And the remedy is, By writ of entry SUR DISSEISIN. And these writs of entry SUR DISSEISIN are either, In nature of an assize against the first disseisor; or in the degrees; as in the PER, or PER ET CUI, against the feoffee of the disseisor or his feoffee. Or, They are in the POST; when the degrees are spent, or when the tenant comes in under the disseisor in the POST; As the lord BY ESCHEAT, &c. And this learning of disseisins, of assizes, and of entry sur disseisin, are large and comprehensive titles, and of great variety and extent. USURPATION: this title refers only to advowsons; where one that has no right to present, presents to a church, and his clerk is admitted and instituted, and continues in by six months. The remedy is by WRIT OF RIGHT OF ADVOWSON for the patron in fee-simple. And this also takes in all the learning of advowsons, and the provisions made by the stat. West. 2. to save the right of POSSESSORY actions against usurpation; Where it is upon the predecessor: Where it is upon the ancestor IN TAIL: Where upon tenant for life, guardian in chivalry, &c. DISCONTINUANCE: this is where he that ALIENS has not the FULL right, yet it puts the party injured thereby to his REAL action; as in these instances, viz. When the alienation is by tenant in tail, the re- Co. Lit. medy is, for the heir in tail, by formedon IN DESCENDER; for the reversioner, by formedon IN REVERTER; and for the remainder man, by formedon IN REMAINDER. 326 b. When the alienation was by the husband seised in right of the wife, at common law the wife was driven to her CUI IN VITA; in or out of the degrees, as the case fell out. But now she may enter, UNLESS A DESCENT BE When it was by a bishop, &c. aliening without the assent of the dean and chapter at common law, his successor was driven to his writ of entry SINE ASSENSU CAPITUBut this is remedied by stat. 1 & 13 Eliz. LI. The learning of discontinuances is also very curious; as, Who may discontinue; who not. What shall be a discontinuance, and what not, And as the learning thereof is ample, so is that of the remedies thereof, by FORMEDON, &c. DEFORCEMENT: and this is a larger, and a more comprehensive expression than any of the former; for a disseisor, abator, intruder, discontinuer, usurper, and those that claim under them by feoffment or alienation, are all deforcers. But the proper application of the word is to such a person, who, though he has not a just right, has yet recovered against, or BARRED HIM THAT HAS THE TRUE RIGHT; either, By DEFAULT. And then the remedy for the party so deforced is, If he had only a particular interest, by PER QUOD EI DFFORCEAT. If he were issue in tail of him that so lost, by FOR MEDON. If tenant in fee-simple, or his heir, by WRIT OF RIGHT. Or in a real action of an inferior nature; as writ of Of the issue in tail of him that so lost, or is barred, (n) Since the disuse of real actions the proceeding by EJECTMENT is become the common mode of trying titles. SECT. XLIV. Of wrongs that have THE COUNTENANCE of legal proceedings of Courts. HITHERTO I have proceeded in examining wrongs done by parties themselves: I now come to consider of wrongs done BY COURTS, or THEIR OFFICERS, in relation to legal proceedings. And they are of two kinds, viz. When the court proceeds in a cause whereof they have NO jurisdiction. When they proceed in causes whereof they have jurisdiction, but proceed Erroneously. The former of these is a wrong, and the party has his remedy By NOT submitting to the sentence or judgment, and bring- The latter is when they proceed erroneously, or by commit- injured has any remedy against THE COURT, or THE JUDGE In causes ecclesiastical or maritime, the law has provided a relief against an erroneous judgment, BY APPEAL to other judges. In causes of common law conuzance, errors or mistakes in judgment are REVERSED. In courts NOT of record, as county courts, and courts baron, By writ of FALSE JUDGMENT. In courts of record, wherein error may happen divers ways, viz. By error of the jury in giving a false verdict: The remedy is by ATTAINT (0). By error or disceit; if the sheriff returns a party as summoned when he was not, whereby judgment is against him by default: The remedy is by WRIT OF Disceit. By error of the court. The remedy is, And then Writ of error in a SUPERIOR court, AUDITA QUERELA. And here may come in the learning of writs of error, and audita querela. (a) The practice of setting aside verdicts UPON MOTION, and granting NEW TRIALS, has long superseded the remedy by " ATTAINT." SECT. XLV. Concerning REMEDIES, and the method of obtaining them. IN the former Sections I have considered of the various kinds of wrongs or injuries, and under those distributions have mentioned their ordinary remedies, and thereby have much contracted this title; wherein I shall only give some GENERAL RULES relating to the manner of the application of those remedies; leaving every particular remedial writ, together with the process belonging to it, to be considered and digested under their several titles in the former Sections. Remedies for wrongs are according to the nature of those wrongs, viz. Ecclesiastical: Civil. Ecclesiastical remedies are such as are applicable to wrongs of ecclesiastical conuzance, and take in or include these two generals, viz. The courts or places where the said remedies are to be had; The process preceding judgment and execution relating thereto. Civil or temporal remedies are such as concern either, Maritime injuries; Military injuries: Civil or common law injuries. In reliefs or remedies for maritime injuries, are considerable, The process preceding sentence, &c. In remedies for military affairs, or matters of arms and ho nours, The court is the court of honour, or military court. Now of little use. |