JB_097_146_001.xml

Title: [21 Aug t 1806. On the same principle]

Description: 21 Aug t 1806.

On the same principle it, (of an implied original contract to

submit to the rules of the community, whereof we are members) that

a forfeiture imposed by the by-laws & private

ordinances of a corporation etc. ..... immediately create a debt

in the eye of the law. III 159.

General implication & intendment of the courts of judicature,

that every man hath engaged to perform what his duty or justice

requires. III 161

If I employ a person to transact any business for me .... the law

implies that I undertook, or assumed to pay him so much as his

labour deserved. And if I neglect to make him amends, he has

a remedy for this injury by bringing his action on the case upon

this implied

assumpsit, wherein he is at liberty to

suggest that I promised to pay him so much as he reasonably

deserved. III 616.

If A has the jus proprietatis, and B. by some

unlawful means has gained possession of lands .... dies seised of

the lands, then B.'s heir ... hath not only a bare possession, but also an apparent jus

possession or right of possession.

For the law presumes, that the possession, which is transmitted from

the ancestor to the heir, is a rightful possession, until the

contrary be shown: & therefore the mere entry of A is not

allowed to evict the heir of B; but A is driven to his action

at law to remove the possession of the hier, though his

entry alone would have dispossessed the ancester. III 177

Victim defended in Ejectment [A Writ of ejectment is] founded on the

same principle as the antient writs of assize being

calculated to try the mere possessory title to an estate;

& hath succeeded to those real actions, as being infinitely

more convenient for attaining the end of justice; because the form

of the proceeding being entirely fictitious; it is wholly in the

power of the court to direct the application of that fiction, so as

to prevent fraud & chicane, and eviscerate the very truth of

the title. III 205

Taking or detaining a man's goods are respectively trespasses; for

which an action of trespass vi et armis, or on

the case in trover & conversion is given by the law. III 208.

Depriving one of a mere matter of pleasure as of a fine prospect, by

building a wall, or the like; this as it abridges nothing

really convenient or necessary, is no injury to the sufferer,

& is therefore not an actionable nuisance. III 217

De minimus non curat lex. III 228

In the case of distress for fealty or suit of court, no distress

can be unreasonable, immoderate, or too large: for this is the only

remedy to which the party aggrieved is

intitled, & therefore it ought to be such as is

sufficiently compulsory; &, be it of what value it

will, there is no harm done, especially as it cannot be sold or made

away with, but must be restored immediately on satisfaction made.

III 231.

For a freehold rent, reserved on a lease for life, etc, no action

of debt lay by the common law, during the

continuance of the freehold out of which it issued: for the law

would not suffer a real injury to be remedied

by an action that was merely personal. [ ] III 232.

The prerogative of the crown extends not to do any injury; for,

being created for the benefit of the people, it cannot be exerted to

their prejudice. III 255

This intricacy of our legal process will be found, when

attentively considered, to be one of those troublesome, but not

dangerous, evils, which have their root in the frame of our

constitution, & which therefore can never be cured without

hazarding every thing that is dear to us. III 267

JB_097_145_001.xml

Title: [20 Aug 1804 Calling a man coward or]

Description: 20 Aug 1804

Calling a man coward or giving him the lie

... as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster

III 104.

As the courts of common law have obtained a concurrent jurisdiction with the court of chivalry with regard to foreign contacts, by supposing them made in England; so it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the regard exchange, at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts of Admiralty to there of Westminster Hall.

III 109.

If the inferior judge or other person ... returns a sufficient cause, [to a mendanus] although it should be false in fact, the court of King's Bench will not trie the truth if the fact upon affidavits; but will for the present believe him, & proceed no further on the mandanus.

III 111.

Method of proceeding upon prohibitions... the party applying for the prohibition is directed by the court to declare in prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon supposition, or fiction, that he has proceeded in the suit below, notwithstanding the writ of prohibition.

III 113.

The remedy for this [threats & menaces for bodily hurt] is in pecuniary damage, to be recovered by action of trespass vi et armis.

III 120.

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 vi et armis.

III 123.

With regard to libels in general, there are... two remedies; one by indictment, & another by action. The former for the public offence; for every libel has a tendency to break the peace, or provoke others to break it &

III 125.

False imprisonment a heinous public crime.

III 127.

False imprisonment ... may arise by executing a lawful warrant or process at an unlawful time, as on a Sunday.

III 127, 128

Abduction, or taking away a man's wife... ...may either be by fraud & persuasion, or open violence: though the law in both cases supposes constraint, the wife having no power to consent; & therefore gives a remedy by writ of ravishment, or action trespass vi et armis, di uxore rapta et abducta.

III 139

In action of debt the plaintiff must recover the whole debt he claims, or nothing at all. For the debt is one single cause of action, fixed and determined, & which therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for.

III 154

In an action on the case, on what is called on indebitatus assumpsit I may declare that the debt, being indebted to me in £20, undertook or promised to pay it, but failed; & lay my damages arising from such failure at what sum I please.

III 155

Whatever therefore the laws order any once to pay, that becomes instantly a debt, which he hath beforehand contracts to discharge. And this implied agreement it is, that gives the pltf a right to institute a second action, founded merely on the general contract, in order to recover such damages, or sum of money, as are assessed by the jury & adjudged by the court to be due from the deft to the pltf in any former action. So that if he hath once obtained a judgment as another for a certain sum, & neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, & shall not be put upon the proof of the original cause of action; but upon shewing the judgm t once obtained, still in full force, & yet unsatisfied, the law immediately implies, that by the original contract of society the deft hath contracted a debt & is bound to pay it.

III 158,

JB_097_147_001.xml

Title: [24 Aug 1804. Immunity of the deft]

Description: 24 Aug 1804.

Immunity of the deft's person, in the case of peaceable, tho' fraudulent injuries, producing great contempt of the law in indigent wrong-doers, a capias was allowed to arrest the person, in actions of account, tho' no breach of the peace be suggested, by the Statutes of Marlbridge 52 Hen 3. ch. 23 & Westm. 2. 13 Ed. 1. c.11 in actions of debt & determine, by statute 25 Edw. III. c.17. & in all actions on the case, by statute 19 Hen. 7. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the pltf's close, vi et armis; which by the old common law subjected the deft's person to be arrested by writ of capias: & then afterwards, by connivance of the Court, the pltf might proceed to prosecute for any other less forcible injury. This practice... still continues in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited & others; a capias might be had upon almost every species of complaint.

III 281-282

For reversal [of outlawry] any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance.

III 284.

The bill of Middlesex is a kind of capias, directed to the sheriff of county, & commands him to take the deft, & have him before our L d the kind at Westmi r, on day prefixed to answer to the pltf if a plea of trespass. For this accusation of trespass it is, that gives the c t of K.B. jurisdict n in other civil causes, as was formerly observed; since, when once the debt is taken into the custody of the marshall, or prison keeper of this c t, for the supposed trespass, he, being then a prisoner of this c t, may here be prosecuted for any other species of injury. Yet in order to found this jurisdict n, it is not necessary that the deft be actually the marshall's prisoner; for, as soon as he appears & or puts in bail, to the process, he is deemed by so doing it be in such custody of the marshall as will give the c t a jurisdict n to proceed. And, upon their account, in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action.

III 285.

As in the common pleas the testatum capias may be sued out upon only a supposed, & not an actual preceding capias, so in the King's Bench a laitat is usually issued out upon only a supposed, and not an actual, bill of Middlesex.

III 286.

When the summons fell into disuse, & the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed; & therefore in common cases... the sheriff or his officer can now only personally serve the deft with a copy of the writ or process, & with notice in writing to appear by his ally in c t to defend this act n; which in effect reduces it to a mere summons. And if the deft thinks proper to appear upon this notice, his appearance is recorded, & he puts in securities for his future attendance & obedience; ... being the same two imaginary persons that were pledges for the pltf's prosecution, John Doe & Rich' d Roe. Or if the deft does not appear upon the return of the writ, or wither four (or in some cases, eight) days after, the pltfs may enter an appearance for him, as if he had really appeared; & may file common bail in the deft's name, & proceed thereupon as if the deft had done it himself.

III 287.

It is required by statute 13 Car. II. St.9.r.2 that the true cause of action should be expressed in the body of the writ or process. This statute... had like to have instead the King's Bench of all its jurisdiction over civil injuries without force... To remedy this inconvenience, the officers of the K.B. derived a method of adding what is called

a clause of ac etiam to the usual complaint of trespass; the bill of Middlesex commanding the deft to be brought in to answer the pltf of a plea of trespass, & also to a bill of debt: the complaint of trespass giving cognizance to the c t, & that of debt authorizing the arrest. In return for which, Lord Chief Justice North a few years afterwards in order to save the suitors of his court the trouble and expence of issuing out special originals, directed that in the common pleas, besides the usual complaint of breaking the pltf's close, a clause of ac etiam might be also added to the writ of capias containing the true cause of action.

III pp.287, 288.