right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the crown or the subject has the right. But as this seldom happens, and the remedy by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13, and 2 & 3 Edw. VI. c. 8, which also allow inquisitions of office to be traversed or denied, wherever the right of a subject is concerned, except in a very few cases. These proceedings are had in the petty-bag office in the Court of Chancery: and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis. And by such judgment the crown is instantly out of possession; so that there needs not the indecent interposition of his own officers to transfer the possession from the sovereign to the party aggrieved.

Besides the common law petition of right, in which the subject, if successful, must nevertheless defray his own costs, a similar method of obtaining redress from the crown has been recently provided by the statute 23 & 24 Vict. c. 34. A petition under this act may be prosecuted in any of the superior courts; and, provided the fiat of the crown be obtained, may, without any commission of inquiry, be served on the solicitor to the Treasury; who must then appear and answer it, in the name of the attorney-general, according to the ordinary course of pleading in the court in which the suit is pending. The proceedings after appearance also follow the ordinary practice of the court in suits between subject and subject; and the effect of the judgment is the same as in petitions of right at common law; but costs may be recovered both by and from the crown, and in the latter case are defrayed from the public treasury.

II. The method of redressing such injuries as the crown may receive from the subject are,

1. By such usual common law actions, as are consistent with the royal prerogative and dignity. But it would be tedious and difficult to run through every distinction that might be gleaned from our ancient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process, as are peculiarly confined to the crown.

2. Such is that of inquisition or inquest of office: which is an inquiry made, with the assistance of a jury, by the sovereign's officer, his sheriff, coroner, or escheator, virtute officii or by writ to them sent for that purpose, or by commissioners specially appointed,

concerning any matter that entitles the crown to the possession of lands or tenements, goods or chattels. These inquests were more frequent during the continuance of the military tenures: when, upon the death of every tenant of the crown, an inquisitio post mortem was held, in order to entitle the king to the marriage or wardship of the heir, and the relief, primer-seisin, or other advantages, as the circumstances of the case might justify. To superintend these inquiries, the Court of Wards and Liveries was instituted by statute 32 Hen. VIII. c. 46, which was abolished at the restoration of King Charles II., together with the oppressive tenures upon which it was founded.

With regard to other matters, the inquests of office still remain in force, and are taken upon proper occasions. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance-medley, is not only with regard to chattels, but also as to real interests, in all respects an inquest of office; and if they find the treason or felony, the sovereign is thereupon, by virtue of this office found, entitled to have his forfeitures. These inquests of office were devised by law, as an authentic means to give the sovereign his right by solemn matter of record; without which he in general can neither take nor part from anything. For it is a part of the liberties of England, and greatly for the safety of the subject, that the crown may not enter upon or seize any man's possessions upon bare surmises without the intervention of a jury.

With regard to real property, if an office be found for the sovereign, it puts him in immediate possession; and he shall receive all the mesne profits from the time that his title accrued. In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which ⚫relies on the facts as found: but also he may in general traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the Court of Chancery.

3. Where the crown has unadvisedly granted anything by letters patent, which ought not to be granted, or where the patentee has done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the crown, in order to resume the thing granted; or, if the grant be injurious to a subject, the sovereign is bound of right to permit him to use his royal name for repealing the patent in a scire facias; the proceedings on which resemble those in an ordinary action.

4. An information in the Exchequer is a method of recovering money or other chatteis, or for obtaining satisfaction in damages for any personal wrong committed in the lands or other possessions of the crown. It differs from an information filed in the Queen's Bench, of which we shall treat in the fourth book of these commentaries; in that this is instituted to redress a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong, or heinous misdemeanour in the defendant. The most usual informations are those of intrusion and debt; intrusion, for any trespass committed on the lands of the crown; and debt, upon any contract for moneys due to the crown, or for any forfeiture due to the crown upon the breach of a penal statute.

An information of intrusion may also be resorted to in the case of a purpresture upon public property; which occurs when one encroaches, or makes that several to himself, which ought to be common to many. Informations of debt, I may add, are most commonly used to recover forfeitures occasioned by transgressing those laws, which are enacted for the establishment and support of the revenue; in which cases the crown now recovers and is liable to pay costs, if unsuccessful, as if the suit were between subject and subject.

5. A vrit of quo warranto is a writ issuing from the Queen's Bench against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. It lies also in case of non-user, or long neglect of a franchise, or misuser, or abuse of it; and commands 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. 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 has disused or abused it, the franchise is either seized into the sovereign's hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it.

The judgment on a writ of quo warranto is final and conclusive, even against the crown. Which, together with the length of its process, probably occasioned the introduction of a simpler method of prosecution, by information in the nature of a quo warranto. This is properly a criminal 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 has long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only. And this method

of proceeding is now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. c. 20; which permits an information in 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, against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination, and directs that, if the defendant be convicted, judgment of ouster, as well as a fine, may be given against him, and that the elator shall pay or receive costs according to the event of the suit.

6. The prerogative writ of mandamus is also made by the statutes 9 Ann. c. 20, and 6 and 7 Vict. c. 89, s. 5, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. These are injuries for which, though redress for the party interested may be had by action, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the Court of Queen's Bench; commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office.

We have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory: a difficulty not a little increased by the very unmethodical arrangement in which they are delivered to us by our ancient writers, and the numerous terms of art in which the language of our ancestors has obscured them, Terms of art there will unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent and familiar use; and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will shrink to nothing upon a nearer and more frequent approach; and indeed be rather advantageous than of any disservice, by imprinting on the student's mind a clear and distinct notion of the nature of these several remedies.

CHAPTER X.

OF THE PURSUIT OF REMEDIES BY ACTION.

The original writ-The terms-Process-Outlawry-Bill of Middlesex— Latitat-Quo minus. Writ of summons-Endorsements thereon-Writ of capias-Arrest-who are privileged from-bail-Service of the writAppearance-Judgment by default-Affidavit of merits-Actions on bills of exchange, &c.

HAVING pointed out in the preceding pages the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and shown to which of these courts in particular application must be made for redress, according to the distinction of injuries, I defined and explained the specific remedies by action or suit, provided for every possible degree of wrong or injury. I am now to examine the manner in which these several remedies are pursued and applied. What, therefore, the student may expect in this and the succeeding chapters, is an account of the method of proceeding in any of the personal actions we have before spoken of, in the superior courts of common law at Westminster. The history of a suit which I shall attempt, will, moreover, afford a general idea of the conduct of a cause in the courts of the counties palatine, and in the inferior courts of common law, in cities and boroughs; all which conform, as near as may be, to the example of the superior tribunals. And the most natural and perspicuous way of considering the subject will be, I apprehend, to pursue it in the order wherein the proceedings themselves follow each other, rather than to distract and subdivide it by any more logical analysis. The general, therefore, and orderly parts of a suit are these: 1. The writ; 2. The pleadings; 3. The issue or demurrer; 4. The trial; 5. The judgment, and its incidents; 6. The proceedings in nature of appeals; 7. The execution.

The original, or original writ, was formerly the foundation of every suit. When a person has received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider what redress the law has given for that injury; and thereupon is to make application to the crown, the fountain of all justice, for that particular specific remedy which he is entitled to pursue. To this end he was formerly obliged to sue out, or purchase by paying the stated fees, an original, or original writ, from the Court of Chancery,