SECT. XLVI.

Remedies at common law. And first, of those wITHOUT

SUIT.

THE law in many cases provides a remedy WITHOUT SUIT, which in general is either,

By act of the party ;

By act in law.

Remedies allowed by the party's OWN ACT, are in reference, To things personal;

To things real.

In reference to things personal :

If another does wrongfully take or detain my goods, my wife, my child, or my servant, I may lawfully RETAKE them again, if I can, so I do it not riotously.

So I may defend myself, or them, by force, if assaulted. In reference to things real:

In these and some other cases, the law allows a man a remedy without being driven to it, viz.

In cases of NUSANCE done to my freehold, I may REMOVE them, if I can, without riot; as,

To remove an obstruction out of my way.

Or the over-hanging of another man's house over mine.
Or the obstruction of water running to my mill.

In cases of RENTS, I may distrain the goods or cattle that are
levant et couchant upon the tenement charged therewith.
And so in cases of CATTLE DOING DAMAGE upon my ground,
I may distrain UPON MY GROUND damage feasant. And
so I may distrain cattle that are sold for my toll.

In reference to LANDS,

I may distrain, and maintain my own possession against any person that would eject or disseise me.

Where I have a right or title unto lands, and my entry not taken away, I may gain the possession by my entry.

And this necessarily draws into examination these two things, viz.

TITLES of entry; which are either by breach of a condition IN FACT, or in LAW annexed to an estate that I have parted with, or my ancestor.

And here comes in, OF CONDITIONS; what are good, and

whom not; when and to whom it gives an entry; and how destroyed or suspended.

RIGHTS of entry: and this lets in all those considerations that concern titles of entry congeable,-of descents that toll entry, or continual claim,-of avoiding descents by infancy, by stat. 34 H. 8.

But regularly,

In personal things IN ACTION, as for debts, or covenants, or promises; or,

As to RIGHTS of real things, where the entry is by law taken

away, the party canNOT be his own judge, but must have recourse to the courts of common justice, except in the cases following, viz.

By act IN LAW, in some cases without suit, the party shall have remedy, where by his own act he cannot; as,

In things personal; as if the debtor make the debtee executor, HE may pay himself.

In things real; as where a man's entry is taken away; as by descent, or by discontinuance; yet if he come to the possession without folly or covin, he shall be

REMITTED.

And here all the curious learning of remitters comes in.

SECT. XLVII.

Concerning remedies at common law BY SUIT.

HITHERTO Concerning wrongs and injuries in relation to things both real and personal, and remedies for the same without suit; I now come to consider of remedies BY SUIT, and the means or method of their application.

Remedies by suit seem to be of two kinds;

Such as the parties provide for themselves by mutual consent;
Such remedies as the law provides for them.

Remedies that parties provide for themselves are of two kinds :
By their own immediate accord:

By transferring the decision of it to others.

The former of these, viz. the IMMEDIATE CONSENT OF THE PARTIES, is that which in law is called AN ACCORD; which, WITH SATISFACTION ACCORDINGLY MADE, is in some cases of personal injuries a bar to any other remedy.

6 Co. p. 44.

And this lets in the learning of accords and concords; what are good, and what not; where they are a bar, and where not.

The latter of those, viz. the transferring the decision To OTHERS; which,

If to two, or more, is called an ARBITRAMENT:

If to one, an UMPIRAGE.

And here the large learning of arbitraments and awards; what a good submission; what a good award, or not; what remedy upon it; when and where it is a bar in personal actions, &c.

Secondly, such remedies as the law provides are also of two kinds, viz.

Such remedies as the law provides without suit; whereof before. Such remedies as the law provides in the courts of justice, SETTLED BY LAW, and according to those constitutions touching actions and suits, that the law has provided and instituted.

And this takes in these considerations, viz.

The courts of judicatories, established by law, for recovering of rights, and redressing of wrongs.

The remedies themselves BY CERTAIN WRITS instituted by law, and applicable to those several wrongs.

The prosecution or pursuit of those remedies in the said

courts.

The first of these concerns the large learning of the jurisdiction of courts. And forasmuch as there are several entire tracts written thereon, and I have before touched upon them, I shall here forbear to say any thing further herein; only that that learning may with reason enough be transferred hither, at least some particulars thereof. The second, touching the natures and applications of those remedies, I have in the former Sections, under every several kind of wrong or injury, mentioned the respective remedy, and therefore shall not again repeat it here. The third, which is the prosecution, or pursuit, of those remedies, is the business of this division.

But before I enter upon that matter, I shall premise these two things, viz.

First, that the best way to meet with all the titles of the law in this business, will be to pursue the same in the order and method of the proceedings themselves, without any other distribution.

Secondly, that there are some things wherein the pursuit of a real suit and personal do differ; as in the PROCESS, the JUDGMENT, and the EXECUTION. In most other things they agree; or, at least, the pursuit of a real action contains all the general learning of a personal action, and much more.

Where therefore there is a signal difference, I shall observe it by the way, without running through the whole procedure of a real and personal action distinctly; and shall only here observe, that the general parts of a suit are these:

The process.

The pleading.

The issue.

The trial.

The judgment.

The execution.

The appeal.

SECT. XLVIII.

Of process and appearing.

FIRST, where a wrong is done, or a right detained, the party injured is to make his application or suit for that remedy which the law ordains; and in order thereto, to take out such writ or process as the law, on the circumstance of his case, requires.

The common, usual, ordinary process are as follow:
In personal actions,

Summons, attachment, distress, capias (p), alias, pluries
& exigent, and in some it begins with attachment.

In real actions,

It is summons, grand cape, and judgment; or AFTER appearance, petit cape, and judgment.

In mixed actions,

In assizes, attachment; and upon default, the inquest taken by default.

In waste,-attachment and grand distress, and an enquiry of the waste, &c.

Every process gives the defendant a day in court; and this lets in these several things, viz.

JOUR IN COURT, and the variety of it.

And incident to this, is,

Adjournment; and,

Discontinuance.

And at that day, or jour in court, the defendant or tenant either

(p) The CAPIAS, generally speaking, is peculiar to the court of common pleas; the or dinary process, in personal actions, in the court of king's bench, being the bill of Middlesex, and the latitat, alias latitat, &c. The ordinary process in the exchequer office of pleas, are, quod minus ad respondendum, subpœna ad respondendum, venire facias ad respondendum.