tyr. & G. 12; Foun- 
 tain v. Boodle, 3 Q. B. 5 ; Griffiths 
 D.Lewis, 7 Q. B. 61 ; Blagg v. Sturt, 
 10 Q. B. 899 ; Simpson v. Robinson, 
 12 Q. B. 743 ; Taylor v. Hawkins, 
 20 L. J. (Q. B.) 313; Coxhead v. 
 Richards, 2 C. B. 569 ; Blackham v. 
 
 Pugh, ibid. 611 ; Bennett t>. Deacon, 
 ibid. 628 ; Hopwood v. Thorn, 8 C. B. 
 293 ; Somervill v. Hawkins, 20 L. J. 
 (C. P.) 131; Kershaw v. Bailey, 1 
 Exch. 743. As to the expression of 
 opinion of the public acts of official 
 persons, vide Gathercole v. Miall, 15 
 Mee. & W. 319. 
 
 (u Vide sup. vol. ii. p. 233. 
 
 (i>) In Lord Northampton's case, 
 12 Rep. 134, it is laid down that 
 where the words spoken by the de- 
 fendant are a mere repetition of what 
 he has himself heard from another, 
 and he names his author at the time, 
 he is not liable to an action. Sed
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 469 
 
 the words to be true, no action will lie for any words of 
 defamation whatever (x), whether they were spoken on a 
 privileged occasion or not, and whether special damage 
 has ensued or not; for the law then deems them to be jus- 
 tifiable. [As if I can prove the tradesman a bankrupt, the 
 physician a quack, and the lawyer a knave, this will de- 
 stroy their respective actions,] a rule similar to that which 
 prevailed in the civil law, and probably founded on the 
 same policy : " eum qui nocentem infamat, non est cequum et 
 boaum ob earn rem condemnari; delicto, enim nocentium nota 
 esse oportet et expedit (y)." 
 
 A second way of affecting a man's reputation is by pub- 
 lishing a libel upon him, which, as regards the present 
 purpose (z), may be defined to be some writing, picture, or 
 the like, containing malicious and defamatory matter. The 
 nature of this injury and the remedy, are in general similar 
 to what has been already laid down in the case of words 
 spoken, but subject to some material differences. For not 
 only such imputations as will support an action for words, 
 but all contumelious matter that tends to degrade a man in 
 the opinion of his neighbours or to make him ridiculous, 
 will amount, when conveyed in writing, or by picture, or 
 the like, to libel (a). Again, while oral defamation is 
 
 vide M'Pherson v. Daniels, 10 B. & 
 C. 269 ; De Crespigny v. Wellesley, 
 5 Bing. 392. 
 
 (.r) As to the manner of pleading 
 the truth of the words, see Hicken- 
 botham v. Leach, 10 Mee. & W. 
 361 ; Edsall v. Russell, 4 Man. & G. 
 1090. 
 
 (i/) Ff. 47, 10, 18. 
 
 (s) Besides defamatory libels, there 
 are those of a blasphemous, sedi- 
 tious, or immoral kind ; as to which 
 vide post, bk. vi. c. 7 ; c. 10. 
 
 (u) Thorley v. Lord Kerry, 4 
 Taunt. 355; Cook v. Ward, 6 Bing. 
 
 409 ; Lord Churchill o. Hunt, 2 B. 
 & Aid. 685; Hearne v. Stowell, 12 
 A. & E. 719 ; Cheese v. Scales, 10 
 Mee. & W. 488; Capel v. Jones, 4 
 C. B. 259. The proper course at the 
 trial of an action for libel is, for the 
 judge to define to the jury what a 
 libel is in point of law, and then to 
 leave it to the jury to say whether 
 the publication in question falls 
 within that definition. Parmiter v. 
 Coupland, 6 Mee. & W. 105. By 
 Mr. Fox's Act, 32 Geo. 3, c. 60, the 
 law is settled the same way in cri- 
 minal prosecutions for libel.
 
 470 BOOK V. OF CIVIL INJURIES. 
 
 ground for an action only, there are, in the case of pub- 
 lishing a libel, [two remedies — one by indictment, and the 
 other by action ; the former for the public offence, (for 
 every libel has a tendency to the breach of the peace by 
 provoking the person libelled to break it,) and the latter to 
 repair the party in damages, for the injury done by him.] 
 And formerly the rule was, that on an indictment for pub- 
 lishing a libel the defendant was not allowed to allege the 
 truth of it by way of justification (b); for even if true, it 
 tended nevertheless to a breach of the peace. But in the 
 action for damages the defendant might (in like manner 
 as for words spoken) adopt that line of defence (c). And 
 on this latter point the law is still the same ; but on the 
 former it is now materially altered by the late act 6 & 7 
 Vict. c. 96, (amended by 8 & 9 Vict. c. 75,) for amending 
 the law respecting defamatory words and libel. By the 
 first of these acts it is provided, that in pleading to any 
 indictment or information for a defamatory libel the de- 
 fendant may, by way of defence, allege the truth of the 
 matters charged ; and farther, that it was for the public 
 benefit that the matters charged should be published, show- 
 ing the particular fact or facts by reason whereof it was 
 for the public benefit; and that if after such plea the 
 defendant shall be convicted, it shall be competent to the 
 court, in pronouncing sentence, to consider whether the 
 guilt of the defendant is aggravated or mitigated by the plea 
 and the evidence thereon. The act also contains provisions 
 intended to relieve editors and proprietors of newspapers 
 or other periodical publications from the hardship to which 
 they were subject under the former law, in being held liable, 
 absolutely and without qualification, for all libels therein 
 inserted, though inserted without their knowledge. These 
 provisions are, first, that in an action for a libel of this de- 
 scription it shall be competent to the defendant to plead that 
 
 (/») 5 Rep. 125. 
 
 (c) Lake i>. Hatton, Hob. 253; 11 Mod. 99.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 471 
 
 it was inserted without actual malice (d), and without gross 
 negligence ; and that before the commencement of the ac- 
 tion, or at the earliest opportunity afterwards, he inserted 
 in the same publication a full apology, (or if the publica- 
 tion should be ordinarily published at intervals exceeding a 
 week, had offered to publish the apology in any newspaper 
 or periodical publication to be selected by the plaintiff); — it 
 being also provided, however, that to render such plea 
 effectual, the defendant shall at the same time pay into 
 court a sum of money by way of amends for the injury 
 sustained (e) ; and as regards an indictment or information 
 for any libel, where evidence shall have been given esta- 
 blishing a presumptive case of publication against the de- 
 fendant, by the act of another person by his authority, that 
 it shall be competent to the defendant to prove that the 
 publication was without his authority, consent or know- 
 ledge, and did not arise from want of due care and cau- 
 tion on his part. The statute farther enacts, that in all 
 indictments or informations by a private prosecutor, for a 
 defamatory libel, if judgment be given for the defendant, 
 he shall be entitled to costs for the prosecution ; and if it 
 be given against him, upon a special plea, he shall be liable 
 to pay the prosecutor the costs occasioned by such plea ; 
 and it also contains a provision which applies to every action 
 for defamation, whether oral or written, viz. that it shall be 
 lawful for the defendant (after notice in writing of his in- 
 tention so to do, duly given to the plaintiff at the time of 
 pleading,) to give in evidence in mitigation of damages that 
 he made or offered an apology to the plaintiff before the 
 commencement of the action, or as soon afterwards as he 
 had an opportunity, in case the action had been com- 
 menced before an opportunity could be found (/*). 
 
 (d) See Chad wick v. Herapath, 3 provisions as lo the punishment on an 
 C. B. 885. indictment, or information for libel 
 
 (e) Vide 8 & 9 Vict. c. 75, s. 2. in the several cases of libelling or 
 
 (f) The act moreover contains threatening to libel, in order to ex-
 
 472 BOOK V. OF CIVIL INJURIES. 
 
 [A third way of destroying or injuring a man's reputa- 
 tion is by preferring malicious indictments or prosecutions 
 against him (g), which under the mask of justice and public 
 spirit are sometimes made the engines of private spite and 
 enmity. For this, however, the law has given a very ade- 
 quate remedy in damages, — either by an action of conspi- 
 racy, which cannot be brought but against two at the least,] 
 and is confined to the particular case where the plaintiff" has 
 been acquitted by verdict, upon an accusation of treason or 
 felony (Ji) ; — or (which is the only way now known in prac- 
 tice) by [an action on the case for a false and malicious 
 prosecution,] which may be brought either against a single 
 person, or against several, with an allegation that they con- 
 spired together for the purpose (i). And [an action on the 
 case for a malicious prosecution may be founded upon an 
 indictment whereon no acquittal can be had ; as if it be re- 
 jected by the grand jury, or be coram non judice, or be in- 
 sufficiently drawn. For it is not the danger of the plaintiff, 
 but the scandal, vexation and expense upon which this ac- 
 tion is founded (k). However, any probable cause for pre- 
 ferring it is sufficient to justify the defendant.] Indeed, in 
 order to maintain this action, the burthen lies on the plain- 
 tiff of showing that no probable cause existed (Z). And it 
 is also essential for him to prove either that he was acquitted 
 upon such prosecution, by verdict of a jury, or that it was 
 in some other manner legally terminated in his favour (m). 
 
 tort money, &c. — of publishing a as founded on malice and the want 
 
 libel knowing the same to be false — of probable cause, and how far the 
 
 and of publishing a libel without question on probable cause is a 
 
 such knowledge. As to these, see question for the jury, vide Blackford 
 
 book vi. c. x. i'. Dod, 2 B. & Adol. 179 ; Delisser 
 
 (g) Turner v. Ambler, 10 Q. B. v. Towne, 1 Q. B. 333 ; Panton v. 
 
 252. Williams, 2 Q. B. 169; Musgrove v. 
 
 (h) 1 Saund. by Wms. 229 a. Newell, 1 Mee. & W. 582; Michell 
 
 (i) Ibid. V.Williams, 11 Mee. & W. 205. 
 
 (/c) Jones v. Gwynn, 10 Mod. 219, (m) Morgan v. Hughes, 2 T. R. 
 
 220; Chambers v. Robinson, Str. 225; Willes, 520, n. ; Whitworth v. 
 
 691. Hall, 2 B. & Adol. 695. 
 
 (/) As to the nature of this action,
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 473 
 
 No action (it may be observed here) lies in a court of law 
 for a malicious prosecution before a court-martial (n) ; for 
 " every reason which requires the original charge to be 
 " tried by a military jurisdiction, equally holds to try the 
 " probable cause by that jurisdiction (o)." 
 
 6. Injuries affecting the right of personal liberty are, in 
 the first place, that of [false imprisonment (p), for which 
 the law has not only decreed a punishment as a heinous 
 public crime, but has also given a private reparation to the 
 party, as well by removing the actual confinement for the 
 present, as by subjecting the wrongdoer to a civil action 
 on account of the damage sustained by the loss of time 
 and liberty. 
 
 To constitute the injury of false imprisonment there are 
 two points requisite : i . The detention of the person ; and 
 2. The unlawfulness of such detention. Every confine- 
 ment of the person is an imprisonment, whether it be in a 
 common prison, or in a private house, or in the stocks, or 
 even by forcibly detaining one in the public streets (q). 
 Unlawful or false imprisonment consists in such confine- 
 ment or detention without sufficient authority ; which au- 
 thority may arise either from some process from the courts 
 of justice, or from some warrant from a legal officer having 
 power to commit under his hand and seal, and expressing 
 the cause of such commitment, or from some other special 
 cause warranted for the necessity of the thing, such as the 
 arresting of the felon by a private person without warrant, 
 or the impressment of mariners for the public service. 
 False imprisonment also may arise by executing a lawful 
 warrant or process at an unlawful time, as on a Sunday; 
 for the statute 29 Car. II. c. 7, s. 6, hath declared that 
 
 (//) As to courts martial, vide sup. Gurdon, 2 Gale & D. 133 ; Smith i>. 
 
 vol. ii. p. 572. Eggington, 7 Ad. & El. 167 ; Mit- 
 
 (o) Johnstone v. Sutton, (in error), chell c. Forster, 12 A. & E. 72 ; Bird 
 
 1 T. R. 549. v. Jones, 7 Q. B. 742 ; Turner v. 
 
 (p) Seeastothis, Edgell u. Francis, Amhler, 10 Q. B. 252. 
 
 1 Man. & Gr. 222; Glynn r. Hous- ( 9 ) 2 Inst. 589. 
 toun, 2 Man. & Gr. 337 ; Jones v.
 
 474 BOOK V. — OF CIVIL INJURIES. 
 
 [such service of process,] except in cases of treason, felony, 
 breach of the peace, or other indictable offence (r), [shall 
 be void. This is the injury. As for the remedy,] it is 
 either for removal of the injury or for its satisfaction in 
 damages. 
 
 The means of removal are principally by writ of habeas 
 corpus. But this is a subject on which it would be pre- 
 mature at present to enter, as it will properly belong to a 
 subsequent chapter, in which we shall have occasion to 
 treat of such remedies in the common law courts as are 
 distinct from the remedy by action (s). [The satisfactory 
 remedy for this injury of false imprisonment is by an action 
 of trespass, &c, usually called an action of false imprison- 
 ment, which is generally and almost unavoidably accom- 
 panied with a charge of assault and battery also; and therein 
 the party shall recover damages for the injury he has re- 
 ceived.] 
 
 Besides the injury of false imprisonment, the right of 
 personal liberty may, secondly, be invaded by an arrest 
 under process, lawful in itself, and executed at a lawful time, 
 and in a lawful manner, but improperly set on foot by a 
 party who had in fact no sufficient ground or even probable 
 cause for taking that course : and this may be either in the 
 way of a civil or criminal proceeding. In the former case 
 the injury is generally described as a malicious arrest (t), in 
 the latter as a malicious prosecution, of which enough has 
 already been said in reference to the injury it inflicts on 
 reputation. As to malicious arrest it is only another spe- 
 cies of the same injury, and is redressed in the same form 
 of action, viz. trespass on the case; and the law relating to 
 it being in almost every other respect the same, does not 
 require to be repeated. Indeed the occasions of malicious 
 arrest have now become rare in consequence of the late 
 
 (r) Rawlins v. Ellis, 16 Mee. & (t) See as to this, Saxon v. Castle, 
 
 W. 172. 6 Ad. & El. 652 ; Smith v. Eggington, 
 
 (s) Vide post, bk. v. c. x. ubi sup.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 475 
 
 change of the law (u), by which arrests in civil suits before 
 judgment obtained are no longer allowable, except under 
 special circumstances, and under the authority of a judge's 
 order. 
 
 II. We arrive next, according to the order proposed, at 
 the consideration of such injuries as affect the right of pro- 
 perty in things real, or (as they may be more compendiously 
 described) the injuries to real property. 
 
 These [are principally six : — 1. Ouster : 2. Trespass ; 3. 
 Nuisance ; 4. Waste ; 5. Subtraction ; 6. Disturbance.] 
 
 1. Ouster, or dispossession, is a wrong or injury that 
 may be sustained in respect of hereditaments corporeal or 
 incorporeal (v), and [carries with it the amotion of pos- 
 session; for thereby the wrongdoer gets into the actual 
 occupation of the land or hereditament, and obliges him 
 that hath a right to seek his legal remedy in order to gain 
 possession and damages for the injury sustained (x). And 
 such ouster or dispossession may either be of the freehold 
 or of chattels real.] 
 
 Ouster of the freehold is affected by various methods : 
 1. [By abatement ; which is where a person dies seised of 
 an inheritance, and before the heir or devisee enters, a 
 stranger who has no right makes entry, and gets possession 
 of the freehold ; this entry by him is called an abatement 
 and he himself is denominated an abator (?/).] 2. [By 
 
 (u) Vide statute 1 & 2 Vict. c. 110 ; election of the party injured, — if, for 
 
 et post, bk. v. c. x. the purpose of more easily trying the 
 
 (v) 3 Bl. Com. 170. The idea of right in a real action he was pleased 
 
 ouster, however, is more directly ap- to suppose himself disseised. 3 Bl. 
 
 plicable to a corporeal hereditament, Com. 170. 
 
 or land. As regards those which are (r) There may be ouster between 
 
 incorporeal, it is in general, as Black- tenants in common, coparceners and 
 
 stone remarks, "nothing more than joint tenants. Co. Litt. 199 b, 373 
 
 " a disturbance of the owner in the b; Smales v. Dale, Hob. 120. 
 "means of coming at or enjoying (y) Finch, L. 195. Blackstonere- 
 
 "them;" and therefore it was al- marks here, that " this expression of 
 
 ways held that a disseisin of these " abating, which is derived from the 
 
 amounted to an ouster only at the " French, and signifies to quash, beat
 
 476 BOOK V. — OF CIVIL INJURIES. 
 
 [intrusion ; which is the entry of a stranger, after a parti- 
 cular estate of freehold is determined, before him in re- 
 mainder or reversion. And it happens where a tenant for 
 term of life dieth seised of certain lands and tenements, 
 and a stranger entereth thereon after such death of the 
 tenant, and before any entry of him in remainder or rever- 
 sion (z);] such stranger being termed, in the technical sense 
 of the word, an intruder. 3. [By disseisin (a)] which is 
 [a wrongful putting out of him that is seised of the free- 
 hold;] not, as in the other cases, a wrongful entry where 
 the possession was vacant, but [an attack upon him who 
 is in actual possession, and turning him out of it ;] and as 
 the two former kinds were [an ouster from a freehold in 
 law,] so this is [an ouster from a freehold in deed.] All 
 these three modes, it is to be observed, are [such wherein 
 the entry of the tenant ab initio, as well as the continuance 
 of his posession, is unlawful ; but the two remaining are 
 where the entry of the tenant was at first lawful, but the 
 wrong consists in the detaining of possession afterwards.] 
 As, 4. [By deforcement ; this, in its most extensive sense, is 
 nomen generalissimum ; a much larger and more compre- 
 hensive expression than any of the former ; it then signify- 
 ing the holding of any lands or tenements to which another 
 person hath a right (b) ; so that this includes as well an 
 abatement, an intrusion, or a disseisin, as any other species 
 
 " down, or destroy, is used by our " denote that the rightful possession 
 
 " law in three senses. The first, " or freehold of the heir or devisee 
 
 " which seems to be the primitive " is overthrown by the rude inter- 
 
 " sense, is that of abating or beating " vention of a stranger." 
 
 " down a nuisance, (and in a like (s) Co. Litt. 277 ; F. N. B. 203, 
 
 " sense it is used in stat. Westm. 1, 204. 
 
 " 3 Edw. 1, c. 17, where mention is (a) As to disseisin, see Taylor v. 
 
 " made of abating a castle or for- Horde, 1 Ld. Ken. 143; Doe d. 
 
 " tress); the second is that of abating Maddock v. Lynes, 3 B. & C. 388 ; 
 
 " a writ or action, where it is taken Doe v. Hall, 2 Dow. & Ry. 38 ; Wil- 
 
 " figuratively, and signifies the over- Ham u. Thomas, 12 East, 141. 
 
 " throw or defeating of such writ by (6) Co. Litt. 277. Et vide as to 
 
 " some fatal exception to it ; the last deforcement, Co. Litt. by Butl. 331 b, 
 
 " is also a figurative expression, to n. (1).
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 477 
 
 [of wrong whatsoever, whereby he that hath right to the 
 freehold is kept out of possession. But, as contradistin- 
 guished from the former, it is only such a detainer of the 
 freehold from him that hath the right of property, but 
 never had any possession under that right, as falls within 
 none of the injuries which we have before explained. As 
 in case where a lord has a seignory, and lands escheat to 
 him propter defectum sanguinis (c), but the seisin of the 
 lands is withheld from him : here the injury is not abate- 
 ment, for the right vests not in the lord as heir or devisee ; 
 nor is it intrusion, for it vests not in him who hath the re- 
 mainder or reversion ; nor is it disseisin, for the lord was 
 never seised ; but being neither of these three, it is there- 
 fore a deforcement (d). If a man marries a woman, and 
 during the coverture is seised of lands,] in fee simple, or 
 fee tail, [and is disseised and dies, or dies in possession,] 
 no act having been done in either of these cases to bar or 
 defeat his widow's dower (e), [and the disseisor or heir 
 enters on the tenements, and doth not assign the widow 
 her dower, this is also a deforcement to the widow, by 
 withholding lands to which she hath a right (f); that is, 
 by remaining in possession of the entire lands of the de- 
 ceased, without setting forth for her any particular lands in 
 satisfaction of her general claim to one-third. [In like 
 manner, if a man lease lands to another for term of years, 
 or for the life of a third person, and the term expires by 
 surrender, efflux of time, or death of the cestui/ que vie, and 
 the lessee or any stranger who was, at the expiration of the 
 term, in possession, holds over, and refuses to deliver the 
 possession to him in remainder or reversion, this is likewise 
 a deforcement (<?).] Another species of deforcement is 
 [where two persons have the same title to land, and one of 
 them enters and keeps possession against the other, — as 
 where the ancestor dies seised of an estate in fee simple, 
 
 (c) Vide sup. vol. i. p. 416. (/) F. N. B. 8, 147. 
 
 (d) F.N. B. 143. (g) Finch, L. 263; F. N. B. 201, 
 (?) Vide sup. vol. i. p. 261. 205-7.
 
 478 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 [which descends to two sisters or coparceners (h), and one 
 of them enters before the other, and will not suffer her 
 sister to enter and enjoy her moiety : this is also a deforce- 
 ment (i).] In addition to all which modes of ouster, there 
 was formerly another, viz., 5. By discontinuance, which was 
 where a tenant in tail in possession made [a feoffment (k) 
 in fee simple, or for the life of the feoffee, or in tail, all 
 which are beyond the power of a tenant in tail to make ; 
 for that by the common law extends no farther than to 
 make a lease for his own life,] so as to be available against 
 the issue or those in remainder or reversion (I). Such 
 feoffment would formerly pass an estate in fee simple by 
 wrong, and therefore on the death of the feoffor became an 
 injury to the heir in tail, or those in remainder or reversion, 
 as the case might be, which was termed a discontinuance (m). 
 But now by 8 & 9 Vict. c. 106, s. 4, a feoffment made 
 after the 1st October, 1845, shall not have any tortious 
 operation, so that the title by discontinuance seems to be 
 abolished (n). 
 
 Secondly. Ouster of chattels real consists — 1. Of [amo- 
 
 (h) Vide sup. vol. i. p. 331. 
 
 (i) Finch, L. 293, 294; F. N. B. 
 197; Co. Litt. 199 b. 
 
 (k) Prior to the abolition of fines 
 by 3 & 4 Will. 4, c. 74, a discontinu- 
 ance might also be effected by a fine. 
 Co. Litt. 327 b. 
 
 (/) Blackstone lays it down abso- 
 lutely, that his power extends no 
 farther than to make a lease for his 
 own life ; and this is according to 
 the text of Littleton. But the qua- 
 lification above introduced is re- 
 quired to make that proposition an 
 accurate one. See Co. Litt. by Butl. 
 331a, n. (1). 
 
 (m) Co. Litt. 327 b. 
 
 (w) By the common law also alien- 
 ation of a husband who was seised 
 in the right of his wife worked a dis- 
 
 continuance of the wife's estate, till 
 the contrary was provided by the 
 statute 32 Hen. 8, c. 28; and for- 
 merly too if an alienation was made 
 by a sole corporation, or a bishop or 
 dean without consent of the chapter, 
 this was a discontinuance. But by 
 1 Eliz. c. 19, and 13 Eliz. c. 10, all 
 such alienations were made abso- 
 lutely void ab initio (see Gilb. Ten. 
 p. 107). This important effect for- 
 merly belonged to a discontinuance, 
 that it took away the entry of the 
 heir in tail, remainderman, or rever- 
 sioner, as the case might be, vide 
 post, p. 473. But the law was altered 
 in this respect by 3 & 4 Will. 4, c. 
 27, vide post, p. 463. As to an estate 
 by wrong, vide sup. vol. i. p. 491.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 479 
 
 tion of possession from estates held by statute, recogni- 
 zance, or elegit (o),] which happens by [a species of dis- 
 seisin, or turning out of the legal proprietor before his 
 estate is determined, by raising the sum for which it is 
 given him in pledge.] And 2. Of [amotion of possession 
 from an estate of years (p),~\ which also takes place [by a 
 like kind of disseisin, ejection, or turning out of the tenant 
 from the occupation of the land during the continuance of 
 his term.] 
 
 [The several species and degrees of injury by ouster 
 being thus ascertained (q), the next consideration is the 
 remedy.] 
 
 But for the better illustration of this subject, on which 
 great changes have been recently introduced, it will be 
 necessary here to take some retrospect of the former state 
 of the law with respect to the means of redress for a wrong- 
 ful ouster. 
 
 According to that system the injury admitted of a variety 
 of remedies, the competency of which depended on the lapse 
 of time and other circumstances ; and the distinctions 
 which obtained on this subject may be compendiously 
 stated as follows : 
 
 First. In the case of abatement, intrusion and disseisin, 
 the party ousted might recover the possession by means of 
 an action, that is, by one of the real (in which we always 
 include, unless the contrary is indicated, mixed) actions : 
 which were divided into two principal classes, viz. actions 
 possessory, in which the object was to ascertain the right 
 of possession ; and actions droitural, brought to determine 
 the right of property (r). But, as in the particular cases 
 
 (o) Vide sup. vol. i. pp. 295, 296. ouster. The subject, therefore, has 
 
 (p) Ibid. p. 270. been treated rather more summarily 
 
 (7) It may be proper to remark, than in Blackstone. 
 
 that the abolition of almost all the (r) 2 Bl. Com. 197 ; 3 Bl. Com. 
 
 real actions has, to a considerable 179. The actions possessory were 
 
 extent, abated the importance which divided into writs of entry and writs 
 
 formerly belonged to the distinctions of assize ; the former being of such a 
 
 regarding the different kinds of nature as disproved the title of the
 
 480 BOOK V. — OF CIVIL INJURIES. 
 
 of ouster just mentioned, the abator, intruder, and dissei- 
 sor, had obviously a mere naked possession without colour 
 of right, the law also gave the injured party the alternative 
 in such cases of recovering possession at once, (where land 
 was the subject of the ouster,) by the extra-judicial and 
 summary method of entry mentioned in the first chapter 
 of the present book (s). If he neglected, however, to avail 
 himself of this for twenty years, (being under no disability 
 in respect of infancy or the like,) his entry after that time 
 was barred by the statute of limitations, 21 Jac. I. c. 16. 
 
 Next, if the abator, intruder, or disseisor died seised, 
 and the land descended to his heir, or (in general) if the 
 ouster took place by any of the species of deforcement, 
 the heir or the deforciant (as the case might be) was con- 
 sidered as clothed with a species of presumptive title, 
 called by Blackstone an apparent right of possession (t) ; 
 for the heir in respect of his descent, and the deforciant in 
 respect of the lawful inception of his title, had evidently a 
 better or more colourable right than that gained by mere 
 abatement, intrusion or disseisin. Under such circum- 
 stances, therefore, the possessors were deemed not liable to 
 expulsion by mere entry, but the estate or interest of the 
 person ousted was said to be turned to a right (u) ; and it 
 became necessary for him to resort to a real action, either 
 possessory or droitural. So he might be driven to betake 
 himself to a real action even as against an abator, intruder, 
 
 tenant by showing the unlawful com- " not restore it by entry, and can 
 
 mencement of bis possession ; the " only recover it by action." — Co. 
 
 second of a nature to prove the title Litt. by Butl. 332 b, n. (1). Black- 
 
 of demandant, by merely showing stone uses this expression as if it 
 
 his, or his ancestor's possession. 3 applied to the case where not only 
 
 Bl. Com. 185. the entry, but the right to bring a 
 
 (s) Vide sup. p. 339. possessory action was taken away, 
 
 (<) 2 Bl. Com. 196 ; 3 Bl. Com. and nothing remained but the mere 
 
 1'9. r'ght, or riglit of property. 2 Bl. 
 
 (h) "By turning to a right it is Com. p. 197. But this is not the 
 
 " generally meant, that the person sense in which it has been ordinarily 
 
 " whose possession is usurped can- used.
 
 CHAP. VIII. — OP THOSE COGNIZABLE AT COMMON LAW. 481 
 
 or disseisor, in consequence of having allowed twenty 
 years to elapse without exercising- his right of entry. 
 
 Here, however, it becomes necessary to notice the fol- 
 lowing exceptions: — First, that though in general the right 
 of entry, as already stated, was taken away (or tolled) by 
 the descent so cast (as the term was) upon the heir of the 
 abator, intruder, or disseisor, yet if the claimant were under 
 any legal disability during the life of the ancestor, by 
 whom the ouster was effected, such as infancy, or the like, 
 the descent had no such operation. Secondly, that by the 
 statute 32 Henry VIII. c. 33, if the ouster took place by 
 way of disseisin, no descent to the heir of the disseisor was 
 to take away the entry, unless the disseisor himself had 
 peaceable possession for five years. Lastly, that though 
 in general there was no right of entry on a deforciant, yet 
 a man might enter on his tenant as sufferance (x), [for such 
 tenant hath no freehold, but only a bare possession, which 
 may be defeated, like a tenancy at will, by the mere entry 
 of the owner.] 
 
 Again, if the claimant, where his estate was turned to a 
 right in the manner above described, neglected to resort to 
 his possessory action within the period allowed by law in 
 that behalf, (for every such action was subject to its appro- 
 priate time of limitation, varying from thirty to fifty years,) 
 or if the ouster took place upon a discontinuance, in either 
 of these cases the adverse party was considered as having 
 acquired not merely an apparent, but an actual right of 
 possession {y), — the effect of which was that the claimant 
 was driven (as the only remaining expedient) to bring his 
 real action droitural, to establish his right of property, or 
 mere right, as it was also denominated (c) ; and by the 
 establishment of the right of property, the right of posses- 
 
 (x) As to tenant at sufferance, (whether by default or on trial of the 
 
 vide sup. vol i. p. 281. merits) in a possessory action — for 
 
 (y) 2 Bl. Com. 196; 3 Bl. Com. such judgment for ever bound the 
 
 179. These were the principal cases; right of possession. 3 Bl. Com. 191. 
 
 but there was also that of judgment (j) 2 Bl. Com. 197. 
 being given against either party 
 
 VOL. III. I I
 
 482 BOOK V. OF CIVIL INJURIES. 
 
 sion was defeated. Of such actions, the principal one was 
 the writ of right (a), sometimes called, to distinguish it 
 from others of the droitural class, the writ of right proper. 
 They were all subject, like actions possessory, to a certain 
 period of limitation, that in the writ of right (which was 
 the most extended) being sixty years. 
 
 But though this was the antient and proper system of 
 remedy provided by our law, for cases of ouster of land, 
 it had long been nearly superseded in practice, by a com- 
 paratively modern invention of anomalous character, to 
 which claimants had been driven to resort by the inade- 
 quacy of the regular methods. For the redress by entry 
 was one rarely in fact available, particularly as the law 
 required it to be made in a peaceable manner, and sub- 
 jected to severe penalties those who attempted to regain 
 their tenements by a strong hand. And with respect to 
 the real actions, whether possessory or droitural, they 
 were generally unacceptable remedies, from their liability 
 to the following disadvantages — that the course of pro- 
 ceedings in them was dilatory and intricate (b) ; — that the 
 judgment in them was conclusive, (so that the plaintiff, 
 failing by any accident in one, was not at liberty to bring 
 another of the same species (c) ); — and that they could be 
 brought only in one of the courts of Westminster Hall, 
 viz. the Court of Common Pleas (d). From such disad- 
 
 (o) There was an instance of a writ competent to the tenant, when sued 
 of right commenced as recently as the in a writ of right, to plead that he had 
 year 1835 ; see Davies v. Lowndes, more right to hold than the demand- 
 1 Bing. N. C. 597 ; S. C. 1 C. B. 435 ; ant to claim, which was called the 
 3 C. B. 808. The writ of right was mise upon the mere right ; and this 
 considered as "the highest writ in the question or issue he might at his op- 
 law." 3 Bl. Com. 193. But, besides tion refer, either to a species of jury 
 this, there were writs in the natuie of called the grand assise, or to tiiul by 
 a writ of right, such as the writ of battle, as to which, vide post, bk. vi. 
 formedon, which was the remedy for c. 22, tr. 3. 
 
 tenant in tail on a discontinuance, for (/>) 3 Bl. Com. 184,205; Reeves's 
 
 he could not have a writ of right pro- Hist. Eng. L. vol. iv. p. 106. 
 
 per. Ibid. 191 (see Tolson v. Kaye, (c) Reeves's Hist. Eng. L. vol. iv. 
 
 6 Man. & G. 536; Cannon v. Riming- p. 166. 
 
 ton, 21 L. J.(C. P.) 137, 252). It was (d) Ibid. 170.
 
 CHAP. VIII.— OF THOSE COGNIZABLE AT COMMON LAW. 483 
 
 vantages, however, personal actions were exempt ; and the 
 practitioners of our courts were thus led to the device of 
 adapting one of these to the object of recovering the pos- 
 session of land, so as to preclude the necessity of resorting 
 to an action real. This invention appears to be due to the 
 reign of Henry the seventh or Henry the eighth (e) ; and 
 the personal action applied to the purpose was the species 
 of trespass called trespass de ejectione firma (afterwards 
 compendiously called an ejectment, and ranked, by some, 
 contrary to its original character, as a mixed action), which 
 lay where the plaintiff" was a lessee for years, and claimed 
 damages for the injury of ouster from his chattel real. The 
 contrivance was preceded by a decision of the courts, de- 
 claring that, besides the judgment for damages, the plaintiff 
 in an action of this kind was entitled to an award of resti- 
 tution of the term itself(/); and this point being once 
 established, the object in view was obtained through the 
 medium of a fiction, the nature of which will be more par- 
 ticularly noticed hereafter, and of which it is sufficient at 
 present to say, that it had the effect of enabling any party 
 who had been ousted of land, whatever the nature of his title 
 or the circumstances of the ouster might be, to bring his 
 case forward in the name of a third person claiming in the 
 character of his lessee for years, and complaining of an ex- 
 pulsion from the leasehold. Its applicability, however, was 
 subject to this important exception, that as it involved an 
 actual entry made, or supposed to be made, by the true 
 
 (c) Ibid., where it appears that it laid down by Fairfax, 7 Edw. 4, 6 b, 
 
 was not till the reign of Henry the though the contrary had been held 
 
 eighth that real actions began to give in the time of Edward the third and 
 
 place to ejectments, though the prac- Richard the second. The courts at 
 
 tice of applying ejectments occasion- law seem to have adopted this new 
 
 ally to the trial of titles, began as doctrine in emulation of the practice 
 
 early as Henry the seventh. Et vide of the courts of equity, which obliged 
 
 3 Bl Com. 201. the ejector to make specific restitu- 
 
 (/) So adjudged, in the fourteenth tion. See 3 Bl. Com. 200 ; Reeves's 
 
 year of Henry the seventh; and the Hist. Eng. L. vol. iii. p. 390; vol. iv. 
 
 same doctrine had been previously p. 165; and 1 A. & E. 751, (n.) 
 
 I 
 
 •)
 
 484 BOOK V. — OF CIVIL INJURIES. 
 
 claimant, on the lands in dispute for the purpose of making 
 the pretended lease, (it being held that a person out of pos- 
 session could not lawfully convey title to another (g),) the 
 fiction was incapable of being applied, except where such 
 claimant had a right of entry ; the effect of which excep- 
 tion was, that though real actions were in general supplanted 
 by ejectment soon after its introduction, yet recourse was 
 still necessarily had to the former kind of remedy in some 
 particular instances. The principal of these were the case 
 where a woman claimed dower; or where the ouster, which 
 was the subject of complaint, had taken place by way of 
 abatement, intrusion, or disseisin, and had been followed 
 by a descent cast, or a lapse of twenty years without entry 
 made ; or where it had taken place by way of discontinu- 
 ance; in the first of which cases it is to be observed, that 
 there never had been any right of entry — the injury being 
 a species of deforcement, as already explained ; and in the 
 three last, viz. the descent cast, the non-entry for twenty 
 years, and the discontinuance, the right of entry which had 
 once existed was at an end (h). 
 
 And such continued to be the state of the law with re- 
 spect to the remedy upon ouster of land, during the long 
 period that elapsed between the time of Henry the eighth 
 and that of William the fourth ; but in the latter reign, the 
 attention of the legislature having been particularly called 
 to the improvement of our legal institutions, and among 
 
 (g) To convey a title to another, to real actions, is purposely con- 
 when the grantor is not in possession densed to the highest degree con- 
 of the land, falls under the legal of- sistent with clearness of exposition, 
 fence of maintenance ; and indeed What Blackstone has written on this 
 " it was doubted at first," says Black- subject is much more copious, and 
 stone, "whether this occasional pos- exhibits a learning and ability not 
 " session in ejectment," taken mere- surpassed, perhaps, in any part of 
 ly for the purpose of conveying the his Commentaries ; but the recent 
 title, " excused the lessor from the changes of the law have almost an- 
 " legal guilt of maintenance." — 3 nibilated the value of that part of 
 Bl. Com. 201. his labours. Vide Bl. Com. bk. iii. 
 
 (h) The account above given of c. 10. 
 the former state of the law relating
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 48o 
 
 the rest to those which related to real property, it was 
 deemed expedient, as regards the three last cases of ouster 
 above enumerated, to place the law upon a different basis. 
 For it seemed unjust to the true owner of land, from whom 
 the possession was withheld, to allow his right of entry to 
 be defeated by such circumstances as those of descent cast 
 and discontinuance; and inexpedient on the other hand to 
 allow him any remedy whatever, after he had neglected to 
 vindicate his right for more than twenty years, the period 
 to which the proceeding by entry, and consequently by 
 ejectment, had already been long confined. It appeared 
 desirable, too, to expunge real actions in general from our 
 list of remedies, as the greater part of them had been lat- 
 terly found to be mere instruments of mischief in the hands 
 of unprincipled practitioners, who employed them " to de- 
 " fraud persons in a low condition of life of their substance, 
 " under pretence of recovering for them large estates, to 
 " which they had no colour of title" (i). Under the in- 
 fluence of these views (suggested by the Real Property 
 Commissioners, to whose labours we have before had occa- 
 sion to refer), an act was passed in the year 1833 (3 & 4 
 Will. IV. c. 27), containing inter alia the following pro- 
 visions — that no descent cast or discontinuance happening 
 after 31st Dec. 1833, should toll or defeat any right of 
 entry, or action for the recovery of land — that except in 
 certain cases of disability therein specified, no entry should 
 be made or action brought to recover land, but within 
 twenty years after the right accrued — and that no action, 
 real or mixed, except writ of right of dower, dower vnde 
 nihil habet, quare impedit, or ejectment, should be brought 
 after 31st Dec. 1834, with a saving only of some particular 
 cases in which the right to bring an action of this descrip- 
 tion was preserved for a few years longer. 
 
 We may now advert to the present modes of remedy in 
 the case of ouster, and, first, in the case of land, or here- 
 
 (i) First Report of Real Property Commissioners, p. 42.
 
 486 
 
 BOOK V. OF CIVIL INJURIES. 
 
 ditaments corporeal. The only proper remedy here, is by 
 way of specific recovery; a mere action for damages, though 
 it will also lie, being in general obviously inadequate to the 
 nature of the injury ; and the only modes of obtaining a 
 specific recovery, which are generally applicable, are those 
 of entry or ejectment; (that is an action newly modelled 
 upon the antient ejectment, discarding its fictions, but re- 
 taining its character in substance, and its name (j) ) — there 
 being, however, besides these, the two actions of dower 
 formerly enumerated, by which redress is given for one par- 
 ticular species of deforcement (k). 
 
 Of entry, enough has been already said. As to eject- 
 ment, it is to be remarked, that it lies (as may be collected 
 from preceding matter) wherever there exists a right of 
 entry in the claimant; which indeed comprises, since the 
 alterations introduced by the above-mentioned statute of 
 3 & 4 Will. IV. c. 27, almost every case in which there is 
 any right whatever to recover land, whatever may be the 
 nature of the title or of the ouster sustained (I). On the 
 
 (j) See the alterations made in 
 the action of ejectment by 15 & 16 
 Vict. c. 76, s. 168 et seq. 
 
 ('i) There are some particular 
 cases of ouster for which particular 
 remedies are provided, besides those 
 by action. In the case of a forcihle 
 entry and ouster (vide sup. p. 339), 
 the statutes against forcible entries 
 and detainers give the power to jus- 
 tices of the peace to restore posses- 
 sion. In cases between landlord and 
 tenant, where half-a year's rent is in 
 arrear, and the tenant has deserted 
 the premises and left the same un- 
 cultivated or unoccupied, the stats. 
 11 Geo. 2, c. 19, s. 16 (see Queen v. 
 Sewell, 8 Q. B. 161), and 57 Geo. 
 3, c. 52, authorize a proceeding be- 
 fore two justices of peace to obtain 
 restitution. By 59 Geo. 3, c. 12, ss. 
 17, 24, 25, paupers intruding into 
 
 parish property may also be dispos- 
 sessed by warrant of two justices of 
 the peace ; by 1 & 2 Vict. c. 74, a 
 method of proceeding before two 
 justices in petty sessions to obtain 
 possession, is also provided for land- 
 lords in certain cases of holding over 
 by tenants, when the rent does not 
 exceed 20/. And by 9 & 10 Vict. c. 
 95, s. 122, possession of land or cor- 
 poreal hereditaments in the case of 
 landlord and tenant, where the latter 
 holds over after the expiration of his 
 interest, and where the value or rent 
 does not exceed 50/. per annum, may 
 be recovered by plaint in the county 
 courts established by that act. See 
 Banks v. Rebbeck, 2 L., M. & P. 
 452. 
 
 (/) It lies between tenants in com- 
 mon, coparceners, or joint tenants, 
 upon an actual ouster of one by the
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 487 
 
 other hand, an ejectment cannot, as we have seen, be 
 maintained where there is no right of entry ; and therefore 
 it will not lie for dower, nor (in general) upon an ouster 
 of any hereditaments incorporeal ; though in the particular 
 case of an ouster of tithes it is otherwise ; for that form of 
 action is given [for tithes in the hands of lay appropriators, 
 by the express purview of the statute of 32 Hen. VIII. 
 c. 7 ; which doctrine has since been extended by analogy 
 to tithes in the hands of the clergy.] 
 
 As to the two actions of dower, which (as we have seen) 
 are the remedies for the particular case of a widow ousted 
 of her dower, they are both of the class of real actions (m). 
 The first of them, the writ of right of dower, (which was 
 one of the varieties of the writ of right proper (n) ), has 
 been at all times of rare occurrence, being adopted only in 
 the very particular predicament of the widow's having been 
 endowed of parcel and being deforced of the residue, lying- 
 in the same town, by the wrong of the same tenant. It is 
 the other species of dower, uncle nihil liabet, which we com- 
 monly understand when an action of dower generally is 
 mentioned, for of this some instances occasionally, though 
 very rarely, occur (o), while the kind first mentioned is ab- 
 solutely unknown in modern practice. Dower uncle nihil 
 habet, though not a writ of right proper, was one of the 
 droitural division, being founded not on the possession, but 
 the right of property. It must be brought by the widow, 
 as demandant, against the tenant of the freehold, that is, 
 the heir or his alienee (/>); and its effect is to enable the 
 former to recover from the latter the seisin of a third part 
 of the tenements in demand, to be set forth to her in seve- 
 ralty by metes and bounds, together with damages and 
 
 other. Co. Litt. 199b; Doe b. Hind, (n) 3 Bl. Com. 183. 
 11 East, 49. So one of several ten- (o) See a recent case (1849), Gar- 
 ants in common, &c. may bring eject- rard, dem. Tuck, ten., 8 C. B. 231. 
 ment for his share against a stranger. (p) Com. Dig. Pleader, 2 Y. 15; 
 Roe v. Lonsdale, 12 East, 39. 2 Saund. by Wms. 43(a). 
 (to) Co. Litt. 31 a.
 
 488 BOOK V. OF CIVIL INJURIES. 
 
 costs (q). That it has fallen so much into disuse, is attri- 
 butable to the circumstance that the Court of Chancery 
 exercises a concurrent jurisdiction with the courts of com- 
 mon law, where the object is to obtain an assignment of 
 dower, and the title of the dowress is not in dispute (r). 
 As to the particular forms of proceeding, whether in eject- 
 ment or dower, — that subject must be postponed till we 
 arrive at a subsequent part of this volume, where it is 
 intended to treat in detail of the course of these and other 
 actions (s). 
 
 With respect to the remedy upon ouster of hereditaments 
 incorporeal, such as commons, advovvsons and the like, 
 these also, it is said (t), may be claimed in the action of 
 dower, supposing the claimant to be a dowress, and tithes 
 may be recovered (as we have seen) in ejectment, and a 
 next presentation (as we shall see hereafter; in an action of 
 quare impedit. But, subject to such particular exceptions, 
 there is in general, since the abolition of the mass of real 
 actions, no remedy for specific recovery of property of this 
 description; but the party injured may resort to the per- 
 sonal action of trespass on the case, in which he recovers 
 such damages as he may have sustained by the invasion of 
 his right (?<). And this in general amounts to as complete 
 a vindication of it as if he had obtained judgment for its 
 specific recovery. 
 
 2. Having considered the injury of ouster, we now arrive 
 at that of Trespass, by which is here intended a trespass 
 committed in respect of another man's land, by entry on 
 the same without lawful authority, which, as distinguished 
 from trespass to his person or his goods, is called trespass 
 quare clausum f regit Jp). [For the right of meum et tuum, 
 
 (q) 2 Saund. by Wins. 44(e). By (s) Vide post. bk. v. c. 11. 
 
 3 & 4 Will. 4, c. 27, s. 41, arrears of (t) Rose. Real. Actions, 40. 
 
 dower cannot be recovered for more (m) See Challenor v. Thomas, 
 
 than the last six years. Yelv. 143. 
 
 (?•) Rose. Real Actions, 40 ; Chit. (v) As to the definition of tres- 
 
 Gen. Pr. vol. i. p. 3S0; vol. ii. p. pass in general, vide sun. p. 453. 
 420.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 489 
 
 [or property in lands, being once established, it follows, as 
 a necessary consequence, that this right must be exclusive, 
 that is, that the owner may retain to himself the sole use 
 and occupation of his soil ; every entry therefore thereon, 
 without the owner's leave, and especially if contrary to his 
 express order, is a transgression,] and being in the nature 
 of an immediate and forcible injury thereto, a trespass. 
 [The Roman laws indeed seem to have made a direct pro- 
 hibition necessary, in order to constitute this injury. " Qui 
 alienum fundum ingreditur, potest a domino, si is prceviderct, 
 prohiberi ne ingrediatur{x)." But the law of England, 
 justly considering that much inconvenience may happen to 
 the owner, before he has an opportunity to forbid the entry, 
 has carried the point much farther, and has treated every 
 entry upon another's lands (unless by the owner's leave, or 
 in some very particular cases), as an injury or wrong, for 
 satisfaction of which an action of trespass will lie] to reco- 
 ver such damages as a jury may think proper to assess (g); 
 and this injury is called trespass quare claitsum f regit (z), or 
 trespass for breaking a man's close, because [every man's 
 land is, in the eye of the law, inclosed and set apart from 
 his neighbour's : and that either by a visible and material 
 fence, as one field is divided from another by a hedge; or 
 by an invisible boundary, existing only in the contemplation 
 of the law, as when one man's land adjoins to another's in 
 the same field.] 
 
 One must have an actual possession (a) by entry, to be 
 
 (.1) Inst. 2, 1, 12. of trespass (now disused), command- 
 
 ((/) In case of the offence called ing the defendant to show qxuue clait- 
 
 forcible entry, (vide sup. p. 389,) an sum querentis fregit. 
 
 action will also lie by statute to re- («) 2 Roll. Abr. 553; Wheeler v. 
 
 cover treble damages. But this ap- Montefiori, 2 Q. B. 133. Blackstone 
 
 plies only to a degree of force calcu- says, (vol. iii. p. 210,) " that there 
 
 lated to excite fear; (R. v. Smith, 5 " must be a property, either abso- 
 
 Car. & P. 201), and a proceeding un- " lute or temporary, in the soil, and 
 
 der the statutes of forcible entry is " actual possession by entry." It is 
 
 not very usual. clear, however, that he who has any 
 
 (s) This species of action is so exclusive possession may maintain 
 
 called from the language of the writ the action, though he has no other
 
 490 BOOK V. — OF CIVIL INJURIES. 
 
 able to maintain an action of trespass quare clausum f regit ; 
 and [before such entry and possession one cannot maintain 
 this action, though he hath the freehold in law (b). And 
 therefore an heir, before entry (c), cannot have his action 
 against an abator ; and though a disseisee might have it 
 against the disseisor for the injury done by the disseisin 
 itself, at which time the plaintiff was seised of the land, yet 
 he cannot have it for any act done after the disseisin, until 
 he hath gained possession by re-entry : but then he may 
 well maintain it for the intermediate damage done; for after 
 his re-entry, the law, by a kind of jus post-liminii, supposes 
 the freehold to have long continued in him(rf). Neither, 
 by the common law, in case of an intrusion or deforcement, 
 could the party kept out of possession sue the wrongdoer 
 by a mode of redress, which was calculated merely for in- 
 juries committed on the land while in the possession of the 
 owner. But now by the statute 6 Ann. c. 18, if a guardian 
 or trustee for any infant, a husband seised jure uxoris, or 
 a person having any estate or interest determinable upon a 
 life or lives, shall, after the determination of their respective 
 interests, hold over and continue in possession of the lands 
 or tenements without the consent of the person entitled 
 thereto, they are adjudged to be trespassers (e).] 
 
 Where there is an actual possession, this action may be 
 maintained, even though the possession be of the vesture 
 and herbage only(y), or of a crop growing on the land (g); 
 and trespass may be maintained against a wrong-doer, even 
 where the possession of the plaintiff is itself a wrongful one, 
 as in the case of a tenancy at sufferance (Ji). 
 
 property or interest. Lambert v. visions in the case of holding ever, 
 
 Stroother, Willes, 221 ; Catteris v. sup. vol. i. p. 282. 
 Cowper, 4 Taunt. 547 ; Com. Dig. (/) Dy. 285 (ft); 2 Roll. Abr. 549. 
 
 Trespass. (g) Per Ld. Ellenborough, Crosby 
 
 (ft) 2 Roll. Abr. 553. As to free- v. Wadsworth, 6 East, G09. Vide 
 
 hold in law, vide sup. vol. i. p. 408. Carrington v. Roots, 2 Mee. & W. 
 
 (r) 2 Roll. Abr. 553. 248. 
 
 (rf) 11 Rep. 5. (h) 2 Roll. Abr. 551 ; Graham v. 
 
 (e) See also other legislative pro- Peat, 1 East, 244.
 
 CHAP. VIII.— OF THOSE COGNIZABLE AT COMMON LAW. 491 
 
 [A man is answerable for not only his own trespass, but 
 that of his cattle also ; for if by his negligent keeping they 
 stray upon the land of another (and much more if he per- 
 mits or drives them on),] and they there tread down his 
 neighbour's herbage, or spoil his corn or his trees, [this is 
 a trespass for which the owner must answer in damages. 
 And the law gives the party injured a double remedy in 
 this case ; by permitting him to distrein the cattle thus 
 damage feasant, or doing damage, till the owner shall make 
 him satisfaction (i); or else by leaving him to the common 
 remedy, in foro contentioso, by action.] 
 
 In some cases a trespass quare clausum fregit, by entry 
 on another's land or house, is justifiable ; [as if a man 
 comes thither to demand or pay money there payable ; or 
 to execute in a legal manner the process of the law ;] or 
 by the licence of the plaintiff himself. [Also a man may 
 justify entering into an inn or public house, without the 
 leave of the owner first specially asked ; because when a 
 man professes the keeping of such inn or public house, he 
 thereby gives a general licence to any person to enter his 
 doors. So a landlord may justify entering to distrein for 
 rent, and a reversioner to see if any waste be committed 
 on the estate, for the apparent necessity of the thing (/);] 
 and it has been held that [the common law warrants the 
 hunting of ravenous beasts of prey, as badgers and foxes, 
 in another man's land,] if no greater damage be done than 
 is necessary, [because the destroying such creatures is said 
 to be profitable to the public (k). But in cases where a 
 man misdemeans himself, or makes an ill use of the autho- 
 rity with which the law intrusts him, he shall be accounted 
 
 (i) As to this, vide sup. p. 347. Houghton, 1 H. Bl. 51. 
 
 (_/') Blackstone notices also, and (k) Geush v. Mynns, Cro. Jac. 321 ; 
 
 apparently holds, the opinion, that Gundry v. Feltham, 1 T. R. 334. 
 
 by the common law of England the But see Earl of Essex v. Capel, 
 
 poor are allowed to enter on a man's coram Lord Ellenborough, Hertford 
 
 ground and glean after harvest. But assizes, a.d. 1809, Chitty's Game 
 
 it has been since his time decided Law, 31. 
 that no such right exists. Steel t'.
 
 492 BOOK V. — OF CIVIL INJURIES. 
 
 [a trespasser ah initio (I); as if one comes into a tavern, 
 and will not go out in a reasonable time, but tarries there 
 all night, contrary to the inclinations of the owner, this 
 wrongful act shall affect and have relation back even to his 
 first entry, and make the whole a trespass (m). But a bare 
 non-feasance, as not paying for the wine he calls for, will 
 not make him a trespasser, for this is only a breach of con- 
 tract.] In like manner [if a landlord distreined for rent, 
 and wilfully killed the distress, this by the common law 
 made him a trespasser ah initio (n) ; and so indeed would 
 any other irregularity have done, till the 11 Geo. II. c. 19, 
 which enacts, that no subsequent irregularity of the laud- 
 lord should make his first entry a trespass, but the party 
 injured shall have a special action of trespass or on the 
 case for the real specific injury sustained, unless tender of 
 amends hath been made (o).] 
 
 A man may also justify in an action of trespass on other 
 grounds ; as by reason of a right of way, a right of com- 
 mon, or the like, or [on account of the freehold and right 
 of entry being in himself; and this last defence brings the 
 title of the estate in question.] This is, therefore, one of 
 the ways employed to try title in cases of ouster, [though 
 it is not so usual as that by ejectment, because that not 
 only gives damages for the ejection, but also possession of 
 the land ; whereas in trespass, which is merely a personal 
 suit, the right can be only ascertained, but no possession 
 delivered; nothing being recovered but damages for the 
 wrong committed.] 
 
 *- 3. We are next to consider the injury of Nuisance. [Nui- 
 sance, nocumentum, or annoyance, signifies any thing that 
 woiketh hurt, inconvenience, or damage. And nuisances 
 are of two kinds, public or common nuisances, which affect 
 the public, and are an annoyance to all the queen's sub- 
 jects, for which reason we must refer them to the class of 
 
 (/) 8 Rep. 146 ; Finch, L. 47 ; (n) Finch, L. 47. 
 
 Bagshawe v. Goward, Cro. Jac. 148. («) Vide sup. p. 353 in notis. 
 
 (m) 2 Roll. Abr. 561.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 493 
 
 [public wrongs or crimes (p) ; and private nuisances, which 
 are the objects of our present consideration, and may be 
 denned, any thing done to the hurt or annoyance of the 
 lands, tenements, or hereditaments of another (7),] and not 
 amounting to a trespass if). [We will therefore first mark 
 out the several kinds of nuisances, and then their respective 
 remedies. 
 
 First, as to corporeal hereditaments. If a man builds 
 his house so close to mine, that his roof overhangs my roof, 
 and the water flows off his roof upon mine, this is a nui- 
 sance, for which an action will lie (s).] And the case is 
 the same if the boughs of his tree are allowed to grow, so 
 as to overhang my land, which they had not been accus- 
 tomed to do (t). [Also, if a person keeps his hogs, or other 
 noisome animals, so near the house of another,] previously 
 built and inhabited (u), [that the stench of them incom- 
 modes him, and makes the air unwholesome,] this is a 
 [nuisance, as it tends to deprive him of the use and benefit 
 of his house (x). A like injury is, if one's neighbour sets 
 up and exercises any offensive trade, as a tanner's, a tallow 
 chandler's, or the like; for though these are lawful and 
 necessary trades, yet they should be exercised in remote 
 places; for the rule is " sic utere tuo, at aJienum non Icedas;" 
 this, therefore, is an actionable nuisance (3/).] And the case 
 is the same if a man, by carelessness in excavating his own 
 ground, causes the fall of a house erected on land adjoin- 
 ing (z). [But depriving one of a mere matter of pleasure, 
 
 (/)) Vide sup. pp. 336, 456 ; et it is damnum absque injuria. 1 
 
 post, bk. vi. c. 12. Smith's Leading Cases, 131. ; 
 
 ((/) F. N. 15. 188. (j) Aldred's case, 9 Rep. 58; R. 
 
 ()•) The definition, it is conceived, v. White, 1 Burr. 337. 
 must be so qualified, both for the (u) Morley v. Pragnel, Cro. Car. 
 
 sake of accuracy and of clearness. 510. 
 
 (s) F. N. B. 184. (:) Dodd v. Holme, 1 Ad. & El. 
 
 (0 Norris v. Baker, 1 Roll. Rep. 493; et vide Wyatt v. Harrison, 3 
 
 393 ; Lodie v. Arnold, 2 Salk. 458. B. & Adol. 876 ; Humphries v. 
 
 (u) This is a necessary qualifica- Brogden, 12 Q. B. 739; Smith v. 
 
 tion ; for if I build my house near Kenrick, 7 C. B. 515. 
 his hog-sty, the case is altered, and
 
 494 BOOK V. — OF CIVIL INJURIES. 
 
 [as of a fine prospect, by building a wall or the like,] or 
 opening a window upon a neighbour, whereby his privacy 
 is disturbed (a), [this, as it abridges nothing really conve- 
 nient or necessary, is no injury to the sufferer, and is there- 
 fore not an actionable nuisance (b). J The injuries that have 
 been specified chiefly concerns houses. As to lands, we 
 may remark, that [if one erects a smelting-house for lead 
 so near the land of another, that the vapour and smoke 
 kills his corn and grass, and damages his cattle therein, 
 this is held to be a nuisance (c).] And upon the same prin- 
 ciple it may be laid down generally, [that if one does any 
 other act in itself lawful, which yet being done in that place 
 necessarily tends to the damage of another's land, it is a 
 nuisance, for it is incumbent on him to find some other 
 place to do that act, where it will be less offensive. So 
 also, if my neighbour ought to scour a ditch and does not, 
 whereby my land is overflowed, this is an actionable nui- 
 sance (d).] 
 
 Next, as to incorporeal hereditaments (e), the principle 
 of the law is the same. Thus, [it is a nuisance to stop or 
 divert water that ought to run to another's meadow or 
 mill (/) ;] or [if I have way, annexed to my estate, across 
 another's land, and he obstructs me in the use of it, either 
 by totally stopping it, or putting logs across it, or plough- 
 ing over it, it is a nuisance ; for, in the first case, I cannot 
 enjoy my right at all ; and in the latter, I cannot enjoy it 
 so commodiously as I ought (^7). Also, if I am entitled to 
 hold a fair or market, and another person sets up a fair or 
 market so near mine that he does me a prejudice, it is a 
 nuisance to the freehold which I have in my market or 
 fair (h). But in order to make this out to be a nuisance, it 
 
 (n) Chandler v. Thompson, 3 (e) As to these, vide sup. vol. i. 
 
 Camp. 82. p. 623. 
 
 (h) 9 Kep. 58. (/) F. N. B. 184. 
 
 (r) 1 Roll. Abr. 89. (g) F. N. B. 183. 
 
 (</) F. N. B. 184. As to the duty (h) F. N. B. 184 ; 2 Roll. Abr. 
 
 of the surveyor of the highways in 140. 
 this behalf, vide sup. p. 225, n. («').
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 495 
 
 [is necessary, 1. That my market or fair be the elder, other- 
 wise the nuisance lies at my own door. 2. That the market 
 be erected within the third part of twenty miles from mine. 
 For Sir M. Hale (i) construes the dieta, or reasonable day's 
 journey mentioned by Bracton(/e), to be twenty miles, as 
 indeed it is usually understood, not only in our own law(Z), 
 but also in the civil (m), from which we probably borrowed 
 it. So that if the new market be not within seven miles of 
 the old one, it is no nuisance, for it is held reasonable that 
 every man should have a market within one third of a 
 day's journey from his own home ; that the day being- 
 divided into three parts, he may spend one part in going, 
 another in returning, and the third in transacting his neces- 
 sary business there. If such market or fair be on the same 
 day with mine, it is prima facie a nuisance to mine, and 
 there needs no proof of it, but the law will intend it to be 
 so : but if it be on any other day, it may be a nuisance, 
 though whether it is so or not, cannot be intended or pre- 
 sumed, but I must make proof of it to the jury. If a ferry 
 is erected on a river, so near another antient ferry as to 
 draw away its custom, it is a nuisance to the owner of the 
 old one (n). For where there is a ferry by prescription, the 
 owner is bound to keep it always in repair and readiness 
 for the ease of all the queen's subjects, otherwise he may 
 be grievously amerced (o). It would be therefore extremely 
 hard if a new ferry w r ere suffered to share his profits, which 
 does not also share his burthen. But where the reason 
 ceases, the law also ceases with it. Therefore it has no 
 nuisance to erect a mill so near to mine, as to draw away 
 the custom, unless the miller also intercepts the water. 
 Neither is it a nuisance to set up any trade or a school in 
 neighbourhood or rivalship with another • for by such emu- 
 
 (i) On F. N. B. 184. see North and South Shields Ferry 
 
 (A.) L. 4, c. 46. Company v. Barker, 2 Exch. 136 ; 
 
 (/) 2 Inst. 567. Blacketerv. Gillet, 1 L. M. & P. 88. 
 
 (m) Ff. 2, 11, 1. (<>) 2 Roll. Abr. 140. 
 (t?) As to disturbance of ferries,
 
 496 BOOK V. — OF CIVIL INJURIES. 
 
 [lation the public are like to be gainers ; and if the new mill 
 or school occasion a damage to the old one, it is damnum 
 absque injuria (p).] 
 
 It remains only to state the remedies which the law has 
 given for this injury of nuisance. And here, without entering 
 into the jurisdiction which a court of equity exercises by 
 way of injunction to stay nuisances or prevent their farther 
 progress (a subject which does not properly belong to the 
 present place (q) ), or the remedy by the act of the party in 
 abating them (a subject to which we have before sufficiently 
 adverted (r) ), we shall only notice the remedy by action or 
 suit at law. This is an action of trespass on the case ; in 
 which, however, the party injured [can only recover a satis- 
 faction in damages for the injury sustained, but cannot 
 thereby abate the nuisance. Indeed every continuance of a 
 nuisance is held to be a fresh one (s) ; and therefore a fresh 
 action will lie, and very exemplary damages will probably 
 be given, if after one verdict against him the defendant has 
 the hardiness to continue it (t).~\ <+■ 
 
 4. The fourth subject for consideration is Waste. This 
 is spoil and destruction done, or allowed to be done, to 
 houses, woods, lands, or other corporeal hereditaments, by 
 the tenant thereof during the continuance of his tenancy (u), 
 [which the common law expresses very significantly by the 
 word vastum ; and this vastum or waste is either voluntary 
 or permissive,] the one a matter of commission, as by pulling 
 down a house, the other of omission only, as by suffering- 
 it to fall by want of necessary reparations. [Whatever 
 does a lasting damage to the freehold or inheritance is 
 waste. Therefore the removing wainscot, floors, or other 
 
 (p) Hale on F. N. B. 184. the actual removal of the nuisance 
 
 (</) Vide post, bk. v. c. 14. might be effected, the assise of nui- 
 
 ()•) Vide sup. p. 340. sauce and the writ of quod permittat 
 
 (s) 2 Leon. pi. 12!) ; Beswick v. prostemere ; as to which, see 3 Bla. 
 
 Cunden, Cro. Eliz. 402 ; Thompson Com. 220. 
 
 v. Gibson, 7 M. & W. 456. (u) Co. Litt. 53 ; 2 Bla. Com. 
 
 (t) Among the real actions now 281 ; 3 Bla. Com. 223. 
 
 abolished, there were two by which
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 497 
 
 [things once fixed to the freehold of a house, is,] generally 
 speaking, waste; though it is held, by way of exception 
 from the ordinary rule, that a particular tenant, who has 
 made erections for the purposes of trade, or has put up 
 ornamental fixtures, may lawfully remove them (x), [If a 
 house be destroyed by tempest, lightning, or the like, 
 which is the act of Providence, it is no waste ; but other- 
 wise if the house be burned by the carelessness or "negligence 
 of the lessee; though now, by the statute 6 Ann. c. 31, 
 continued by 10 Anne. c. 14, s. 1,] and 14 Geo. III. c. 78, 
 no action will lie against a person in whose house, chamber 
 or building, or on whose estate any fire shall accidentally 
 begin (y). [But in both these cases, a tenant bound by 
 covenant or other express contract to keep the house in 
 repair, is compellable to rebuild, unless the contract was 
 made expressly subject to exception in the event of such 
 inevitable accident.] Waste may also [be committed in 
 ponds, dove-houses, warrens, and the like, by so reducing 
 the number of the creatures therein, that there will not be 
 sufficient for the reversioner when he comes to the inhe- 
 ritance (c). Timber also is part of the inheritance (a). 
 Such are oak, ash, and elm in all places (&) ; and in some 
 particular counties, by local custom, where other trees are 
 generally used for building, they are for that reason con- 
 sidered as timber ; and to cut down such trees, or top 
 them, or do any other act whereby the timber may decay, 
 is waste (c). But underwood the tenant may cut down at 
 any seasonable time that he pleases (<:/), and may take suffi- 
 cient estovers (e), of common right, unless restrained (which 
 
 (i) Vide sup. vol. ii. p. 218. (u) 4 Rep. 62. 
 
 (i/) See Turbervill v. Stamp, 1 (6) As to u-itlows, see Phillips i\ 
 Comyn, 31 ; 1 Salk. 13; Vaughanw. Smith, 14 Mee. & W. 589. As to 
 Menlove, 3 Bing. N. C. 468 ; Lord beech trees, see Matthews v. Mat- 
 Canterbury v. Attorney-General, 1 thews, 7 C. B. 1018. 
 Ph. 306; Filliter v. Phippard, 11 (c) Co. Litt. 53. 
 Q. B. 347. (d) 2 Roll. Abr. 817. 
 
 (s) Co. Litt. 53. (e) Vide sup. vol. i. p. 24G. 
 
 VOL. III. K K
 
 498 BOOK V. OF CIVIL INJURIES. 
 
 [is usual) by particular covenants or exceptions (/). The 
 conversion of land from one species to another is waste. 
 To convert wood, meadow, or pasture into arable, to turn 
 arable, meadow or pasture into woodland, or to turn 
 arable or woodland into meadow or pasture, are all of 
 them waste (g). For, as Sir Edward Coke observes (h), it 
 not only changes the course of husbandry, but the evidence 
 of the estate, when such a close, which is conveyed and 
 described as pasture, is found to be arable, and e converso. 
 And the same rule is observed, for the same reason, with 
 regard to converting one species of edifice into another, 
 even though it is improved in its value (i). To open the 
 land to search for mines of metal, coal, &c. is waste, for 
 that is a detriment to the inheritance (k), but if the pits or 
 mines were open before, it is no waste for the tenant to 
 continue digging them for his own use (Z), for it is now 
 become the mere annual profit of the land. These three 
 are the general heads of waste, viz. in houses, in timber, 
 and in land ; though, as was before said, whatever tends 
 to the destruction or depreciation of the value of the inhe- 
 ritance is considered by the law as waste.] And, in general, 
 the commission of any act of this tendency is wrongful on 
 the part of the tenant seised of any estate less than the 
 inheritance. But a tenant in fee, whether fee-simple or fee- 
 tail, is not impeachable for waste ; nor is a tenant in tail, 
 even after possibility of issue extinct, because his estate 
 was at its creation an estate of inheritance (m). Nor is a 
 lessee for life or years, if his lease be expressly made, as is 
 sometimes the case, "without impeachment of waste" (n); 
 neither does the law regard any act, by whomsoever com- 
 mitted, as amounting to waste, unless there be some sub- 
 
 (/') Co. Litt. 41. sup. 
 
 (g) Lord Darcy v. Askwith, Hob. (m) Vide vol. i. p. 252. 
 
 296. (n) Even in these cases, however, 
 
 (h) Co. Litt. 53. a court of equity will not permit the 
 
 (i) Cole v. Green, 1 Lev. 309. tenant to destroy the premises, as by 
 
 (h) 5 Rep. 12. pulling down a house, &c. Ashton 
 
 (/) Lord Darcy v. Askwith, ubi v. Ashton, 1 Ves. sen. 264.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 499 
 
 stantial and considerable damage (o) ; and therefore in a 
 case where the damage done was found to be less than 
 40^., judgment was given for the defendant (p). 
 
 [The persons who may be injured by waste are such as 
 have some interest in the estate wasted ;] and therefore no 
 person as expectant heir to an estate in fee simple or fee 
 tail can complain of this injury ; but the tenant in fee 
 simple or tail for the time being may commit whatever 
 waste he pleases. [One species of interest which is injured 
 by waste, is that of a person who has a right of common 
 in the place wasted, especially if it be common of estovers, 
 and the owner of the wood demolishes the whole wood, 
 and thereby destroys all possibility of taking estovers iq),} 
 But the most usual and important interest that is hurt by 
 waste, is that of him who hath the remainder or reversion 
 after a particular estate for life or years in being. Here, if 
 the particular tenant, be it the tenant in dower or by curtesy, 
 or the lessee for life or years, commits any waste, it is a 
 manifest injury to him that is in expectancy, as it tends to 
 dismember the place of its most desirable incidents and 
 ornaments, among which timber and houses may justly be 
 reckoned the principal. [And in this, a parson, vicar, 
 archdeacon, and the like, who are seised, in right of their 
 churches, of any remainder or reversion, are included.] 
 Indeed they may complain as of an injury to the inherit- 
 ance ; [for they in many cases have for the benefit of the 
 church, and of the successor, a fee simple qualified, though 
 they are not so seised in their own right, but jure ecclesice 
 only (r).] 
 
 The form of remedy for this injury is by action of tres- 
 pass on the case against the wrong-doer, to recover such 
 damages as a jury may award; the injury, though direct 
 in its nature, being committed in respect of an intangible 
 
 (o) Doe d. Grubb v. Lord Bur- & Pul. 86. 
 lington, 5 B. & Ad. 507. (?) F. N. B. 59 ; 9 Rep. 112. 
 
 (p) Vide the Governors, &c. of (r) Co. Litt. 341. 
 
 Harrow School v. Alderton, 2 Bos. 
 
 K K. 2
 
 500 BOOK V. OF CIVIL INJURIES. 
 
 hereditament, viz. the plaintiff's reversionary interest, to 
 which the action of trespass would not be appropriate. 
 And besides this action, the Court of Chancery exercises 
 in cases of waste a very important jurisdiction by way of 
 injunction, similar to that already referred to in cases of 
 nuisance. Prior to the provisions of the late statute 3 & 4 
 Will. IV. c. 27, for abolition of real and mixed actions, 
 there was also another remedy at law, in comparison with 
 which, indeed, that by action on the case was but of recent 
 introduction, viz. the mixed action of waste, in which, by 
 the provisions of the Statute of Gloucester, 6 Edw. I. c. 5, 
 the place itself that was wasted might be recovered against 
 the tenant by way of forfeiture for the wrong committed, 
 together with treble damages (r) ; and in aid of which, re- 
 sort might also be had to a writ of estrepement, to prevent 
 the commission of this injury pendente lite(s). But even 
 before the abolition of these two last-mentioned proceedings 
 by the statute above referred to, they had been for the most 
 part supplanted by the personal action of trespass on the 
 case; the action of waste having been subject to this in- 
 convenience, that it could not be maintained, except by the 
 person who had the immediate reversion or remainder in 
 fee or in tail expectant on the estate of the person against 
 whom the action was brought ; whereas an action on the 
 case may be maintained by a person having any immediate 
 interest in expectancy, whether in fee or for life or years(^). 
 
 (j) By our more antient law, waste tesy, for life, or years. It is to be 
 
 was not punishable in any tenant ex- observed, that there was no remedy 
 
 cept guardian in chivalry, tenant in by way of entry, in respect of a for- 
 
 dower and tenant by the curtesy ; feiture of this kind. Co. Litt. 233 b, 
 
 and these were punishable only by 234 a. It would seem therefore that 
 
 way of damages (2 Inst. 146), ex- ejectment is not maintainable, nor, 
 
 cept in the case of a guardian who since the abolition of the action of 
 
 forfeited his wardship by the provi- waste, any remedy by action what- 
 
 sions of the Great Charter (ibid. ever, to recover the land wasted. 
 
 300). But the Statute of Gloucester (s) 3 Bl. Com 225. 
 
 inflicted forfeiture and treble da- (t) Co. Litt. 53 b, 54 a, 218 b; 2 
 
 mages in the case of waste commit- Saund. by Wms. 252, n. (7). 
 ted by tenant in do.\er, by the cur-
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 501 
 
 It is also to be observed with respect to this latter remedy, 
 that it may be had not only against the tenant, but against 
 any stranger by whom an act of waste has been committed ; 
 and that it will lie at the suit of one joint tenant or tenant 
 in common against another who has destroyed the subject 
 of joint or common property (u) ; and that an analogous 
 action on the case, called in this instance an action for di- 
 lapidations (x), may also be maintained by a rector or vicar 
 against his predecessor, or the executors of his predecessor 
 — and this for permissive as well as voluntary waste — it 
 being held that the incumbent of a living is bound to keep 
 the parsonage house and chancel in good and substantial 
 repair, restoring and rebuilding where necessary, according 
 to the original form (y). In what cases, however, an action 
 on the case may in general be maintained in respect of 
 waste of a kind merely permissive, is a subject on which 
 the law is in some degree unsettled (z) ; though where a 
 tenant of any description is under express contract to re- 
 pair, he will of course be liable, either in the case of vo- 
 luntary or permissive waste, to an action founded on such 
 contract. 
 
 5. [Subtraction is the fifth species of injury affecting a 
 man's real property, and happens when any person who 
 owes any suit, duty, custom, or service to another, with- 
 draws or neglects to perform it.] And these consist in 
 general of fealty, suit of court, rent, and customary services. 
 
 Fealty and suit of court are among the conditions upon 
 which the antient lords granted out their lands to their 
 
 («) 1 Chit. Gen. Pr. 272. there cited. That this action, how- 
 
 (x) Vide sup. p. 62. ever, will not lie for permissive waste 
 
 (»/) Wise v. Metcalfe, 10 Barn. & against a tenant at will seems esta- 
 
 Cress. 299 ; Bird v. Smith, 4 B. & Wished. And there is authority for 
 
 Adol. 826 ; Downes v. Craig, 9 Mee. holding the same doctrine as regards 
 
 & W. 166; 1 Saund. 216b, n. (a); a tenant for years. Vide Heme v. 
 
 Bunbury v. Hewson, 3 Exch. 558 ; Benbow, 4 Taunt. 764 ; Jones v. 
 
 Warren v. Lugger, ib. 579. Hill, 7 Taunt. 392; Gibson B.Wells, 
 
 (s) See Harnett v. Maitland, 16 1 N. R. 290; Martin r. Gilham, 7 A. 
 
 Mee. & W. 257, and the authorities & E. 540.
 
 502 BOOK V. OF CIVIL INJURIES, 
 
 feudatories, and consist in the obligation on the part of 
 these tenants to take the oath of fealty (a) to the lord, and 
 attend and follow his courts by serving on juries there; and 
 of the same nature also are such rents as fall under the 
 legal denomination of rent service (b), these being the stated 
 returns due either by antient or modern reservation, from 
 the tenant to his lord, whether in provisions, arms, or the 
 like, or in money; to which almost all rents are now re- 
 duced. And the subtraction or non-observance of [any of 
 these conditions, by neglecting to swear fealty, to do suit, 
 or to render rent, is an injury to the freehold of the lord by 
 diminishing the value of his seignory.] Besides which, 
 there arises, whenever rent becomes due, whatever may be 
 its nature, and whether it is connected with the tenure or 
 not, a debt (c) between the parties ; the non-payment of 
 which is a pecuniary injury independent of the wrong done 
 to the freehold. 
 
 For fealty and suit of court, and in general for all rents, 
 there is the peculiar remedy by disfress, [and it is the only 
 remedy at the common law, for the two first of these.] 
 The nature of a distress has been already explained (d) ; 
 and it may here suffice to remember that it is a taking of 
 [personal chattels out of the possession of the wrong-doer 
 into that of the party injured, to procure a satisfaction for 
 a wrong committed. And for the most part it is provided 
 that distresses be reasonable and moderate, but in the case 
 of fealty and suit of court no distress can be too large (e) ; 
 for be it of what value it will, there is no harm done, as it 
 cannot be sold or made away with, but must be restored 
 immediately on satisfaction made. A distress of this na- 
 ture, that has no bounds with regard to its quantity, and 
 may be repeated from time to time until the stubbornness 
 of the party is conquered, is called a distress infinite.'] 
 
 (a) As to fealty, vide sup. vol. i. (c) As to debt, vide sup. vol. ii. 
 p. 169, &c. ; ii. 387. p. 134. 
 
 (b) As to rent service, vide sup. (d) Vide sup. p. 311. 
 vol. i. p. 648. (e) Finch, L. 285.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 503 
 
 Besides the remedy by distress, the law also formerly 
 provided, for the case of rent in arrear, several kinds of 
 real action, viz. the assise of mort ^ancestor, or novel 
 disseisin, the writ de consuetudinibus et servitiis, the writ 
 of cessavit, and the writ of right sur disclaimer (a). But 
 all such remedies having been long wholly disused, and 
 now abolished by the late statute 3 & 4 Will. IV. c 27, 
 the only actions which now lie for rent are of the personal 
 class. The nature of these will be more particularly ex- 
 plained when we arrive at the consideration of that species 
 of injury which consists of breach of contract. 
 
 As to customary services, the one of most frequent oc- 
 currence is that of [doing suit to another's mill, where the 
 persons resident in a particular place, by usage time out 
 of mind, have been accustomed to grind their corn at a 
 certain mill (&).] If under such circumstances any of them 
 go to another mill and withdraw their suit (their secta, a, 
 sequendo) from the antient mill, this is not only a damage, 
 but an injury to the owner, because this custom might 
 have a very reasonable foundation, [viz. the erection of 
 such mill by the ancestors of the owner, for the conve- 
 nience of the inhabitants, on condition that when erected 
 they shall grind their corn there only.] And for this 
 injury the owner might formerly [have a writ de secta ad 
 molendinum (c), commanding the defendant to do his suit 
 at that mill, or show good cause to the contrary.] In like 
 manner, [the Register {d) informs us that a man may have 
 a writ of secta ad furnum, secta ad torrale, et ad omnia alia 
 hnjusmodi ; for suit done to his public oven or bakehouse, 
 
 (a) See as to these, 3 Bl. Com. vide Harbin v. Green, Hob. 233 
 
 232 ; Iloscoe on Real Actions, 63, Drake v. Wigglesvvorth, Willes, 654 
 
 75, 32, 31. So there were several Vyvyan v. Arthur, 1 B. & C. 410 
 
 real actions to redress the oppresions Richardson v. Walker, 2 B. & C 
 
 of the lord; as the writ ne itijuste 827; Richardson v. Capes, ibid. 841 
 vexes, and writ of mesne. See as to (c) F. N. B. 123. See as to this, 
 
 these, 3 Bl. Com. 234 ; Roscoe on Roscoe on Real Actions, 36. 
 Real Actions, 37, 38. (d) Fol. 153. 
 
 (6) As to this service or custom,
 
 504 BOOK V. — OF CIVIL INJURIES. 
 
 [or to his kiln or malthouse,] or the like. [But besides 
 these special remedies for subtraction to compel the specific 
 performance of the service due, an action on the case will 
 also lie for all of them to repair the party injured in da- 
 mages.] And the former remedies being now abolished by 
 the statute just referred to, the action on the case is now 
 the only means of redress. 
 
 6. [The sixth and last species of real injuries is that 
 of disturbance,] which is the wrongful obstruction of the 
 owner of an incorporeal hereditament, in its exercise or 
 enjoyment; and [we shall consider five sorts of this injury, 
 disturbance of franchises, disturbance of common, disturb- 
 ance of ways, disturbance of tenure, and disturbance of 
 patronage. 
 
 Disturbance of franchises, (e) happens when a man has 
 the franchise of holding a court leet, of keeping a fair or 
 market, of free warren, of taking toll, of seizing waifs or 
 estrays (/), or (in short) any other species of franchise 
 whatsoever, and he is disturbed or incommoded in the 
 lawful exercise thereof. As if another by distress, menaces 
 or persuasions, prevails upon the suitors not to appear at 
 my court, or obstruct the passage to my fair or market, 
 hunts in my free warren, or refuses to pay me the accus- 
 tomed toll, or hinders me from seizing the waif or estray, 
 whereby it escapes or is carried out of my liberty ; in every 
 case of this kind, all which it is impossible here to recite 
 or suggest, there is an injury done to the legal owner ; his 
 property is damnified, and the profits arising from such his 
 franchise are diminished. To remedy which, as the law 
 has given no other action, he is therefore entitled to sue for 
 damages by an action on the case ; or in case of toll may 
 take a distress, if he pleases (g). 
 
 The disturbance of common (h) comes next to be con- 
 
 (e) As to franchises, vide sup. (g) Heddy v. Wheelhouse, Cro. 
 
 vol. i. p. 637. Eliz. 558. 
 
 (/) As to waifs and estrays, vide (/*) As to common, vide sup. vol. 
 
 sup. vol. ii. pp. 53], 532. i. p. 625.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 505 
 
 [sidered — where any act is done by which the right of an- 
 other to his common is incommoded or diminished. This 
 may happen, 1. Where one who hath no right of common 
 puts his cattle into the land, and thereby robs the cattle 
 of the commoners of their respective shares of the pasture. 
 Or if one who hath a right of common puts in cattle which 
 are not commonable (i), as hogs and goats, which amounts 
 to the same inconvenience. But the lord of the soil may 
 by custom or prescription (but not without) put a stranger's 
 cattle into the common (j), and also, by a like prescription 
 for common appurtenant, cattle that are not commonable 
 may be put into the common (&).] In general, however, 
 [if the beasts of a stranger or the uncommonable cattle 
 of a commoner be found upon the land, the lord or any 
 of the commoners may] drive them off, or [distrein them 
 damage feasant (I), or the commoner may bring an action 
 on the case to recover damages,] or the lord an action of 
 trespass. 2. [Another disturbance of common is by sur- 
 charging it, or putting more cattle therein than the pasture 
 and herbage will sustain, or the party hath a right to do, 
 In this case, he that surcharges does an injury to the rest 
 of the owners, by depriving them of their respective por- 
 tions, or at least contracting them into a smaller compass. 
 This injury by surcharging can properly speaking only 
 happen where the common is appendant or appurtenant, 
 and of course limitable by law, or where, when in gross, it 
 is expressly limited and certain; for where a man hath 
 common in gross, sans nombre, or without stint,] as it is 
 more commonly called, [he cannot be a surcharger. How- 
 ever, even where a man is said to have common without 
 stint, still there must be left sufficient for the lord's own 
 beasts (in) ; for the law will not suppose that at the original 
 grant of the common the lord meant to exclude himself. 
 The usual remedies for surcharging the common are either 
 
 (i) As to what are commonable (A) Co. Litt. 122. 
 
 beasts, vide sup. vol. i. p. 626. (/) 9 Rep. 112. 
 
 (j) 1 Roll. Ab. 306. (m) 1 Roll. Ab. 399.
 
 506 BOOK V. — OF CIVIL INJURIES. 
 
 [by distraining so many of the beasts as are above the 
 number allowed, or else by an action of trespass, both 
 which may be had by the lord ; or, lastly, by an action on 
 the case for damages, in which any commoner may be 
 plaintiff,] and that as well against the lord, as against 
 another commoner (n). And, besides these, recourse might 
 formerly be had to a writ of admeasurement of pasture, 
 which is among the real actions now abolished. 3. In 
 addition to the above, [there is another disturbance of 
 common, when the owner of the land, or other person, so 
 incloses or otherwise obstructs it, that the commoner is 
 precluded from enjoying the benefit to which he is by law 
 entitled (o). This may be done either by erecting fences, 
 or by driving the cattle off the land, or by ploughing up 
 the soil of the common (p). Or it may be done by erect- 
 ing a warren therein, and stocking it with rabbits in such 
 quantities that they devour the whole herbage, and thereby 
 destroy the common ;] though, on the other hand, the lord 
 may lawfully erect a warren, provided the rabbits do not 
 increase so as to occasion this inconvenience (q). For each 
 of these injuries the commoner might formerly have not 
 only his action of trespass on the case, but a real action 
 of novel disseisin or quod permittat (r) ; but the latter reme- 
 dies being now abolished, the former is now the only form 
 of action available in such cases, though in certain instances, 
 as where the obstruction is occasioned by a fence or wall, 
 the law allows the commoner to abate, or throw it down(s). 
 
 (n) Freem. 273; 1 Saund. by (q) Bellew v. Langdon, Cro. Eliz. 
 
 Wms. 346, n. (2). 876 ; Hadesden v. Gryssel, Cro. Jac. 
 
 (o) It is to be remembered, bow- 195; Hassard v. Cantrell, Lutw. 108 ; 
 
 ever, that the lord, or other pro- 3 Bl. Com. 237. 
 
 prietor of the waste, may approve, (r) See 3 Bl. Com. 220 ; Roscoe, 
 
 that is, inclose the land, and convert Real Actions, 40. 
 
 it to the uses of husbandry, provided ($) 1 Saund. by Wms. 353 a. The 
 
 he leaves sufficient common to the commoner, however, cannot cut down 
 
 tenants, according to the proportion trees wrongfully planted by the lord, 
 
 of their land. As to this, vide sup. or kill his rabbits destroying the 
 
 vol. i. p. 630. common, or even fill up the coney- 
 
 (p) Leverett v. Townshend, Cro. burrows ; but his remedy is by action 
 
 Eliz. 198. on the case only. Ibid.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 507 
 
 4. In the last place may be noticed the injury of depas- 
 turing forests, commons and open fields with sheep or lambs 
 infected with scab or mange ; for remedy of which it is pro- 
 vided by 38 Geo. III. c. 65, inter alia, that the offender 
 shall be liable to a pecuniary penalty on conviction before 
 a justice of the peace (t). 
 
 [The third species of disturbance, that of ways, is very 
 similar in its nature to the last,] it principally happening 
 when a person who hath a right of way over another's 
 grounds [is obstructed by inclosures or other obstacles, or 
 by ploughing across it, by which means he cannot enjoy 
 his right of way, or at least not in so commodious a manner 
 as he might have done. But as this mode of disturbance 
 in general amounts to the injury of nuisance, which we had 
 occasion to consider in a former place (u), it will not be 
 necessary to dilate upon it under the present head. We 
 shall only add therefore that the remedy is by action on 
 the case. 
 
 4. The fourth species is that of disturbance of tenure, or 
 breaking that connection which subsists between the lord 
 and his tenant, and to which the law pays so high a regard, 
 that it will not suffer it to be wantonly dissolved by the act 
 of a third person. To have an estate well tenanted is an 
 advantage that every landlord must be very sensible of, and 
 therefore the driving away of a tenant from off his estate 
 is an injury of no small consequence. So that if there be 
 a tenant at will of any lands or tenements, and a stranger, 
 either by menaces and threats, or by unlawful distresses, 
 or by fraud and circumvention, or other means, contrives 
 to drive him away, or inveigle him to leave his tenancy, 
 this the law very justly construes to be a wrong and injury 
 to the lord (v), and gives him a reparation in damages 
 against the offender by an action on the case. 
 
 5. The fifth and last species of disturbance, but by far 
 
 (t) As to depasturing diseased («) Vide sup. p. 492. 
 
 sheep on uninclosed land, see also (v) Hal. Anal. c. 40 ; 1 Roll. Ab, 
 
 11 & 12 Vict. c. 107, s. 2. 108.
 
 508 BOOK V. — OF CIVIL INJURIES. 
 
 [the most considerable, is that of disturbance of patronage, 
 which is a hindrance or obstruction of the patron (w) to 
 present his clerk to a benefice. 
 
 This injury was distinguished at common law from 
 another species of injury, called usurpation, which is an 
 absolute ouster or dispossession of the patron, and happens 
 when a stranger that hath no right presenteth a clerk, and 
 he is thereupon admitted and instituted (x) ; in which case 
 of usurpation the patron lost by the common law not only 
 his turn of presenting pro hdc vice, but also the absolute 
 and perpetual inheritance of the advowson, so that he 
 could not present again upon the next avoidance, unless 
 in the meantime he recovered his right by a real action, 
 viz. a writ of right of advowson (y). The reason given for 
 his losing the present turn, and not ejecting the usurper's 
 clerk, was, that the final intent of the law in creating this 
 species of property being to have a fit person to celebrate 
 divine service, it preferred the peace of the church (pro- 
 vided a clerk were once admitted and instituted) to the 
 right of any patron whatever. And the patron also lost 
 the inheritance of his advowson, unless he recovered it in a 
 writ of right, because by such usurpation] and consequent 
 fulness or plenarty (as it was called) of the church, by the 
 act of the usurper, his own possession of the advowson was 
 considered as displaced ; and the law allowed no remedy, 
 either by presentation or possessory action, to a person put 
 out of possession of an hereditament of this description. 
 [The only remedy therefore which the patron had left, was 
 to try the mere right in a writ of right of advowson, which 
 was a peculiar writ of right framed for this special pur- 
 pose, but in every other respect corresponding with other 
 writs of right (z); and if a man recovered therein, he 
 regained the possession of his advowson, and was entitled 
 
 (w) As to patronage, or the right sion and institution, vide sup. p. 29. 
 
 of presentation to benefices, vide (y) 6 Rep. 49. 
 
 sup. p. 27. (s) F. N. B. 30. As to writs of 
 
 (t) Co. Litt. 277. As to admis- right generally, vide sup. p. 17 I .
 
 CHAP. VIII.— OF THOSE COGNIZABLE AT COMMON LAW. 509 
 
 [to present at the next avoidance (a).] Thus stood the 
 common law. 
 
 [But bishops in antient times, either by carelessness or 
 collusion, frequently instituting clerks upon the presenta- 
 tion of usurpers, and thereby defrauding the real patrons 
 of their right of possession, it was in substance enacted by 
 statute Westminster the second, 13 Edw. I. c. 5, s. 2,] that 
 if the possessory action of quare impedit (or another of the 
 same class, called an assise of dar reign presentment (b), and 
 now abolished (c) ) be brought within six months after the 
 avoidance, the patron shall, notwithstanding such usurpa- 
 tion, recover that very presentation ; which gives back to 
 him the seisin of the advowson. [Yet still, if the true 
 patron omitted to bring his action within six months, the 
 seisin was gained by the usurper, and the patron to recover 
 it, was driven to the long and hazardous process of a writ 
 of right. To remedy which, it was farther enacted by sta- 
 tute 7 Ann. c. 18 (d), that no usurpation shall displace the 
 estate or interest of the patron, or turn it to a mere right, 
 but that the true patron may present,] or maintain a quare 
 impedit, [upon the next avoidance, as if no such usurpation 
 had happened. So that the title of usurpation is now much 
 narrowed, and the law stands upon this reasonable founda- 
 tion, — that if a stranger usurps my presentation, and I do 
 not pursue my right within six months, I shall lose that 
 turn without remedy, for the peace of the church, and as 
 a punishment for my own negligence ; but that turn is the 
 only one I shall lose thereby. Usurpation now gains no 
 right to the usurper with regard to any future avoidance, 
 but only to the present vacancy ; it cannot indeed be reme- 
 died after six months are past; but during those six months 
 it is only a species of disturbance.] 
 
 (a) F. N. B. 36. claims title by descent or by pur- 
 
 (b) The assise of darreign present- chase. 3 Bl. Com. 245. 
 
 ment lay only where a man had an (<■) By 3 & 4 Will. 4, c. 27, s. 36. 
 advowson by descent from his ances- (d) As to this statute, see Robin- 
 tors ; but the writ of quare impedit is son v. Marquis of Bristol, 20 L. J. 
 equally remediable whether a man (C. P.) 208.
 
 510 BOOK V. — OF CIVIL INJURIES. 
 
 The above-mentioned remedy by quare impedit is [now 
 the only action used in case of the disturbance of patron- 
 age,] and the course of proceeding in it will hereafter be 
 considered at large in its proper place (e). At present we 
 shall only notice the circumstances by which it is usually 
 preceded. 
 
 [Upon the vacancy of a living the patron, we know, is 
 bound to present within six calendar months (/), otherwise 
 it will lapse to the bishop. But if the presentation be 
 made within that time, the bishop is bound to admit and 
 institute the clerk if found sufficient (g), unless the church 
 be full, or there be notice of any litigation. For if any 
 opposition be intended, it is usual for each party to enter 
 a caveat with the bishop, to prevent his institution of his 
 antagonist's clerk. An institution after a caveat entered 
 is void by the ecclesiastical law; but this the temporal 
 courts pay no regard to, and look upon a caveat as a mere 
 nullity (k). But if two presentations be offered to the 
 bishop upon the same avoidance, the church is then said 
 to become litigious ; and if nothing farther be done, the 
 bishop may suspend the admission of either, and suffer a 
 lapse to incur. Yet if the patron or clerk on either side 
 request him to award a jus jmtronatus, he is bound to do 
 it. A jus pqtronatus is a commission from the bishop, 
 directed usually to his chancellor and others of competent 
 learning, who are to summon a jury of six clergymen and 
 six laymen, to inquire into and examine who is the rightful 
 patron (i); and if upon such inquiry made and certificate 
 thereof returned to the commissioners, he admits and insti- 
 tutes the clerk of that patron whom they return as the true 
 one, the bishop secures himself at all events from being a 
 disturber, whatever proceedings may be had afterwards in 
 the temporal courts. 
 
 (e) Vide post, bk. v. c. 11. By 4 (g) Vide sup. p. 69. 
 
 & 5 Will. 4, c. 39, costs are given (It) Hitching v. Glover, 1 Roll, 
 
 in this as in other actions, which Rep. 191. 
 
 was not formerly the practice. (t) 1 Burn, 24. 
 
 (/) Vide sup. p. 67.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 511 
 
 [The clerk refused by the bishop may also have a remedy 
 against him in the spiritual court, denominated a duplex 
 querela{k) which is a complaint in the nature of an appeal 
 from the ordinary to his next immediate superior, as from 
 a bishop to the archbishop ; and if the superior court ad- 
 judges the cause of refusal to be insufficient, it will grant 
 institution to the appellant. 
 
 Thus far matters may go on in the mere ecclesiastical 
 courts; but in contested presentations they seldom go so 
 far; for upon the first delay or refusal of the bishop to 
 admit his clerk, the patron usually brings his quare imped it 
 for the temporal injury done to his property in disturbing 
 him in his presentation.] For the patron [is always plain- 
 tiff in this action, and not the clerk, as the law supposes 
 the injury to be offered to the former only, by obstructing 
 or refusing the admission of his nominee, and not to the 
 latter, who hath no right in him till institution, and of course 
 can suffer no injury.] But as to the parties against whom 
 the action is to be brought, it is to be observed that all these 
 three persons, the pseudo-patron, his clerk, and the ordinary, 
 may be disturbers of a right of advowson : [the pretended 
 patron by presenting to a church to which he has no right, 
 and thereby making it litigious or disputable ; the clerk by 
 demanding or obtaining institution, which tends to and 
 promotes the same inconvenience ; and the ordinary by 
 refusing to admit the real patron's clerk, or admitting the 
 clerk of the pretender.] And if the delay arises from the 
 bishop alone, [as upon pretence of incapacity or the like, 
 then he only is named as defendant; but if there be another 
 presentation set up, then the pretended patron and his clerk 
 are also joined in the action ; or it may be brought against 
 the patron and his clerk, leaving out the bishop, or against 
 the patron only. But it is most advisable to bring it against 
 all three ; for if the bishop be left out, and the suit be not 
 determined till the six months are past, the bishop is entitled 
 
 (k) Ibid. 160. See Gorhara v. Bishop of Exeter, 15 Q. B. 52, et sup. p. 425.
 
 512 BOOK V. OF CIVIL INJURIES. 
 
 [to present by lapse ; for he is not party to the suit (I) ; but 
 if he be named, no lapse can possibly accrue till the right 
 is determined. If the patron be left out, and the writ be 
 brought only against the bishop and the clerk, the suit is of 
 no effect, and the writ shall abate (m) ; for the right of the 
 patron is the principal question in the cause (n). If the 
 clerk be left out, and has received institution before the 
 action brought (as is sometimes the case,) the patron by 
 this suit may recover his right of patronage, but not the 
 present turn ; for he cannot have judgment to remove the 
 clerk, unless he be made a defendant and party to the suit, 
 to hear what he can allege against it. For which reason 
 it is the safer way to insert all three.] 
 
 Finally, we may remark, that though in a quare impedit 
 the patron only, and not the clerk, is allowed to sue the dis- 
 turber, yet by virtue of several acts of parliament (o), there 
 is one species of presentation in respect of which a remedy to 
 be sought in the temporal courts is put into the hands of 
 the clerks presented, as well as of the owners of the advow- 
 son, that is the presentation to such benefices as belong to 
 Roman Catholic patrons ; which, according to their several 
 counties, are vested and secured to the two universities of 
 Cambridge and Oxford. [And particularly by the statute 
 of 12 Ann. st. 2, c. 14, s. 4, a new method of proceeding is 
 provided, viz., that besides the actions of quare impedit, 
 which the universities as patrons are entitled to bring, they 
 or their clerks may be at liberty to file a bill in equity 
 against any person presenting to such livings and disturbing 
 their right of patronage, or his cestui que trust, or any other 
 person whom they have cause to suspect, in order to compel 
 a discovery of any secret trusts for the benefit of Papists, 
 in evasion of those laws, whereby this right of advowson 
 is vested in these learned bodies ; and also (by the stat. 1 1 
 
 (/) Lancaster v. Lowe, Cro. Jac. (n) 7 Rep. 25. 
 
 93. ( ) St. 3 Jac. 1, c. 5 ; 1W.&M. 
 
 (m) Elvis v. Archbishop of York, c. 26 ; 12 Ann. st. 2, c. 14; 11 Geo. 
 
 Hob. 392. 2, c. 17.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 513 
 
 [Geo. II. c. 17) to compel a discovery whether any grant or 
 conveyance, said to be made of such advowson, were made 
 bona fide to a Protestant purchaser for the benefit of 
 Protestants, and for a full consideration ; without which 
 requisites every such grant and conveyance of any advowson 
 or avoidance is absolutely null and void. This is a par- 
 ticular law, and calculated for a particular purpose, but in 
 no instance but this does the temporal law permit the clerk 
 himself to interfere in recovering a presentation of which 
 he is afterwards to have the advantage.] 
 
 III. We are next to consider the injuries that may be 
 offered to the right of property in things -personal; and 
 this, first, as regards things in possession; next, things in 
 action (p). 
 
 First, the rights of personal property in possession are 
 liable to two species of injuries ; the amotion or deprivation 
 of that possession, and the abuse or damage of the chattels 
 while the possession continues in the legal owner. The 
 former, or deprivation of possession, is also divisible into 
 several branches; [the unlawful taking them away, the 
 unlawful detaining them, though the original taking might 
 be lawful ;] and such tortious acts as subject the owner to 
 the loss of them, though the wrong-doer himself may be 
 guilty neither of caption nor detainer. Our present subject 
 will therefore involve four several heads : — 1, the injury of 
 unlawfully taking chattels from the owner ; 2, that of un- 
 lawfully detaining them from him ; 3, that of depriving him 
 of them by other unlawful means ; 4, that of doing damage 
 to them. 
 
 1. And, first, of an unlawful taking. The nature of this 
 requires no illustration, and our attention therefore is to be 
 chiefly directed to its remedy. [This is, in the first instance, 
 the restitution of the goods themselves, with damages for 
 the loss sustained by such unjust invasion, which is effected 
 
 (p) As to this distinction, vide sup »-- : i. p. 11. 
 VOL. III. L L
 
 514 BOOK V. OF CIVIL INJURIES. 
 
 [by action of replevin, an institution which the Mirror (q) 
 ascribes to Glanvil, chief justice to King Henry the second. 
 This obtains only in one instance of an unlawful taking, 
 that of a wrongful distress (r) ; and this and the action of 
 detinue (of which more will presently be said) are almost 
 the only actions in which the actual specific possession 
 of the identical personal chattel is restored to the proper 
 owner (s).] It is preceded by a [re-delivery of the pledge (0, 
 or thing taken in distress, to the owner, upon his giving 
 security to try the right of the distress, and to restore it if 
 the right be adjudged against hi'm (u) ; after which the dis- 
 trainor may keep it till tender made of sufficient amends, 
 but must then re-deliver it to the owner (v). And formerly, 
 when the party distreined upon intended to dispute the 
 right of the distress, he had no other process by the old 
 common law, than by a writ of replevin, replegiari facias (x); 
 which issued out of Chancery, commanding the sheriff to 
 deliver the distress to the owner, and afterwards to do jus- 
 tice in respect of the matter in dispute in his own county 
 court. But this being a tedious method of proceeding, 
 the beasts or other goods were long detained from the 
 owner, to his great loss and damage (y). For which rea- 
 son the statute of Marlbridge (z) directs that (without suing 
 a writ out of the Chancery) the sheriff immediately, upon 
 plaint to him made, shall proceed to replevy the goods. 
 And, for the greater ease of the parties, it is farther pro- 
 vided by statute 1 P. & M. c. 12(a), that the sheriff" shall 
 make at least four deputies in each county, for the sole 
 
 (</) C. 2, s. 6. goods is conditional only, vide post, 
 
 (»•) As to distress, vide sup. p. p. 519. 
 
 340. In practice replevin is applied (t) Vide sup. p. 352. 
 
 to no other case than that of unlaw- (») Co. Litt. 145. 
 
 ful distress; but it is said in the (v) 8 Rep. 117. 
 
 books to be applicable to others. (j) F. N. B. 68. 
 
 Vin. Abr. Replevin (B.), pi. 2; Co. (y) 2 Inst. 139. 
 
 Litt. 145 b ; Com. Dig. Action, (s) 52 Hen. 3, c. 21. 
 
 (M. 6). See Galloway v. Bird, 4 (a) As to the sheriff's authority 
 
 Bing. 300. under this act, vide Mounsey v. 
 
 (s) In detinue, indeed, the judg- Dawson, 6 A. & E. 752. 
 ment that the plaintiff rprover the
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 515 
 
 [purpose of making replevins. Upon application therefore 
 either to the sheriff or one of his said deputies, security is 
 to be given, in pursuance of the statute of Westminster the 
 second, 13 Edw. I. c. 2, first, that the party replevying will 
 pursue his action against the distreinor, for which purpose 
 he is to put mplegios de prosequendo, or pledges to prose- 
 cute ; and, secondly, that if the right be determined against 
 him, he will return the distress again; for which purpose he 
 is also bound to find plegios de retorno habendo. Besides 
 these pledges, the sufficiency of which is discretionary and 
 at the peril of the sheriff, the statute 11 Geo. II. c. 19, re- 
 quires that the officer granting a replevin on a distress for 
 rent, shall take a bond, with two sureties (b), in a sum 
 of double the value of the goods distreined, conditioned to 
 prosecute the suit with effect and without delay (c), and for 
 return of the goods (d) ; which bond shall be assigned to 
 the distreinor, on request made to the officer ; and, if for- 
 feited, may be sued in the name of the assignee. And, cer- 
 tainly, as the end of all distresses is only to compel the party 
 distreined upon to satisfy the debt or duty owing from him, 
 this end is as well answered by such sufficient sureties as by 
 retaining the very distress, which might frequently occasion 
 great inconvenience to the owner ; and that the law never 
 wantonly inflicts. The sheriff, on receiving such security,] 
 (for on a distress for rent no pledges either de prosequendo 
 or de retorno habendo are in practice taken in addition) 
 [is immediately, by his officers, to cause the chattels 
 taken in distress to be restored into the possession of the 
 party distreined upon, unless the distreinor claims a pro- 
 perty in the goods so taken. For if by this method of dis- 
 tress the distreinor happens to come again into possession 
 of his own property in goods which before he had lost, the 
 
 (ft) The sufficiency of these sure- (c) See Gent v. Cutts, 11 Q. B. 
 
 ties must he calculated according to 288. 
 
 the amount of the rent, and the ex- (d) As to this bond, see also Jack- 
 
 penses of the distress, Edmonds v. son v. Hanson, 8 Mee. & W. 477 ; 
 Challis, 7 C B. 413. Plumer v. Brisco, 11 Q. B. 46. 
 
 L L. 2
 
 516 BOOK V. — OF CIVIL INJURIES. 
 
 [law allows him to keep them, without any reference to the 
 manner by which he thus has regained possession, being 
 a kind of personal remitter (e). If therefore the distreinor 
 claims any such property, the party replevying must sue out 
 a writ de proprietate probanda, in which the sheriff is to try 
 by an inquest, in whom the property, previous to the dis- 
 tress, subsisted (f ). And if it be found to be in the dis- 
 treinor, the sheriff can proceed no farther, but must return 
 the claim of property to the Court of Queen's Bench or 
 Common Pleas, to be there farther prosecuted, if thought 
 advisable, and there finally determined (g). 
 
 But if no claim of property be put in, or if (upon trial) 
 the sheriff's inquest determines it against the distreinor, 
 then the sheriff is to replevy the goods (making use of 
 even force if the distreinor makes resistance (h)), in case 
 the goods be found within his county. But if the distress 
 be carried out of the county, or concealed, then the sheriff 
 may return that the goods or beasts are eloigned, elongata, 
 carried to a distance, to places to him unknown ; and 
 thereupon the party replevying shall have a writ of capias 
 in withernam, in vetito (or, more properly, repetito) namio ; 
 a term which signifies a second or reciprocal distress (i) in 
 lieu of the first, which was eloigned. It is therefore a 
 command to the sheriff to take other goods of the dis- 
 treinor in lieu of the distress formerly taken, and eloigned 
 or withheld from the owner (k). So that here is now dis- 
 tress against distress, one being taken to answer the other, 
 by way of reprisal (I), and as a punishment for the illegal 
 behaviour of the original distreinor. For which reason 
 goods taken in withernam cannot be replevied till the 
 original distress is forthcoming (m). 
 
 (e) Vide sup. p. 360. (/) In the old northern languages 
 
 (J ) Finch, L. 316. the word withernam is used as equi- 
 
 (g) Co. Litt. 145 ; Finch, L. 450. valent to reprisals. Stiernhook de 
 
 (h) 2 Inst. 193. Jure Sueon. 1. 1. c. 10. 
 
 (0 Smith's Commonw. b. 3, c. 10; (m) Raym. 475. The substance 
 
 2 Inst. 141 ; Hick's Theasur. 164. of this rule composed the terms of 
 
 (fe) F. N. B. 69, 73. that famous question with which Sir
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 517 
 
 [But in common cases the goods are delivered back 
 to the party replevying, who is then bound to bring his 
 action of replevin.] And as the law stood until a recent 
 period, this action was to be brought in the antient common 
 law court, called the County Court, and might be prose- 
 cuted there to the end, whatever might be the value of the 
 distress (w) ; but either party might remove it to the supe- 
 rior Courts of Queen's Bench or Common Pleas by writ of 
 recordari (o) ; and also if, in the course of the proceeding, 
 any right of freehold came in question, the sheriff could 
 proceed no farther (p) ; so that it was usual to carry it up 
 in the first instance to the courts of Westminster Hall. 
 But by the 9 & 10 Vict. c. 95, establishing the new county 
 courts (q), the law on this subject is now materially altered. 
 For it is provided by that act(r), that all actions of re- 
 plevin in cases of distress for rent in arrear or damage 
 feasant, which shall be brought in the county courts, shall 
 be brought without writ in a court held under that act; 
 that in every such action the plaint shall be entered in the 
 court held under that act for the district wherein the dis- 
 tress was taken; and that on either party declaring that 
 the title to any corporeal or incorporeal hereditament, or to 
 any toll, market, fair, or franchise, is in question, or that 
 the rent or damage distreined for is more than 20/., and (in 
 either case) becoming bound with two sureties in reason- 
 able security to prosecute the suit with effect and without 
 delay, and to prove that such title as aforesaid is in dispute 
 between the parties, or that there was ground for believing 
 
 Thos. More (when a student on his bilia" — whether heasts of the plough, 
 
 travels) is said to have puzzled a taken in withernam, are incapable of 
 
 pragmatical professor in the Uni- being replevied. Hoddesd. c. 5. 
 
 versity of Bruges, in Flanders, who (n) 3 Bl. Com. 147; 2 Inst. 139. 
 
 gave an universal challenge to dis- (o) 2 Inst. 23. 
 
 pute with any person in any science : (/>) Bl. Com. ubi sup. ; Finch, L. 
 
 " inomni scibili, el de quolibet eiite." 317. 
 
 Upon which Mr. More sent him this (q) As to these, vide sup. p. 379. 
 
 question — " Utrum averia caruca-, (r) Sects. 119, 120, 121. 
 
 capta in vetito namio, sint irreplegi-
 
 18 
 
 BOOK V. OF CIVIL INJURIES. 
 
 that the said rent or damage was more than 20/., then, and 
 not otherwise, the action may be removed before any court 
 competent to try the same, by a writ of certiorari (s). And 
 so much for the present with respect to the action of re- 
 plevin, the subsequent progress of which, in case of its 
 removal to a superior court, will be explained hereafter, 
 when we shall have occasion to describe the proceedings in 
 a suit of law(£). 
 
 Another action for the unlawful taking of a man's goods, 
 and one of much more extensive use, being applied to 
 every injury of that description, while replevin is confined 
 to cases of wrongful distress, is the action of trespass. [As 
 if a man takes the goods of another out of his actual or 
 virtual possession without having a lawful title so to do, it 
 is an injury, which, though it doth not amount to felony 
 unless it be done animo fur a ndi, is nevertheless a transgres- 
 sion for which an action of trespass will lie; wherein the 
 plaintiff shall not recover the thing itself, but only damages 
 for the loss of it.] Or the party [may at his choice have 
 another remedy in damages, by action of trover and conver- 
 sion, of which more will presently be said. 
 
 2. Deprivation of possession may also be by an unjust 
 
 (s) Arch. County Court, p. 212. 
 See Edmonds v. Challis, 7 C. B. 
 413; Yates v. Palmer, 6' D. & L. 
 283 ; Mungeam v. Wheatley, 2 L. 
 M. & P. 30. According to the for- 
 mer course of practice hy which a 
 replevin was removable in all cases 
 to one of the superior courts, the 
 removal by the plaintiff was at plea- 
 sure ; by the defendant it was (in 
 strictness) only upon reasonable 
 cause shown. F. N. B. 69, 70. 
 But in practice the defendant's right 
 to remove was never questioned. 
 We may remark here, that in some 
 instances other courts besides the 
 county court have jurisdiction in 
 replevin, but this is by prescription 
 only. The removal from such of 
 
 them as are courts of record is by 
 certiorari; from such of them as are 
 manor courts, by ttccedas ad curiam. 
 Roscoe on Real Actions, 628. 
 
 (() By the " Rules of Practice" 
 of 20th May, 1851, framed for the 
 County Courts in pursuance of 12 & 
 13 Vict. c. 101, s. 12, it is provided, 
 that where the replevin is not re- 
 moved from the county court, and 
 where it was upon distress for rent, 
 the judge (or if the cause was tried 
 with a jury, then a jury) shall find 
 the value of the goods distreined, 
 and if the value be less than the 
 rent, judgment shall be given for the 
 value ; if the rent be less than the 
 value, judgment shall be given for 
 the rent.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 519 
 
 [detainer of another's goods, although the original taking- 
 was lawful. As if I distrein another's cattle damage fea- 
 sant, and before they are impounded he tenders me suffi- 
 cient amends, now, though the original taking was lawful, 
 my subsequent detainment of them after tender of amends 
 is wrongful, and he shall have an action of replevin against 
 me to recover them (.r), in which he shall recover damages 
 for the detention, and not for the caption, because the ori- 
 ginal taking was lawful. Or if I lend a man a horse, and 
 he afterwards refuses to restore it, this injury consists in the 
 detaining, and not in the original taking ; and the regular 
 method for me to recover possession is by action of de- 
 tinue (?/),] in which [the judgment is conditional that the 
 plaintiff recover the goods, or (if they cannot be had) their 
 respective values, and also damages for detaining them.] 
 But as the object is thus to obtain, (if possible) specific re- 
 stitution, so this action [cannot be brought for money, corn, 
 or the like, for that cannot be known from other money or 
 corn, unless it be in a bag or a sack, for then it may be 
 distinguishably marked.] This form of action was also 
 formerly subject (as were some other of our legal remedies) 
 to the incident of wager of law {vadiatio legis), a proceed- 
 ing which consisted in the defendant's discharging himself 
 from the claim, on his own oath, bringing with him at the 
 same time into court eleven of his neighbours, to swear 
 that they believed his denial to be true (z). This relic of a 
 very antient and general institution, which we find esta- 
 blished not only among the Saxons (a) and Normans (b) 
 but among almost all the Northern nations that broke in 
 upon the Roman empire (c), continued to subsist among us 
 
 (x) F. N. B. 69. (c) 3 Bl. Com. 342, where it is 
 
 (y) Ibid. 138. As to this action, observed, that its origin may be 
 
 see Jones v. Dowle, 9 Mee. & W. traced as far back as the Mosaical 
 
 19; Hand v. Daniels, 1 L. M. & P. law: " If a man deliver unto his 
 
 430; Williams v. Archer, 5 C. B. 318. " neighbour an ass, or an ox, or a 
 
 (s) 3 Bl. Com. 341. " sheep, or any beast, to keep, and 
 
 (<i) Ibid. 343. " it die, or be hurt, or driven away, 
 
 (b) Gr. Coustumier, c. xxvi. " no man seeing it, then shall an
 
 520 BOOK V. — OF CIVIL INJURIES. 
 
 even till the last reign, when it was at length abolished by 
 3 & 4 Will. IV. c. 42, s. 13 (d) ; and as it exposed plaintiffs 
 to great disadvantage, it had long had the effect of throw- 
 ing the action of detinue almost entirely out of use, and 
 introducing in its stead the action of trover, which still 
 continues to be the favourite remedy in a case of unlawful 
 detention of goods, 
 .f This action of trover and conversion is a species of tres- 
 pass upon the case, and originally lay only for recovery of 
 damages against such person as had found another's goods 
 and wrongfully converted them to his own use, from which 
 finding and converting it derived its name (e). [The free- 
 dom of this action from wager of law, and the less degree 
 of certainty requisite in describing the goods (f), gave it so 
 considerable an advantage over the action of detinue, that, 
 by a fiction of law, actions of trover were at length per- 
 mitted to be brought against any man who had in his 
 possession, by any means whatsoever, the personal goods 
 of another, and sold them or used them without the con- 
 sent of the owner, or refused to deliver them when de- 
 manded.] The fiction consisted in alleging, as a matter of 
 form (for no proof of it was required), that the plaintiff 
 lost the goods, and that the defendant found them, so as to 
 bring the case within the proper scope of an action of 
 trover, although in fact the goods might never have been 
 lost, and might have come to the defendant's possession in 
 some other way, and not by finding. And these formal 
 allegations were retained up to the present times; but by a 
 provision in the recent act of 15 & 16 Vict. c. 76, for re- 
 
 " oath of the Lord be between them Cress. 538. But in modern times 
 
 " both that he hath not put his such an occurrence had been ex- 
 
 " hand unto his neighbour's goods; tremely rare. 
 
 " and the owner of it shall accept (<?) It is presumed that this name 
 
 " thereof, and he shall not make it will be still retained, notwithstand- 
 
 " good." — Exod. xxii. 10. ing the recent alteration in the form 
 
 (f/) An instance of it occurred in of this action noticed in the text, 
 
 the practice of our courts as lately as p, 521. 
 
 in 1824, King v. Williams, 2 Barn. & (/) Hartford v. Jones, Salk. 654.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 521 
 
 form of common law procedure (g), they are for the future 
 to be omitted, so that to sustain the action nothing more 
 will need to be alleged, than that the defendant converted 
 to his own use, or wrongfully deprived the plaintiff of the 
 use and possession of his goods (h). And proof of this 
 will be sufficient to sustain the action. Indeed, it will be 
 sufficient to prove merely that the goods belonged to the 
 plaintiff and came to the defendant's possession, and. that 
 he refused or neglected upon request to deliver them up ; 
 for a refusal to deliver them on request, is, in itself, [prima 
 facie sufficient evidence of a conversion (i).] Under such 
 circumstances, then, and supposing no lawful title to detain 
 them to be shown by the defendant, the plaintiff will be 
 entitled to judgment ; and [shall recover damages equal to 
 the value of the thing converted, but not the thing itself, 
 which nothing will recover but an action of detinue or re- 
 plevin (j ).] It is farther to be observed, with respect to 
 the remedy of trover, that resort to it is frequently had not 
 only in the case where goods are wrongfully detained upon 
 a lawful taking, but where they have been unlawfully taken 
 as well as detained. For though trespass, as we have seen, 
 is the proper form where the action is founded on a wrong- 
 ful caption, yet if the owner chooses to waive that ground 
 of complaint, and to treat the case as one of wrongful de- 
 tention only, he is at liberty to do so, and by this means 
 enable himself to maintain an action of trover, which, for 
 particular reasons of a technical kind, is sometimes found 
 to be a more convenient form than trespass. ■/■ 
 
 3. The injury of dispossessing or depriving a man alto- 
 gether of personal chattels, may be effected (as already ob- 
 
 (g) 15 & 16 Vict. c. 76, s. 49. worth v. Taylor, 3 Q. B. 699. 
 
 (h) See same act, schedule B. (j) Vide sup. p. 514, n. (x). Spe- 
 
 ((') 10 Rep. 56 ; Green v. Dunn, rial damages besides the value of the 
 
 3 Camp. 215, (n.) ; Philpott v. goods converted, may be recovered if 
 
 Kelley, 3 A. & E. 106 ; Canot v. such special damage be laid in the 
 
 Hughes, 2 Bing. N. C. 448 ; Gran- declaration and proved, Bodley v. 
 
 ger v. Hill, 5 Scott, 561 ; Caunce v. Reynolds, 8 Q. B. 
 Spanton, 7 Man. & G. 903 ; Rush-
 
 522 BOOK V. OF CIVIL INJURIES. 
 
 served) by other unlawful means besides those of wrongful 
 caption or detainer; and there are various torts, or, in other 
 words, various acts of unlawful commission or omission, 
 which, though widely differing from each other in their 
 specific nature, are nevertheless reducible under this com- 
 mon head. Thus, I may be deprived either of goods or 
 money by delivering the goods, or giving credit for the 
 money, to one person, in consequence of a representation 
 made by another, as to the circumstances or character of 
 the former, such representation being untrue, and untrue 
 to the knowledge of the person by whom it was made ; 
 and for this injury (k), and for any other occasioned by a 
 fraudulent misrepresentation (I), an action may be main- 
 tained of trespass on the case. But such an action is essen- 
 tially founded on the fraud or deceit of the party charged ; 
 and therefore it will not lie in any case where the repre- 
 sentation was made bond fide, however absolute and un- 
 qualified the terms in which it was expressed (m). And by 
 stat. 9 Geo. IV. c. 14, s. 6, no action shall be brought to 
 charge any person by reason of any representation con- 
 cerning the character, ability or dealings of another, to the 
 intent that such other person may obtain credit, money 
 or goods, unless such representation be made in writing, 
 signed by the party to be charged therewith (n). So, I 
 may be deprived of the money to which I am entitled 
 under the judgment of a court of law, in consequence of 
 the wrongful omission of the sheriff to seize the goods or 
 
 (k) Foster v. Charles, 6 Bing. 396 ; 651; Collins v. Evans (in error), 5 
 
 S. C. 7 Bing. 105 ; Corbettu. Brown, Q. B. 820. 
 
 8 Bing. 35 ; Polhill v. Walter, 3 B. (n) As to cases within this statute, 
 
 & Ad. 114. see Haslock v. Fergusson, 7 Ad. & 
 
 (0 Pewtriss v. Austen, 6 Taunt. El. 86 ; Swan v. Phillips, 8 Ad. & 
 
 522 ; Humphrysu. Pratt, 5 Bligh, N. El. 457 ; S. C. 1 W. W. & H. 374 ; 
 
 S. 154; Taylor v. Ashton, 11 Mee. Pilmore v. Hood, 5 Bing. N. C. 97 ; 
 
 & W. 401. Devaux v. Steinkeller, 6 Bing. N. C. 
 
 (m) See Haycraft7j. Creasy, 2 East, 84; Lyde v. Barnard, 1 Mee. & W. 
 
 92; Smout v. Ilbery, 10 Mee. & W. 101. 
 1 ; Ormrod v. Huth, 14 Mee. & W.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 523 
 
 person of the defendant, under the writ of execution which 
 I have sued out upon it ; or his wrongfully permitting the 
 defendant, after his being arrested by virtue of my writ of 
 execution, to escape. And in these instances the remedy 
 is by action on the case against the sheriff (/;). 
 
 4. Besides the deprivation of the possession of personal 
 property, its owner may be injured by its abuse and damage; 
 [as by hunting his deer, shooting his dogs, poisoning his 
 cattle, or in anywise taking from the value of any of his 
 chattels, or making them in a worse condition than be- 
 fore,] by any of those modes of negligent or wilful mischief 
 which are too obvious to require a more particular detail. 
 And as personal property may, in some instances, be of 
 an intangible or incorporeal nature, as in the case of a 
 copyright or patent right, so there are injuries relating to 
 these matters which properly fall under the present head, 
 such as the piracy of a literary composition, or the infringe- 
 ment of a patent (q). Of a similar description too is the 
 injury committed by one manufacturer who sells goods 
 under the mark of another, even though the latter should 
 have obtained no patent, this being an invasion of his ex- 
 clusive right to sell in his own name (r). All such torts, 
 by way of abuse or damage of personal chattels, are re- 
 dressed either by trespass, where the act is in itself imme- 
 diately injurious ; or by trespass on the case, where it is 
 injurious rather in a consequential than a direct sense, 
 according- to a distinction that has been referred to in a 
 former place (s). But such of these injuries as relate to 
 intangible chattels are always remediable in the latter form 
 of action only, and are not the proper subjects of an action 
 
 (p) Williams v. Mostyn, 4 Mee. & c. 109, ss. 12, 15 ; and 15 & 16 Vict. 
 
 W. 145 ; Guest v. Elwes, 5 Ad. & El. c. 83 ; et sup. bk. ii. c. 3. 
 
 118; 5 & 6 Vict. c. 98, s. 31. (r) Sykes v. Sykes, 3 Barn. & 
 
 (g) Vide as to copyright, 5 & 6 Cress. 541 ; Blofeld v. Payne, 4 B. & 
 
 Vict. c. 45 ; et sup. bk. ii. c. 3. As Ad. 410 ; Rodgers v. Nowill, 17 L. J. 
 
 to patent right, 5 & 6 Will. 4, c. 83, (C. B.) 52. 
 
 amended by 2 & 3 Vict. c. 67 ; 7 & 8 (s) Vide sup. p. 453. 
 Vict. c. 69, ss. 2—7 ; 12 & 13 Vict.
 
 524 BOOK V. OF CIVIL INJURIES. 
 
 of trespass. In the case of an infringement of copyright or 
 patent right, or the like, it may also be right to remark in 
 this place, that redress may be had not only in a court of 
 law, but a court of equity, which will interfere by injunc- 
 tion to restrain the wrong-doer from the farther invasion of 
 the right, and compel him to account for the profits already 
 derived from the wrongful sale (t). 
 
 [Hitherto of injuries affecting the right of things per- 
 sonal in possession. We are now to consider, secondly, 
 those which regard things in action only, or such rights as 
 are founded in and arise from contracts, the nature and 
 several divisions of which were explained in the preceding 
 volume (?/).] 
 
 Contracts, we have seen, are subject to the several dis- 
 tinctions of being either under seal, or by parol, verbal or 
 written, express or implied ; and they also comprise many 
 individual species, the principal of which we had formerly 
 occasion to consider in detail. Their violation in any in- 
 stance constitutes that general description of injury known 
 by the name of breach of contract ; and in general the re- 
 medy, where the contract is under seal, is by action of debt 
 or covenant ; when it is not under seal, by debt or by a 
 particular species of trespass on the case, called an action 
 of assumpsit (or an action on promises) ; and this, whether 
 such parol or unsealed contract be written or verbal, express 
 or implied ; as to which, however, it is to be understood, 
 that in every case the competency of the several actions 
 above specified depends not merely upon the nature of the 
 contract, as being under seal or not, but also upon the na- 
 ture of the claim, as amounting to a debt or not, according 
 
 (t) Hill v. Thompson, 3 Meriv. power is also given to the superior 
 
 622 ; Collard v. Alison, 4 Myl. & C. courts of common law to grant in- 
 
 487; Southey v. Sherwood, 2 Meriv. junctions on the application of the 
 
 440 ; Barfield v. Nicholson, 2 Sim. plaintiff or defendant, in any action 
 
 & Stu. 1 ; Bailey v. Taylor, 1 Russ. for the infringement of a patent, 
 
 & Mylne, 73 ; 5 & 6 Vict. s. 45, then pending before them, 
 
 s. 24. By 15 & 16 Vict. c. 83, s. 42, ( ( /) Vide sup. vol. ii. p. 50.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 525 
 
 to a distinction before laid down when treating of actions in 
 general ; but that the case is, on the other hand, often such 
 as to give the plaintiff his election between one form of ac- 
 tion and another. It may be here expedient, however, to 
 advert in detail to some particular contracts, consisting prin- 
 cipally of those which, from their superior frequency or 
 importance, have attracted our specific notice in former 
 parts of the work. The remedies in these particular cases 
 may be stated as follows : — 
 
 1. As regards the breach of covenants in leases (v) (for 
 example, the covenant to repair on the part of the tenant, 
 or that for quiet enjoyment on the part of the landlord), the 
 remedy for either party is by action of covenant ; which is 
 also the proper form in case of the breach of any of these 
 covenants relating to title that are ordinarily contained in 
 conveyances of real estate. But in case of a covenant in a 
 lease to pay rent, the breach of it may be redressed either 
 by action of covenant or of debt ; for in this case the land- 
 lord, having a claim to a liquidated sum of money, there 
 arises between him and the tenant a debt in point of law (x); 
 which debt he may demand if he thinks proper, in lieu of 
 the more general claim for damages in respect of the breach 
 of covenant. [For a freehold rent indeed, reserved on a 
 lease for life, &c, no action of debt lay by the common law 
 during the continuance of the freehold out of which it 
 issued ;] the proper remedy in that case having been by 
 actions real ; and it seems that to this day no rent of inhe- 
 ritance is recoverable by an action of debt(i/) ; but by the 
 statutes 8 Ann. c. 14, and 5 Geo. III. c. 17, such action 
 may now be brought to recover freehold rents reserved on 
 lease for life (z). Also debt will not lie for arrears of a 
 
 (v) Vide sup. vol. i. pp. 472, 496. inheritance also, but they are con- 
 
 (.r) Vide sup. vol. ii. p. 134. fined to rents reserved on lease for 
 
 (y) Webb v. Jigs, 4 Mau. & Sel. life. As to the remedies for the exe- 
 
 113. cutors of tenants in fee simple or fee 
 
 (z) Vide 3 Bl. C. p. 232. These tail, for arrears in his lifetime, see 
 
 statutes are referred to by Black- 23 Hen. 8, c. 37, s. 1. 
 
 stone as if they applied to rents of
 
 526 BOOK V. — OF CIVIL INJURIES. 
 
 rent-charge, or an annuity granted in fee, in tail, or for life, 
 during the continuance of such estate (a) ; but the proper 
 remedy is by covenant or by another action, that has now 
 fallen into disuse, called an action of annuity (b). On the 
 other hand, where rent falls into arrear under a parol con- 
 tract, no action of covenant can be maintained (that form 
 being exclusively applicable to sealed contracts) — but debt 
 will lie; and by the statute 11 Geo. II. c. 19, s. 14, the 
 plaintiff may also resort (though he could not by the com- 
 mon law (c) ) to the action of assumpsit just mentioned ; 
 which is an action on the case, appropriate to the injury 
 committed by the breach of a parol promise, and from 
 thence derives its name. And the particular form of it 
 adopted in this instance is that variety called indebitatus 
 assumpsit ; an action applicable to the case where a debt 
 exists between the parties, and where the defendant is 
 charged upon his promise (which may be either express or 
 implied) to pay the amount. And here it may be proper 
 to remark, that whenever debt lies upon a parol contract, 
 indebitatus assumpsit will also lie, as an alternative remedy ; 
 though neither this nor any other kind of assumpsit can be 
 maintained upon a contract by deed (d). 
 
 2. Under a contract of sale of goods (e), if the vendee 
 complains of a non-delivery of the article sold, a breach of 
 warranty, or the like, his remedy, where the contract was 
 by parol only (as is usually the case) and not by deed, is 
 by the action of assumpsit ; and if the vendor complains of 
 non-payment of the price, there being in this case a debt 
 between the parties, the remedy is by debt or indebitatus 
 assumpsit, at the option of the plaintiff. 
 
 (a) Kelly v. Clubbe, 3 Brod. & solvere, an action of debt on simple 
 
 Bing. 130; Bac. Abr. Annuity and contract, winch lies in the London 
 
 Rentcharge. and Bristol courts for causes arising 
 
 (6) Bac. Ab. ubi sup. within their respective jurisdiction, 
 
 (c) Brett v. Read, Cro. Car. 343 ; see Turbill's case, 1 Saund. 68, n. 
 1 Roll. Abr. 7, 1. 23; Naish v. Tat- (2). 
 
 lock, 2 H. Bl. 323. (e) Vide sup. vol. ii. p. 63. 
 
 (d) As to the action of concessit
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 527 
 
 3. Where upon a contract of bailment (f), the bailor com- 
 plains of a failure to redeliver the article, the defendant 
 may in general be charged as on a tort or a contract. In 
 the former course of proceeding, the action may be detinue, 
 or trover, or (according to the circumstances) an action on 
 the case for negligence ; in the latter, supposing the con- 
 tract to be (as it usually is) by parol, the form of action is 
 assumpsit. 
 
 4. Where upon a loan of money (y), the amount is not 
 repaid according to the contract, and arrears exist either on 
 account of principal or interest, the action for this injury, 
 if the contract be under seal, is debt or covenant ; if it be 
 not under seal, then debt or indebitatus assumpsit. And 
 here we may take the opportunity of remarking that there 
 are other forms of pecuniary claims closely connected with 
 that for money lent, viz. the claim for money paid by the 
 plaintiff for the use of the defendant, for money had and 
 received by the defendant to the use of the plaintiff, and for 
 money which the defendant is found to owe to the plaintiff 
 upon an account stated between them (h). Indeed it is 
 often difficult to determine, upon a given state of facts, into 
 which of these forms the plaintiff's demand properly re- 
 solves itself. Each of them, however, is the proper subject 
 for an action of debt or indebitatus assumpsit. 
 
 5. As to the contract of partnership (i), we have before 
 had occasion to remark, that questions of account be- 
 tween partners generally fall under the jurisdiction of a 
 court of equity, and (except in a form of action called ac- 
 count, which in modern times has very rarely come into use) 
 
 (f) Vide sup. vol. ii. p. 73. will, without any farther accounting, 
 
 (g) Vide sup. vol. ii. p. 81. be sufficient. If the object is to 
 (/i) This action upon an account bring the debtor to account, the re- 
 
 siaied lies only where the plaintiff" and medy at law is by action of account. 
 
 defendant have come to an account, Vide sup. vol. ii. p. 99, n. (</), but 
 
 and a balance has been acknow- the only usual remedy is by pro- 
 
 ledged ; though the simple acknow- ceedings in ecpiity. 
 
 ledgment that a particular sum is due (i) Vide sup. vol. ii. p. 94.
 
 528 BOOK V. OF CIVIL INJURIES. 
 
 are not cognizable in a court of law (/«). But an action at 
 law may be brought by one partner against the other, on an 
 express agreement to do or forbear from some particular 
 act not involving any question of account (I) ; or to pay a 
 liquidated balance, or the like (m) ; the remedy in such 
 cases being debt, assumpsit, or indebitatus assumpsit, ac- 
 cording to the nature of the case, and the distinctions for- 
 merly laid down in regard to those several forms of action. 
 So, one partner cannot sue the other at law, for taking a 
 chattel of the partnership away into his own exclusive use ; 
 but if one of the partners has destroyed a chattel belonging 
 to the firm, it seems that the other may maintain an action 
 of trespass (n). 
 
 6. The breach of a contract of guarantee (o), if contained 
 in an instrument under seal, is redressed by action of debt 
 or covenant ; if the contract be not under seal, then by 
 action of debt or assumpsit. The remedy by the surety 
 against the principal, where the former has been compelled 
 to make a payment under the guarantee, is by debt or in- 
 debitatus assumpsit, as for money paid by the former to the 
 i use of the latter ; and any one of several sureties, who 
 has paid more than his rateable proportion, is entitled to 
 claim contribution from the others, in the same forms of 
 action. 
 4- 7. Upon bonds (p), the remedy of the obligee, in case of 
 breach of contract by the obligor, is by action of debt only, 
 which is always brought as for the amount of the penalty ; 
 but according to the course of practice, as explained in a 
 former part of the work ((/), the plaintiff is allowed to re- 
 cover no more upon a bond conditioned for the payment of 
 
 (k) Holmes v. Higgins, 1 Barn. & (n) Co. Litt. 200 a, b ; B. N. P. 
 
 Cress. 74 ; Arch. PL 36, 37. 34 ; Arch. PL 36 ; vide Martyn o. 
 
 (/) Bedford v. Button, 1 Bing. N. Knowllys, 8 T. R. 145. 
 
 C. 391. (o) Vide sup. vol. ii. p. 99. 
 
 (m) Chit Cont. 238; Smith v. (/>) Vide sup. vol. ii. p. 102. 
 
 Barrow, 2 T. R. 476. (</) Vide sup. vol. ii. p. 104.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 529 
 
 money, than the principal sum due, with interest and costs ; 
 nor (generally) upon a bond conditioned for the perform- 
 ance of any other act, more than a jury shall assess by way 
 of damages. The rule is similar with respect to all other 
 contracts secured by penalties, if the plaintiff elects to pro- 
 ceed as for the penal sum ; but the form of such contracts 
 in general is such as to give him an option of claiming 
 damages, without regard to the penal stipulation ; and if 
 the claim be made in this shape, the form of the action is 
 debt, covenant, or assumpsit, according to distinctions 
 already more than once explained. 
 
 8. For breach of contract on a bill of exchange or pro- 
 missory note (r), the remedy is either by assumpsit or debt, 
 but with this difference, that assumpsit will lie in all cases ; 
 the particular form of it called indebitatus assumpsit, or 
 debt, only where there was a privity of contract between 
 the parties to the suit. Thus the payee or any indorsee of 
 a bill or note may maintain assumpsit against the maker ; 
 but the payee only may maintain against him debt or inde- 
 bitatus assumpsit. So assumpsit lies against the acceptor of 
 a bill, at the suit of an indorsee, or of the payee, or of a 
 drawer, who has been compelled to take it up, but debt or 
 indebitatus assumpsit will not lie against him at the suit of 
 any of these parties, except the drawer (s). 
 
 9. Upon a policij of marine or fire insurance (t), the 
 remedy of the assured, in case of breach of contract by the 
 insurer, is by covenant, where the policy is under seal ; by 
 assumpsit where it is not. On a policy of life insurance 
 
 (r) Vide sup. vol. ii. p. 108. 253; Watkins v. Wake, 7 Mee. & 
 
 (s) Priddy v. Henbrey, 1 Barn. & W. 488. Itwasatone time doubted 
 
 Cress. 674, and the authorities there whether debt or indebitatus assump- 
 
 cited , Cressvvell v. Crisp, 2 Dovvl. sit would lie in any case on a bill 
 
 635 ; Kinahan 5. Palmer, 2 Jones, or note, unless expressed to be for 
 
 Excli. Rep. Ireland; Hatch i-.Trayes, value received. But it is now held 
 
 11 Ad. & El. 702; Cloves v. Wil- that the omission of these words is 
 
 liams, 2 Bing. N. C. 868. Debt lies not material in that respect. Vide 
 
 by indorsee against his immediate Chitty on Bills (6th ed.), p. 67. 
 
 indorser, Stratton v. Hill, 3 Price, (t) Vide sup. vol. ii. p. 119. 
 
 VOL. III. M M
 
 530 BOOK V. — OF CIVIL INJURIES. 
 
 under seal, the remedy is by debt or covenant ; on one not 
 under seal, debt or indebitatus assumpsit. 
 
 10. And, lastly, upon charterparties (u), the form of re- 
 medy, in case of breach of contract, is governed by the same 
 distinction with respect to the nature of the instrument, 
 as being sealed or unsealed. In the former case, if the 
 action be brought by the charterer against the owner for 
 not receiving, or properly stowing or delivering the cargo, 
 the form is covenant ; if by the owner against the charterer 
 for not supplying a full cargo, it is also covenant ; but if 
 for non-payment of freight, it may be either covenant or 
 debt, at the option of the plaintiff. On the other hand, 
 where the charter party is not under seal, assumpsit must 
 be substituted for covenant in all the before-mentioned 
 cases ; and for non-payment of freight the form of action 
 is assumpsit (in the indebitatus form or otherwise), or, at 
 the option of the plaintiff, may be debt. 
 
 We have now sufficiently considered the injuries which 
 affect such things in action as arise out of contracts ; but 
 there are some things in action which cannot properly be 
 said to have that origin, and the withholding of which will 
 nevertheless constitute a wrong or injury, viz. such debts as 
 result from the obligation to pay money pursuant to a sen- 
 tence of the law, or an enactment of the legislature ; as 
 when, in a court of law, judgment is obtained by one man 
 against another, for a specific sum of money; or when by 
 an act of parliament, of that class called penal statutes, a 
 pecuniary forfeiture is inflicted for committing some speci- 
 fied offence, and such forfeiture is made recoverable, as it 
 usually is, by the crown, or the party aggrieved, or a 
 common informer, as the case may be. This obligation or 
 liability to pay a specific sum of money constitutes (as will 
 appear by former explanations) a debt, so that the party 
 against whom the judgment is obtained is immediately con- 
 sidered as owing to his adversary the amount awarded, and 
 
 (m) Vide sup. vol. ii. p. 131.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 531 
 
 the party who transgresses the penal statute as immediately 
 owing to the crown, the party aggrieved, or the common 
 informer, as the case may be, the amount of the penalty (x). 
 The remedy for the recovery of such debt, or chose in ac- 
 tion, when withheld, is by action of debt on the judgment, 
 or on the penal statute respectively ; and in the latter case 
 this remedy is generally designated as a penal action, or, 
 where one part of the forfeiture is given to the crown, and 
 the other part to the informer, a popular or qui tarn action, 
 because it is brought by a person qui tarn pro domino rege 
 quam pro se ipso sequitur. 
 
 IV. With regard to injuries which affect the rights of a 
 man in his private relations, [and in particular such as may 
 be done to persons under the four following relations, hus- 
 band and wife, parent and child, guardian and ward, master 
 and servant.] 
 
 1. The injuries that may be offered to a man, considered 
 as a husband ( y), are principally three ; [abduction, or taking" 
 away a man's wife ; adultery, or criminal conversation with 
 her; and beating, or otherwise abusing her.] 
 
 And, first, [abduction may be either by fraud and per- 
 suasion, or open violence ; though the law in both cases 
 supposes force and constraint, the wife having no power 
 to consent, and therefore gives a remedy by action of tres- 
 pass, de uxore rapta et abducta (z). This action lay at 
 the common law ; and thereby the husband shall recover, 
 
 (j) Blackstone considers the debt perhaps an unnecessary subtlety in 
 
 in such cases as growing out of an supposing it the basis of the kind of 
 
 implied contract, viz. tbe original debts in question. It is more natural 
 
 contract entered into by all mankind to consider such debts as not founded 
 
 who partake the benefits of society, upon any contract at all ; — though 
 
 to submit to the constitution of the an implied contract to pay may 
 
 state of which they are members. 3 doubtless be engrafted upon them. 
 
 Bl. Com. 160. But though this seems (u) As to the relation of husband 
 
 correctly laid by him and other ju- and wife, vide sup. vol. ii. p. 238. 
 
 rists as the foundation of the general (s) F. N. B. 89. 
 obligation to obey the law, there is 
 
 M M. 2
 
 532 BOOK V. — OF CIVIL INJURIES. 
 
 [not the possession of his wife (a), but damages for taking 
 her away; and by statute Westminster the first, 3 Edw. I. 
 c. 13, the offender shall also be imprisoned two years, and 
 be fined at the pleasure of the crown. Both the crown and 
 the husband may therefore have this action (b) ; and the 
 husband is also entitled to recover damages in an action on 
 the case against such as persuade and entice the wife to 
 live separate from him without a sufficient cause (c).] The 
 old law was so strict on this point, that if one's wife missed 
 her way upon the road, it was not lawful for another man 
 to take her into his house, unless she was benighted, and 
 in danger of being lost or drowned (d ) ; but a stranger 
 [might carry her behind him on horseback to market, to a 
 justice of the peace for a warrant against her husband, or 
 to the spiritual court to sue for a divorce (e).] 
 
 Adulteri/ is in contemplation of our law both a crime 
 (though distinguishable from crimes in general by being- 
 cognizable only in the spiritual courts,) and a grievous 
 civil injury ; and when considered in the latter light, [the 
 law gives a satisfaction to the husband for it by an ac- 
 tion of trespass,] (or on the case, at his election (/),) 
 [against the adulterer, wherein the damages recovered are 
 usually very large and exemplary. But these are properly 
 increased and diminished by circumstances (g) ; as the rank 
 and fortune of the plaintiff and defendant, the relation or 
 connection between them,] the degree and nature of the 
 seduction employed, the previous behaviour and character 
 of the wife, the manner in which she had been previously 
 treated by the husband, [and the husband's obligation, by 
 settlement or otherwise, to provide for those children which 
 he cannot but suspect to be spurious.] The damages will 
 also be mitigated where the husband is proved to have 
 
 (a) 2 Inst. 434. (/) Cook v. Sayer, 2 Ld. Ken. 
 
 (b) 4 Inst. 434. 371 ; Mac Fadzen v. Olivant, 6 East, 
 
 (c) B. N. P. 78. 387 ; Chamberlain t>. Hazlewood, 5 
 
 (d) Bro. Ab. tit. Trespass, 213. Mee. & W. 515. 
 
 (e) Bro. Ab. tit. Trespass, 207, (g) B. N. P. 26. 
 440.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 533 
 
 been himself first guilty of conjugal infidelity (h) ; and if 
 it appear that he connived at or consented to his own dis- 
 honour, or lived at the time of the adultery in a state of 
 absolute and permanent separation from his wife, the ac- 
 tion will be wholly barred (i). It is also to be remarked, 
 that in actions of this kind, as well as in indictments for 
 bigamy, [a marriage in fact must be proved, — though 
 generally, in other cases, reputation and cohabitation are 
 sufficient evidence of marriage (7).] 
 
 For the injury of beating a man's wife, or otherwise 
 illusing her, [if it be a common assault, battery, or im- 
 prisonment, the law gives the usual remedy to recover 
 damages by an action of trespass, which must be brought 
 in the names of the husband and wife jointly ; but if the 
 beating or other maltreatment be very enormous, so that 
 thereby the husband is deprived for any time of the com- 
 pany and assistance of his wife, the law then gives him a 
 separate remedy (k), by an action of trespass, for this ill 
 usage,] with an allegation, by way of special damage, that 
 he has lost the benefit of her society, called an allegation 
 "per quod consortium amisit, [in which he shall recover a 
 satisfaction in damages (Z).] 
 
 2. With respect to the injury capable of being done to a 
 man in the relation of parent {m), we may remark, that one 
 instance of a wrong of this description formerly existed in 
 the case of [marrying the son and heir without the father's 
 consent, whereby, during the continuance of the military 
 tenures, he lost the value of his marriage (?i). But this 
 
 (h) Bromley t>. Wallace, 4 Esp. wife for injuries done to the latter. 
 237. (/) Guyu. Livesey, Cro. Jac. 501 ; 
 
 (?) Bennett v. Allcott, 2 T. R. Hyde v. Scyssor, ibid. 538. As to 
 
 168 ; Duberley v. Gunning, 4 T. R. the case where, by negligence of the 
 
 655 ; Weeding v. Timbrell, 5 T. R. defendant, the plaintiff's wife is 
 
 357 ; Chambers v. Caulfield, 6 East, killed, vide Baker v. Bolton, 1 Camp. 
 
 244. 493. See now 9 & 10 Vict. c. 93, 
 
 (j) Morris o. Miller, Burr. 2057. sup. p. 459. 
 
 (k) By 15 & 16 Vict. c. 76, s. 40, (m) As to the relation of parent 
 
 however, the husband may add claims and child, vide sup. vol. ii. p. 276. 
 in his own right in an action brought («) Vide sup. vol. i. p. 190. 
 
 in the joint names of himself and
 
 534 BOOK V.— OF CIVIL INJURIES. 
 
 [injury has now ceased, together with the right upon which 
 it was grounded.] And it is now held that there is no 
 instances in which an injury can be sustained by a parent 
 in his mere parental character ; and that in the case of a 
 battery or other ill-treatment inflicted on a child, the action 
 for redress must in general be brought in the name of the 
 child himself, whether he have attained to his full age or 
 not(o). There are cases, indeed, in which the parent is 
 entitled to sue in respect of misconduct towards the child, 
 but as the right of suit attaches to him in all such in- 
 stances, in the capacity of master, and not strictly in that 
 of parent, the consideration of them will belong more pro- 
 perly to a subsequent head (p). 
 
 3. An injury may be done to a man in the relation of 
 guardian, by stealing or ravishing away his ward (q). For, 
 [though guardianship in chivalry is now totally abolished, 
 which was the only beneficial kind of guardianship to the 
 guardian, yet the guardian in socage was always (r), and 
 is still, entitled to an action of ravishment,] in the form of 
 trespass, [if his ward or pupil be taken from him; but 
 then he must account to his pupil for the damages which 
 he so recovers (s).] But a more speedy and summary 
 method of redressing all complaints relative to wards and 
 guardians [hath of late obtained, by an application to the 
 Court of Chancery, which is the supreme guardian, and 
 hath the superintendent jurisdiction of all the infants in the 
 kingdom. And it is expressly provided by statute 12 Car. 
 II. c. 24, that testamentary guardians may maintain an ac- 
 tion of ravishment or trespass for recovery of any of their 
 wards, and also for damages to be applied to the use and 
 benefits of the infants (t). 
 
 (o) Hall v. Hollander, 4 Barn. & ( p) Vide post, p. 535, 536. 
 
 Cress. 660. This case may be con- (q) As to the relation of guardian 
 
 sidered as overruling the opinion to and ward, vide sup. vol. ii. p. 294. 
 which Blackstone inclined, (see 3 Bl. (»•) F. N. B. 139. 
 
 Com. 141,) that an action may be (s) Hale on F. N. B. 139. 
 
 maintained by a father for the ab- (t) Eyre v. Countess of Shaftes- 
 
 duction of his child, as well as by a bury, 2 P. Wms. 108. 
 husband for that of his wife.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 535 
 
 4. To the relation between master and servant (u), and 
 the rights accruing therefrom, there are several species of 
 injuries incident. One is retaining a man's hired servant 
 before his time is expired,] which, [as it is an ungentle- 
 manlike, so it is also an illegal act; for every master has, 
 by his contract, purchased for a valuable consideration the 
 service of his domestics for a limited time : the inveigling 
 or hiring his servant, which induces a breach of this con- 
 tract, is therefore an injury to the master, and for that 
 injury the law has given him a remedy by action on the 
 case ; and he may also have an action against the servant 
 for non performance of his agreement (v). But if the 
 new master was not apprized of the former contract, no 
 action lies against him (x), unless he refuses to restore the 
 servant upon demand. Another point of injury] is that of 
 [beating, confining, or disabling a man's servant,] so that 
 he is not able to perform his work, [which depends upon 
 the same principle as the last, viz. the property which the 
 master has, by his contract, acquired in the labour of his 
 servant. In this case, besides the remedy of an action of 
 battery or imprisonment, which the servant himself, as an 
 individual, may have against the aggressor, the master 
 also, as a recompense for his immediate loss, may main- 
 tain an action of trespass,] or, at his election, trespass 
 on the case (?/), [in which he must allege and prove the 
 special damage he has sustained by the beating of his 
 servant, per quod servitium amisit(z); and then the jury 
 will make him a proportionable pecuniary satisfaction («).] 
 It is in this manner, and in this alone, that by our law a 
 parent is enabled to claim redress for a battery, or other 
 
 (u) As to the relation of master (s) 9 Rep. 113; 10 Rep. 130. 
 
 and servant, vide sup. vol. ii. p. 225. (a) Blackstone remarks that a 
 
 (v) F. N. B. 167; Keane v. Boy- similar practice prevailed among 
 
 cott, 2 H. Bl. 511 ; Gunter t. Astor, the Athenians, where masters were 
 
 4 Moore, 12. entitled to an action against such as 
 
 (r) Ibid. Winch. 51. beat or ill-treated their servants, and 
 
 (y) Chamberlain v. Hazlewood, 5 cites Potter's Antiq. 1. i. c. 26. 
 Mee. & W. 515.
 
 536 BOOK V. — OF CIVIL INJURIES. 
 
 ill usage inflicted on his child, or even for the seduction of 
 his daughter, viz. as a master, and in an action of trespass 
 (or on the case), per quod servitium amisit ; and, therefore, 
 unless he is able to prove that his child was in his service 
 at the time the injury was committed, he is without re- 
 medy (b) ; from which it follows that he is without remedy 
 when the child resided at the time with another master, 
 though that master may himself maintain an action (c). 
 But where a parent is plaintiff in a case of seduction, the 
 courts incline to relieve him as much as possible from any 
 difficulty connected with proof of the loss of service, con- 
 sidering the action as brought in substance to repair the 
 outrage done to parental feeling, — and hold, therefore, that 
 in such an action, the mere residence of the child with him 
 at the time affords sufficient proof that the relation of 
 master and servant existed between them (d). Upon the 
 same principle, too, the jury is directed, in assessing the 
 damages, to take into account the dishonour done to the 
 plaintiff, as well as the loss of service (e) ; though, on the 
 other hand, they are also bound (as in the case of adul- 
 tery) to pay attention to all such circumstances connected 
 with the behaviour of any of the parties, as tend to lessen 
 the merits of the plaintiff's case. It is farther to be re- 
 marked, with respect to an action for seduction, that none 
 can be maintained in any case by the daughter herself — for 
 volenti non fit injuria. 
 
 Such then is the state of the law (briefly considered) with 
 respect to injuries resulting from the violation of rights in 
 private relations, — as to which it may be observed in ge- 
 neral, that [notice is only taken of the wrong done to the 
 superior of the parties related, by the breach and dissolu- 
 te Hall v. Holander, 4 Barn. & (c) Irving v. Dearman, 11 East, 
 Cress. 660 ; Blamire v. Hayley, 6 24. 
 
 Mee. & W. 55; Grinnell v. Wells, (d) Jones v. Brown, 1 Esp. 217; 
 
 7 Man. & G. 1033 ; Eager v. Grim- Maunder v. Venn, Moo. & M. 323 ; 
 wood, 1 Exch. 61 ; Davies v. Wil- Torrence v. Gibbens, 5 Q. B. 297. 
 liams, 10 Q. B. 725. (e) Stark. Ev. part iv. p. 1309.
 
 CHAP. VIII. OF THOSE COGNIZABLE AT COMMON LAW. 537 
 
 [tion of ejther the relation itself, or at least the advantages 
 accruing therefrom ; while the loss of the inferior, by such 
 injuries, is totally unregarded. One reason for which may 
 be this — that the inferior hath no kind of property in the 
 company, care, or assistance of the superior, as the supe- 
 rior is held to have in those of the inferior, and therefore 
 the inferior can suffer no loss or injury. The wife cannot 
 recover damages for beating her husband, for she hath no 
 separate interest in any thing during her coverture (f). 
 The child hath no property in his father or guardian, as 
 they have in him, for the sake of giving him education and 
 nurture (#).] And so [the servant, whose master is dis- 
 abled, does not thereby lose his maintenance or wages.] 
 He has no interest in his master personally considered. 
 [If he receives his part of the stipulated contract, he suffers 
 no injury, and is therefore entitled to no action for any 
 battery or imprisonment which such master may happen to 
 endure.] 
 
 V. The only injuries that remain to be noticed are those 
 sustained by a man in respect of his public rights. This 
 subject, however, will not detain us long, for injuries of this 
 description between subject and subject are in general of 
 
 (f) Vide sup. vol. ii. p. 260. 
 
 (g) Blackstone remarks (3 Bl. 
 Com. 142), that the wife or child 
 had nevertheless, if the husband or 
 parent were slain, a peculiar species 
 of criminal prosecution allowed them, 
 in the nature of a civil satisfaction, 
 and called an appeal. This proceed- 
 ing, though long since antiquated, 
 was still in force when Blackstone 
 wrote, and was strangely revived in 
 our own days, in the case of Ash ford 
 v. Thornton, 1 Barn. & Ad. 405. It 
 was soon afterwards, however, abo- 
 lished by statute 59 Geo. 3, c. 46. 
 It may be proper also to remark, in 
 
 reference to the position, in the text 
 that the loss of the inferior, arising 
 from an injury to the superior, is 
 disregarded, that by a very recent 
 alteration in the law this antient 
 principle is in some degree set aside, 
 for by 9 & 10 Vict. c. 93, the execu- 
 tor or administrator of a party de- 
 ceased may now bring an action for 
 such injury as shall have caused his 
 death ; and such action shall be for 
 the benefit of the wife or child, as 
 well as of the husband or parent, of 
 the deceased, as the case may be. 
 Vide sup. p. 459.
 
 538 BOOK V. OF CIVIL INJURIES. 
 
 such a nature as to be remediable not so much by action 
 as by indictment, or by some of the prerogative writs, to 
 which we shall have occasion to advert in a subsequent 
 chapter. Yet there are various instances in which an action 
 may be maintained in respect of the violation of public 
 rights, as where a special damage is sustained by an indi- 
 vidual in consequence of the obstruction of a highway (//), 
 or where the returning officer at a parliamentary election 
 refuses to receive the vote of an individual, so that the 
 election takes place without his being allowed to exercise 
 his elective right ; in both which instances the remedy is 
 by action on the case. In the latter of them great diffculty 
 was originally felt in entertaining the action ; it being 
 urged on the other side, that the offence was a parliamen- 
 tary one, and not properly cognizable out of parliament, 
 and also that it involved no private injury that the law 
 could notice; yet it was ultimately adjudged (i), that an 
 action lay in this case at common law, for that the law 
 gave a remedy for every injury, and that by this act of the 
 returning officer the plaintiff was deprived of the greatest 
 privilege of a subject, viz. that of consenting to the laws 
 by which he is bound; and that the concurrent jurisdiction 
 of parliament in the matter created no difficulty, particu- 
 larly as the very grievance, which was the subject of com- 
 plaint, was that the plaintiff was not properly represented 
 there. A somewhat similar description of injury has been 
 since provided for, by a positive enactment of the legis- 
 lature ; for by 4 & 5 Vict. c. 58, s. 95, " if any sheriff or 
 " other returning officer shall wilfully delay, neglect or 
 " refuse duly to return any person who ought to be re- 
 " turned to serve in parliament, such person may, in case 
 " his right shall have been established by the decision of a 
 " select committee, sue the officer in any of her Majesty's 
 " courts of record at Westminster, and recover double the 
 
 (h) Wilkes v. Hungerford Market, 938. Vide Pryce v. Belcher, 3 C. B. 
 2 Bing. N. C. 281. 58 ; 4 C. B. 866. 
 
 (i) Ashby v. White, Ld. Raym.
 
 CHAP. VIII. — OF THOSE COGNIZABLE AT COMMON LAW. 539 
 
 " damages he shall sustain by reason thereof, together with 
 " with full costs of suit, provided such action is commenced 
 " within one year after the commission of the wrongful 
 " act, or within six months after the conclusion of any 
 " proceedings in the House of Commons relative to such 
 " election."
 
 540 BOOK V. OF CIVIL INJURIES. 
 
 CHAPTER IX. 
 
 OF THE LIMITATION OF ACTIONS. 
 
 We have now considered the various injuries between one 
 subject of the realm and another, of which the courts of 
 common law take notice, and the general nature of the re- 
 medies provided in these courts by way of action. When 
 any of these injuries have been committed, it follows that 
 a right of action has arisen ; but after ascertaining this, 
 there still remains another point for consideration before 
 an action can be safely brought, viz. how long the right 
 of action has existed, — there being established by certain 
 statutes called the Statutes of Limitation, with respect to 
 almost all actions and other legal proceedings, a certain 
 period, after which the remedy is barred by the mere effect 
 of lapse of time. 
 
 [The use of these Statutes of Limitation is to preserve 
 the peace of the kingdom, and to prevent those innume- 
 rable perjuries which might ensue if a man were allowed 
 to bring an action for an injury committed at any distance 
 of time. Upon both these accounts the law therefore 
 holds, that interest reipublicce ut sit finis litium ; and upon 
 the same principle, the Athenian laws in general prohibited 
 all actions where the injury was committed five years be- 
 fore the complaint was made (a).] Nor are these the only 
 reasons on which the bar by lapse of time is founded ; for 
 if the plaintiff were permitted to bring a claim forward at 
 any period, however remote, there would be danger of its 
 being delayed until the defendant had, by some casualty, 
 been deprived of the documentary or other evidence by 
 
 (a) 3 Bl. Com. 307, 308.
 
 CHAP. IX. — OF THE LIMITATION OF ACTIONS. 541 
 
 which it might once have been successfully encountered ; 
 and the delay might even be practised with the fraudulent 
 design of exposing him to this disadvantage: besides which, 
 it is to be considered that great hardship always attaches 
 to the case of a party who, after a long possession, not ori- 
 ginating in any fraud or other misconduct of his own, finds 
 himself unexpectedly liable to eviction ; while, on the other 
 hand, a supine claiment is entitled to no favour or protec- 
 tion from the law ; the maxim being, that vigilantibus, non 
 dormientibus, jura subveniunt. 
 
 The course of legislation upon the subject under con- 
 sideration has been such as to lead naturally to its division 
 into two branches ; the one consisting of those provisions 
 which relate to actions brought for recovery of things real ; 
 the other, of those which relate to actions brought with any 
 different object. 
 
 I. And, first, with respect to actions brought for recovery 
 of land or other things real. 
 
 It was in reference to real actions, while still the only 
 form of remedy for recovery of the realty, that the law of 
 limitations was first established. And originally such actions 
 were limited from some particular event or fixed era. Thus, 
 by the antient law in the time of Henry the second, the 
 demandant, in a writ of right, could not claim upon any 
 seisin earlier than the reign of Henry the first (b) ; nor by 
 the Statute of Merton, 20 Hen. III. c. 8, earlier than the 
 reign of Henry the second ; nor by Statute of Westminster 
 the first, 3 Edw. I. c. 39, earlier than that of Richard the 
 first. And the same kind of limitation, though from more 
 recent dates, was by the same statutes from time to time 
 appointed for many other kinds of real action. But these 
 dates were allowed afterwards to continue so long unaltered, 
 that in process of time they became in effect no limitation 
 at all ; which gave rise at length to the Statute of Limit- 
 
 (b) Com. Dig. Temps (G).
 
 542 BOOK V. OF CIVIL INJURIES. 
 
 ation, 32 Hen. VIII. c. 2; which took a different course, 
 by limiting real actions not from any fixed date or event, 
 but according to a fixed interval of antecedent time, and 
 provided, that where, in any writ of right or any action 
 possessory, the demandant claimed upon his own seisin, it 
 must be a seisin within thirty years back ; where on the 
 seisin of his ancestor, it must (in a writ of right) be a 
 seisin within sixty, or (in a possessory action) within fifty 
 years (c). And afterwards, by 21 Jac. I. c. 16, it was en- 
 acted, that all writs of formedon should be brought within 
 twenty years after the cause of action first fallen, and also 
 that no person should make entry into any lands or heredi- 
 ments, but within twenty years after his right should first 
 accrue; from which last enactment it followed, that the 
 same period of twenty years also became the limitation (as 
 it still is) in every action of ejectment, [for no ejectment 
 can be brought unless where the plaintiff is entitled to enter 
 on the lands (c?;.] 
 
 And thus stood the doctrine of limitation in general, so 
 far as relates to the recovery of real property, during the 
 whole of the long period that elapsed from the reign of 
 Henry the eighth to that of William the fourth ; upon 
 which branch of the law, however, it may be proper, for 
 the farther information of the student, to make some addi- 
 tional remarks. First, then, it may be observed, that there 
 originally existed no provision that was applicable to claims 
 by the crown, for the maxim formerly was, that nullum tem- 
 pus occurrit regi, and the statute of Henry the eighth was 
 not so framed as to bind the crown's rights. [By the statute, 
 indeed, of 21 Jac. I. c. 2, a time of limitation was extended 
 to the case of the king, viz. sixty years precedent to 19th 
 
 (c) 3 Bl. Com. 189, (n.) This 189. Nor did it extend to services 
 
 statute extended to rents, suits, and of a casual kind, such as by posibi- 
 
 sei vices, as well as other heredita- lity might not become due within 
 
 ments, but only to those which were the period of limitation, such as 
 
 customary or prescriptive, and not fealty. Com. Dig. Temps (G), 9. 
 
 to those created by deed, or reserved (d) 3 Bl. Com. 307. 
 on a particular estate. 3 Bl. Com.
 
 CHAP. IX. — OF THE LIMITATION OF ACTIONS. 543 
 
 [February, 16*23, (e) ;] but this of course became ultimately 
 ineffectual by reason of the gradual efflux of time. It was 
 however at length provided, by 9 Geo. III. c. 16, that in 
 suits relating to land, the crown should be bound by the 
 lapse of sixty years, by which latter statute the law relating 
 to this subject is still governed (f). Secondly, we may 
 remark, that even up to the reign of William the fourth 
 there existed [no limitation with regard to the time within 
 which any actions touching advowsons are to be brought, 
 at least none later than the times of Richard the first and 
 Henry the third ; for by the statute 1 Mar. st. 2, c. 5(g), the 
 Statute of Limitations, 32 Hen. VIII. c. 2, was declared 
 not to extend to any writ of right of advowson, quare 
 impedit, or assize of darreign presentment or jure patro- 
 natus(k).'] And this because [it may very easily happen, 
 that the title to an advowson may not come in question, 
 nor the right have an opportunity to be tried within sixty 
 years, which was the longest period of limitation assigned 
 by the statute of Henry the eighth. For Sir E. Coke tells 
 us (?!), that there was a parson of one of his churches that 
 had been incumbent there for fifty years ; nor are instances 
 wanting wherein two successive incumbents have conti- 
 nued for upwards of a hundred years (k). Had therefore 
 the last of these incumbents been the clerk of an usurper, 
 or been presented by lapse, it would have been necessary 
 and unavoidable for the patron, in case of a dispute, to 
 have recurred back above a century, in order to have 
 shown a clear title and seisin by presentation and admission 
 
 (e) 3 Inst. 189. upon any prior presentation, how- 
 
 (f ) See also 21 Jac. 1, c. 14, ever distant, 
 making some regulations as to in- (/() 3 Bl. Com. 250. 
 formations of intrusion, where the (i) 1 Inst. 115. 
 
 crown has been out of possession (h) Two successive incumbents of 
 
 twenty years. Doe v. Morris, 2 the rectory of Chelsford cum Farn- 
 
 Scott, 276. See as to 9 Geo. 3, c. borough, in Kent, continued 1.01 
 
 16, Goodtitle d. Parker v. Baldwin, years, of whom the former was ad- 
 
 11 East, 493. mitted in 1650, the latter in 1700 
 
 (g) Et vide 7 Ann. c. 18, allow- and died in 1751. 
 ing quare impedit, &c. to be brought
 
 544 BOOK V. — OF CIVIL INJURIES. 
 
 [of the prior incumbent.] But though for these reasons it 
 was deemed improper to introduce a limitation with respect 
 to this species of property, founded merely on the lapse of 
 time, yet it occurred to Blackstone, in treating of this sub- 
 ject, to remark, that it might be expedient to introduce 
 one compounded of the length of time and the number of 
 avoidances together; a suggestion that we shall presently 
 find to have been since carried into effect. 
 
 The state of the law of limitation above described having 
 fallen under the consideration of the commissioners ap- 
 pointed in the last reign for revision of the law relative to 
 real property in general, they took occasion in their reports 
 to recommend various improvements on this subject, which 
 were afterwards embodied into the act of parliament, 3 & 
 4 Will. IV. c. 27, and which were founded on the general 
 principle that twenty years is an allowance of time reason- 
 ably sufficient in every case for the recovery of corporeal 
 hereditaments, provided the claimant labour under no dis- 
 ability to assert his pretensions. This statute, which now 
 governs the law of limitation in all proceedings (to which 
 the crown is not a party), whether at law or in equity, for 
 recovery of things real; and which extends also to proceed- 
 ings for the recovery of money secured or charged on the 
 realty ; or for the recovery of any legacy, comprises a body 
 of enactments too numerous and diversified to be capable 
 of full detail in a work like the present. A selection shall 
 be made of such as are of cardinal character. 
 
 And here we may notice, at the outset, that part of the 
 statute (I), to which we have more than once had occasion 
 in the course of this volume to refer, viz. the abolition of 
 real actions (with the exception of the writ of right of 
 dower, dower, and quare impedit), so as to leave to parties 
 deprived of land, no remedy in general but those of entry or 
 ejectment. As in this class of actions suitors were allowed 
 to bring forward claims referable to periods so remote as 
 
 (/) 3 & 4 Will. 4, c. 27, s. 36.
 
 CHAP. IX. OF THE LIMITATION OF ACTIONS. 
 
 545 
 
 thirty, fifty, or even sixty years, they could not have been 
 retained without alteration consistently with the principle 
 on which, as above remarked, the act is founded ; and as 
 they were open to additional objection from their dilatory 
 character, and the technical difficulties with which they 
 were surrounded, there appeared no doubt upon the whole 
 as to the expediency of their extirpation. 
 
 But besides this measure, which must rather be consi- 
 dered as auxiliary to the new system of limitation than as 
 strictly forming a part of it, the statute contains a copious 
 and elaborate development of that system, from which we 
 shall extract the following provisions: — 
 
 1. That (subject only to some temporary exceptions) no 
 person (m) shall, after the 31st December, 1833, make an 
 entry or distress, or bring an action to recover any land (n) 
 or rent (o), but within twenty years next after the time at 
 which the right to make such entry or distress, or bring 
 such action, shall first accrue (p), either to the person him- 
 
 (m) " Person" is defined by 3 & 
 4 Will. 4, c. 27, s. 1, as extending 
 to a body politic, corporate or colle- 
 giate, and to a class of creditors or 
 other persons, as well as an indi- 
 vidual. 
 
 (n) " Land" is defined by the 
 same section to extend to all corpo- 
 real hereditaments, and also to tithes 
 (other than tithes belonging to a 
 spiritual or eleemosynary corpora- 
 tion sole), whether freehold or copy- 
 hold. As to the limitation of actions 
 to recover tithes, vide Ely v. Cash, 15 
 Mee. & W. 618. 
 
 (o) " Rent" is defined by the 
 same section to extend to all heriots, 
 services and suits, for which distress 
 may be made, and to all annuities and 
 periodical sums of money charged on 
 land, except moduses or composi- 
 tions belonging to a spiritual or 
 eleemosynary corporation sole. But 
 VOL. III. 
 
 as to rent reserved on demise, see 
 Grant v. Ellis, 9 Mee. & W. 113. 
 See also as to the limitation of actions 
 to recover rent, Owen v. De Beau- 
 voir, 16 Mee. & W. 547, S. C. (in- 
 error) 5 Exch. 166. 
 
 (/>) The statute (3 & 4 Will. 4, c. 
 27) defines with great care the time 
 at which the right shall be considered 
 as first accruing in all the different 
 cases that may arise (see Doe v. Ox- 
 enham, 7 Mee. & W. 131 ; Doe v. 
 Sumner, 14 Mee. & W. 39 ; Jones v. 
 Jones, 16 Mee. & W. 699), and con- 
 tains special provisions applicable to 
 the case of estates tail. As to the 
 effect of this statute upon the former 
 doctrine relative to adverse posses- 
 sion as applied to the subject of limi- 
 tation, see Nepean v. Doe, 2 M. & 
 W.894; Culley v. Doe, 11 Ad. & E. 
 1008. 
 
 N N
 
 546 COOK V. — OF CIVIL INJURIES. 
 
 self, or those through whom he claims (</), as the case may 
 be(r). This is subject, however, to qualification (as justice 
 evidently required) in the case of persons under disability ; 
 it being provided that, if, at the time at which the right of 
 any person shall first accrue, such person shall be under 
 the disability of infancy, coverture, idiotcy, lunacy, un- 
 soundness of mind, or absence beyond seas, then he, or the 
 person claiming through him, may, though twenty years 
 have expired, make the entry or distress, or bring the action, 
 within ten years next after the person to whom the right 
 accrued shall have ceased to be under any such disability, 
 or die, whichever shall first happen (s) ; but that no such 
 entry, distress, or action, shall be made or brought, in such 
 case of disability, but within forty years next after the right 
 accrues, although the person to whom it accrued may have 
 remained under disability the whole of the forty years, or 
 although the said term of ten years above mentioned shall 
 not have expired (t). 
 
 2. That after the same 31st December, 1833, no persons 
 claiming any land or rent in equity shall bring any suit to 
 recover the same but within the same period during which, 
 by virtue of the provisions of the act, he might have made 
 an entry of distress, or brought an action for recovery 
 thereof, if his estate had been legal instead of equitable {u). 
 This is subject, however, to the following provisions : — 
 First, That when any land or rent shall be vested in a 
 trustee upon any express trust, the right of the cestui que 
 trust, or any person claiming through him, to bring a suit 
 
 (q) This is defined by 3 & 4 Will. otherwise ; and also any person who 
 
 4, c. 27, s. 1 to mean any person by was entitled to an estate or interest 
 
 through or under or by the act of to which he, or some person through 
 
 whom, the person so claiming be- whom he claims, became entitled as 
 
 came entitled to the estate or interest lord by escheat, 
 
 claimed, as heir, issue in tail, tenant (»•) Sect. 2. 
 
 by the curtesy, tenant in dower, sue- (s) Sect. 16. 
 
 cessor, special or general occupant, (t) Sect. 17. 
 
 executor, administrator, legatee, hus- (i<) Sect. 24. 
 band, assignee, appointee, devisee, or
 
 CHAP. IX. — OF THE LIMITATION OF ACTIONS. 547 
 
 against the trustee, or any person claiming through him, 
 to recover such land or rent, shall be deemed to have first 
 accrued at and not before the time at which such land or 
 rent shall have been conveyed to a purchaser for a valuable 
 consideration, and shall then be deemed to have accrued 
 only as against such purchaser and any person claiming 
 through him (x). Secondly, That in every case of a con- 
 cealed fraud, the right of any person to bring a suit in 
 equity for the recovery of any land or rent of which he, 
 or any person through whom he claims, may have been 
 deprived by such fraud, shall be deemed to have first 
 accrued at and not before the time when such fraud shall, 
 or, with reasonable diligence, might have been first known 
 or discovered, but not so as to enable any owner of lands 
 or rents to have a suit in equity for the recovery of such 
 lands or rents, or for setting aside any conveyance of such 
 lands or rents on account of fraud, against any bona fide 
 purchaser for valuable consideration, who has not assisted 
 in the commission of such fraud, and who at the time that 
 he made the purchase did not know, and had no reason 
 to believe, that any such fraud had been committed (y). 
 Thirdly, That nothing in the act contained shall interfere 
 with any rule or jurisdiction of courts of equity in refusing 
 relief, on the ground of acquiescence or otherwise, to any 
 person whose right to bring a suit may not be barred by 
 virtue of that act (z). Fourthly, That when a mortgagee 
 shall have obtained the possession or receipt of the profits 
 of any land, or the receipt of any rent comprised in his 
 mortgage, the mortgagor, or any person claiming through 
 him, shall not bring a suit to redeem the mort°"ao-e but 
 within twenty years next after the time at which the mort- 
 gagee obtained such possession or receipt, unless in the 
 meantime an acknowledgment of the title of the mort2.a°or, 
 or of his right of redemption, shall have been given to the 
 mortgagor, or some person claiming his estate, or to the 
 agent of such mortgagor or person, in writing, signed by 
 
 (x) Sect. 25. (v) Sect. 26. (:) Sect. 27. 
 
 N N. 2
 
 548 BOOK V. — OF CIVIL INJURIES. 
 
 the mortgagee, or the person claiming through him ; and in 
 such case no such suit shall be brought but within twenty- 
 years next after such acknowledgment, or the last of such 
 acknowledgments, if more than one was given (a). 
 
 3. That after the same 31st December, 1833, no entry, 
 distress, action or suit to recover any land or rent shall be 
 made or brought by any spiritual or eleemosynary cor- 
 poration sole after the determination of such period as 
 hereinafter mentioned next after the time at which the 
 right of such corporation sole, or his predecessor, to make 
 or bring the same shall first accrue, viz. the period during 
 which two persons in succession shall have held the office 
 or benefice in respect whereof such land or rent shall be 
 claimed, and six years after a third person shall have been 
 appointed thereto, if the times of such two incumbencies 
 and such term of six years taken together shall amount to 
 the full period of sixty years ; and if not, then during such 
 farther number of years as will make up the sixty years(S). 
 
 4. That after the same 31st December, 1833, no person 
 shall bring any qnare impedit or other action or suit to 
 enforce a right to present to or bestow any ecclesiastical 
 benefice as the patron thereof, after the expiration of such 
 period as thereinafter mentioned, viz. the period during 
 which three clerks in succession shall have held the same, 
 all of whom shall have obtained possession thereof ad- 
 versely to the right of presentation or gift of such person, 
 or of some person through whom he claims, if the times of 
 
 («) Sect. 28, which also contains claiming under a mortgage of land 
 
 provisions as to the case of there to make an entry or bring an action 
 
 being more mortgagors or mortga- at law or suit in equity to recover it, 
 
 gees than one, and the effect of ac- at any time within twenty years from 
 
 knowiedgments to or by one of them. the last payment on account of prin- 
 
 We may notice here that by a sub- cipal or interest, though more than 
 
 sequent act, 7 Will. 4 & 1 Vict. c. twenty years from the time the right 
 
 28, (reciting that doubts had oc- first accrued. As to this statute, see 
 
 curred as to the meaning of the act Doe v. Eyre, 20 L. J. (Q. B.) 431 ; 
 
 in question as to the limitation in Doe v. Massey, ib. 434. 
 case of mortgages,) it is declared that (ft) Sect. 29. 
 
 it shall be lawful for any person
 
 CHAP. IX. OF THE LIMITATION OF ACTIONS. 549 
 
 such incumbencies taken together shall amount to the full 
 period of sixty years ; and if not, then after the expiration 
 of such farther time as will make up the sixty years. 
 
 5. That after the same 31st December, 1833, no person 
 shall bring any quare impedit or other action or suit to pre- 
 sent to or bestow any ecclesiastical benefice, as the patron 
 thereof, after the expiration of one hundred years from the 
 time at which a clerk shall have obtained possession of 
 such benefice adversely to the right of presentation or gift 
 of such person, or of some person through whom he claims, 
 or of some person entitled to some preceding estate or 
 interest, or undivided share, or alternate right of presenta- 
 tion or gift, held or derived under the same title ; unless a 
 clerk shall subsequently have obtained possession of such 
 benefice on the presentation or gift of the person so claim- 
 ing, or of some person through whom he claims, or of some 
 other person entitled in respect of an estate, share or right, 
 held or derived under the same title (c). 
 
 6. That after the same 31st December, 1833, no action 7^ 
 or suit, or other proceeding, shall be brought to recover any 
 sum of money secured by any mortgage, judgment or lien, 
 
 or otherwise charged upon or made payable out of any land , / 
 or rent, at law or in equity, or to recover any legacy, but 
 within twenty years next after a present right to receive the 
 same shall have accrued to some person capable of giving 
 a discharge for the same, unless in the meantime some part 
 of the principal or some interest thereon shall have been 
 paid, or some acknowledgment of the right thereto shall 
 have been given in writing, signed by the person by whom 
 the same shall be payable, or his agent, to the person enti- 
 tled thereto or his agent ; and in such case no such action, 
 suit, or other proceeding, shall be brought but within 
 
 (c) Sect. 33. The periods limited the case where a bhhop claims as pa- 
 
 by this act for bringing a quare im- tron ; but the act does not affect the 
 
 pedit, or other action or suit, to en- right of any bishop to collate by rea- 
 
 force a right to present to or bestow son of lapse. 6 & 7 Vict. c. 54, s. 3. 
 an ecclesiastical benefice, extend to
 
 550 BOOK V. OF CIVIL INJURIES. 
 
 twenty years after the last of such payments or acknow- 
 ledgments (e). y- 
 
 7. That after the same 31st December, 1833, no arrears 
 of dower, or damages on account of such arrears, shall be 
 recovered by any action or suit for a longer period than six 
 years next before the commencement of such action or 
 suk(/). *jh 
 
 8. That after the same 31st December, 1833, no arrears 
 of rent, or of interest (in respect of any sum of money 
 
 ^_ jC</?T charged upon or payable out of any land or rent, or in re- 
 spect of any legacy), or any damages in respect of such 
 arrears of rent or interest, shall be recovered by any dis- 
 tress, action or suit, but within six years next after the 
 same respectively shall have become due, or next after an 
 acknowledgment of the same in writing shall have been 
 given to the person entitled thereto, or his agent, signed by 
 the person by whom the same was payable, or his agent ; 
 provided nevertheless, that where any prior mortgagee, or 
 other incumbrancer, shall have been in possession of any 
 land, or in the receipt of the profits thereof, within one year 
 next before an action or suit shall be brought by any per- 
 son entitled to a subsequent mortgage or other incumbrance 
 on the same land, the person entitled to such subsequent 
 mortgage or incumbrance may recover in such action or 
 suit the arrears of interest which shall have become due 
 during the whole time that such prior mortgagee or in- 
 cumbrancer was in such possession or receipt as aforesaid, 
 although such time may have exceeded the said term of six 
 ■y years (g). 
 
 9. That after the same 31st December, 1833, no person 
 — P* claiming any tithes, legacy or other property for the reco- 
 very of which he might bring an action or suit at law or in 
 equity, shall bring a suit or other ])roceeding in any spi- 
 te) 3 & 4 Will. 4, c. 27, s. 40. which case it was held that this sec- 
 (/) Sect. 41. tion is not repealed by 3 & 4 Will. 4, 
 (g) Sect. 42. As to this, see c. 42, s. 3, post, p. 553. 
 
 Humfrey v. Gery, 7 C. B. 567, in
 
 CHAP. IX. — OF THE LIMITATION OF ACTIONS. 
 
 551 
 
 ritual court to recover the same, but within the period 
 during which he might brine: such action or suit, at law or 
 in equity (h). ^ 
 
 II. With respect to actions not brought for recovery of 
 things real. 
 
 1. A period of limitation with respect to most of th^se 
 is fixed by 21 Jac. I. c. 16 (i), which provides in substance 
 that all actions of trespass for injuries to the person or to 
 land, or to personal property (except those hereinafter par- 
 ticularized), all actions of detinue, trover, replevin, or ac- 
 count (except upon accounts between merchants (k) ), and f 
 all actions of trespass on the case (except for verbal slan- 
 der), or of debt on simple contract or for arrears of rent, 
 shall be limited to six years after the cause of action 
 accrued ; actions of trespass for assault, menace, battery, 
 wounding and imprisonment, to four years ; and actions 
 on the case for verbal slander to two years. But here/, 
 also, as in the statute of William the fourth, exception is 
 made in favour of persons labouring under disability (I). 
 For, first, if any person entitled to sue shall, at the time 
 when the cause of action accrued, be an infant or a feme 
 covert, or be non compos, imprisoned (in), or beyond the 
 seas, it is provided by the statute now under consideration 
 that such person shall be at liberty to sue within the same 
 
 
 
 ,/a. 
 
 (/?) Sect. 43. 
 
 (i) As to time from which this sta- 
 tute begins to run in particular cases, 
 see Collinge v. Heywood, 9 Ad. & 
 El. 633; Rhodes v. Smethurst, 1 M. 
 & W. 42 ; S. C. (in error), 6 M. & 
 W. 351 ; Waters v. Earl of Thanet, 
 2 Q. B. 757 ; Howell v. Young, 5 B. 
 & C. 259 ; Tobacco Pipe Makers' 
 Company v. Loder, 20 L. J. (Q. B.) 
 414. 
 
 (/c) As to this exception, see Inglis 
 v. Haigh, 8 Mee. & W. 769, where 
 
 it was held that it relates only to 
 actions of account, or (perhaps) ac- 
 tions on the case for not accounting. 
 See also Cottamv. Partridge, 4 Man. 
 & Gr. 271. 
 
 (/) See also sect. 4, as to the time 
 allowed for bringing a new action 
 after the defendant has been out- 
 lawed, or a judgment in favour of 
 the plaintiff has been arrested or re- 
 versed. 
 
 (m) Piggot v. Rush, 4 Ad. & El. 
 912.
 
 552 
 
 BOOK V. OF CIVIL INJURIES. 
 
 T OLtSty..* ^ 
 
 period after the removal of the disability as is allowed to 
 persons having no such impediment (n). And by 4 Ann. 
 c. 16, s. 19, if any person liable to be sued shall at the time 
 when the cause of action accrued be beyond the seas (o), a 
 similar extension of the time for bringing the action shall 
 in that case also be permitted (p). 
 
 The operation of the statute of 21 Jac. I. c. 16, with 
 respect to actions upon simple contract, was at one time 
 considerably weakened by the doctrine which prevailed, 
 that not only a payment on account of principal or inte- 
 rest, but any mere verbal acknowledgment, made before 
 action brought (q), that the debt was due, would suffice to 
 take the case out of the statute (as it was called), by raising 
 an implied assumpsit or promise to pay the debt; upon 
 which promise (as upon a new cause of action) the same 
 time for instituting a suit would be allowed as upon the 
 original contract. But the law on this subject has been 
 since materially altered ; for by 9 Geo. IV. c. 14, it is 
 enacted, that in actions of debt or on the case, grounded 
 upon any simple contract, no acknowledgment or promise 
 y words only shall be deemed sufficient evidence of a new 
 or continuing contract whereby to take any case out of the 
 operation of the 21 Jac. I. c. 16, unless such acknowledg- 
 ment or promise be contained in some writing (r), to be 
 
 (n) See Le Veux v. Berkeley, 5 Such writ, so renewed from time to 
 Q. B. 836 ; Townsend v. Deacon, 3 
 Exch. 706. 
 
 (o) See Lane v. Bennett, 3 Cromp. 
 Mee. & Ros. 72 (Irish); Fannin v. 
 Anderson, 7 Q. B. 811. 
 
 (/)) The right of action may be 
 kept alive for any length of time, 
 even after the period of limitation 
 has expired, by merely commencing 
 an action (that is, suing out a writ 
 of summons), and getting it renewed 
 every six months, that is impressed 
 by the proper officer with a seal 
 bearing the date of such renewal. 
 
 time, will suffice continually to pre- 
 vent the operation of the Statute of 
 Limitations, though nothing farther 
 be done in the meantime in the ac- 
 tion. See 15 & 16 Vict. c. 76, s. 11. 
 
 (q) Bateman v. Pinder, 3 Q. B. 574. 
 
 (r) As to what is a sufficient 
 writing to rebut the Statute of Li- 
 mitations, see Spong v. Wright, 9 
 Mee. & W. 629 ; Cripps v. Davis, 
 12 Mee. & W. 159; Hart v. Pren- 
 dergast, 14 Mee. & W. 741 ; Wil- 
 liams v. Griffith, 3 Exch. 335 ; Wal- 
 ler v. Lacy, 1 Man. & Gr. 54 ;
 
 CHAP. IX. — OF THE LIMITATION OF ACTIONS. 553 
 
 signed by the party to be chargeable thereby ; and that 
 where there shall be two or more joint contractors, or joint 
 executors or administrators of any contractor, no such joint 
 contractor or joint executor or administrator shall be charge- 
 able in respect only of the written acknowledgment of the 
 other. This new enactment, however, is subject to a pro- 
 viso, that it shall not lessen or alter the effect of any 
 payment of principal or interest (s) made by any person 
 whosoever (t). 
 
 2. The statute of 21 Jac. I. c. 16, was also in itself ma- 
 terially defective ; for it made no provision for actions on 
 bonds, indentures, or other instruments under seal ; and 
 consequently parties having claims on such instruments 
 were at liberty to sue upon them in covenant or debt at 
 any period of time, however distant. And though to pre- 
 vent the injustice which such a state of the law would 
 otherwise have occasioned, it became the practice on the , 4 
 trial of such actions for the judge to recommend the jury, 
 in cases where no payment on account of principal or inte- 
 rest had been made or demanded within twenty years, to 
 presume that the bond or other specialty had been satisfied, 
 this method of proceeding was found not to be attended 
 with the same advantage, or to adapt itself so correctly to 
 the purposes of justice, as a law of direct limitation. Such 
 limitation has been consequently now provided with respect 
 
 Bayley v. Ashton, 12 Ad. & El. 493 ; (t) Verbal evidence is admissible 
 
 Gardner v. M'Mahon, 3 Q. B. 561. to show payments on account, see 
 
 And as to when a writing by an Cleave v. Jones, 20 L. J. (Exch.) 238, 
 
 agent will be sufficient, see Hyde v. by which case Willis v. Newham, 3 
 
 Johnson, 2 Bing. N. C. 777. The Y. & J. 518, and the authorities fol- 
 
 statute is not rebutted by a recent lowing that decision, which laid down 
 
 item in an open account. Cottam the contrary doctrine, were overruled. 
 
 v. Partridge, 4 Man. & Gr. 271; As to payments not specifically ap- 
 
 Phillips v. Broadley, 9 Q. B. 744. propriated to one of two debts, see 
 
 As to the effect of a cross account Burn v. Boulton, 2 C. B. 476. As 
 
 and settlement thereon, see Ashbyu. to part payment, see Wainman v. 
 
 James, 11 Mee. & W. 542. Kynman, 1 Exch. 118 ; Davies v. 
 
 (s) See Bradfield v. Tupper, 21 L. Edwards, 21 L. J. (Exch.) 4. 
 J. (Exch.) 6.
 
 554 
 
 BOOK V. OF CIVIL INJURIES. 
 
 £ ^.^,-p^, 
 
 to claims on instruments under seal, as well as some other 
 cases not embraced by the statute of James; it being enacted 
 *^Ztf£*Gy the 3 & 4 Will. IV. c. 42, s. 3, that all actions of debt 
 i^jpo ^ for rent or on any indenture of demise, or of covenant or 
 debt on any bond or other specialty (t), and all proceedings 
 on recognizance, shall be brought within twenty years after 
 the cause of action or proceeding accrued ; and all actions 
 of debt upon an award (where the submission is not under 
 seal,) or for a copyhold fine or for an escape, or money levied 
 upon any writ of fieri facias, within six years. Which 
 enactment is subject, like those of the other statutes, to the 
 exception with respect to any person under disability, as an 
 infant, feme covert, non compos, or beyond the seas (u) ; 
 and also to a proviso, that if any acknowledgment in writing 
 y^^J^- be signed by the party liable or his agent, or payment or 
 satisfaction made in part on account of any arrears of 
 principal or interest, the person entitled to the action may 
 bring the same within twenty years after such acknowledg- 
 ment, payment or satisfaction ; or, in case of disability, 
 within twenty years after the disability shall have ceased (v). 
 3. By statute 31 Eliz. c. 5, all suits and indictments (w) 
 
 fendant has been outlawed, or a 
 judgment in favour of the plaintiff 
 has been arrested or reversed. As 
 to suing out and renewing writs to 
 save the Statute of Limitations, vide 
 
 A?~ 
 
 7>tfs 
 
 (l) Vide Strachan v. Thomas, 12 
 Ad. & El. 536 ; Paget v. Foley, 2 
 Bing. N. C. 679 ; James v. Salter, 3 
 Bing. N. C. 544 ; Farrell v. Gleeson, 
 11 CI. & Fin. 702; Sanders v. Cow- 
 ard, 13 Mee. & W. 65 ; 15 ib. 48 ; 
 Doe v. Beckett, 4 Q. B. 601 ; Tuckey 
 v. Hawkins, 4 C. B. 655 ; Kemp v. 
 Gibbon, 12 Q. B. 662; et sup. p. 
 550, n. (g). 
 
 (u) By 3 & 4 Will. 4, c. 42, s. 7, no 
 part of the United Kingdom, Man, 
 Jersey, Guernsey, Alderney, or Sark, 
 or the adjacent islands, shall be be- 
 yond the seas within the meaning 
 either of this act or the 21 Jac. 1, c. 16. 
 
 (v) Sect. 5. See as to this proviso, 
 Howcutt v. Bonser, 3 Exch. 491 ; see 
 also sect. 6 as to the time allowed for 
 bringing a new action when the de- 
 
 sup, p. 552, n. (/A 
 
 (w) This statute extended also to 
 all informations upon any penal sta- 
 tutes ; but so much of it " as relates 
 to the time limited for exhibiting an 
 information for a forfeiture upon any 
 penal statute" is now repealed by 
 11 & 12 Vict. c. 43, s. 36, which act 
 also provides (sect. 11) that all in- 
 formations for offences punishable on 
 summary conviction shall be laid 
 within six calendar months from the 
 time when the matter arose, unless 
 the time for the information has been 
 otherwise specially limited.
 
 CHAP. IX. OF THE LIMITATION OF ACTIONS. 555 
 
 upon any penal statutes (.r), made, or to be made, where < ?->— Q " 
 any forfeiture is to the crown alone, shall be sued within 
 two years from the commission of the offence ; where the * 
 forfeiture is to a common informer alone, within one / 7 a 
 year ( y ) ; where to the crown and a common informer 
 jointly, then by the common informer within one year, and 
 by the crown within two years after that year is expired. 
 But this statute did not extend to penal actions at suit of 
 the party grieved ; and therefore by 3 & 4 Will. IV. c. 42, 
 s. 3, before cited, it is required that these shall be brought 
 within two years after the offence shall have been com- 
 mitted, unless the particular statute which creates the for- 
 feiture shall have expressly enacted otherwise. 
 
 4. By 11 & 12 Vict. c. 44, s. 8, it is provided, that no 
 action shall be brought against any justice of the peace 
 for anything done in the execution of his office, unless 
 commenced within six calendar months after the act com- 
 mitted ; and constables, headboroughs, and other officers 
 acting as aforesaid, enjoy a similar protection under 24 
 Geo. II. c. 44, s. 8 (z). 
 
 5. By several acts relating to the customs and excise, 
 actions against public officers concerned in carrying their 
 enactments into execution are limited to periods of different 
 lengths, which, however in no case exceed six months (a). 
 And thus much of the law of limitation, whether as regards 
 the remedies for the recovery of the realty, or those which 
 have a different object, Between which the following dis- 
 tinction is observable, — that, as regards the former, the 
 statute 3 & 4 Will. IV. c. 27, has, by its express pro- 
 vision (b), the effect of extinguishing the right as well as 
 barring the remedy; but, as regards the latter, the limitation 
 
 (x) As to these, vide sup. p. 529. 28 Geo. 3, c. 37, s. 23 ; 6 Geo. 4, 
 
 (y) Chance v. Adams, 1 Ld. Raym. c. 108, s. 97; c. 114, s. 64 ; 7&8 
 
 78. Geo. 4, c. 53, s. 115. See also 8 & 
 
 (*) Vide sup. bk. iv. pt. 1, c. 10. 9 Vict. c. 93, s. 80. 
 
 (a) 1 Chit. Gen. Pr. 772, where (6) Sect. 34. 
 
 the following acts are mentioned :
 
 556 BOOK V. OF CIVIL INJURIES. 
 
 by 21 Jac. I. c. 16, bars the remedy only. So that, though 
 I can bring no action to recover a debt on a simple con- 
 tract after the expiration of six years from the time that 
 it first became payable, there is nothing to prevent my 
 obtaining payment of it after that period, through the 
 medium of any lien that I may hold on the property of the 
 debtor (c). 
 
 6. Lastly, by 5 & 6 Vict. c. 97, s. 5, it is enacted, that 
 from the passing of that act the period within which actions 
 may be brought for any thing done under the authority, 
 or in pursuance, of any local or personal act of parliament, 
 shall be two years ; or in case of continuing damage, then 
 within one year after such damage shall have ceased (d). 
 
 (c) Higgins v. Scott, 2 B. & Ad. time for bringing proceedings in error 
 413. on a judgment, vide bk. v. c. 10. 
 
 (d) As to the limitation of the
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 557 
 
 CHAPTER X. 
 
 OF THE PROCEEDINGS IN AN ACTION. 
 
 Having under the head of redress by suit in courts (a) 
 examined in the preceding pages, first, the nature and 
 several species of courts of justice, wherein remedies are 
 administered for all sorts of civil injuries (b), we proceeded 
 next to investigate the nature of the injuries themselves, 
 and the remedies provided for them ; and in the first in- 
 stance turned our attention to that very large and impor- 
 tant class of injuries which are cognizable in the courts of 
 common law, and the remedy which those courts afford 
 in different cases by action (c) ; — to complete our view of 
 which, we are now to consider the manner in which that 
 remedy by action is pursued and applied, and the course 
 of proceedings which it involves. But as some of these 
 proceedings are of a nature that, according to the ordinary 
 practice of the courts, can be transacted only during the 
 particular periods of the year called terms, it will be con- 
 venient to advert shortly to those forensic seasons, before 
 we enter on the main business of the chapter. 
 
 [The terms are supposed by Mr. Selden (d) to have 
 been instituted by William the Conqueror; but Sir H. 
 Spelman hath clearly and learnedly shown, that they were 
 gradually formed from the canonical constitutions of the 
 church, being indeed no other than those leisure seasons 
 of the year which were not occupied by the great festivals 
 or fasts, or which were not liable to the general avoca- 
 tions of rural business. Throughout all Christendom in 
 
 (n) Vide sup. p. 362. (r) Vide sup. bk. v. c. 7. 
 
 (6) Vide sup. bk. v. cc. 3, 4, 5, 6. (d) Jan. Angl. 1. 2, s. 9.
 
 558 BOOK V. OF CIVIL INJURIES. 
 
 [very early times the whole year was one continual term 
 for hearing and deciding causes. For the Christian ma- 
 gistrates, to distinguish themselves from the heathens, who 
 were extremely superstitious in the observation of their 
 dies fasti et nefasti, went into a contrary extreme, and 
 administered justice upon all days alike ; till at length the 
 church interposed, and exempted certain holy seasons from 
 being profaned by the tumult of forensic litigations, as par- 
 ticularly the time of Advent and Christmas, which gave 
 rise to the winter vacation ; the time of Lent and Easter, 
 which created that in the spring; the time of Pentecost, 
 which produced the third ; and the long vacation between 
 Midsummer and Michaelmas, which was allowed for the 
 haytime and harvest. All Sundays also, and some parti- 
 cular festivals, as the days of the purification, ascension, 
 and some others, were included in the same prohibition, 
 which was established by a canon of the church, a.d. 517, 
 and was fortified by an imperial constitution of the younger 
 Theodosius, comprised in the Theodosian code (e). 
 
 Afterwards, when our own legal constitution came to be 
 settled, the commencement and duration of our law terms 
 were appointed with an eye to those canonical prohibi- 
 tions; and it was ordered by the laws of King Edward 
 the Confessor (f), that from Advent to the octave of the 
 Epiphany, from Septuagesima to the octave of Easter, from 
 the Ascension to the octave of Pentecost, and from three 
 in the afternoon of all Saturdays till Monday morning, the 
 peace of God and of holy church shall be kept throughout 
 all the kingdom. And so extravagant was afterwards the 
 regard that was paid to these holy times, that though the 
 author of the Mirror {g) mentions only one vacation of any 
 considerable length, containing the months of August and 
 September, yet Britton is express (h), that in the reign of 
 King Edward the first no secular pleas could be held, nor 
 
 (e) Spelman, Of the Terms. (g) C. 3, s. 8. 
 
 (/) C. 3, De Temporibus et Die- (h) C. 53. 
 
 bus Pacis.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 559 
 
 [any man sworn on the Evangelists, in the times of Ad- 
 vent, Lent, Pentecost, harvest, and vintage, the days of the 
 great litanies, and all solemn festivals. But he adds, that 
 the bishops did nevertheless grant dispensations, of which 
 many are preserved in Rymer's Fcedera{i), that assizes and 
 juries might be taken in some of these holy seasons. And 
 soon afterwards a general dispensation was established by 
 the Statute of Westminster the first, 3 Edw. c. 51, which 
 declares that " by the assent of all the prelates, assize of 
 " novel disseisin, mortancestor and darrelgn 'presentment 
 " shall be taken in Advent, Septuagesima and Lent ; and 
 " that at the special request of the king to the bishops." 
 The portions of time that were not included within these 
 prohibited seasons fell naturally into a fourfold division, 
 and, from some festival day that immediately preceded 
 their commencement, were denominated the terms of St. 
 Hilary, of Easter, of the Holy Trinity, and of St. Michael ; 
 which terms have been since regulated and abbreviated by 
 several acts of parliament (j).] Their present regulation 
 depends on the statute 11 Geo. IV. & 1 Will. IV. c. 70, 
 amended by 1 Will. IV. c. 3. 
 
 At the time when the statute 1 1 Geo. IV. & 1 Will. IV. 
 c. 70, was passed, Michaelmas Term began on the 6th 
 November and ended on the 28th of the same month ; 
 Hilary Term began on the 23rd January, and ended on 
 the 12th February, unless any of these four days happened 
 to fall on a Sunday — for then the term began or ended 
 on the day following ; Easter Term began on the Wednes- 
 day fortnight after Easter Sunday, and ended on the Mon- 
 day three weeks afterwards; Trinity Term on the Friday 
 after Trinity Sunday, and ended on the Wednesday fort- 
 night after it began (k). Two of the terms thus depended 
 on the moveable feasts of Easter and Trinity, which was 
 
 (i) Temp. Hen. 3, passim. 1, c. 6 ; and 24 Geo. 2, c. 48. 
 
 (j) Trinity Term, in particular, (k) Christian's Blackstone, vol. iii. 
 
 had been regulated by 32 Hen. 8, p. 278. 
 c. 21 ; Michaelmas Term, by 16 Car.
 
 560 BOOK V. — OF CIVIL INJURIES. 
 
 attended with some inconvenience. But by this statute, 
 and by the statute 1 Will. IV. c. 3, they are now fixed 
 to certain periods ; and all the four terms are otherwise 
 newly regulated ; it being provided, that Hilary Term 
 shall begin on the 11th, and end on the 31st January; 
 that Easter Term shall begin on the 15th April, and end 
 on the 8th May ; that Trinity Term shall begin on the 
 22nd May, and end on the 12th June ; and that Michael- 
 mas Term shall begin on the 2nd November, and end on 
 the 25th. And it is farther enacted (I), that if the whole? 
 or any number of the days intervening between the Thurs- 
 day before and the Wednesday next after Easter Day fall 
 within Easter Term, there are to be no sittings in banc (m) 
 or any of such intervening days, and the commencement 
 of the ensuing Trinity Term is in such case to be post- 
 poned, and its continuance prolonged for an equal number 
 of days of business (n). And farther (o), that in case the day 
 of the month on which any term is to end shall fall on a 
 Sunday, then that Monday next after shall be deemed to 
 be the last day of the term. The case of the day of the 
 month on which the term is to begin falling on a Sunday 
 is not provided for by these acts. It has been decided, 
 however, that, for the purpose of computation, the Sunday 
 must in that case be considered as the first day of the 
 term, although, as the courts do not sit, no judicial act can 
 be done, or supposed to be done, till the following Mon- 
 day (p). 
 
 With respect to the kind of proceedings which are con- 
 ducted exclusively in term, we may remark, that in general 
 all sittings in banc are of that character. But the sittings 
 in the courts of assize and nisi prius(q) are held for the 
 
 (/) 11 Geo. 4 & 1 Will. 4, c. 70, them, 
 
 s. 6. (h) See Wright v. Lewis, 9 Dowl. 
 
 (m) As to sittings in banc, vide sup. 183; Donnes v. Bostock, ibid. 241. 
 
 p. 415. By 1 Will. 4, c. 3, s. 3, such (o) 1 Will. 4, c. 3, s. 3. 
 
 intervening days are nevertheless to (p) See Doe v. Roe, 1 Dowl. 63 ; 
 
 be taken as a part of the term, though Arch. Pr. by Chitty, p. 127, 8th edit, 
 
 there are no sittings in banc upon (7) Vide sup. p. 415.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 561 
 
 most part in vacation, that is, during the intervals between 
 the terms : and (with the exception of a reasonable period 
 of partial recess (r) ) all proceedings taking place between 
 the parties or their attornies out of court, that is, not in 
 the actual presence of the judges, may usually be trans- 
 acted during the same intervals, as well as in term time (s). 
 Moreover, for clearing off from time to time the accu- 
 mulation of arrears, it has been provided by 1 & 2 Vict, 
 c. 32, that it shall be lawful for the Courts of Queen's 
 Bench, Common Pleas, and Exchequer, at their discretion, 
 to hold sittings in banc, in time of vacation, at such times 
 as are now by law appointed for holding sittings at nisi 
 priiis in London and Middlesex, for the purpose of dis- 
 posing of business then pending and undecided in such 
 courts respectively. And so much with respect to terms — 
 the explanation of which seemed a necessary introduction 
 to the proper subject of the chapter, viz. the proceedings 
 in an action to which we are now to invite the reader's at- 
 tention. 
 
 [The most natural and perspicuous way of considering 
 the proceedings in an action, will be to pursue the order 
 and method wherein the proceedings themselves follow 
 each other, rather than to distract and subdivide the subject 
 
 (?•) This period is from 10th Au- 
 gust to 24th October, during which 
 a part even of the business out of 
 court (viz. the pleadings) are sus- 
 pended. Reg. Gen., Hil. T., 1853, 
 r. 9, 173 — 175. As to the holidays 
 allowed in the common law courts 
 and offices, see 3 & 4 Will. 4, c. 42, 
 s. 43 ; Reg. Gen. above cited. 
 
 (s) The practice on this subject 
 was formerly very different. All 
 writs must have been made return- 
 able in term ; every pleading and 
 every entry of judgment, even when 
 in fact delivered or entered in va- 
 cation, must always have been in- 
 VOL. III. 
 
 tituled of some antecedent term; 
 the plaintiff, though at liberty to de- 
 clare in vacation, could not compel 
 the defendant to plead until the sub- 
 sequent term : and a party obtaining 
 a verdict in vacation on the trial of 
 any issue, or any inquisition of da- 
 mages, had also to wait in every case 
 until the term next following, before 
 he could sign final judgment, or 
 take out execution. Second Report 
 of the Common Law Commissioners 
 appointed in 1828, p. 28. It is with- 
 in the last twenty years only that 
 these inconveniences have ceased to 
 exist. 
 
 O O
 
 562 BOOK V. OF CIVIL INJURIES. 
 
 [by any more logical analysis.] The regular therefore and 
 orderly parts of a suit at law are these: I. The process; 
 II. The pleadings ; III. The trial and evidence; IV. The 
 judgment; V. The proceedings in error (where the judg- 
 ment is supposed to be erroneous) ; VI. The execution. 
 
 I. To begin then, with the process : — 
 
 The first object in an action is to procure the defendant's 
 appearance, in order that he may have an opportunity of 
 being informed of the plaintiff's demand or complaint, and 
 of encountering it in such manner as he may think fit. 
 The term appearance (whether applied to plaintiff or defend- 
 ant) has reference to an antient state of practice, by which 
 the litigant parties personally, or by their respective at- 
 tornies, actually confronted each other in open court. But 
 their appearance has for centuries past ceased to be an 
 actual one, and as regards the plaintiff, no particular form 
 is now used in substitution for it ; but as regards the de- 
 fendant, the form is observed of his delivering to the pro- 
 per officer of the court a memorandum importing either 
 that he appears in person, or that some attorney, whose 
 name is given, appears on his behalf — a form that obviously 
 secures the important object of protecting defendants from 
 the danger of having a judgment obtained against them by 
 surprise. This appearance is previously commanded by a 
 writ (or mandate from the sovereign), which is termed in 
 technical language the process in the action. 
 
 The process in antient times comprised a variety of dif- 
 ferent writs, of different degrees of stringency, issued con- 
 secutively upon each other, where the first for any reason 
 failed to be effectual (t). But it always began with an ori- 
 ginal writ, which was an instrument issued out of Chancery 
 in the name of the sovereign, under the great seal, (instead 
 
 (t) All these writs fell under the process, to distinguish them from the 
 
 common term of the process, and original writ, and also from writs of 
 
 those subsequent to the first or ori- execution, which were termed final 
 
 ginal writ were also called the mesne process.
 
 CHAP. X.— OF THE PROCEEDINGS IN AN ACTION. 563 
 
 of being merely under the seal of the court of common 
 law itself, as was usual with other process,) commanding 
 the sheriff to require the defendant to appear in the court of 
 common law, to answer to some particular cause of action 
 in the writ set forth. This mode of commencing a suit, 
 which (as we shall see hereafter (u) ) is not yet laid aside in 
 the few real actions which still exist, was antiently in uni- 
 versal use, and is a practice of remote antiquity. We may 
 also take occasion to remark here, that great technical im- 
 portance was attached to a writ of this description. For 
 as it had constituted from time immemorial the first step in 
 the suit, and always set forth (in general or special terms 
 according to the nature of the case) the circumstances upon 
 which the suit was founded, it had incidentally the effect of 
 defining the scope and number of our legal remedies them- 
 selves ; it being held that no action would lie unless the case 
 was one for which a precedent could be found in the Re- 
 gister of Original Writs. Thus the law of writs (that is, of 
 original writs) became in effect identical with that of actions, 
 and the same remedy was described indifferently as a writ of 
 trespass (for example), or of dower, or an action of trespass, 
 or of dower. In course of time, however, new modes of 
 commencement were devised, by connivance of the judges, 
 in order to avoid the expense of an original writ, (for which 
 a fine or fee, of considerable amount, was in many cases 
 payable to the crown), and with the view also of enabling 
 the Courts of Queen's Bench and Exchequer to effect that 
 encroachment or usurpation on the jurisdiction of the Com- 
 mon Pleas to which we referred in a former part of this 
 volume (v). We shall not encumber our text with any at- 
 tempt to explain the nature of these devices, or the manner 
 in which they severally operated, which are now become 
 matters of mere curiosity (iv). It will suffice to say that 
 they had the effect of irregularly introducing into each of 
 the three courts the use of a variety of writs of different 
 
 (m) Vide post, bk. v. c. 11. (w) Vide sup. pp. 389, n. (/c); 394, 
 
 (v) Vide supra, pp. 389, 394. n.(/). 
 
 o o. 2
 
 564 
 
 BOOK V. OF CIVIL INJURIES. 
 
 descriptions by way of alternatives for the antient course 
 of suing out an original writ under the great seal; and that 
 the result of this was at length, to involve the first stages 
 of the suit in great and unnecessary complexity. The 
 Commissioners appointed in 1828 for inquiry into the 
 course of proceedings at common law, having been con- 
 sequently led to recommend the adoption of a simpler and 
 more uniform system (x), an act of parliament was even- 
 tually passed for the purpose (?/). 
 
 But this system, though unquestionably comprising many 
 capital improvements, has latterly been thought to have 
 been too moderate and cautious in its deviations from the 
 antient course ; and has now, therefore, been itself amended 
 by the " Common Law Procedure Act," 15 & 16 Vict, 
 c. 76 (z), the fruit of a new Commission on the same 
 subject. 
 
 According to the method of proceeding established by 
 this act (which in part retains, and in many important re- 
 spects innovates upon, the antecedent practice (a) ), all 
 personal actions (b) are to be commenced by a writ of 
 
 (x) See First Com. Law Report. 
 
 (j/) 2 Will. 4, c. 39. 
 
 (z) The provisions of this act, and 
 of any General Rules to be hereafter 
 made by the judges thereon in pur- 
 suance of 13 & 14 Vict. c. 16, and 
 15 & 16 Vict. c. 76, s. 223, apply 
 not only to the superior courts of the 
 common law at Westminster, but to 
 all courts of record in England or 
 Wales, to which the crown, by order 
 in council, may, from time to time, 
 think proper to apply the same (sect. 
 228). The act also applies in general 
 to the Court of Common Pleas in the 
 county palatine of Lancaster, and to 
 the Court of Pleas in the county pa- 
 latine of Durham. (Sect. 229.) 
 
 (a) Though the practice of the 
 superior courts of common law will 
 be now mainly governed by this act 
 and by such General Rules as men- 
 
 tioned in the last note (of which a 
 set has been recently issued, bearing 
 date, Hil. T. 1853), yet it will also 
 depend in part on the former statute 
 of 2 Will. 4, c. 39, and that of 3 & 
 4 Will. 4, c. 67, and 1 & 2 Vict. c. 
 110 ; for where the provisions of any 
 of these have been neither expressly 
 repealed nor altered by the Common 
 Law Procedure Act, they are still in 
 force. 
 
 (b) In the case of ejectment, which 
 the act does not seem to include 
 under the term " personal action" 
 (vide sect. 169), a special writ of 
 summons is provided, differing in 
 some respects from the ordinary one 
 mentioned in the text ; and the per- 
 sonal action of replevin commences 
 in a manner peculiar to itself. Vide 
 post, pp. 673, 680.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 565 
 
 summons in a prescribed form (c), viz., by a writ issued in 
 the queen's name out of the court in which the action is 
 brought, directed to the intended defendant, describing him 
 as of the county and place where he is supposed to reside 
 or be, and commanding him to cause an appearance (a, term 
 already explained) to be entered for him in that court in an 
 action at the suit of the plaintiff, within eight days after the 
 writ shall be served upon him (d), the defendant. It is also 
 to be indorsed with the name and place of abode of the 
 plaintiff's attorney, and where he is agent for another at- 
 torney in the country, with the name and place of abode of 
 the latter ; or if no attorney is employed, then with a memo- 
 randum that it has been sued out by the plaintiff in person, 
 mentioning particularly his place of residence (e), More- 
 over, if it be for payment of any debt, the amount of the 
 debt and costs claimed is to be indorsed, with a notice 
 that if the amount be paid to the plaintiff or his attorney 
 within four days^ from the service, farther proceedings will 
 be stayed (f). And it is in the option also of the plain- 
 tiff in any case where his claim is for a debt or liquidated 
 sum of money (g), and the defendant resides within the 
 
 (c) The form is in sched. (A.) an- not render the writ void. It is only 
 
 nexed to the act, No. I. an irregularity rendering it liable to 
 
 (rf) 15 & 16 Vict. c. 76, s. 2, be set aside or amended. Sect. 20. 
 sched. (A.), No. 1. These eight (g) The cases in which this spe- 
 
 days are inclusive of the day of the cial indorsement may be made, are 
 
 service. Ibid. It is a general rule thus defined : " All cases where 
 
 as to the computation of any num- the plaintiff resides within the ju- 
 
 ber of days in practice, that it is to risdiction of the court, and the 
 
 be exclusive of the first day, and in- claim is for a debt or liquidated de- 
 
 clusive of the last. Reg. Gen. Hil. mand in money, with or without in- 
 
 T. 1853, r. 174. terest, arising upon a contract ex- 
 
 (e) Sect. 6. press or implied, as for instance a 
 
 (/) Sect. 8. The defendant is at bill of exchange, promissory note or 
 
 liberty, however, notwithstanding cheque, or other simple contract 
 
 such payment, to have the costs debt, or on a bond or contract under 
 
 taxed, and if more than one-sixth is seal for payment of a liquidated 
 
 disallowed, the plaintiff's attorney amount of money, or on a statute 
 
 will have to pay the costs of taxation. where the sum sought to be re- 
 
 IbicL With respect to all the in- covered is a fixed sum of money, or 
 
 dorsements here mentioned, it is to in the nature of a debt, or on a 
 
 be observed that their omission does guarantee, whether under seal, o r
 
 566 book v. — or civil injuries. 
 
 jurisdiction of the court, to make a special indorsement of 
 the particulars of the claim, in such summary form as the 
 Common Law Procedure Act prescribes (jf ). 
 
 This writ remains in force for six calendar months; at 
 any time before the expiration of which, supposing it not to 
 have been yet served, it may be renewed (in order to keep 
 the suit alive) for a similar period ; and such renewal may 
 be repeated as often as there may be occasion, all renewals 
 being effected by the simple method of procuring a stamp 
 to be impressed upon it by the proper officer (g). One or 
 more concurrent writs may also be issued at any time within 
 the first six months, and will remain in force to the end 
 of that period, and are capable, like the primary one, of 
 being renewed ; these being in the same form with the pri- 
 mary one, except that they have the word " concurrent" 
 impressed upon them by the proper officer (A), and being 
 intended for the convenience of the plaintiff, who, in the 
 case of joint defendants residing in different places, or of a 
 sole defendant whose residence is unknown, may wish to 
 be supplied with several writs of the same tenor, with a 
 view to contemporaneous service, or attempts at service, in 
 different localities (i). 
 
 The writ, either primary or concurrent, (duly renewed, if 
 renewal has become necessary,) must not only be served, 
 but the service of it must (where practicable) be a personal 
 one (j) ; that is, a copy of it must be left with the defendant 
 in person, showing him at the same time the writ itself, if 
 he so requires (k). But if personal service should be found 
 
 not, where the claim against the /'the writ of summons may be served 
 
 principal is in respect of such debt in any county. ^ 
 
 or liquidated demand, bill, cheque ( /') Sect. 17. 
 
 or note." (Sect. 25.) (/<) As to personal service, see 
 
 (/) See the form of such special Goggs v. Lord Huntingtower, 12 
 
 indorsement, sched. A. (No. 4.) Mee. & W. 503; Ibeth v. White, 2 
 
 Q?) Sect. 11. The stamp should D. & L 40. If the writ be issued 
 
 bear upon it the date of the renewal. against a corporation aggregate, it 
 
 (h) Sect. 9. The stamp should bear may be served on the mayor or other 
 
 upon it the dale of issuing the con- head officer, or on the town clerk, 
 
 current writ. clerk, treasurer or secretary of the 
 
 (i) By 15 & 16 Vict. c. 76, s. 14, corporation. If against the inha-
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 
 
 567 
 
 impracticable, then the plaintiff is entitled to apply to the 
 court out of which the writ issued, or to a judge, for an 
 order that he should be at liberty to proceed as if personal 
 service had been effected ; which order (subject to any con- 
 dition that the circumstances may seem to require) the 
 court or judge is empowered accordingly to make, on 
 being satisfied that reasonable efforts have been used to 
 effect personal service, and either that the writ has come to 
 the defendant's knowledge, or that he wilfully evades the 
 service of the same, and has not appeared thereto (I). 
 
 Supposing personal service to be effected, and no ap- 
 pearance to be entered by the defendant pursuant to the 
 exigency of the writ, or supposing an order dispensing 
 with personal service to be obtained, then, in either case, if 
 the writ has a special indorsement of particulars (which it 
 will be recollected can occur only in the case where the 
 claim is for a debt or liquidated sum of money) the plain- 
 tiff is entitled to sign final judgment forthwith, as for want 
 of appearance (m). And this judgment may be for any sum 
 not exceeding the sum indorsed on the writ, together with 
 interest at the rate specified (if any) to the date of the judg- 
 ment ; and with a regulated sum for costs ; or if the plain- 
 
 bitants of a hundred or other like 
 district, on the high constable or one 
 of the high constables. If against 
 the inhabitants of any franchise, 
 liberty, city, town or place, not being 
 part of a hundred or other like dis- 
 trict, on some peace officer thereof. 
 Sect. 16. 
 
 (/) 15 & 16 Vict. c. 76, s. 17. 
 
 (m) Prior to this act, it was an in- 
 variable rule in every personal ac- 
 tion, that, until the defendant had 
 appeared, no judgment in the action 
 could in any case be awarded. But 
 if he failed to appear after a personal 
 service had been effected, the plain- 
 tiff might cause an appearance to be 
 entered for him; and where a per- 
 
 sonal service had proved impractica- 
 ble, the plaintiff might obtain leave to 
 take out a writ of distringas against 
 his goods and chattels ; and where 
 the defendant had no goods capable 
 of being seized, and was returned 
 non est inventus, the plaintiff might 
 resort to process of outlawry against 
 him. If the defendant, after being 
 duly exacted and proclaimed under 
 this process became an outlaw, all 
 property that he might have was 
 forfeited and seized into the hands of 
 the crown ; but the Court of Exche- 
 quer would make an order to apply 
 it in satisfaction of the plaintiff's 
 claim.
 
 568 BOOK V. OF CIVIL INJURIES. 
 
 tiff be not content with the regulated costs, then such 
 amount of costs as the court shall tax in the particular 
 
 case (?*)• 
 
 But where, on the other hand, upon personal service be- 
 ing effected, an appearance is duly entered pursuant to the 
 writ, the plaintiff is of course not entitled to sign judg- 
 ment; nor is he even allowed to do so where an order 
 dispensing with personal service has been obtained, if the 
 writ bears no special indorsement of particulars. In either 
 of these cases his course is to deliver to the defendant, in 
 case he have entered an appearance, or if he have not, to 
 file in court for his use (o), a declaration, that is, a written 
 statement, according to a prescribed form, of the nature of 
 the claim or complaint on which the action is founded ; and 
 as this is the first of a series of mutual allegations which the 
 parties are allowed to interchange with the view to the 
 development of the point in controversy between them 
 (which allegations are technically called pleadinys), we have 
 thus arrived at the second stage of the suit. 
 
 We must revert, however, to the subject of process in 
 order to observe that the account above given of it always 
 supposes the defendant to reside within the jurisdiction of 
 the court. When he resides out of it (p) there is some va- 
 riation. The time for appearance in such case is regulated 
 by the distance from England of the place where he re- 
 sides; and the court or judge, upon being satisfied that 
 there is a cause of action which arose within the jurisdic- 
 tion, or in respect of a breach of a contract made within the 
 
 (h) 15 & 16 Vict. c. 76, s.27. Et (o) Sect. 28. The declaration and 
 vide as to the amount of costs, Reg. all the subsequent pleadings are in 
 Gen. Hil. T. 18.53, r. 1. Under such general delivered out of court, be- 
 circumstances, however, the defend- tween the parties or their attornies ; 
 ant may, even after final judgment but where the defendant makes de- 
 has been signed, be let in to defend, fault in appearance, the declaration 
 upon an application supported by is not so delivered, but filed in the 
 satisfactory affidavits, accounting for proper office of the court. 
 the non-appearance, and disclosing (p) The act here adds the words, 
 a defence upon the merits. 15 & 16 " in anyplace except in Scotland or 
 Vict. c. 76, s. 27. (Ibid.) Ireland." (Sect. 18.)
 
 CHAP. X.— OF THE PROCEEDINGS IN AN ACTION. 569 
 
 jurisdiction, and that the writ was personally served, or that 
 reasonable efforts were made to do so, and that it came to 
 the defendant's knowledge, and that either he wilfully neg- 
 lects to appear, or is living out of the jurisdiction in order 
 to delay his creditors, may direct from time to time that 
 the plaintiff shall be at liberty to proceed in the action in 
 such manner, and subject to such conditions, as seem fit. 
 In this case, too, no special indorsement of particulars is 
 used ; and though where the writ is for payment of any 
 debt, it should be indorsed with the amount of the debt and 
 costs claimed, in like manner as if the defendant resided 
 within the jurisdiction; yet the time limited for payment 
 should not be confined to four days, but extended to the 
 same period as is limited by the writ for appearance (q)> 
 The plaintiff also cannot in such case obtain judgment for 
 want of appearance, without first giving proof in such 
 manner as the act specifies of the amount of the debt or 
 damages sustained (r). In addition to which, it is to be 
 observed, that, supposing the defendant to be not only 
 resident abroad, but a foreigner, he is to be served with a 
 notice explanatory of the proceedings, in such form as in 
 the act set forth (s). 
 
 It will also be proper to advert here to a collateral inci- "^ 
 dent, which may occur in the case of a defendant resident 
 within the jurisdiction at the time that the writ issues, but 
 suspected of an intention to abscond from the realm, in order J/. 2/^"^, 
 to place his person and property out of reach, and conse- & *^, „ 
 quently to render any judgment that may be ultimately ^^ &£ 
 obtained against him fruitless. Under such circumstances, ' 
 if the plaintiff can show upon affidavit, to the satisfaction 
 of a judge of one of the superior courts, that he has a £^,^ <>,,„ 
 cause of action against any defendant to the amount of 207. 
 or upwards, or has sustained damage to that amount, and 
 that there is probable cause for believing that such defend- 
 ant is about to quit England, the judge will make an order 
 
 (q) Sect. 18, sched. (A.), No. 2. (s) Sect. 19, sched.(A.), No. 3. 
 
 (•••) Ibid.
 
 570 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 that the defendant be held to bail for such sum (not ex- 
 ceeding the amount of the debt or damages), as shall appear 
 expedient (t). This order may be made at any time between 
 the commencement of the action and final judgment; and 
 having obtained it, the plaintiff is at liberty to sue out a 
 writ of capias directing the sheriff to arrest the defend- 
 ant (u), who remains in custody on such arrest until he 
 shall have either given a bail bond to the sheriff, with rea- 
 sonable sureties (v), or made a deposit of the amount for 
 which the arrest was ordered, together with 10/. for costs(w). 
 The object both of bail bond and deposit, is to afford secu- 
 rity to the plaintiff, that afterwards, viz., within eight days 
 inclusive from the arrest (a:), the defendant shall put in bail 
 to the action, that is, procure two responsible persons (being 
 either housekeepers or freeholders), to enter into a recogni- 
 zance, engaging that in the event of judgment being given 
 against defendant he shall either pay the debt or damages, 
 or render himself to prison in satisfaction thereof, or that they 
 will themselves make payment thereof on his behalf {y). 
 But it is now time to return to the progress of the suit. X 
 
 II. We resume, therefore, secondly, the consideration of 
 
 (<) 1 & 2 Vict. c. 110, s. 3. As to 
 the affidavit required, see the fol- 
 lowing cases : Gibson v. Spalding, 
 11 Mee. & W. 173; Arkenheim v. 
 Colegrave, 13 Mee. & W. 620; 
 Daniels v. Fielding, 16 Mee. & W. 
 200 ; Graham v. Sandrienelli ; Tal- 
 bot v. Bulkeley, ib. 191 ; Pontifex 
 v. De Maltgoft, 17 L. J. (Ex.) 55. 
 Such an order has been refused in a 
 proceeding to revive a judgment, 
 Agassiz v. Palmer, 5 Man. & G. 697. 
 As to an application to set aside the 
 order, see Pegler v. Hislop, 17 L. J. 
 (Ex.) 53. Various provisions as to 
 bail are made by Reg. Gen. Hil. T. 
 1853, r. 81—111, 130, 132, 134. 
 
 (m) As to the manner of an ar- 
 
 rest, see Chitty's Burn, "Arrest." 
 
 (v) As to proceedings against the 
 bait, vide Betts v. Smyth, 2 Q. B. 113. 
 
 (u>) 1 & 2 Vict. c. 110, s. 3—7. See 
 Welchman v. Sturgis,6 D. & L. 739. 
 
 (x) Lush, Pr. 614. 
 
 (y) Lush, Pr. 616, 623. It is pro- 
 vided by 14 & 15 Vict. c. 52, in aid 
 of the proceeding by capias above de- 
 scribed, that the creditor may, even 
 before any action is brought, apply 
 to a commissioner in bankruptcy or 
 a judge of a county court for a war- 
 rant to arrest; and that any arrest 
 thereon shall be considered as an 
 arrest under the capias to be subse- 
 quently issued.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. .571 
 
 the pleadings. By the same Common Law Procedure Act, 
 which has amended the course of the process, great altera- 
 tion also has been introduced into the course of the plead- 
 ings (z); the object of the reform being to establish a new 
 or amended method built on the old foundations, but with 
 an improved design as regards the objects of simplicity 
 and despatch. 
 
 The general result contemplated by the present method 
 (entirely following in this respect the method which it sup- 
 planted) is the development of the point in controversy 
 between the parties, in order that if it should turn out to 
 be matter of law, it may be referred to the decision of the 
 judges of the court, or if matter of fact, to trial by jury, 
 or such other method as the law may have provided for 
 the trial of a question of that particular kind. When this 
 result is attained, the parties are said to be at issue (ad 
 exitum), or at the end of their pleading ; and the emergent 
 question itself is termed the issue ; and, according to the 
 nature of the case, may turn out to be either an issue in 
 law or an issue in fact. 
 
 The manner in which the parties are thus brought to 
 issue remains also in substance the same as formerly, though 
 in many respects simplified. A general idea of it may be 
 obtained from the following explanations. 
 
 First, we may remark, that the pleadings or mutual alle- 
 gations are always to consist of matter of fact, and of 
 
 (z) From a period of very remote verest precision. But its strictness 
 
 antiquity down to the time of pass- and subtlety were a frequent subject 
 
 ing of this act, the pleadings were of complaint, and one object of the 
 
 of a highly artificial character, and new act is, to relax and simplify its 
 
 had been elaborated by the care of rules. Whether the effect of this 
 
 judges and practitioners during many will be to impair its value, or not, in 
 
 successive centuries into a regular other respects, experience alone can 
 
 system or science called pleading, or decide. The system, however, may 
 
 more popularly special pleading, which yet receive farther improvement by 
 
 constituted a distinct branch of the such general rules as the judges may 
 
 law, with treatises and professors of hereafter make under a power given 
 
 its own. It was a system highly them for that purpose. See 13 & 14 
 
 rated by our antient lawyers, and had Vict. c. 16, and 15 & 16 Vict. c. 76, 
 
 at least the merit of developing the s. 223. 
 point in controversy with the se«
 
 572 BOOK V. OF CIVIL INJURIES. 
 
 fact only — for all matters of law are judicially noticed by 
 the court, and supposed to be known by the adverse party 
 also or to the pleader who conducts the altercation for 
 him ; and therefore the allegations on either side, of the 
 facts respectively relied upon, will always suffice to de- 
 velope the legal positions which apply to the case between 
 the parties, and the question or questions of law (if any) 
 which are in dispute between them. It is also a rule of 
 the same general nature, that in their allegation of fact, the 
 pleaders are to abstain from any statement of the evidence 
 by which the fact is to be established ; for matter of evi- 
 dence, though essential for the consideration of the jury, 
 by whom the issue or question of fact is to be tried, is 
 superfluous so far as the object of pleading is concerned, 
 — which is merely to ascertain whether the question is 
 matter of fact or matter of law, and if the former, to de- 
 velope it in a shape sufficiently precise to show its general 
 nature and import — but not to determine on which side of 
 the question the truth lies, that being the province, not of 
 pleading, but of trial. 
 
 These principles being premised, we may proceed to a 
 general examination of the nature and order of the plead- 
 ings themselves. 
 
 The first of these is the declaration (narratio). This, as 
 well as every subsequent pleading, is to be intituled of the 
 proper court, and of the day of the month and year when 
 pleaded («). At the commencement also of the declaration, 
 and in the margin of it, is always to be inserted some 
 county, called the venue in the action ; the object of its 
 insertion being to show in what county the plaintiff lays the 
 action; that is, proposes to have the action tried, in the 
 event of arrival at an issue in fact to be tried by jury. In 
 local actions, the venue must be alleged according; to the 
 truth of the fact; in transitory ones (b), the plaintiff may 
 lay the action in what county he pleases, subject to the 
 right of the defendant to have the venue changed; which 
 
 (a) 15 & 16 Vict. c. 76, s. 54. (I>) As to local and transitory ac- 
 
 tions, vide sup. p. 454.
 
 CHAr. X. OF THE PROCEEDINGS IN AN ACTION. 573 
 
 alteration he is in general (c) entitled to have made, upon 
 affidavit that the cause of action arose wholly in some 
 other county; though the plaintiff has, on the other hand, 
 a right to bring the venue back, upon an undertaking to give 
 some material evidence arising in the county first alleged (d). 
 The declaration then proceeds to allege in short and pre- 
 cise terms the circumstances of the plaintiff's complaint, 
 so as to show him entitled to maintain his action, and con- 
 cludes with an allegation of the amount of money or goods 
 which he claims of the defendant (e). 
 
 After the plaintiff has delivered his declaration, it is the 
 defendant's turn to consider in what manner it shall be 
 encountered ; and he is to address himself to this subject 
 in the following manner. If the declaration be framed so 
 as to prejudice, embarrass, or delay the fair trial of the 
 action, he is entitled to apply to the court or a judge to 
 have it struck out, or amended. Or supposing no such 
 objection to the frame of the declaration to arise, yet if 
 the matter it contains appear on the face of it substantially 
 insufficient in point of law to entitle the plaintiff to the re- 
 dress he claims, the defendant's course is to demur, that is, 
 to deliver a written formula, called a demurrer, (from demo- 
 rari,) importing that he denies the sufficiency, and will 
 wait the judgment of the court whether he is bound to 
 answer (/). If, on the other hand, the plaintiff's statement 
 
 (r) No venue shall be changed indorsement was on the writ of sum- 
 without special order, except by con- mons, the practice requires that there 
 sent. Reg. Gen. Hil. T. 1853, r. 18. should be delivered collaterally with 
 
 (d) As to change of venue, see the declaration, and at the same time 
 Str. 177 ; Nicholls v. Stockbridge, with it, the particulars of the plain- 
 4 Man. & Gr. 456; Fife v. Bous- tiff's demand, containing a more de- 
 field, 2 Dowl. N. S. 705 ; Webb v. tailed account of the nature and 
 Bulkeley, ibid. 900. amount of his claim. But where 
 
 (e) Examples of the manner in there has been a special indorsement 
 which some of the more ordinary of particulars on the writ of summons, 
 causes of action should be stated in no other particulars than those so en- 
 the declaration, are given in 15 & 16 dorsed are required. 15 & 16 Vict. 
 Vict. c. 76, sched. (B.). It is to be c. 76, s. 25. As to particulars, see 
 observed, that where the declaration also Reg. Gen. Hil. T. 1853, r. 19, 20. 
 is in indebitatus assumpsit, or debt (/) A demurrer is hereafter to be 
 on simple contract, and no special in the form prescribed by 15 & 16
 
 574 BOOK V. - OF CIVIL INJURIES. 
 
 appears ex facie sufficient in point of law, the defendant's 
 course is to plead; that is, to deliver a plea ; the general 
 object of which is to make answer in point of fact to the 
 declaration. If he neither demurs nor pleads within the 
 time allowed by the practice of the court for that purpose, 
 pi aintiff will be entitled to sign judgment against him as 
 for default of plea. 
 
 V-The plea may be either dilatory or "peremptory. Dila- 
 tory pleas (which by statute 4 Ann. c. 16, cannot be 
 received unless supported by affidavit of their truth (f) ) are 
 founded on some matter of fact not connected with the 
 merits of the case, but such as may exist without impeach- 
 ing the right of action itself; and are either pleas to the 
 jurisdiction, showing that by reason of some matter therein 
 stated the case is not within the jurisdiction of the court; 
 or pleas of suspension, showing some matter of temporary 
 incapacity to proceed with the suit ; or pleas in abatement, 
 showing some matter for abating or quashing the declara- 
 tion. The effect of such a dilatory plea is, that if success- 
 ful, it defeats the particular action, leaving the plaintiff at 
 liberty to commence another in a better form, if the case 
 
 ~~~~7j' : should be such as to admit of an amendment of that de- 
 scription {g)^~ On the other hand, peremptory pleas (more 
 usually called pleas in bar) are founded on some matter 
 tending to impeach the right of action itself, and their effect 
 consequently is to defeat the plaintiff's claim altogether. -> 
 
 {/#&«? y. Pleas in bar are subject also to various divisions. For, 
 
 Vict. c. 76, s. 89. It was formerly demurrer. 
 
 either general or specuil, that is, it (/') This affidavit may be waived 
 
 either objected in general terms by the plaintiff. Graham v. Ingleby, 
 
 only, or set forth a particular objec- 4 Exch. 651. 
 
 tion. And by 27 Eliz. c. 5, and 4 (#) Pleas of misnomer of the plain- 
 Ann, c. 16, it was provided, that all tiff or defendant, and of nonjoinder of 
 objections of mere form were to be a necessary party as defendant, were 
 raised in the shape of special, and till lately among the most frequent 
 not of general demurrer. But now instances of dilatory pleas ; but the 
 by 15 & 16 Vict. c. 76, s. 51, no temptation to a vexatious use of 
 pleading shall be deemed insufficient them is now much diminished by the 
 for any defect which could hereto- effect of certain enactments. See as 
 fore only be objected to by special to the former, 3 & 4 Will. 4, c. 42, s.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 575 
 
 first, they comprise the class of general issues, which are 
 denials of the whole matter in the declaration, or at least 
 of the principal fact upon which it is founded, — as (in tres- 
 pass, or trespass on the case), that the defendant is not 
 guilty ; (in debt on bond or other deed), that it is not his 
 deed ; (in debt on simple contract), that he never was indebted 
 as alleged ; (in assumpsit,) (Jt) that he did not promise as 
 alleged; — while all other pleas in bar are distinguished from 
 the general issues by the term of special pleas. Again, pleas 
 in bar are distinguished from each other according to their 
 subject matter, as pleas in justification, or excuse, and pleas f- 
 in discharge. A plea in justification or excuse is one that 
 tends to show that there was never any right of action ; as 
 where in trespass for assault and battery, the defendant 0%L*~ -•• - j 
 pleads son assault demesne, viz. that it was the plaintiff's 
 own original assault ; or in an action on the case for slander, {/ 
 that the words alleged to have been spoken of the plaintiff 
 -y- are true. But pleas in discharge are those which show that ^ q^ 
 the cause of action, though once existing, has been barred/^^ ^ o^ 
 by matter subsequent ; as by payment, or release, or accord = 
 and satisfaction, or by the Statute of Limitations, or a set- 
 off (i) ; which last occurs where the plaintiff sues for a debt, 
 and the defendant alleges a reciprocal debt due to him from 
 the plaintiff, and claims to have it allowed by way of dis- 
 charge from the action, either wholly or in part, as the case 
 may be (j). 
 
 11 ; as to the latter, sect. 8 of the (i) This plea of set-off answers 
 same statute; and 15 & 16 Vict. c. very nearly to the compensatia or stop- 
 76, ss. 38, 39. As to the plea in page of the civil law. Ff. 16, 2, 1. 
 abatement of the nonjoinder of a It was not allowed at the common 
 party as plaintiff, see sect. 36 and law, but is given by 2 Geo. 2, c. 22, 
 Reg. Gen. Hil.T. 1853, r. 6. s. 13, and 8 Geo. 2, c. 24. As to 
 (/;) This does not apply to that particulars of set-off see Reg. Gen. 
 species of assumpsit called indebitatus Hill. T. 1853, r. 19. 
 assumpsit, in which the defendant is (j) Examples of the proper man- 
 charged witli a debt for goods sold, ner of pleading different pleas are 
 money lent and the like, and an im- given in the 15 & 16 \ r ict. c. 76, 
 plied promise to pay the amount. sched. (B), where may be found most 
 The general issue in that case is the of the general issues, and the most 
 sameasin debt on simple contract. 15 ordinary pleas and replications. 
 &16Vict.c.76,Sch.(B.)No.l-14,36.
 
 576 BOOK V. — OF CIVIL INJURIES. 
 
 With respect to all pleas in bar, however, it is a funda- 
 
 '/i/c-~s mental rule, that they must either traverse {i) (that is, deny) 
 
 the matter of fact in the declaration, or confess and avoid 
 
 -^ it ; that is, admitting it to be true, show some new matter 
 
 of fact tending to obviate or take off its legal effect. Thus, 
 
 '-=— ' the general issue of not guilty, in an action of trespass for 
 assault and battery, denies the act of violence alleged ; 
 while, on the other hand, the plea of son assault demesne in 
 the same action, confesses that act, but avoids it by show- 
 ing circumstances of excuse or justification. So in an 
 action of debt or assumpsit for goods sold and delivered, 
 the general issue of never indebted (j) traverses the sale 
 and delivery; a plea of payment confesses both, but avoids 
 them by showing matter of discharge. And a plea that 
 does not conform to this rule will in general be either 
 insufficient in substance, so as to entitle the defendant to 
 demur, or at least will be embarrassing in its form, so as 
 to entitle him to apply to have it struck out or amended. 
 Yet to this rule there are some exceptions. Thus the de- 
 fendant in an action for a liquidated sum of money may 
 
 l^f^avail himself of a plea of tender (k); that is, he may 
 plead that he has been always ready to pay the debt de- 
 manded, and before the commencement of the action ten- 
 dered it to the plaintiff, and now brings it into court, ready 
 to be paid to him : — or he may, in most actions, resort to a 
 
 (i) It is provided by 15 & 16 Vict, "parts thereof, to deny all the rest, 
 
 c. 76, ss. 76 — 79, "that a defendant " or to deny any one or more alle- 
 
 " may either traverse generally such " gations." Also, " that a defendant 
 
 " of the facts contained in the decla- " shall be at liberty in like manner 
 
 " ration as might have been denied " to deny the whole or part of a re- 
 
 " by any one plea; or may select and "plication or subsequent pleading 
 
 " traverse separately any material " of the plaintiff." 
 
 " allegation in the declaration, al- (j) Vide sup. p. 575, n. (h). 
 
 " though it might have been in- (h) As to the plea of tender, see 
 
 "eluded in a general traverse." Eckstein v. Reynolds, 7 A. & E. 80 ; 
 
 Also, "that a plaintiff shall be at Poole v. Tunbridge, 2 Mee. & W. 
 
 " liberty to traverse the whole of 223. As to the law relative to a 
 
 " any plea or subsequent pleading tender in bank notes, gold, silver, 
 
 " of the defendant by a general de- &rc, vide sup. p. 320; vol. ii. 509. 
 " nial, or, admitting some part or
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 577 
 
 plea of payment of money into court ; viz. that he brings a 
 certain sum of money into court, ready to be paid to the 
 plaintiff, and that it is enough to satisfy the plaintiff's 
 claim (/) : — or in any action, he may have occasion to plead 
 by way of estoppel (m) : as that the plaintiff ought not to be 
 permitted to make a particular allegation, because he has 
 formerly done some solemn act (as by deed under his hand 
 and seal) involving an assertion to the contrary. As to all 
 which pleas, it is evident that they are in the nature of 
 exceptions to the general rule above stated. For in the 
 two first (admitting, as they do, the right of action,) there 
 is a confession without avoidance; and in the last, there is 
 neither traverse, confession, nor avoidance (n). 
 
 (I) The effect of this plea (which 
 is given by 3 & 4 Will. 4, c. 42, s. 
 21, and the form of which is amended 
 by 15 & 16 Vict. c. 76, s. 71) is, that 
 it puts the plaintiff to the alternative 
 of either accepting the proposed sum, 
 or proceeding at his peril so far as 
 future costs are concerned. (As to 
 the effect on costs, see Reg. Gen. 
 Hil. T. 1853, r. 12.) But it is not 
 allowed in actions for assault and 
 battery, false imprisonment, libel, 
 slander, malicious arrest or prosecu- 
 tion, criminal conversation, or de- 
 bauching the plaintiff's daughter or 
 servant ; and where pleaded only by 
 one of several defendants, it can be 
 pleaded only by leave of the court or 
 a judge (15 & 16 Vict. c. 76, s. 72). 
 
 (m) As to estoppel, vide sup. vol. 
 i. p. 462, n. ((/). 
 
 (n) At the time of passing the 15 
 & 16 Vict. c. 76, it was a rule that 
 the defendant could not plead spe- 
 cially such matter as amounted in 
 effect to the general issue, but must 
 plead the general issue in terms, it 
 being essential to the nature of a 
 special or affirmative plea that the 
 VOL. III. 
 
 matter of it should be such as to give 
 some colour to the plaintiff's claim, 
 so that a plea that gave no colour 
 ought to be by way of traverse. 
 Thus, if in an action of trespass the 
 defendant's case was that he claimed 
 by feoffment with livery from A., by 
 force of which he entered on the lands 
 in question, he could not plead the 
 matter in that form, because it would 
 amount to a plea of not guilty of 
 the trespass ; and he was therefore 
 obliged to plead not guilty. This 
 rule, however, might be evaded by 
 expressly giving colour to the plain- 
 tiff. Thus, in the case supposed, 
 the defendant, after setting forth his 
 own title by feoffment with livery, 
 might proceed to allege (by a mere 
 fiction) that the plaintiff claiming by 
 colour of a prior deed of feoffment 
 without livery, entered ; upon whom 
 he entered ; and might thus refer to 
 the judgment of the court which of 
 the two titles was the best. For 
 colour thus expressly given cured the 
 want of implied colour, which would 
 otherwise have vitiated the plea. 
 All this subtlety however (though 
 P P
 
 578 BOOK V. OF CIVIL INJURIES. 
 
 The plea being delivered, it is then to be encountered by 
 the plaintiff, upon peril that if he fail to do so within the 
 proper period (o), the defendant is entitled to sign judg- 
 ment by default. In encountering the plea, the plaintiff has 
 the same right of applying to have it struck out or amended, 
 if its frame be objectionable, as the defendant had with re- 
 gard to the declaration ; or supposing no such objection to 
 arise, is put to the same alternative of demurring for sub- 
 stantial insufficiency in law, or pleading some matter of 
 fact. If the plaintiff pleads, he is said to reply, which 
 he does by delivering a replication ; and to this also the 
 same alternative applies that was before noticed in the case 
 of the plea, viz. that it must either traverse the last plead- 
 ing, or confess and avoid it. But here also, as in the case 
 of the plea, may occur an occasional exception to the regu- 
 lar course ; for the plaintiff may sometimes find it expedient 
 to reply by way of estoppel — or, in other cases, to reply by 
 way of new assignment, — that is, to allege that he brought 
 his action not for the cause supposed by the defendant, but 
 for some other cause, to which the plea at present pleaded 
 has no application ; a species of reply which, like the es- 
 toppel, neither confesses nor denies the matter of the plea, 
 its true drift being to show that the plea is irrelevant or 
 beside the mark (p). But in general, the replication is 
 subject (as before stated) to the alternative of traverse, or 
 confession and avoidance; and upon the same principles 
 are constructed all the subsequent allegations that may 
 
 curious as illustrating the close logic distinctly appear. 
 
 applied in antient times to the sub- (o) The plaintiff must, as a gene- 
 
 ject of pleading), is now very pro- ral rule, reply within four days after 
 
 perly set aside ; for by 15 & 16 Vict. notice to reply has been delivered 
 
 c. 76, s. 64, colour (that is, express to him by the defendant. 15 & 16 
 
 colour) sball no longer be necessary Vict. c. 76, s. 53. 
 
 in any pleading. How far the rule (p) By 15 & 16 Vict. c. 76, s. 87, 
 
 itself that it was intended to evade one new assignment only shall be 
 
 (viz. that prohibitory of a special plea pleaded to any number of pleas to 
 
 amounting to the general issue) has the same cause of action. 
 
 been affected by the act, does not
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 579 
 
 occur on either side until the pleading is exhausted (<-/). 
 These we shall accordingly particularize no farther, except 
 by remarking that to the replication the defendant may 
 rejoin, or deliver an answer called a rejoinder; that the 
 plaintiff may answer the rejoinder by a surrejoinder ; that 
 the defendant may upon that deliver a rebutter ; and that 
 this may be followed by a surrebutter on the part of the 
 plaintiff; but beyond a surrebutter the pleadings seldom 
 happen to extend ; and that they are not distinguished after 
 that point by any separate denomination (r). 
 
 To the whole of this series applies the general rule, that 
 neither party can desert or [vary from the title or defence, 
 which he has once insisted on. For this (which is called 
 a departure in pleading) might occasion endless alterca- 
 tion. Therefore the replication must support the decla- 
 ration, and the rejoinder must support the plea, without 
 departing out of it. As in the case of pleading no award 
 made, in consequence of a bond of arbitration, to which 
 the plaintiff replies, setting forth an actual award ; now the 
 defendant cannot rejoin that he hath performed this award, 
 for such rejoinder would be an entire departure from his 
 original plea ; which alleged that no such award was 
 made(s).] 
 
 At some stage of this series, more or less remote, it is 
 obvious that the parties will necessarily be brought to issue; 
 for as the allegation of new matter cannot be interminable, 
 
 (7) We may remark here, that as duplicatio, triplicatio, quadriplicatio, 
 some security for the regular and of the Roman law ; and cites 4 Inst, 
 proper constructions of the pleadings, 14; Bract. 1. 5, tr. 5, c. 1. 
 all pleas, &c. (with the exception of (j) It does not distinctly appear 
 those concluding to the country, and how far the act 15 & 16 Vict. c. 76, 
 a few others), were formerly required affects the rule as to departure. Sup- 
 to be under the signature of counsel. posing, however, a pleading that in- 
 But now by 15 & 16 Vict, c. 76, s. volves a departure to be no longer 
 85, such signature shall not be re- open to demurrer, it would seem 
 quired to any pleading. that, as tending to embarrassment 
 
 (r) Blackstone remarks (vol. iii. and delay, it would be liable to be 
 
 p. 310), that these pleas, replications, struck out upon an application under 
 
 &c. answer to the eiceplio, replicatio, the 52nd section. 
 
 p p. 2
 
 580 BOOK V. — OF CIVIL INJURIES. 
 
 (particularly where no departure is allowed,) they must at 
 length arrive (if no objection to the form of the pleadings, 
 as tending to embarrassment or delay, should arise, or after 
 any such objections have been disposed of,) either at some 
 exception, by way of demurrer, to the sufficiency of the last 
 pleading in point of substance, which is an issue at law ; 
 or at the denial on one side of some matter of fact alleged 
 on the other, which is an issue in fact ; and in either case 
 the attainment of this result is marked, by delivering to the 
 party demurring or traversing, on the part of his adversary, 
 an appropriate formula called a joinder in demurrer, where 
 the issue is in law, and a joinder of issue, where the issue is 
 in fact (t). 
 
 The case, however, is occasionally such as to give rise to 
 a new series of pleading before the ultimate issue between 
 the parties is attained. For [it may sometimes happen, 
 that after the defendant has pleaded, nay, even after issue 
 joined, there may have arisen some new matter, which it is 
 proper for the defendant to plead ; as that the plaintiff has 
 given the defendant a release, and the like. Here, if the 
 defendant takes advantage of this new matter as early as 
 he possibly can, he is permitted to plead it in what is called 
 a plea, puis darrein continuance (u) . For it would be unjust 
 to exclude him from the benefit of this new defence, which 
 it was not in his power to make when he pleaded the 
 former (z?).] But in order to do this, he necessarily relin- 
 quishes the former defence, and pleads the new matter by 
 way of substitution for it ; to which the plaintiff replies ; 
 
 (t) The proper formula in either plea must have an allegation that 
 
 case will be found in 15 & 16 Vict. the matter arose after the last plead- 
 
 c. 76, ss. 89, 79. The party de- ing, and may, when necessary, be 
 
 murring may give notice to join in pleaded at nisi pi his between the 10th 
 
 demurrer in four days, otherwise of August and the 24th of October, 
 
 judgment. Reg. Gen. Hil. T. 1853, but in no case shall be allowed unless 
 
 r. 14. accompanied with an affidavit that 
 
 (w) It is so called because pleaded the matter thereof arose within eight 
 
 since the last adjournment ; for the days next before the pleading of the 
 
 adjournments of the court were for- same, or unless the court or a judge 
 
 merly called continuances. By the shall otherwise order. 
 
 15 & 16 Vict. c. 76, s. 69, such a (v) 3 Bl. Com. 316.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 581 
 
 and issue in law or fact is thus ultimately obtained upon 
 the plea puis darrein continuance, according to the prin- 
 ciples already explained with respect to that originally 
 pleaded. 
 
 With a view to clearness of statement, we have hitherto 
 supposed the declaration to comprise only a single matter 
 of demand or complaint, and the plea only a single matter 
 of defence ; and the same character of unity to pervade the 
 whole course of the pleading. But it is necessary here to 
 remark, that the plaintiff' may have occasion to bring for- 
 ward several distinct matters of demand or complaint ; and 
 that in that case he is allowed to insert them cumulatively 
 (provided they are not claims in different rights or between 
 different parties (w) ) in several distinct statements, tech- 
 nically denominated counts. So the defendant may have 
 occasion to bring forward several distinct matters of de- 
 fence in regard to the same matter of demand or complaint; 
 and is permitted in that case (upon first obtaining the leave 
 of the court or a judge for that purpose) to resort to as 
 many different pleas (x). At common law the case was 
 
 (w) By 15 & 16 Vict. c. 76, s. 41, 
 it is provided, that causes of action 
 of whatever kind, provided they he 
 by and against the same parties and 
 in the same rights, may be joined in 
 the same suit (with the exception, 
 however, of the action of replevin or 
 of ejectment). And see section 40, 
 enabling a husband to claim in re- 
 spect of an injury done to his wife, 
 and also to claim in his own right in 
 the same action. Before this statute, 
 not only claims in different rights or 
 between different parties were in- 
 capable of being joined, but, gene- 
 rally speaking, claims in different 
 forms of action ; for example, in debt 
 and in trespass. 
 
 (i) A rule of court was formerly 
 required for this purpose in every 
 case; but now by 15 & 16 Vict. c. 
 
 76, s. 82, a judge's order will suffice ; 
 and by sect. 84, the following pleas, 
 or any two or more of them, may be 
 pleaded together as of course, and 
 without any order for the purpose ; 
 a plea denying any contract or debt 
 alleged in the declaration ; a plea of 
 tender as to part ; a plea of the Sta- 
 tute of Limitations ; of set-off; of 
 bankruptcy of the defendant ; of his 
 discharge under an insolvent act ; of 
 plene administravit ; qfplene adminis- 
 travit prater ; of infancy or cover- 
 ture ; of payment ; of accord and 
 satisfaction ; of release ; of not 
 guilty ; of a denial that the property, 
 an injury to which is complained of, 
 is the plaintiff's; of leave and li- 
 cence; and of son assault demesne. 
 In other cases the court or judge is 
 at liberty to require from the defend-
 
 582 
 
 BOOK V. OF CIVIL INJURIES. 
 
 different; for in order to avoid confusion and prolixity, 
 defendants were confined under the antient system of plead- 
 ing to a single plea, in respect of each distinct matter of 
 demand or complaint. But this rigour having proved in- 
 compatible with justice, the indulgence of several pleas to 
 the same matter (by leave of the court) was at length intro- 
 duced by the statute 4 Ann. c. \6(y). In addition to 
 which the defendant is also now permitted (though the 
 law was very recently otherwise) to plead and demur con- 
 currently to the same matter of demand or complaint, upon 
 first obtaining the like leave from the court or a judge (z). 
 So by a recent provision the plaintiff is now allowed to 
 exercise the same rights in regard to the replication ; for by 
 the like leave he may make several replications in answer 
 to the same matter of defence, or may demur and reply 
 concurrently to the same matter of defence ; and the same 
 principle is established with respect to every subsequent 
 step in the series of allegations (a). It is obvious, therefore, 
 that the pleading will not always lead to the production of 
 a single issue only, but often (and indeed most commonly) 
 to the production of several. To return now to the pro- 
 gress of the suit. 
 
 ant or his attorney, as the conditions 
 of the leave applied for, an affidavit 
 " That he is advised and believes 
 " that he has just ground to traverse 
 " the several matters proposed to be 
 " traversed by him, and that the 
 " several matters sought to be pleaded 
 " as aforesaid by way of confession 
 " and avoidance, are respectively 
 " true in substance and in fact." 
 Ibid. s. 81. 
 
 (y) This afterwards led to the 
 ahuse of allowing defendants to 
 plead several pleas where there was 
 in fact only one ground of defence ; 
 that is, to shape a single ground of 
 defence in various modes ; so that 
 on failing to prove one plea, he 
 might have a chance of proving ano- 
 
 ther. But it has been since pro- 
 vided by rule of court that pleas 
 founded on one and the same prin- 
 cipal matter, and varying in state- 
 ment, description or circumstances 
 only, shall not be allowed. See Lush 
 Pr. p. 411. 
 
 (:) 15 & 16 Vict. c. 76, s. 80. The 
 court or judge is at liberty to require 
 an affidavit from the defendant or 
 his attorney as to the truth of the 
 pleadings, in the same form as set 
 forth in the last note, with this addi- 
 tion, " and that he is farther advised 
 " and believes that the objections 
 " raised by such demurrer are good 
 "and valid objections in law." Ibid. 
 
 (a) L5 & 16 Vict. c. 76, s. SO.
 
 CHAP. X.— OF THE PROCEEDINGS IN AN ACTION. 583 
 
 We have said that issues in law are to be referred to the 
 decision of the judges of the court. This is done upon 
 solemn argument by counsel on both sides ; and to that 
 end a demurrer book is made up, containing* all the pro- 
 ceedings at length, which is delivered between the parties, 
 and usually by the plaintiff's attorney to the attorney for 
 the defendant. The demurrer is then set doivn for argu- 
 ment ; which may be done at the request of either party, 
 and notice of it is forthwith given to the adversary ; and 
 four clear days before the day appointed for argument the 
 plaintiff delivers copies of the demurrer book to the lord ^> 
 chief justice, or (in the Exchequer) to the lord chief baron, 
 and the senior puisne judge of the court ; and the defend- 
 ant delivers copies to the two other judges, (only four in 
 each court presiding at the same time), and, on the ap- 
 pointed day, the case is called on for argument (b). After 
 hearing counsel on either side, the court deliver their judg- 
 ment (c). For example, [in an action of trespass, if the 
 defendant in his plea confesses the fact, but justifies it causa 
 venationis, for that he was hunting, and to this the plaintiff 
 demurs, that is, admits the truth of the plea, but denies the 
 justification to be legal ; now on arguing this demurrer, if 
 the court be of opinion that a man may not justify trespass 
 in hunting, they will give judgment for the plaintiff; if they 
 think that he may, then judgment is given for the defendant. 
 And thus is an issue of law or demurrer disposed of.] As 
 to which, however, we may farther remark, that the judges 
 in delivering their judgment usually also make known seri- 
 atim the reasons for their opinion. 
 
 III. The trial and evidence. 
 
 If the result of the pleading be not an issue in law, but 
 an issue, or issues, in fact, it then becomes necessary to 
 determine on which side of every such issue or question 
 
 (/>) As to demurrer books and Gen. Hil. T. 1S53, r. 15, 16. 
 setting down for argument, see Reg. (c) Vide post, p. 636.
 
 584 
 
 BOOK V. OF CIVIL INJURIES. 
 
 the truth lies ; a point that is not left, like matter of law, 
 to the court or judges, but to such other methods of deci- 
 sion, as are appropriate by the laws of England to the 
 particular kind of question ; and this decision of fact is 
 what is technically understood by the term trial,— as to 
 which it may be remarked that it constitutes in every civi- 
 lized country the chief business of courts of justice, — [for 
 experience will abundantly show that above a hundred of 
 our law suits arise from disputed facts, for one where the 
 law is doubted of(/).] 
 
 Of trials there are several different species, according to 
 the difference of subject or thing to be tried, — but with the 
 exception of trial by jury, the scope of each is very limited, 
 and its occurrence very infrequent. The several methods 
 are as follows: — 1. Trial by record; 2. Trial by certificate; 
 3. Trial by witnesses; 4. Trial by jury (g). 
 
 (f) About twenty days in the year, 
 says Blackstone, are sufficient in 
 Westminster Hall to settle, upon 
 solemn argument, every demurrer or 
 point of law that arises throughout 
 the nation ; but two months are an- 
 nually spent in deciding the truth of 
 facts before six distinct tribunals, 
 exclusive of Middlesex and London, 
 which afford a supply of causes much 
 more than equivalent to any two of 
 the largest circuits. 3 Bl. Com. 330. 
 The state of things in our own days 
 is substantially the same. 
 
 (g) Blackstone mentions seven me- 
 thods of trial ; comprising, in addition 
 to those in the text, the trial hy in- 
 spection, the trial by wager of battel, 
 and the trial by icager of law. 3 Bl. 
 Com. 330. But as regards the first, 
 it seems doubtful how far, since the 
 abolition of real actions, fines, and ap- 
 peals of maihem, it can now be con- 
 sidered as in force ; and wager of 
 battel has been abolished by 59 Geo. 
 3, c. 46 ; and wager of law by 3 & 
 
 4 Will. 4, c. 42, s. 13. The nature 
 of this last method has been ex- 
 plained in a former place (vide sup. 
 p. 519). As to the nature of the two 
 others, it will be sufficient for the 
 present purpose to remark, that the 
 account given of the trial by inspec- 
 tion by Blackstone, is, that it takes 
 place when for the greater expedition 
 of a cause in some point or issue, 
 being either the principal question, 
 or arising collaterally out of it, but 
 being evidently the object of sense, 
 the judges of the court upon testi- 
 mony of their own senses shall de- 
 cide the point in dispute : and that 
 the trial by wager of battel was the 
 decision of the question of right, in 
 the real action called the writ of right, 
 by a personal contest between the 
 champions of the respective parties, 
 armed with batons. A farther ac- 
 count of which, as formerly applied 
 to criminal cases, will be found in a 
 succeeding part of the work, vide 
 post, bk. vi. c. 22.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 585 
 
 1. First then of the trial by record. And here first we 
 may remark that a record signifies a roll of parchment 
 upon which the proceedings or transactions of a court are 
 entered or drawn up by its officers, and which is then 
 deposited in its treasury, in perpetuam rei memoriam. It is 
 also used indifferently, to express the matter itself which y 
 
 is so entered or transcribed. The time and manner of — 
 
 drawing up these records in the course of an action will ******£ 
 appear hereafter. At present, it is sufficient to observe, 
 that when complete they are regarded by our law with 
 very peculiar consideration. For they constitute the only 
 strict and proper proof of the proceedings of the court in 
 which they are preserved ; and are also proof of so trans- 
 cendent and absolute a nature as to admit of no contra- 
 diction (h). The practice too of drawing up and preserving 
 such documents is confined to the higher courts of justice, 
 so as to have created the distinction, which we have else- 
 where had occasion to notice, between courts of record 
 and courts not of record (i). As to the mode of trial 
 now in question, it is used only in the particular instance 
 where a matter so recorded, (for example, a judgment,) is 
 pleaded by one of the parties, and the other pleads nul tiel 
 record, that there is no such matter of record existing. 
 Upon this, issue is tendered and joined in the following- 
 form : " And this he is ready to verify by the record, and 
 " prays that the same may be seen and inspected by the 
 " court;" and therefore a day is given for the inspection 
 accordingly ; — and if the record be not in the same, but in 
 another court, the party by whom its existence is asserted 
 is commanded to bring it in (k). Afterwards on the day 
 
 (h) Co. Litt. 260 a; vide sup. p. itself must be produced; if a record of 
 
 364. an inferior court, a transcript; to ob- 
 
 (i) Vide sup. p. 364. tain which a writ of certiorari must be 
 
 (k) See 2 Chitty on Pleading, 624, issued ; but if a record of a superior 
 
 625 ; Reg. Gen. Hil. T. 1853, r. 38. court, the record of itis to be brought 
 
 It is to be observed, that if it be a into Chancery by certiorari, and an 
 
 record of the same court, the record exemplification of it afterwards sent
 
 .588 
 
 BOOK V. OF CIVIL INJURIES. 
 
 fs. 
 
 appointed, that party moves for judgment in his own favour, 
 which may be opposed by his antagonist ; and if the record 
 is found to be in court, and to maintain the issue, judgment 
 is then given for the party by whom its existence was 
 asserted ; but in the opposite event, against him. In the 
 same manner titles of nobility, as whether earl or no earl, 
 baron or no baron, shall be tried by the king's patent only, 
 which is matter of record (I) ; or in the case of creation by 
 writ, then by the record of parliament (m). [Also in case 
 of an alien, " whether alien friend or enemy," shall be tried 
 by the league or treaty between his sovereign and ours ; 
 for every league or treaty is of record (n). And also whe- 
 ther a manor be to be held in antient demesne or not, 
 shall be tried by the record of Domesday in the king's 
 exchequer (0).] 
 ^ J2,. [The trial by certificate is allowed in such cases where 
 he evidence of the person certifying is the only proper cri- 
 terion of the point in dispute. As therefore such evidence, 
 if given to a jury, must have been conclusive, the law, to 
 save trouble and circuity, permits the fact to be determined 
 upon such certificate merely. Thus, first, if the issue be 
 whether A. was absent with the king in his army out of 
 the realm in time of war, this shall be tried,] says Littleton, 
 [by the certificate of the mareschal of the king's host in 
 writing under his seal, which shall be sent to the jus- 
 tices (p). So if, in order to avoid an outlawry or the like, 
 
 by mittimus to the court where the 
 action is pending. Arch. Pr. by 
 Chitty (8th ed.), p. 842. As to the 
 plea of nul tiel record in reference 
 to an action brought in a County 
 Court, on a judgment recovered in a 
 superior court, see Winsor v. Dun- 
 ford, 12 Q. B. 603. 
 
 (/) 6 Rep. 53 ; Rex v. Knollys, 1 
 Ld. Ray. 10. 
 
 (m) Co. Litt. 16b; and note (3) by 
 Harg. 
 
 (n) 9 Rep. 31. 
 
 (o) Ibid. It is to be observed that 
 in the instances here mentioned of 
 proof by the royal letters patent, by 
 treaty and by Domesday, the word 
 record is taken in a somewhat larger 
 sense, and not in its strict technical 
 meaning, according to which it refers 
 exclusively to the proceedings of a 
 court nj justice. 
 
 (p) Litt.s. 102.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 587 
 
 [it was alleged that the defendant was in prison ultra mare 
 at Bordeaux, or in the service of the mayor of Bordeaux,] 
 that place being at the time part of the dominions of the 
 crown, [this should have been tried by the certificate of the 
 mayor.] And in like manner, [we find that the certificate 
 of the queen's messenger, sent to summon home a peeress 
 of the realm, was formerly held a sufficient trial of the 
 contempt in refusing to obey such summons (q). Secondly, 
 in matters within the realm, the customs of the city of 
 London shall be tried by the certificate of the mayor and 
 aldermen, certified by the mouth of the recorder (r), upon 
 a surmise from the party alleging it, that the custom ought 
 to be thus tried; else it must be tried by a jury(s): as 
 the custom of distributing the effects of freemen deceased, 
 of enrolling apprentices, — or that he who is free of one 
 trade may use another, if any of these or similar points 
 come in issue. But this rule admits of an exception, where 
 the corporation of London is party, or interested in the suit, 
 as in an action brought for a penalty inflicted by the cus- 
 tom ; for there the reason of the law will not endure so 
 partial a trial, but this custom shall be determined by a 
 jury, and not by the mayor and aldermen certifying by the 
 mouth of their recorder (t). Thirdly, in some cases the 
 sheriff of London's certificate shall be the final trial, as if 
 the issue be whether the defendant be a citizen of London 
 or a foreigner (?<), in case of plea of privilege to be sued 
 only in the city courts. Of a nature somewhat similar to 
 which is the trial of the privilege of the University when 
 the chancellor claims cognizance] of a cause between two 
 private persons (as the practice of the courts at Westmin- 
 
 (9) Bartue and the Duchess of cate of the custom of London, see 
 
 Suffolk's case, Dy. 176, 177. Crosby v. Hetherington,5 Scott, N.R. 
 
 (?•) Co. Litt. 74 ; Plummer v. 654. See farther as to this privilege, 
 
 Bentham, 1 Burr. 248. Pulling on the Law and Customs of 
 
 (s) Bro. Ab. tit. Trial, pi. 96. As London, p. 4. 
 
 to the form of the suggestion for the (t) Day v. Savadge, Hob. 114. 
 
 purpose of obtaining a trial by certifi- (») 2 Roll. Ab. 583.
 
 588 BOOK V. — OF CIVIL INJURIES. 
 
 ster allows him to do), [because one of the parties is a pri- 
 vileged person (x). In this case the charters, confirmed by 
 act of parliament, direct the trial of the question, " whether 
 a privileged person or no," to be determined by the certifi- 
 cate and notification of the chancellor under seal, to which 
 it hath also been usual to add an affidavit of the fact : but 
 if the parties be at issue between themselves whether A. is 
 a member of the University or no, on a plea of privilege, the 
 trial shall be then by jury, and not by the chancellor's cer- 
 tificate, because the charters direct only that the privilege 
 be allowed on the chancellor's certificate when the claim of 
 cognizance is made by him, and not where the defendant 
 himself pleads his privilege, so that this must be left to the 
 ordinary course of determination. Fourthly, in matters of 
 ecclesiastical jurisdiction, as marriage, and of course general 
 bastardy, and orders, these and other like matters shall be 
 tried by the bishop's certificate (?/).] As if [a man claims 
 an estate by descent, and the tenant alleges the demandant 
 to be a bastard, or if in dower the heir pleads no marriage, 
 or if the issue in a quare impedit be whether or no the 
 church be full by institution, all these, being matters of 
 mere ecclesiastical cognizance, shall be tried by certificate 
 from the ordinary. But in an action on the case for calling 
 a man bastard, the defendant having pleaded in justification 
 that the plaintiff was really so, this was directed to be tried 
 by a jury (z), because, whether the plaintiff was found a 
 general or special bastard, the justification will be good, 
 and no question of special bastardy shall be tried by the 
 bishop's certificate, but by a jury (a). For a special bastard 
 is one born before marriage of parents who afterwards in- 
 termarry, which is bastardy by our law, though not by the 
 ecclesiastical (b). It would, therefore, be improper to refer 
 
 (i) As to this privilege of the Uni- (c) Hob. 213. 
 
 versifies, vide sup. p. 443. („) II award v. Duke of Suffolk, 
 
 (y) Co. Litt. 74 ; Hill v. Barnc, 2 Dy. 79. 
 
 Lev. 250. (/,) Vide sup. vol. ii. p. 276.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 589 
 
 [the trial of that question to the bishop, who, whether the 
 child be born before or after marriage, will be sure to 
 return to certify him legitimate (c). Ability of a clerk pre- 
 sented, admission, institution, and deprivation of a clerk, 
 shall also be tried by certificate from the ordinary or me- 
 tropolitan, because of these he is the most competent 
 judge (d) ; but induction shall be tried by a jury, because 
 it is a matter of public notoriety (e), and is likewise the 
 corporal investiture of the temporal profits (f). Resignation 
 of a benefice may be tried in either way, — but it seems 
 most properly to fall within the bishop's cognizance (g). 
 Fifthly, the trials of all customs and practices of the courts 
 shall be by certificate from the proper officers of those 
 courts respectively; and what return was made on a writ 
 by the sheriff or under-sheriff shall be only tried by his 
 own certificate (h). And thus much for those several issues 
 or matters of fact, which are proper to be tried by certifi- 
 cate.] 
 
 3. [A third species of trial is that by witnesses, per testes, 
 without the intervention of a jury. This is the only method 
 of trial known to the civil law : in which the judge is left to , 
 form in his own breast his sentence, upon the credit of the 
 witnesses examined ; but it is very rarely used in our law, 
 which prefers the trial by jury before it, in almost every 
 instance. Save only that when a widow brings a writ of 
 dower, and the tenant pleads that the husband is not dead, 
 this being looked upon as a dilatory plea, is, in favour of 
 the widow, and for greater expedition, allowed to be tried 
 by witnesses examined before the judges, and so, saith 
 Finch, shall no other case in our law(i).] 
 
 (r) See Introd. to Great Charter, (/) Vide sup. p. 29. 
 
 by Blackst. edit. Oxon. sub anno (g) 2 Roll. Ab. 583. 
 
 1233. (h) 9 Rep. 31. 
 
 (</) 2 Inst. 632 ; Show. Pari. c. (i) Finch, L. 423. Sir E. Coke, 
 
 88 ; 2 Roll. Ab. 583. however, mentions some others as oc- 
 
 (e) Sir H. Sidney v. Bishop of curring in real actions. 1 Inst. C ; 9 
 
 Gloucester, Dy. 228. Rep. 30. It will of course be under-
 
 590 
 
 BOOK V. OF CIVIL INJURIES. 
 
 4. [The subject of our next inquiry will be the nature 
 and method of the trial by jury, called also,] in technical 
 language, [the trial per pais, or by the country, a trial that 
 hath been used time out of mind in this nation,] and the 
 origin of which is so remote, that it has not hitherto been 
 satisfactorily traced (It). 
 
 This being the ordinary, and in practice almost the inva- 
 riable, mode of trial in the English law, and at the same 
 time one of the most important and celebrated of its insti- 
 tutions, we shall proceed to the dissection and examina- 
 tion of it in all its parts. 
 
 stood that what is said here applies 
 only to the trial by witnesses in the 
 superior courts. In the newly intro- 
 duced County Courts, there is what 
 may be termed a trial by witnesses, 
 that is, a trial by the judge upon con- 
 sideration of the evidence, without a 
 jury ; and in those courts this has 
 been hitherto the most frequent 
 course, though it is competent to 
 either party where the claim exceeds 
 5/. to insist on a trial by jury. 
 
 (/c) Blackstone considers this mode 
 of trial as having been " universally 
 ' ' established among all the northern 
 " nations, and so interwoven in their 
 " very constitution, that the earliest 
 " accounts of the one give us also 
 "some traces of the other." — 3 Bl. 
 Com. 349. He also says, that it is 
 mentioned in England as early as in 
 the laws of Ethelred, for which he 
 cites Wilk. LI. Anglo-Sax. 117. He 
 speaks, however, of the date of its 
 first establishment among us as un- 
 known, and the same uncertainty is 
 confessed in a much later work, 
 where, though trial by jury is consi- 
 dered as having been in use among 
 the Anglo-Saxons, it is remarked, 
 that " no record marks the date of 
 
 its commencement." — Turner's Hist. 
 Ang. Sax. vol. iii. p. 223. We must 
 add, that when the Anglo-Saxon 
 memorials are carefully scrutinized, 
 we find them to be such as even to 
 justify a doubt whether trial by jury 
 (in any sense approaching to our use 
 of that term ) did actually exist among 
 us at any time before the Norman 
 Conquest. See Hickes, Thes. Diss. 
 Epist ; Hallam, Mid. Ag. vol. ii. p. 
 396 ; Reeves's Hist. Eng. Law, vol. 
 i. pp. 24, 83. The most probable 
 theory seems to be, that we owe the 
 germ of this (as of so many other of 
 ourinstitutions)totheNormans(vide 
 sup. vol. i. p. 44) ; and that it was 
 derived by them from Scandinavia 
 (vide post, p. 597, note (s) ). At the 
 date of Bracton's work, in the time 
 of Henry the third, it had taken 
 among us (in substance) the shape 
 which it now wears; but its rudiments 
 appear as early as the reign of Henry 
 the second. Indeed, the particular 
 species of it, called the grand assize, 
 which was appropriate to the trial of 
 the question of mere right (vide sup. 
 p. 481 ), was established by a positive 
 law of that monarch's reign. (Glanv. 
 1. 2, c. 7.)
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 591 
 
 Here, however, it may be proper to explain, that there 
 are several different forms of this proceeding. The first is 
 a trial at bar ; that is, a trial before the judges of the 
 court in which the action is brought, sitting for that pur- 
 pose in banc (I). This method is comparatively rare, and 
 takes place only in causes of difficulty or importance ; or 
 where the crown is concerned in interest, and insists on its 
 right to have the cause so tried. As between private par- J. 
 ties, it can take place only by special permission of the 
 court (m). The second (which is the ordinary one) is the 
 trial at nisi prim, which takes place (as formerly explain- 
 ed (n) ) either before the chief justice, or some other judge, 
 at the sittings for London or Middlesex, or before the 
 judges of assize upon the different circuits; — and in the 
 latter case as well as the former, it is conducted in effect 
 before a single judge only — it not being the practice for 
 more than one judge to sit in the same cause, upon circuit. 
 The third is a trial before the sheriff (o), which is a method 
 adapted to the case where the action is for a liquidated 
 debt or demand, in which the sum sought to be recovered 
 and indorsed on the writ of summons shall not exceed 20/., 
 and where the trial is not likely to involve any difficult 
 question of fact or law : it being provided by statute 3 & 4 
 Will. IV. c. 42, s. 17, that in such cases the trial may, by 
 leave of the court or any one of its judges, be held before 
 the sheriff, or before the judge of any court of record for 
 the recovery of debt within the county (p). But of these 
 
 (/) Vide sup. p. 415. Gen. Hil. T. 1853, r. 58, and Forms 
 (m) Vide 11 Geo. 4 & 1 Will. 4, c. in schedule, Nos. 7, 8, 11. 
 70, s. 7. As to the practice on this (/>) A new method for recovery of 
 mode of trial, see Buron v. Denman, debts and demands not exceeding50/. 
 1 Exch. 769 ; Reg. Gen. Hil. T. has been since provided, as we have 
 1853, r. 41. As to the cases when seen, by the County Court Acts. Vide 
 it will not be allowed, Dimes v. Ld. sup. p. 380. Whether writs of trial 
 Cottenham, 1 L. M. & P. 318. under 3 & 4 Will. 4, c. 4, s. 17, may 
 (n) Vide sup. p. 413 — 417. be directed to judges of the County 
 (o) As to the practice on trial be- Courts, has not been definitively de- 
 fore the sheriff, vide Pryme v. Titch- termined, see Breese v. Owens, 2 L. 
 marsh, 10 Mee. & W. 605. Reg. M. & P. 340.
 
 592 BOOK V. — OF CIVIL INJURIES. 
 
 methods we propose to discuss the trial at nisi prius only, 
 which is the ordinary and regular one — and shall only re- 
 mark with respect to the rest, that they have in general the 
 same incidents with this, particularly as regards the law of 
 evidence, which applies to all the three alike. 
 
 When therefore an issue in fact has been joined (q), and 
 the trial is intended to take place at nisi prius, the plain- 
 tiff's attorney is first to make up and deliver the issue ; that 
 is, to draw up a transcript on paper of all the pleadings, 
 and deliver it to the defendant's attorney, that he may 
 ascertain it to be a correct copy of the pleadings which 
 have actually taken place : which transcript is itself called 
 the issue, its most material part being the question or issue 
 in which the pleadings have terminated (r). 
 
 The next step is to enter the proceedings on record ; which 
 the plaintiff's attorney does by transcribing on a parchment 
 roll the issue so made up, and delivering the same at the 
 proper office of the court (s). This roll is called the Nisi 
 prius Recordist). 
 
 The jury for trial of the issue or issues, which the nisi 
 prius record comprises, is constituted as follows : — In any 
 county, except London and Middlesex, a precept is issued 
 by the judges of assize to the sheriff, directing him to sum- 
 mon a sufficient number of jurors for the trial of all issues, 
 whether civil or criminal, which shall come on for trial at 
 the assizes (u). But in London or Middlesex a precept 
 issues to the sheriff under the hand of a judge for summon- 
 ing a sufficient number of jurors for the trial of all issues 
 in the superior courts (v), at the sittings of nisi prius, held in 
 those counties. In either case, however, a printed panel or 
 slip of parchment containing the names of the jurors is to 
 
 (q) Vide sup. vol. ii. p. 608. (0 See as to its form, Reg. Gen. 
 
 (r) As to the form of this tran- above cited, sched. No. 2. 
 script, see Reg. Gen. Hil. T. 1853, (u) 15 & 16 Vict. c. 76, s. 105. 
 
 schedule. No. 1. (v) Ibid. s. 107. 
 
 (s) 15 & 16 Vict. c. 76, s. 102.
 
 CHAP. X. OP THE PROCEEDINGS IN AN ACTION. 593 
 
 be made by the sheriffs, and kept open to public inspection, 
 and a copy of it is to be delivered out to the parties, and 
 annexed to each nisi priits record sent from the superior 
 court for trial at those assizes or sittings (u) ; and this panel 
 is to contain the names, abodes, and additions of a number 
 of jurors, not less than forty-eight nor exceeding seventy- 
 two, taken from the jurors' book, which by statute 6 Geo. 4, 
 c. 50 (x), is to be annually made out in each county, out 
 of lists returned from each parish, of persons qualified to 
 serve as jurors (y). 
 
 The course above described, however, provides only for 
 cases in which the trial is intended to be by a common jury, 
 that is, a jury consisting of persons who possess only the 
 ordinary qualification in point of property, to which we 
 shall have occasion hereafter to refer. But it is in the 
 option either of plaintiff or defendant in lieu of this, to 
 have the cause tried by a special jury, viz. a jury consisting 
 of persons who, in addition to the ordinary qualifications (z), 
 are of a certain station in society, viz. esquires or persons 
 of higher degree, or bankers or merchants (a). To provide 
 for country causes, in which resort is had to a special jury, 
 and notice thereof has been given, the sheriff is directed by 
 the same precept of the judge of assize already mentioned, 
 to summon a sufficient number of special jurymen, not ex- 
 ceeding forty-eight in all, to try the special jury causes at 
 the approaching assizes ; and a printed panel of the special 
 jurors so summoned, is to be kept in the sheriff's office for 
 public inspection, and a copy of it delivered out to parties, 
 and annexed to the nisi prius record, in the same manner 
 as in the case of common jurors (b). But with respect to 
 
 (v) 15 & 16 Vict. c. 76, ss. 105 — (y) As to the expenses of these 
 
 107. lists, see 7 & 8 Vict. c. 101, s. 60. 
 
 (x) 6 Geo. 4, c. 50, s. 12. It is by (z) As to these, vide post, p. 601. 
 
 this statute (amended by 15 & 16 (a) See 6 Geo. 4, c. 50, 3 & 4 
 
 Vict. c. 76) that the whole practice Will. 4, c. 42, s. 35 ; 15 & 16 Vict, 
 
 relative to summoning jurors, and c. 76, s. 112, 113, Reg. Gen. Hil. T. 
 
 the qualification of jurors, is now 1853, r. 44, 45. 
 
 mainly regulated. (b) No special jury need be sum- 
 
 VOL. III. .*. Q Q
 
 594 BOOK V. — OF CIVIL INJURIES. 
 
 London and Middlesex causes the practice is somewhat 
 different, for where any such cause is intended to be tried 
 by a special jury a rule of court must be obtained for the 
 purpose (k), and, due notice of such intention having been 
 given to the opposite party and to the sheriff, recourse is to 
 be had by the sheriff to the special jurors' list ; being a list 
 annually made out by him of persons qualified to act as 
 special jurors (I). Tickets corresponding with the names 
 of the jurors on this list being put into a box and shaken, 
 the officer(w) takes out forty-eight; to any of which names 
 either party may object for incapacity ; and supposing the 
 objection to be established, another name is substituted ; 
 and these forty-eight names having at a subsequent period 
 been reduced to twenty-four, by striking off such as each 
 party shall in his turn wish to be removed, the twenty-four 
 are accordingly summoned, and their names are placed 
 upon a panel ; to be kept for public inspection, delivered 
 out, and annexed to the nisi prius record, according to the 
 same practice as in country causes (n). This last method 
 is commonly described as the striking of a special jury(o). 
 
 We may now return to the particular suit in which we 
 have supposed issue to have been joined and a nisi prius 
 record entered. 
 
 The next step for the plaintiff's attorney to take, pro- 
 vided he has previously given notice of trial (a notice he 
 is entitled to give as early as the delivery of the replica- 
 tion {}))), is to enter the cause for trial (q). For this pur- 
 
 moned, unless notice of trying by tenant holding over, when the right 
 
 special jury has been given, Reg. of entry accrues after Hilary or Tri- 
 
 Gen. Hil. T. 1853, r. 47. nity Term ; in which case only six 
 
 CO 15 & 16 Vict, c.76, s. 110; days are required. And if the de- 
 see Reg. Gen. Hil. T. 1853, r. 45. fendant is under terms to take "short 
 
 (I) 6 Geo. 4, c. 50, s. 31. notice," only four days are required. 
 
 (n») 15 & 16 Vict. c. 76, s. 110. 15 & 16 Vict c. 76, ss. 97, 217. As 
 
 («) Ibid. to notice of trial, see Reg. Gen. Hil. 
 
 (<>) 6 Geo. 4, c. 50, s. 32. T. 1853, r. 34—37, 40, 41. 
 
 ( p) It must be a ten days' notice (</) As to entry of causes for trial 
 
 at least in all cases, except that of in London and Middlesex, see Reg. 
 
 an ejectment by a landlord against a Gen. Hil. T. 1853, r. 83.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 595 
 
 pose the panel already described having been annexed to 
 the nisi prius record, that record is to be taken to the judge's 
 marshal (r) and entered with him. If it be not so entered, 
 the cause cannot be tried. [Therefore it is in the plaintiff's 
 breast to delay any trial by not carrying down the record, 
 unless the defendant, being fearful of such neglect in the 
 plaintiff, and willing to discharge himself from the action, 
 will himself undertake to bring on the trial, giving proper- 
 notice to the plaintiff, which proceeding is called the trial < 
 
 by provisoes);'] and it is moreover now provided, that if, J£.l^ s~ 
 after issue joined, such issue has not been brought on to be 
 tried according to the course of the court it), the defend- 
 ant, after such notice as the practice also prescribes in that 
 behalf, shall be at liberty to suggest on the record, that 
 the plaintiff has failed to proceed to trial, though duly re- 
 quired to do so, and may sign judgment for his costs (u). 
 
 [Let us now pause awhile, and observe with Sir Matthew 
 Hale(y), in these first preparatory stages of the trial, how 
 admirably this constitution is adapted and framed for the 
 investigation of truth, beyond any other method of trial in 
 the world. For, first, the person summoning the jurors is a 
 man of some fortune and consequence ; that so he may be 
 not only the less tempted to commit wilful errors, but like- 
 wise be responsible for the faults of either himself or his 
 officers ; and he is also bound by the obligation of an oath 
 faithfully to execute his duty.] Next, as to the course of 
 proceeding, it is, as we have seen, so managed, that [the 
 parties may have notice of the jurors, and of their sufficiency 
 
 (»•) As to this officer and his salary, (it) 15 & 16 Vict. c. 76, s. 101. 
 
 see 15 & 16 Vict. c. 73, s. 7. Upon a failure by one party to pro- 
 
 (i) See as to this Reg. Gen. Hil. ceed to trial, pursuant to notice, it 
 
 T. 1853, r. 42. As to a writof trial is also provided that a rule for the 
 
 before the sheriff being carried down costs of the day may be obtained by 
 
 by proviso, see Nicholson v. Jack- the other, without motion. 15 & 16 
 
 son, 1 C. B. 622. Vict. c. 76, s. 99. Et vide Reg. 
 
 (l) The course of the court in this Gen. Hil. T. 1853, r. 39. 
 
 respect is described in 15 & 16 Vict. (v) Hist. C. L. c. 12. 
 c. 76, s. 101. 
 
 Q Q. 2
 
 596 BOOK V. OF CIVIL INJURIES. 
 
 [or insufficiency, characters, connexions, and relations, that 
 so they may be challenged upon just cause.] Thirdly, [as 
 to the place of their appearance : which in causes of weight 
 and consequence is at the bar of the court, but in ordinary 
 cases at the assizes] or sittings [held in the county where 
 the cause of action arises, and the witnesses and jurors 
 live ; a provision most excellently calculated for the saving 
 of expense to the parties. For though the preparation of 
 the causes in point of pleading is transacted in the capital, 
 whereby the order and uniformity of proceeding is pre- 
 served throughout the kingdom, and multiplicity of forms 
 is prevented ; yet this is no great charge or trouble, one 
 attorney being able to transact the business of many clients. 
 But the troublesome and most expensive attendance is that 
 of jurors and witnesses at the trial, which therefore is 
 brought home to them in the county where most of them 
 inhabit. Fourthly, the persons before whom they are to 
 appear, and before whom the trial is to be held, are the 
 judges of the courts at Westminster, if it be a trial at bar,] 
 or at the London or Middlesex sittings, [or the judges of 
 assize delegated from the courts at Westminster by the 
 crown, if the trial be held in the country; persons whose 
 learning and dignity secure their jurisdiction from contempt, 
 and the novelty and very parade of whose appearance have 
 no small influence upon the multitude. The very point of 
 their being strangers in the county is also of infinite service 
 in preventing those factions and parties which would intrude 
 in every cause of moment were it tried only before persons 
 resident on the spot, as justices of the peace and the like(^).] 
 And we may farther remark, that [as this constitution pre- 
 vents party and faction from intermingling in the trial of 
 right, so it keeps both the rule and the administration of 
 the laws uniform. These justices, though thus varied and 
 shifted at every assizes, are all sworn to the same laws, 
 
 (u>) So much consequence was for- dained that no man of the law should 
 merly attached to this consideration, be judge of assize in his own county, 
 that it was, as we have seen, once or- Vide sup. p. 416.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 597 
 
 [have had the same education, have pursued the same stu- 
 dies, converse and consult together, communicate their deci- 
 sions and resolutions, and preside in those courts which are 
 mutually connected and their judgments blended together, 
 as they are interchangeably courts of appeal or advice to 
 each other. And hence their administration of justice and 
 conduct of trials are consonant and uniform ; whereby that 
 confusion and contrariety are avoided which would natu- 
 rally arise from a variety of uncommunicating judges, or 
 from any provincial establishment (x). 
 
 But let us now return to the assizes,] or sittings, where 
 (all previous steps having been regularly settled) we will 
 suppose the cause to be called on in court. The nisi prius 
 record [is then handed to the judge to peruse, and observe 
 the pleadings, and what issues the parties are to maintain 
 and prove ; while the jury is called and sworn.~\ 
 
 The calling of the jury consists in successively drawing 
 out of a box, into which they have been previously put, the 
 names of the jurors on the panels annexed to the nisi prius 
 record, and calling them over in the order in which they 
 are so drawn (y); and the twelve (z) persons whose names 
 
 (i) The recent establishment of us that among the inhabitants of 
 
 the new County Courts, in causes of Norway, from whom the Normans as 
 
 small amount, (as to which, vide sup. well as the Danes were descended, a 
 
 p. 380,) is not to be considered as great veneration was paid to the num- 
 
 any disparagement to these remarks ; ber twelve. " Nihil sanctius, nihil anti- 
 
 but as a sacrifice made, in such quius fuit; perinde an si in ipso line 
 
 causes, to the great objects of eco- numeio sei-iela qutcdam esset religio." 
 
 nomy and expedition. Mr. Hallam also (Hist. Mid. Kg. 
 
 (y) 6 Geo. 4, c. 50, s. 26; 15 & 16 vol. ii. p. 401)remarks uponthe vene- 
 
 Vict. c. 76, ss. 108, 110. ration with which this number was 
 
 (z) In this patriarchal and apos- regarded in Scandinavia generally, 
 
 tolical number of twelve, of which and cites Spelman's Glossary, voce 
 
 a jury in the superior courts always Jurata ; Du Cange, voce Nembda ; 
 
 consists, " Lord Coke has disco- and the Edinb. Review, vol. xxxi. 
 
 " vered," says Blackstone, vol. iii. p. 115; which last he characterizes 
 
 p. 3, 366, " abundance of mystery." as "a most learned and elaborate 
 
 (See Co. Litt. 155.) And he pro- essay." He observes, too, that Spel- 
 
 ceeds to remark, that Dr. Hickes, man has produced several instances 
 
 who attributes the introduction of of the regard paid to twelve in the 
 
 this number to the Normans, tells early German laws.
 
 598 BOOK V. — OF CIVIL INJURIES. 
 
 are first called, and who appear, are sworn as the jury, 
 unless some just cause of challenge or excuse with respect 
 to any of them shall be brought forward. It sometimes 
 happens, however, that on the application of one of the 
 parties before the trial, a rule of court or judge's order has 
 been obtained, directing that a view should be had by cer- 
 tain of the jurors on the panel, of the messuages, lands, 
 or place in question ; [in which case, six or more of the 
 jurors, to be agreed on by the parties] or nominated by the 
 sheriff, [shall be appointed to have the matter in question 
 shown to them by two persons named in the rule or order, 
 and then such of the jury as have had the view, or so many 
 of them as appear, shall be sworn on the inquest, previous 
 to any other jurors (a).] 
 
 After the jurors have appeared, they are liable before 
 they are sworn to be [challenged by either party. Chal- 
 lenges are of two sorts — challenges to the array, and chal- 
 lenges to the polls. 
 
 .p jf Challenges to the array are an exception at once to the 
 
 whole panel, in which the jury are arrayed, or set in order, 
 
 -cZ^> JA-^tyAfyy the sheriff (Z>); and they may be made upon account of 
 partiality or some default in the sheriff, or his under officer, 
 who arrayed the panel,] as if the sheriff be a party in the 
 suit, or related by either blood or affinity to either of the 
 parties. [Also, though there be no personal objection 
 against the sheriff, yet if he arrays the panel at the nomi- 
 nation, or under the direction, of either party, this is a good 
 cause of challenge to the array (c).] 
 
 (a) As to view, see 6 Geo. 4, c. 50, (b) It is considered as very doubt- 
 
 s. 24; 15 & 16 Vict. c. 76, s. 114, fill, if a challenge to the array can be 
 
 by the last of which enactments the made when the jury is special. 1 Arch. 
 
 writ of view formerly required in Pr. by Chitty (8th ed.), p. 424. 
 
 such cases is dispensed with. See (r) Formerly, if a lord of parliament 
 
 Reg. Gen. Hil. T. 1853, rr. 48, 49, had a cause to be tried, and no knight 
 
 by which the rule may be drawn up was returned upon the jury, it was a 
 
 by the officer, upon the affidavit of cause of challenge to the array. (Co. 
 
 the party applying, without any mo- Litt. 156 a ; Selden, Baronage, ii. 2.) 
 
 tion. But this objection is now taken away.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 599 
 
 A challenge to the array may be either by way of prin- 
 cipal challenge, or a challenge to the favour ; the former 
 being on one of the direct grounds above described ; the 
 latter, on grounds that imply only a probability of bias or 
 partiality, as that the son of the sheriff has married the 
 daughter of the adverse party, or the like (e) ; and there 
 seems to be this practical difference between them, that the 
 first, if sustained in point of fact, must be allowed as of 
 course, the allowance of the latter is matter of judgment 
 and discretion only (/). If the challenge be controverted 
 by the opposite party, it is to be left to the determination 
 of two persons, to be appointed by the court {g) ; and if 
 these persons, called triors, decide in favour of the objec- 
 tion, the array is to be quashed, and a new jury impanelled 
 by the coroner (A), who acts in this, as in many other in- 
 
 See 24 Geo. 2, c. 18 ; 6 Geo. 4, c. 50, 
 s. 28. Moreover, it was long neces- 
 sary that some of the jury should be 
 returned from the neighbourhood 
 where the cause of action was laid in 
 the declaration, so that if none were 
 returned at least from the same hun- 
 dred, the array might be challenged 
 for want of hundredths ; an objection 
 founded on the early practice of our 
 law, by which the jurors, in the 
 origin of the institution of trial by 
 jury, were summoned altogether de 
 vicineto, and were indeed in the nature 
 of witnesses, rather than judges. But 
 the necessity for the hundredors also 
 was by successive statutes gradually 
 abolished. Vide 27 Eliz. c. 6 ; 4 Ann. 
 c. 16 ; 24 Geo. 2, c. 18. And see 
 as to criminal cases, 6 Geo. 4, c. 50, 
 s. 13. The array might also formerly 
 be challenged if an alien were party 
 to the suit, and if (after application 
 made to the court for that purpose) 
 the sheriff did not return a jury de 
 medietate lingute, that is, a jury one 
 
 half of which consisted of aliens, 
 supposing so many to be found in the 
 place. And this trial by a jury de 
 medietate is still allowed in trials for 
 felony or misdemeanor ; but no longer 
 in a civil action. See 6 Geo. 4, c. 50, 
 ss. 3, 47. 
 
 (e) Co. Litt. 156 a. 
 
 (/ ) Ibid. ; et vide 3 Bl. Com. 363. 
 
 (g) It is said that a principal chal- 
 lenge may be tried by the court it- 
 self without the intervention of triors, 
 Arch. Pr. by Chitty(8th ed.), p. 427. 
 See Mayor of Carmarthen v. Evans, 
 10 Mee. & W. 274. 
 
 (/i) Newman v. Edmonds, 1 Bulst. 
 114; 2 Hale, P. C. 275; R. t>. Ed- 
 monds, 4 B. & Aid. 471. If any ex- 
 ception lies to the coroners, the jury 
 is to be arrayed by two clerks of the 
 court, or two persons of the county 
 named by tile court and sworn. 
 These are called elisors or electors, 
 and no challenge is allowed to their 
 array. 3 Bl. Com. 354 ; Fortesc. de 
 Laud. LL. c. 25 ; Co. Litt. 158.
 
 600 BOOK V. — OF CIVIL INJURIES. 
 
 stances, as substitute for the sheriff', in executing process, 
 where he is deemed an improper person (i). 
 
 [Challenges to the polls, in capite, are exceptions to par- 
 '^_- ticular jurors, and seem to answer the recusatio judicis in 
 the civil and canon laws ; by the constitution of which, a 
 judge might be refused upon any suspicion of partiality (k). 
 By the laws of England also, in the times of Bracton (7), 
 and Fleta (m), a judge might be refused for good cause; 
 but now the law is otherwise, and it is held that judges 
 and justices cannot be challenged (n). For the law will not 
 suppose a possibility of bias or favour in a judge who is 
 already sworn to administer impartial justice,] and whose 
 conduct upon the judgment seat is under the immediate 
 check of public observation. [And should the fact at any 
 time prove flagrantly such as the deiicacy of the law will 
 not presume beforehand, there is no doubt but that such 
 misbehaviour would draw down a heavy censure from those 
 to whom the judge is accountable for his conduct (o). 
 
 But challenges to the polls of the jury (who are judges 
 of fact] only, and are merely private persons) do not fall 
 under the same principle, and are consequently allowed. 
 They [are reduced to four heads by Sir E. Coke (p), — 
 propter honoris respectum, propter defectum, propter affec- 
 tum and propter delictum. 
 
 1 . Propter honoris respectum, as if a lord of parliament 
 be impanelled on a jury, he may be challenged by either 
 party, or he may excuse himself as exempted by law ((/). 
 2. Propter defectum, as if a juryman be an alien born, this 
 
 (i) 3 Bl. Com. 354; et vide sup. (q) 6 Geo. 4, c. 50, s. 2. It has 
 
 vol. ii. p. 621. been doubted whether, since the peer- 
 
 (/<) Cod. 3, 1. 16; Decretal. 1. 2, age has been thus made matter of 
 
 t. 28, c. 36. exemption, it is any longer matter of 
 
 (/) L. 5, c. 15. challenge by the parties. Vide Arch. 
 
 (m) L. 6, c. 37. Pr. by Chitty (8th ed.), p. 424. But 
 
 (n) Co. Litt. 29 k it is apprehended that this cannot take 
 
 (o) Vide sup. vol. ii. p. 461. away their right of challenge. 
 
 (/>) Co. Litt. 156 b.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 
 
 601 
 
 [is defect of birth (r);] in connection with which we may- 
 notice the defect of sex, no female being capable of serving 
 on a jury (s). [But the principal deficiency is defect of estate 
 sufficient to qualify a man to be a juror.] This formerly 
 depended on a variety of statutes (t), but now on the 6 
 Geo. IV. c. 50, alone. By this statute the qualification of 
 a juror, generally, is as follows : He must be between 
 twenty-one and sixty years of age, and must have within 
 the county in which he resides, and in which the action is 
 to be tried, in his own name, or in trust for him, 10/. by 
 the year above reprises, in lands or tenements of freehold, 
 copyhold or customary tenure, or of antient demesne, or 
 in rents issuing out of such lands or tenements, or in such 
 lands, tenements and rents taken together, in fee simple, fee 
 tail, or for the life of himself or some other person ; or he 
 must have within the same county 20/. by the year, above 
 reprises, in lands or tenements, held by lease for twenty- 
 one years or longer, or for a term of years determinable on 
 any life or lives ; or he must be a householder, rated or 
 assessed to the poor rate, or to the inhabited house duty, 
 in Middlesex on a value of not less than 30/., or (in any 
 other countv) on a value of not less than 20/. ; or he must 
 
 (r) 6 Geo. 4, c. 50, s. 3. See as to 
 the challenge of alienage to a special 
 juror, R. v. Sutton, 8 B. & C. 417. 
 
 (s) Except in the case of a jury of 
 matrons upon the writ de ventre inspi- 
 ciendo. 6 Geo. 4, c. 50. s. 1, and 3 
 Bl. Com. 362. 
 
 (f) It appears from Blackstone (3 
 Bl. Com. 362), that by the statute of 
 Westminster the second. 13 Edw. 1, 
 c. 38, the general qualification for 
 juries in assizes was 20s. by the year, 
 which was increased to 40s. by 21 
 Edw. 1, st. 1, and 2 Hen. 5, st. 2, c. 3. 
 This was doubled by 27 Eliz. c. 6, 
 which required an estate of freehold, 
 to the yearly value of 4/. at the least. 
 
 But the value of money greatly de- 
 creasing, the qualification was raised 
 by a temporary act, 16 & 17 Car. 
 c. 3, to 20/ per ann., and on the ex- 
 piration of that act was afterwards 
 fixed by 4 & 5 W. & M. c. 24, at 10/. 
 per ann., and 61. in Wales, of freehold 
 land or copyhold ; which was the first 
 time that copyholders were allowed to 
 serve on juries in the superior courts. 
 In addition to which it was afterwards 
 provided, by 3 Geo. 2, c. 25, that any 
 leaseholder for 500 years absolute, or 
 any term determinable on a life or 
 lives, of the clear yearly value of 20/. 
 over and above the rent, should be 
 qualified.
 
 G02 
 
 BOOK V. OF CIVIL INJURIES. 
 
 occupy a house containing not less than fifteen windows(w). 
 And the want of any such qualification is a ground of chal- 
 lenge (x). 3. [Jurors may be challenged propter affectum, 
 for suspicion of bias or partiality. This may be either a 
 principal challenge or to the favour ;] the distinction be- 
 tween which has been already explained in reference to 
 challenges to the array. As regards challenges to the polls, 
 it is laid down as a cause of principal challenge — [that a 
 juror is of kin to either party within the ninth degree (y); 
 that he has been arbitrator on either side ; that he has an 
 interest in the cause ; that there is an action depending be- 
 tween him and the party ; that he has taken money for his 
 verdict; that he has formerly been a juror in the same 
 cause; that he is the party's master, servant, counsellor, 
 steward or attorney, or of the same society or corporation 
 with him] ; and that on the other hand, challenges to the 
 favour are where the objection is founded on [some pro- 
 bable circumstances of suspicion, as acquaintance and the 
 like (z).~\ Challenges of either kind are determined, like 
 those to the array, by triors ; the practice as to whom, in 
 
 (u) 6 Geo. 4, c. 50, s. 1. This last 
 qualification had reference to the 
 window tax, since abolished. As to 
 the qualifications prescribed by this 
 act, it is to be observed, that they 
 apply not only to juries impanelled 
 to try issues, (whether out of the 
 superior courts or out of the new 
 county courts), but also to jurors on 
 writs of inquiry before sheriffs. They 
 do not apply, however, to the jurors 
 in towns corporate, or counties cor- 
 porate, possessing jurisdictions of 
 their own ; the panels of whose 
 juries are to be prepared in manner 
 before accustomed (6 Geo. 4, c. 50, 
 s. 50); and as to London jurors, re- 
 turned to try issues out of the supe- 
 rior courts, the act provides a dif- 
 
 ferent qualification, viz. that a juror 
 must be a householder or the occu- 
 pier of a shop, warehouse, counting- 
 house, chambers or office, for the 
 purpose of trade or commerce, within 
 the city, and have lands, tenements 
 or personal estate of the value of 
 100/. (Sect. 50.) 
 
 (x) 6 Geo. 4, c. 50, s. 27. 
 
 (y) See Onions v. Nash, 7 Price, 
 263 ; Hewit t>. Ferneley, ibid. 234. 
 
 (;) Finch, L. 401. It is remark- 
 able that in the nemhda or jury of the 
 antient Goths, there was a distinction 
 similar to ours, as to the nature of the 
 challenges : "Licehat palam excipere, 
 et semper ex probubili cunsa tres repit- 
 tliari ; eliam plures ex causa pragttanti 
 et manifesto." — Stiern. 1. l,c. 4.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 603 
 
 [the case of challenges to the polls, is stated as follows, 
 The triors, in case the first man called be challenged, are 
 two indifferent persons named by the court; and if they 
 try one man and find him indifferent, he shall be sworn ; 
 and then he and the two triors shall try the next; and when 
 another is found indifferent and sworn, the two triors shall 
 be superseded, and the two first sworn on the jury shall try 
 the rest (a). 
 
 4. Challenges propter delictum are for some crime or 
 misdemeanor that affects the juror's credit and renders 
 him infamous.] As for an attainder of treason or felony, — 
 unless he shall have obtained a free pardon ; or for out- 
 lawry or excommunication (6). 
 
 Besides these challanges (c), which, are exceptions against 
 the fitness of jurors, and whereby they may be excluded 
 from serving-, there are also other causes to be made use of 
 by the jurors themselves, which are matters of exemption ; 
 whereby their service is excused and not excluded. These 
 exemptions formerly depended on various statutes, customs, 
 and charters, but now depend on the 6 Geo. IV. c. 50, 
 alone. The persons exempted are as follows ; all peers ; / 
 judges of the superior courts; clergymen; Roman Catholic ■== 
 priests, who have qualified ; dissenting ministers, whose 
 meeting is duly registered, and who follow no secular occu- 
 
 (a) Co. Litt. 158. It is said that 
 a principal challenge to the poll 
 may, like a principal challenge to 
 the array, berried by the court, with- 
 out the intervention of triors. Arch. 
 Pr. by Chitty (8th ed.), p. 428. 
 
 (6) 6 Geo. 4, c. 50, s. 3. 
 
 (c) It is to be observed, that the 
 case of a formal challenge, whether 
 to the array or the polls, has now be- 
 come infrequent; for where the sheriff 
 is not indifferent, the jury may be 
 impanelled in the first instance by 
 the coroner ; and supposing it to be 
 impanelled by the sheriff, this will 
 
 be a sufficient ground not only for 
 challenge, but for moving in arrest 
 of judgment after the verdict. (Arch. 
 Pr. by Chit. (8th ed.), p. 422.) So 
 in case of any objection to a parti- 
 cular juror, the usual course now is, 
 simply to intimate the objection to 
 the proper officer of the court, who, 
 unless the matter be disputed on 
 the other side, will refrain from call- 
 ing him. So that the learning of 
 challenges (though still of import- 
 ance) is rarely illustrated by the 
 modern practice of the courts.
 
 604 BOOK V. — OF CIVIL INJURIES. 
 
 pation but that of schoolmaster, and who produce the certi- 
 ficate of some justice of the peace of their having quali- 
 fied; Serjeants, barristers, and advocates actually practising; 
 attorneys, solicitors, and proctors actually practising, and 
 taking out their certificates ; officers of all courts of law or 
 equity, or of ecclesiastical or admiralty jurisdiction, actually 
 exercising their duties ; coroners, gaolers, and keepers of 
 houses of correction; physcians, surgeons and apothecaries, 
 duly admitted to practise, and practising ; officers of the 
 royal army or navy on full pay ; licensed pilots and masters 
 of vessels in the buoy or light service, licensed by the Tri- 
 nity House, or lord warden of the cinque ports ; royal 
 household servants; officers of customs and excise; sheriffs' 
 officers ; high constables ; and parish clerks (d). 
 
 If a sufficient number of jurors do not appear, or if by 
 means of challenges or exemptions a sufficient number of 
 unexceptionable ones do not remain, either party may pray 
 a tales. [A tales is a supply of such men as are summoned 
 upon the panel, in order to make up the deficiency. For 
 this purpose a writ of decern tales, octo tales, and the like, 
 was used to be issued to the sheriff at common law.] But 
 now at the assizes, or sittings at nisi prius, the judge is 
 empowered, by the 6 Geo. IV. c. 50, s. 37, at the request 
 of either party, to award a tales de cir cum stantibus (e), 
 that is, to command the sheriff to return so many other 
 men duly qualified as shall be present, or can be found, 
 to the number required for making up a full jury; and to 
 add their names to the former panel. But in the case of 
 common jurors (of whom seventy-two are usually returned 
 on the same common jury panel {/) ), it happens of course 
 but rarely that the whole are exhausted so as to make a 
 tales necessary ; and in special jury causes the deficiency 
 is, by the same statute, directed to be made up from the 
 common jury panel, if a sufficient number can be found. 
 
 (d) 6 Geo. 4, c. 50, s. 2. (/ ) Vide sup. p. 591. 
 
 (e) F. N. B. 166; Reg. Brev. 179.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 605 
 
 But if such number be not found, there is then to be a tales 
 de circumstantibus in manner before directed (h). 
 
 The necessary number of twelve qualified persons being 
 at length obtained, they are then separately sworn upon the 
 New Testament " well and truly to try the issue between 
 the parties, and a true verdict to give according to the 
 evidence;" and hence they are denominated the "jury," 
 jurata (i), and the "jurors" juratores (k). 
 
 [The jury are now ready to hear the merits ; and to fix 
 their attention the closer to the facts which they are im- 
 panelled and sworn to try, the pleadings are opened to them] 
 by the plaintiff, and (as a general rule) the case then stated 
 [by counsel on that side which holds the affirmative of the 
 question in issue (I). For the issue is said to lie, and proof 
 is always first required, upon that side which affirms the 
 matter in question (m) ; in which our law agrees with the 
 
 (h) 6 Geo. 4, c. 50, s. 37. As to 
 a tales in a special jury cause, see 
 Gatliffi-. Bourne, 2 M. & Rob. 100 ; 
 Snook v. Southwood, 1 R. & M. 429. 
 Contra, British Museum v. White, 3 
 Car. & P. 289. It is provided by 
 15 & 16 Vict. c. 76, s. 113, that 
 where notice has not been given that 
 a cause is to be tried by special jury, 
 it may be tried by a common jury 
 from the panel of common jurors. 
 
 (i) An affirmation is allowed, in 
 lieu of oath, in the case of Quakers, 
 Moravians and Separatists, see 3 &4 
 Will. 4, c. 49, and c. 82 ; 1 & 2 Vict, 
 c. 77 ; 6 & 7 Vict. c. 85, s. 2 ; and 
 Jews are of course sworn on the Old 
 Testament. 
 
 (/c) Blackstone remarks, that the 
 i>electijudices of the Romans bore in 
 many respects a remarkable resem- 
 blance to our juries, — " for they were 
 " first returned by the praetor; then 
 " their names were drawn by lot, till 
 " a certain number was completed ; 
 
 " then the parties were allowed their 
 " challenges ; next they struck what 
 " we call a tales ; lastly, the judges, 
 " like our jury, were sworn." (Ascon. 
 in Cic. Verr. 1, 6; 3 Bl. Com. 366.) 
 He also remarks that a learned 
 writer of our own, Dr. Pettingall, 
 hath shown, in an elaborate work 
 (published a.d. 1769), so many re- 
 semblances between the Jucarai of 
 the Greeks, the judices selecti of the 
 Romans, and the juries of the Eng- 
 lish, that he is tempted to conclude 
 that the latter are derived from the 
 former. As to the derivation of our 
 juries, however, vide sup. p. 590, 
 n.(fc). 
 
 (/) In all actions for unliquidated 
 damages, the plaintiff shall begin, 
 though the affirmative of the issue is 
 on the defendant. Mercer v. Whall, 
 
 5 Q. B. 447. See Cooper v. Wakley, 
 Moo. & M. 248 ; Arch. N. P. 4. 
 
 (m) Calder v. Rutherford, 3 Brod. 
 
 6 Bing. 302; Evans v. Birch, 3
 
 606 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 [civil (n) : " el incumbit probatio, qui (licit, non qui negat ; 
 cum per rerum naturam factum-negantis probatio nulla sit." 
 The opening counsel briefly informs them what has been 
 transacted in the action] up to that stage of its prosecution; 
 [the parties, the nature of the action, the declaration, the 
 plea, replication, and other proceedings ; and, lastly, upon 
 what point the issue is joined, which is there sent down to be 
 determined. Instead of which formerly (o) the whole record 
 and process of the pleadings,] then in Latin, [was read to 
 them in English by the court, and the matter in issue clearly 
 explained to their capacities. The nature of the case, and 
 the evidence intended to be produced, are next laid before 
 them by counsel also on the same side ; and when their evi- 
 dence is gone through, the advocate on the other side opens 
 the adverse case, and supports it,] if its nature so require, 
 [by evidence ; and then the party which began is heard by 
 way of reply.] But no reply is allowed unless evidence be 
 given in answer to the case first stated (p). 
 
 The nature of the present work is not adapted to a full 
 disquisition on the numberless niceties and distinctions 
 which attend the law of evidence (q). We must confine 
 ourselves to a few observations on the nature of evidence 
 
 Camp. 10. But there are cases in 
 which the law presumes the affirma- 
 tive, and where consequently the 
 negative must be proved by the par- 
 ty asserting the negative. See Wil- 
 liams v. East India Company, 3 
 East, 192. And it is a general rule, 
 that where the issue is on the life or 
 death of a person once existing, the 
 proof lies on the party asserting the 
 death. As to the presumptive evi- 
 dence sufficient in such cases, see 2 
 Roll. Rep. 461 ; Dickson v. Evans, 
 6 T. R. 57 ; Wilson v. Hodges, 2 
 East, 312 ; R. v. Harborne, 2 A. & 
 E. 540 ; Randle v. Lory, 6 A. & E. 
 
 218; Nepean v. Doe, 2 Mee. & W. 
 910 ; Sillick v. Booth, 1 You. & C. 
 N. C. 117. Et vide as to the particu- 
 lar case of tenants for life, or ctstuy 
 que vies, stat. 19 Car. 2, c. 6 ; 6 Ann. 
 c. 18. 
 
 (n) Ff. 22, 3, 2; Cod. 4, 19,23. 
 
 (o) Fortesc. c. 26. 
 
 (p) There is an exception however 
 to this in the case of the crown, 
 which is always entitled to reply. 
 
 (q) There exist several excellent 
 treatises on this subject; those of 
 Mr. Phillips, of Mr. Starkie, and of 
 Mr. Pitt Taylor, may be consulted 
 with advantage.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 607 
 
 in general, and a notice of some of its leading rules and 
 maxims. 
 
 Proofs, or evidence, (for the terms are generally used as 
 synonymous,) are either written or parol. The former con- 
 sist of records, deeds, or other writings (r) ) ; the latter, of 
 witnesses personally appearing in court, and sworn (s) to 
 the truth of what they depose. 
 
 With respect to witnesses, [there is a process to bring 
 them in by writ of sabpcena ad testificandum (t) ;] which ffcd**^ 
 commands them, laying aside all excuses, and on pain of 
 forfeiting 100/., to appear at the trial, and give their evi- 
 dence. And it may contain a clause of duces tecum, re- 
 quiring them to bring at the same time all such deeds or 
 writings in their possession or power as the party who issues 
 the subpoena may think material for his purpose. In the 
 event of the non-attendance of a person so subpoenaed, and 
 his inability to show any lawful ground of excuse, (such as 
 that of dangerous illness,) he is considered as having com- 
 mitted a contempt of court, and is liable to an attachment, 
 (a species of criminal process,) under which he may be 
 punished for such contempt. And an action will also lie 
 against him, at suit of the party grieved, to recover com- 
 pensation for any loss that may be occasioned by the non- 
 attendance (u). [But no witness, unless his reasonable ex- 
 penses] for the whole period of his attendance, eundo, mo- 
 rando, et redeundo, [are tendered him, is bound to appear 
 
 (r) As to the admissibility in evi- (s) Vide post, p. 608. 
 
 dence of letters of an agent, Jones v. (t) As to subpoena, Garden v. 
 
 Shears, 4 A. & E. 832 ; of entries in Creswell, 2 Mee. & W. 319 ; Scholes 
 
 parish books, Taylor d. Devey, 7 A. v. Hilton, 10 Mee. & W. 15 ; Smith 
 
 & E. 409 ; of an antient survey of v. Truscott, 6 Man. & G. 267 ; Edgell 
 
 manor, ibid. 617 ; of books of trea- v. Curling, 7 M. & G. 958. 
 
 surer of charity, Doe v. Hawkins, 2 (u) An action will also lie on the 
 
 Q. B. 212 ; of judgments, Christy v. stat. 5 Eliz. c. 9, to recover a penalty 
 
 Tancred, 9 Mee. & W. 438 ; of pub- of 10/. at the suit of the party grieved. 
 
 lie books not judicial, Jewison v. Dy- But this proceeding is not an usual 
 
 son, ibid. 540 ; Rowe v. Brenton, 8 one. As to the action at common 
 
 B. & C. 743 ; of title deeds, Wollas- law for non-attendance, see Davis v. 
 
 ton v. Hakewill, 3 Man. & Gr. 297. Lovell, 1 Horn & Hurl. 451 ; Cou-
 
 608 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 '/* 
 
 [at all : nor if he appears, is he bound to give evidence till 
 such charges are actually paid him;] and he is also protected 
 during the same period from any arrest for debt (x). If it 
 be ascertained beforehand that a person required as a witness 
 will be unable to attend the trial from permanent sickness 
 or infirmity, or absence in parts beyond the court's jurisdic- 
 tion, the court is empowered, by 1 Will. IV. c. 22 (y), after 
 CtscjL joinder of issue, to issue a commission for his examination 
 at any place out of the jurisdiction, or to order his exami- 
 nation upon interrogatories or otherwise, at any place within 
 the jurisdiction, (as the case may require) ; and such ex- 
 amination may afterwards be read in evidence at the trial, 
 provided the witnesses be dead, or (in case of sickness or 
 infirmity) provided his disability still continues ; but other- 
 wise not without consent of the party against whom it is 
 offered (z). 
 
 [All witnesses, of whatever religion (a), or country, that 
 have the use of their reason (b) are to be received and 
 examined.] To this, indeed, there were formerly two ex- 
 ceptions. For no party to the suit was allowed in any case 
 
 ling v. Coxe, 6 D. & L, 399. As 
 to attachment for non-attendance, 
 Scholes o. Hilton, ubi sup. ; Chap- 
 man v. Davis, 1 Dowl. N. S. 239. 
 
 (i) Meekins v. Smith, 1 H. Bl. 
 636, where it was laid down that the 
 same privilege applied to all persons 
 (whether witnesses or not) who had 
 bend fide occasion to attend. 
 
 (_i/) This statute recites and ex- 
 tends the provisions of a previous act 
 (13 Geo. 3,c. 63), which had reference 
 to India only. 
 
 (s) 1 Will. 4, c. 22, s. 10. As to 
 commissions to examine witnesses, 
 see Clay v. Stephenson, 7 A. & E. 
 185 ; Greville v. Stultz, 17 L. J. (Q. 
 B.) 14; R. v. Wood, 7 Mee. & W. 
 571 ; Mondel v. Steele, 8 Mee. & W. 
 300; Attorney-General v. Bovet, 15 
 
 Mee. & W. 60. And see 6 & 7 
 Vict. c. 82, ss. 5, 6, as to the powers 
 with which the commissioners are 
 vested, and 1 Reg. Gen. Hil. T. 1853, 
 r. 33, as to filing the depositions. 
 This proceeding cannot be resorted 
 to in a criminal prosecution either 
 at common law or under the above 
 statute. Queen v. Inhabitants of 
 Upton St. Leonards, 10 Q. B. 827. 
 
 (a) An atheist is said to be not 
 competent, 1 Stark. Ev. 81, and the 
 authorities there cited. Sed vide 1 
 & 2 Vict. c. 105, cited post, p. 610. 
 
 (/)) A child too young to under- 
 stand the nature of an oath, or an 
 adult unable from mental infirmity 
 to understand it, is incompetent. 
 Ibid.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 609 
 
 to give evidence, and persons that were infamous, that is, 
 of such character that they might be challenged as jurors 
 propter delictum (c), were wholly inadmissible as witnesses ; 
 and persons interested in the testimony they were to give 
 (however slight that interest might be (d) ) were also incom- 
 petent to be heard as witnesses on the side of the question 
 to which their interest inclined (e). But the principle of 
 absolute exclusion in these cases, though once among the 
 most settled peculiarities of the English law, has been eradi- 
 cated from it by recent acts of parliament, and the objection 
 is now admissible only as affecting the credibility, and not 
 the competency, of the witness, it being in the first place 
 provided by 6 & 7 Vict. c. 85, that no person offered as 
 a witness shall hereafter be excluded by reason of inca- 
 pacity from crime or interest, from giving evidence either 
 in person, or by deposition, on any issue or inquiry civil or 
 criminal, but shall be admitted notwithstanding he may 
 have an interest in the matter in question, or in the event 
 of the trial or proceeding, and notwithstanding that he may 
 have previously been convicted of any crime or offence (f) ; 
 and it being now farther enacted by 14 & 15 Vict. c. 99, 
 that even the parties to a cause shall be both competent and 
 compellable to give evidence on behalf of either or any of 
 the parties ; subject only to exception where the question 
 tends to criminate the person examined, or where it tends 
 to make a husband give evidence for or against his wife, or 
 a wife give evidence for or against her husband, or where 
 
 (r) 3 Bl. Com. 370. As to this whether a witness called by the oppo- 
 
 challenge, vide sup. p. 603. site side, was or was not competent, 
 
 (d) See Doe r. Bramwell, 3 Q. B. by examining him on the voire dire 
 307. (dicere veritatem), as it was called, be- 
 
 (e) A few exceptions had been in- fore he gave his evidence. See Arch, 
 troduced by statute in particular Nisi Prius, vol. i. p. 38. 
 
 cases: see 11 Ann. st. 1, c. 18, s. (f) See the following cases on 
 
 13 ; 13 Geo. 3, c. 78, s. 77 , 9 Geo. points arising under this statute, 
 
 4, cc. 32, 33. It may be remarked, Udal v. Walton, 1-i Mee. &W. 254; 
 
 in reference to the former inadmis- Attorney-General v. Hitchcock, 1 
 
 sibility of interested witnesses, that Exch. 91. 
 counsel were allowed to ascertain 
 
 VOL. III. R R
 
 610 BOOK V. OF CIVIL INJURIES. 
 
 it is put in any action or proceeding instituted in conse- 
 quence of adultery, or any action for breach of promise of 
 marriage (g). 
 
 The oath is administered to the witness in general upon the 
 New Testament, but to the believers in other religions than 
 the Christian, in the forms appropriate to their creed (h) ; 
 and by 1 & 2 Vict. c. 105, it is declared and enacted that 
 in all cases in which an oath is administered either to a 
 juryman or a witness, or to a deponent in any proceeding 
 civil or criminal, in any court of law or equity, or on 
 appointment to any office or employment, or on any occa- 
 sion whatever, such person is bound by the oath adminis- 
 tered, provided it be administered in such form and with 
 such ceremonies as he may declare to be binding, and in 
 case of false swearing he may be convicted of perjury as 
 well as when administered in the form and with the cere- 
 monies most commonly adopted. 
 
 A witness is not bound to answer any question that tends 
 to expose him to punishment as a criminal or to penal lia- 
 bility (i), or to forfeiture of any kind (j). But by 46 Geo. 
 III. c. 37, it is declared and enacted that he cannot by law 
 refuse to answer a question relevant to the matter in issue, 
 the answering of which has no tendency to expose him to 
 a penalty or forfeiture of any nature whatsoever, by reason 
 only, or on the sole ground, that the answering of such 
 question may establish or tend to establish that he owes a 
 debt, or is otherwise subject to a civil suit. So also upon 
 the general principle of the convenience of public justice, 
 no questions are permitted to be asked which tend to 
 the discovery of the channels through which information 
 has been given to the officers of justice in criminal prose- 
 cutions (k). 
 
 (g) Vide supra, vol. ii. pp. 258, (j) Phill. on Evidence, vol. 2, 
 
 259, n. (r). p. 420. 
 
 (h) Omichund v. Barker, 1 Atk. (/>) Hardy's case, 44 St. Tr. 816, 
 
 49; vide sup. p. 605, n. (i). Attorney-General v. Briant, 15Mee. 
 
 (0 Stark. Ev. 136. And see 14 & W. 169. 
 & 15 Vict. c. 99, s. 3.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 611 
 
 A counsel, attorney or solicitor (I) also is not bound or 
 even at liberty to divulge the secrets of the cause with 
 which he may have become confidentially intrusted ; nor 
 can official persons be called upon to disclose any matter 
 of state, the publication of which may be prejudicial to the 
 community. But the law recognizes no other privilege in 
 this matter ; and compels all other professional persons, 
 whether physicians, surgeons, or divines, to divulge the 
 secrets (if relevant to the issue) with which they have be- 
 come professionally acquainted ; and will not allow even a 
 servant or private friend to withhold a relevant fact, though 
 of the most delicate nature, and communicated to him in 
 the strictest confidence (m). 
 
 [One witness, if credible, is sufficient evidence to a jury, 
 of any single fact ; though undoubtedly the concurrence of 
 two or more corroborates the proof. Yet our law considers 
 that there are many transactions to which only one person 
 is privy, and therefore does not always demand the testi- 
 mony of two, as the civil law universally requires. " Urdus 
 responsio testis omnino non audiatur (ft)."] 
 
 (/) Rex v. Duchess of Kingston, " not allow a less number than two 
 11 St. Tr. 246 ; Wilson v. Rastall, 4 " witnesses to be plena prubatio, they 
 T. R. 753 ; Cromack v. Heathcote, " call the testimony of one, though 
 2 Brod. & Bing. 4 ; Bramwell v. " never so clear and positive, semi- 
 Lucas, 2 B. & C. 745 ; Griffith v. " plena probatiu only, on which no 
 Davies, 5 B. & Ad. 502; Marston " sentence can be founded. To make 
 r. Downes, 1 A. & E. 31 ; Doe t. " up therefore the necessary comple- 
 Seaton, 2 A. & E. 171 ; Turquand " ment of witnesses, when they have 
 v. Knight,. 2 Mee. & W. 98 ; Doe v. " one only to a single fact, they ad- 
 Watkins, 3 Bing. N. C. 421 ; Weeks " mit the party himself (plaintiff or 
 v. Argent, 16 Mee. & W. 817. As " defendant) to be examined in his 
 to the case of a it ustee, see Davies v. " own behalf, and administer to him 
 Waters, 9 Mee. & W. 608. " whatiscalled the stipplctory oath, — 
 
 (m) Wilson v. Rastall, ubi sup. ; " and if his evidence happens to be 
 
 Rex o. Duchess of Kingston, ubi " in his own favour, this immediately 
 
 sup.; Valliant v. Dodemead, 2 Atk. " converts the half proof into a whole 
 
 524. " one." Our law has always taken 
 
 (n) Cod. 4, 20, 9. Blackstone re- and still takes a very different course, 
 
 marks here upon the qualification It allows one witness to suffice as 
 
 with which this rule is followed by stated in the text; and as to the evi- 
 
 our modern civilians. " As they do dence of the parties to the suit 
 
 R R. 2
 
 612 BOOK V. OF CIVIL INJURIES. 
 
 After the examination of the witness by the party for 
 whom he is called, which is termed his examination in chief, 
 he is subject to cross-examination by the opposite party, — 
 which being concluded, he may then be re-examined by 
 the party calling him, in reference to any matters suggested 
 by the cross-examination (o). The evidence he has given 
 thus passes through a close and severe scrutiny, while on 
 the other hand it receives all the support and protection 
 which the interests of justice require. 
 
 The object of the cross-examination, it should be ob- 
 served, may not only be to obtain new facts not before 
 elicited, but to impeach the character of the witness for 
 . veracity. -yHe may therefore be asked if he has not given 
 a contrary account of the same matter on a former occa- 
 sion, and if he denies this, proof may then be given, aliunde, 
 ^e^ /-'that he has done so. y. Evidence may also be offered to 
 ^£^«^2prove that he has been convicted of perjury or the like, or 
 ^isyW'e.a-M? generally that he is of such a character as not to deserve 
 to be believed upon his oath. But no evidence can be 
 given against him of particular acts of misconduct, for this 
 would be to engraft another trial upon that which is already 
 before the jury, and not only perplex the administration of 
 justice, but put the witness himself to the unfair disad- 
 vantage of being assailed on charges of which he had no 
 previous notice (p). y^- 
 
 The nature of the evidence itself, whether obtained from 
 witnesses, or from written instruments, is the next point 
 that naturally presents itself for consideration, and the main 
 principles of the law connected with this subject shall here 
 be briefly stated. 
 
 First, then, we may remark, that no evidence is neces- 
 sary, as to matters of which the court will take judicial 
 
 used formerly to reject it altogether, 7 A. & E. 627. 
 
 though by 14 & 15 Vict. c. 99, they (p) 1 Stark. Ev. 145 ; Queen's 
 
 are now competent and compellable case, 2 Brod. & Bing. 299 ; Spencely 
 
 to be examined. v . De Willot, 7 East, 108; Carpen- 
 
 (o) As to cross-examination and ter v. Wall, 11 A. & E. 803. 
 re-examination, vide Prince v. Samo,
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 613 
 
 notice, — as of the existence of a war in which the country 
 is engaged, and which has been recognised in acts of par- 
 liament (q) ; or of matters which the law presumes, — as 
 that a man is innocent till the contrary be shown, — that all 
 official acts have been done in due form, — or that a man 
 proved to have been living, within a certain period, not 
 exceeding the known limits of longevity, is still in exist- 
 ence (r). Nor is evidence in general necessary with re- 
 spect to matters which the opposite party has admitted to 
 be true (s) : and it is of course always dispensed with, as 
 to matters upon which an admission has been made for 
 the express purpose of being used at the trial. And in 
 reference to this subject we may remark, that by 15 & 16 
 Vict. c. 76, s. 117, either party may call on the other by ^J) t 
 notice to admit, for the purpose of the trial, any document, =■ 
 saving all just exceptions ; and in case of refusal or neglect /T— ■ 
 to do so, the costs of proving the document shall be paid by A.*6- 
 
 the party so called upon, whatever may be the result of the 
 
 cause, unless at the trial the judge shall certify that the re- 
 fusal to admit was reasonable; and on the other hand, no 
 costs of proving any document will, in general, be allowed 
 to a party who neglects to give such notice (t). Again, it 
 is a fundamental rule, that no evidence is admissible except 
 upon the point in issue (u). [Therefore, in an action of 
 
 (q) R. r. Beranger, 3 M. & S. As to the effect of admissions implied 
 
 67. See Russell v. Dickson, 6 Bing. upon the pleadings, by omitting to 
 
 442 ; Brune v. Thompson, 2 G. & D. traverse a fact alleged or otherwise, 
 
 110. As to the admission without see Digby v. Thompson, 4 B. & Ad. 
 
 proof of certain official documents 821 ; Straceyu. Blake, 1 Mee. & W. 
 
 purporting to be genuine, and of the 168 ; Bennison v. Davison, 3 Mee. & 
 
 signature of the judges of the supe- W. 179 ; Smith v. Martin, 9 Mee. & 
 
 rior courts of law and equity, vide 8 W. 304; Spencer v. Barough, ibid. 
 
 & 9 Vict.c. 113 ; 14 & 15 Vict. c. 99, 425 ; Bingham v. Stanley, 2 Q. B. 
 
 ss. 7 — 14 ; c. 100, s. 22. 117 ; Gould v. Oliver, 2 Man. & G. 
 
 (r) Doe v. Nepean, 5 B. & Ad. 208. 
 
 86; S. C. (in error) 2 Mee. & W. (t) See also Reg. Gen. Hil. T. 
 
 894. 1853, r. 29, 30. 
 
 (s) Rex r. Gardner, 2 Camp. («) 3 Bl. Com. 367; B. N. P. 
 
 513 ; Rex v. Topham, 4 T. R. 126 ; 298 ; Hey v. Moorhouse, 6 Bing. N. 
 
 Brickettr. Hulse, 7 Ad. & E. 454. C. 52.
 
 
 614 BOOK V. OF CIVIL INJURIES. 
 
 [debt, where the defendant denies his bond, by the plea that 
 it is not his deed, and the issue is whether it be the defend- 
 ant's deed or no, he cannot give a release of this bond in 
 evidence ; for that does not destroy the bond,] but shows 
 only that it is discharged ; and therefore does not support 
 his side of the issue, which is the allegation that the bond 
 eJ) . alleged against him is not his deed. Instead of such a 
 plea, he should have pleaded the release. 
 
 Another rule of the same general nature is, that none 
 but the best evidence shall be adduced (y) ; by which we 
 are to understand, that that which is of a secondary shall 
 not be substituted for that which is of a primary kind, 
 where the primary evidence is accessible ; a rule founded 
 on the presumption that such a substitution is probably 
 prompted by some sinister motive. Thus it is inflexibly held 
 that the contents of no private deed or writing (as dis- 
 tinguished from a record or other public document (z), can 
 be proved by a copy (still less by mere oral evidence), if 
 the writing be in existence, and can be procured by the 
 party by whom the proof is offered — but the writing itself 
 must be produced (a) ; and if there shall be occasion to 
 prove its execution by a witness, (a proof that the law in 
 general requires, unless it be thirty years old, and come out 
 of the possession of some person naturally entitled to the 
 custody (b),) this can only be done by calling the particular 
 person (if any) whose name is thereon written as attesting 
 the execution (c) ; or by calling one of them at least, if 
 there be several ; or by proving that such attesting wit- 
 nesses are all dead or otherwise incapable of giving their 
 
 (y) 3 Bl. Com. 368; 1 Stark. Ev. 203 ; Doe d. Neale v Samples, 8 A. 
 
 389, edit. 1824. & E. 151. 
 
 (s) See 14 & 15 Vict. c. 99, s. 7. (/•) Gillett v. Abbott, 7 A. & E. 
 
 As to tbe subpoena to produce an 783 ; Poole v. Warren, 8 A. & E. 
 
 original record, see Reg. Gen. Hil. 582 ; Collins v. Bayntum, 1 Q. B. 
 
 T. 1853, r. 32. 117 ; Rearden v. Minter, 5 Man. & 
 
 (a) M'Gabey v. Alston, 2 Mee. & G. 204. Tbe declaration of a sub- 
 W. 206; Jones v. Tarleton, 9 Mee. scribing witness that he had forged 
 & W. 675; Howard v. Smith, 3 the deed, is not admissible. Stobart 
 Man. & Gr. 254. „. Dryden, 1 M. & W. 615. 
 
 (b) B. N. P. 255 ; 2 Phil, on Ev.
 
 .ai-c 
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 615 
 
 testimony (d), and then adducing secondary evidence of the 
 execution, as by proof of the handwriting to one or more 
 of their signatures (e). And so strict is this rule in its 
 nature, that even the admission of the party against whom 
 the instrument is produced, that it was executed by him, 
 (unless such admission be made for the express purpose of 
 the trial,) will not suffice to excuse the absence of the 
 attesting witness (/). 
 
 On the other hand, however, it is held that there are no 
 degrees in secondary evidence ; but that where the circum- 
 stances are such as to excuse a party from giving the pro- 
 per or primary proof, he is at liberty to resort to any 
 species of secondary evidence within his power (g). Thus^ 
 where the defendant is let into secondary evidence of the n 
 
 contents of a letter, by showing that the letter itself is in 
 the possession of the plaintiff who has had notice to pro- 
 duce it in court (A), but fails to do so, the defendant is then 
 at liberty to give oral evidence of its contents, and is not 
 bound to produce a copy, though in fact he should have 
 kept one(i). 
 
 Another principal rule is, that hearsay evidence, that is, 
 evidence of what has been said or declared out of court, 
 by a person not party to the suit, is not admissible. Foi' 
 our law deems it unsafe to rely upon the assertions of any 7 ^ 
 person, unless he be called as a witness in the cause, and 
 deliver his testimony under the sanction of an oath, and 
 
 (-/) Adams v. Kerr, 1 B. & P. & W. 496; Lloyd v. Mostyn, 10 
 
 360 ; Crosby v. Percy, 1 Taunt. 361; Mee. & W. 478. 
 
 Ward v. Wells, ibid. 461; Swire v. (/) Abbott v. Plumbe, 1 Doug. 
 
 Bell, 5 T. R. 371. 216 ; R. v. Harringwortb, 4 M. & 
 
 (e) Nelson v. Whittall, 1 B. & S. 354. 
 
 Aid. 19 ; Doe v. Wainwright, 5 A. (g) Doe v. Ross, 7 Mee. & "W. 
 
 & E. 520 ; Brown v. Thornton, 6 A. 102. 
 
 & E. 185 ; II. v. Koops, ibid. 198 ; (h) As to a nolice to produce and 
 
 Doe v. Heakin, ibid. 495 ; Doe v. the manner of proving it, see 15 & 
 
 Mew, 7 A. & E. 240; Doe d. Ed- 16 Vict. c. 76, s. 119. 
 
 ward v. Gunning, ibid. 243 ; M'Ga- (i) Brown v. Woodman, 6 Car. & 
 
 hey v. Alston, 2 Mee. & W. 206 ; P. 206, per Parke. 
 Falmouth (Earl) v. Roberts, 9 Mee. 

 
 616 BOOK V. — OF CIVIL INJURIES. 
 
 the check which the power of cross-examination imposes (j). 
 And this rule is so absolute, that the death of the person 
 by whom the statement was made, and the consequent im- 
 possibility of producing him as a witness, makes no dif- 
 ference. Upon the same principle no written entry or me- 
 morandum, made by a person not party to the suit, can in 
 general be admitted as evidence even after his death between 
 the plaintiff and defendant, for this falls under the same 
 consideration, and is in effect not distinguishable from 
 hearsay evidence. 
 
 The rejection of hearsay is subject, however, to excep- 
 tion in particular cases. For, first, the declaration of a 
 third person is in certain instances admitted as forming 
 part of the res gestce, or as deriving particular credibility 
 from the circumstances under which it was made. Thus, 
 if a question arises, whether a third person committed an 
 act of bankruptcy, by absenting himself from his house, 
 his own declaration made at the time that he did so to 
 avoid a creditor, is good evidence (k). So the books of 
 stewards, or other receivers, though strangers to the suit, 
 are admitted in evidence after their death, so far as the en- 
 tries therein tend to charge them with the receipt of money ; 
 because such acknowledgments having been made against 
 their own interest, are entitled on that ground to peculiar 
 weight (I). Again, declarations or statements in the na- 
 ture of hearsay are admitted, where evidence of that de- 
 scription happens to constitute the natural and appropriate 
 means of proof; as upon questions of pedigree, custom, 
 boundary, and the like(m). To which we may add, as 
 another exception from the general rule, that a statement 
 
 (j) Wright v. Doe, 7 A. & E. Smith's Leading Cases, 193; Furs- 
 
 384 ; Stobart v. Dryden, 1 Mee. & don v. Clogg, 10 Mee. & W. 574. 
 
 "• 615. ( ?7 j) Davies t>. Lowndes, 5 Bing. 
 
 (h) 1 Stark. Ev. 48. N. C. 161 j Thomas v. Jenkins, 6 A. 
 
 (/) Higham v. Ridgeway, 10 East, & E. 525 : Wright v. Doe, ubi sup.; 
 
 109 ; Doe v. Coulthred, 7 A. & E. Barraclough v. Johnson, 8 A. & E. 
 
 235 ; Wright v. Doe, ibid. 385. As 99; Brisco v. Lomax, ibid. 198; 
 
 to entries against interest, see 2 Doe v. Hawkins, 2 Q. B. 212.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 
 
 617 
 
 made by a third person will be receivable as evidence 
 against the plaintiff or defendant in the cause, if the plaintiff 
 or defendant be proved to have been present when the 
 statement was made, and to have heard its import; for it 
 then becomes material to consider whether by his language 
 or demeanour on the occasion, it appeared to receive his 
 assent (n). 
 
 These rules relate to the admissibility of evidence in dif- 
 ferent cases. As to its effect, we may remark in general, 
 that it may be either positive or circumstantial (o) ; by the 
 former of which, we commonly understand a proof of the 
 very fact in question ; by the latter a proof of circum- 
 stances from which, according to the ordinary course of 
 human affairs, the existence of that fact may reasonably be 
 presumed (p). And the strength of circumstantial or pre- 
 sumptive evidence varies according to the nature and par- 
 ticular combination of the facts proved. It may either be 
 barely sufficient to decide the question, supposing no evi- 
 
 (/«) 1 Stark. Ev. 50. 
 
 (<>) 3 Bl. Com. 371. Blackstone 
 defines circumstantial evidence as 
 the proof of such circumstances as 
 " either necessarily or usually attend 
 the fact itself," ibid. 
 
 (p) It is to be observed, that the 
 presumptions here referred to are of 
 a different kind from the presump- 
 tions of law before mentioned (vide 
 sup. p. 605, n. (m), which are in truth 
 mere legal maxims in the abstract, 
 on which, as on other points of law, 
 the jury are to follow implicitly the 
 direction of the judge. But the pre- 
 sumptions in the text arise from spe- 
 cial circumstances ; and are infer- 
 ences which in general the jury are 
 as liberty to adopt or reject ; though 
 even here their discretion is in some 
 instances controlled by precedent, or 
 the manifest reason of the case. Thus 
 we have legal decisions upon the suf- 
 
 ficiency of the presumption of death, 
 under particular circumstances (vide 
 the cases cited sup. 605, n. (wi) ) ; 
 of loss of ship, Green v. Brown, 2 
 Str. 1199; of seisin in fee, Jayne 
 v. Price, 5 Taunt. 326 ; Doe v. Wil- 
 liams, 2 Mee. & W. 749 ; of death 
 without issue, Doe v. Woolley, 8 B. 
 & C. 22 ; Earl of Roscommon's case, 
 6 Clark & Fin. 97; of a reconvey- 
 ance, Fenney v. Jones, 3 M. & Scott, 
 472 ; Doe v. Williams, 1 Mee. & W. 
 749 ; of unity of possession, Clayton v. 
 Corby, 2 Gal. & D. 174 ; of authority 
 as agent, Owen v. Barrow, 1 N. R. 
 101 ; Ward v. Evans, Salk. 442 ; of 
 payment, Welch v. Seaborn, I Stark. 
 Rep. 474 ; Oswald v. Legh, 1 T. R. 
 270 ; R. v. Stephens, 1 Burr. 434 ; 
 of payment by cheque, Egg v. Bar- 
 nett, 3 Esp. 196; of due stamping, 
 Doe v. Coombs, 3 Q. B. 687.
 
 618 BOOK V. — OF CIVIL INJURIES. 
 
 dence to be offered to the contrary ; or it may be strong 
 enough to prevail against evidence offered on the other 
 side, or even so violent as not to admit of being repelled 
 by any adverse evidence whatever, except under very par- 
 ticular circumstances. 
 
 Such are the general principles of law relative to the 
 evidence ; all which, it is to be observed, [is to be given in 
 open court, in the presence of the parties, their attorneys, 
 the counsel, and all bystanders; and before the judge and 
 jury; each party having liberty to except to its compe- 
 tency; which exceptions are publicly stated, and by the 
 judge are openly and publicly allowed or disallowed in the 
 face of the country ; which must curb any secret bias or 
 partiality that might arise in his own breast. And if 
 either in his directions or decisions he mis-states the law 
 y, .by ignorance, inadvertence or design, the counsel on either 
 u £ a3 ^"gifJe may require him publicly to seal a bill of excep- 
 tions (g), stating the point wherein he is supposed to err ; 
 and this he is obliged to seal by the Statute of Westmin- 
 ster the second, 13 Edward I. c. 31 ; or if he refuses so to 
 do, the party may have a compulsory writ against him (r), 
 commanding him to seal it, if the fact alleged be truly 
 stated; and if he returns that the fact is untruly stated, 
 when the case is otherwise, an action will lie against him 
 for making a false return. This bill of exceptions is in the 
 nature of an appeal, examinable not in the court out of 
 which the record issues for the trial at nisi prins,~\ but in a 
 court of error, after judgment given in the court below (s); 
 
 (v) As to a bill of exceptions, see 2 Bligh, N. S. 9 ; Gibbs v. Pike, 1 
 Arcb. Pr. by Chitty (8tb ed.), p. 430; Dowl. N. S. 409; R. v. Rowley, 2 
 Money v. Leach, 3 Burr. 1692; Dowl. N. S. 335; Allen v. Hay ward, 
 Gardner v. Baillie, 1 Bos. & Pul. 32; 7 Q B. 960 ; Newton v. Bootle, 16 
 Bell v. Potts, 5 East, 49 ; Dillon ». L. J. (C. B.) 135 ; M'Alpine v. Mag- 
 Doe, 1 Bing. 17 ; Culley v. Doe, 11 nail, 3 C. B. 496. 
 A. & E. 1008; Davies v. Lowndes, (r) Reg. Br. 182; 2 Inst. 487. 
 1 Man. & Gr. 473 ; Galway v. Baker, (s) Davenport v. Tyrrell, 1 W. 
 5 Clark & Fin. 157 ; Doe v. Fisher, Bl. 679.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 619 
 
 [but a demurrer to the evidence (t) shall be determined by the -/> «*** ** 
 
 court out of which the record is sent. This happens where J^r^^> £ 
 
 a record or other matter is produced in evidence, concerning 
 
 the legal consequences of which there arises a doubt in law : 
 
 in which case the adverse party may, if he pleases, demur to 
 
 the whole evidence ; which admits the truth of every fact 
 
 which has been alleged, but denies the sufficiency of them 
 
 all in point of law, to maintain or overthrow the issue (u) ; 
 
 which draws the question of law for the cognizance of the 
 
 jury to be decided (as it ought) by the court] above, or in 
 
 banc. [But neither these demurrers to evidence, nor bills 
 
 of exceptions,] particularly the former, [are at present so 
 
 much in use as formerly, since the more frequent extension 
 
 of the discretionary powers of the court in granting a new <-^j^ 
 
 trial, which is now very commonly had for the misdirection 
 
 of the judge at nisi prins. 
 
 This open examination of witnesses viva voce, in the 
 presence of all mankind, is much more conducive to the 
 clearing up of truth (?;) than the private and secret exami- 
 nation taken down in writing before an officer or his clerk 
 in the ecclesiastical courts, and all others that have bor- 
 rowed their practice from the civil law; where a witness 
 may frequently depose that in private which he will be 
 ashamed to testify in a public and solemn tribunal. There 
 an artful or careless scribe may make a witness speak 
 what he never meant, by dressing up his depositions in 
 his own form and language ; but he is here at liberty to 
 correct and explain his meaning if misunderstood, which 
 he can never do after a written deposition is once taken. 
 Besides, the occasional questions of the judge, the jury, 
 and the counsel, propounded to the witnesses on a sudden, 
 will sift out the truth much better than a formal set of 
 
 (t) As to demurrer to evidence, 218 ; Gibson v. Hunter, 2 H. Bl. 
 
 see Arch. Pr. by Chitty, 429 (8th 187 ; Miller v. Warre, 4 B. & C. 
 
 ed.); Fanshawu. Cocksedge, 1 Doug. 538. 
 
 119; S. C. in error, 3 Bro. P. C. (u) Co. Lift. 72 ; 5 Rep. 104. 
 
 690; Cort v. Birkbeck, 1 Dougl. (v) Hale, Hist. C. L. 254 -256.
 
 620 BOOK V. — OF CIVIL INJURIES. 
 
 [interrogatories previously penned and settled ; and the con- 
 fronting of adverse witnesses is also another opportunity of 
 obtaining a clear discovery, which can never be had upon 
 any other method of trial. Nor is the presence of the 
 judge, during the examination, a matter of small import- 
 ance ; for, besides the respect and awe with which his pre- 
 sence will naturally inspire the witness, he is able by use 
 and experience to keep the evidence from wandering from 
 the point in issue. In short, by this method of examina- 
 tion, and this only, the persons who are to decide upon the 
 evidence have an opportunity of observing the quality, age, 
 education, understanding, behaviour, and inclinations of the 
 witness ; in which points all persons must appear alike 
 when their depositions are reduced to writing and read to 
 the judge in the absence of those who made them; and 
 yet as much may be frequently collected from the manner 
 in which the evidence is delivered, as from the matter of it. 
 These are a few of the advantages attending this English 
 way of giving testimony ore tenus : which was also indeed 
 familiar among the antient Romans, as may be collected 
 from Quintilian (x), who lays down very good instructions 
 for examining and cross-examining witnesses viva voce. 
 And this, or somewhat like it, was continued as low as the 
 time of Hadrian(^), but the civil law, as it is now modelled, 
 rejects all public examination of witnesses (~).] 
 
 [When the evidence is gone through on both sides, the 
 judge, in the presence of the parties, the counsel, and all 
 others, sums up the whole to the jury,] recapitulating in 
 
 (a) Instit. Orat. 1. 5, c. 7. (z) In full conformity with these 
 
 (v) See his epistle to Varus, the views of Blackstone, the legislature 
 
 legate or judge of Cilicia: " Tu has now abolished the use of the 
 
 magis scire poles, quanta Jides sit ha- civil law method of private exami- 
 
 benda testihus ; qui, et rujus diguita- nation upon written interrogatories, 
 
 tis, el cujus -istimatiouis sint ; et, qui hitherto followed in the Court of 
 
 simpliciter visi sint dicere ; utrum Chancery, and substituted for it the 
 
 xinum eundemque rneditatum sermonem common law method of oral exami- 
 
 attulerint, an ad ea quce interrogaveras nation. 15 & 16 Vict. c. 86, ss. 28 — 
 
 extempore verisimitia responderint." — 32. For farther explanation on this 
 
 Ff. 22, 5, 3. subject, vide post, vol. iv. c. xiv.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 621 
 
 greater or less detail, as he may deem necessary, the state- 
 ments of the witnesses, and the contents of the documents 
 adduced on either side, commenting upon the manner in 
 which they severally bear upon the issue, and giving his 
 opinion upon any matter of law that may arise upon them, 
 but leaving the jury to determine for themselves the credit 
 and weight to which they are respectively entitled, and to 
 decide whether, upon the whole, the preponderance of proof 
 is in favour of the plaintiff or defendant (a). 
 
 [The jury, after the proofs are summed up,] if they ex- 
 press a wish so to do, withdraw from the court [to consider 
 of their verdict; and, in order to avoid intemperance and 
 causeless delay, are to be kept without meat, drink, fire, or 
 candle, unless by permission of the judge (Z>), till they are 
 all unanimously agreed (c).] Accordingly [if they eat or 
 
 (a) Before the case is left to the 
 jury, and in the progress of the trial, 
 it often happens that an objection is 
 taken either by the plaintiff or de- 
 fendant, on the ground of some par- 
 ticular discrepancy between the alle- 
 gations which the adverse party lias 
 made in his pleadings, and the evi- 
 dence offered in support of his alle- 
 gations. Such discrepancy upon a 
 particular point, as distinguished 
 from a total failure of proof upon 
 the substance of the case, is called a 
 variance; and objections founded on 
 variances were formerly allowed to a 
 very inconvenient extent ; but by 9 
 Geo. 4, c. 15, 3 & 4 Will. 4, c. 42, 
 ss. 23, 24, and 15 & 1G Vict. c. 76, 
 ss. 36, 37, 222, the court or a judge 
 is now empowered to allow an 
 amendment of all defects and errors 
 (including even the case of a mis- 
 joinder of plaintiffs or defendants, or 
 the nonjoinder of a person who ought 
 tohave beenjoined as plaintiff)when- 
 ever such amendment shall be neces- 
 sary for the purpose of determining, 
 
 in the existing suit, the real question 
 in controversy between the parties. 
 
 (/;) "A method of accelerating 
 " unanimity," says Blackstone,"not 
 " wholly unknown in other constitu- 
 " tions of Europe, and in matters of 
 " greater concern. For by the Golden 
 " Bull of the empire, if, after the 
 " congress is opened, the electors de- 
 " lay the election of a king of the 
 " Romans for thirty days, they shall 
 " be fed only with bread and water 
 " till the same is accomplished." 3 
 Bl. Com. 375. 
 
 (c) " This necessity of a total una- 
 " nimity seems to be peculiar to our 
 " own constitution (see Barring, on 
 " the Stats. 19, 20, 21) ; or at least 
 " in the nembda, or jury of theantient 
 " Goths, there was required, even in 
 " criminal cases, only the consent of 
 " the major part ; and in case of an 
 " equality, the defendant was held to 
 " be acquitted. Stiern. 1. i. c. 4." — 
 3 Bl. Com. 376. W r ith us, the prin- 
 ciple as to unanimity results, as a 
 consequence, from the rule of requir-
 
 622 
 
 BOOK V. OF CIVIL INJURIES. 
 
 ' -t*^<*/&£- 
 
 ^6i_^> 
 
 [drink at all, or have any eatables about them, without con- 
 sent of the court, and before verdict, it is fineable ; and if 
 they do so at his charge for whom they afterwards find, it 
 will set aside the verdict (d). Also, if they speak with 
 either of the parties or their agents after they have gone 
 from the bar, or if they receive any fresh evidence in pri- 
 vate, or if, to prevent disputes, they cast lots for whom 
 _ ^_ they shall find, any of these circumstances will entirely 
 
 ^f£_jl vitiate the verdict (e). And] by the antient rule, (which, in 
 strictness, seems to be still in force), [if the jurors do not 
 agree in their verdict before the judges are about to leave 
 the town, though they are not to be threatened or impri- 
 soned (/), the judges are not bound to wait for them, but 
 may carry them round the circuit, from town to town, in a 
 . ,i c^r? cart(^).] In practice, however, if the jury are unable to 
 agree upon their verdict, one of them is often withdrawn by 
 
 Ce^-t**^ consent of the parties to the suit, so that no verdict can be 
 given (A) ; or the whole jury may (with the like consent) be 
 
 ing as many as twelve to concur, in 
 connexion with that of admitting 
 only twelve to sit upon the jury. The 
 former originated in the regard an- 
 tiently paid to this particular number 
 (vide sup. p. 597, n. (:); the latter 
 probably from its being deemed un- 
 necessary to swear in more than 
 twelve, when the verdict of twelve 
 would always suffice. It is to be ob- 
 served, however, that in grand juries 
 it is the practice to swear in a larger 
 number (usually twenty - three), 
 though less can make a valid pre- 
 sentment. The principle, whatever 
 may be its origin, is attended at 
 least with one practical advantage of 
 the utmost importance, that in the 
 event of a difference of opinion, it 
 secures a discussion, and enables any 
 one dissentient juror to compel the 
 other eleven fully and calmly to re- 
 consider the question. Some re- 
 
 marks will be found on this subject 
 in the Third Report of the Common 
 Law Commissioners appointed in 
 1 828, p. 70, where it is recommended, 
 that if after a deliberation of twelve 
 hours, nine out of the twelve concur, 
 their verdict should be received. 
 
 (</) Hughes v. Budd, 8 Dowl. P. 
 C. 315 ; but see Morris i>. Vivian, 10 
 Mee. & W. 137, where it was held 
 to be a matter for the discretion of 
 the court, whether they would grant 
 a new trial under such circum- 
 stances. 
 
 (e) But the affidavit of a juryman 
 as to the mode in which the jury 
 came to a verdict cannot be received. 
 Burgess v. Langley, 5 Man. & G. 
 722. 
 
 (/) Mirror, c. 4, s. 24. 
 
 (g) Lib. Ass. fol. 40, pi. 11. 
 
 (h) Stodhart v. Johnson, 3 T. R. 
 (> u ; Harries v. Thomas, 2 Mee. &
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 623 
 
 discharged from finding any verdict (i); or, again, they may 
 (even without such consent) be discharged by the judge, 
 after having retired for a considerable time (as for a night) 
 for deliberation (k). 
 
 [When they are all unanimously agreed, the jury return 
 back to the bar; and before they deliver their verdict, the 
 plaintiff is bound to appear in court, by himself, attorney, 
 or counsel, in order to answer the amercement, to which by 
 the old law he was liable in case he failed in his suit, as a 
 punishment for his false claim (/). To be amerced, or a 
 mercie, is to be at the crown's mercy with regard to the 
 fine to be imposed; in miser icordia domini regis pro falso 
 clamore suo. The amercement is disused, but the form still 
 continues ; and if the plaintiff does not appear, no verdict 
 can be given, but the plaintiff is said to be nonsuit ; non se- 
 quitur clamorem suum. Therefore, it is usual for a plaintiff, 
 when he or his counsel perceives that he has not given s? 
 evidence sufficient to maintain the issue, to be voluntarily ' 
 nonsuited (m) or withdraw himself, whereupon the crier is 
 ordered to call the plaintiff ; and if neither he nor any body 
 for him appears, he is nonsuited, the jurors are discharged, 
 the action is at an end, and the defendant shall recover his 
 costs. The reason of this practice is, that a nonsuit is more 
 eligible for the plaintiff than a verdict against him ; for 
 after a nonsuit, which is only a default, he may commence 
 
 W. 38. If a juror be withdrawn by fore, be nonsuited against his will ; 
 
 consent, and the action be afterwards for, instead of withdrawing, it is in 
 
 proceeded with, or a fresh action his option to appear (by himself or 
 
 brought, the defendant may apply to his attorney) when the jury are ready 
 
 stay proceedings. Gibbs v. Ralph, to deliver their verdict. But if he 
 
 15 L. J. (Ex.) 7. has failed in the opinion of the jury 
 
 (i) Everett v. Youells, SB. & Ad. (under the direction of the judge) to 
 
 349. maintain his side of the issue, and 
 
 (A) Seally v. Powis, 3 Dowl. 372 ; he elects to appear, there will then, 
 
 R. r. Johnson, 5 Ad. & El. 513. in lieu of the nonsuit, be a verdict 
 
 (/) Finch, L. 189, 252. against him; which, for the reason 
 
 (/«) A nonsuit is appropriate only stated in the text, is generally less 
 
 to the case of the plaintiff's with- eligible. See Dewar v. Purday, 3 
 
 drawing himself. He cannot, there- Ad. & El. 166.
 
 G24 
 
 BOOK V. OF CIVIL INJURIES. 
 
 [the same suit again for the same cause of action ; but after 
 a verdict had and judgment consequent thereupon, he is 
 for ever barred,] unless he has some ground for obtaining 
 a new trial, [from attacking the defendant upon the same 
 ground of complaint. But in case the plaintiff appears, the 
 jury, by their foreman, deliver in their verdict.] 
 
 By the verdict (vere dictum) [they openly declare (?i) 
 themselves to have found the issue, for the plaintiff, or for 
 the defendant ; and if for the plaintiff, they also assess the 
 damages sustained by the plaintiff, in consequence of the 
 injury upon which the action is brought (o).] 
 
 Sometimes, if there arises in the case any difficult matter 
 / /. w^£ of law, the course is adopted of finding a special verdict — 
 a course [grounded on the Statute of Westminster, 13 
 Edw. I. c. 30, s. 2,] and the adoption of which is entirely 
 at the choice of the jury (p). In a verdict of this descrip- 
 tion [they state the naked facts, as they find them to be 
 proved, concluding conditionally,] that if upon the whole 
 matter the court shall be of opinion that the issue ought to 
 
 («) The verdict is said in our books 
 to be either privy or public — and it is 
 stated by Blackstone, that "a privy 
 " verdict is when the judge hath left 
 " or adjourned the court, and the jury 
 " being agreed, in order to be deli- 
 " vered from their confinement, ob- 
 " tain leave to give their verdict 
 " privily to the judge out of court ;" 
 though he adds, that "if the judge 
 " hath adjourned the court to his own 
 " lodgings, and there receives the 
 " verdict, it is a public and not a privy 
 "verdict." He also states, that a 
 privy verdict is of no force, unless 
 afterwards affirmed openly in court, 
 and that the jury may then vary from 
 it, if they please ; and that it is " a 
 " dangerous practice, allowing time 
 " for the parties to tamper with the 
 " jury, and therefore very seldom in- 
 " dulged in."— 3 Bl. Com. 377. At 
 
 the present day it is wholly dis- 
 used. 
 
 (o) By 3 & 4 Will. 4, c. 42, s. 28, 
 the jury may upon the trial of any 
 issue or inquisition of damages, allow 
 interest at the current rate upon debts 
 from the time when they were pay- 
 able, if payable by virtue of a written 
 instrument and at a time certain ; or 
 if payable otherwise, then from the 
 time when demand of payment shall 
 have been made in writing, with no- 
 tice that interest will be claimed. 
 And by sect. 29 may give damages 
 in the nature of interest, in actions of 
 trover and trespass de bonis asportatis, 
 over and above the value of the goods, 
 and also in actions on policies of as- 
 surance, over and above the money 
 insured. 
 
 (p) Mayor of Devizes v. Clark, 3 
 A. & E. 506.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 625 
 
 be found for the plaintiff, they then find for the plaintiff, 
 and assess the damages accordingly; if otherwise, then for 
 the defendant (q). [This is entered at length on the record, 
 and afterwards argued and determined in the court at West- 
 minster, from whence the issue came to be tried.] But 
 either party, if dissatisfied with the decision, is at liberty 
 to appeal to the proper court of error in the Exchequer 
 chamber (r). 
 
 [Another method of finding a species of special verdict, 
 is when the jury find a verdict generally for the plaintiff, 
 but subject nevertheless,] as the law of the case is doubt- 
 ful, [to the opinion of the court above, on a special case, 
 stated by the counsel on both sides,] and containing a 
 statement of facts mutually agreed upon, [which has this 
 advantage over a special verdict, that it is attended with 
 much less expense, and obtains a much speedier decision,] 
 no proceeding in error being, in this case, allowable to the 
 unsuccessful party, because nothing is entered on the re- 
 cord but the general verdict, and it does not appear on 
 what evidence that verdict was found. But the resort to a 
 special case at the trial must be by consent of the jury, as 
 well as of the parties, (though in practice the jury never 
 interfere on the subject,) the rule of law being, that the jury 
 are always at liberty, without either special verdict or spe- 
 cial case, to find their verdict absolutely, if they think fit, 
 either for plaintiff or defendant (s). 
 
 [When the jury have delivered in their verdict, and it is 
 recorded in court, they are then discharged. And so ends 
 the trial by jury — a trial which, besides the other vast ad- 
 vantages which we have occasionally observed in its pro- 
 gress, is also as expeditious and cheap as it is convenient, 
 equitable and certain :] and indeed the trial by jury [ever 
 
 (q) As to the distinction between (r) As to this court, vide sup. p. 
 
 a general and a special verdict, in 411. 
 
 reference to the plaintiff's power of (s) 3 Bl. Com. 378, cites Litt. s. 
 
 discontinuing proceedings, see Youn 368. 
 v. Hutchins, 6 Q. B. 606. 
 
 VOL. III. .*. 8 S
 
 626 BOOK V. OF CIVIL INJURIES. 
 
 [has been looked upon as the glory of the English law.] 
 In estimating its advantages it is to be considered, that [if* 
 the administration of justice is entirely entrusted to the 
 magistracy, a select body of men, and those generally 
 selected by the prince, or such as enjoy the highest offices 
 in the state, their decisions, in spite of their own natural 
 integrity, will frequently have an involuntary bias towards 
 those of their own rank and dignity — for it is not to be ex- 
 pected from human nature, that the few should be always 
 attentive to the interests and good of the many. On the 
 other hand, if the power of judicature were placed at ran- 
 dom in the hands of the multitude, their decisions would 
 be wild and capricious, and a new rule of action would be 
 every day established in our courts. It is wisely therefore 
 ordered, that the principles and axioms of law, which are 
 general propositions flowing from abstracted reason, and 
 not accommodated to times or to men, should be deposited 
 in the breasts of the judges, to be occasionally applied to 
 such facts as come properly ascertained before them. For 
 here partiality can have little scope ; the law is well known, 
 and is the same for all ranks and degrees : it follows as a 
 regular conclusion from the premises of fact pre-established. 
 But in settling and adjusting a question of fact, when en- 
 trusted to any single magistrate, partiality and injustice 
 have an ample field to range in, either by boldly asserting 
 that to be proved which is not so, or by more artfully sup- 
 pressing some circumstances, stretching and warping others, 
 and distinguishing away the remainder. Here, therefore, a 
 competent number of sensible and upright jurymen, chosen 
 by lot from among those of the middle rank, will be found 
 the best investigators of truth, and the surest guardians of 
 public justice (t).] 
 
 (l) The recent institution of the as any indication that the views of 
 
 new County Courts, (vide sup. p. Blackstone on the subject to which 
 
 379,) in which the decision of mat- the above extract refers, are disre- 
 
 ters of fact as well as law is intrusted garded at the present day. For 
 
 to the judge, must not be considered though in favour of the great objects
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 627 
 
 The peculiar importance too of this mode of trial deserves 
 remark, as applied to criminal cases, and most of all to 
 those in which the crown is directly concerned. It may be 
 truly affirmed, that [the most transcendent privilege which 
 any subject can enjoy or wish for is, that he cannot be af- 
 fected either in his property, his liberty or his person, but 
 by the unanimous consent of twelve of his neighbours and 
 equals;] and there can be no doubt that this constitution 
 [has secured the just liberties of this nation for a long 
 succession of ages. And therefore a celebrated French 
 writer (m) who concludes that because Rome, Sparta and 
 Carthage have lost their liberties, therefore those of Eng- 
 land in time must perish, should have recollected that Rome 
 Sparta, and Carthage, at the time when their liberties were 
 lost, were strangers to the trial by jury.] 
 
 IV. The issues of law or fact having been decided in the 
 several methods above described, and it thus being ascer- 
 tained whether the plaintiff is entitled to maintain his ac- 
 tion for the civil injury which is the subject of complaint, 
 or the defendant to be discharged from the action, the next 
 step is the judgment, that is, the formal award of redress in 
 the one case, or discharge in the other. And as regards 
 the issue in law, we have already been led in part to advert 
 to this proceeding (u), the judgment in that case being in 
 effect given at the time that the court deliver their opinion 
 or decision upon the legal question, though it is not for- 
 mally drawn up and entered on record till afterwards. 
 
 If the issue be an issue in fact, triable by jury, what- 
 ever is done subsequent to the joining of issue and award- 
 ing the trial, is entered on the back of the nisi prius record, 
 and is called the posted ; the substance of which is, that 
 
 of cheapness and dispatch, the par- 501., it is only by consent of both 
 
 ties are enabled in these courts to parties that the County Court can 
 
 dispense with trial by jury, yet either exercise any jurisdiction whatever, 
 of them is entitled to insist on that (u) Montesq. Sp. L. xi. 6. 
 
 mode of decision, where the claim (y) Vide sup. p. 582. 
 
 exceeds 5/. ; and where it exceeds 
 
 s s. 2
 
 628 BOOK V. OF CIVIL INJURIES. 
 
 [postea (afterwards) the said plaintiff and defendant ap- 
 peared] in person or [by their attorneys at the place of 
 trial, and a jury being sworn, found such a verdict ; or that 
 the plaintiff, after a jury sworn, made default, and did not 
 prosecute his suit, or as the case may happen (x).] 
 
 The unsuccessful party may then at any time within such 
 interval of time as the practice allows for the purpose (y), 
 move the court in banc for a new trial (z), or for arrest of 
 judgment, or for judgment non obstante veredicto, or for a 
 repleader (a). 
 
 And, 1. As to the motion for a new trial. The ground 
 of this may be an irregularity in the proceedings connected 
 with the trial, such as want of notice of trial ; or any other 
 
 j^> -yi^c*£J matter dehors (that is, extrinsic to) the record, tending to 
 show that though the trial may have been in due form, yet 
 it has not done justice between the parties, such as [any 
 
 .,^1 y^flagrant misbehaviour of the party prevailing towards the 
 
 ^^Jury, which may have influenced their verdict ; or any gross 
 
 misbehaviour of the jury among themselves ; or that it ap- 
 pears by the judge's report certified to the court, that the 
 jury have brought in a verdict without, or contrary to, 
 evidence, so that he is reasonably dissatisfied therewith ; 
 or that they have given exorbitant] or too little [da- 
 mages ; or that the judge himself has misdirected the jury, so 
 that they found an unjustifiable verdict.] For any of these 
 reasons, or for any of a similar kind, it is competent to the 
 unsuccessful party, whether plaintiff or defendant, to move 
 that the verdict that has been given be set aside, and a new 
 
 (a) As to the form of the postea, of the court; et vide as to these 
 
 vide Reg. Gen. Hll. T. 1853, in motions, r. 51 — 54. 
 
 sched. No. 3, 4. (z) As to the term " in banc,'' vide 
 
 (y) By Reg. Gen. Hil. T. 1853, r. sup. p. 415. 
 
 50, no such motion, where the cause (a) The defendants may also move 
 
 is tried in term, shall be allowed after to enter a nonsuit, or the plaintiff to 
 
 four days from the trial, nor in any set aside a nonsuit and enter a verdict 
 
 case after the expiration of the term ; for plaintiff. But such motions can 
 
 nor, when the cause is tried out of only be made by leave of the judge 
 
 term, after the first four days of the who tried the cause, granted during 
 
 ensuing term ; unless entered in a the course of the trial, 
 ist of postponed motions by leave
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 629 
 
 trial had : the effect of which motion, if granted, is, that a 
 trial of the same issue (by a new jury duly summoned and 
 impanelled as in other cases) is instituted de novo. 
 
 [The exertion of these superintendent powers of the 
 courts in setting aside the verdict of a jury, and granting 
 a new trial on account of misbehaviour of the jurors, is of 
 a date extremely antient. There are instances in the Year 
 Books of the reigns of Edward the third (b), Henry the 
 fourth (c), and Henry the seventh (d), of judgments being- 
 stayed even after a trial at bar, and new trial awarded, 
 because the jury had eaten and drunk without consent of 
 the judge, and because the plaintiff had privately given a 
 paper to a juryman before he was sworn. And upon these 
 the chief justice Glynn, in 1655, grounded the first prece- 
 dent that is reported in our books (e) for granting a new 
 trial upon account of excessive damages given by the jury, 
 apprehending with reason that notorious partiality in the 
 jurors was a principal species of misbehaviour.] About 
 that time, however, [it was clearly held for law (f) that 
 whatever matter was of force to avoid a verdict ought to be 
 returned upon the postea, and not merely surmised by the 
 court, lest posterity should wonder why a new trial was 
 awarded without any sufficient reason appearing upon the 
 record. But very early in the reign of Charles the second 
 new trials were granted upon affidavits (g) ; and the former 
 strictness of the courts of law in respect of new trials 
 having driven many parties into courts of equity to be 
 relieved from oppressive verdicts, they are now more liberal 
 in granting them, the maxim at present adopted being 
 this, that in all cases of moment, where justice is not done 
 upon one trial, the injured party is entitled to another (A).] 
 
 (b) 24 Edw. 3, 24 ; Bro. Ab. tit. (/) Gravest). Short, Cro. Eliz. 616; 
 Verdite, 17. Palm. 325 ; 1 Brownl. 207. 
 
 (c) 11 Hen. 4, 18; Bro. Ab. tit. (g) R. v. Lord Fitz- Water, 1 Sid. 
 Enquest, 75. 235 ; Goodman v. Cotherington, 2 
 
 (d) 14 Hen. 7, 1 ; Bro. Ab. tit. Lev. 140. 
 
 Verdite, 18. (/i) Bright v. Eynon, 1 Burr. 395. 
 
 (*) Style, 466.
 
 630 BOOK V. OF CIVIL INJURIES. 
 
 Nor can there be any doubt that this is a reasonable and 
 salutary course of practice. [If every verdict was final in 
 the first instance, it would tend to destroy this valuable 
 method of trial.] For [either party may be surprised by 
 a piece of evidence which, had he known of its production, 
 he could have explained or answered ; or may be puzzled 
 by a legal doubt which a little recollection would have 
 solved.] Besides, [in the hurry of a trial, the ablest judge 
 may mistake the law, and misdirect the jury; he may not 
 be able so to state and range the evidence as to lay it 
 clearly before them, nor to take off the artful impressions 
 which have been made on their minds by learned and ex- 
 perienced advocates. The jury are to give their opinion 
 instanter, that is, before they separate, eat or drink ; and 
 under these circumstances the most intelligent and best 
 intentioned men may bring in a verdict which they them- 
 selves upon cool deliberation would wish to reverse. 
 Granting a new trial under proper regulations, cures all 
 these inconveniences, and at the same time preserves 
 entire, and renders perfect, that most excellent method of 
 decision which is the glory of the English law. A new 
 trial is a rehearing of the cause before another jury, but 
 with as little prejudice to either party as if it had never 
 been heard before. No advantage is taken of the former 
 verdict on the one side, or the rule of court for awarding 
 such second trial on the other ; and the subsequent verdict, 
 though contrary to the first, imports no blame upon the 
 former jury, who, had they possessed the same lights and 
 advantages, would probably have altered their own opinion. 
 The parties come better informed, the counsel better pre- 
 pared, the law is more fully understood, the judge is more 
 master of the subject, and nothing is now tried but the 
 real merits of the case. A sufficient ground, however, 
 must be laid before the court to satisfy them that it is 
 necessary to justice that the cause should be farther con- 
 sidered. If the matter be such as did not or could not
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 
 
 631 
 
 [appear to the judge who presided at nisi prius, it is dis- 
 closed to the court by affidavit ; if it arises from what 
 passed at the trial, it is taken from the judge's information, 
 who usually makes a special and minute report of the evi- 
 dence. Counsel are heard on both sides to impeach or 
 establish the verdict; and the court give their reasons at 
 large why a new examination ought or ought not to be 
 allowed. The true import of the evidence is duly weighed, 
 false colours are taken off, and all points of law which 
 arose at the trial are upon full deliberation clearly explained, 
 and settled. Nor do the courts lend too easy an ear to 
 every application for a review of the former verdict. They 
 must be satisfied that there are strong probable grounds to 
 suppose that the merits have not been fairly and fully dis- 
 cussed, and that the decision is not agreeable to the justice 
 and truth of the case. A new trial is not granted where 
 the value is too inconsiderable to merit a second examina- 
 tion. It is not granted upon nice and formal objections 
 which do not go to the real merits. It is not granted in 
 cases of strict right, or summum jus, where the rigorous 
 exaction of extreme legal justice is hardly reconcilable to 
 conscience. Nor is it granted where the scales of evidence 
 hang nearly equal : that which leans against the former 
 verdict ought always very strongly to preponderate (£).] 
 
 (i) In antient times the principal 
 remedy for reversal of a verdict un- 
 duly given was by writ of attaint, 
 which was a proceeding for setting 
 aside, by a jury of twenty-four, the 
 verdict of a jury of twelve ; the effect 
 of which was, that if the former 
 jurors were found to have given a 
 false verdict they incurred infamy, 
 with imprisonment and forfeiture of 
 their goods ; which two latter punish- 
 ments were in course of time com- 
 muted into a pecuniary penalty. (3 
 Bl. Com. 388, 402.) For it was 
 
 deemed at the early period when 
 this proceeding was first established, 
 when the constitution of juries was 
 different from what it now is, and they 
 were summoned to testify on their own 
 knowledge as to the truth of the facts 
 in dispute, (see Plac. Ab. 3, Norfolc. 
 &c. ; 2 Reeves's Hist. 270, &c.) that 
 a false verdict must necessarily be a 
 perjured one. The writ of attaint was 
 a form of proceeding at least as old 
 as the reign of Henry the second, and 
 remained in force (though quite fallen 
 out of use) till abolished by the stat.
 
 632 BOOK V. — OF CIVIL INJURIES. 
 
 Y-2. [Arrests of judgment arise from intrinsic causes ap- 
 pearing on the face of the record,] showing that notwith- 
 l~ ,,/. standing any verdict given for the plaintiff, he is not en- 
 titled to judgment ; and it is only on the part of the de- 
 fendant, therefore, that a motion in arrest of judgment is 
 made. As if in an action for slanderous words, the defend- 
 ant denies the words, and issue is joined thereon, now if 
 a verdict be found for the plaintiff, that the words were 
 actually spoken as affirmed by him, here — though that fact 
 is established, yet the defendant may move in arrest of 
 judgment that the words are not in their nature actionable, 
 and if the court be of that opinion, the judgment shall be 
 arrested, and never entered for the plaintiff. ^And it may 
 be laid down generally, that whatever objection in point of 
 substance the defendant might have taken at an earlier 
 stage by way of demurrer, he is also entitled to take at this 
 stage, in arrest of judgment ; but no more in this shape 
 than in the other can he be allowed to bring forward any 
 objection in point of mere form. The case was formerly 
 very different, for by the antient law, even the most trifling 
 objection in point of form might be alleged in arrest of 
 judgment ; but by the statutes of amendment and jeo fail 
 (so called because when a pleader, in the days of oral 
 pleading, perceived any slip in the form of his allegation, he 
 acknowledged such error by the expression of fay faille, 
 and obtained liberty to amend), objections of mere form 
 not brought forward by way of special demurrer, were, at 
 a subsequent stage of the cause, cured or aided. But it 
 is now provided, that no judgment shall be arrested, stayed, 
 or reversed, for any imperfection, omission, defect in or 
 lack of form (i) ; and moreover, that where a motion shall 
 
 6 Geo. 4, c. 50, s. 60. A full account deemed insufficient for any defect 
 
 of it is given in Blackstone's Com- which could heretofore have heen 
 
 mentaries, loco sup. cit. objected to only by special demurrer. 
 
 (J) 15 & 16 Vict. c. 76, s. 50. By Vide sup. p. 574, n. (e). 
 s. 51, also, no pleading shall be
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 633 
 
 be made in arrest of judgment by reason of the omission 
 to allege some material fact, or other cause, the plaintiff 
 shall be at liberty, by leave of the court, to enter a sugges- 
 tion of the existence of the matter omitted, or any matter 
 which, if true, would remedy the alleged defect ; to which 
 the defendant shall be at liberty to plead, and the parties 
 may thereon proceed to issue and trial, as in ordinary 
 cases (k). 
 
 3. A motion for judgment non obstante veredicto is also 
 made in respect of some intrinsic objection apparent on 
 the face of the record ; but differs in this particular, from 
 the motion in arrest of judgment, that it is made on the f 
 part of the plaintiff and not of the defendant, and is ac-^ 
 cordingly grounded on an objection to the case of the lat- 
 ter, and not of the former party. Thus, where the plea s?^D *-&> 
 confesses, and attempts to avoid, the declaration, by some ./O - 
 matter which amounts to no sufficient avoidance of it in -== 
 point of law, and the plaintiff instead of demurring, has 
 taken issue upon the truth of the plea in fact, and that 
 issue has been found in favour of the defendant, yet the 
 plaintiff may move that, without regard to the verdict, the 
 judgment be given in his favour. For the plea having 
 confessed the matter of fact in the declaration, and having 
 opposed it by an allegation which, though true in fact, is 
 bad in law, it appears upon the whole that the plaintiff is 
 entitled to maintain his action (/). But the same rule ap- 
 plies to the motion for judgment non obstante veredicto as 
 to the motion in arrest of judgment, that it can be founded 
 on no objection of a merely formal kind, but only on such 
 as involves the substance and merits of the controversy. 
 And the same practice obtains, as to allowing the party 
 
 (k) 15 & 16 Vict. c. 74, ss. 143, Negelen v. Mitchell, 7 Mee. & W. 
 
 144. 612; Atkinson v. Davies, 2 Dowl. 
 
 (/) As to judgment non obstante, N. S. 778; Shrewsbury v. Blount, 2 
 
 &c. see Gilb. C. P. 126 ; Lambert v. Man. & Gr. 508 ; Beaty v. Warren, 
 
 Taylor, 4 Barn. & Cress. 138; Merry 4 Man. & Gr. 158; Pim v. Graze- 
 
 v. Chapman, 83 A. & E. 524, n. ; brook, 2 C. B. 429.
 
 634 BOOK V. — OF CIVIL INJURIES. 
 
 whose pleading is in fault, to enter a suggestion of any 
 matter which, if true, would remedy the alleged defect (m). 
 4. The motion for a repleader is, where [by the miscon- 
 i«^/e*) duct or inadvertence of the pleaders, the issue is joined on 
 a fact totally immaterial or insufficient to determine the 
 right, so that the court upon the finding cannot know for 
 whom judgment ought to be given.] As if in an action 
 against an executor, he pleads that he himself, instead of 
 the testator, made no such promise as alleged in the de- 
 claration (n) ; or, if in an action of debt on bond conditioned 
 to pay ten pounds ten shillings on a certain day, the de- 
 fendant pleads payment of ten pounds (o), — in such cases 
 the court will, after a verdict, award a repleader, (quod 
 partes replacitent) ; the effect of which is, that [the plead- 
 ings must begin de novo at that stage of them, whether it 
 be the plea, replication, or rejoinder, &c. wherein there ap- 
 pears to have been the first defect or deviation from the 
 regular course.] But repleaders are not now very usual, 
 for they are awarded only where it is apparent to the court 
 that the case of the party in default might probably be 
 made good by a different manner of pleading (p). It is 
 besides a rule, that a repleader is never granted in favour 
 of the party who made the first fault, when the issue has 
 been found against that party (q) ; nor in any case except 
 where complete justice cannot otherwise be attained (r). 
 
 If judgment on the verdict is not by some of these means 
 suspended or averted within the period allowed for the pur- 
 Cm) 15 & 16 Vict. c. 76, ss. 143, 319 c. ; Gordon v. Ellis, 7 M. & G. 
 144. 607. 
 
 (n) 2 Vent. 196. (?) Goodburnei;. Bowman, 9 Bing. 
 
 (o) Kent v. Hall, Hob. 135. Et 532. As to cases where a repleader 
 
 vide Spong v. Wright, 9 Mee. & W. will not be granted, see Negelen v. 
 
 629 ; Atkinson v. Davies, ubi sup. Mitchell, ubi sup. ; Gwynne v. Bur- 
 
 (p) R. v. Phillips, Burr. 301, 302 ; nell, 6 Bing. N. C. 453 ; Willoughby 
 
 3 Bl. Com. 395 ; Negelen v. Mitchell, v. Willoughby, 6 Q. B. 722 ; Gregory 
 
 ubi sup. v. Duke of Brunswick, 16 L. J. (C. 
 
 (9) Bennett v. Holbeck, 2 Saund. B.) 35 ; Crossfield v. Morrison, 7 
 
 C. B. 286.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 635 
 
 pose, and no special case, special verdict, or bill of excep- 
 tions, has occurred at the trial, so as to vary the course of 
 the ordinary proceedings, it follows that the party who ob- 
 tained the verdict is, at any time after the expiration of that 
 period, entitled to judgment (s). 
 
 He accordingly proceeds to sign judgment; that is, to 
 obtain the signature of the proper officer of the court to 
 the proceedings, signifying generally that judgment is given 
 in his favour, which (in the case of a judgment upon ver- 
 dict) stands in the place of any actual delivery of it by the 
 judges themselves. And upon the signing of the judgment, 
 costs are also taxed in his favour by the same officer, — a 
 subject on which we shall presently have occasion to speak 
 more at large. 
 
 After signing judgment, the next step is to enter the 
 judgment on record, by transcribing the whole proceedings 
 on a parchment roll, and depositing this roll, and filing it 
 of record, in the treasury of the court ; and this, though 
 properly the act of the court, is in practice performed by 
 the successful party, or rather by his attorney (t). 
 
 Hitherto we have pursued the history of a cause that 
 
 comes to issue through the instrumentality of pleading. 
 
 (s) Execution frequently issues be- quire, granted, 
 
 fore there has been any opportunity (t) As to the entry on record, see 
 
 of moving for a new trial or the like ; 15 & 16 Vict. c. 76, s. 206; Reg. 
 
 for by 15 & 16 Vict. c. 76, s. 120, Gen. Hil. T. 1853, rr. 56, 70, and 
 
 where a cause is tried out of term, sched. No entry on record in the 
 
 the party obtaining a verdict shall be majority of cases is in fact ever 
 
 entitled to issue execution in fourteen made; the signing judgment and 
 
 days, unless the judge who tries the issuing execution being in general 
 
 cause, or some other judge, or the sufficient for the purposes of the suc- 
 
 court, shall otherwise order. Etvide cessful party. But an incipitur, that 
 
 Reg. Gen. Hil. T. 1853, r. 57, esta- is, an entry of the initial words, is 
 
 blishingthesamerulewheretherehas made on paper, instead of an entry 
 
 been a verdict in term, or a nonsuit of the whole judgment on a roll of 
 
 in or out of term. But in such cases the parchment; and on this incipitur 
 
 opposite party will be entitled to judgment may be forthwith signed, 
 
 move that the judgment and execution and costs taxed, and execution 
 
 may be set aside, and a new trial, or issued. See 15 & 16 Vict. c. 76, s. 
 
 such other relief as the case may re- 206.
 
 G36 BOOK V. — OF CIVIL INJURIES. 
 
 But its course may be of a very different and more sum- 
 mary kind. For first it is now provided (u), with a view to 
 avoid, where practicable, the expense and delay attendant 
 upon pleading, that where the parties are agreed upon the 
 question of fact to be decided between them, they may at 
 any time after writ of summons, and before judgment, state 
 such question by consent, and by order of a judge (without 
 pleadings), in the form of an issue; and such issue maybe en- 
 tered for trial, and tried accordingly, in the same manner as 
 an issue joined in the ordinary way ; and that where at the 
 like stage of the cause, they are agreed upon facts, they may, 
 by the like consent and order, state any question of law in a 
 special case for the opinion of the court, without any plead- 
 ings; and may in either case agree, that, upon the finding of 
 the jury on such issue, or upon the opinion of the court 
 being given on such question, judgment may be entered 
 for any specified sum of money to be paid by one of the 
 parties to the other. Again, it may happen that, after the 
 declaration has been delivered, one of the parties becomes 
 entitled to judgment before any issue is attained. For in 
 an action judgment will be awarded, not only [where the 
 facts are confessed by the parties, and the law determined 
 by the court, as in the case of judgment upon demurrer ;] or 
 [where the law is admitted by the parties, and the facts dis- 
 puted, as in the case of judgment on a verdict f\ but also 
 [where both the fact and the law arising thereon are ad- 
 mitted by the defendant, which is the case of judgment by 
 confession,'] (otherwise called judgment on cognovit ac- 
 tionem)-, or of judgment for defaidt of appearance to the writ 
 of summons (x), or of judgment for default of plea to the de- 
 claration; which last is otherwise called judgment by nihil 
 elicit. And, lastly, judgment will be awarded [where the 
 
 (it) 15 & 16 Vict. c. 76, s. 42—48. cently introduced into personal ac- 
 
 And see the prior provisions of 3 & tions by the Common Law Procedure 
 
 4 Will. 4, c. 42, s. 25. Act. Vide sup. p. 567. 
 
 (x) This sort of judgment is re-
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 637 
 
 [plaintiff is convinced that either the fact or law are insuffi- 
 nient to support his action, and therefore abandons or with- 
 draws his prosecution, which is the case of a judgment upon 
 a nonsuit, ,] or nolle prosequi (y). In all these cases, how-a^ &&■ 
 ever, the practical course is so far the same, that the sue- — 
 
 cessful party proceeds, upon the matter being terminated 
 in his favour, to sign judgment, tax costs, and enter his 
 judgment on record, in manner above described. 
 
 [The judgment, though pronounced or awarded by the 
 judges,] or supposed to be so, where no actual delivery of 
 it takes place, is, properly speaking, [not their determina- 
 tion or sentence, but the determination and sentence of the 
 law. It is the conclusion that naturally and regularly fol- 
 lows from the premises of law and fact, which stand thus : 
 Against him who hath rode over my corn, I may recover 
 damages by law ; but A. hath rode over my corn, therefore 
 I shall recover damages against A. If the major proposi- 
 tion be denied, this is a demurrer in law ; if the minor, it is 
 then an issue in fact ; but if both be confessed (or deter- 
 mined) to be right, the conclusion or judgment of the court 
 cannot but follow ; which judgment or conclusion depends 
 not therefore on the arbitrary caprice of the judge, but on 
 the settled and invariable principles of justice. The judg- 
 ment, in short, is the remedy prescribed by law for the re- 
 dress of injuries, and the suit or action is the vehicle or 
 means of administering it. What that remedy may be is 
 indeed the result of deliberation and study to point out ; 
 and therefore the style of the judgment is, not that it is 
 decreed or resolved by the court, for then the judgment 
 might appear to be their own, but " it is considered," con- 
 
 (t/) As to judgment by nolle pro- the defendant's attorney declares he 
 
 seqni, see Bowden v. Home, 7 Bing. has no instructions to say any thing 
 
 716 ; Fagan v. Dawson, 4 Man. & G. in answer to the plaintiff) ; and of 
 
 711; 3 & 4 Will. 4, c. 42, s. 32. The judgments on retraxit, where the 
 
 books of practice speak also of judg- plaintiff says he withdraws his claim, 
 
 ments on non sum informalus (where But these forms do not now occur.
 
 638 BOOK V.— OF CIVIL INJURIES. 
 
 [sideratum est per curiam, that the plaintiff do recover his 
 damages, his debt, his possession, and the like; which im- 
 plies that the judgment is none of their own, but the act of 
 law pronounced and declared by the court after due de- 
 liberation and inquiry. 
 
 All these species of judgments are either interlocutory 
 or final. Interlocutory judgments are such as are given 
 in the middle of a cause, upon some plea, proceeding, or 
 default, which is only intermediate, and does not finally 
 ■determine or complete the suit. Of this nature are all 
 judgments for the plaintiff upon] demurrer to [pleas in 
 abatement of the suit or action, in which it is considered 
 by the court that the defendant do answer over, respondeat 
 ouster ; that is, put in a more substantial plea. It is easy 
 to observe that the judgment here given is not final, but 
 merely interlocutory ; for there are afterwards farther pro- 
 ceedings to be had when the defendant hath put in a better 
 answer. 
 
 But the interlocutory judgments most usually spoken of, 
 are those incomplete judgments whereby the right of the 
 plaintiff is indeed established, but the quantum of damages 
 sustained by him is not ascertained ; which is a matter that 
 cannot be done without the intervention of a jury. This 
 can only happen where the plaintiff recovers ; for where 
 judgment is given for the defendant it is always complete 
 as well as final.] And it happens where the defendant suf- 
 fers judgment to go against him by confession, or for de- 
 fault of plea in any action brought for recovery of damages. 
 In such a case as this, a jury is in general summoned to 
 assess the damages, and [the entry of the judgment is, that 
 the plaintiff ought to recover his damages (indefinitely) ;] 
 but because the court know not what damages the said 
 plaintiff hath sustained, therefore the sheriff is commanded 
 that, by the oaths of twelve honest and lawful men, he in- 
 quire into the said damages, and that the said inquisition 
 be returned into court. This process is called a writ of in-
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 639 
 
 quirt/ (a) ; in the execution of which the sheriff (5 \ by his 
 under-sheriff, [sits as judge, and tries by a jury, subject to 
 nearly the same law and conditions as apply to the trial by 
 jury at nisi prius, what damages the plaintiff hath really 
 sustained ; and when their verdict is given, which must 
 assess some damages, the sheriff returns the inquisition, 
 which is entered upon the roll in manner of a postea ; and 
 thereupon it is considered that the plaintiff do recover the 
 exact sum of the damages so assessed.] In like manner, 
 when a demurrer is determined for the plaintiff, in an action 
 wherein damages are recovered, the judgment is entered in 
 the same interlocutory form, and is followed by a like writ 
 of inquiry. But in many cases, though the action is brought 
 in point of form for damages (or sounds in damages, ac- 
 cording to the technical term), yet the amount recoverable 
 by the plaintiff is substantially a matter of mere calcula- 
 tion, and one therefore upon which a jury would have no 
 discretion to exercise ; and in all such cases the course is 
 not to issue any writ of inquiry, but to apply for an order 
 of the court or a judge, that the amount which the plaintiff 
 is entitled to recover be ascertained by one of the principal 
 officers (or masters) of the court (c). 
 
 [Final judgments are such as at once put an end to the ^V^^-g^ 
 action,] by the immediate award of the sum of money or .■/ — ^ 
 specific thing due to the plaintiff, or of the discharge of the "j^Il J 
 
 1/ 
 
 (a) Vide sup. vol. ii. p. 608. By Hil. T. 1853, r. 55. As to notice of in- 
 
 1 Will. 4, c. 7, a writ of inquiry may quiry, see Reg. Gen. Hil. T. 1853, 
 
 be returnable whether in term time r. 34 — 37, 40. 
 
 or vacation ; and by 3 & 4 Will. 4, c. (ft) There is one case in which a 
 
 42, s. 18, judgment may be signed writ of inquiry may be executed not 
 
 and execution issue forthwith unless before the sheriff, but the judge at 
 
 the sheriff certify that judgment nisi prius, viz. in an action on a bond 
 
 ought not to be signed until de- conditioned for performance of any 
 
 fendant shall have had an opportu- acts other than the payment of mo- 
 
 nity to apply to the court to set ney. Vide stat. 8 & 9 Will. 3, c. 11 ; 
 
 aside the execution of the writ, or sup. vol. ii. p. 105. 
 unless a judge shall think fit to stay (c) 15 & 16 Vict. c. 76, s. 94. 
 
 the judgment. And see Reg. Gen. See same, Reg. Gen. r. 171 — 173. 

 
 640 BOOK V. OF CIVIL INJURIES. 
 
 defendant from the action, as the case may be. This kind 
 of judgment takes place in whatever manner the suit is de- 
 termined, whether it be on demurrer, verdict, confession, 
 default of appearance, default of plea, nonsuit, or nolle pro- 
 sequi. But this distinction is always to be understood, that 
 if the action be for recovery of damages, the final judgment 
 is always preceded by an interlocutory judgment and writ 
 of inquiry, or reference to the master thereon, to ascertain 
 the amount of those damages ; but if the action be for re- 
 covery of a debt or liquidated sum of money, then the judg- 
 ment is final in the first instance. And we may remark 
 here, that final judgments in the first instance, as upon con- 
 fession or default of plea, are often agreed upon before an 
 action is brought, and constitute a very usual form of secu- 
 rity, the course being [for the debtor to execute a warrant 
 of attorney to some attorney named by the creditor,] em- 
 powering him to suffer a judgment to pass against the 
 debtor in one of these forms, [in an action of debt to be 
 brought by the creditor against the debtor for the specific 
 sum due, though this practice is subject to several re- 
 strictive regulations for the prevention of fraud or oppres- 
 sion (<i).] 
 
 As to the form in which final judgment is entered. [If 
 the judgment be for the plaintiff, the form is that he do 
 recover, quod recuperet, the debt or damages, and that the 
 
 tr ^y^/^S (<0 As t0 cognovits and warrants of thereby declare himself to be attor- 
 
 ittorney, see Reg. Gen. Hil. T. 1853, ney for the party, and state that he 
 
 rr. 25, 26, 27. Also, by 1 & 2 Vict. subscribes as such attorney. As to 
 
 c. 110, ss. 9, 10, no warrant ofattor- the effect allowed to judgments on 
 
 ney or cognovit shall be of any force warrants of attorney in cases of 
 
 unless there be present some attor- bankruptcy and insolvency, see 1 & 
 
 ney of one of the superior courts on 2 Vict. c. 110, s. 61 ; 6 & 7 Vict. c. 
 
 behalf of the person giving it, ex- 66, and 12 & 13 Vict. c. 106, ss. 133, 
 
 pressly named by hitn, and attending 135, 136. As to the effect in cases 
 
 at his request, to inform him of the of bankruptcy of a judge's order 
 
 nature and effect of the instrument given by a defendant by consent, 
 
 before the same is executed ; which for the same purpose as a cognovit, 
 
 attorney shall subscribe his name as see sect. 137 of the act last men- 
 
 a witness to the due execution, and tioned.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 641 
 
 defendant be amerced for his wilful delay of justice ; or if 
 for the defendant on a plea in abatement, that the declara- 
 tion be quashed ; or on a plea in bar, that the plaintiff take 
 nothing by his writ, nil capiat per breve, and also be 
 amerced for his false claim, pro falso clamore suo (e) ; and 
 that the defendant may go thereof without a day, eat inde 
 sine die, i. e. without any farther continuance or adjourn- 
 ment. 
 
 At common law, all judgments had relation to the first 
 day of the term in which they were signed, though in point 
 of fact not signed till afterwards (f), the term being con- 
 sidered, for this and some other purposes, as consisting but 
 of one day. But by Reg. Gen. H. T. 1853, reg. 56, all 
 judgments, whether interlocutory or final, shall be entered 
 of record, of the day of the month and year, whether in 
 term or vacation, when signed, and shall not have relation 
 to any other day, provided however that it shall be com- 
 petent for the court or a judge to order a judgment to be 
 entered nunc pro tunc (g). 
 
 It is a property of judgments in the superior courts that 
 they bind all lands, tenements and hereditaments, of which 
 the defendant himself, or any person in trust for him, shall 
 be seised or possessed, at the time when the judgment is 
 recorded, so as to take effect in priority to all subsequent 
 
 (e) This amercement is merely court mentioned in the text is a 
 nominal. It was also formerly ad- re-enactment of one to the same 
 judged in certain cases, that the de- effect made in the reign of Will. 4 ; 
 fendant be taken up, capiatnr, till he and even as early as the time of 
 pay a fine to the crown for his false- Charles the second it had been pro- 
 hood or the like. This is now abo- vided in favour of purchasers bona fide 
 lished in some actions by 5 W. & M. for valuable consideration, that, as 
 c. 12, and in all disused. . against such purchasers, judgments 
 
 ( /') Jeffreson v. Morton, 2 Saund. shall, in consideration of law, bind 
 
 by Wms. 8 k. the lands of the debtor only from 
 
 (g) As to judgment nunc pro tunc, such time as they shall be signed, 
 
 see Miles v. Williams, 16 L. J. (Q.B.) and shall not relate to the first day 
 
 56 ; Fishmongers' Company v. Ro- of the term, 29 Car. 2, c. 3, ss. 13 — 
 
 bertson, 3 C. B. 970. The rule of 15. 
 
 VOL. III. .'. T T
 
 642 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 —O 
 
 P- 
 
 incumbrances (h), subject however to a proviso, that as 
 regards all purchasers, mortgagees and creditors, the judg- 
 ment shall have no such effect until it be duly registered in 
 the Common Pleas, which registration must also be renewed 
 every five years (/). But as to goods and chattels, the effect 
 of a judgment, it is to be observed, is different, for these 
 were bound at common law, not from the judgment, but 
 from the date (or teste) of the writ of execution thereon, and 
 are now, by the Statute of Frauds, 29 Car. II. c. 3, s. 16, 
 . bound only as from the time of the delivery of that writ to 
 ^Za^ A~s4he sheriff to be executed (in). By statute also 1 & 2 Vict. 
 s y* ' f-/£eU%£- HO, s. 13, such judgments operate as a charge in equity, 
 ^upon all lands, tenements and hereditaments (including 
 those of copyhold or customary tenure), wherein the debtor 
 has any estate or interest whatever, whether in law or equity, 
 or over which he has any disposing power, exercisable 
 without the assent of any other person for his own benefit, 
 but subject to the same proviso as before mentioned, re- 
 quiring registration, to make the charge effectual as against 
 purchasers, mortgagees and creditors (n). 
 
 Moreover, by 1 & 2 Vict. c. 110, s. 17, it is provided, 
 e/ i/ that every judgment debt shall carry interest, at the rate of 
 ==^"^1. per cent, per annum, from the time of entering up the 
 
 JUS 
 
 t^ 
 
 (h) 13 Ed. 1, c. 18 ; 29 Car. 2, 
 c. 3, s. 10 ; 2 Inst. 395 ; Co. Litt. 
 265 b ; Palmer v. Humphrey, Cro. 
 Eliz. 584 ; Underhill v. Devereux, 2 
 Saund. by Wms. 68 f. This property 
 results from the nature of that writ 
 of execution called an elegit, as to 
 which, vide post, p. 658; for that 
 writ directs all the lands of the 
 debtor, which he had at the time of 
 the judgment given, to be delivered to 
 the creditor. 
 
 (1) 1 & 2 Vict. c. 110, ss. 13, 19; 
 2 & 3 Vict. c. 1 1 ; 3 & 4 Vict. c. 82. 
 Ex parte Ness, 5 C. B. 155. This 
 system is in lieu of the previous 
 method of doc keling judgments, &c. ; 
 
 as to which, see 2 Impey's Pr. 427. 
 To affect lands in the counties of 
 Middlesex and York, the judgment 
 must also be entered in the proper 
 offices of those counties respectively. 
 5 Ann. c. 18 ; 6 Ann. c. 35 ; 7 Ann. 
 c. 20; 8 Geo. 2, c. 6. 
 
 (m) Burton, Cornp. 302. As to the 
 priority as between the judgment or 
 execution creditor and the assignees 
 of the debtor, in the several cases of 
 bankruptcy and insolvency, vide sup. 
 vol. ii. 160, 164, 172. 
 
 (n) As to the effect on purchasers 
 and mortgagees without notice of 
 judgment, see also 2 & 3 Vict. c. 
 11, s. 5.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 
 
 641 
 
 judgment, until the same shall be satisfied, and such in- 
 terest may be levied under a writ of execution on such 
 judgment (o). 
 
 [Thus much for judgments — to which costs are a neces- 
 sary appendage — it being now as well the maxim of ours, 
 as of the civil law, that " victus victori in expensis condem- 
 nandus est"(p), though the common law did not allow any.] 
 They are accordingly taxed (as already remarked) at the 
 same time that the judgment is signed, and always form 
 part of its aggregate amount {q). But the law of costs de- 
 serves a more particular attention than could conveniently 
 have been bestowed upon it when the subject was before 
 touched upon, and we therefore resume the consideration 
 of them in this place. 
 
 [The first statute which gave costs eo nomine] to the 
 plaintiff [was the Statute of Gloucester, 6 Edw. I. c. 1, as 
 did the Statute of Marlbridge, 52 Hen. III. c. 6, to the 
 defendant, in one particular case relative to wardship in 
 
 (o) Newton v. Grand Junction 
 Railway Company, 16 Mee. & W. 
 139. The statement in the text re- 
 fers, it will be observed, only to judg- 
 ments in the proper and technical 
 sense of that term, viz. the award of 
 redress in an action at law, conse- 
 quent upon the decision of the issue, 
 or the default of the party in prose- 
 cuting his claim or defence. But it 
 may be remarked here, that, by a 
 recent provision of the legislature, 
 rules of the courts of common law, 
 decrees and orders in equity, and or- 
 ders of the lord chancellor in lunacy, 
 are now placed upon the same foot- 
 ing with judgments ; it being enacted 
 by 1 & 2 Vict. c. 110, s. 18, that all 
 these, when made for the payment of 
 money, shall have the effect of judg- 
 ments in the superior courts of com- 
 mon law, and that the same remedies 
 
 T T. 
 
 shall be allowed upon them. See 
 Newton v. Boodle, 6 C. B. 532. 
 
 (p) Cod. 3, 1, 13. 
 
 (q) As to taxing costs, see 7 
 Will. 4 & 1 Vict. c. 30, s. 23 ; 6 & 7 
 Vict. c. 73, ss. 37—43 ; Reg. Gen. 
 Hil. T. 1853, r. 59—62, and Direc- 
 tions to the Masters of the Court 
 issued in the same Term. There 
 are many cases of vexatious pro- 
 ceeding, in which the legislature 
 had formerly provided, that the 
 party in fault should be punished 
 by the payment to his adversary ot 
 double, or (sometimes) treble costs; 
 but by 5 & 6 Vict. c. 97, all such 
 provisions are now repealed ; and it 
 is enacted, that the adversary shall 
 be entitled only to a full and reason- 
 able indemnity, to be taxed by the 
 proper officer, which taxation shall, as 
 in ordinary cases, be subj ect to review. 
 
 2
 
 644 BOOK V. — OF CIVIL INJURIES. 
 
 chivalry, though in reality costs were always considered 
 [and included in the quantum of damages, in such actions 
 where damages are given (r) ; and even now costs for the 
 plaintiff are always entered on the roll as increase of da- 
 mages by the court. But because those damages were 
 frequently inadequate to the plaintiff's expenses, the Sta- 
 tute of Gloucester orders costs to be also added, and farther 
 directs, that the same rule shall hold place in all cases where 
 the party is to recover damages.] But with the exception 
 that has been mentioned, [no costs were allowed the de- 
 fendant in any shape, till the statutes 23 Hen. VIII. c. 15; 
 4 Jac. I. c. 3; 8 & 9 Will. III. c. 11 ; and 4 Ann. c. 16, 
 which very equitably gave the defendant, if he prevailed, 
 the same costs as the plaintiff would have had in case he 
 had recovered.] And even after these enactments, there 
 still remained several cases in which the law was defective 
 in this particular, both as regards the plaintiff and the de- 
 fendant : but these defects have now been remedied by the 
 statutes 9 Ann. c. 20; 1 Will. IV. c. 21 ; 3 & 4 Will. IV. 
 c.42, ss. 31-34; 4 & 5 Will. IV. c. 39; and 15 & 16 Vict, 
 c. 76, ss. 81, 145, 223. More particularly it is provided 
 by these statutes, that though the party who succeeds in the 
 cause generally, shall have general costs in the cause ; yet 
 his adversary succeeding on any particular issue, whether in 
 law or fact, shall be entitled to the costs of such issue (s). 
 
 [The king,] or queen regnant, [and any person suing to 
 his or her use, shall neither pay nor receive costs (t) ; for 
 
 (r) As to the history of costs, see plaintiff's, shall be liable to costs, 
 
 Burgess v. Langley, 5 Man. & G. power is given to the court or a judge 
 
 723, in nolis ; Partridge v. Gardner, to exempt them from such liability 
 
 4 Exch. 303 ; Howell v. Rodbard, by special order, in any particular 
 
 ibid. 309 ; Callander v. Howard, 1 case. 
 
 L. M. & P. 755. (t) 24 Hen. 8, c. 8. As to the 
 
 (s) See especially 15 & 16 Vict. c. crown receiving costs in certain par- 
 
 76, s. 81 ; Reg. Gen. Hil. T. 1853, ticular cases provided for by statute, 
 
 r. 62. By 3 & 4 Will. 4, c. 42, s. 31, see Att.-Gen. v. Shillibeer, 4 Exch. 
 
 which for the first time provides, that 606. 
 executors and administrators, when
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 645 
 
 [that besides that the sovereign is not included under the 
 general words of these statutes, as it is his prerogative not 
 to pay them to a subject, so it is beneath his dignity to 
 receive them. And it seems reasonable to suppose that 
 the queen consort participates of the same privilege (w).] 
 Paupers also, [that is, such as will swear themselves not 
 worth 51] in the world, except their wearing apparel and 
 the matter in question in the cause, are by statute 11 
 Hen. VII. c. 12, and 23 Hen. VIII. c. 15, exempt, when 
 plaintiffs (but not when defendants) from the payment of 
 court fees, and entitled to have counsel and attorney as- 
 signed to them by the court without fee, and are excused 
 from paying costs when unsuccessful, [but shall suffer other 
 punishment, at the discretion of the judges (jt).] A person 
 however thus suing in forma pauperis [may recover costs, 
 though he pays none, for the counsel and clerks are bound 
 to give their labour to him, but not to his antagonists.] To 
 prevent, besides, the abuse of suing in the superior courts 
 in matters of small amount, it is provided (as already 
 shown) that, (subject to certain exceptions) any plaintiff 
 who resorts to one of these, in a case which would have 
 been cognizable in a county court, and recovers no more 
 than 201. (in some forms of action), or no more than 51. (in 
 others), will be deprived of his costs, unless he satisfies the 
 court or a judge that he had sufficient reason for taking 
 that course ( y). Moreover, if the plaintiff, instead of taking 
 
 (it) At common law, as before ex- ment in such cases has occurred, 
 
 plained, parties against whom judg- As to suing in forma pauperis, see 
 
 ment was given were liable to be Pratt v. Delarue, 10 Mee. & W. 
 
 amerced. But the queen consort was 512; Doe v. Owens, ibid. 514; Hall 
 
 exempted from amercement. Co. v. tve, 7 Man. & G. 1001 ; Reg. Gen. 
 
 Litt. 133. Hil. T. 1853, r. 121, 122. 
 
 (x) Blackstone says, it was for- (y) Vide sup. p. 381. Other pro- 
 
 merly usual to give such paupers, if visions, either depriving the plaintiff 
 
 non-suited, their election, either to be altogether of his costs, or allowing 
 
 whipped or pay their costs. 3 Bl. Com. him no more costs than his debt or 
 
 400. But in modern practice no in- damages, in certain cases where the 
 
 stance of the award of any punish- amount recovered is less than 40s.,
 
 646 
 
 BOOK V. OF CIVIL INJURIES. 
 
 out execution upon a judgment, bring an action thereon, 
 he shall, by 43 Geo. III. c. 46, s. 4, recover no costs of 
 suit, except the court or a judge shall otherwise order; nor 
 are any costs allowed in a penal action to a plaintiff suing 
 as a common informer, unless they are expressly given by 
 the statute on which he sues ; for as the action itself creates 
 the right, he has no claim to damages, and by the general 
 rule of law, where there are no damages, there can be no 
 costs (z). 
 
 After judgment, execution will immediately follow, un- 
 less the party condemned takes some course to be relieved 
 from its effect. The principal method for this purpose (a) 
 is to institute — 
 
 have been made by various statutes. 
 See 43 Eliz. c. 6, s. 2 ; 3 & 4 Vict, 
 c. 24 ; 4 & 5 Vict. c. 28 ; Sherwin v. 
 Swindall, 12 Mee. & W. 783 ; Lyons 
 v. Hyman, 5 Excb. 749 ; Bowyer v. 
 Cook, 4 C. B. 236 ; Richards v. Bluck, 
 G C. B. 44-3 ; Richardson v. Barnes, 
 7 D. & L. 96. But the importance 
 of these provisions is now somewhat 
 diminished by the introduction of 
 the general enactment referred to in 
 the text. 
 
 (s) College of Physicians v. Har- 
 rison, 9 B. & C. 524. 
 
 (a) Besidestheproceedingin error, 
 Blackstone speaks of a writ of attaint, 
 a writ of deceit, and a writ of audita 
 querela. But the two first of these 
 are now abolished, and the last may 
 be said to be nearly obsolete. The 
 writ of attaint we have before had 
 occasion to notice, vide sup. p. 631, 
 n. (A). Tbe writ of deceit was an 
 action brought in the Common Pleas 
 to reverse a judgment obtained in 
 any real action, by fraud or collusion 
 between the parties, to the prejudice 
 of a right of a third person. It was 
 
 abolished by 3 & 4 Will. 4, c. 27, s. 
 36. The audita querela is a writ that 
 lies for the defendant against whom 
 judgment is given, and who is there- 
 fore in danger of execution, or per- 
 haps actually in execution, but who 
 is entitled to be relieved upon some 
 matter of discharge which has hap- 
 pened since tbe judgment, as if the 
 plaintiff has given him a general re- 
 lease, or if he has paid the debt to 
 the plaintiff. It is a writ directed 
 to the court in which the judgment 
 is recovered, stating that the com- 
 plaint of the defendant has been 
 heard, audita querela defendentis, and 
 then setting forth the matter of com- 
 plaint, and enjoining the court to 
 call the parties before them, and 
 cause justice to be done. But the 
 indulgence now shown by the courts 
 in granting relief upon motion, has 
 almost superseded the remedy by 
 audita querela. Vide 2 Saund. 137 e; 
 And now by Reg. Gen. Hil.T. 1853, 
 r. 79, no writ of audita querela shall 
 be allowed, unless by rule of court 
 or order of a judge.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 647 
 
 V. Proceedings in error (b). Error lies [for some sup- 
 posed mistake in the proceedings in a court of record ; for 
 to amend errors in a base court, not of record, a writ of 
 false judgment lies(c).] It lies either upon matter of fact 
 or matter of law. The errors in fact which may give rise 
 to a proceeding of this kind are not numerous, but among 
 them are the following : — that the defendant, being an in- 
 fant, appeared by attorney, and not by guardian (d) ; or 
 that the plaintiff or defendant was a married woman when 
 the suit commenced (e). But the most usual species of the 
 proceeding is that which is founded upon some supposed 
 mistake of law, apparent on the face of the record, such 
 as might have formed a sufficient ground, at the proper 
 time, for a motion in arrest of judgment, or a motion for a 
 judgment non obstante veredicto (f). 
 
 Formerly the suitors were much perplexed by proceed- 
 ings in error instituted [upon very slight and trivial grounds, 
 as mis-spellings, and other mistakes of the clerks,] which in 
 general were held sufficient, unless amended, to vitiate the 
 proceedings, even after judgment ; and were at the same 
 time incapable of amendment after judgment was actually 
 recorded, unless within the very term in which the act so 
 recorded was done; for during the term the record was 
 [held to be in the breast of the court, but afterwards it ad- 
 mitted of no alteration (g).~\ But it is now provided, that 
 
 (ft) These proceedings formerly Overton v. Swettenham, 3 Bing. N.C. 
 
 began by a urit of error, sued out of 786 ; Crooks v. Longden, 5 Bing. 
 
 the common law side of the Court of N. C. 410. 
 
 Chancery, addressed to the chief (d) Bird v. Pegg, 5 B. & Aid. 418. 
 
 justice of the court below in which (e) King v. Jones, Ld. Raym. 
 
 the judgment was given, and com- 1525. 
 
 manding him to send a transcript of (f) Vide sup. p. 633. 
 
 the record to the Court of Error. But (g) Blackstone attributes this 
 
 now, by 15 & 16 Vict. c. 76, s. 148, strictness partly to a "narrowness of 
 
 this writ is dispensed with, and the thinking," on the part of the judges, 
 
 proceedings begin with the memo- partly to a " real shallowness, but 
 
 randum hereafter described. affected timidity," engendered by 
 
 (c) As to false judgment, vide some severity shown in the reigns of
 
 G48 BOOK V. — OF CIVIL INJURIES. 
 
 no judgment shall be reversed for any imperfection, omis- 
 sion, or defect of form (/<). And even in cases of more 
 material mistake, amendments have latterly been often al- 
 lowed, upon the condition of paying costs, though the ap- 
 plication for leave to amend should not have been made till 
 after the judgment has been recorded, and the term passed, 
 or even error brought (i). It is also now enacted, that no 
 judgment shall be reversed for any error, unless the pro- 
 ceeding for the purpose be commenced and prosecuted with 
 effect within six years after such judgment is signed or en- 
 tered of record, or within six years after the removal of any 
 disability under which the party aggrieved may have la- 
 boured at the time his title to bring error accrued (/'). And 
 farther, that execution shall not be stayed by proceedings 
 in error on any judgment, without the special order of the 
 a i~~* *•* 'cmirt or a judge, unless the party enters into a recogni- 
 j/^ /—. zance, with sufficient sureties, in double the sum adjudged 
 to be recovered, to prosecute the proceedings in error with 
 effect, and also to pay all money and costs which may ulti- 
 mately become due from him, either on the judgment itself, 
 or the proceedings for its reversal {It). But until default is 
 made in entering into such recognizance, proceedings in 
 error are generally a stay of execution (Z). 
 
 As to the course of proceeding in error. Supposing the 
 error to be in fact, the party aggrieved (or plaintiff in error) 
 begins by delivering to one of the masters of the court in 
 
 Edward the first and Edward the and amendment before mentioned ; 
 
 third, with regard to the offence of vide sup. p. 632. 
 
 surreptitiously erasing and altering (i) Richardson v. Melli&h, 3 Bing. 
 
 records, particularly the inflicting of 334 ; S. C. in error, 7 B. & C. 819 ; 
 
 rigorous forfeitures and punishments S. C. Dom. Proc. 1 Clark & Fin. 
 
 on the several judges, for alleged 224; Paddon v. Bartlett, 3 A.& E. 
 
 malpractices in this particular. 3 Bl. 887. 
 
 Com. 408, 411. (j) 15 & 16 Vict. c. 76, s. 146. 
 
 (h) 15 & 16 Vict. c. 76, s. 50. (k) Ibid. s. 151. 
 
 Such defects were, even before this (/) See 15 & 16 Vict. c. 76, ss. 
 
 act, for the most part cured after 150, 158; Semple v. Turner, 6 Mee. 
 
 judgment, by the statutes of jeofail & W. 152.
 
 CHAr. X.— OF THE PROCEEDINGS IN AN ACTION. 649 
 
 which the judgment has been given, a memorandum in a 
 prescribed form, alleging that there is error in fact in the 
 proceedings, and it is accompanied by an affidavit of the 
 matter of fact referred to (m). This is followed by an as- 
 signment of error (n), which is analogous to a declaration, 
 and is met by a plea on the part of the defendant in error, 
 and the parties may thus be conducted to an issue in law 
 or in fact, upon which judgment of affirmance or reversal 
 will follow. So that redress may be thus obtained in 
 the same court by which the erroneous judgment was 
 given (o) ; for the matter of fact assigned for error not 
 being apparent on the face of the proceedings, there has 
 in reality been no error, so far as its judges are concerned, 
 and the correction of the record is therefore left, without 
 impropriety, to them. In the more important and ordi- 
 nary case of error in law, the course is so far similar, 
 that it begins with delivering to the master of the court a 
 memorandum (but in this case without affidavit), alleging 
 that there is error in law. If the defendant in error in- 
 tends to rely on the proceeding being barred by lapse of 
 time, or release of errors, or other like matter of fact, he is 
 then to give the plaintiff in error notice to assign error, and 
 the assignment may lead to an issue in law or in fact, as in 
 the case before supposed (p). But otherwise the plaintiff 
 in error proceeds, after delivering the memorandum, to enter 
 on the judgment roll a mere suggestion (in a prescribed 
 form), to the effect that error is alleged by the one party, 
 and denied by the other; and the cause is then set down for 
 argument in the Court of Exchequer Chamber (q), in which 
 resides the immediate jurisdiction of correcting the errors 
 
 (m) 15 & 16 Vict. c. 76, s. 158. judgment in the Common Pleas, error 
 
 (ji) See Reg. Gen. Hil. T. 1853, might be brought either in the Com- 
 
 r. 64 — 66. mon Pleas or in the Queen's Bench, 
 (o) Castledine v. Mundy, 4 B. & ( />) 15 & 16 Vict. c. 76, s. 182. 
 
 Ad. 90. In this case, however, it (q) See Reg. Gen. Hil. T. 1853, 
 
 was held that in error in fact on a r. 67, 68.
 
 G50 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 in law of any of the three superior courts (o) ; and the 
 master of the court whose proceedings are alleged to be 
 erroneous, having brought the judgment roll into the Exche- 
 quer Chamber, that court reviews the proceedings and gives 
 such judgment thereon as it shall think fit, and this judg- 
 ment is entered accordingly on the ro\\(p). If the original 
 judgment be affirmed, the successful party is entitled to the 
 costs incurred by the writ of error (q) • but if the judgment 
 be reversed no such costs are allowed. If necessary, how- 
 ever, a writ of restitution will be awarded to the plaintiff in 
 error by the court in which the original judgment was 
 given, to enable him to recover whatever has been taken 
 from him under that judgment (r); or the court will grant 
 that relief in a more summary way, and by its mere rule 
 or order. The proceedings are for the present, therefore, 
 thus brought to a termination (s). But the unsuccessful 
 party may still, if he thinks proper, resort to an ulterior 
 appeal, by way of error, to the House of Lords; the course 
 of proceeding upon which is, in a general point of view, 
 the same as in the Exchequer Chamber (t). But by the 
 practice of that House, each party, before the hearing, pre- 
 pares and delivers for distribution among the Lords a printed 
 statement of his case, signed by counsel who attended the 
 
 (o) Vide sup. p. 411. As to the 
 courts of common law of the counties 
 palatine, it is provided by 15 & 16 
 Vict. c. 76, s. 233, that the Court of 
 Queen's Bench shall be the Court of 
 Error from them ; that it shall be 
 sufficient to transmit to the Queen's 
 Bench a transcript of the record be- 
 low; and that the judgment of the 
 Queen's Bench thereon shall be cer- 
 tified by one of the masters, and 
 entered on the original record be- 
 low ; but subject to the right of 
 either party to bring error on that 
 judgment according to the same 
 course of proceeding as in actions 
 
 brought in the Queen's Bench itself 
 (s. 233). 
 
 (}>) 15 & 16 Vict. c. 76, s. 155— 
 157. 
 
 (?) 3 Hen. 7, c. 10; 13 Car. 2, st. 
 2, c. 2, s. 10; 8 & 9 Will. 3, c. 11, 
 s. 2. As to taxing the costs, see 
 Reg. Gen. Hil, T. 1853, r. 69. 
 
 (r) 15 & 16 Vict. c. 76, s. 155. 
 
 (s) Various provisions are con- 
 tained in the 15 & 16 Vict. c. 76, to 
 prevent proceedings in error from 
 abating from death or marriage of 
 parties (ss. 161 — 167). 
 
 (0 See 15 & 16 Vict. c. 76, s. 
 155.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 651 
 
 hearing below, or who are to attend the hearing in the 
 House of Lords. 
 
 VI. If the regular judgment of the court, after the de- 
 cision of the suit, be not suspended or reversed by one or 
 other of the methods mentioned in this chapter, the next 
 and last step is the execution of that judgment, or putting 
 the sentence of the law in force. This is performed by 
 different writs of execution (s), according to the nature of 
 the action and of the judgment which is recovered. In 
 the ordinary actions, to which our attention is at present 
 immediately directed, the judgment is in general for recovery 
 of money only, (either by way of debt or damages,) and 
 not for recovery of any specific chattel ; there being, how- 
 ever, an exception to this in the case of detinue, in which 
 the judgment is for recovery of the goods themselves 
 which are detained, or the value thereof, with damages and 
 costs. And in that action there is accordingly a special 
 writ of execution, called [a distringas, to compel the de- 
 fendant to deliver the goods by repeated distresses of his 
 chattels (t), or else a scire facias against any third person 
 
 j-^ (s) As to all writs of execution, it 
 is provided by 3 & 4 Will. 4, c. 67, 
 s. 2, that they may be tested on the 
 day on which they are issued, and 
 be made returnable immediately after 
 the execution thereof. Also by 15 
 & 16 Vict. c. 76, s. 120, and Reg. 
 Gen. Hil. T. 1853, r. 57, that when 
 a verdict is obtained in a cause, or 
 a plaintiff' has been nonsuited, ex- 
 ecution may be issued within fourteen 
 days unless otherwise ordered ; also 
 by the act last mentioned, ss. 121 — 
 125, that a writ of execution may in 
 all cases be issued at once into any 
 county, whether a county palatine or 
 not, and whether the venue was 
 laid there or not ; that the party 
 entitled to execution may in every 
 
 case levy the poundage fees and ex- 
 penses over and above the sum re- 
 covered ; and that writs of execution, 
 while unexecuted, shall not remain in 
 force for more than a year from the 
 teste, but may from time to time 
 be renewed. Also by Reg. Gen. Hil. 
 T. 1853, r. 70, &c, that it shall not 
 be necessary before issuing execution 
 to enter the proceedings on any roll, 
 but that none shall be issued until 
 the judgment paper, postea, or inqui- 
 sition, has been seen by the proper 
 officer. And see in the same Rules, 
 and in the schedule thereto attached, 
 various other provisions as to writs 
 of execution. ~f- 
 
 («)1 Roll. Ab. 737; Rast.Ent. 215- 
 
 %■
 
 k/Oc 
 
 652 BOOK V. — OF CIVIL INJURIES. 
 
 [in whose hands they may happen to be, to show cause 
 why they should not be delivered ; and if the defendant still 
 continues obstinate, then (if the judgment hath been by 
 default or on demurrer) the sheriff shall summon an inquest, 
 to ascertain the value of the goods and the plaintiff's da- 
 mages, which (being either so assessed, or by the verdict 
 in case of an issue (u),) shall be levied on the person or 
 goods of the defendant.] So that after all, if the wrong-doer 
 be very perverse, he cannot (even in this action) be com- 
 pelled to a restitution of the identical thing taken or de- 
 tained : but he still has this election, to deliver the goods 
 or their value (y), — an imperfection in our common law for 
 which it is not easy to render a sufficient excuse (x). 
 
 Where money only is recovered, the practice of the 
 court allows the judgment creditor to resort to one of the 
 four following writs of execution : 
 
 1. The writ of capias ad satisfaciendum. [The intent of 
 this writ is to imprison the body of the debtor till satis- 
 faction be made for the debt or damages, and costs. It 
 therefore doth not lie against any privileged persons, peers, 
 or members of parliament. And Sir E. Coke also gives 
 us a singular instance (*/), where a defendant, in the four- 
 teenth year of Edward the third, was discharged from a 
 capias because he was of so advanced an age quod pcenam 
 imprisonamenti subire non potest. If an action be brought 
 against a husband and wife, for the debt of the wife when 
 sole, and the plaintiff recovers judgment, the capias shall 
 issue to take both the husband and wife in execution (z) ; 
 but if the action was originally brought against herself when 
 sole, and pending the suit she marries, the capias shall be 
 awarded against her only, and not against her husband (a). 
 
 (u) Bro. Ab. tit. Damages, 29. (y) Co. Litt. 289. 
 
 (v) Keilw. 64. (s) Bardolph v. Perry, Moor, 704. 
 
 (0 That assigned by Blackstone, See 15 & 16 Vict. c. 76, s. 141. 
 
 vol. iii. p. 413, that it is the nature (a) Beynon v. Jones, 15 Mee. & 
 
 of personal property to be easily con- W. 566. See 15 & 16 Vict. c. 76, 
 
 cealed or conveyed away, is obvi- ubi sup. 
 ously inadequate.
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 653 
 
 [Yet if judgment be recovered against a husband and wife 
 for the contract, nay, even for the personal misbehaviour (b) 
 of the wife during her coverture, the capias shall issue 
 against the husband only.] 
 
 The writ of capias ad satisfaciendum cannot in general 
 be executed on a Sunday (c), nor does it authorize the she- 
 riff' to break open the house where the party is found (d). 
 
 [The writ of capias ad satisfaciendum is an execution of 
 the highest nature, inasmuch as it deprives a man of his 
 liberty till he makes the satisfaction awarded ; and, there- 
 fore, when a man is once taken in execution under this 
 writ no other process can be sued out against his lands or 
 goods. Only by statute 21 Jac. I. c. 24, if the defendant 
 dies (e) while charged in execution upon this writ, the plain- 
 tiff may, after his death, sue out a new execution against 
 his lands, goods or chattels. The writ is directed to the 
 sheriff, commanding him to take the body of the defendant 
 and have him at Westminster immediately after the execu- 
 tion thereof, to make the plaintiff satisfaction for his de- 
 mand {f). And if he does not then make satisfaction, he 
 must remain in custody till he does (g\\ or till he is other- 
 wise lawfully discharged as an insolvent (Ji). 
 
 [If a capias ad satisfaciendum is sued out, and a non est 
 
 Ooj6 
 
 (b) Cro. Car. 513. 
 
 (c) Arch. Pr. by Chitty, 548, 8th 
 ed. 
 
 (d) lb. p. 549 ; 5 Rep. 92. 
 
 (e) As to the disposal of the body 
 of a defendant dying in custody un- 
 der a ca. sa., see Queen v. Fox, 2 Q. 
 B. 246. 
 
 (/) As to the duty and the re- 
 sponsibility of the sheriff in exe- 
 cuting it, see Morrish v. Murray, 13 
 Mee. & W. 52 ; Howden v. Stand- 
 ish, 6 C. B. 520. 
 -f- (g) A written order, however, un- 
 der the hand of the attorney in the 
 
 cause, by whom the capias was issued, 
 will justify the sheriff or gaolor in 
 discharging him, unless written no- 
 tice to the contrary shall have been 
 given to the sheriff or gaolor by the 
 creditor ; but such discharge shal 1 
 be no satisfaction of the debt, unless 
 made by the authority of the creditor. 
 15 & 16 Vict. c. 76, s. 126. V 
 
 (h) As to the law of insolvency, 
 see vol. ii. p. 158. Et vide as to 
 insane prisoners, 1 & 2 Vict. c. 110, 
 ss. 102, 103. And as to prisoners and 
 proceedings against them generally, 
 Reg. Gen. Hil. T. 1853, r. 123-129.
 
 654 BOOK V. OF CIVIL INJURIES. 
 
 [inventus is returned thereon, the plaintiff may sue out a 
 c^eJ> process against the bail, if any were given (i), who, we may 
 == ==s ' remember, stipulated in this triple alternative, that the de- 
 fendant should, if condemned in the suit, satisfy the plain- 
 tiff his debt and costs, or that he would surrender himself 
 a prisoner, or that they would pay it for him. As there- 
 fore the two former branches of the alternative are neither 
 of them complied with, the latter must immediately take 
 place (k). In order to which, a writ of scire facias may be 
 sued out against the bail, commanding them to show cause 
 why the plaintiff should not have execution against them 
 for his debt and damages.] And on such writ, if they show 
 no sufficient cause, and the defendant does not surrender 
 himself (/) within the period prescribed by the practice of 
 the courts (m) in this particular, the plaintiff may have 
 judgment and execution against the bail (n). It is also 
 r> fcj /^«^ZJn the election of the plaintiff to proceed by action of debt 
 against the bail on their recognizance. 
 
 A capias ad satisfaciendum might, until lately, issue for 
 a judgment debt of any amount. But by 7 & 8 Vict. c. 96, 
 s. 58 (o), it was enacted, that no person should be charged 
 or taken in execution on a judgment obtained in any court, 
 p superior or inferior, for a debt not exceeding 20/. exclusive 
 of the costs recovered by the judgment; subject, however, 
 to this proviso, that where such debt should appear to the 
 judge trying the cause (being a judge of the superior courts 
 
 (0 Vide sup. p. 570. 1853, r. 74, 75. 
 
 (k) Lutw. 1269—1273. (,,) Even before this statute it had 
 
 (/) Lush's Prac. 663. been provided by 48 Geo. 3, c. 123, 
 
 (m) See 1 Arch, by Chitty, 489, t i iat a debtor in execution for a debt 
 
 504 ; Sanderson v. Brown, 7 A. & E. not exceeding 20/. might, after a 
 
 26 1- year's imprisonment, on application 
 
 (n) As to the form and course of t0 tlle court in which the judgment 
 
 proceeding on the writ of scire facias was recovered, obtain the immediate 
 
 in this and in several other cases, see discharge of his person. See Reg. 
 
 15 & 16 Vict. c. 76, s. 132 ; as to Gen . H il. T. 1853, r. 129. 
 ra. sa. against bail, Reg. Gen. Hil. T.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 655 
 
 or a barrister or attorney) to have been incurred under 
 false pretences, or with a fraudulent intent, or without a 
 reasonable assurance of being able to pay or discharge 
 the same, it should be lawful for such judge to order the 
 defendant to be taken and detained in execution upon such 
 judgment as if the act had not passed. And it has been 
 since provided by 8 & 9 Vict. c. 127, and 10 & 11 Vict, 
 c. 102, s. 2, that judgment debtors to such extent as above 
 mentioned may be summoned before the Insolvent Court in 
 London, or the County Court for the district in the country ,_, 
 (as the case may require), and thereupon be ordered to pay y___J_2^ 
 the debt by instalments or otherwise ; and farther, that in ^-^»- 
 
 case of their non-compliance with such order, or of its ap- 
 pearing to the court that they have been guilty of fraud in 
 contracting the debt, or of having contracted it without 
 reasonable prospect of being able to pay the same, they 
 may be committed to prison for forty days, and the impri- 
 sonment under such committal shall not operate in satis- 
 faction or discharge of the debt (p). 
 
 2. [The next species of execution is against the goods and V 
 chattels] of the party against whom the judgment is reco- 
 vered, [and is called a writ of fieri facias, from the words 
 in it, where the sheriff is commanded quod fieri facias de 
 bonis, that he cause to be made of the goods and chattels 
 of the party, the sum or debt recovered. This lies as well 
 against privileged persons, peers, &c, as other common 
 persons ; and against executors or administrators with re- 
 gard to the goods of the deceased (7). The sheriff may not 
 break open any outer doors (r), to execute this writ : but 
 
 -^- (p) 8 & 9 Vict. c. 127, s. 3. See the same provision that the imprison- 
 
 Kinning's case, 10 Q. B. 730 ; 4 C. ment shall not satisfy or discharge r , 
 
 B. 507 ; Bowdler's case, 12 Q. B. the debt. 
 
 612. The like period of imprison- (q) As to taking in execution goods 
 
 ment in the like cases may be of which the defendant is merely a 
 
 awarded, as we have seen, (vide sup. trustee, vide Fenwick v. Laycock, 2 
 
 p. 385,) in the new county courts, in Q. B. 108. 
 
 respect of debts originally sued for (r) 5 Rep. 92. 
 in that court; and here also there is 
 
 j£
 
 656 BOOK V. — OF CIVIL INJURIES. 
 
 [must enter peaceably; and may then break open any inner 
 door in order to take the goods (s). And he may sell the 
 goods and chattels] of the party against whom the writ is 
 issued, including even his estate for years (which is a chattel 
 real (t) ), or his growing crops (which are in the nature of 
 personalty (u) ), [till he has raised enough to satisfy the 
 judgment.] This, however, is subject to such restrictions 
 as the law has deemed it reasonable to impose for the pro- 
 tection of landlords. For, first, by 8 Anne, c. 14, the sheriff 
 cannot lawfully sell off goods lying upon any premises 
 demised to a tenant, unless the landlord be first paid his 
 rent due before the execution, to the extent of one year's 
 arrears (x); and, secondly, by 56 Geo. III. c. 50, no sheriff 
 shall carry off, or sell for the purpose of being carried off, 
 any straw, hay, manure or the like from any lands let to 
 farm, in any case where by the covenants or agreements in 
 the lease the carrying off of the same is prohibited between 
 landlord and tenant (though such produce may be lawfully 
 sold to any person who will agree, in writing, to use and 
 expend the same upon the lands, according to the obliga- 
 tion of the tenant) ; and lastly, by 14 & 15 Vict. c. 25, s. 2, 
 in case the growing crops of a tenant are seized and sold in 
 execution by the sheriff, they shall, nevertheless, be liable 
 so long as they remain on the lands, and where there is no 
 other sufficient distress, to be distrained upon for rent be- 
 coming due after such seizure and sale. At common law, 
 
 (s) Palm. 54 ; Pugh v. Griffiths, have any claim or lien upon any 
 
 7 A. & E. 827; Morrish v. Murray, goods taken in execution under the 
 
 13 Mee. & W. 52. process of any court of law, for more 
 
 (t) 8 Rep. 171 ; vide sup. vol.i. p. than four weeks' arrears of rent ; and 
 
 269, 270. if such tenement shall be let for any 
 
 (u) Vide sup. vol. ii. 217. other term less than a year, the land- 
 
 (x) Riseley v. Ryle, 11 Mee. & lord shall not have any such claim 
 W. 17 ; Smallman v. Pollard, 6 or lien for more than the arrears of 
 Man. & G. 1001; Cocker v. Mus- rent accruing during four such terms 
 grove and another, 9 Q. B. 223. It or times of payment. See, in re- 
 is however provided, by 7 & 8 Vict. ference to these provisions, Wharton 
 c. 96, s. 67, that no landlord of any v. Naylor, 12 Q B. 673. 
 tenement let at a weekly rent shall
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 657 
 
 moreover, no personal chattel could be taken under a fi. fa. 
 that was not in its nature properly capable both of manual 
 seizure and sale. But now by 1 & 2 Vict. c. 110, s. 12, it is 
 enacted that the sheriff may upon a fieri facias (whether 
 sued out of a superior or inferior court) take any money, bank 
 notes, bills of exchange, or other securities for money, belong- 
 ing to the party against whom the writ is sued out, and may 
 sue upon such bills or securities in his own name, paying- 
 over the money to be recovered thereon to the creditor. It 
 is to be observed, that [if part only of the debt be levied on 
 a fieri facias, the plaintiff may have a capias ad satisfaci- 
 endum for the residue (y).] And farther, that if the sheriff 
 is unable to sell the goods at a reasonable price, he may 
 make his return upon the writ, that they remain in his 
 hands for want of buyers, upon which the party suing out 
 the execution may proceed to take out a writ of venditioni 
 exjionas; and under this latter writ the sheriff is bound to 
 sell them for the best price, however inadequate, that can <y- 
 be obtained (z). 
 
 f 3. [A third species of execution is by writ of levari fa- fflz^pf- 
 cias (a), which affects a man's goods and the profits of his 
 lands, by commanding the sheriff to levy] the judgment 
 debt on the lands and goods of the party against whom it 
 is issued, [whereby the sheriff may seize all his goods and 
 receive the rents and profits of his lands, till satisfaction be 
 made (b). Little use is now made of this writ, the remedy 
 by elegit, which takes possession of the lands themselves, 
 being much more effectual. But of this species is a writ 
 of execution, proper only against ecclesiastics, which is 
 given when the sheriff, upon a common writ of execution 
 sued, returns nulla bona, and that the party is a beneficed 
 clerk, not having any lay fee.] In this case, inasmuch as 
 the bona ecclesiastica are not to be touched by lay hands, a 
 
 (y) 1 Roll. Ab. 904; Dennis v. (a) As to this writ when issued 
 
 Wells, Cro. Eliz. 344. out of a hundred court, see Hum- 
 
 (s) Keightley v. Birch, 3 Camp. phries v. Longmore, 6 C. B. 363. 
 
 521. (b) Finch, L. 471. 
 
 VOL. III. U U
 
 653 
 
 BOOK V.— OF CIVIL INJURIES. 
 
 writ goes to the bishop of the diocese, in the nature of a 
 levari or fieri facias (c), commanding him to enter into the 
 benefice, and take and sequester the same into his posses- 
 sion, and hold the same until he shall have levied the 
 amount of the judgment out of the rents, tithes, and profits 
 thereof (d), [and thereupon the bishop sends out a seques- 
 tration of the profits of the clerk's benefice, directed to the 
 churchwardens, to collect the same,] and after providing 
 thereout for the offices of the church, to pay over the sur- 
 plus to the judgment creditor, until the full sum due to him 
 be raised (e). 
 
 Y 4. [The fourth species of execution is by the writ of 
 elegit (f), which is a judicial writ given by the Statute of 
 Westminster the second, 13 Edward I. c. 18.] Before that 
 statute [a man could only have satisfaction of goods, chat- 
 tels, and the present profits of lands, by the two last men- 
 tioned writs of fieri facias or levari facias, but not the 
 possession of the lands themselves, which was a natural 
 consequence of the feudal principles, which prohibited the 
 alienation, and of course the encumbering, of the fief with 
 the debts of the owner (g). And when the restriction of 
 
 (c) Reg. Orig. 300 ; Judic. 22 ; 2 
 Inst. 4. 
 
 (d) Harding v. Hall, 10 Mee. & 
 W. 42. Or the writ may command 
 the hishop to make of the ecclesias- 
 tical goods of the party within his 
 diocese the amount for which the 
 judgment is recovered. The latter 
 form of writ is called nji.fa. tie bonis 
 eccltsiuslicis ; the form in the text, a 
 levari or sequestravi facias. (See 
 Dawson v. Symonds, 12 Q. B. 830.) 
 Arch. Pr. by Chit. (8th ed.) 1118. 
 
 (e) 2 Burn, E. L. 329; Pack v. 
 Tarpley, 9 A. & E. 4G8 ; Harding v. 
 Hall, ubi sup. ; Watkins v. Tarpley, 
 17 L. J. (Q. B.) 47. As to the ap- 
 pointment of a curate to the benefice, 
 pending its sequestration, vide 1 & 
 
 2 Vict. c. 106, s. 99. As to seques- 
 tration by the assignees of an insol- 
 vent debtor, being a beneficed cler- 
 gyman or curate, 1 & 2 Vict. c. 110, 
 s. 55. As to the remedies of seques- 
 trators, see also 12 & 13 Vict. c. 67. 
 
 (/) As to this writ, see Sherwood 
 v. Clark, 15 Mee. &. W. 764. The 
 form of the writ is newly modelled 
 pursuant to the statute of 1 & 2 
 Vict. c. 110, by Reg. Gen. H. T. 3 
 Vict. 
 
 (g) But in case of a debt to the 
 king, it appears by Magna Charla, c. 
 8, that it was allowed by the com- 
 mon law for him to take possession 
 of the lands till the debt was paid. 
 For he being the grand, superior, 
 and ultimate proprietor of all landed
 
 CHAP. X. OF THE PROCEEDINGS IN AN ACTION. 659 
 
 [alienation began to wear away, the consequence still con- 
 tinued, and no creditor could take the possession of lands, 
 but only levy the growing profits, so that if the defendant 
 aliened his lands, the plaintiff' was ousted of his remedy. 
 The statute, therefore, granted this writ (called an elegit, 
 because it is in the choice or election of the judgment 
 creditor, whether he will sue out this writ or one of the 
 former), by which the judgment debtor's goods and chat- 
 tels are not sold, but only appraised : and all of them (ex- 
 cept oxen and beasts of the plough) are delivered to the 
 judgment creditor at such reasonable appraisement and 
 price in satisfaction of his debt.] Supposing the goods to 
 be not sufficient (Ji), then, according to the law as it stood 
 from the time of the passing of the Statute of Westminster 
 until the commencement of the present reign, [the moiety 
 or one half of the freehold lands which he had at the time 
 of the judgment given (i), whether held in his own name 
 or by any other in trust for him (A),] were also to be deli- 
 vered to the judgment creditor, to hold till out of the rents 
 and profits thereof the debt were levied, or till the judg- 
 ment debtor's interest were expired. But now by 1 & 2 
 Vict. c. 110, it is provided, that upon an elegit the sheriff 
 shall deliver execution of all lands, tenements, and heredi- 
 taments (including those of copyhold or customary tenure), 
 which the judgment debtor, or any person in trust for him, 
 shall have been seised or possessed of at the time of enter- 
 ing up the judgment, or at any time afterwards, or over 
 which such person shall at the time of entering up such 
 judgment, or at any time afterwards, have any disposing 
 power which he might, without the assent of any other 
 person, exercise for his own benefit. [This execution or 
 seizing of lands by elegit is of so high a nature that after 
 
 estates, might seize the lands into his ceeded from his own command. 3 Bl. 
 
 own hands, if anything was owing Com. 419. 
 
 from the vassal, and could not he (h) 2 Inst. 395. 
 
 said to he defrauded of his services (i) Ibid. 
 
 when the ouster of the vassal pro- (k) 29 Car. 2, c. 3. 
 
 u u. 2
 
 660 BOOK V. OF CIVIL INJURIES. 
 
 [it the body of the defendant cannot be taken ; but if exe- 
 cution can only be had of the goods because there are no 
 lands, and such goods are not sufficient to pay the debt, a 
 cajrias ad satisfaciendum may then be had after the elegit, 
 for such elegit is in this case no more than a fieri facias (I). 
 So that body and goods may be taken in execution, or land 
 and goods, but not body and land too, upon any judgment 
 between subject and subject,] in which the crown is not 
 concerned (m). 
 
 Besides these writs of execution, the judgment creditor 
 is enabled, by the 1 & 2 Vict. c. 110, and 3 & 4 Vict. c. 82, 
 to resort to another mode of proceeding to enforce payment 
 out of a species of property which none of these writs can 
 in their nature conveniently reach. For, on the application 
 of any creditor, who has entered up judgment in one of the 
 superior courts at Westminster, a judge of any such court 
 in chambers may order that the property of the debtor in 
 government stock, or in the stock of any public company 
 in England, corporate or otherwise, whether standing in his 
 own name or the name of any person in trust for him, shall 
 stand charged with the payment of the amount for which 
 judgment shall have been recovered, with interest (n); pro- 
 vided, however, that no proceedings shall be taken in order 
 to have the benefit of such charge, till after six calendar 
 months from the date of the order; and farther, that if the 
 judgment creditor, after obtaining such charge, or any other 
 charge or security, under the powers of that act, shall after- 
 wards, and before the realization of the property, take the 
 person of the debtor in execution upon the same judgment, 
 
 (/) Hob. 58. was directed. 
 
 (m) By 2 Will. 4, c. 39, it shall be (n) See Brown v. Bamford, 9 Mee. 
 
 lawful in term time for the court out & W. 42 ; Churchill v. Bank of Eng- 
 
 of which any writ of ca. sa.,fi. fa. or land, 11 Mee. & W. 323; Rogers 
 
 elegit, shall have issued, to make v. Holloway, 5 Man. & G. 292; 
 
 rules, and for a judge in vacation to Witham v. Lynch, 1 Exch. 391; 
 
 make orders for the return of any Robinson v. Burbidge, 1 L. M. & P. 
 
 such writ by the sheriff to whom it 94 ; Graham t;. Connell, ib. 438.
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 661 
 
 he shall be deemed to have relinquished his charge or se- 
 curity. 
 
 [These are the methods which the law of England has 
 pointed out for the execution of judgments] in their ordinary- 
 course ; [and when the demand of the judgment creditor 
 is satisfied, either by the voluntary payment of the debtor, 
 or by this compulsory process or otherwise, satisfaction 
 ought to be entered on record (o), that the debtor may not 
 be liable to be hereafter harassed a second time on the same 
 account.] 
 
 And here our summary of the proceedings in a suit at 
 law is brought to its proper close. But before we conclude 
 the chapter it is right to take notice of certain supplemen- 
 tary remedies, partly in the nature of an action, partly of 
 an execution (p), which often follow upon or are incidental 
 to a suit. One of these is the writ of revivor, the other the 
 writ of scire facias, to which last we have already had oc- 
 casion in former places to make some incidental reference. 
 
 i- 
 
 I. The writ of revivor is always ancillary to the judgment 
 in an action, resort being had to it when the circumstances 
 are such that the law no longer allows the judgment to be /^f_ e ^*^ 
 enforced by a writ of execution as of course, but deems it r== 
 reasonable to afford the party charged an opportunity of 
 being heard before execution issues. Formerly the writ 
 used under such circumstances was a scire facias ; but in 
 lieu of this a writ of revivor (being indeed substantially the 
 same thing, though under another name,) has been substi- 
 tuted by the statute 15 & 16 Vict. c. 76 (<y), which also pro- 
 vides that this latter writ shall be in a form prescribed, and 
 shall be directed to the defendant himself, and proceeded 
 upon in the same manner as a writ of summons in an ordi- 
 nary action (r). 
 
 The circumstances under which a writ of revivor issues 
 
 (o) As to entry of satisfaction on (p) Bac. Ab. .Seize Facias (A). 
 
 the roll, see Reg. Gen. Hil. T. 1853, (q) Sect. 129. 
 
 r. 80. {>■) Sect. 131.
 
 062 BOOK V. — OV CIVIL INJURIES. 
 
 are always of a kind connected either with lapse of time or 
 change of parties. 
 
 1. As to lapse of time. It was the rule of the common 
 law that all writs of execution [must be sued out within a 
 year and a day after the judgment is entered], for otherwise 
 a presumption was deemed to arise that the judgment was 
 satisfied. But after the year and clay the claimant was still 
 allowed (and originally by provision of the Statute of West- 
 minster the second, 13 Edw. I. c. 45) to issue a. scire facias, 
 calling on the defendant to show cause why execution 
 should not issue. This period of a year and a day is now 
 extended by the statute of 15 & 16 Vict., just mentioned (r), 
 to six years. But after the expiration of the six years, ex- 
 ecution, as of course, is still (as formerly after the expiration 
 of the year and day) disallowed. The party desiring to 
 have execution must either apply to the court or a judge 
 for leave to enter a suggestion on the roll, to the effect that 
 it manifestly appears to the court that he is entitled to ex- 
 ecution (s) ; (which suggestion the court or judge, upon 
 hearing both parties, will allow to be entered, and order 
 execution accordingly, supposing the right to be manifest) ; 
 — or otherwise must have recourse to a writ of revivor, or 
 to an action on the judgment (t). The writ of revivor, if 
 the judgment be less than ten years old, will be issued as a 
 matter of course ; if more than ten years old, only on a rule 
 of court or judge's order; if more than fifteen, only after a 
 rule to show cause. 
 
 2. As to change of parties (u). This may occur, 1. in 
 the case of death. And here the rule formerly was, that if 
 either plaintiff or defendant died before final judgment, the 
 action would abate ; and that if either died after the judg- 
 ment and before it was satisfied, a scire facias by or against 
 the representatives of the party deceased (as the case might 
 
 (/■) 15 & 16 Vict. c. 76, s. 128. Saund. by Wms. 72 b, g ; Bosanquet 
 
 (s) Sect. 129. v. Ransford, 11 A. & E. 520; Whit- 
 
 (t) Sect. 130. tenbury v. Law, 6 Bing. N. C. 345. 
 («) See Underbill v. Devereux, 2
 
 CHAP. X.— OF THE PROCEEDINGS IN AN ACTION. 663 
 
 be) was requisite in order to enforce the judgment. By 17 
 Car. II. c. 8, however, it was provided, that the death of 
 neither party between verdict and judgment should abate 
 the suit, so as the judgment were entered within two terms 
 after the verdict; but that the suit might be revived by scire 
 facias (x); and by 8 & 9 Will. III. c. 11, that where a sole 
 plaintiff or defendant died after interlocutory and before 
 final judgment (and the right of action survived (?/),) the 
 plaintiff or his representatives might proceed by scire facias 
 against the defendant or his representatives (as the case 
 might be) ; and that where one of several plaintiffs or de- 
 fendants died at any stage of the suit (and the right of ac- 
 tion survived), it might, even without a scire facias, be 
 prosecuted by the surviving plaintiff or plaintiffs against 
 the surviving defendant or defendants, no more being re- 
 quired in that case than to enter a suggestion of such death 
 upon the record (z). And now by 15 & 16 Vict. c. 76, 
 it is enacted, that the death of a plaintiff or defendant shall 
 in no case cause the action to abate, but that the proceed- 
 ings (supposing the right of action to survive) shall be con- 
 tinued (a) ; — in the case of the death of a sole plaintiff or sole 
 defendant, or of one of several plaintiffs or defendants, by 
 a suggestion of the fact on the record (b); and in the case 
 of the death of the plaintiff or defendant after an inter- 
 locutory and before final judgment, by a writ of revivor at 
 suit of the plaintiff or his representatives, against the de- 
 fendant or his representatives, as the case may be (c). 2. In 
 the case of marriage. Where a female plaintiff or defendant 
 married before judgment was obtained, the action would 
 formerly in general abate (d); and if the marriage was after 
 judgment and before execution, a scire facias, at suit of or 
 against the husband and wife (as the case might be), was 
 
 (x) See Earl v. Brown, 1 Wils. 302 ; (a) Sect. 135. 
 
 Wright v. Madocks, 8 Q. B. 119. (b) Sects. 137, 138. 
 
 (y) Vide sup. p. 458. (c) Sect. 140. 
 
 (z) See Rolt v. Mayor of Graves- (d) Walker v. Goslin, 11 Mee. & 
 
 end, 7 C. B. 777. W. 78.
 
 664 BOOK V. — OF CIVIL INJURIES. 
 
 requisite in order to enforce the judgment (<?). But by the 
 statute just mentioned, the action shall no longer abate, 
 but be continued to judgment ; and the judgment and execu- 
 tion, against a female defendant under such circumstances, — 
 may either be against her alone, or (by suggestion or writ of 
 revivor pursuant to the act, against the husband and wife 
 jointly) ; or if the judgment be in favour of a female plain- 
 tiff so circumstanced, — execution may be issued by au- 
 thority of the husband, and without any suggestion or writ 
 of revivor (f). 3. In the case of bankruptcy or insolvency. 
 Where a plaintiff became bankrupt or insolvent after he 
 had obtained judgment and before execution, it was for- 
 merly requisite, in order to obtain execution, that a scire 
 facias should issue in the name of his assignees (g). But 
 by the same statute, the course of proceeding is now either 
 to sue out a writ of revivor or apply for leave to enter a 
 suggestion of the kind already described (A). 
 
 II. As to the writ of scire facias, it is used in a variety 
 of instances in the law — in some of them as an independent 
 and original proceeding (i), in others as supplementary to 
 an action, in which case it is sued out of the court in which 
 that action was brought. In its latter application, indeed, 
 it is now much more confined than formerly, being sup- 
 planted (as before remarked) by a writ of revivor, in all 
 those cases in which it becomes necessary to revive a judg- 
 ment, by reason either of lapse of time or change of par- 
 ties. It is still, however, the proper writ in several other 
 
 (e) Underbill c. Devereux, 2Saund. tain for the benefit of the creditors, 
 by Wins. 72 k. unless the assignees shall refuse to 
 
 (f) 15 & 16 Vict. c. 76, s. 141. continue the action and give security 
 
 (g) Winter v. Kretchman, 2 T. R. for the costs. 
 
 45. (i) Among these is the case of 
 
 (h) 15 & 16 Vict. c. 76, s. 129. scire facias for repealing a patent ; as 
 
 See also the provision in sect. 142, to which, vide Smith v. Upton, 6 
 
 that the bankruptcy of the plaintiff Man. & G. 251 ; 12 & 13 Vict. c. 
 
 shall not be pleaded in bar in any 109, s. 29. 
 action which the assignees may main-
 
 CHAP. X. — OF THE PROCEEDINGS IN AN ACTION. 665 
 
 cases of a supplementary kind to which the writ of revivor 
 has no application ; for example, that of proceeding against 
 bail on their recognizance, or of proceeding against mem- 
 bers of a joint stock company on a judgment recovered 
 against their public officer ( j). But where in any case a 
 scire facias still issues out of the superior courts of common 
 law, it is now provided, in general, that it shall be directed 
 and proceeded upon in like manner as a writ of revivor (k). 
 We need only add, therefore, on this subject, that it is a 
 settled rule as to a scire facias (and the same rule applies, 
 it is presumed, to a writ of revivor), that the defendant in 
 such a proceeding, when supplementary to an action, shall 
 never be allowed to plead any matter which he had an op- 
 portunity of pleading to that action (Z). For the object of 
 the proceeding is not to afford him the means of bringing 
 the original judgment into question, but of showing, if he 
 can, that some matter has occurred since the judgment was 
 given which entitles him to be relieved from the execution. 
 
 (j) See 15 & 16 Vict. c. 76, s. 
 132, etsup. p. 134, n. (s). 
 
 (k) Sect. 132. This section enu- 
 merates a variety of cases of this 
 description ; and the enumeration 
 seems to comprise nearly the whole 
 of those in which a scire facias may 
 now issue out of the courts in ques- 
 tion. As to costs on a scire facias, 
 
 see 8 & 9 Will. 3, c. 11, s. 3 ; 3 & 4 
 Will. 4, c. 42, s. 34. As to plaintiff's 
 moving to quash his own writ of 
 scire facias or revivor, see Reg. Gen. 
 Hil. T. 1853, r. 78. 
 
 (/) Underhill v. Devereux, 2 Saund. 
 by Wms. 72 t. ; Baylis v. Hayward, 4 
 A. & E. 256. See Fowler v. Rickerby, 
 2 Man. & G. 760.
 
 666 BOOK V. — OF CIVIL INJURIES. 
 
 CHAPTER XI. 
 
 OF THE PROCEEDINGS IN SOME PARTICULAR 
 ACTIONS. 
 
 Having now taken a compendious though comprehensive 
 view of the course of proceeding in actions in general it 
 becomes necessary to advert to some varieties upon that 
 course, exhibited in the case of particular actions, as to 
 which however it is to be understood that their deviation 
 from the regular system is confined in general to the in- 
 stances we are about to specify, and that in other respects 
 they are conducted in conformity to that system. The 
 particular actions in question are those of dower, quare im- 
 pedit, replevin, and ejectment. 
 
 I. We will begin then with the action of dower, intending 
 by this, the principal species of dower unde nihil habet ; for 
 as regards the writ of right of dower it is so entirely out of 
 use as to supersede the necessity of giving any account of 
 its practice, and it is enough to say of it that, supposing 
 such an action to be brought, it would, as a real action, 
 vary in certain respects from the ordinary course of proceed- 
 ing in an action personal, as delineated in the last chapter, 
 and be more nearly analogous to that which we are now 
 about to describe (a). 
 
 With respect to dower unde nihil habet (/;) its proceedings 
 are as follows (c). 
 
 (a) Some farther account of the (c) A full description of these will 
 
 writ of right in dower will be found be found in William v. Gwyn, 2 
 
 in Roscoe on Real Actions, 29. Saund. by Wms. 43 — 45 a. 
 
 (ft) Vide sup. pp. 451, 477, 487.
 
 CH. XI. OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 667 
 
 It commences not by summons, but by original writ, 
 this being the method invariably 'pursued in that antient 
 class of real actions (including actions mixed) of which it 
 is one of the few remaining species (d'). Of the nature of an 
 original writ some account has already been given (e) ; 
 and it has been shown, that it is sued out of the Court of 
 Chancery under the great seal, directed to the sheriff of 
 the county, and made returnable into the court in which 
 the action is intended to be brought. To this we may now 
 add, that both the original writ itself, and all subsequent 
 process founded upon it, must have fifteen days between 
 the teste and return (/). In dower (according to the prac- 
 tice that has immemorially prevailed in real actions) it must 
 be made returnable in the Common Pleas, and in no other 
 court. After it has been sued out and delivered to the 
 sheriff, he directs his bailiff to summon the defendant (or 
 tenant, as he is called in a real action) ; which is accord- 
 ingly done by sticking up and leaving on the premises out 
 of which the dower is claimed (g), the form of a written 
 summons. But to secure*notice to the tenant it is enacted 
 by 31 Eliz. c. 3, s. 2, that after every summons in any real 
 action, fourteen days at least before the return of the ori- 
 ginal writ, proclamation of the summons shall be made on 
 a Sunday immediately after divine service and sermon, if 
 any sermon there be, but if none, then forthwith after 
 divine service, at or near to the most usual door of the 
 
 (d) The new form of process pro- 1 Will. 4, c. 3, s. 2, all writs that 
 vided by the Common Law Pro- had been usually returnable on ge- 
 cedure Act, 15 & 16 Vict. c. 76, ap- neral return days may be made re- 
 plies to personal actions only, sect. 2. turnable on the third day exclusive 
 
 (e) Vide sup. p. 562. before the commencement of each 
 (/) It was also formerly necessary term, or on any day (not being Sun- 
 that, an original writ and all subse- day) between that day and the third 
 quent process thereon should be day exclusive before the last day of 
 made returnable on a general return- the term. 
 
 day, there being several days in the (g) See Garrard v. Tuck, 8 C. B. 
 
 term so denominated by way of dis- 231. 
 tinction from the rest. But now, by
 
 668 BOOK V. OF CIVIL INJURIES. 
 
 parish church or chapel of the parish or town where the 
 lands lie. And now hy 7 Will. IV. & 1 Vict. c. 45, such 
 proclamation (like all others theretofore made in churches) 
 shall be reduced to writing or print, and, instead of being 
 proclaimed in church, shall be affixed, immediately before 
 divine service, on or near the church doors. 
 
 On the return of the original writ into the Court of 
 Common Pleas, the tenant is entitled to cast an essoign; 
 that is, allege an excuse (whether in fact there be any 
 ground for it or not) for his failing to appear (h), which 
 leads necessarily to an adjournment of the cause for a cer- 
 tain period. If after this the tenant fails to appear on the 
 day given by the adjournment, or if he has failed to appear 
 at the return of the writ and cast no essoign, the plaintiff 
 or (as she is called in dower) demandant is to sue out a 
 farther writ of process called a grand cape (i), which com- 
 mands the sheriff to take the third part of the lands in 
 which dower is claimed into the king's (or queen's) hands, 
 and summon the tenant to answer on such a day for his 
 default. If on the return of the grand cape there is no 
 appearance, the demandant is entitled to judgment; but 
 if, on the other hand, the tenant appears, the demandant 
 waives the default and accepts the appearance. In this 
 case, or supposing the tenant to appear on the return of 
 the original, and to cast no essoign, or to have appeared, 
 after casting an essoign, on the day of adjournment given, 
 the demandant is then to count (which is equivalent to de- 
 claring in an action personal or mixed (k) ), and by her 
 
 (h) As to essoigns, see Twining v. tituling the pleadings (vide sup. p. 
 
 Lowndes, 10 Bing. 65. 572 >, do not apply to dower and quare 
 
 (i) In case of default after appear- impedit, and that in these the plead- 
 
 ance a writ of petit cape issues instead ings are consequently to be intituled 
 
 of a grand cape, but the difference is according to the form universally in 
 
 otherwise little more than nominal. use in former times, viz. thus, — "In 
 
 Roscoe, 282. the Queen's Bench" [or "Common 
 
 (fc) It would seem that the pro- Pleas," or " Exchequer"], 
 
 visions of 15 & 16 Vict. c. 76, s. 54, Term, in the year of Queen 
 
 with respect to the manner of in- Victoria."
 
 CH. XI. OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 669 
 
 count is to make demand in general terms of the third 
 part of the lands of her deceased husband. 
 
 The tenant is then, as in other actions, to plead or demur, 
 and his plea may be either dilatory or in bar ; and his plea 
 in bar must either traverse, or confess and avoid. Among 
 the pleas in bar peculiar to this action, is that of ne unques 
 seisie que dower, viz. that the demandant's husband was 
 never seised of such an estate in the lands in question as 
 could give the demandant a legal claim to dower ; another 
 is ne unques accouple en loial matrimonie, viz. that the de- 
 mandant and her supposed husband were never joined in 
 lawful matrimony; another, that the husband is still living; 
 another, that the demandant eloped from her husband and 
 lived in adultery with another person (Z); and another is 
 tout temps prist, viz. that from the death of the husband 
 the tenant has always been and still is ready to render 
 the demandant her dower, and rendereth the same in to the 
 court (m). The replication and subsequent pleadings follow 
 in the same manner as in a personal action. To the plea of 
 ne unques accouple, the demandant may reply that she was 
 married at such a place, in such a diocese ; on which will 
 follow a trial by certificate (n) ; the court sending to the 
 bishop of that diocese to certify whether there was a mar- 
 riage or not. To the plea that her husband is still living, 
 she may reply his death ; and the issue thereon shall be tried 
 by witnesses (o); but all other issues are triable by jury (p), 
 and the practice as to summoning the jury and subsequent 
 proceedings is in general the same as in personal actions. 
 
 At the common law there were no damages or costs in 
 dower; but by the statute of Merton, 20 Hen. III. c. 1, 
 it is enacted, that if a widow shall recover her dower of 
 the lands whereof her husband died seised, the tenant shall 
 
 (/) Hetherington v. Graham, 6 (n) As to trial by certificate, vide 
 
 Bing. 135. sup. p. 586. 
 
 (m) As to this plea, see Sarah (o) As to the trial by witnesses, 
 
 Watson, dem. John Watson, ten. 20 vide sup. p. 589. 
 
 L. J. (Q. B.) 25. (p) Roscoe, 222, 300.
 
 670 BOOK V. OF CIVIL INJURIES. 
 
 yield damages, that is to say, the value of the dower from 
 the time of the death of her husband until the day she 
 shall have judgment to recover seisin ; and by the statute 
 of Gloucester, 6 Edw. I. c. 1, which gives costs in all cases 
 where the party is entitled to damages, and by the subse- 
 quent statutes of 4 Jac. I. c. 3, and 8 & 9 Will. III. c. 11, 
 costs are now recoverable by the successful party (whether 
 demandant or tenant) in this action. If the jury find a 
 verdict for the demandant, they ought also to find, 1, that 
 her husband died seised, and also of what estate, and the 
 time of his death ; 2, the annual value of the land ; 3, the 
 amount of damages she has sustained by the detention of 
 her dower. And the judgment in this action, when given 
 for the demandant, is, that she recover seisin of a third part 
 of the tenements in demand, to be set forth by metes and 
 bounds, together with the damages and costs (q). --+* 
 
 II. Quare impedit (r) is also a real action, and conse- 
 quently commences, like the last, by original writ. The 
 original writ of quare impedit directs the sheriff to com- 
 mand the defendants who disturb the presentation (that is, 
 in general, the bishop, patron and clerk), to permit the 
 plaintiff to present a fit person (without specifying whom) 
 to such a vacant church which he claims to be in his gift, 
 and his presentation to which the defendants unjustly 
 hinder, and unless they so do, then that they appear in 
 court on such a day, to show why they hinder him(s). 
 
 (g) William v. Gwyn, 2 Saund. by " or any other clerk pending the suit, 
 
 Wms. 44 e. " he may have a prohibitory writ, 
 
 (r) See Tolson v. Bishop of Car- " called a ne admittas," and "if the 
 
 lisle, 3 C. B. 41 ; 5 C. B. 761; and "bishop doth, after the receipt of 
 
 the account given of this action, sup. " this writ, admit any person, even 
 
 pp. 451, 488, 510. "though the patron's right may have 
 
 (s) " Immediately on the suing out "been found in a jure patronatim, 
 
 " of the quare impedit," says Black- "then the plaintiff, after he has ob- 
 
 stone, " if the plaintiff suspects that " tained judgment in the quare impe- 
 
 " the bishop will admit the defendant " dit, may remove the incumbent, if
 
 CH. XI. — OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 67 1 
 
 The subsequent course, though partly agreeing, is yet in 
 some respects different from that in dower; for first, the 
 summons on the original is to be served on the defendants, 
 either personally or by fixing it to the church door of the 
 benefice to which the suit relates (0 ; secondly, no procla- 
 mation is required under the act of Elizabeth ; and lastly, 
 if the defendant do not either appear or cast an essoign at 
 the return of the original writ, or if after casting an essoign 
 he do not appear at the adjournment day, there issues, 
 instead of a grand cape, a writ of attachment, commanding 
 the sheriff to put the defendants by gages and safe pledges 
 to answer for their default ; and if no appearance be en- 
 tered in due time to this, then a writ of grand distress (u), 
 commanding the sheriff to distrain the defendants by all 
 their lands and chattels in his bailiwick, in order to compel 
 their Appearance. By common law this was a distress 
 infinite, that is, distringas after distringas was sued out, 
 and issues levied on each, until the defendants appeared (x) ; 
 but by the statute of Marlbridge, 52 Hen. III. c. 12, if the 
 defendants do not appear at the return of the first distringas, 
 the plaintiff shall have judgment by default(y). 
 
 " the clerk of a stranger, by scire quare impedit, he is removed by the 
 
 "facias, and shall have a special mere effect of the judgment in that 
 
 " action against the bishop, called a action. Ibid. 289, 290. And as to 
 
 " quare incumbravit, to recover the any person who has been admitted, 
 
 " presentation, and also satisfaction and is no party to the quare impedit, 
 
 " in damages for the injury done him it is said that he may be removed 
 
 "by incumbering the church with a (unless his title be good; by a writ 
 
 "clerk, pending the suit, and after of scire facias, founded on thejudg- 
 
 " the ne admittas received." — 3 Bl. ment in quare impedit. Ibid. 299. 
 
 Com. 248. The quare incumbravit, (t) Roscoe, 148 ; Arch. PI. 436 ; 
 
 however, being a real action, is now Searl v. Long, 2 Mod. 264; sed vide 
 
 abolished by 3 & 4 Will. 4, c. 27 ; the authorities cited Tyrrell v. Jen- 
 
 and it would seem that there is no ner, 6 Bing. 285, that personal service 
 
 necessity for a ne admittas, where all is not regular. 
 
 proper parties have been made de- (u) See Tyrrell v. Jenner, ubi sup. 
 
 fendants in the quare impedit ; for if (i) 2 Inst, 124; Arch. PI. 437. 
 
 the bishop be a defendant, no lapse (y) It is said, however, that before 
 
 can occur pendente brevi, Wats. C. L. execution can be awarded, the plain- 
 
 112 ; and if the clerk, then, though tiff must make title, as to which vide 
 
 he was admitted prior or pending the Arch. PI. 437.
 
 672 BOOK V. OF CIVIL INJURIES. 
 
 Supposing, on the other hand, the defendants to appear 
 to the process, the plaintiff is then to declare(z) ; and in 
 his declaration must show a title in himself or his ancestors, 
 or those under whom he claims, an actual presentation 
 under that title, and a disturbance before the action 
 brought (a). [Upon this, the bishop and the clerk usually 
 disclaim all title, save only the one as ordinary to admit 
 and institute, and the other as presentee of the patron, who 
 is left to defend his own right.] Indeed it was a rule at 
 the common law, that neither the ordinary nor clerk were 
 at liberty to plead to the right of patronage, as neither of 
 them had any thing therein ; but by 25 Edw. III. st. 3, 
 c. 7, the ordinary may now do so, provided he have himself 
 collated by lapse, and the clerk, if he have been collated or 
 presented and instituted (b) ; that is, they may respectively 
 defend their own right so to collate or be instituted. They 
 may each also plead certain dilatory pleas (c) ; or if they 
 mean to deny that they have obstructed the presentation, 
 they may each plead in bar the general issue ne disturba 
 pas(d); and as this does not deny the right of the plaintiff, 
 it entitles him, so far as these defendants are concerned, to 
 immediate judgment to recover his presentation ; though 
 he has also the option of maintaining, if he thinks fit, that 
 a disturbance has in fact been committed, which, if proved, 
 will give him a right to recover damages. The bishop may 
 also plead in bar, that the clerk presented by the plaintiff 
 was unfit, for want of learning or otherwise, to be insti- 
 tuted (e). The patron, also, is entitled to resort to certain 
 dilatory pleas (f), or may plead plenarty, viz. that the 
 
 (c) As to the time for declaration, Bing. 681 ; Roscoe, 231, 239, 241. 
 see Barnes v. Jackson, 1 Bing. N. C. (c) Com. Dig. Abatement. 
 
 545. (il) Colt v. Bishop of Coventry, 
 
 • («) Brickhead v. Archbishop of Hob. 193; R. i>. Bishop of Worcester, 
 
 York, Hob. 250. Vaughan, 58. 
 
 (/>) 7 Rep. 26 a; Elvis v. Arch- (e) Vide sup. p 27. 
 
 bishop of York, Hob. 392 ; Queen (/) Com. Dig. Abatement, H. 19, 
 
 and Middleton's case, 1 Leon. 45 ; H. 23. 
 Apperley v. Bishop of Hereford, 9
 
 CH. XI. OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 673 
 
 church has been full for six calendar months before the 
 issue of the original writ, by virtue of his own presenta- 
 tion (g) ; or may plead, like the ordinary and clerk, and with 
 the same effect, the general issue of ne disturba pas(k); 
 or may traverse the title alleged by the plaintiff in his 
 declaration. Here, however, this difference is to be ob- 
 served, that though, as a mere answer to the action, such 
 traverse is a sufficient plea, yet it may be often necessary 
 to go farther, for in a quure irnpedit both parties are in a 
 manner plaintiffs, and either of them entitled to a judg- 
 ment that he recover the presentation, and have a writ to 
 the bishop for the admission of his clerk : if, therefore, the 
 patron wishes to obtain a judgment of this description, and 
 not merely a judgment discharging him from the action, 
 (which will naturally be the case, unless he has presented, 
 and his clerk has been actually admitted,) he must, in 
 addition to the traverse, set forth some matter showing title 
 in hi m self (z). 
 
 The trial in quare iinpedit is in several instances by cer- 
 tificate (k), but in general by jury. And upon the failure 
 of the plaintiff at the trial in making out his title, the 
 defendant is put upon the proof of his, if title has been 
 asserted by his plea. If the right be found for the plain- 
 tiff, three farther points are also to be inquired into, — I. 
 Whether the church be full or not ; and if it be, upon 
 whose presentation it is full ; — 2. The yearly value of the 
 church ; — 3. Whether six calendar months have passed 
 
 (g) Stat. Westm. 2, c. 5, vide sup. ubi sup. ; R. v. Bishop of Worcester, 
 
 p. 508. A question is made in Ros- ubi sup. 
 
 coe, p. 234, as to the effect that the (/) Vaughan, 7, 8. 
 
 statute of 7 Anne, c. 18, lias had as (k) Vide sup. p. 586; "Roscoe, 
 
 to a plea of plenarty. It is laid 503 ; where it is said that not only 
 
 down that the cleik also may plead the issue on the ability of the plain tiff's 
 
 plenarty, but then he must show that c/<?rA:, if the clerk be alive, must be 
 
 the presentation was a lawful title. tried by certificate, but also the issue 
 
 Lister v. Crameel, Noy, 30; S. C. upon institution, deprivation, resigna- 
 
 1 Brownl. 1 62 ; Roscoe, 240. tion or plenarty. 
 
 (.'/) Colt v. Bishop of Coventry, 
 
 VOL. III. X X
 
 674 
 
 BOOK V. OF CIVIL INJURIES. 
 
 since the avoidance ; — all which matters are material to 
 be ascertained, in order to determine the nature of the 
 damages to which the plaintiff be entitled (m). For at 
 common law no damages were recoverable in a quare im- 
 pedit, but by the statute of Westminster the second, 13 
 Edw. I.e. 5, if more than six calendar months have passed 
 by reason of the disturbance of any person, so that the 
 bishop has presented by lapse, and the true patron has lost 
 his presentation, damages shall be adjudged against the 
 disturber, to the amount of the value of the church for two 
 years ; or if the six calendar months have not passed, then 
 damages to the value of the moiety of the church for one 
 year (n). 
 
 The judgment for the plaintiff in a quare impedit is, that 
 he recover his presentation, and have a writ to the bishop, 
 commanding him to admit his clerk (o), and also that he 
 recover his damages and costs; and the judgment for the 
 defendant, where he has made out his own title to present, 
 is, with the exception of the damages, the same (p). No 
 
 (•«) 2 Inst 362 ; 6 Rep. 49 a ; 
 Poyner v. Chorleton, Dy. 1 34 b ; 3 
 Bl. Com. 249. 
 
 (n) 6 Rep. 51 a. ; 2 Inst. 362; 
 Henslow v. Bishop of Sarum, Dy. 
 76 b. An additional reason is given 
 in the books (see Wats. C. L. 291 ), as 
 far as regards the first point, viz, that 
 unless this is ascertained, it will not 
 appear whether the plaintiff is enti- 
 tled to recover his presentation ; be- 
 cause the church may be full upon the 
 presentation of some stranger, not 
 party to the quare impedit, and whose 
 title may be better than the plaintiff's. 
 According to Blackstone, (3 Bl. 
 Com. p. 249,) the reason for inquiry 
 into the third point (which he de- 
 scribes as whether six calendar 
 months have passed between the avoid- 
 
 ance und the time oj bringing the action) 
 is, that if that period of time has 
 passed, the case " would not be 
 " within the statute, — which permits 
 " an usurpation to be divested by a 
 " quare impedit brought infra tempus 
 " semestre." 
 
 (o) F. N. B. 38. 
 
 (p) Wats. C. L. 295. If the 
 bishop, upon receiving the writ ad 
 admittendinn clericum, says Black- 
 stone, does not admit the plaintiff's 
 clerk, the latter may sue him in a 
 quare non admisit, and recover satis- 
 faction in damages 3 Bl Com. 250. 
 And this writ would seem still to lie ; 
 for as the judgment in it is only to 
 recover damages (F. N. B. 47), it is 
 conceived not to be a real action. 
 Perhaps, however, such a writ is
 
 CH. XI. — OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 675 
 
 costs, indeed, were recoverable by either party, in quare 
 impedit, until a recent period (q). But by 4 & 5 Will. IV. 
 c. 39, it is now enacted, that where a verdict is given 
 for the plaintiff, he shali have his costs in addition to his 
 damages : and where a verdict is given against him. or he 
 shall discontinue, or be nonsuited, he shall pay costs to 
 the adverse party ; but subject to a proviso, that no judg- 
 ment for costs shall be had against any archbishop, bishop, 
 or other ecclesiastical patron or incumbent, if the judge 
 who shall try the cause (or, where there is no trial by jury, 
 the court at large) shall certify that he had probable cause 
 for defending the action ; it being however declared, that 
 in no case where the defence shall be grounded on a pre- 
 sentation or collation previously made, shall such presenta- 
 tion or collation be deemed as a probable cause of defence 
 within the meaning of the proviso. 
 
 III. In replevin, also, the course of proceeding was for- 
 merly (as we have seen (r) ) by original writ, though of a 
 description different from that in dower and quare impedit; 
 as it directed the sheriff not to summon the defendant into 
 any of the superior courts at Westminster, but to replevy 
 the goods, and determine the matter in his own county 
 court. We have seen, too, that this mode became obsolete ; 
 and that the course was afterwards introduced of levying 
 a plaint in the county court, without suing out any original 
 writ; which plaint is now, by a late statute, 9 & 10 Vict. 
 c. 95, directed to be made in the new species of county 
 court established by that act, It has also been shown (s) 
 by what method of practice the goods are replevied by the 
 sheriff, and how the suit is removed by writ of certiorari 
 (except in case of a distress taken for rent or damage not 
 
 rarely or never necessary ; for it is (9) Edwards v. Bishop of Exeter, 
 
 said that a bishop refusing to exe- 6 Bing. N. C. 146. 
 
 cute the writ ad admittendum cleri- (r) Vide sup. p. 514. 
 
 c u m, or making an insufficient return (s) Vide sup. pp. 515 — 518. 
 
 to it, may he fined. Wats. C. L. 302. 
 
 x x. 2
 
 676 ROOK V. — OF CIVIL INJURIES. 
 
 exceeding 20Z., or where the title to the realty is in ques- 
 tion) from the new county court to one of the courts of 
 Westminster Hall. Upon the delivery of this writ to the 
 judge of the county court at any time before judgment 
 given, his cognizance of the cause is at an end ; and, in 
 obedience to the writ of certiorari, the sheriff must summon 
 the defendant to appear in the superior court on the day 
 when it is returnable (t). Before the end of the second 
 term after this return day, the writ, with its return, must be 
 filed in the superior court ; and if the defendant does not 
 appear, the plaintiff obtains a rule calling upon him to do 
 so; which expires in four days; and if he fails to comply, 
 there is a process by pone per vadios, and after that by dis- 
 tringas, or, if necessary, by repeated writs of distringas ; 
 upon which issues may be levied from time to time until 
 the appearance is effected (u). 
 
 Upon appearance, the next step is for the plaintiff to 
 declare; and if he omits to do so in due time, the defend- 
 ant may sign judgment of non pros (x). The declaration 
 (which states in general terms the taking of the goods in a 
 certain place) being delivered, the subsequent course of 
 pleading differs from that in other personal actions, chiefly 
 in the following particular : that the defendant's plea may 
 not only tend to his acquittal or discharge from the ac- 
 tion, but may claim a return of the goods (y), admitting 
 that they were taken, but insisting that they were lawfully 
 taken, as a distress. Such a plea is called an avowry, or 
 (if the distress was made, not in his own right, but as ser- 
 vant for another) a cognizance; and the plaintiff's next 
 pleading is called a plea in bar; which the defendant 
 
 (() See Davies v. James, 1 T. R. (y) It is not necessary, however, 
 
 373 that it should conclude with a claim 
 
 (u) Roscoe, 629 ; Lush, Pr. 851. of a return ; it being provided by 15 
 
 (x) Before judgment of non pros. & 16 Vict. c. 76, s. 67, that no formal 
 
 can be signed for want of a declara- conclusion (that is, no conclusion in 
 
 tion, it seems that there must also any particular form of words) shall be 
 
 be a demand of declaration. Lush, necessary to any plea, avowry, cog- 
 
 Pr. 852. nizance, or subsequent pleading.
 
 CH. XI. — OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 677 
 
 answers by a replication ; and so to the end of the series ; 
 the names of all the pleadings subsequent to the avowry 
 or cognizance being thus transposed and thrown into a 
 reversed order from that in which they stand in ordinary 
 cases. Also, where the distress was for rent, the statute 
 11 Geo. II. c. 19, gives the defendant the power of resort- 
 ing to a general form of avowry or cognizance ; a provision 
 introduced to protect landlords from the inconvenience of 
 specially setting forth their title. Instead of an avowry or 
 cognizance, however, the defendant may plead in abatement 
 or bar, which will be followed by a replication on the part 
 of the plaintiff, according to the ordinary course of plead- 
 ing. Thus, the defendant may plead in bar non cepit ; viz. 
 that he did not take the coods, which is considered as the 
 general issue in replevin. And it is farther to be under- 
 stood, that the defendant is entitled to make several avow- 
 ries, and both to avow and demur ; and that each party 
 l;as similar rights throughout the whole series of pleading, 
 according to the principle now generally established in ordi- 
 nary actions. 
 
 The issue may be made up either by plaintiff or defend- 
 ant (z); for as the defendant, in case of a judgment in his 
 favour, may obtain a return of the goods, both parties are 
 considered as in a manner plaintiffs, — a circumstance in 
 which this action is analogous to that of quare impedit. 
 As to the judgment, it awards, when given in favour of the 
 plaintiff, damages for the unlawful taking and detaining ; 
 when given for the defendant, either a return of the goods, 
 pr, if the distress was for rent, then, at the option of the 
 defendant, a recovery of the amount of rent in arrear. For 
 by statute 17 Car. II. c. 7, if the plaintiff be nonsuit before 
 issue joined, then upon suggestion made on the record, in 
 nature of an avowry or cognizance, or if judgment be given 
 against him on demurrer, then without any such suggestion, 
 the defendant may have a writ to inquire into the value of 
 the distress by a jury, and shall recover the amount of it 
 (s) Roscoe, 642.
 
 678 BOOK V. OF CIVIL INJURIES. 
 
 in damages, if less than the arrear of rent, or if more, then 
 so much as shall be equal to such arrear, with costs. Or 
 if the nonsuit be after issue joined, or if a verdict be against 
 the plaintiff, then the jury impanelled to try the cause shall 
 assess such arrears for the defendant; and if (in any of 
 these cases) the distress be insufficient to answer the arrears 
 distrained for, the defendant may take a farther distress or 
 distresses. 
 
 Where the defendant has judgment for a return of the 
 goods, there issues in his favour [a writ de retorno habendo, 
 whereby the goods are returned again into his custody, to 
 be sold or otherwise disposed of, as if no replevin had been 
 made.] And when this judgment is by the default or non- 
 suit of the plaintiff, [the plaintiff might, at the common 
 law, have brought another replevin, and so in infinitum, to 
 the intolerable vexation of the defendant ; whereupon the 
 Statute of Westminster 2, c. 2, restrains the plaintiff, when 
 nonsuited, from suing out any fresh replevin, but allows 
 him a judicial writ issuing out of the original record, and 
 called a writ of second deliverance, in order to have the 
 same distress again delivered to him on giving the like 
 security as before. And if the plaintiff be a second time 
 nonsuit, or if the defendant has judgment upon verdict or 
 demurrer in the first replevin, he shall have a writ of return 
 irreplevisable ; after which no writ of second deliverance 
 shall be allowed (a).] On the other hand, [if pending a 
 replevin for a former distress, a man distrains again for the 
 same rent or service, then the party distrained upon is not 
 driven to his action of replevin, but shall have a writ of 
 recaption (b), and recover damages for the defendant's, the 
 re-distrainor's, contempt of the process of the law ] In 
 replevin, as in other actions personal, costs are recover- 
 able (c) ; and by statute 11 Geo. II. c. 19, if the replevin 
 be founded on a distress for rent, quit rents, relief, heriot, 
 
 (a) 2 Inst. 340. 1 , c. 1 , s. 2 ; 7 Hen. 8, c. 4 ; 21 Hen. 
 
 (ft) F. N. B. 71. 8, c. 19, s. 3; 17 Car. 2, c. 7, S. 2. 
 
 (e) Statute of Gloucester, 6 Edw.
 
 CH. XI. — OF THE PROCEEDINGS IN PARTICULAR ACTIONS 679 
 
 or other service, and the plaintiff shall become nonsuit, 
 discontinue, or have judgment against him, the defendant 
 shall recover double costs of suit. But by a recent pro- 
 vision of 5 & 6 Vict. c. 96, s. 2, double costs in this case 
 (as in all others where they are given by any public act of 
 parliament) are now reduced to " such full and reasonable 
 " indemnity as to all expenses incurred, as shall be taxed 
 " by the proper officer in that behalf." 
 
 IV. We now arrive at Ejectment, the fourth and last, 
 but by far the most important, of the anomalous actions of 
 which we proposed in this chapter to treat, being indeed 
 (with the exception of dower) the only action in which land 
 is now capable of being specifically recovered. Some ex- 
 planation has been already given of the manner of its intro- 
 duction into our judicial system, and reference has been 
 made to the manner in which it has been recently remo- 
 delled (d). But in matters of law, no reform, however 
 valuable in other respects, can enable us to repose in entire 
 ignorance of the institutions which it displaces ; and some 
 acquaintance with them will still be necessary to our correct 
 apprehension of those Records and Reports from which the 
 principles of the law in general are best to be collected. 
 Before we proceed, therefore, to any explanation of the 
 present form of an ejectment, it will be proper to advert to 
 that which it wore prior to the late improvements. The 
 action at this time began as follows : -The claimant served 
 the tenant in possession of the land with a declaration in 
 ejectment, no previous process being issued. It was drawn 
 up in the form properly belonging to a declaration in trespass 
 quare clausum free/it, and was intituled as of the court in 
 which the action was intended to be brought, and (in point 
 of date) as of the last preceding term, the service of it being 
 usually in vacation. It was a mere string of fictions, com- 
 plaining at the suit of a fictitious plaintiff^), for exam- 
 
 (d) Vide sup. p. 483. held that the person stated in the 
 
 (e) In Blackstone's time it was declaration as plaintiff must be a
 
 680 UOOK V. — OF CIVIL INJURIES. 
 
 pie, John Doe, against a fictitious defendant, for example, 
 Richard Roe, that a lease for a term of years having been 
 made to Doe by the claimant, and Doe having entered 
 thereupon, the defendant, Roe, ousted him, for which Doe 
 claimed damages ; and subjoined to this declaration was 
 a notice to appear, addressed to the tenant in possession by 
 name, in the form of a letter from Roe, informing him that 
 he, Roe, was sued as a casual ejector only, and had no title 
 to the premises, and would make no defence, and therefore 
 advising him to appear in court in the next term and de- 
 fend his own title, otherwise he, Roe, would suffer judg- 
 ment to be had against him, and thereby the party addressed 
 would be turned out of possession. 
 
 On receipt of this friendly caution, if the tenant in pos- 
 session did not in due time take the proper steps to be 
 admitted defendant in the stead of Roe, he was supposed to 
 have no right at all ; and upon judgment being had against 
 Roe, the casual ejector, the real tenant would be turned out 
 of possession by the sheriff. 
 
 In the next term, however, he had the opportunity of 
 procuring himself to be made defendant; for in the course 
 of that term the real claimant, now called the lessor of the 
 plaintiff, moved the court in the name of Doe, the plaintiff, 
 for a rule for judgment against the casual ejector ; upon 
 which motion, supported by an affidavit of the due service 
 of the declaration, the court made a rule as of course for 
 such judgment, unless the tenant should appear and plead 
 to issue within the time therein mentioned ; and within that 
 time the tenant in possession signed (by his attorney) what 
 was called a consent rule, binding him to confess upon the 
 trial of the cause, that he was at the time of the declaration 
 in possession of the premises therein mentioned, or part of 
 them ( f), and also to confess the lease made by the lessor 
 of the plaintiff, as alleged in the declaration, the entry of 
 
 real person ; 3 Bl. Com. 203 ; but at (f) By Reg. Gen. M. 1820 ; vide 
 
 a later period of the practice he was 2 Chit. Rep. 375. 
 always a nominal one.
 
 CH. XI. OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 681 
 
 the plaintiff' as therein also stated, and lastly, the ouster by 
 himself the tenant in possession ; and upon such consent 
 rule being signed, the tenant in possession was allowed by 
 the court to enter an appearance in his own name and to 
 plead the general issue, not guilty. After this, the issue 
 was made up and sent down to trial, as in an action at the 
 suit of Doe, plaintiff, on the demise of A. B. (the lessor of 
 the plaintiff), against C. D. (the tenant in possession) : and it 
 is manifest, that, under these circumstances, the matter to 
 be tried, or real and substantial question in the cause, would 
 turn merely upon a fourth point, viz. whether the lessor of 
 the plaintiff had a good title to demise on the day of the 
 supposed demise stated in the declaration. The lessor of 
 the plaintiff was bound to make out a clear title, other- 
 wise his fictitious lessee could not obtain judgment to have 
 possession of the land for the term supposed to be granted. 
 But if the lessor made out his title in a satisfactory manner, 
 then judgment and a writ of possession was to go for John 
 Doe, the nominal plaintiff, who by this trial had proved the 
 right of A. B. his supposed lessor. 
 
 It might happen, however, that the new defendant, whe- 
 ther landlord or tenant, or both, after entering into the 
 common rule, failed to appear at the trial, and to confess 
 lease, entry and ouster. In that case the plaintiff Doe was 
 of necessity nonsuited, for want of proving those requisites ; 
 but judgment would in the end be entered against the casual 
 ejector Roe ; and the sheriff, under a writ of execution on 
 such judgment, would have turned out the tenant, and de- 
 livered the possession to the plaintiff; for the condition on 
 which the tenant in possession was admitted a defendant 
 was broken, and therefore the plaintiff was put again in 
 the same situation as if no such defendant had been ad- 
 mitted at all ; the consequence of which, we have seen, 
 would have been that judgment would have been entered 
 for the plaintiff against the casual ejector. 
 
 Such was the form of an ejectment at the time of passing
 
 682 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 the Common Law Procedure Act(</). Its form, as now 
 remodelled by that act, will appear from the following out- 
 line. 
 
 A writ is issued in a prescribed form (h), directed to the 
 person or persons in possession, by name, and generally 
 " to all persons entitled to defend the possession" of the 
 premises therein described — setting forth that some person 
 or persons, by name, claim to be entitled to the possession, 
 and to eject all other persons — and commanding those to 
 whom it is directed, or such of them as deny the alleged 
 title, to appear within sixteen days after the service thereof 
 to defend the possession of the property, or such part of 
 it as they shall think fit. It moreover contains a notice, 
 that in default of appearance they will be turned out of pos- 
 session; and is indorsed with the name and abode of the 
 attorney by whom it is issued, or if there be none, the name 
 and residence of the party, in like manner as a writ of 
 summons in an ordinary action (i). 
 
 This writ (which remains in force for three months) is 
 served by delivering it to the tenant in possession personally, 
 whether on the premises or elsewhere, or by delivering it 
 personally to some member of his family or household ; and 
 in either case it should be read over, or its purport ex- 
 
 (g) It was by a gradual advance 
 that the strange fictions above de- 
 scribed obtained reception. Origi- 
 nally the claimant used to make a 
 formal entry in fact upon the pre- 
 mises, and there sealed and deliver- 
 ed a lease to some other person, till 
 a third, by a previous agreement or 
 otherwise, entered upon him and 
 turned him out. An action was there- 
 upon brought against the person 
 last mentioned, or casual ejector, as 
 he was called ; of which, however, 
 the practice required that notice 
 should he given to the tenant in pos- 
 
 session. But, as much trouble, says 
 Blackstone, attended this actual 
 making of the lease, entry and ouster, 
 a new and more easy method, when 
 there was any actual occupier of the 
 premises, was invented by the Lord 
 Chief Justice Rolle, who then sat in 
 the Court of Upper Bench. This 
 was the method just described in the 
 text. 
 
 (h) This form will he found in 15 
 & 16 Vict. c. 76, Sched. (A.) 
 
 (*) 15 & 16 Vict. c. 76, ss. 168, 
 169.
 
 CH. XI. — OF TEIE PROCEEDINGS IN PARTICULAR ACTIONS. 683 
 
 plaimed(A). But the manner of service may be varied, 
 under special circumstances, by order of the court or a 
 judge. And in the case of a vacant possession, the service 
 is effected by posting a copy of the writ upon the door of 
 the dwelling house, or other conspicuous part of the pro- 
 perty (Z). 
 
 Not only the person to whom the writ is directed by 
 name, but (on filing an affidavit showing that he is in pos- 
 session, and obtaining the leave of the court or a judge) any 
 other person also, may be allowed to appear and defend (m). 
 Supposing no appearance to be entered, the claimant (for 
 to simplify the matter we will suppose a single party on 
 either side) is at liberty to sign judgment for recovery of 
 the possession (n) ; but on the opposite supposition, viz. 
 that of an appearance, an issue is at once made up without 
 any pleadings (o) by the claimant or his attorney, setting 
 forth the writ and the appearance of such a person named, 
 and his defending for the premises (or for a certain part of 
 them, as the case may be (p) ), and upon the issue so made 
 up the parties may proceed to trial according to the same 
 course of practice as in other actions (q); and the question 
 to be tried will be, whether the statement in the writ of the 
 title of the claimant be true or false (r). But in the parti- 
 cular case, where the defendant claims to be joint-tenant, 
 
 (k) By the same statute, s. 170, sense, as denned, sup. p. 580. 
 
 it is to be served in the same man- (p) The form will be found in 
 
 ner as an ejectment was theretofore 15 & 16 Vict. c. 76, sched. (A.), 
 
 served. This manner is described No. 16. 
 
 in the text. ( v ) 15 & 16 Vict. c. 76, s. 180. 
 
 (/) 15 & 16 Vict. c. 76, s. 170. The notice of trial is ten days, as in 
 
 (m) Ibid. 173. See Reg. Gen. other actions, except in the cases 
 
 Hil. T. 1853, r. 112, 113. menrioned, post, p. 685. It may be 
 
 (n) 15 & 16 Vict. c. 76, s. 177, remarked here that the statement in 
 
 Reg. Gen. above cited, r. 112. the text supposes that no special caie 
 
 The form of the judgment will be has been stated by consent, so as to 
 
 found in 15 & 16 Vict. c. 76, sched. take the opinion of the court upon 
 
 (A.), No. 15. the facts, without proceeding to trial. 
 
 (<>) The term "issue" is here But this may be done in ejectment, 
 
 employed in its secondary sense of a as in other actions. Ibid. s. 179. 
 
 transcript of the proceedings, as sup. (r) Ibid. s. 180. When the plain- 
 
 p. 592. For as there is no pleading tiff appears and the defendant does 
 
 there can be no issue in the proper not, the plaintiff shall have a verdict
 
 684 BOOK V. OF OIV1L INJURIES. 
 
 tenant in common, or co-parcener with the claimant, whose 
 title he so far admits, but denies having ousted him, a 
 notice must be duly given by the defendant to that effect, 
 and such notice must be entered (among the other proceed- 
 ings) in the issue made up ; and the question will then be 
 two-fold — first, whether the defendant has in truth any such 
 title as joint-tenant, or the like; and secondly, whether an 
 actual ouster of the claimant has taken place (s). 
 
 If the jury find for the claimant, that is, find (in the ordi- 
 nary case) that the statement of his title in the writ is true, 
 or (in the case last supposed) that either the defendant is 
 not such joint-tenant, or the like, or that an actual ouster 
 of the claimant has taken place, judgment may be signed 
 by the claimant for the recovery of the premises (or part 
 of them, as the case may be), with costs, and execution 
 issued accordingly, under which possession will be delivered 
 to him by the sheriff (t). But if the jury find for the de- 
 fendant, that is, find (in the ordinary case) that the title in 
 the writ was false, or (in the other) that the defendant was 
 entitled as joint-tenant or the like, and that there has been 
 no actual ouster of the claimant, then the defendant will be 
 entitled to sign judgment for his costs, and take out exe- 
 cution accordingly (u). 
 
 Upon the judgment, error may be brought in the same 
 manner as in other actions, but execution will not be thereby 
 stayed, unless the plaintiff in error shall give bond to the 
 claimant for payment of such costs and damages as shall 
 be awarded after affirmance; including such compensation 
 
 without producing evidence. Reg. after the verdict, as the court or the 
 
 Gen. Hi 1 . T. 1853, r. 114. judge before whom the cause was 
 
 (s) 15 & 16 Vict. c. 76, s. 189. tried shall order; or, if no order be 
 
 (t) Ibid. ss. 185, 189. For the made, then on the fifth day in term 
 
 form in which the verdict is entered after the verdict, or in fourteen days 
 
 see ibid, sched. (A.), No. 17, and afterwards, whichever first shall hap- 
 
 for the form of the writ of execu- pen, 15 & 16 Vict. c. 76, s. 185. 
 
 tion, (which is called an habere farms) («) Ibid. s. 186. The defendant 
 
 Reg. Gen. Hil. T. 1853, sched. No. will be entitled to do this within the 
 
 23. Judgment may be signed and same period after the verdict as 
 
 execution issued within such time, mentioned in the last note, 
 not exceeding the 5th day in term,
 
 CH. XI. OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 685 
 
 for mesne (or intervening) profits taken, or waste committed, 
 since the judgment, as may be assessed under a writ of 
 inquiry to be issued for the purpose (.r). 
 
 To this sketch of the general course of the new proceed- 
 ing in an ejectment in ordinary cases we have only to add, 
 that, in order to complete the remedy, recourse must be had 
 (according to the practice that has always been pursued) to 
 another and supplementary action, viz., an ordinary action 
 of trespass guare chnisum fregit, to recover the mesne pro- 
 fits which the defendant has received during the period of 
 his wrongful possession. In this case the judgment in the 
 ejectment is conclusive evidence of the claimant's right to 
 all profits accruing since the period from which that judg- 
 ment itself shows him to have been entitled, and also con- 
 clusive as to the receipt of such profits by the defendant ; 
 but as to profits claimed in respect of any antecedent period, 
 the defendant is at liberty to contest both the claimant's 
 title and his own receipt of them. 
 
 It still remains, however, to take notice of certain legis- 
 lative provisions in favour of landlords, without which our 
 general view of the proceedings in and connected with the 
 action of ejectment is not complete (y). 
 
 And first, [to prevent fraudulent recoveries of the posses- 
 sion by collusion with the tenant of the land,] all tenants 
 are obliged, on pain of forfeiting three years' rent, to give 
 notice to their landlords when served with any declaration 
 in ejectment (z), and any landlord (which has been held to 
 extend to the heir, remainderman, mortgagee, devisee in 
 trust, and the like) may, by leave of the court, be made a 
 co-defendant to the action, in case the tenant himself appears 
 to it, or if he make default, become sole defendant («), [in 
 
 (i) 15 & 16 Vict. c. 76, s. 208. (u) Blackstone says that long be- 
 
 (y) See also as to provisions in fore the statute 11 Geo. 2, c. 19, the 
 
 favour of mortgagors, sup. vol. i. landlord had a similar right. Where 
 
 p. 294. the landlord defends, it should be 
 
 (2) 15 & 16 Vict. c. 76. s. 290, stated in his appearance that he ap- 
 
 being a re-enactment of 11 Geo. 2, pears as landlord. 15 & 16 Vict. c. 
 
 c. 19. 76, s. 73.
 
 686 BOOK V. OF CIVIL INJURIES. 
 
 [like manner as previous to the stat. Westm. II. c. 3, if in 
 a real action the tenant to the freehold made default, the 
 remainderman or reversioner had a right to come in and 
 defend the possession ; but, if judgment were had against 
 the tenant, the estate of those behind should be turned to 
 a vested right.] 
 
 Secondly. It is the rule of the common law, that though 
 there be a proviso for re-entry by the landlord in the case 
 of rent remaining in ariear, yet he cannot have the benefit 
 of that proviso (unless it be accompanied by an express sti- 
 pulation to that effect), without making a formal demand 
 upon the premises out of which the rent issues ; which de- 
 mand must also be of the precise sum claimed, and made 
 at the precise time when it became due (b) ; but to obviate 
 these niceties it is provided, in all cases between landlord 
 and tenant, that if half-a-year's rent be in arrear (c), and 
 there be a right to re-enter and determine the lease, for 
 the non-payment (d), and no sufficient distress be found (e), 
 the landlord may serve a writ in ejectment for recovery of 
 the premises, or in case the same cannot be legally served, 
 or no tenant be in actual possession, may affix a copy of 
 the writ upon the door, or if there be no messuage, then 
 upon some notorious part of the premises ; which stand in 
 the place of a formal demand and re-entry ; and a recovery 
 and execution in such ejectment shall be final and con- 
 clusive both in law and equity, unless the rent and full 
 costs be paid or tendered within six calendar months after- 
 wards (/). 
 
 Thirdly. It is enacted, that when the interest of any tenant 
 holding under lease or agreement in writing for term of 
 years certain, or from year to year, shall have expired or 
 been determined by regular notice to quit, and, after lawful 
 
 (6) See Duppau. Mayo, 1 Saund. (e) Doe v. Wandlass, 7 T. R. 117. 
 
 Wins. 287. (/) 15 & 16 Vict. c. 76, being a 
 
 (c) See Gretton v. Roe, 4 C. B. re-enactment, in substance, of 4 Geo. 
 576. 2, c. 28. 
 
 (d) Doe v. Bowditch, 8 Q. B. 973.
 
 CII. XI. --OF THE PROCEEDINGS IN PARTICULAR ACTIONS. 687 
 
 demand in writing served personally or left at the tenant's 
 usual place of abode, possession shall be refused, the land- 
 lord, at the foot of his writ in ejectment brought to recover 
 the premises, may address a notice to the tenant, requiring 
 him to find bail ; and, on the appearance of the tenant, 
 and by order of the court or a judge, after hearing both 
 parties, the tenant may be required to enter into a recog- 
 nizance, with two sufficient sureties, to pay the costs and 
 damages which shall be recovered by the claimant; and on 
 his failure to do this, the claimant shall be entitled to sign 
 judgment for recovery of the possession, with costs (g). 
 
 Fourthly. It is provided, that whenever it shall appear in 
 any ejectment between landlord and tenant, that such tenant 
 or his attorney hath been served with due notice of trial, 
 the judge before whom the cause is tried, whether the de- 
 fendant shall appear on the trial or not, shall permit the 
 claimant, after proof of his right, to go into evidence of the 
 mesne profits thereof which have accrued from the time 
 when the defendant's interest determined, down to the time 
 of the trial ; and the jury, finding for the claimant, shall 
 give their verdict on the whole matter, both as to recovery 
 of possession and mesne profits (Ji). 
 
 Lastly. There is a provision, that in all ejectments in the 
 courts at Westminster by a landlord against a tenant, or 
 against any person claiming under the tenant, for the re- 
 covery of lands or hereditaments (in any county except 
 London or Middlesex), where the tenancy shall expire, or 
 the right of entry accrue, in or after Hilary or Trinity Term, 
 it shall be lawful for the claimant, at any time within ten 
 days after the tenancy expires, or the right of entry accrues, 
 to serve a writ in ejectment, commanding the person or 
 persons to whom it is directed to appear within ten days 
 
 (g) 15 & 16 Vict. c. 76, s. 213, & P. 322 ; Doe v. Roe, 6 C. B. 272. 
 being a re-enactment, in substance, (h) 15 & 16 Vict. c. 76, s. 214, 
 
 of 1 Geo. 4, c. 87. As to this recog- being a re-enactment, in substance, 
 
 nizance, see Doe v. Sharpley, 15 of 1 Geo. 4, c. 87. 
 Mee. & W. 558 ; Doe v. Roe, 2 L. M.
 
 688 BOOK V. — OV CIVIL INJURIES. 
 
 after service thereof; and proceedings shall be had as in 
 other cases, save that it shall be sufficient to give six clear 
 days' notice of trial ; the defendant, however, being at 
 liberty to apply to a judge to stay or set aside the proceed- 
 ings, or to postpone the trial \i). 
 
 (<) 15 & 16 Vict. c. 76, s. 217, being a re-enactment, in substance, of 11 
 Geo. 4 & 1 Will. 4, c. 70, s. 36.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 689 
 
 CHAPTER XII. 
 
 OF PREROGATIVE WRITS, AND OTHER EXTRA- 
 ORDINARY REMEDIES IN THE COURTS 
 OF COMMON LAW. 
 
 We have now taken a view of the method of proceeding in 
 all actions, whether regular or irregular (if those terms may 
 be used), which are known in the modern practice. 
 
 The common law however affords, in certain cases of 
 civil injury, other remedies, of a nature generically different 
 from an action, and to these we propose to devote the fol- 
 lowing chapter. But as the proceedings with them are 
 always introduced by way of application to the court, 
 technically called motion, it will be proper to premise some 
 explanation as to the nature of a motion in general. And 
 here we shall confine ourselves to applications to the court 
 in banc, to which alone the name of motions is properly 
 applied, not deeming it necessary to take any particular 
 notice of such applications as are made to a single judge at 
 chambers, a branch of practice more summary in its nature 
 than the former, and turning for the most part on matters 
 of subordinate importance (a). 
 
 A motion, then, is an application made to the judges 
 viva voce in open court, and it may be either incidental to 
 an action — a relation in which we have already had occa- 
 
 (a) As to proceedings before a practice at chambers seems to be 
 
 single judge, see Bagley's Chamber now increased by the new provision 
 
 Practice, in which treatise the law of 15 & 16 Vict. c. 76, s. 52, au- 
 
 relative to this subject is perspicu- thorizing the sufficiency of plead- 
 
 ously stated. Et vide 11 Geo. 4 & ings in certain cases to be decided 
 
 1 Will. 4, c. 70, s. 4, and 1 & 2 Vict. upon by a judge at chambers. 
 c. 45, s. 2. The importance of the 
 
 VOL. III. Y Y
 
 690 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 sion sometimes to refer to it — or it may be wholly uncon- 
 nected with that kind of remedy. In the superior courts it 
 can be made by none but a counsel or barrister, to the ex- 
 clusion of attorneys ; and the practice of every court re- 
 quires that it should in general be supported by affidavit {b) 
 of the matter of fact on which it is founded. Its object, in 
 a general point of view, is to obtain an order (called in the 
 superior courts of common law a rule (c) ), directing some 
 act to be done in favour of the applicant ; which rule, when 
 obtained, is served (d) upon the party by whom the act is 
 to be performed. The rule so moved for, is in its form 
 usually a rule to show cause (otherwise called a rule nisi), 
 commanding the party, on a certain day therein named, to 
 show cause to the court, why he should not perform the 
 act, or submit to the terms therein set forth ; but in some 
 cases, where the right to the relief prayed for is very clear, 
 it is a rule absolute in the first instance, commanding the 
 thing to be done without the appointment of any day to 
 show cause. Upon the day appointed by the rule nisi, the 
 counsel for the party on whom it was served accordingly 
 appears, and is heard in opposition to it ; and, the counsel' 
 
 (b) Affidavits are made on various 
 occasions in the course of judicial 
 proceedings, and are sworn before 
 the court, or some officer appointed 
 to take affidavits in such court. If 
 made for the purpose of enabling 
 the court or a judge to direct pro- 
 ceedings against a defendant resid- 
 ing out of the jurisdiction, they may 
 be sworn before any consul-general, 
 vice-consul, or consular agent ap- 
 pointed by her majesty at the place. 
 15 & 16 Vict. c. 76, s. 23. It 
 may be remarked here, that a prac- 
 tice formerly obtained of making 
 voluntary affidavits, i. e. affidavits 
 sworn before magistrates or others 
 in matters of which no judicial in- 
 quiry was pending ; but by 5 & 6 
 Will. 4, c. 62, this practice is now 
 
 prohibited, and a form of declaration 
 substituted for such voluntary affida- 
 vits. And it is provided, that any per- 
 son making a false declaration shall 
 be guilty of a misdemeanor. This 
 declaration is also substituted for the 
 affidavits that used formerly to be 
 taken to verify documents, &c, in 
 the different departments of the state. 
 
 (c) All rules are intituled as of 
 some term. If delivered out in va- 
 cation, they are by Reg. Gen. H. 1 
 Vict, to be dated the day of the 
 month and week on which delivered 
 out, but intituled of the term pre- 
 ceding. 
 
 (d) As to the time and manner of 
 service of rules, see Reg. Gen. H. 2 
 Will. 4, r. 50, 51.
 
 CHAP. XII. OF PREROGATIVE WRITS, &C. 
 
 691 
 
 by whom it was moved having been afterwards heard in 
 reply, the court either discharges the rule or makes it ab- 
 solute, as the case may be, and that upon the terms either 
 that the costs of the application be paid by one of the par- 
 ties to the other, or without costs (as between the parties), 
 as may appear most equitable under the circumstances of 
 the case. But upon failure of the parties served to appear 
 in opposition to the rule, it is made absolute as a matter of 
 course. Upon its being made absolute or discharged (as 
 the case may be), a new rule to that effect is then served 
 by the successful on the unsuccessful party, who is bound 
 to obey it upon peril of an attachment as for a contempt (e), 
 a writ issued by the court in vindication of its own autho- 
 rity, and under which the party is liable to coercion by the 
 arrest of his person. 
 
 We shall now resume the main subject of the chapter, 
 by the consideration of such of the remedies afforded at 
 common law as are distinct in their nature from an action. 
 These chiefly consist of what are called prerogative writs, 
 [which do not issue as of mere -course without showing 
 some probable cause why the extraordinary powers of the 
 crown are called into the party's assistance (f),~\ and are 
 principally as follows : 
 
 I. The writ of Procedendo. This [issues out of the 
 Court of Chancery, when judges of any subordinate court 
 do delay the parties, for that they will not give judgment, 
 either on the one side or the other, when they ought so to 
 d° (</)•] I n such case a writ of procedendo ad judicium 
 [shall be awarded, commanding the inferior court, in the 
 name of the crown, to proceed to judgment, but without 
 specifying any particular judgment, for that, if erroneous, 
 
 (e) Vide sup. p. 3G4. 
 
 (/) 3 Bl. Com. 132. In R. v. 
 Cowle, Burr. 855, prerogative writs 
 are also distinguished from writs mi- 
 nisterially directed, viz. those issued 
 to the sheriff; the prerogative writs 
 
 Y 
 
 being generally directed to no sheriff 
 or minister of the court ; but to the 
 public or private parties, whose acts 
 are the subject of complaint. 
 
 (g) F. N. B. 153, 240 ; Blanchard 
 v. De la Crouee, 16 L. J. (Q. B.) 181. 
 
 .2 
 
 4/ st-~*>
 
 2- 
 
 ^.ex-^v^f 
 
 692 BOOK V. OF CIVIL INJURIES. 
 
 [may be set aside by proceedings in error or by writ of false 
 judgment; and upon farther neglect or refusal, the judges 
 of the inferior court may be punished for their contempt 
 by writ of attachment, returnable] in the Courts at West- 
 minster. A procedendo also lies where an action -has been 
 removed from an inferior to a superior court by habeas cor- 
 pus or certiorari to be hereafter mentioned, or any like writ, 
 and it appears to the superior court that it was removed on 
 insufficient grounds (h). And by 21 Jac. I. c. 23, a suit 
 once so remanded, shall never afterwards be removed be- 
 fore judgment, into any court whatsoever. 
 
 II. The writ of Mandamus. The power of issuing this 
 belongs in general exclusively to the Court of Queen's 
 Bench (i). [It is a high prerogative writ, of a most ex- 
 tensive remedial nature,] and is in its form a command 
 issuing in the queen's name from the Court of Queen's 
 Bench, and [directed to any person, corporation, or inferior 
 court of judicature within the crown's dominions, requiring 
 them to do some particular thing therein specified which 
 appertains to their office and duty, and which the Court of 
 Queen's Bench has previously determined, or at least sup- 
 poses, to be consonant to right and justice.] In its appli- 
 cation it may be considered as confined to cases where relief 
 is required in respect of the infringement of some public 
 right or duty (j), and where no effectual relief can be ob- 
 tained in the ordinary course of an action at law (k). Such 
 
 (h) 21 Jac. 1, c. 23; Jac. Diet. (k) R. v. Bishop of Chester, 1 T. 
 
 Procedendo. II. 396 ; R. v. Archbishop of Canter- 
 
 (i) There is an exception to this hury, 8 East, 219 ; Ex parte Robins, 
 
 in the case of a mandamus to examine 1 W. W. & H. 578 ; R. v. Notting- 
 
 witnesses in India and other British ham Old Water Works Company, 6 
 
 dominions in foreign parts, issued A. & El. 355 ; R. v. Bristol Dock 
 
 under authority of 13 Geo. 3, c. 63, Company, 2 Q. B. 69. It is no ob- 
 
 s. 44, and 1 Will. 4, c. 22, s. 1. The jection, however, to granting a man- 
 
 mandamus in such cases may be damns, that the party against whom 
 
 awarded by any of the superior courts the complaint is made maybe pro- 
 
 at Westminster. ceeded against by indictment. R. v. 
 
 (j ) R. v. Bank of England, 2 B. Severn Railway Company, 2 B. & 
 
 & Aid. 622. Aid. 646.
 
 CHAP. XII. OF PREROGATIVE WRITS, &C. 693 
 
 is the general principle ; but as to the specific instances in 
 which the writ will be granted, they are much too nu- 
 merous for complete detail (Z). We may remark, however, 
 that (among other cases) it lies to compel the admission or 
 restoration of the applicant [to any office or franchise of a 
 public nature, whether spiritual or temporal, to academical 
 degrees, to the use of a meeting house, or the like,] and 
 that it will be also granted [for the production, inspection, 
 or delivery of public books and papers, for the surrendering 
 of the regalia of a corporation, to oblige bodies corporate 
 to affix their common seal, or to compel the holding of a 
 court,] or to proceed to an election in corporate and other 
 public offices (in). In addition to which we may notice, as 
 another important application of this writ, [that it issues to 
 the judges of any inferior court, commanding them to do 
 justice according to the power of their office, whenever the 
 same is delayed. For it is the peculiar business of the 
 court of Queen's Bench to superintend all inferior tribunals, 
 and therein to enforce the due exercise of those judicial or 
 ministerial powers with which the crown or legislature have 
 invested them ; and this not only by restraining their ex- 
 cesses, but also by quickening their negligence, and obvi- 
 ating their denial of justice. A mandamus may therefore be 
 had to the courts of the city of London to enter up judg- 
 ment, or to the spiritual courts to grant an administration, 
 or the like. 
 
 This writ is granted on a suggestion, by the oath of the 
 party injured, of his own right and the denial of justice 
 below (n) — whereupon, in order more fully to satisfy the 
 court that there is a probable ground for such interposition, 
 a rule is made,] (except under particular circumstances, 
 
 (/) A copious enumeration of them wich, 1 B. & Adol. 310. 
 
 will be found in 1 Ch. Gen. L. 789 ; («) Unless there has been a dis- 
 
 see also Tapping on Mandamus. tinct refusal to do that which it is 
 
 (m) 11 Geo. 1, c. 4; and 7 Will. the object of the mandamus to en- 
 
 4 & 1 Vict. c. 78, s. 24; R. v. Mayor, force, the writ will not be granted. 
 
 &c. of London, 1 T. R. 146 ; R. v. R. v. Brecknock &c. Company, 3 A, 
 
 Leyland, 3 M. & S. 184 ; R. v. Nor- & E. 217.
 
 694 BOOK V. — OF CIVIL INJURIES. 
 
 where a rule will be granted absolute in the first instance (o),) 
 [directing the party complained of to show cause why a 
 writ of mandamus should not issue ; and if he shows no 
 sufficient cause,] and does not submit without contest to 
 the application, [the writ itself is issued at first in the 
 alternative either to do this or signify some reason to the 
 contrary ; to which a return or answer must be made at a 
 certain day.] 
 
 [If the person to whom the writ is directed makes no 
 return, he is punishable for his contempt by attachment.] 
 If, on the other hand, he makes a return, and it be found 
 either insufficient in law, or false in fact, there then issues 
 in the second place a peremptory mandamus to do the 
 thing absolutely, [to which no other return will be ad- 
 mitted (p) but a certificate of perfect obedience and due 
 execution of the writ.] The sufficiency of the return in 
 point of law was formerly determined, unless a special 
 argument were ordered, in a summary way upon motion ; 
 but as to the truth of its allegations in point of fact, it was 
 a rule that this could not be investigated by any farther 
 proceeding on the mandamus— the complaining party having 
 no remedy in case the facts were untruly alleged, but to 
 bring an action on the case for a false return, in which, if 
 he obtained a verdict, he recovered [damages equivalent to 
 the injury sustained, together with a peremptory mandamus 
 to the defendant.] But by 9 Ann. c. 20, in a mandamus 
 for determining the right to a corporate office, and now by 
 1 Will. IV. c. 21, in all cases of mandamus, [the return may 
 be pleaded to or traversed by the prosecutor, and his an- 
 tagonist may reply, take issue or demur, and the same 
 proceedings may be had as if an action on the case had 
 been brought for making a false return, and after judgment 
 obtained for the prosecutor, he shall have a peremptory writ 
 of mandamus to compel his admission or restitution — which 
 
 (o) R. v. Archdeacon of Lichfield, 2 Q. B. 24o' ; It. v. Churchwardens 
 5 Nev. & M. 42 ; Ex parte Penrud- of Manchester, 7 Dowl. 707. 
 dock, 1 Har. & W. 347 ; It. v. Fox, ( p) It. v. Ledgard, 1 Q. B. 61 G.
 
 CHAP. XII. OF PREROGATIVE WRITS, &C. 695 
 
 [latter, in case of an action, is effected by a writ of restitu- 
 tion (</)]. So that now the writ of mandamus is (from the 
 period at least of its return) assimilated to an action ; and 
 the more closely because by the same acts it is also pro- 
 vided, that the prosecutor, if successful, shall recover da- 
 mages, and that the successful party shall in all cases, upon 
 judgment after issue joined, or by default, be entitled to his 
 costs if). In addition to which it has been enacted by 6 & 
 7 Vict, c 67, that the prosecutor objecting to the validity 
 of the return, shall do so by way of demurrer to the same, 
 in like manner as in personal actions, and thereupon the 
 writ, return and demurrer shall be entered on record, and 
 the court shall adjudge either that the return is valid in law 
 or that it is not valid in law, or that the writ of mandamus 
 itself is not valid in law; and if it adjudge that the writ is 
 valid, but the return invalid, shall award a peremptory 
 mandamus ; and shall also in any event award costs to be 
 paid to the successful party. The same statute also pro- 
 vides, that either party shall be at liberty in every case where 
 judgment is given against him upon a mandamus, whether 
 after demurrer or otherwise, to take proceedings in error 
 thereon, according to the ordinary course of error in per- 
 sonal actions (s). 
 
 Besides these provisions with respect to mandamus we 
 may notice the enactment of 1 & 2 Will IV. c. 58, s. 8, 
 
 (q) 11 Rep. 79. Dowl. N. S. 955. 
 
 (?) As to the course of proceeding (s) By 6 & 7 Vict. c. 89, s. 5, it is 
 
 on mandamus, see R. v. Oundle, 1 provided, both as to mandamus and 
 
 A. & E. 283; R. v. Governors of quo warranto, in regard to offices and 
 
 Darlington School, 6 Q. B. 682; Ex boroughs under the Municipal Cor- 
 
 parte Thompson, ibid. 721 ; Clarke poration Act, that ten days' notice 
 
 v. Leicestershire and Northampton- to the opposite party may be given 
 
 shire Canal Company, ibid. 898. By by the party making application for 
 
 1 Will. 4, c. 21, s. 8, the costs of the such remedy, and that thereupon 
 application for a mandamus, whether cause may be shown, and the rule 
 granted or refused, and the costs of for a mandamus or information made 
 the writ, where issued and obeyed, absolute in the first instance ; and, 
 are in the discretion of the court. if the court think proper, a peremp- 
 See R. v. Oundle, ubi sup. ; R. v. tory mandamus may be issued in the 
 Eastern Counties Railway Company, first instance. 
 
 2 Q. B. 578 ; R. v. St. Pancras, 2
 
 696 BOOK V. — OF CIVIL INJURIES. 
 
 intended to afford relief to officers and other persons to 
 whom such writ is directed to issue, commanding them to 
 admit to offices, or to do or perform other matters in respect 
 of which they claim no right or interest. It is provided in 
 favour of such persons, that it shall be lawful for the court 
 to which application is made for the writ of mandamus, to 
 relieve them from the liabilities incident to the execution 
 thereof, by calling upon any other person having or claim- 
 ing any interest in the matter of such writ, to appear and 
 show cause against the issuing of the same, and thereupon 
 to make such rules and orders between all parties as the 
 circumstances of the case may require. ._ 
 
 III. The writ of Prohibition. [A prohibition is a writ 
 issuing properly only out of the Court of Queen's Bench (t); 
 but for the furtherance of justice, it may now also be had 
 in some cases out of the Court of Chancery, Common Pleas, 
 or Exchequer (m) ; directed to the judge and parties of a 
 suit in any inferior court, commanding them to cease from 
 the prosecution thereof, upon a surmise either that the 
 cause originally, or some collateral matter arising therein, 
 does not belong to that jurisdiction, but to the cognizance 
 of some other court. This writ may issue either to inferior 
 courts of common law, as to the courts of the counties 
 palatine, if they hold plea of land or other matters not 
 lying within their respective franchises (x) ; to the county 
 courts (?/) or courts baron, where they attempt to hold plea] 
 of any matter of a value beyond what can be sued for 
 
 (t) Company of Homers, 2 Roll. see 13 & 14 Vict. c. 61, s. 22 ; 
 
 Rep. 4-71. Wright v. Cattell, 13 Beav. 81 ; Toft 
 
 (u) Hutton's case, Hob. 27 ; IP. v. Rayner, 5 C.B. 162 ; Ellis v. Watt, 
 
 Wins. 476; Palmer, 523 See Ex 8 C. B. 614; Fearon v. Norvall, 5 
 
 parte Smyth, 1 Tyr. & G. 225 ; and D. & L. 439 ; Jones v. Jones, ib. 
 
 Ex parte Tucker, in re Inman, 1 628 ; Zohrab v. Smith, ib. 639 ; 
 
 Man. & G. 529 ; Tucker v. Tucker, Edwards v. Rogers, 1 L. M. & P. 
 
 4 Man. & G. 1074. 196 ; Thompson!;. Ingham, ib. 216 ; 
 
 (i) Vaughan v. Evans, Ld. Raym. Still v. Booth, ib. 440; Re Bowen, 
 
 1408. 21L.J. Q. B.,10; Pears v. Williams, 
 
 (;i) As to the writ of prohibition 2 L. M. & P. 515. 
 in reference to the new county courts,
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C, 697 
 
 therein; [or it may be directed to the courts christian, the 
 university courts, the court of chivalry, or the Court of Ad- 
 miralty, where they concern themselves with any matter not 
 within their jurisdiction, as if the first should attempt to try 
 the validity of a custom pleaded (z), or the last a contract 
 made or to be executed within this kingdom. Or if, in 
 handling of matters clearly within their cognizance, they 
 transgress the bounds prescribed to them by the laws of 
 England (a) ; as where they require two witnesses to prove 
 the payment of a legacy, a release of tithes (b), or the like ; 
 in such cases also a prohibition will be awarded (c). For as 
 the fact of signing a release, or of actual payment, is not 
 properly a spiritual question, but only allowed to be de- 
 cided in those courts, because incident or accessary to some 
 original question clearly within their jurisdiction, it ought 
 therefore, where the two laws differ, to be decided not ac- 
 cording to the spiritual, but the temporal law; else the 
 same question might be determined different ways accord- 
 ing to the court in which the suit is depending; an impro- 
 priety which no wise government can or ought to endure, 
 and which is therefore a ground of prohibition. And if 
 either the judge or the party shall proceed after such pro- 
 hibition, an attachment may be had against them to punish 
 them for the contempt, at the discretion of the court that 
 awarded it (d) ; and an action will lie against them, to re- 
 pair the party injured in damages (e). 
 
 (s) Vanacre v. Spleen, Carth. 33. ceedings. Vanacre v. Spleen, ubi 
 
 The spiritual courts have power to sup. ; Hart v. Marsh, 5 Ad. & El. 
 
 construe a statute, the effect of which 591. 
 
 incidentally comes before them in (ft) Mallary v. Marriott, Cro. Eliz. 
 
 the course of a proceeding where 667 ; Hob. 188. 
 
 they have jurisdiction. Hall v. (c) A prohibition will not be 
 
 Maule, 7 Ad. & El. 721. awarded in reference to a mere point 
 
 (a) If sentence has been given in of practice, where the court has juris - 
 
 the court below, the court in which diction on the general subject of the 
 
 application is made for a prohibition cause. Ex parte Smyth, 1 Tyr. & 
 
 will presume that there was no ex- G. 227 ; Jolly v. Baines, 12 Ad. & 
 
 cess of jurisdiction, unless such ex- E. 201. 
 
 cess be distinctly proved, or be (d) F. N. B. 40. 
 
 apparent on the face of the pro- (e) 2 Inst. 601 — 618.
 
 698 BOOK V. — OF CIVIL INJURIES. 
 
 [So long as the idea continued among the clergy, that 
 the ecclesiastical state was wholly independent of the civil, 
 great struggles were constantly maintained, between the 
 temporal courts and the spiritual, concerning the writ of 
 prohibition and the proper objects of it; even from the 
 time of the constitutions of Clarendon, made in opposition 
 to the claims of Archbishop Becket, in the tenth year of 
 Henry the second, to the exhibition of certain articles of 
 complaint to the king by Archbishop Bancroft, in the 
 third year of James the first, on behalf of the ecclesiastical 
 courts ; from which, and from the answers to them, signed 
 by all the judges of Westminster Hall, much may be 
 collected concerning the reasons of granting, and methods 
 of proceeding upon, prohibitions (f). A short summary of 
 the latter is as follows. The party aggrieved in the court 
 below applies to the superior court, setting forth the nature 
 and cause of his complaint, in being drawn ad aliud exa- 
 men, by a jurisdiction or manner of process disallowed by 
 the laws of the kingdom ;] and this used formerly to be 
 done by filing, as of record, a suggestion, containing a 
 formal statement of the facts ; but now by 1 Will. IV. 
 c. 21, it is provided, that it shall not be necessary to file 
 any suggestion, but that an application for a writ of pro- 
 hibition may be made by affidavits only, that is, in the 
 way of an ordinary motion, by a rule to show cause ; upon 
 which, if the matter alleged appear to the court, upon the 
 showing cause, [to be sufficient, the writ of prohibition im- 
 mediately issues, commanding the judge not to hold, and 
 the party not to prosecute, the plea. But sometimes the 
 point may be too nice and doubtful to be decided merely 
 upon a motion ; and then for the more solemn determina- 
 tion of the question, the party applying for the prohibition 
 is directed by the court to declare in prohibition (g);] that is 
 
 (/) As to prohibition, see the fol- York, 2 Q. B. 1 ; Evans v. Gwyn, 5 
 
 lowing modern cases: Ex parte Q. B. 844 ; Francis v. Steward, ibid. 
 
 Tucker, in re Inman, 1 Man. & G. 984; De Haber v. Queen of Portu- 
 
 519 ; Tucker v. Tucker, 4 Man. & gal, 21 L. J., Q. B. 488. 
 
 G. 1074 ; Hallacku. Cambridge Uni- (g) A declaration in prohibition 
 
 versity, 1 Q. B. 593 ; Re Dean of will always be directed on the appli-
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 699 
 
 to deliver a declaration against the other, setting forth in a 
 concise manner so much of the proceeding in the court 
 below as may be necessary to show the ground of the ap- 
 plication, and praying that a writ of prohibition may 
 issue (h) ; and this used formerly to be connected with an 
 allegation that the party sued on behalf of the crown as 
 well as of himself, and with a supposition or fiction (which 
 was not traversable (i)), that the defendant had proceeded 
 in the suit below, notwithstanding a writ of prohibition. 
 But by the statute just mentioned, the use of these forms 
 is now expressly abolished ; and it is provided that to this 
 declaration the party defendant may demur, or plead such 
 matters by way of traverse or otherwise as may be proper 
 to show that the writ ought not to issue, and conclude by 
 praying that such writ may not issue ; and judgment shall 
 be given that the writ of prohibition do or do not issue, as 
 justice may require ; and the party in whose favour judg- 
 ment shall be given, whether on nonsuit, verdict, de- 
 murrer, or otherwise, shall be entitled to the costs attend- 
 ing the application and subsequent proceedings, and have 
 judgment to recover the same ; and in case a verdict shall 
 be given for the party plaintiff in such declaration, it shall 
 be lawful for the jury to assess damages, for which judg- 
 ment shall also be given ; but such assessment shall not be 
 necessary to entitle the plaintiff to costs. The effect of the 
 legislative provisions here cited has consequently been to 
 place prohibitions, after a rule to declare has been ob- 
 tained, upon a footing substantially of an action, and in 
 this respect it exhibits, we see, a close resemblance to a 
 mandamus (k). 
 
 [V. Another remedy analogous to these is the writ of 
 
 Quo warranto. [This writ is in the nature of a writ of 
 
 cation of the person against whom (k) For the former course of pro- <^7 
 
 the prohibition is sought, Reming- ceeding in prohibition, see Com. _ 
 
 ton v. Dolby, 9 Q. B. 176. Dig. Prohibition (H) ; Bac. Ab. Pro- 
 
 (h) 1 Will. 4, c. 21, s. 1. hibition. 
 
 (t) Barn. Not. 4to. 148. 
 
 ^tUr
 
 700 BOOK V. — OF CIVIL INJURIES. 
 
 [right for the crown (I), against him who claims or usurps 
 any office (m), franchise, or liberty (n), to inquire by what 
 authority he supports his claim, in order to determine the 
 right (o). It lies also in case of non-user or long neglect 
 of a franchise, or mis-user or abuse of it ; being a writ 
 commanding the defendant to show by what warrant he 
 exercises such a franchise, having never had any grant of 
 it, or having forfeited it by neglect or abuse. This was 
 originally returnable before the king's justices at West- 
 minster (p) ; but afterwards only before the justices in eyre, 
 by virtue of the statutes of quo warranto, 6 Edw. I. c. 1, 
 and 18 Edw. I. st. 2 (q) ; but since those justices have given 
 place to the king's temporary commissioners of assize (r), 
 the judges on the several circuits, this branch of the sta- 
 tutes lost its effect (s) ; and writs of quo warranto (if brought 
 at all) must now be prosecuted and determined before the 
 king's (or queen's) justices at Westminster. And in case 
 of judgment for the defendant, he shall have an allowance 
 of his franchise ; but in case of judgment for the crown, 
 for that the party is entitled to no such franchise, or hath 
 disused or abused it, the franchise is either seized into 
 the king's (or queen's) hands, to be granted out again to 
 whomsoever he shall please, or, if it be not such a fran- 
 chise as may subsist in the hands of the crown, there 
 is merely judgment of ouster, to turn out the party who 
 usurped \t(t). 
 
 The judgment on a writ of quo warranto (being in the 
 nature of a writ of right) is final and conclusive even 
 against the crown, which, together with the length of its 
 
 (l) II. i'. Shepherd, 4 T. R. 381. (p) Old Nat. Brev. fol. 107, edit. 
 
 (to) Darleyu. The Queen, 12 CI. & 1534. 
 Finn. 520 ; R. v. Mousley, 16 L. J. (<y) 2 Inst. 498 ; Rast. Entr. 540. 
 
 (Q. B.), 89. As to offices, vide sup. (r) Vide sup. p. 414. 
 
 vol. ii. p. 600. (s) 2 Inst. 498. 
 
 («) R. v. Archdall, 8 Ad. & El. (t) R. v. Stanton, Cro. Jac. 259 ; 
 
 •281 ; and as to franchises and liber- R. v. Mayor of London, 1 Show. 
 
 ties, vide sup. vol. i. p. 637. 280. 
 
 (o) Finch, L. 322 ; 2 Inst. 282.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 701 
 
 [process, probably occasioned that disuse into which it is 
 now fallen, and introduced a more modern method of pro- 
 secution, by information filed in the Court of Queen's 
 Bench by the attorney-general, in the nature of a writ of 
 quo warranto ; wherein the process is speedier, and the 
 judgment not quite so decisive. This is properly a cri- 
 minal method of prosecution, as well to punish the usurper 
 by a fine for the usurpation of the franchise, as to oust him 
 or seize it for the crown ; but hath long been applied to 
 the mere purposes of trying the civil right, seizing the fran- 
 chise, or ousting the wrongful possessor^*); the fine being 
 nominal only (v).] It is therefore considered in modern 
 practice as merely a civil proceeding (x). 
 
 [During the violent proceedings that took place in the 
 latter end of the reign of King Charles the second, it was, 
 among other things, thought expedient to new model most 
 of the corporation towns in the kingdom ; for which pur- 
 pose many of those bodies were persuaded to surrender 
 their charters, and informations in the nature of quo war- 
 ranto were brought against others, upon a supposed, or 
 frequently a real, forfeiture of their franchises by neglect or 
 abuse of them ( y). And the consequence was, that the liber- 
 ties of most of them were seized into the hands of the king, 
 who granted them fresh charters, with such alterations as 
 were thought expedient ; and, during their state of anarchy, 
 
 (u) It is discretionary, however, in dian to a poor law union. Re Aston 
 
 the court to grant or withhold a quo Union, ibid. 784. But it lies in 
 
 warranto information in such cases. respect to the office of clerk to a 
 
 R. v. Parry, 6 Ad. & El. 810. board of guardians appointed by 
 
 (v) See the difference in the appli- statute, Queen v. St. Martin in the 
 
 cation of mandamus and 91(0 war- Fields, 20 L. J., Q. B. 424. 
 
 ranto respectively illustrated in the (.1) 4 Bl. Com. 312. In virtue of 
 
 case of R. v. Oxford, 6 Ad. & El. its being considered as a civil pro- 
 
 349 ; R. v. Winchester, 7 Ad. & El. ceeding, the court will grant a new 
 
 215 ; R. v. Phippen, ibid. 970. After trial, though the verdict should have 
 
 an office is determined, an informa- been for defendant. R. v. Francis, 
 
 tion in quo warranto to try the title 2 T. R. 484 ; Attorney-General v. 
 
 thereto will not be granted. Re Rogers, 11 M. & W. 675. 
 
 Harris, 6 Ad. & E. 475. An in- (y) As to the forfeiture of fran- 
 
 formation in quo warranto does not chises, vide sup. vol. i. p. 666. 
 lie for exercising the office of guar-
 
 702 BOOK V. — OF CIVIL INJURIES. 
 
 [the crown named all their magistrates. This exertion of 
 power, though perhaps in summo jure it was for the most 
 part strictly legal, gave a great and just alarm ; the new 
 modelling of all corporations being a very large stride 
 towards establishing arbitrary power, and therefore it was 
 thought necessary at the Revolution] to bridle the pre- 
 rogative, as regards the city of London at least, by the 
 prohibitory provision to that effect referred to in a former 
 part of this volume (z). 
 
 [This proceeding is, however, now applied to the decision 
 of corporation disputes between party and party, without 
 any intervention of the prerogative, by virtue of the statute 
 9 Anne, c. 20, which permits an information in the nature 
 of quo warranto to be brought with leave of the court, at 
 the relation of any person desiring to prosecute the same, 
 (who is then styled the relator) (a), against any person 
 usurping, intruding into, or unlawfully holding any franchise, 
 or office in any city, borough, or town corporate (b) ; — 
 provides for its speedy determination (c), and directs that 
 if the defendant be convicted, judgment of ouster (as well 
 as a fine) may be given against him, and that the relator 
 shall pay or receive costs according to the event of the suit.] 
 By 32 Geo. III. c. 58, intituled "An Act for the Amend- 
 ment of the Law upon Informations in the nature of Quo 
 
 (s) Vide sup. p. 140. otherwise order. See R. v. Hedges, 
 
 (a) By Reg. Gen. M. T. 3 Vict. 11 Ad. & El. 163; R. r. Anderson, 
 
 (vide 11 A. & E. 2) no rule shall 2 Ad. & E. N. S. 740. As to who 
 
 hereafter be granted for filing any may be relator, R. v. Parry, 6 Ad. & 
 
 information in the nature of a quo El. 810 ; R. v. Greene, 2 Q. B. 460. 
 warranto, unless, at the time of (b) But an information in quo war- 
 
 moving, an affidavit be produced, by ranlo cannot be brought against a 
 
 which some person or persons shall body corporate at large for acting as 
 
 depose, that such motion is made at a corporation, unless at the instance 
 
 his or their instance, as relator or of the attorney-general. R. v. White, 
 
 relators ; and that such person or 5 Ad. & El. 613. 
 persons shall be deemed to be the (c) By 6 & 7 Vict. c. 89, s. 5, the 
 
 relator or relators in case such rule court may order the venue in infor- 
 
 shall be made absolute, and shall be mations in quo warranto to be laid in 
 
 named as such relator or relators in Middlesex or London, and the trial 
 
 such information in case the same to take place therein. Et vide sup. 
 
 shall be filed, unless the court shall p. 695, n. (s).
 
 CHAP. XII. OF PREROGATIVE WRITS, &C. 703 
 
 Warranto" it is also provided that the defendant may plead 
 in bar to any information in quo warranto in respect of any 
 office in a town corporate, whether exhibited by leave of 
 the court or by the attorney-general on behalf of the crown, 
 that he first took upon himself such office six years or more 
 before the exhibiting the information, which plea may be 
 pleaded with any other pleas that the court may allow, and 
 may be met by a replication that a forfeiture of such office 
 happened within the period of that limitation ; and farther, 
 that the title of the defendant derived under any election 
 shall not be affected on account of defect in the title of the 
 person electing, provided the elector shall have been in the 
 exercise de facto of his office six years previous to the in- 
 formation. And by the late statutes 7 Will. IV. & 1 Vict. 
 c. 78 (d), and 6 & 7 Vict. c. 89, it is farther enacted, that 
 every application to the Queen's Bench, for the purpose of 
 calling upon any person to show by what warrant he claims 
 to exercise the office of mayor, alderman, or burgess in any 
 borough within the Municipal Corporation Act, shall be 
 made before the end of twelve months after the election of 
 the defendant, or the time when he shall become disqua- 
 lified ; and that no election of any mayor shall be liable to 
 be questioned by reason of a defect in the title of such 
 person to the office of alderman or councillor to which he 
 may have been previously elected, unless application shall 
 have been made to the Court of Queen's Bench, calling 
 upon such person to show cause by what warrant he claims 
 to exercise such office of alderman or councillor within 
 twelve months after his election thereto ; and that every 
 election to the office of alderman, mayor, councillor, or any 
 other corporate officer within the said boroughs, which shall 
 not have been called in question within twelve months after 
 such election, shall be deemed good and valid. 
 
 V. The writ of Habeas Corpus (e). This is the most 
 
 (d) Sect. 23. Blackstone notices, besides the habeas 
 
 (e) As to the remedy by action for corpus, three other writs for removing 
 false imprisonment, vide sup. p. 473. the injury of false imprisonment : 1st,
 
 704 
 
 BOOK V. OF CIVIL INJURIES. 
 
 celebrated writ in the English law* and the great remedy 
 which it has provided for the violation of the right of per- 
 sonal liberty. We had occasion, in the first volume (/), to 
 make some remarks upon this writ, but a more particular 
 detail of its history, and the practice connected with it, may 
 here be acceptable. 
 
 In the first place, we may remark that the vindication of 
 liberty, though the principal, is not the only purpose 1 to 
 which it is applied ; for, of the habeas corpus [there are 
 various kinds made use of by the courts at Westminster for 
 removing prisoners from one court to another for the more 
 easy administration of justice. Such is the habeas corpus 
 ad respondendum, when a man hath a cause of action against 
 one who is confined by the process of some inferior court, 
 in order to remove the prisoner and charge him with this 
 new action in the court above (g). Such is that ad satis- 
 faciendum, when a prisoner hath had judgment against him 
 in an action, and the plaintiff is desirous to bring him up to 
 some superior court to charge him with the process of exe- 
 cution (/«). Such are also those ad prosequendum, testifi- 
 candum, deliberandum, Sfc. which issue when it is necessary 
 
 The writ of mainprise, manucaptio, 
 commanding the sheriff to take sure- 
 ties for the appearance of the pri- 
 soner, usually called mainpernors, and 
 to set him at large ; 2nd, The writ 
 de odio et alia, commanding the sheriff 
 to inquire whether a prisoner charged 
 with murder was committed on gene- 
 ral cause of suspicion, or merely 
 propter odium et atiam, for hatred and 
 ill will, with the view, if the latter 
 was found the case, of afterwards 
 issuing another writ to admit him to 
 bail ; 3rdly, the writ de homine reple- 
 giando, commanding the sheriff to 
 replevy a man out of custody in the 
 same manner that chattels taken in 
 distress may be replevied, upon 
 security given that he shall answer 
 
 any charge against him. 3 Bl. Com. 
 128. All these remedies however 
 have long fallen into complete dis- 
 use. 
 
 (/) Vide sup. vol. i. p. 141. 
 
 (g) Jones's case, 2 Mod. 198. 
 
 (h) 2 Lilly, Pract. reg. 4 ; Gibbv. 
 King, 1 C. B. 1. By 15 & 16 Vict. 
 c. 76, s. 127, a habeas corpus ad satis- 
 faciendum shall not in future be ne- 
 cessary to charge in execution a 
 person already in the prison of the 
 court ; but he may be charged in 
 execution by a judge's order, made 
 on affidavit that judgment has been 
 signed ; and if not satisfied, service 
 of such order on the gaoler shall 
 have the effect of a detainer.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 705 
 
 [to remove a prisoner in order to prosecute or bear testi- 
 mony in any court, or to be tried in the proper jurisdiction 
 wherein the fact was committed (i). Such is, lastly, the 
 common writ ad faciendum et recipiendum, which issues 
 out of any of the courts of Westminster Hall, when a per- 
 son is sued in some inferior jurisdiction, and is desirous to 
 remove the action into the superior court; commanding 
 the inferior judges to produce the body of the defendant, 
 together with the day and cause of his caption and detainer, 
 (whence the writ is frequently denominated a habeas corpus 
 cum causa (j), to do and receive whatsoever the king's court 
 shall consider in that behalf. This is a writ grantable of 
 common right without any motion in court (k), and it in- 
 stantly supersedes all proceedings in the court below ; but 
 in order to prevent the surreptitious discharge of prisoners, 
 it is ordered by statute 1 & 2 P. & M. c. 13, that no habeas 
 corpus shall issue to remove any prisoner out of any gaol 
 unless signed by some judge of the court out of which it is 
 awarded ; and, to avoid vexatious delays, by removal of 
 frivolous causes, it is enacted by 21 Jac. I. c. 23, that where 
 the judge of an inferior court of record is a barrister of 
 three years standing no cause shalLbe removed from thence 
 by habeas corpus, or other writ, after issue or demurrer,] 
 unless joined within six weeks after appearance ; [by sta- 
 tute 19 Geo. III. c. 70, that no cause under the value of 
 ten pounds,] (which was by 7 & 8 Geo. IV. c. 71, s. 6, ex- 
 tended to causes under the value of twenty pounds,) [shall 
 be removed by habeas corpus or otherwise into any superior 
 court, unless the defendant, so removing the same, shall give 
 
 (i) As to writs of habeas corpus ad S. 93 ; Lawes v. Hutchinson, 5 Tyr. 
 
 testificandum, fyc. see 43 Geo. 3, c. 23G ; Mitchell v. Mitchenham, 1 B. 
 
 140, and 44 Geo. 3, c. 102. See also & C. 513; Blanchard v. Dela Crouee, 
 
 Ex parte Griffiths, 5 B. & A. 730. 9 Q. B. 869; Reg. Gen. Hil. T. 
 
 (j) As to writs of habeas corpus cum 1853, r. 115 — 117. 
 
 causa, see Bowerbank v. Walker, 2 (k) Penrice and Wynn's case, 2 
 
 Chit. 517 ; Clack v. Dixon, 3 M. & Mod. 306. 
 
 VOL. III. Z Z
 
 706 
 
 BOOK V. — OF CIVIL INJURIES. 
 
 d f-o 
 
 [special bail for payment of the debt and costs (/);] and by 
 9 & 10 Vict. c. 95, s. 90, that no plaint entered in any county 
 court shall be removed into any superior court by any writ 
 or process, unless the debt or damage claimed shall exceed 
 51., and then only by leave of a judge of one of such courts, 
 on such terms as he shall think fit to impose (m). 
 
 [But the most important species of habeas corpus is that 
 "of habeas corpus ad subjiciendum (n), which is the remedy 
 used for the deliverance from illegal confinement. This is 
 7^ directed to any person who detains another in custody, and 
 commands him to produce the body of the prisoner, with 
 the day and cause of his caption and detention, ad facien- 
 dum, subjiciendum et recipiendum, — to do, submit to, and 
 receive whatsoever the judge or court awarding such writ, 
 shall consider in that behalf(o). This is a high prerogative 
 writ,] and issues out of any of the superior courts at West- 
 minster, including the Court of Chancery (p), not only in 
 term time, but also during the vacation (q), and runs into 
 all parts of the dominions of the Crown (r) ; [for the queen 
 is at all times entitled to have an account why the liberty 
 of any of her subjects is restrained (s), whenever that re- 
 
 (/) The bail must be put in within 
 eight days after the writ is allowed. 
 Reg. Gen. Hil. T. 1853, r. 116. 
 
 (to) See also 13 & 14 Vict. c. 61, s. 
 16 ; Reesu. Williams, 21 L. J. (Exch.) 
 24. Since the statute just referred to, 
 it would seem that a plaint is not 
 removable, even by order of a judge, 
 for the purpose of obtaining relief, in 
 any case where the statute affords 
 relief by way of appeal. 
 
 (n) As to the writ of habeas corpus 
 ad subjiciendum, &c. see R. v. Green- 
 hill, 4 Ad. & E. 624 ; Easton's case, 
 12 Ad. & E. 645 ; R. v. Batcheldor, 
 1 Per. & D. 516 ; S. C. nom. Leonard 
 Watson's case, 9 Ad. & E. 731 ; Ford 
 v. Nassau, 1 Dowl. N. S. 631 ; In re 
 Parker, 5 Mee. & W. 32 ; Jones v. 
 
 Danvers, ibid. 234 ; Carus Wilson's 
 case, 7 Q. B. 984; Queen v. Brenan, 
 
 16 L. J. (Q. B.) 289 ; In re Dunn, 
 
 17 L. J. (Q. B.) 97 ; Re Andrews, 4 
 C. B. 226. 
 
 (o) State Trials, viii. 142. 
 
 (p) 31 Car. 2, c. 2, s. 10; 56 Geo. 
 3, c. 100, s. 2. The Lord Chancellor 
 can issue the writ of habeas corpus 
 at common law in vacation. Crow- 
 ley's case, 2 Swanst. 1. 
 
 (q) See Wood's case, 3 Wils. 172; 
 Leonard Watson's case, 9 Ad. & E. 
 731. 
 
 (r) As to Jersey, Guernsey, &c. 
 vide Carus Wilson's case, ubi sup.; 
 Queen v. Brenan, ubi sup. 
 
 (s) Bourn's case, Cro. Jac. c. 543.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 707 
 
 [straint may be inflicted. If it issues in vacation, it is 
 usually returnable before the judge himself who awarded 
 it, and he proceeds by himself thereon (t), unless the term 
 should intervene, and then it may be returned in court («).] 
 It is necessary to apply for this writ by motion to the court, 
 or application to a judge (as the case may be), supported 
 by affidavit of the facts (x). [For, as was argued by Lord 
 Chief Justice Vaughan (y), " it is granted on motion, be- 
 cause it cannot be had of course ; and therefore there is no 
 necessity to grant it, for the court ought to be satisfied that 
 the party hath a probable cause to be delivered." And this 
 seems the more reasonable, because (when once granted) 
 the person to whom it is directed can return no satisfactory 
 excuse for not bringing up the body of the prisoner (z). So 
 that if it issued of mere course, without showing to the 
 court or judge some reasonable ground for awarding it, a 
 traitor or felon under sentence of death, a soldier or mariner 
 in the king's service, a wife, a child, a relation, or a do- 
 mestic, confined for insanity, or other prudential reasons, 
 might obtain a temporary enlargement by suing out a habeas 
 corpus, though sure to be remanded as soon as brought up 
 to the court. 
 
 And therefore Sir Edward Coke, when chief justice, did 
 not scruple in the thirteenth year of James the first to deny 
 a habeas corpus to one confined by the Court of Admiralty 
 for piracy, there appearing, upon his own showing, suffi- 
 cient grounds to confine him (a). On the other hand, if a 
 probable ground be shown that the party is imprisoned 
 without just cause (i), and therefore hath a right to be 
 delivered, the writ of habeas corpus is then a writ of right, 
 which may not be denied, but ought to be granted to every 
 
 (i) R. v. Clarke, Burr. 606. (z) Bourn's case, Cro. Jac. 543. 
 
 (a) Ibid. 460. (a) R. v. Marsh, 3 Bulstr. 27 ; see 
 
 (i) Hobhouse's case, 3 B. & Aid. also White v. Wiltshire, 2 Roll. Rep. 
 
 420. 138. 
 
 (y) Bushel's case, 2 Jon. 13. (b) 2 Inst. 615. 
 
 z z. 2
 
 708 BOOK V. OP CIVIL INJURIES. 
 
 [man that is committee], or detained in prison, or otherwise 
 restrained, though it be by command of the king, privy 
 council, or any other (c). 
 
 In a former part of these Commentaries^) we expatiated 
 at large upon the personal liberty of the subject. This was 
 shown to be a natural inherent right, which could not be 
 surrendered or forfeited, unless by the commission of some 
 great and atrocious crime, and which ought not to be 
 abridged in any case without the special permission of law. 
 A doctrine coeval with the first rudiments of the English 
 constitution ; and handed down to us from our Saxon an- 
 cestors, notwithstanding all their struggles with the Danes, 
 and the violence of the Norman conquest; asserted after- 
 wards and confirmed by the Conqueror himself and his 
 descendants ; and though sometimes a little impaired by the 
 ferocity of the times, and the occasional despotism of jealous 
 or usurping princes, yet established on the firmest basis by 
 the provisions of Magna Charta, and a long succession of 
 statutes enacted under Edward the third. To assert an 
 absolute exemption from imprisonment in all cases is in- 
 consistent with every idea of law and political society ; and 
 in the end would destroy all civil liberty, by rendering its 
 protection impossible ; but the glory of the English law 
 consists in clearly defining the times, the causes, and the 
 extent, when, wherefore, and to what degree, the imprison- 
 ment of the subject may be lawful. 
 
 This it is which induces the absolute necessity of ex- 
 pressing upon every commitment the reason for which it is 
 made, that the court upon a habeas corjjus may examine 
 into its validity ; and according to the circumstances of the 
 case may discharge, admit to bail, or remand the prisoner. 
 
 And yet early in the reign of Charles the first, the Court 
 of King's Bench, relying on some arbitrary precedents 
 (and those, perhaps, misunderstood), determined (e) that 
 they could not, upon a habeas corpus, either bail or deliver 
 
 (c) Com. Journ. 1 Apr. 1628. (e) State Trials, vii. 136. 
 
 (d) Vide sup. vol. i. p. 140.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 
 
 709 
 
 A'. 
 
 [a prisoner, though committed without any cause assigned, 
 in case he was committed by the special command of the 
 king, or by the lords of the privy council. This drew on a 
 parliamentary inquiry, and produced the Petition of Right, 
 in the third year of Charles the first, which recites this 
 illegal judgment, and enacts that no freeman hereafter shall "jfeZ 
 be so imprisoned or detained. But when in the following 
 year Mr. Selden and others were committed by the lords 
 of the council in pursuance of his majesty's special com- 
 mand, under a general charge of " notable contempts and 
 stirring up sedition against the king and government," the 
 judges delayed for two terms (including also the long- 
 vacation) to deliver an opinion how far such a charge was 
 bailable. And when at length they agreed that it was, 
 they however annexed a condition of finding sureties for 
 the good behaviour, which still protracted their imprison- 
 ment^).] 
 
 The difficulties thus allowed to impede the application 
 of the writ [gave rise to the statute 16 Car. I. c. 10, 
 s. 8, whereby it is enacted that if any person be com- 
 mitted by the king himself in person, or by his privy 
 council, or by any of the members thereof, he shall have 
 granted unto him, without any delay upon any pretence 
 whatsoever, a writ of habeas corpus, upon demand or 
 motion made to the Court of King's Bench or Common 
 Pleas ; who shall thereupon, within three court days after 
 the return is made, examine and determine the legality of 
 
 7, 
 
 7*- 
 
 £ ■?*■ 
 
 (f) Sir Nicholas Hyde, chief jus- 
 tice, also said on that occasion " that 
 " if they were again remanded for 
 " that cause, perhaps the court would 
 " not afterwards grant a habeas cor- 
 " pus, being already made acquainted 
 " with the cause of the imprison-: 
 " ment." State Trials, vii. 240, of 
 which Selden himself afterwards 
 gives the following account : " Etiam 
 
 judieum tunc primarius, nisi Mud 
 faceremus, rescripli illius forensis, qui 
 libertatis personalis omnimodaz vindex 
 legitimus est fere solus, usum omni- 
 modum palum pronuntiavit (sui semper 
 simili*) nobis perpeluo in posterum 
 denegandum. Quod, tit odiosissimum 
 juris prodigium, srieniioribus hie mil- 
 veisis ceusitum." (Vindic. Mar. 
 Clans, edit. a.d. 1653.)
 
 710 BOOK V.— OF CIVIL INJURIES. 
 
 [such commitment, and do what to justice shall appertain, 
 in delivering, bailing, or remanding such prisoner. Yet, 
 still in the case of Jenks, who in 1676 was committed by 
 the king in council for a turbulent speech at Guildhall (/*),] 
 new impediments were permitted to delay the release of 
 the party imprisoned (i); [the chief justice (as well as the 
 chancellor) declining to award a writ of habeas corpus ad 
 subjiciendum in vacation, though at last he thought proper 
 to award the usual writs ad deliberandum, Sfc, whereby the 
 prisoner was discharged at the Old Bailey (j). Other 
 abuses had also crept into daily practice, which had in 
 some measure defeated the benefit of this great constitu- 
 tional remedy. The party imprisoning was at liberty to 
 delay his obedience to the first writ, and might wait till a 
 second and a third, called an alias and a pluries, were 
 issued, before he produced the party ; and many other 
 vexatious shifts were practised to detain state prisoners in 
 custody.] These abuses at length gave birth to [the famous 
 Habeas Corpus Act, 31 Car. II. c. 2, which is frequently 
 considered as another Magna Charta (k) of the kingdom ; 
 and by consequence and analogy has also, in subsequent 
 times, reduced the general method of proceeding on these 
 writs (though not within the reach of that statute, but 
 issuing merely at the common law) to the true standard of 
 law and liberty (I). 
 
 (Ii) State Trials, vii. 471. jest and a fraud, yet the story proves 
 
 (i) The expression of Blackstone that a very formidable opposition 
 
 is, that " new shifts and devices were was made to it at that time. "It 
 
 " made use of to prevent his en- " was carried" (says he) "by an odd 
 
 " largement bylaw." But there is "artifice in the House of Lords. 
 
 perhaps no ground for imputing in- " Lord Grey and Lord Norris were 
 
 tentional oppression. " named to be the tellers ; Lord Nor- 
 
 (j) See Crowley's case, 2 Swans. 1. " ris, being a man subject to vapours, 
 
 (k) Vide supra, vol. i. p. 144. "was not at all times attentive to 
 
 (/) Bishop Burnet relates a cir- "what he was doing, so a very fat 
 
 cumstance respecting the habeas cor- " lord coming in, Lord Grey counted 
 
 pus act, which is more curious than "him for ten as a jest at first, but 
 
 creditable ; and though we cannot be " seeing Lord Norris had not ob- 
 
 induced to suppose that this im- " served it, he went on with his mis- 
 
 portant statute was obtained by a "reckoning of ten; so it was re-
 
 CHAP. XII.— OF PREROGATIVE WRITS, &C. 711 
 
 [The statute itself enacts, 1. That on complaint and re- 
 quest in writing by or on behalf of any person committed 
 and charged with any crime (unless committed for treason 
 or felony expressed in the warrant ; or as accessory, or on 
 suspicion of being accessory, before the fact, to any petit- 
 treason or felony ; or upon suspicion of such petit-treason 
 or felony, plainly expressed in the warrant ; or unless he 
 is convicted or charged in execution by legal process), the 
 lord chancellor or any of the judges, in vacation, upon 
 viewing a copy of the warrant, or affidavit that a copy 
 is denied, shall (unless the party has neglected for two 
 terms to apply to any court for his enlargement) award 
 a habeas corpus for such prisoner, returnable immediately 
 before himself or any other of the judges ; and upon the 
 return made shall discharge the party, if bailable, upon 
 giving security to appear and answer to the accusation in 
 the proper court of judicature (m). 2. That such writs 
 shall be indorsed, as granted in pursuance of this act, and 
 signed by the person awarding them. 3. That the writ 
 shall be returned and the prisoner brought up, within a 
 limited time according to the distance, not exceeding in any 
 case twenty days. 4. That any officer or keeper neglecting 
 to make due returns, or not delivering to the prisoner or 
 his agent within six hours after demand a copy of the war- 
 rant of commitment, or shifting the custody of a prisoner 
 from one to another, without sufficient reason or authority, 
 (specified in the act,) shall for the first offence forfeit 100/., 
 and for the second offence 200/., to the party grieved, and 
 be disabled to hold his office (n). 5. That no person, once 
 
 " ported to the House, and declared term. Rex v. Sliebbeare, 1 Burr. 460. 
 " that they who were for the bill were (») A person, sent over from Ire- 
 
 " the majority; though it indeed land under a warrant from the secre- 
 
 " went on the other side ; and by tary of state from Ireland, charged 
 
 " this means the bill past." — 1 Bur- with any offence, and committed to 
 
 net, Hist. Car. II. 485. — Ch. prison until he can be brought before 
 
 (m) Where the writ issues in vaca- a judge, is entitled to a copy of the 
 
 tion, returnable immediately before warrant, under the habeas corpus act, 
 
 a judge at chambers, it does not after it has been demanded. Sedley 
 
 expire by the commencement of the v. Arbouin, 3 Esp. 194.
 
 712 BOOK V. — OF CIVIL INJURIES. 
 
 [delivered by habeas corpus, shall be recommitted for the 
 same offence, on penalty of 500Z. 6. That every person 
 committed for treason or felony shall, if he requires it, the 
 first week of the next term, or the first day of the next 
 session of oyer and terminer, be indicted in that term or 
 session, or else admitted to bail ; — unless the witnesses for 
 the crown cannot be produced at that time ; and if ac- 
 quitted, or if not indicted and tried in the second term or 
 session, he shall be discharged from his imprisonment for 
 such imputed offence ; but that no person, after the assizes 
 shall be open for the county in which he is detained, shall 
 be removed by habeas corpus, till after the assizes are 
 ended ; but shall be left to the justice of the judges of 
 assizes. 7. That any such prisoner may move for and 
 obtain his habeas corpus, as well out of the Chancery or 
 Exchequer, as out of the Queen's Bench or Common Pleas ; 
 and the lord chancellor or judges denying the same, on sight 
 of the warrant or oath that the same is refused, shall forfeit 
 severally to the party grieved the sum of 500Z. 8. That 
 this writ of habeas corpus shall run into the counties 
 palatine, cinque ports, and other privileged places, and the 
 islands of Jersey and Guernsey. 9. That no inhabitant of 
 England, Wales, or Berwick (except persons contracting, 
 or convicts praying, to be transported, or having committed 
 some capital offence in the place to which they are sent) 
 shall be sent prisoner to Scotland, Ireland, Jersey, Guern- 
 sey, or any places beyond the seas, within or without the 
 king's dominions ; on pain that the party committing, his 
 advisers, aiders, and assistants, shall forfeit to the party 
 grieved a sum not less than 500/. ; shall be disabled to bear 
 any office of trust or profit ; shall incur the penalties of 
 praemunire ; and shall be incapable of the king's pardon. 
 
 This is the substance of that great and important statute : 
 which extends (we may observe) only to the case of com- 
 mitments for such criminal charges as can produce no in- 
 convenience to public justice by a temporary enlargement 
 of the prisoner : all other cases of unjust imprisonment
 
 CHAP. XII.— OF PREROGATIVE WRITS, &C. 713 
 
 [being left to the habeas corpus at common law. But even 
 upon writs at the common law it is now expected by the 
 court, agreeable to antient precedents (o) and the spirit of 
 the act of parliament, that the writ should be immediately 
 obeyed, without waiting for any alias or pluries ; otherwise 
 an attachment will issue.] And by 56 Geo. III. c. 100, it 
 is now provided — 1. That where any person shall be re- 
 strained of his liberty (other than for some criminal or sup- 
 posed criminal matter, and except persons imprisoned for 
 debt, or by process in any civil suit), any of the barons of 
 the exchequer of the degree of the coif, or any of the jus- 
 tices of either bench, shall, upon affidavit showing a pro- 
 bable and reasonable ground for such complaint, award in 
 vacation time a writ of habeas corpus, under the seal of 
 the court whereof he is a judge, directed to the person in 
 whose custody the party is confined, which shall be return- 
 able immediately before himself, or any other judge of the 
 court. 2. That upon disobedience to the writ, the judge 
 before whom it is returnable may issue a warrant to arrest 
 the party guilty of such contempt. 3. That if the writ 
 should be awarded so late in vacation that it cannot be 
 conveniently obeyed during vacation, the same may be 
 made returnable in the court to which the judge by whom 
 it is awarded belongs, on a certain day in the next term. 
 4. That if such writ shall be awarded by the Court itself 
 of Queen's Bench, Common Pleas, or Exchequer, so late 
 that it cannot be conveniently obeyed during the term, the 
 same may be made returnable in the then next vacation 
 before any of the judges. 5. That though the return to 
 the writ may be good in law, it shall be lawful for the 
 judge before whom it is returnable to proceed to examine 
 into the truth of the facts— and if it appears doubtful to 
 him whether they be true or not, it shall be lawful for such 
 judge to let to bail the person so confined, upon his enter- 
 ing into a recognizance to appear in the court to which the 
 judge belongs in the term following, which court may pro- 
 Co) R. v. Cowle, 2 Burr. 856.
 
 714 BOOK V. — OF CIVIL INJURIES. 
 
 ceed to examine into the truth of the facts in a summary 
 way by affidavit, and to order and determine as to the dis- 
 charge, bailing, or remanding of the party. 6. That the 
 like proceeding for controverting the truth of the return 
 may be had in the case where the writ shall be awarded by 
 the court itself, or be returnable therein. 7. That the 
 several provisions aforesaid shall extend to all writs of 
 habeas corpus awarded in pursuance of the act of the 
 thirty-first year of Charles the second. Lastly, that the 
 habeas corpus according to this act of 56 Geo. III. c. 100, 
 may run into any county palatine or cinque port, or other 
 privileged place, or the Islands of Jersey, Guernsey, and 
 Man, or any port, harbour, road, creek or bay upon the 
 coast of England or Wales lying out of the body of any 
 county. 
 
 [By which admirable regulations the remedy is now 
 complete for removing the injury of unjust and illegal con- 
 finement : a remedy the more necessary because the op- 
 pression does not always arise from the ill nature but some- 
 times from the mere inattention of government. For it 
 frequently happens in foreign countries (and has happened 
 in England during the temporary suspension of the statute) 
 that persons apprehended upon suspicion have suffered a 
 long imprisonment, merely because they were forgotten.] 
 
 VI. The writ of Certiorari. This issues out of the 
 Court of Chancery, or a superior court of the common 
 law, directed in the queen's name to the judges or officers 
 of inferior courts of record (p), commanding them to re- 
 turn the record of a cause depending before them, to 
 the end the party may have the more sure and speedy 
 justice (a). This writ may be had either in criminal or 
 civil cases. For in the former the Queen's Bench has a 
 superintendence over all inferior courts, and may remove 
 the indictments or other proceedings therein depending, 
 
 (p) Bac. Abr. Certiorari A. see Ex parte Phillips, 2 Ad. & El. 
 
 (7) As to courts not of record, 586.
 
 CHAP. XII. — OF PREROGATIVE WRITS, &C. 715 
 
 and transfer them to its own jurisdiction. But the consi- 
 deration of this use of the writ belongs more properly to the 
 next volume of these Commentaries : and our attention is 
 at present called to its application in civil cases only. Its 
 object here is similar in general to that of the habeas corpus 
 cum causa (r) — that is, to obtain relief from some inconve- 
 nience supposed in the particular case to arise from a cause 
 being allowed to proceed to trial before an inferior juris- 
 diction less capable than the superior court of rendering 
 complete and effectual justice (s). 
 
 There is, how r ever, this distinction between the two modes 
 of remedy, that by the latter writ the person of the defend- 
 ant (when he is in custody) as well as the proceedings in 
 the cause are capable of being removed from the court 
 below — while the writ of certiorari affects the proceedings 
 only (t). So that where an arrest of the defendant has 
 taken place in the inferior court, it is usual to resort to a 
 habeas corpus rather than a certiorari. The provisions be- 
 fore cited from the acts 1 & 2 P. k M. c. 13; 21 Jac. I. 
 c. 23; 19 Geo. III. c. 70 ; 7 & 8 Geo. IV. c. 71, and 9 
 & 10 Vict. c. 95, restrictive of the application of the writ 
 of habeas corpus cum causa, apply equally to the writ now 
 in question. But, on the other hand, it is enacted by 8 & 9 
 Vict. c. 127, s. 21, that any suit instituted in a court for 
 recovery of small debts within the meaning of that act 
 (which does not, however, extend to the county courts), 
 wherein the claim or demand shall exceed £10, shall be 
 removeable by certiorari or otherwise into any of the su- 
 
 (r) Vide sup. p. 705. be removed into a superior court, 
 
 *^(s) It is a general rule that a and all proceedings thereon, after 
 
 certiorari will not lie to remove a such removal, may be taken as if 
 
 cause from an inferior court after such judgment had been recovered 
 
 judgment. Walker v. Gann, 7 D. & in such superior court; 1 & 2 Vict. 
 
 R. 769. But by leave of a judge, c. 110, s. 22. +~ 
 a final judgment recovered in an in- («) See Doe v. Dring, 1 B. & C. 
 
 ferior court of record whereby any 253. 
 money is payable to any person, may
 
 716 BOOK V. — OF CIVIL INJURIES. 
 
 perior courts of common law by leave of a judge, and on 
 such terms as he shall order (i/). 
 
 In addition to these remedies by prerogative writs, we 
 may notice a species of relief (wholly unconnected with 
 the prerogative) afforded under particular circumstances 
 by the provisions of a modern act of parliament, and con- 
 clude the chapter with — 
 
 VII. The motion by way of interpleader, or, as it may 
 .o/e-^ be otherwise called, motion for relief from adverse claims. 
 It often happens that a man finds himself exposed to the 
 adverse claims of two opposite parties, each requiring him 
 to pay a certain sum of money, or to deliver certain goods, 
 and that he is unable to comply safely with the requisition 
 of either, because a reasonable doubt exists to which of 
 them the property in truth belongs. Until lately a person 
 so circumstanced had no means of relief except in a court 
 of equity, by a proceeding there called a bill of inter- 
 pleader, which was attended with considerable expense and 
 delay. But by 1 & 2 Will. IV. c. 58 (v), it is now pro- 
 vided, that upon application made on behalf of any de- 
 fendant sued in any of the superior courts at Westminster, 
 or in the court of common pleas of the county palatine of 
 Lancaster, or the court of pleas of the county palatine of 
 Durham, in any action of assumpsit, debt, detinue, or 
 trover, (such application being made after declaration and 
 before plea, by affidavit or otherwise,) showing that such 
 defendant does not claim any interest in the subject-matter 
 of the suit, but that the right thereto is claimed or supposed 
 to belong to some third party who has sued, or is expected 
 
 (») As to causes removed from W. 557 ; Johnson v. Shaw, 4 Man. & 
 
 inferior courts, vide Reg. Gen. Hi]. G. 916 ; Lindsey v. Barron, 6 C. B. 
 
 T. 1853, r. 115—117. 291 ; Horton v. Earl of Devon and 
 
 (v) And see 1 & 2 Vict. c. 45, s. others, 7 D. & L. 206. 
 2 ; Teggin v. Langford, 10 Mee. &
 
 CHAP. XIT. — OF PREROGATIVE WRITS, &C. 717 
 
 to sue for the same, and that such defendant does not in 
 any manner collude with such third party, but is ready to 
 bring into court, or to pay or dispose of the subject-matter 
 of the action in such manner as the court or any judge 
 thereof may direct — it shall be lawful for the court or judge 
 to make rules and orders calling upon such third party to 
 appear, and to state the nature and particulars of his claim, 
 and maintain or relinquish the same, and, if he maintains it, 
 to make himself defendant in the same action or otherwise ; 
 or, with the consent of the plaintiff and such third party, 
 may dispose of the question between them in a summary 
 manner. 
 
 By the same statute a similar protection is afforded to 
 sheriffs, and other officers, who under the process of the 
 court (x) are called upon to seize the goods of any person, 
 and are afterwards sued, or find themselves in danger of 
 being sued, by some third party claiming property in the 
 same goods (y). 
 
 (i) See as to goods seized under 710 ; Fenwick v. Laycock, 3 Q, B. 
 
 process of inferior courts, the pro- 108 ; King v. Simmonds, 7 Q. B. 
 
 perty of which is disputed, 7 & 8 289 ; Turner v. Kendal, 13 Mee. & 
 
 Vict. c. 96, s. 28 ; 9 & 10 Vict. c. 95, W. 171 ; Slaney v. Sidney, 14 Mee. 
 
 s. 118. & W. 800; Cobbett v. Richards, 15 
 
 (i/) See the following cases under Mee. & W. 194; Hollier v. Laurie, 
 
 the Interpleader Act : Patorni t>. 3 C. B. 334 ; Williams v. Crosling, 
 
 Campbell, 1 Dowl. & L. 397 ; Candy ib. 957 ; Mutton v. Young, 4 C. B. 
 
 and Dean v. Maugham, ibid. 745 ; 371 ; Crump v. Day, ib. 760; W T eb- 
 
 Goldschmidt v. Hamlet, 6 Man. & ster v. Delafield, 7 C. B. 187. 
 G. 187; Candy v. Maugham, ibid. 
 
 END OF THE THIRD VOLUME.
 
 I NDEX 
 
 TO THE THIRD VOLUME. 
 
 Abandonment of railways, 272, n. 
 
 Abatement of action, 574, 662 — 
 
 665. 
 
 of freehold, 474. 
 
 of nuisance, 340, 496. 
 
 pleas in, 574. 
 Abator, 475. 
 Abbey lands, 79. 
 Abduction of ward, 534. 
 of wife, 531. 
 Ability of clerk, 589, 673, n. 
 Abjuration, oath of, 56. 
 Abstracts of registration returns, 
 
 333. 
 Abuse and damage of chattels, 523. 
 Accedas ad curiam, 375. 
 Accord, 354. 
 Accountant-general, 409, n. 
 
 Account, action of, 527, n. 
 
 stated, action on, ib. 
 
 Act of Toleration, 56. 
 Uniformity, 53. 
 
 Actionable words, 465. 
 
 Action (or suit), 336, 362. 
 
 Actio personalis moritur cum per- 
 sona, 458, 537, n. 
 
 Action on a judgment, 646. 
 
 between partners, 528. 
 right of survival to personal 
 
 representatives, 458, 537, 
 
 n. 
 right of, when assignable, 
 
 458. 
 
 Actions, different forms of, 448. 
 for damages, ib. 
 founded on contracts or 
 
 torts, 452. 
 limitation of, 540 — 556. 
 local or transitory, 454. 
 mixed, 450. 
 
 of (generally), 447 — 459. 
 on promises, 452, n. 
 on the case, 452. 
 personal, 450 — 452. 
 possessory and droitural, 
 
 479. 
 proceedings in ordinary, 
 
 557—665. 
 proceedings in some parti- 
 cular, 666—688. 
 real, 375, 450. 
 
 abolished, 375, 485. 
 
 Actor, reus, and judex, 365. 
 
 Acts for churchbuilding, 105 — 117. 
 for uniformity of process, 564. 
 of indemnity, 56. 
 of parties, redress by, 337 — 
 
 358. 
 of uniformity 45, 53. 
 
 Actual right of possession, 481. 
 Adjournment day in dower, 668. 
 Admeasurement of pasture, 505. 
 Admiralty, appeals in, 429. 
 
 court of, 428. 
 
 prisoners, 215, n. 
 
 Admissibility of evidence, 617. 
 Admittance of a clerk, 26, 589. 
 Admittendumclericum,writad,675. 
 Ad quod damnum, writ of, 226.
 
 720 
 
 INDEX. 
 
 Adultery, 531, 532. 
 Adverse possession, 545, n. 
 Advocates, 368, n. 
 Advocati fisci, 368. 
 
 Advowson, 65. 
 
 appendant, 66. 
 
 collative, i'o. 
 
 derivation of the word, 
 65. 
 
 donative, 67. 
 
 exchange of, 111. 
 
 in gross, 66. 
 
 limitation of actions for, 
 543. 
 
 presentative, 66. 
 
 recovery of, 504. 
 
 sale of, 72. 
 Affectum, challenge propter, 602. 
 Affeerers, 440, n. 
 Affidavit, 690. 
 
 voluntary, 690, n. 
 Affirmance of judgments, 649. 
 Affirmation of jurymen, 605, n. 
 
 of quakers, Moravians, 
 &c, 56, n. 
 Aggregate corporation, 120. 
 Agreement — see Contract. 
 Alderman, 145. 
 Alehouses, 289. 
 
 Alienage, challenge of juror for, 
 599, n., 601, n. 
 
 Alienation by ecclesiastical persons, 
 
 90—97. 
 Allegations in pleading, 571. 
 Allegiance, oath of, 56. 
 Allowance of franchise, 700. 
 Alteration of highways, 226. 
 
 Amendment, 648. 
 
 statutes of, 632. 
 
 Amends, tender of, 471. 
 Amercements, 623, 631, n., 641, n. 
 
 645, n. 
 Anatomy, schools of, 304. 
 Animals, dangerous, 464. 
 Animus furandi, 518. 
 Annuity, government, 194. 
 Annulum et baculum, investiture 
 
 per, 7. 
 
 Antiquaries, the Society of, 122. 
 Apostasy from Christianity, 51. 
 Apothecaries, 305. 
 Apparent right of possession, 480. 
 Appeal, courts of, 411, 412, 418, 
 650. 
 
 prosecution by, 537, n. 
 from an order of removal, 
 
 167, 168. 
 to House of Lords, 650. 
 Appearance, 562, 565. 
 Appendant, advowson, 66. 
 Apprentices, 128, n. 
 Apprenticii ad legem, 366. 
 Appropriations, 19 — 24. 
 Approvement, 506, n. 
 Arbitrary consecration of tithes, 76. 
 Arbitration, 355. 
 Archbishops, 5, 10, 13, n., 62. 
 courts of, 423. 
 election of, 6. 
 how deprived, 15. 
 
 Archdeacon, 17. 
 
 court of, 422. 
 Arches, court of, 423. 
 
 dean of the, 423. 
 Argument of demurrer, 563. 
 Array, challenge to, 598. 
 Arrear, rent in, distress for, 342, n. 
 Arrest, barristers and attorneys, 
 how far privileged from, 
 371, n. 
 for debt, 654. 
 malicious, 474. 
 of judgment, 632, 647. 
 Arsenic, sale of, 263, n., 307, n. 
 Articled clerks, 308. 
 Articles of faith, 43. 
 Assault, 461. 
 
 when justifiable, 463. 
 Assessment to parochial rates,l 75, n. 
 
 to poor rate, 172. 
 Assessors in boroughs, 146, n. 
 
 in inferior courts, 396, n. 
 of the bishop, 14. 
 Assignment, new, 578. 
 
 of errors, 649. 
 
 of share in ship, 238. 
 
 of right of action, 458.
 
 INDEX. 
 
 721 
 
 Assistant overseers, 172. 
 Assize, commission of, 416. 
 
 courts of, 413. 
 
 judges of, ib. 
 
 writs of, 479, n. 
 Assizes, 597. 
 Association, writ of, 417. 
 Assuming to be a corporation, 133. 
 Assumpsit, 452, n., 524, 575, n. 
 Asylum for paupers, 175. 
 
 lunatic, 201. 
 Attachment against witnesses, 607. 
 for contempt, 364, 691 . 
 writ of, 671. 
 Attachments, court of, 431, 432. 
 Attaint, writ of, 631, n. 
 Attesting witness, proof by, 614. 
 
 Attorney-at-law, 365. 
 
 appearance by, ib. 
 
 Attornej'-general, 367. 
 
 information by, 
 
 180, 701. 
 ofqueen-consort, 
 
 368. 
 
 Attornies, 307, 365. 
 
 privileges of, 366. 
 registrar of, 309. 
 
 Attornies and solicitors, 307 — 312. 
 
 Audita querela, 646, n. 
 
 Auditors in boroughs, 146. 
 
 Aula regia, 387, 388. 
 
 Average price of corn, 86. 
 
 Averia carucse, 347. 
 
 Avowry, 676. 
 
 Award, 356. 
 
 of tithe commissioners, 85. 
 setting aside, 358. 
 
 B. 
 
 Bacon, Lord, 408. 
 Bail, action against, 654. 
 
 below, 569. 
 
 bond, 570. 
 
 court, 392, n. 
 
 in civil cases, 569, 654. 
 
 in error, 648. 
 
 VOL. III. 
 
 Bail, in replevin, 515. 
 
 scire facias against, 665. 
 to the action, 569. 
 to the sheriff, ib. 
 
 Bailment, 527. 
 
 Banc, sittings in, 415, 560, 561. 
 
 Bank charter, 315, 321. 
 
 Banking partnerships, 323,325. 
 
 Bank of England, 313, 314. 
 establishment, 321. 
 notes, 318. 
 
 present constitution of, 321. 
 restriction of cash payments 
 
 by, 316. 
 run on the, 316. 
 
 Bankruptcy, court of, 418. 
 
 effect of, pending ac- 
 tion, 664. 
 
 Banks, 313—325. 
 branch, 317. 
 in general, 323. 
 joint stock, 317, 323. 
 of deposit, 315. 
 of issue, 315, 322. 
 origin of, 313. 
 private, 319. 
 
 Baptists, 52. 
 
 Barbers of London, 302. 
 
 Bar, pleas in, 575. 
 
 trial at, 591. 
 Barmote courts, 437, n. 
 Baron, court, 374. 
 Barons of the Exchequer, 391. 
 
 Barrister appointed to certify rules 
 for savings banks, 191, n. 
 
 Barristers, 366. 
 
 Bastards, settlement of, 161. 
 
 Bastardy, special and general, 588. 
 
 Baths, public, 263, n. 
 
 Battel, wager of, 584, n. 
 
 Battery, 461. 
 
 of wife, 533. 
 
 when justifiable, 463. 
 
 Beacons, 247. 
 
 Beadle, 42, n. 
 
 Beating and wounding, 462. 
 
 3 A
 
 722 
 
 INDEX. 
 
 Beer acts, 287. 
 
 Bench, common, court of, 269, 392. 
 Queen's — see Queen's 
 Bench. 
 
 Benefice, 26, 424, n. 
 Benefit building societies, 198. 
 of clergy, 4, n. 
 
 Benevolent institutions, 188. 
 Bethlehem, 206, n., 208. 
 
 Bill, attorney's or solicitor's, 311. 
 commencement of action by, 
 
 395, n. 
 of exchange, action on, 529, 
 
 657. 
 of exceptions, 618. 
 of Middlesex, 395, n. 
 Births, deaths and marriages, 326 
 —334. 
 registry of, 330. 
 
 Bishops, 5, 14, 406. 
 
 courts of, 14, 422. 
 election of, 6. 
 how deprived, 15. 
 number of, 10. 
 suffragan, 12, n. 
 
 Board of health, 259. 
 
 of trade, 244,270,278,324. 
 Boats and lights to be carried by 
 sea-going vessels, 277. 
 
 Body corporate, 117. 
 
 Bona notabilia, 424. 
 
 Bonds, action on, 528, 553. 
 
 Booty of war, 428. 
 
 Borough lunatic asylums, 201. 
 justices, 147. 
 quarter sessions, ib. 
 rate, 148, n. 
 recorder, ib. 
 
 Boroughs, 144. 
 
 municipal elections in, 
 146. 
 Bounty on fisheries, 252. 
 Branch banks, 317. 
 Breach of close, 488. 
 
 of charitable trust, 184. 
 of contract, 524. 
 of pound, 350. 
 
 Bridewell, 210. 
 
 Bridges, 219, 226. 
 
 Bringing the venue back, 573. 
 
 British continental possessions, 240. 
 ships, 236. 
 
 Bubble Act, 133, n. 
 
 Building leases by incumbents, 95. 
 
 Bullion in bank, 321. 
 
 Burgess, 145. 
 
 roll, 145, 150. 
 
 Burgesses, municipal rights of, 141 
 —149. 
 
 Burial fees, 99, n. 
 
 of paupers, 175, n. 
 Bye laws of corporations, 128. 
 
 of railways, 271. 
 By the country, trial, 590 — see 
 Jury, Trial by. 
 
 Caerleon, Archbishop of, 9, n. 
 Calling the jury, 597. 
 
 the plaintiff, 623. 
 Cambridge, 122, 444, 445. 
 Cancelling letters patent, 398. 
 Canonical obedience, 14, n. 
 Canon law, 2, 43, 46, 419. 
 Canonries, 17. 
 
 suspension of, 113. 
 
 Canons of a cathedral, 16. 
 
 Cape, grand, 668. 
 petit, 668, n. 
 
 Capias ad respondendum, 570. 
 ad satisfaciendum, 652. 
 in withernam, 516. 
 Carriages and conveyances, 264 — 
 
 279. 
 Case, action on the, 453. 
 
 special, 625, 636, 683. 
 
 Casting an essoign, 668, 671. 
 
 Casual ejector, 680, 682, n. 
 
 poor, 164. 
 Casu consimili, writ in, 397, 403, 
 
 453. 
 Cathedral churches, 14, 112. 
 preferment, 26, n. 
 Catholic Emancipation Act, 59.
 
 INDEX. 
 
 723 
 
 Cattle, diseases among, 263, n. 
 trespass by, 491. 
 
 Causes of action, joinder of, 581, n. 
 
 Caveat against institution of a 
 
 clerk, 510. 
 Censors of College of Physicians — 
 
 see Elects. 
 Centeni, 376. 
 Certificated special pleader, 310. 
 
 Certificate for costs, 646. 
 of lunacy, 206. 
 of registry of ship, 236, 
 
 237. 
 of settlement, 155, n. 
 settlement by, ib. 
 trial by, 587. 
 Certiorari, writ of, 382, 586, n. 
 
 in replevin, 675. 
 Cessavit, 503. 
 Cession of benefice, 34, 69. 
 Challenge, principal, 599. 
 
 propter honoris respec- 
 tum, 600. 
 defectum, ib., 601. 
 affectum, 602. 
 delictum, 603. 
 to the array, 598. 
 to the favour, ib., 599. 
 to the polls, 600. 
 
 Chamberlain, lord, of the household, 
 296. 
 
 Chambers, practice before a judge 
 at, 689. 
 
 Chancel, 64. 
 
 Chancellor, lord, 409. 
 
 of a diocese, 14. 
 of the duchy of Lan- 
 caster, 437. 
 of the university, 443. 
 
 Chancery, court of, 399. 
 
 common law seal, 400, n. 
 
 common law side, his- 
 tory of, 400. 
 
 equity side, history of, 
 401. 
 
 original writ out of, 403. 
 
 origin of the name, 397. 
 
 Change of venue, 572. 
 Channel Islands, 240. 
 
 Chapelries, consolidated, 105. 
 Chapels, 103, 107, 113. 
 
 of ease, 103. 
 Chapter, dean and, 15. 
 Character of servant, 468. 
 Charge in equity, 642 
 
 on benefices, 97. 
 
 to the jury, 621. 
 
 Chargeable lunatics, 202. 
 
 paupers, 155, 164. 
 Charging stock in execution, 660, n. 
 
 in execution, 704, n. 
 Charitable commission, 179, 180, 
 181,182. 
 donations, 185. 
 
 registry of, 180. 
 legacies, 187. 
 trusts, 186. 
 uses, 177. 
 Charities, laws relating to, 177 — 
 200. 
 jurisdiction of the Chan- 
 cellor as to, 185. 
 Charter house, 129. 
 
 of Bank of England, 315. 
 of College of Physicians, 
 
 302. 
 of incorporation, 124, 133. 
 party, 530. 
 Chemists, 306. 
 
 Chester, county palatine of, 437, n. 
 Chief justices, 396. 
 
 rents, 342. 
 China trade, 241, 243. 
 Chivalry, court of, 427. 
 Cholera, 258. 
 Chorepiscopi, 12, n. 
 
 Christian courts — see Ecclesias- 
 tical Courts. 
 
 Church, authorities in, 2. 
 
 building acts, 105, n. 
 
 commissioners, 109. 
 
 compulsory attendance at, 
 51. 
 
 discipline act, 14, 36, n. 
 
 doctrines of, 43. 
 
 endowments and provi- 
 sions of, 61. 
 
 estate commissioners, 109, 
 n. 
 
 3 a 2
 
 724 
 
 INDEX. 
 
 Church, extensions of establishment 
 of, 102. 
 rate, 40. 
 
 repairs of, 39, 64. 
 service, 44. 
 wardens,3S-40,124,152 
 
 yard, 64. 
 
 in London, 40, n. 
 
 Cider, 291. 
 
 Cinque ports, 249, 250, 438. 
 Circuits, 414, 416, n. 
 Circumstantial evidence, 617. 
 Circumstantibus, tales de, 604. 
 
 Civil injuries, 336, 447. 
 
 law, 449. 
 
 lay incorporations, 121, 137. 
 
 redress, 336. 
 Clausum fregit, 488. 
 
 Clergy, the, 2. 
 
 benefit of, 4, n. 
 Clericum admittendum, writ ad, 
 
 675. 
 Clerk, deprivation of, 35. 
 
 induction of, 29. 
 
 institution of, ib. 
 
 parish, 41. 
 
 presentation of, 27. 
 
 residence of, 32 — 34. 
 
 Clerks in the Chancery, 403. 
 
 Clients, 369. 
 
 Close, breach of, 488, 489. 
 
 Club, liability of members of, 132, n. 
 
 Coadjutors, 12, n. 
 
 Coal mine, inspectors of, 263, n. 
 
 Coast trade, 239. 
 
 of India, 242. 
 
 Cognizance, 676. 
 Cognovit, 636, 640, n. 
 Coif, degree of the, 367, n. 
 Coke, Sir E., 407. 
 Collation to benefice, 29, 68. 
 Collative advowson, 66. 
 Collectors of poor rate, 172. 
 College leases, 93. 
 
 of Physicians, 122, 125, 
 136. 
 
 of Surgeons, ib. 
 
 Colleges, 123, 137. 
 
 Collegia, 120. 
 
 Collegiate church, 14, u. 
 
 Colonial land and emigration com- 
 missioners, 275. 
 ordination, 14, n. 
 voyages, 277. 
 
 Colour in pleading, 577, n. 
 
 Commendam, livings in, 36. 
 
 Commercial convention with Ame- 
 rica, 241, n. 
 treaty with Portugal, 
 ib. 
 
 Commission, high court of, 426. 
 in lunacy, 206, 207. 
 of charitable uses, 178. 
 of gaol delivery, 416. 
 of nisi prius, ib. 
 of oyer and terminer, ib. 
 of review, 425, n. 
 of the peace, 416. 
 to examine witnesses, 
 608. 
 
 Commissioners, ecclesiastical, 109. 
 estate, 109, n. 
 for administering the laws 
 
 for the relief of the poor 
 
 in England, 158. 
 for building new churches, 
 
 105, n. 
 of assize, &c, 413. 
 
 of bankruptcy, 418. 
 of emigration, 275. 
 of excise, 265. 
 of northern lights, 248, n. 
 of railways, 270. 
 of sewers, 434. 
 of turnpike roads, 228. 
 
 Committal of prisoners to house of 
 correction, 211. 
 
 Committee of peers, 413. 
 
 Common bench, court of, 392. 
 
 disturbance of, 505, 506. 
 fund of a union, 164, n. 
 informer, 555. 
 jury, 593. 
 
 lodging houses, 263, n. 
 pleas, court of, 369, n., 
 391,
 
 1M)KX. 
 
 725 
 
 Common, surcharge of, 505. 
 without stint, ib. 
 
 Common Law Procedure Act, 450, 
 n., 451, n., 452, n., 465, n., 
 520, 521, 524, 552, n., 564— 
 665, 667, n., 668, n., 676, 
 682—688, 689, n., 704, n. 
 
 Communities, 141, n. 
 
 Commutation of tithes, 84. 
 
 Companies clauses act, 135, n. 
 
 Company,jointstock,134,317,323. 
 of watermen, 274. 
 
 Compensatio, 575, n. 
 Competency of witness, 609. 
 Composition, real, 79. 
 Concessit solvere, action of, 526, n. 
 
 Concurrent jurisdiction of superior 
 and county court, 382. 
 leases, 93, n. 
 writs of summons, 566. 
 
 Conductors of public carriages, 270. 
 Conferring a living, 29. 
 Confession and avoidance, pleadings 
 in, 576. 
 or default, judgment by, 
 636, 640. 
 Confirmation of bishop, 6, 8, 9. 
 Conge d'eslire, 8, 16. 
 Conscience, courts of, 441, 442. 
 
 Consecration of tithes, 77. 
 
 bishops, 6, 8. 
 Consentof crown to corporation, 124. 
 rule, 680. 
 
 Consequential damages, 457. 
 Consideration est per curiam, 638. 
 Consimili casu, writs in, 397, 403, 
 
 453. 
 Consistory court, 14, 422. 
 Consolidated chapelries, 105. 
 Conspiracy, 472. 
 
 Constable, action against, 555. 
 lord high, 387. 
 of Dover Castle, 249. 
 
 Constitutions of Clarendon, 404. 
 
 Contagious disease, 261. 
 
 among cattle, 
 263, n. 
 
 Contempt of court, 364, 691. 
 Continuing nuisance, 496. 
 Contract and tort, 451. 
 
 breach of, action for, 45 1 , 
 
 524. 
 simple, 552. 
 Contributories, 135. 
 Controllers of the hanaper, 401, n. 
 Conventicle act, 54, 57. 
 Conventicles, irregular, 57. 
 Conversion of chattels, 521. 
 Conveyances by water, 272 — 279. 
 Convocation, 4, n., 11, 425. 
 Copy, proof by, 615. 
 Copyhold, execution against, 659. 
 Copyright, infringement of, 524. 
 Coronation , by whom performed, 1 3. 
 Corporate body — see Body Cor- 
 porate. 
 name, 126. 
 Corporation act, 53. 
 
 aggregate and sole, 89, 
 
 120. 
 bond to, 131. 
 by prescription, 124. 
 civil and eleemosynary, 
 
 121. 
 ecclesiasticalandlay,*'6. 
 how created, 123. 
 how dissolved, 139. 
 how visited, 136. 
 incidentsofa, 126-132. 
 in the universities, 122, 
 
 137. 
 nature or definition of, 
 
 118. 
 municipal, 122, 141 — 
 
 150. 
 officers, 130. 
 of London, 140. 
 origin of, 118. 
 seal, 130. 
 Correction, house of, 210. 
 Corse present, 99. 
 
 Costs, 616,643. 
 
 double and treble, abolished, 
 
 643, n. 
 in dower, 669. 
 in error, 650, n. 
 in mandamus, 695. 
 in quare impedit, 674.
 
 726 
 
 INDEX. 
 
 Costs in replevin, 678. 
 
 taxing, 643, 644, n. 
 
 to the defendant, 644. 
 
 to and from the crown, 644. 
 
 Council, borough, 145, 147. 
 
 of conscience, 401, n. 
 
 Counsel, 366, 690. 
 
 privileges of, 371, n. 
 
 Count in dower, 668. 
 
 Country causes, 593. 
 
 Counts in pleading, 580. 
 
 County bridges, 219. 
 
 court (antient), 380, 517. 
 (new), 380-386, 517, 
 676. 
 lunatic asylums, 201. 
 palatine — see Palatine. 
 rate, 174, n. 
 Court, archdeacon's, 422. 
 bail, 392. 
 barmote, 437, n. 
 baron, 374. 
 borough, 380, n. 
 christian — see Ecclesias- 
 tical Courts. 
 contempt of, 364. 
 consistory, 422. 
 county, 370, n., 377—386, 
 
 517, 676. 
 ecclesiastical, 419. 
 forest, 431. 
 hundred, 376. 
 of admiralty, 428. 
 of appeal in chancery, 410. 
 of arches, 423. 
 of attachment, 431. 
 of bankruptcy, 418. 
 of chancery, 397. 
 of chivalry, 427. 
 of common pleas, 369, n., 
 
 391. 
 of delegates, 428. 
 of exchequer, 386. 
 
 chamber, 411. 
 of great session in Wales, 
 
 445, n. 
 of high commission, 426. 
 of hustings, 441, n. 
 of insolvency, 418. 
 of justice, 363. 
 
 under Alfred, 372. 
 of justice seat, 431. 
 
 Court of peculiars, 423. 
 
 of piedpoudre, 430. 
 
 of policies of assurance, 435. 
 
 of queen's bench, 392, 394, 
 
 n. 
 of regard, 431. 
 of sewers, 434. 
 of Shepway, 439. 
 of the duchy chamber of 
 
 Lancaster, 437. 
 of the marshalsea, 446, n. 
 of the sheriff of London, 44 1 . 
 palace, 446, n. 
 prerogative, 424. 
 sweinmote, 431. 
 
 Courts at Westminster, 395. 
 in general, 362—371. 
 inferior, 374—386. 
 London, 441, 443. 
 maritime, 428. 
 military, 427. 
 not of record, 364. 
 of appeal, 424. 
 of assize and nisi prius, 413. 
 of equity, 397. 
 of general jurisdiction, 372 
 
 —418. 
 of special jurisdiction, 430 
 
 —446. 
 of the counties palatine, 437, 
 
 650, n. 
 of the cinque ports, 438. 
 of record, 364, 399, n. 
 of requests or conscience, 
 
 379,441. 
 stannary, 412, n., 439. 
 superior, 395. 
 university, 444. 
 voluntary, 424. 
 
 Covenant, action of, 452. 
 in a lease, 525. 
 
 Covenants as to title, 525. 
 
 Covent Garden Theatre, 299. 
 
 Credibility of witness, 609. 
 
 Crimes, 336. 
 
 Cross examination, 612. 
 
 Crown, supremacy of, 45. 
 
 Curate, 37. 
 
 licence of, ib. 
 perpetual, 24. 
 stipend of, 37.
 
 INDEX. 
 
 727 
 
 Custody of idiots and lunatics, 395. 
 Custom of London, 587. 
 
 officers, actions against, 
 555. 
 Customary services, 503. 
 Cy-pres, 187. 
 
 D. 
 
 Damage feasant, 340, 341, n., 491. 
 to things personal, 513 — 
 539. 
 Damages, action for, 450. 
 in dower, 669. 
 in quare impedit, 674. 
 Damnum absque injuria, 457, 467, 
 
 493, n., 496. 
 Darreign presentment, assize of, 
 
 509, 543, 559. 
 Days in the Terms, 554, 560. 
 Deacon, 2. 
 Deacon's orders, 26. 
 Dean and chapter, 15 — 17. 
 
 of the arches, 423. 
 Deanery, 16. 
 Deans, rural, IS. 
 
 Death by negligence, action for, 
 459. 
 effectof, pending action, 662. 
 Deaths, registering of, 331. 
 Debt, action of, 452, 530. 
 
 Debts, judgment, 642. 
 
 not exceeding 20/., 654. 
 
 simple contract, 552. 
 
 specialty, 553. 
 
 Decanus, 16. 
 
 Deceit, writ of, 646, n. 
 
 Decern tales, 604. 
 
 Declaration, 568, 572. 
 
 against transubstantia- 
 
 tion, 54. 
 in lieu of oath, 690, n. 
 in prohibition, 698. 
 in quare impedit, 672. 
 in replevin, 676. 
 
 De consuetudinibus, &rc, writ, 508. 
 
 Decrees in equity, 643, n. 
 
 De ejectione firma?, writ, 483. 
 
 Defamation, 469—471. 
 Defamatory libels, 280, n., 470. 
 
 Default, judgment by, 567, 636, 
 
 640. 
 Defectum, challenge propter, 606. 
 
 Defence of self, of children, &c, 
 337. 
 
 Defendants in ejectment, 683. 
 
 in quare impedit, 512. 
 
 Deferred annuities, 195. 
 
 Deforcement, 476. 
 
 Deforciant, 481. 
 
 Degrees of Lambeth, 13. 
 
 De haeretico comburendo, writ, 48, 
 50. 
 
 De homine replegiando, writ, 704, n. 
 Delegates, court of, 423, 425. 
 Delictum, challenge propter, 603, 
 
 609. 
 Deliverance, second, writ of, 678. 
 Delivery of declaration, 568, n. 
 of pleadings, ib. 
 of signed bill, 311. 
 Demandant and tenant, 668, 669. 
 De medietate lingua?, jury, 599, n. 
 Demurrer, 573. 
 
 book, 583. 
 general, 574, n. 
 joinder in, 580. 
 judgment on, 636. 
 setting down for argu- 
 ment, 583. 
 special, 574, n. 
 to evidence, 619. 
 De odio et atia, writ, 704, n. 
 Departure in pleading, 579. 
 Depasturing, injury by, 507. 
 Deprivation of archbishops and 
 bishops, 15. 
 of an incumbent, 35, 
 69, 589, 673 ,n. 
 Deptford Strond, Trinity House of, 
 
 247. 
 De retorno habendo, 678. 
 Derivative settlement, 155. 
 Descent cast, 481, 485. 
 Destitute wayfarers, &c, 164, n.
 
 728 
 
 INDEX. 
 
 Detainer of the freehold, 477. 
 
 unlawful, 519. 
 Detention of the person, 473. 
 Detinue, action of, 452, 519, 651. 
 Dies fasti et nefasti, 558. 
 Dilapidations, 02, 90, 501. 
 Dilatory pleas, 574. 
 Diocesan courts, 14. 
 Direct evidence, 017. 
 Directors of convict prisons, 210, 
 
 217. 
 Disabilities of clergymen, 4. 
 Disability, 546, 551, 554. 
 Disabling statutes, 90. 
 Disappropriations, 21. 
 
 Discharge of jury, 623. 
 
 of prisoner, by sheriff or 
 gaoler, 653, n. 
 
 pleas in, 575. 
 Discontinuance, 478. 
 Disease Prevention Act, 201, 202. 
 Dispensation, 13. 
 Disseisin, 470. 
 Disseisor, 339. 
 
 Dissenters, 52. 
 
 Chapel Act, 187. 
 
 relief of, 50—59. 
 Dissenting ministers, 55. 
 Dissolution of corporation, 139. 
 
 of railways, 272, n. 
 
 Distress, 341 . 
 
 damage feasant, 341, 343. 
 
 excessive, 349. 
 
 exemption from, 344-347. 
 
 for rent, 342, 502. 
 
 for services, 343, 502. 
 
 grand, 071. 
 
 illegal, 353. 
 
 impounding of, 351. 
 
 infinite, 502, 071. 
 
 sale under, 352. 
 
 under acts of parliament, 
 
 342. 
 where it lies, 343. 
 
 Distributions, statute of, 190. 
 District county courts — see County 
 Courts (new). 
 parishes, 105, 113-116. 
 
 District prisons, 213. 
 
 schools for poor, 1 75, n. 
 surveyor, 223. 
 Distringas in detinue, 651. 
 
 in quare impedit, 671. 
 in replevin, 676. 
 juratores, 417. 
 to compel appearance, 
 567, n. 
 Disturbance, injury of, 504. 
 
 of common, 504, 505. 
 of divine service, 40. 
 of franchises, 504. 
 of patronage, 508, 
 
 072. 
 of religious assem- 
 blies, 55. 
 of tenure, 507. 
 of ways, ib. 
 Diversite des Courtes, 406. 
 Divine right to tithes, 74. 
 Docketing judgments, &c, 642, n. 
 Doctors' Commons, 423. 
 Doe, John, 680. 
 Dog, dangerous, 404. 
 Domesday Book, 580, n. 
 Donation of a living, 30. 
 Donative, 06, 67, 81, 83. 
 Double and treble costs, 643, n., 
 679. 
 pleading, 582. 
 
 Dower, 451, 666. 
 
 arrears of, 550. 
 
 judgment in, 070. 
 
 uncle nihil habet, 066. 
 
 writ of right in, 451, 666. 
 I Drainage, 263, n. 
 Drivers of public carriages, 266. 
 Droitural actions, 479. 
 Druggists, 306. 
 Drury Lane, 299. 
 Duces tecum, 607. 
 Duchy court of Lancaster, 412, 
 
 437. 
 Dungeness, 249. 
 Duplex querela, 511. 
 Duplicatio, 579, n. 
 Durham, county palatine of, 437.
 
 INDEX. 
 
 729 
 
 E. 
 
 Earl marshal, 427. 
 
 Easter offerings, 98. 
 
 East Indian Company, 241. 
 trade, ib. 
 
 Eat inde sine die, 641. 
 
 Ecclesiastical authorities, 2. 
 
 commissioners, 109. 
 corporations, 1 21 ,1.36. 
 courts, 401,419,423, 
 
 424. 
 districts, 103. 
 dues, 98. 
 leases, 90—97. 
 persons, alienation by, 
 
 89. 
 
 Economy, laws of social, 117. 
 Education of poor, 184. 
 Edward the Confessor, 421. 
 Ejectione firmae, de, 483. 
 
 Ejectment, action of, 451, 483, 
 486, 679—688. 
 between landlord and 
 
 tenant, 687. 
 proceedings in vacation, 
 ib. 
 
 Election of bishops, 6. 
 
 Electors, 599, n. 
 
 Electric telegraphs, 271. 
 
 Elects of College of Physicians, 301. 
 
 Eleemosynary corporations, 123, 
 136, 137. 
 
 Elegit, writ of, 642, n., 658. 
 
 Elisors, 599, n. 
 
 Ellesmere, Lord, 406. 
 
 Eloignment, 516. 
 
 Elopement, 669. 
 
 Emigration officers, 275. 
 
 of paupers, 175, n. 
 
 Enabling and disabling statutes, 
 90, 93. 
 
 Endowment of new churches, 107. 
 
 Endowments, church, 61. 
 
 Entering cause for trial, 594. 
 
 Entry, 339. 
 
 by reversioner, 491. 
 forcible, 340, 486,n.,489,n. 
 for trial, 594. 
 of judgment on record, 582, 
 
 592, 627, 635, 637. 
 on lands, 480, 484. 
 peaceable, 339. 
 right of, 479. 
 writs of, ib. 
 
 Epidemic disease, 261. 
 
 Episcopal functions, 15, n. 
 
 Equity, 402—408. 
 
 charge in, 642. 
 courts of, 409. 
 side of Exchequer, 390. 
 
 Error, 647, 684. 
 
 Escape, 209. 
 
 Essoign, 668, 671. 
 
 Estate committee, 109, n. 
 
 Estoppel, 577, 578. 
 
 Estovers, 497. 
 
 Estrepement, writ of, 500. 
 
 Evidence by counsel or attorney 
 in the cause, 611. 
 
 confined to point in issue, 
 613. 
 
 demurrer to, 619. 
 
 documentary or parol, 
 607. 
 
 English and civil method 
 of, compared, 619. 
 
 hearsay, 615. 
 
 law of, in general, 607 — 
 620. 
 
 of a child, 608, n. 
 
 of interested persons, 609. 
 
 of parties to the cause, ib. 
 
 of what, not required, 
 613. 
 
 positive or circumstan- 
 tial, 617. 
 
 secondary, 615. 
 
 the best must be ad- 
 duced, 614. 
 
 Eundo, morando et redeundo, 608.
 
 730 
 
 INDEX. 
 
 Examination in chief, 612. 
 
 of attornies and soli- 
 citors, 309. 
 
 of witnesses, 610 — 
 612. 
 
 Examiners of apothecaries, 305. 
 of attornies, 308. 
 of college of physicians, 
 
 301. 
 of surgeons, 304. 
 
 Exceptions, hill of, 618. 
 
 Excessive damages, new trial for, 
 629. 
 distress, 349. 
 
 Exchange, bill of, 529, 657. 
 
 Exchequer Chamber, court of, 410. 
 court of, 386, 390. 
 jurisdiction of, 391. 
 origin of, 387. 
 usurpation of, 390, n, 
 why so called, 390. 
 proceedings in error 
 
 from, 391. 
 receipt of, ib. 
 
 Excise licence, 288. 
 
 officers of, action against, 
 553. 
 Ex contractu, actions on, 452. 
 Ex delicto, actions, ib. 
 
 Execution against members of joint- 
 stock companies, 319, n. 
 in civil cases, 651 — 661. 
 speedy, 635, n., 639, n. 
 out of inferior courts, 422. 
 
 Executor, actions by and against, 
 458. 
 
 Exempted persons from serving on 
 juries, 603. 
 things from distress, 344. 
 
 Exemption from tithes, 78. 
 from tolls, 231. 
 
 Expenses of witnesses, 608. 
 
 Express colour, 577, n. 
 
 Extra-parochial places, 103, 106, n. 
 
 Eye, depriving of the, 461. 
 
 Eyre, justices in, 414, 433. 
 
 Fact, error in, 647. 
 
 Factories, 263, n. 
 
 Faculty, right to a pew by, 64. 
 
 Fair, 495. 
 
 Faith, articles of, 43. 
 
 False imprisonment, 473, 706. 
 
 judgment, 375, 647. 
 
 verdict, 631, n. 
 Farming leases by incumbents, 95. 
 Faryndon Inn, 367, n. 
 Favour, challenge to, 599. 
 Fealty, subtraction of, 501. 
 Fees and poundage, 651, n. 
 
 barrister's, 304, 369. 
 
 physician's, 304. 
 
 surgeon's, ib. 
 Fellows of the college of physicians, 
 
 304. 
 
 Ferae naturae, animals, 344. 
 
 Ferries, 495. 
 
 Fierding courts, 375. 
 
 Fieri facias, 655. 
 
 de bonis ecclesiasticis, 658, n. 
 
 Filing declaration, 568, n. 
 
 Final judgment, 639. 
 process, 562, n. 
 
 Finger, depriving of, 461 . 
 Fire by negligence of lessee, 497. 
 insurance, 529. 
 
 First fruits, 15. 
 
 Fisheries, 251—253. 
 
 Fixtures, 347. 
 
 Fleet marriages and baptisms, 333. 
 
 prison, 215. 
 Force, injuries with and without, 
 
 454. 
 Forcible detainer, 519. 
 
 entry, 340, 486, n., 489, n. 
 
 Forest courts, 431. 
 Foretooth, depriving of, 461. 
 Formal conclusions in pleadings, 
 
 676, n. 
 Formedon, 482, n., 542.
 
 INDEX. 
 
 731 
 
 Forms of actions, 450, n. 
 
 Founder of a corporation, 125, 138. 
 
 Franchise, lying in, 354. 
 
 Franchises, disturbance of, 504. 
 
 Frankalmoign, 89. 
 
 Fraudulent representations, 522. 
 
 Free chapels, 104, n. 
 
 Freedom of a borough, 145, n. 
 
 Freehold of the church, 121. 
 
 Freemen's roll, 149. 
 
 Freight, 530. 
 
 Friendly societies, 191 — 194. 
 
 Fund for the banks for savings, 189. 
 friendly societies, 193. 
 
 Funded property of debtors charged, 
 633. 
 
 G. 
 
 Gaol delivery, commission of, 416. 
 Gaols, 209, 217. 
 Gauge, railway, 271. 
 
 General annual licensing meeting, 
 
 289. 
 bastardy, 588. 
 board of health, 259. 
 issue, 575. 
 register office, 329. 
 return days, 667, n. 
 rules of poor-law board, 
 
 158. 
 sewers tax, 435. 
 
 Genoa, 313. 
 
 Gilbert's Act, 63, 156, 160. 
 
 Gild, 125, n., 141. 
 
 Gilda mercatoria, 125. 
 
 Gleaners, law respecting, 491, n. 
 
 Glebe, 63. 
 
 Government annuity societies, 194 
 — 196. 
 
 Grammar schools, endowed, 153. 
 
 Grand assize, 482, n. 
 cape, 668. 
 distress, writ of, 671. 
 
 Great sessions in Wales, 446, n. 
 tithes, 77. 
 
 Gross, advowson in, 66. 
 
 Growing crops, 656. 
 
 Grounds of appeal, 167, n. 
 
 Guarantee, action on, 528. 
 
 Guardian, injuries to, 534. 
 
 Guardians of poor, 158, 170, n. 
 
 Guildhall, 125," n. 
 
 Guilds, 142. 
 
 H. 
 
 Habeas corpus, 474, 703. 
 
 Act, 709, 71 0,713. 
 ad faciendum, &c, 
 
 705. 
 ad prosequendum, 
 
 &c, 704. 
 ad respondendum, 
 
 &c, ib. 
 ad satisfaciendum, 
 
 ib. 
 ad subjiciendum, 
 
 706. 
 cum causa, 715. 
 
 Hackney carriages, 264. 
 coaches, ib. 
 
 Hseretico comburendo, writ of, 48. 
 
 Hainault forest, 433. 
 
 Hampden, Dr., 9, n. 
 
 Hanaper office, 401. 
 
 Handwriting, witness to, 115. 
 
 Harbour masters, 247. 
 
 Health, injuries affecting, 464. 
 
 laws relating to the public, 
 254, 259. 
 
 public, act, ib. 
 
 Hearsay evidence, 615. 
 
 Henry I., 7. 
 
 Hereford, see of, 9, n. 
 
 Heresy, 46 — 51. 
 
 Heriots, 354. 
 
 High constable — see Constable. 
 commission court, 426. 
 steward — see Steward.
 
 732 
 
 INDEX. 
 
 Highway act, 219, 225, 228. 
 rate, 227. 
 
 Highways, 218—233. 
 
 by dedication, 218, n. 
 in general, 221, 228. 
 surveyors of, 222—228. 
 
 Hiring and service, 164. 
 
 Hobhouse, Sir J., Act, 182. 
 
 Holidays, 561, n. 
 
 Holy orders, 2, 26. 
 
 Homage, 7. 
 
 Hoinine replegiando, writde, 704, n. 
 
 Hong Kong, island of, 243. 
 
 Honorarium, 369. 
 
 Honorary canons, 17. 
 
 Hospitals, 137, 176, 179. 
 
 for the poor, 152. 
 
 House of correction, 210. 
 of lords, 412. 
 
 Houses of public reception and en- 
 tertainment, 288—299. 
 
 Hundred court, 376, 
 
 Hundredors, on a jury, 599, n. 
 
 Hustings, courts of, 441, n. 
 
 Idle and disorderly persons, 165. 
 
 Illicitum collegium, 123. 
 
 Immediate annuities, 195. 
 execution, 609. 
 
 Impeachment of waste, 498. 
 
 Implements of trade, when dis- 
 trainable, 344. 
 
 Imprisonment, false, 423, 704. 
 
 under process of 
 county court, 385. 
 
 Impropriators, lay, 20. 
 
 Incipitur, 635, n. 
 
 In commendam livings, 36. 
 
 Incorporated law society, 309. 
 
 Incorporation, power of, 123. 
 
 Incumbent, 32. 
 
 Indebitatus assumpsit, 575, n. 
 
 Indemnity act, annual, 56. 
 
 Independents, 52, n. 
 
 Indictment of a corporation, 129. 
 for libel, 470. 
 
 Indorsement of debt and costs, 565. 
 
 Induction to a benefice, 29. 
 
 Industrial and provident societies, 
 199. 
 
 Infamous persons, 609. 
 
 Infectious disorders, 261. 
 
 sudden break- 
 ing out of, 
 257. 
 Inferior court, 374—386. 
 Infeudation of tithes, 77. 
 In forma pauperis, suing, 645. 
 
 Information, in chancery, 180. 
 
 of quo warranto, 701. 
 
 on penal statute, 554. 
 Informer, common, 555. 
 Infringement of copyright, 524. 
 
 of patent right, ib. 
 Inhabitant, rateability of, to sup- 
 port of the poor, 173. 
 
 Injunction on infringement of copy 
 or patent right, 524. 
 to stay nuisances, 496. 
 
 Injuries, civil, 447 — 539. 
 
 to personal rights, 460 — 
 
 475. 
 to health, 464. 
 to liberty, 473. 
 to life, 460. 
 to limbs, 461. 
 to rights of property, 475 
 
 — 531. 
 to rights of property in 
 things personal, 513 
 —531, 
 in things real, 475 — 513. 
 to rights in private rela- 
 tions, 531—537. 
 a guardian, 534. 
 a husband, 533. 
 a master, 535. 
 a parent, 536. 
 to rights in public rela- 
 tions, 537. 
 Inns, 289.
 
 INDEX. 
 
 733 
 
 Innuendo, 465, n. 
 Inoculation, 258. 
 Inquiry, writ of, 639. 
 Insane criminals, 204. 
 paupers, ib. 
 
 persons— see Lunatics. 
 Insolvency courts, 418. 
 Insolvent judgment debtors, 655. 
 Inspection, trial by, 584, n. 
 Inspectors of anatomical schools, 
 305. 
 of coal mines, 263, n. 
 of prisons, 215. 
 of railways, 270. 
 Instalment in dignities, 5 — 7. 
 Institution of clerks, 29, 589, 670,n. 
 Institutions, benevolent, 188. 
 Insurance, 529. 
 Interest reipublicae ut sit finis li- 
 
 tium, 540. 
 Interest awarded by jury, 624, n. 
 on judgment debts, 644. 
 Interested witness, 609. 
 Interlocutory judgment, 639. 
 Interment, metropolitan, 263, n. 
 International trading regulations, 
 241. 
 
 Interpleader Act, 716. 
 Intituling pleadings, 572, n., 668, n. 
 Intrusion, 476. 
 
 Investiture of benefices, 30, 31. 
 of bishoprics, 6, 7, 8. 
 Ireland, poor in, 151, n. 
 Irish fisheries, 253. 
 Iron steam boats, 277. 
 Irregular distress, 353. 
 Isle of Man, 240. 
 Issue, at, 579. 
 
 department of Bank, 321. 
 
 in fact, 571. 
 
 in general, 575. 
 
 in law, 571, 583. 
 
 joinder in, 592. 
 
 making up the, ib. 
 
 of Bank of England notes, 321 . 
 
 J. 
 
 Jeofails, statutes of, 632. 
 Jesuits, 60, n. 
 
 Jews may hold property for places 
 of worship, 60. 
 for schools, &c, 60, 1 86. 
 may be elected to municipal 
 offices, 58, n., 145, n. 
 
 Joinder in demurrer, 580. 
 in error, 647. 
 in issue, 580. 
 Joint stock banks, 134, 373. 
 companies, 134. 
 Judex, 365. 
 Judges, 396. 
 
 of assize, 413. 
 Judges' order, 640. 
 Judgment, 627, 635. 
 
 action on, 646. 
 affirmance of, 650. 
 arrest of, 632. 
 against casual ejector, 
 
 680. 
 against public officer of 
 joint stock banks, 3 1 9. 
 against public officer of 
 joint-stock companies, 
 665. 
 by confession, 636. 
 debt, interest on, 642. 
 delivering or pronounc- 
 ing, 637. 
 effect of, 641. 
 entry on record of, 635. 
 error on, 647. 
 final, 639. 
 for default of plea, 575, 
 
 636. 
 for want of appearance, 
 
 567, 636. 
 interest on, 642. 
 interlocutory, 638. 
 in dower, 670. 
 in ejectment, 684. 
 in quare impedit, 674. 
 in replevin, 678. 
 non obstante veredicto, 
 
 633. 
 on cognovit, 636. 
 on demurrer, 584, 636. 
 on nonsuit, 637. 
 on nolle prosequi, 637. 
 on retraxit, 637, n. 
 on non sum informatus, 
 
 ib. 
 registry of, 642. 
 reversal of, 650.
 
 734 
 
 INDEX. 
 
 Judgment, revivor of, 661. 
 
 signing, 635. 
 Judicial committee of the privy 
 
 council, 418. 
 Jurata, 605. 
 
 Jure divino, title to tithes, 74. 
 Jurisdiction, plea to the, 574. 
 Jurors' hook, 593. 
 Jurors, challenge of, 598 — 604. 
 
 formerly witnesses, 599, n. 
 lists of, 593. 
 qualification of, 601. 
 
 in Middlesex, ib. 
 
 Jury, trial by, 590—627. 
 at bar, 591. 
 at nisi prius, ib. 
 before sheriff,. 639. 
 eulogium of, 595, 
 
 626. 
 in the county courts, 
 
 385, 626, n. 
 origin of, 590, n. 
 calling of, 597. 
 common, ib. 
 
 de mediatate linguae, 599, n. 
 discharge of, 623. 
 exemptions from serving on, 
 
 603. 
 in London and Middlesex, 
 
 592. 
 judge's charge to, 621. 
 must be unanimous, 623. 
 number of, 597, n., 605. 
 panel, 593. 
 process, 592. 
 special, 593. 
 swearing the, 597, 
 Jus patronatus, 65, 510, 543, 
 671, n. 
 post-liminii, 490. 
 prsetorium, 401. 
 Justice of the peace, action against, 
 555. 
 seat, court of, 433. 
 Justices in eyre, 414, 433. 
 Justicies, 377. 
 Justification of libel, 470. 
 pleas in, 575. 
 
 K. 
 
 King's bench, court of, 392, 394, n. 
 counsel, 367, 368, n. 
 
 King's prison, 215. 
 Kiorckiowariandes, 38, n. 
 
 L. 
 
 Laesione fidei, suits pro, 405. 
 Laity, 2. 
 
 Lambeth degrees, 13. 
 Lancaster, county palatine of, 412. 
 court of duchy chamber 
 of, ib. 
 Land, definition of, in statutes of 
 limitation, 545, n. 
 church, 61, 62. 
 clauses consolidation act, 
 
 135, n. 
 limitation of actions for, 541 . 
 Landlord, defendant in ejectment, 
 681. 
 ejectment by, 685. 
 provisions in favour of, 
 
 ib. 
 rent of, 656. 
 Lapse of presentation, 67, 70, 543, 
 
 674. 
 Lascars, 239, n. 
 Latitat, 395, n. 
 Law, error in, 647. 
 issue in, 571, 583. 
 society, 309. 
 Terms, 557 — 560. 
 wager of, 584, n. 
 Lawing of mastiffs, 432. 
 Lay corporations, 121, 138. 
 impropriators, 21. 
 investiture of bishops, 6. 
 
 Laying the action, 572. 
 
 Lazarets, 256. 
 
 Lease, building, 95. 
 college, 92. 
 ecclesiastical, 90 — 97. 
 entry and ouster, 680, 681. 
 farming, 94. 
 
 Lecturers and parish clerks, 37, n. 
 
 Legacies, limitation of actions in 
 respectof, 550. 
 
 Lessor of the plaintiff, 6S0. 
 
 Letters patent under 7 Will. 4 & 1 
 Vict. c. 73 . . 133. 
 of request, 423.
 
 INDEX. 
 
 735 
 
 Levant and couchant, 345. 
 Levari facias, writ of, 637. 
 Libel, 469— 471. 
 
 defamatory, 470. 
 in newspapers, ib. 
 justification of, ib. 
 malicious, ib. 
 truth of, 476. 
 Liberty, injuries to, 473. 
 
 of the press, 280. 
 Licence for hackney coach, 265. 
 of curate, 37. 
 to act plays, 296. 
 to sell beer or cider, 291 — 
 
 294. 
 to sell exciseable liquor on 
 
 packets, 295. 
 to teach youth, 54, n. 
 Licensed houses for insane persons, 
 205, n., 206. 
 pilots, 249, 250. 
 Lien of creditor, 556. 
 
 of landlord, 656, n. 
 Lights, 494. 
 
 Lightermen of the Thames, 273. 
 Lighthouses, 247. 
 Limitation of actions, 540 — 556. 
 
 as to custom- 
 house or ex- 
 cise officers, 
 555. 
 as to justices of 
 the peace, ib. 
 as to penal ac- 
 tions, ib. 
 as to the crown, 
 542. 
 of equitable claims, 546. 
 of right of distress, 545, 
 
 549. 
 of right of entry, 545. 
 Limits of pilots of Trinity House, 
 
 249, 250. 
 Literary property, piracy of, 524. 
 Liturgy, 44. 
 Livings in commendam, 36. 
 
 Loan debentures, 197, 
 
 of money, contract of, 527. 
 
 societies, 196. 
 Local actions, 454. 
 
 Local acts of parliament, actions 
 for things done under, 556. 
 board of health, 221, n., 260. 
 taxes, 175, n. 
 Lock-up-houses, 213, n. 
 Lodging houses, common, 263, n. 
 for labouring classes, 
 
 ib. 
 under the superin- 
 tendence of poor- 
 law board, 159, n. 
 Lollardy, 48. 
 
 London and Westminster sittings, 
 414. 
 
 court of requests, 443, n. 
 
 courts in, 441, 443. 
 
 customs of, 587. 
 
 franchises of, not to be for- 
 feited, 141, 702. 
 
 police acts, 159, n. 
 
 sanitary improvement,263, 
 n. 
 
 Long vacation, 561, n., 580, n. 
 Lord Chamberlain, 296, 298. 
 
 Chancellor — seeCHANCEixoR. 
 mayor's court, 440, n. 
 Lords, house of, 412. 
 justices, 410. 
 spiritual, 10. 
 Lunacy, commissioners in, 206. 
 
 masters in, 208. 
 Lunatic asylums, 201 — 208. 
 
 borough, 201. 
 county, ib. 
 in general, 205. 
 Lunatics, 205. 
 
 chargeable to a parish, 
 
 202. 
 criminal, ib. 
 
 in prison for debt, 653, n. 
 meditating crime, 204. 
 visitors of, 202, 207. 
 wandering at large, 203. 
 Lying in franchise, 354. 
 Lying-in hospitals, 179. 
 
 M. 
 
 Madhouses — see Lunatic Asy- 
 lums. 
 
 Madmen — see Lunatics.
 
 736 
 
 INDEX. 
 
 Magistrates, actions against, 555. 
 Magna Charta, 388, 393, n., 414. 
 Mainprize, writ of, 704, n. 
 Making up the issue, 592. 
 Mala praxis, 464. 
 Malfeasance, 432. 
 
 Malicious arrest, 473. 
 
 libel, 471. 
 
 prosecution, action for, 
 472. 
 Manchester, bishop of, 10. 
 
 Mandamus, writ of, 692 — 696. 
 
 to examine witnesses 
 in India, 692, n. 
 
 Manse, 63, n. 
 Marine assurance, 529. 
 Mariners of Trinity House, 274. 
 Maritime courts, 419, 428. 
 Market, 491. 
 
 Marriage, effect of, pending action, 
 663. 
 registry of, 327, 331. 
 trial of, 588. 
 
 Marshal, judge's, 595. 
 lord, 427. 
 
 Marshalsea, court of, 446, n. 
 prison, 215. 
 
 Master and servant, 534. 
 in lunacy, 208. 
 of the rolls, 409. 
 
 Masters and mates of vessels, 249, n. 
 in chancery, 409, n. 
 
 Mayhem, 461. 
 
 Mayors, 145. 
 
 Medical relief to paupers, 171. 
 
 Medicine, compounding, 306. 
 
 Medietate, jury de, 599, n. 
 
 Meeting-house act, 55. 
 
 Memorandum of error, 699. 
 
 Menaces — see Threats. 
 
 Mercantile marine acts, 243. 
 
 Merchant seamen, 243. 
 
 Mere right, 481. 
 
 Mesne process, 562, n. 
 
 profits in ejectment, 685, 
 
 687. 
 writ of, 503, n. 
 
 Metropolitan commissioners in lu- 
 nacy, 206. 
 
 interments, 236, n. 
 
 stage carriages, 269. 
 
 police district, 265. 
 
 sanitary improve- 
 ments, 263, n. 
 
 sewers, 236, n. 
 
 Middlesex, bill of, 395, n. 
 
 Military courts, 419, 427. 
 
 savings banks, 191. 
 
 Milbank Prison, 216. 
 Ministers, 115. 
 Minor canons, 17. 
 Minority — see Age. 
 Mise on a mere right, 482, n. 
 Misfeazance, 452. 
 Misjoinder, 581, n. 
 Misnomer, plea of, 574, n. 
 Misrepresentation, 522. 
 Mitigation of damages, 471. 
 Mixed actions, 450. 
 
 tithes, 73. 
 Modus decimandi, 80. 
 
 rank, 82. 
 
 Molliter manus imposuit, 463. 
 Monasteries, 20. 
 
 Money, payment of, into Court, 
 
 577. 
 Monk, 60, n. 
 Moorings, royal, 247. 
 Moravians, 56, n., 605, n. 
 Mort d'ancestor, 503, 559. 
 Mortgaged land, 547, 548, n. 
 Mortmain, 126, 177. 
 Mortuaries, 15, n., 99—101. 
 Mother-Church, 102. 
 Motion by way of interpleader, 716. 
 Motions, 689.
 
 INDEX. 
 
 737 
 
 Moveable Terms, 560. 
 
 Municipal corporation, 140, 703. 
 
 act. 143. 
 Museums in boroughs, 148, n. 
 Muta canum, 15, n. 
 Mutilation, 461. 
 Mystery of apothecaries, 305. 
 
 N. 
 
 Name of corporation, 126. 
 Navigation acts, 235 — see Trade 
 and Navigation. 
 
 of British ship, 239. 
 
 Ne admittas, 671, n. 
 disturba pas, 672. 
 injuste vexes, 503, n. 
 unques accouple, 669. 
 unques seisie que dower, ib. 
 
 Negligence, injuries by, 459, 463. 
 
 Nembda, 621, n. 
 
 Never indebted, 575, 576. 
 
 New assignment, 578. 
 
 Newgate, 211, n. 
 
 Newspapers, 283. 
 
 New trial, 628, 630. 
 
 Nil capiat, judgment of, 641. 
 dicit, judgment by, 636. 
 
 Nisi prius, commission of, 414,416. 
 court of, 414, 415. 
 record, 593, 594. 
 trial at, 413, 591. 
 
 Nolle prosequi, 637. 
 
 Non assumpsit, 575. 
 
 Non cepit, 677. 
 
 Non compos — see Lunatics. 
 
 Non-conformists, 52. 
 
 Non-conformity, 46, 51. 
 
 Non est factum, plea of, 575. 
 
 Non est inventus, return of, 653, n. 
 
 Nonfeazance, 452. 
 
 Nonjoinder, plea of, 574, n. 
 
 Non obstante veredicto, 633, 647. 
 
 Non pros, 637, 676. 
 
 VOL. III. 
 
 Non residence of clergy, 34. 
 
 Nonsuit, 623. 
 
 motion to enter, 628, n. 
 motion to set aside, 628. 
 
 Non sum informatus, 637, n. 
 
 Notaries public, 307, n. 
 
 Not guilty, plea of, 575. 
 
 Notice of trial, 594, 683. 
 to admit, 613. 
 to produce, 615. 
 
 Nottingham, Earl of, 408. 
 
 Novel disseisin, 503, 505, 559. 
 
 Nuisance, 492. 
 
 abatement of, 340. 
 
 as to corporeal heredita- 
 ments, 493. 
 
 as to incorporeal heredi- 
 taments, 494. 
 
 private, 341. 
 
 public, ib. 
 
 remedies for, 496. 
 
 removal act, 225, n., 261, 
 262. 
 Nulla bona, return of, 657. 
 
 Nullum tempus occurrit regi, 68, 
 542. 
 
 Nul tiel record, plea of, 585. 
 
 Nunc pro tunc, judgment entered, 
 641. 
 
 Nunquam indebitatus, 575. 
 
 O. 
 
 Oath, binding, 60, n. 
 
 declaration in lieu of, 69. 
 of abjuration, allegiance and 
 
 supremacy, 56. 
 of jurymen, 597. 
 of witnesses, 616. 
 voluntary, 690, n. 
 
 Oblations, 98. 
 
 Obventions, ib. 
 
 Occupation, qualifying as a burgess, 
 144. 
 
 Occupier charged to poor rate, 172. 
 
 Octo tales, 604. 
 
 OZconomy, laws of social, 117. 
 
 3b
 
 738 
 
 INDEX. 
 
 Officinajustitise, 400. 
 Opening the pleadings, 605. 
 Options, 12. 
 Order in council, 108, 241, 383. 
 
 in equity, 643, n. 
 
 of removal, 167. 
 
 Orders, holy, 2, 26. 
 
 Ordinary, 17, n. 
 
 Ordination, 2, 26. 
 
 for foreign parts, 3, n. 
 
 Ore tenus, testimony, 620. 
 
 Orfordness, 249. 
 
 Original writ, 395, n., 402. 
 in dower, 667. 
 in quare impedit, 670. 
 
 Ouster, 475. 
 
 former remedies for, 480 — 
 
 484. 
 of chattels real, 478. 
 of the freehold, 474. 
 of tithes, 487. 
 present remedies for, 485. 
 
 Outlawry, 567, n. 
 Overseers of the poor, 152, 174. 
 assistant, 172. 
 duty of, 153. 
 who exempted from heing, 
 152, n. 
 Owner, when chargeable to poor 
 rate, 172. 
 when chargeable to high- 
 way rate, 222, n. 
 Oxford, 122, 125, 126, 138, 444. 
 Oyer and terminer, commission of, 
 416. 
 
 Pais, trial per, 590 — see Jury, 
 
 Trial by. 
 Palace court, 446, n. 
 Palatine counties, courts in, 437, 
 
 438, 650, n. 
 Pamphlets, 286. 
 Panel, 593. 
 Papist livings, right to present to, 
 
 512. 
 Papists, relief of, 58, 59. 
 Parent and child, 533, 534. 
 
 Parish apprentices, 162, n. 
 clerks, 41. 
 district, 107. 
 land, 132, n. 
 
 Parishes, 102. 
 
 for ecclesiastical purposes, 
 
 115. 
 union of, 110. 
 
 Parkhurst prison, 216. 
 
 Parochial chapels, 103. 
 
 relief, principle of, 153. 
 
 Parol evidence, 607. 
 the, 545. 
 
 Parson, 18—37. 
 
 how deprived, 34 — 37. 
 method of becoming, 26. 
 why so called, 19. 
 
 Particular actions, 666 — 688. 
 
 Particulars of demand, 573, n. 
 
 Parties to the cause may be wit- 
 nesses, 609. 
 
 Partners, remedies against each 
 other, 527. 
 
 Passage brokers, 275. 
 
 Passenger ship, ib. 
 
 Passengers act, 274 — 276. 
 
 between Great Britain 
 and Ireland, 274. 
 
 Patent right, infringement of, 524. 
 
 Patronage, disturbance of, 510. 
 
 Patronatus, 65. 
 
 Pauper, 161, 164. 
 
 maintenance of, by rela- 
 tions, 165. 
 refusing to work, 166. 
 when not removable, 1 69. 
 
 Pauperis, suing in forma, 645. 
 
 Paving acts, 221. 
 
 Payment of money into court, 577. 
 where presumed, 606, n., 
 617, n. 
 Peace, commission of the, 416. 
 Peculiars, court of, 423. 
 Peers, house of, 412. 
 Penal statutes, action on, 555. 
 Penitentiary at Milbank, 216.
 
 INDEX. 
 
 739 
 
 Pentonville prison, 217. 
 
 Peremptory mandamus, 694. 
 pleas, 574. 
 
 Permissive waste, 501. 
 
 Per pais, 564 — see Jury, Trial by. 
 
 Perpetual curate, 24, 30. 
 
 Per quod consortium amisit, alle- 
 gation of, 533. 
 laying action with a, 467. 
 servitium amisit, allega- 
 tion of, 535. 
 
 Persecution, religious, 46. 
 
 Person, definition of, in Statutes of 
 Limitations, 545, n. 
 injuries to, 460. 
 
 Persona impersonata, 29. 
 
 Personal actions, 450. 
 
 acts of parliament, actions 
 
 under, 556. 
 rights, injuries to, 460. 
 service, 566. 
 tithes, 74, 86, n. 
 
 Petty bag office, 179, 401. 
 
 Pews, 40, 64. 
 
 Pharmaceutical society, 307, n. 
 
 Physicians, 300. 
 
 and surgeons, college 
 of, 301. 
 
 Piedpoudre, court of, 430. 
 
 Pilotage, laws relating to, 248 — 
 251. 
 
 Pilot boats, 251. 
 
 Pitt Press, 283. 
 
 Places of public amusement, 295. 
 
 Plague, provisions respecting, 254, 
 258. 
 
 Plaints in county courts, 384, 492, 
 646. 
 
 Plea, dilatory, 574. 
 
 in abatement, ib. 
 in justification, 575. 
 in bar, 575, 676. 
 in discharge, 575. 
 in suspension, 574. 
 of misnomer, 574, n. 
 
 Plea, of non-joinder, 574, n. 
 peremptory, 570. 
 side of the exchequer, 390. 
 special, 575. 
 
 Pleading and demurring at the 
 same time, 582. 
 in ejectment, 683. 
 special, 571, n. 
 
 Pleadings, 571—584. 
 
 in time of vacation, 561, 
 
 n., 580, n. 
 opening the, 605. 
 
 Pleas, several, 581, n. 
 
 Plegii de prosequendo, 515. 
 de retorno habendo, ib. 
 
 Plena probatio, 611, n. 
 
 Plenarty, 508, 672, 673, n. 
 
 Pluralities, 35. 
 
 Police — see Metropolitan. 
 
 Policies of assurance, 529. 
 court of, 435. 
 
 Polls, challenge to the, 600. 
 
 Pone, writ of, 375, 378, 676. 
 
 Poor, 151-176. 
 casual, 164. 
 chargeable, ib. 
 education of, 184. 
 Irish, 151, n. 
 passing of, 169. 
 rate, 171, 174, 175, n. 
 allowance of, 174. 
 relief of, 170. 
 removal of, 169. 
 Scotch, 151, n. 
 settled, 164. 
 
 who compelled to maintain, 
 170. 
 Poor law amendment act, 157 — 
 159, 163, 171, 183, 
 202. 
 board, 158. 
 commissioners, ib. 
 Popular action, 531. 
 
 Populous parishes, spiritual im- 
 provement of, 113. 
 
 Ports and havens, 246. 
 
 Positive evidence, 617. 
 
 Possession, actual right of, 481. 
 
 3 b2
 
 740 
 
 INDEX. 
 
 Possession, apparent right of, 480. 
 naked, ib. 
 
 Possessory actions, 479. 
 
 Postea, 627, 629, 639. 
 
 Postman and tubman, 368, n. 
 
 Pound, 351. 
 
 Poundage fees, 651, n. 
 
 Pound breach, 350. 
 
 Praedial tithes, 73. 
 
 Praemunire, 9, 45, n. 
 
 Preachers, 37, n. 
 
 Prebends, 17. 
 
 Precedence at the bar, 368, n. 
 
 patent of, 368. 
 Prefatory averments, 465. 
 Premier Serjeant, 368, n. 
 Prender, lying in, 354. 
 Prerogative court, 424. 
 
 writs, 689. 
 Presbyterians, 52, n. 
 Prescription, corporations by, 123. 
 Presentation, 27, 66. 
 Presentative advowsons, 30, 66. 
 President of poor law board, 158, n. 
 
 Press, laws relating to, 280—287. 
 liberty of, 280. 
 
 Presumption of law, 606, n., 613, 
 617, n. 
 
 Presumptive evidence, 617. 
 
 of death, 606, n. 
 Priest, 2, 27. 
 
 Primate of England, 9. 
 
 of Ireland, 10, n. 
 Primae pieces, 12. 
 Principal, challenge by way of, 599. 
 
 Printers to the house of parliament, 
 
 283. 
 Printing press, 281. 
 
 Prison discipline, 214. 
 
 Milbank, 216. 
 
 Paikhurst, ib. 
 
 Pentonville, 217. 
 Prisons, 206—213. 
 Private banks, 319. 
 
 Private chapels, 103. 
 charities, 186. 
 nuisance, 341. 
 relations, 531. 
 Privileged communications, 468. 
 Privileges of the clergy, 4. 
 
 of counsel and attornies, 
 370. 
 Privilegium clericale, 4, n., 60. 
 Privy council, 418, 429. 
 tithes, 78, n. 
 verdict, 624, n. 
 Prize commission, 428. 
 
 of war, ib. 
 Procedendo, writ of, 691. 
 Proceedings in an ordinary action, 
 557—665. 
 in particular actions, 
 666—687. 
 Process, 562. 
 Proclamation in outlawry, 567. 
 
 in dower, 667. 
 Proctors, 365. 
 Procurator, ib. 
 Pro falso clamore suo, 641. 
 Profanation of the sabbath, 290, n. 
 Profession, religious, 43 — 60. 
 
 Professions, laws relating to, 300 — 
 
 312. 
 Profits, mesne, 685, 687. 
 Prohibition, writ of, 696—699. 
 Pro laesione fidei, 405 
 Promissory note, action on, 529. 
 Proofs, 607. 
 Property, injuries to, 475 — 531. 
 
 tax on tithe rent-charge, 
 87, n. 
 Proprietary chapels, 104. 
 Proprietate probando, writ de, 516. 
 Prosecution, malicious, 474. 
 Protestant sectaries, 53. 
 Provident societies, 199. 
 Province of archbishop, 10. 
 Proviso, trial by, 595. 
 Publicans, 288. 
 Public baths, 263, n.
 
 INDEX. 
 
 741 
 
 Public carriages, 254 — 268. 
 
 chapels, 103. 
 
 companies, 264 — 279. 
 
 health act, 259, 262. 
 
 houses, 288. 
 
 nuisance, 341. 
 
 officers of joint stock banks, 
 318, 319. 
 
 rights, 537. 
 
 verdict, 624, n. 
 
 washhouses, 263. 
 
 works, 252. 
 Puis darrein continuance, 580, n. 
 Puisne judges, 396. 
 Purchase of railways, 270 — 272. 
 Purchasers, how affected by judg- 
 ments, 641, n. 
 Puritans, 52. 
 
 Q. 
 
 Quadruplicate, 579, n. 
 
 Quakers, Moravians, and Separa- 
 tists, affirmation by, 56, n., 
 605, n. 
 
 Qualification of burgesses and free- 
 men, 149. 
 of jurors, 601. 
 Quarantine, 255. 
 Quare clausum fregit, 488. 
 
 impedit, 69, 451, 488, 509, 
 511, 543, 548, 549, 670 
 —675. 
 incumbravit, 671, n. 
 non admisit, 674, n. 
 Quarter sessions, borough, 147. 
 Quashing poor rate, 174. 
 Quays, 247. 
 
 Queen Anne's bounty, 63, 111,113. 
 Queen — see King. 
 Queen's Bench—see King's Bench. 
 Queen's Counsel—see King's Coun- 
 sel. 
 Queen's prison, 215. 
 Qui facit per alium facit per se, 463. 
 Qui tam action, 531. 
 Quod recuperet, 640. 
 
 permittat, action of, 506. 
 Quo minus, 390, n. 
 Quo warranto, 140,695, 699—702. 
 limitation of, 703. 
 
 R 
 
 Railway clauses act, 270, n. 
 
 passengers assurance com- 
 pany, 272, n. 
 
 Railways, 270—272. 
 Rank modus, 83. 
 Rate, church, 39. 
 
 county, 175, n. 
 
 poor, 171 — 175. 
 
 Ravishment of children, 534. 
 of ward, ib. 
 of wife, 531. 
 Reading in, by incumbent, 30. 
 Real actions, 375, 451, 485, 541, 
 544. 
 property commissioners, 485. 
 
 Rebutter, 579. 
 Recaption, 338. 
 
 Recognizance of bail, 569, 654. 
 Record, 364, 647. 
 
 actions on, 454, n. 
 
 amending, 621, n. 
 
 courts of, 364, 399, n., 585. 
 
 suggestion on, 595, 649. 
 
 trial by, 585. 
 Recordarifaciasloquelam, 378,710. 
 Recorder, 147. 
 
 of London, 368, n. 
 Recovery of things real, limitations 
 of actions for, 541 
 
 Rector, 19. 
 
 sinecure, 25. 
 Rectorial tithes, 19, 77, 78. 
 Rectories, 23. 
 Recusants, popish, 52. 
 Recusatio judicis, 600. 
 Redemption, equity of, 547. 
 Re-entry on land, 360. 
 
 by landlord, 686. 
 
 Re-examination, 612. 
 Reformation, protestant, 49, 50. 
 Refusing to institute a clerk, 27, 70. 
 Regard, court of, 432. 
 Register of original writs, 563. 
 Registrar-general, 329. 
 
 of attornies and solici- 
 tors, 309 
 
 of friendly societies, 1 9 1 , n.
 
 742 
 
 INDEX. 
 
 Registrar of metropolitan public 
 
 carriages, 265, n. 
 Registrars of unions, 319. 
 Registration, civil method of, 32S. 
 ecclesiastical method 
 
 of, 326. 
 laws relating to, 326 
 
 —334. 
 of baptisms, 317. 
 of burials, 377. 
 of births, 330. 
 of charitable dona- 
 tions, 180. 
 of deaths, 331. 
 of joint-stock compa- 
 nies, 134. 
 of judgments, 642. 
 ofmarriages,327,33]. 
 of ships, 236. 
 Regulation of gaols, 213. 
 Regular clergy, 23, n. 
 Rejoinder, 579. 
 Relations, defence of, 337. 
 Relator, 702. 
 Relief parochial, law of, 153, 170, 
 
 171. 
 Religious houses, 20, 78. 
 
 Remembrancer of the Exchequer, 
 
 391, n. 
 Remitter, 360, 516. 
 .omote damage, 457. 
 Removal of goods to prevent dis- 
 tress, 348. 
 
 of nuisances act, 261 
 of poor, 154, 165, 170. 
 Render, lying in, 359. 
 Renewal of church leases, 93. 
 
 of writ of summons, 552, 
 566. 
 Rent-charge, 86, 342. 
 
 tithe commutation, 186. 
 Rent, definition of, in statutes of li- 
 mitation, 545, n. 
 in arrear, 342, n. 
 service, 342, 502. 
 subtraction of, 502. 
 Repair, covenant to, 525. 
 Repairs of church, 39, 64. 
 
 of ecclesiastical residences, 
 34, 62. 
 Repleader, 634. 
 
 Replevin, 352, 353, 383, 514, 518, 
 
 675—679. 
 Replicatio, 579, n. 
 Replication, 578, 677. 
 Reply at nisi prius, 606. 
 Reprisal, 338, 516, n. 
 Reputation, injuries affecting, 464. 
 Request, letters of, 423. 
 Requests, courts of, 442. 
 
 the Court of, 402. 
 Rescue of distress, 350. 
 Res gestae, 66. 
 Residence of clergy, 32, 33. 
 Residence, ecclesiastical, 62. 
 Resident in a parish for five years, 
 
 169. 
 
 Resignation bond, 72, 73. 
 
 of benefice, 36,69,589, 
 
 673, n. 
 of bishopric, 15. 
 
 Respectum, challenge propter, 600. 
 Respondeat ouster, 638. 
 Restraining and enabling statutes, 
 
 90—97. 
 Retainer, 359. 
 Retorno habendo, 492, 678. 
 Retraxit, 637, n. 
 Return day of a writ, 651, n. 
 
 irreplevisable, 678. 
 
 of goods in replevin, 676. 
 
 to mandamus, 694. 
 
 Returning officer, action against, 
 538. 
 
 Revenue causes, 390. 
 
 Reversal of judgment, 650. 
 
 Reus, 365. 
 
 Revising barristers, 369, n. 
 
 Revivor, writ of, 661. 
 
 Right of action, 458. 
 
 when it accrues as 
 defined in the sta- 
 tutes of limitation, 
 545, n. 
 
 of advowson, writ of, 508. 
 
 of entry, 484— 486. 
 
 of possession, actual, 481. 
 
 of possession, apparent, 480. 
 
 of property, 475—531.
 
 INDEX. 
 
 743 
 
 Right, proper, 482. 
 to begin, 605. 
 turning to a, 480. 
 writ of, 482. 
 Rights and wrongs, 335, 336. 
 Rochester bridge, 249. 
 Roe, Richard, 680. 
 Rogues and vagabonds, 165. 
 Rolls, master of the, 409. 
 Roman Catholics, relief of, 59, 60. 
 Romney marsh, 434, n. 
 Royal College of Surgeons, 122, 
 303. 
 Society, the, 122. 
 Rule absolute, 690. 
 
 for special jury, 594. 
 of court, 643, n. 
 to show cause, 690. 
 Rules of practice for the county 
 
 courts, 518, n. 
 Rural deans, 17, n., 18. 
 
 Sacristan, 42, n. 
 Salary of curates, 37. 
 
 of the judges, 396. 
 Sale of arsenic, 307, n. 
 of distress, 352/ 
 of goods, contract of, action 
 
 on, 526. 
 of spirits, &c. in packet-boats, 
 284. 
 Salvage, 428, n. 
 
 Sanatory condition of the people, 
 254—263. 
 
 improvement of London, 
 263, n. 
 Satisfaction, enteringon record, 661. 
 Savings' banks, 188. 
 
 military, 191. 
 Scaccarium, 390. 
 Scandalous words, 466. 
 Scandalum magnatum, ib. 
 Scheduled boroughs, 150. 
 Schism, 52. 
 
 School districts, 175, n. 
 Schoolmasters, 55, 57. 
 Schools of anatomy, 304. 
 endowed, 183. 
 
 Schools for the poor, 184. 
 sites for, 184. 
 
 Scire facias against bail, 654. 
 
 against members of 
 joint -stock compa- 
 nies, 665. 
 
 in detinue, 652. 
 
 writ of, 454, n., 662— 
 665. 
 
 Scotland, poor in, 151, n. 
 
 Scroop's Inn, 353, n. 
 
 Sea going vessels, 277. 
 marks, 247. 
 worthiness, 276. 
 
 Seal, Chancery common law, 
 
 400, n. 
 Sealing writ of execution, 651, n. 
 Seek, rents, 342. 
 Secondary, 594, n. 
 Secondary evidence, 619. 
 Second deliverance, writ of, 678. 
 Secretaries of poor law board, 158, n. 
 Secta ad furnum, &c. 503. 
 
 molendinum, ib. 
 Sectaries, protestant, 53. 
 Secular clergy, 23, n. 
 Securities for money, 657. 
 Seducing to leave service, 511. 
 Seduction of daughter, 536. 
 See of the bishop, 14. 
 Selecti judices, 605, n. 
 Select Vestry Act, 156. 
 Self-defence, 337. 
 
 Separation of benefices, chapelries, 
 
 &c. 109, 110. 
 Separatists, 56, n., 58, n., 579, n., 
 
 581, n. 
 Sequestrari facias, writ of, 658, n. 
 Sequestration of a benefice, 4, 658. 
 Serjeant, antient, 368, n. 
 
 premier, ib. 
 Serjeants' Inn, 367, n. 
 Serjeants, 367. 
 
 exclusive audience of, in 
 C. P., 369, n. 
 Servants, giving character of, 468. 
 master's responsibility for 
 acts of, 463.
 
 744 
 
 INDEX. 
 
 Service, of writ of summons, 565. 
 rent, 302. 
 
 of writ out of the jurisdic- 
 tion, 569. 
 Servientes ad legem, 367. 
 Sessions for the highways, 227. 
 
 quarter, 147. 
 Set off, plea of, 575. 
 Settled poor, 154, 164. 
 Settlement by apprenticeship, 162. 
 by birth, 155, 160. 
 by certificate, 155, n. 
 by estate, 162. 
 by hiring and service, 
 
 164. 
 by marriage, 161. 
 by parentage, ib. 
 by paying taxes, 163. 
 by performing offices, 
 
 164. 
 by renting a tenement, 
 
 161. 
 law of, 153, 160—164. 
 of insane criminals, 
 204, n. 
 Several issues, 582. 
 
 pleas, 581, n. 
 Sewers, commissioners of, 434. 
 
 metropolitan, 263, n. 
 Sexton, 41, 42. 
 Shepway, court of, 439. 
 Sheriff, action against, 538. 
 
 trial before, 639. 
 Sheriff's court in London, 441, n. 
 Ships, British, laws relating to, 234. 
 Showing cause, 690. 
 Sic utere suo ut alienum non laeclas, 
 
 493. 
 Signing judgment, 635. 
 Simple contract, limitation of ac- 
 tions for, 552. 
 Simony, 3,36, 70-73. 
 Sinecure rector, 25. 
 Sine die, eat inde, 641. 
 Si non omnes, writ of, 417. 
 Sir J. Hobhouse's act, 182. 
 Sites of schools acts, 184. 
 Sittings at London and West- 
 minster, 414. 
 at nisi prius, 414, 561. 
 
 Sittings in banc, 415, 560. 
 Six articles, Law of the, 49. 
 Slander, 464—469. 
 
 limitations in actions for, 
 551. 
 Small debt court for London — vide 
 
 Sheriff's Court. 
 Small debt courts — see County 
 Court. 
 pox, 258. 
 tithes, 78. 
 
 Social economy, laws of, 117. 
 
 Society, benefit building, 198. 
 
 friendly, 191—194. 
 
 gevernment annuity, 194 
 —196. 
 
 incorporated law, 309. 
 
 loan, 196. 
 
 voluntary, 132, 141. 
 Sodor and Man, Bishop of, 10. 
 Sole corporations, 120. 
 Solicitor-general, 367. 
 
 queen consort's, 368. 
 
 Solicitors, 307—312. 
 
 Son assault demesne, plea of, 463, 
 
 575, 576. 
 Soul-scot, 99. 
 
 Sounding in damages, 639. 
 South Sea project, 133, n. 
 Southwell, 129. 
 
 Special bastard, 589. 
 
 case 625, 636, 683. 
 
 as to orders of removal, 
 
 168. 
 in ejectment, 683, n. 
 damage, 467, 521. 
 indorsement on writ of sum- 
 mons, 565. 
 jurors' list, 594. 
 jury, 592. 
 plea, 575. 
 pleading, 571. 
 verdict, 624, 625. 
 
 Spirits, sale of, 288-295. 
 Spiritual corporations, 120. 
 
 courts, 419. 
 
 limitation as to proceed- 
 ings in, 551. 
 
 Stage carriages, 269. 
 plays, 297.
 
 INDEX. 
 
 745 
 
 Stage, laws relating to the, 295 — 
 299. 
 
 Stamp duties on bank notes, 322, n. 
 
 Stamps on newspapers, 284. 
 
 Standings for hackney carriages, 
 265. 
 
 Stannaries, 439. 
 
 Statutes of amendment, 632. 
 of jeo fail, ib. 
 of limitations, 540 — 556. 
 plea of, 575. 
 
 Stay of execution in error, 648. 
 
 Steam navigation act, 277. 
 tugs, 278. 
 
 Stephen, king, 404. 
 
 Steward, manor court of the, 374. 
 
 Stipend of curate, 37. 
 
 Stock, corporate, 122, n. 
 
 in funds may be charged 
 with judgment debts, 
 660, n. 
 in trade, rating of, 173, n. 
 Stoppage, 575, n. 
 Striking special jury, 594. 
 Sturges Bourne's Act, 156. 
 Sub-commissioners of pilotage, 249. 
 Submission to arbitration, 357. 
 Subpoena ad testificandum, 607. 
 in chancery, 404. 
 to produce original re- 
 cord, 614, n. 
 Subtraction of real property, 501. 
 of suit and service, ib. 
 
 Succession of corporate property, 
 
 126, 130. 
 Successors, 88, 89, 130. 
 Suffragan, bishops, 11, n. 
 
 Suggestion in prohibition, 698. 
 of death, 662. 
 of error, 649. 
 of failure to try, 595. 
 
 Suing in forma pauperis, 645. 
 
 Suit at law — see Action. 
 
 of court, 501. 
 Summons on original writ, 667,671 . 
 writ of, in personal ac- 
 tions, 565. 
 
 VOL. III. 
 
 Sunday, no day for juridical busi- 
 ness, 560. 
 sale of beer, &c. on, 290. 
 term beginning or ending 
 on, 560. 
 Superintendents of China trade, 
 
 243. 
 Superintending registrars, 329. 
 Superior courts, 395. 
 Superstitious uses, 177. 
 Suppletory oath, 611, n. 
 Supremacy of the crown, 45. 
 Surcharge of common, 505. 
 Sur disclaimer, writ of right of, 503. 
 Surgeons of London, 302. 
 Surplice fees, 97. 
 Surrebutter, 579. 
 Surrejoinder, ib. 
 
 Surveyors of highways, 223, 494, n. 
 Suspension of canonries, 113. 
 
 of right of action, 456. 
 pleas in, 574. 
 Swearing the jury, 597. 
 witnesses, 610. 
 
 Swein-mote, court of, 432. 
 
 T. 
 Taking, unlawful, 513. 
 Tales, 604, 605. 
 Taxation, local, 176, n. 
 Taxing costs, 311, 643. 
 Temporalties of bishops, 7, 8, 15, 
 Tenant in dower, 668. 
 Tender, legal, 320. 
 
 of amends, 471. 
 of the oaths, 56. 
 plea of, 576. 
 
 Tenure, disturbance of, 507. 
 
 Terms, 557—560. 
 
 Test act, 54 — 57. 
 
 Testimony — see Evidence. 
 
 Thames waterman, 273. 
 
 Theatre regulation act, 296. 
 
 Theatres, 295. 
 
 Things real, injuries to, 475. 
 
 3c
 
 746 
 
 INDEX. 
 
 Thirty-nine articles, 44. 
 Threats, 461. 
 Timber, 497. 
 Tinners, 490, n. 
 Tippling act, 289. 
 Tithe commissioners, 85. 
 Tithe commutation act, ib. 
 
 Tithes, 73—88. 
 
 discharge from, by a modus 
 or custom, 
 81. 
 by commuta- 
 tion, 85. 
 by lapse of 
 
 time, 82. 
 by real com- 
 position, 
 79. 
 exemption from, by statute, 
 
 83. 
 great, 78. 
 in London, 86, n. 
 mixed, 74. 
 objections to, 84. 
 occupier, how far liable to, 
 
 87. 
 origin of, 74. 
 ouster of, 487. 
 offish, 86, n. 
 of milk, ib. 
 of minerals, ib. 
 personal, 74. 
 praedial, ib. 
 privy, 78, n. 
 rateability of, 171, n. 
 recovery of, 87. 
 rectorial, 19, 77, 78. 
 small, 78. 
 vicarial, 23, 78. 
 who exempted from, 78, 79, 
 80. 
 
 Title to demise, 681. 
 to orders, 3. 
 
 Toleration Act, 55. 
 Toll collectors, 232. 
 Toll thorough, 219. 
 Toll traverse, ib. 
 Tolling right of entry, 485. 
 Tolls, 230,231. 
 Torts, 452, 453. 
 
 Tout temps prist, 669. 
 Town corporate, 140, 
 
 Trade and navigation, laws relating 
 to, 234—253. 
 coasting, 239. 
 of United Kingdom and 
 
 British possessions, 234. 
 to the East Indies and China, 
 241. 
 Trading by clergymen, 4, 5. 
 Transitory actions, 454. 
 Traverse, in pleading, 576. 
 
 toll, 219. 
 Treaty as to fisheries, 253. 
 Treble and double costs, 643, n. 
 
 Trespass, 488. 
 
 action of, 452. 
 
 ab initio, 492. 
 
 by cattle, 491. 
 
 justifiable, 491. 
 
 on the case, action of, 
 452. 
 
 maintainable by or against 
 executor or adminis- 
 trator, 458. 
 
 quare clausum fregit,488, 
 685. 
 
 Trial and evidence, 584—627. 
 at bar, 591. 
 at nisi prius, ib. 
 before the sheriff, ib., 639. 
 by certificate, 587. 
 by inspection, 584, n. 
 by jury — see Jury,Trial by. 
 by proviso, 595. 
 by record, 585. 
 by witnesses, 589, 590, n. 
 by wager of battel, 584, n. 
 by wager of law, 496, 584, n. 
 in quare impedit, 673. 
 new, 628. 
 
 Trinity House of Deptford Strond, 
 249 274. 
 of Hull and Newcastle, 250. 
 
 Trinity, holy, denial of the,51,n., 58. 
 Trinoda necessitas, 219. 
 Triors, 599, 603, n. 
 Triplicatio, 597, n. 
 Trover, 520.
 
 INDEX. 
 
 747 
 
 Trustees of turnpike roads, 228 
 
 229. 
 Trusts, charitable, 179, 185. 
 Turning to a right, 480. 
 
 Turnpike acts, 220. 
 
 roads, 221, 228—233. 
 
 roads in South Wales, 
 228, n. 
 
 trusts, 221. 
 
 tolls, 230. 
 Two witnesses, where required, 611. 
 Types for printing, 281. 
 
 IL 
 Umpire, 356. 
 
 Unanimity of the jury, 621. 
 Uncertificated attornies, 310, n. 
 Unde nihil habet, 487. 
 Unfitness of clevks, 27, 28. 
 Uniformity, acts of, 45. 
 
 of process, 564. 
 Union of benefices, 35, n., 110. 
 
 of parishes, 110, 160. 
 Unions, 159. 
 
 poor law, ib. 
 Universitates, 120. 
 Universities, colleges in, 137. 
 
 corporate body of the, 
 
 121, 137. 
 courts of, 444, 588. 
 right to present to 
 popish livings, 512. 
 University press, 281. 
 Unliquidated damages, right to be- 
 gin in, 605. 
 Uses, charitable, 177. 
 superstitious, ib. 
 Usurpation of benefices, 508, 543. 
 
 of franchises, 700. 
 Usurpations, by the Court of Ex- 
 chequer, 389, n. 
 by the Court of Queen's 
 Bench, 395, n. 
 
 V. 
 
 Vacant possession, 683 
 
 , long, 561, n., _ 
 sitting in banc in, 5 
 
 vacant possession, ooo. 
 Vacation, long, 561, n.,580, n. 
 
 ciffincr in hnnc ill 561. 
 
 Vaccination, 258. 
 
 Vagabonds, 165. 
 
 Vagrant, 210. 
 
 Value received, 529, n. 
 
 Variance, 621, n. 
 
 Venditioni exponas, writ of, 657. 
 
 Venison, 431. 
 
 Ventre inspiciendo, writ de, 601, n. 
 
 Venue in an action, 572. 
 
 Verbal slander — see Slander. 
 
 Verderors, 431. 
 
 Verdict, 624. 
 
 false, 620, n., 631, n. 
 privy, 624. 
 special, 624, 625. 
 
 Vert, venison, and covert, 431. 
 Vestry, 156. 
 Vestry clerk, 41, n. 
 Vicar, 18, 22, 34. 
 Vicarages, 24. 
 Vicarial tithes, 23, 78. 
 Vice-admiralty courts, 428. 
 Vice-chancellors in equity, 410. 
 of Oxford, 445. 
 Vicineto, jury de, 599, n. 
 Victualling houses — see Inns. 
 Vi et armis, 452, n. 
 View by jury, 598. 
 Vigilantibus, non dormientibus, 
 
 jura subveniunt, 541. 
 Visitation of a province, 11. 
 
 of a diocese, 17. 
 
 of an archdeaconry, 18. 
 
 Visitor of colleges, 137. 
 
 of hospitals, ib. 
 
 of a corporation, 136. 
 
 of lunatic asylums, 202, 
 207. 
 Voire dire, 609, n. 
 Volenti non fit injuria, 536. 
 
 Voluntary affidavits, 690, n. 
 
 associations, 132, 141. 
 
 waste, 501. 
 Voting at municipal elections, 145.
 
 748 
 
 INDEX. 
 
 w. 
 
 Wager of battel, 584, n. 
 
 of law, 519, 584, n. 
 
 Wales, former courts of, 445, n. 
 Prince of, 412, n., 440. 
 
 Waltham forest, 483. 
 
 Warden of cinque ports, 249. 
 
 Wardens of the Society of Apothe- 
 caries, 305. 
 
 Wards in boroughs, 146, n. 
 
 Warrant of attorney, 640, n. 
 of removal, 167. 
 
 Washhouses, public, 263. 
 
 Waste, 496—500. 
 
 by conversion, 498. 
 permissive, 496. 
 remedies for, 499. 
 voluntary, 496. 
 without impeachment of, 
 498. 
 
 Watch rate, 148, n. 
 
 Water, metropolitan supply of, 
 363, n. 
 
 Waterman, 265. 
 Watermen of the Thames, 273. 
 Watson's Clergymen's Law, 32, n. 
 Ways, disturbance of, 507. 
 Welsh judicature, former, 445, n. 
 Wharfs and quays, 247. 
 Wherrymen of the Thames, 273. 
 Widows, pauper, 164, n. 
 
 Wife, abduction of, 531. 
 
 battery of, 533. 
 
 evidence of, in county courts, 
 385. 
 Winding-up Acts, 135. 
 Withernam, goods taken in, 516. 
 Withdrawal of juror, 622. 
 Witness, one in general sufficient, 
 
 611. 
 
 Witnesses, atheists not competent 
 
 as, 608, n. 
 examination of, 610 — 
 
 612. 
 expenses of, 608. 
 interested, 609. 
 not bound to criminate 
 
 themselves, 610. 
 oath to, 610. 
 trial by, 589. 
 when wives may be, 
 
 against husbands, 
 
 609. 
 [And see Evidence.] 
 
 Wittenagemote, 386. 
 
 Woodmote, court of, 431. 
 
 Words, defamatory — see Slander. 
 
 Workhouse, 159, 165, 170. 
 
 Works, public, 252. 
 
 Worship, disturbing divine, 40. 
 
 Wounding, 461. 
 
 Wreck, 428, n. 
 
 Written evidence, 607, 613. 
 slander — see Libel. 
 
 Writ in ejectment, 682. 
 
 of advowson, 508, 543. 
 
 of error, 647, n. 
 
 of execution, 651. 
 
 of inquiry, 639. 
 
 of ne injuste vexes, 503, n. 
 
 of right, 482. 
 
 of right of dower, 451. 
 
 of summons, 565. 
 
 against a foreigner, 569. 
 of view, 598, n. 
 
 Writings, libellous — see Libel. 
 
 Wrongs, 336. 
 
 Yellow fever, 257. 
 York, archbishop of, 423. 
 
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