date

21 Aug t 1806. On the same principle
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
Similar Items
  • Title: [14 June 1804 The remedy for... false]
    Description: 14 June 1804

    The remedy for... false imprisonment, is by an action of trespass vi et armis... which is generally & almost unavoidably accompanied with a charge of assault and battery also III 138

    Abduction [of a man's wife]... may either be by fraud and persuasions or open violence: though in law in both cases supposes force & constraint, the wife having no power to power to consent

    III 139

    Adultery... a public crime

    III 139

    The law of society is ... a kind of secondary law of nature

    III 145

    Things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor

    III 146

    By a fiction of law actions of trover were... permitted to be brought against any man, who had in his possession by any means whatsoever the personal goods of another & sold them or used them without the consent of the owner, or refused to deliver them when demanded

    III 152

    The fact of... trover... is totally immaterial, — for the pltf needs only to suggest... that he lost such goods, and that the deft found them

    III 152

    Contract... implied by law... are such as reason & justice dictate, & which therefore the law presumes every man has contracted to perform III 158

    Every person is bound & hath virtually agreed to pay such particular sum of money, as are charged on him by the sentence, or assessed by the interpretation of the law.

    For it is part of the original contract... to submit in all points to the municipal constitutions & local ordinances of that state, of which each individual is a member. Whatever therefore the laws order any one to pay, that instantly becomes a debt which he hath before hand contracted to discharge

    III 158

    Assumpsits... constantly arise from this general implication & attendment of the of the acts of judicature, that every man hath engaged to perform what his duty or justice requires

    III 161

    Fictions by which actions of assumpsit made to bear on the several cases to which they are applied

    III 160 &c

    Taking possession of... land the same instant that the prior occupier by his death relinquishes it, however agreeable to natural justice... is diametrically opposite to the law of society

    II 168

    Dispersion of incorporeal hereditaments cannot be an actual dispossession; for the subject itself is neither capable of actual bodily possession, nor dispossession

    III 170

    In corporeal hereditaments, a man may frequently suppose himself to be dispersed when he is not so in fact, for the sake of intitling himself to the more easy and commodious remedy of an assize of novel dispersion... instead of being drawn to the more tedious process of a writ of entry

    III 170

    III 190

    The [ancient] forms an indeed preserved in the practice of common recoveries; but they are forms; & nothing else; for which the very clerks that pass them an capable to assign the man

    III 197

    Fiction by means of which of title of lands or tenements as tried by ejectment

    III 203

    Trespass .... offence against the law of nature

    III 208

    Every man's land is in the eye of the law enclosed & set apart from his neighbours

    III 209

    The law always couples the idea of force with that of intrusion upon the property of another

    III 211

    No nuisance to obstruct modern lights II 217

    Depriving one of a matter of pleasure... as it abridges nothing really convenient or necessary, is no injury to the sufferer

    III 217

    Nemo est haeres viventis

    III 224

    The law... looks upon the cure of souls as too arduous & important a task to be eagerly sought for by any serious clergyman, & therefore will not permit him to contend openly at law for a change or trust which it is presumed he undertakes with diffidence

    III 252

    The prerogative of the Crown extends not to do any injury

    III 255

    The law... presumes that to know of an injury & redress it, an inseparable in the royal breast

    III 255

    To... the King... no laches is ever imputed, & by whom right is never defeated by any limitation or length of king

    III 237
  • Title: [27 Aug 1804 18 2 nd. 1]
    Description: 27 Aug 1804 18

    2 nd.

    1

    Jurisprudence

    Sometimes a precetent

    is so strictly followed, that a particular judgment founded

    upon special circumstances, gives rise to a general rule.

    2

    III 433.

    Falshood encouraged

    The suggestion .... of every bill, to give jurisdiction

    to the courts of equity.... is, that the complainant hath no

    remedy at the common law. III 434.

    3

    . Nr land a Court of Justice

    The rules of

    property rules, of evidence, & rules of

    interpretation in both courts [of law & equity] are, or

    should be, exactly the same: both ought to adopt the best, or must

    cease to be courts of justice.

    4

    III 434.

    Party

    The deft's counsel [in a suit in equity] ...

    may not read any part of his answer. III 451.

    On a trial at law if the plff reads any part of the

    deft's answer, he must read the whole of it, for by reading

    any of it he

    shews a reliance on the truth of the deft's testimony,

    & makes the whole of his answer evidence.

    III 451 note .

    5

    Issue-trying

    As no jury can be sumoned to attend this

    c t, the fact usually directed to be tried

    at the bar of the c t of k. b. or at the

    assises upon a f eigned issue. For

    (in order to bring it there, & have the point in

    dispute, & that only, put in issue) an action is

    fe igned to be brought, wherein the

    pretended plff declares, that he laid a wager of £5 with the

    deft, that A was heir at law to B; & then avers that

    he is so; & brings his action for the £5. The deft allows

    the wager, but avers that A is not the heir to B ; &

    thereupon that issue is joined which is directed out of chancery

    to be tried: & the verdict of the jurors at law

    determines the fact in the c t of equity.

    These feigned issues seem borrowed from the

    sponsio judicialis of the Romans:

    & are also frequently used in the courts of law, by consent

    of the parties, to determine some disputed right without the

    formality of pleading, & thereby to save much time

    & expence in the decision of a cause . +

    and expence of Special-Pleading confessed .

    III 452.

    6 —

    Crime - Mischief misconceived

    If I obtain a field from another man, to which the

    law has given him a right, this is a civil injury, & not a

    crime; for here only the right of an individual is concerned,

    & it is immaterial to the public which of us is in

    possession

    of

    the

    land: but treason, murder, & robbery, are properly ranked

    among crimes; since besides the injury done to individuals,

    they strike at the very being of society; which cannot possibly

    subsist, where actions of this sort are suffered to escape

    with impunity. IV 5.

    7

    Crime — Mischief misunderstood

    Murder is an injury to the life of an individual; but the law of

    society considers principally the loss which the loss which

    the state sustains by being deprived of a member, & the

    pernicious example thereby set for others to do the like.

    8

    IV 6.

    Law of Nature

    It is clear, that the right of punishing crimes

    against the law of nature, as murder & the like, is in a

    state of mere nature vested in every individual. For it must

    be vested in somebody; otherwise the laws of nature would be

    vain & fruitless, if none were empowered to put them in

    execution: & if that power is vested in any one, it must also be vested in all mankind ; since all are by nature

    equal ...... In a state of society this right is

    transferred from individuals to the sovereign power.

    8

    IV 7, 8.

    Crime Mischief misconceived

    If any accidental mischief happens to follow from

    the performance of a l awful act the party

    stands excused from all guilt; but if a man be doing any thing un lawful, & a consequence ensues

    which he did not foresee or intend, as the death of a man &

    the like , his want of foresight shall be no excuse; for being

    guilty of one offence, in doing antecedently what is in itself

    unlawful, he is criminally guilty of whatever consequence may follow

    the first misbehaviour. IV 27.
  • Title: [6 Aug t 1804 If a man hath issue]
    Description: 6 Aug t 1804

    If a man hath issue

    a son, and is attainted

    & afterwards pardoned,

    & then hath issue a

    second son, and dies;

    here the corruption of

    blood is not removed

    from the eldest & therefore

    he cannot be heir:

    neither can the youngest

    be heir, for he hath an

    elder brother living, of

    whom the law takes notice

    as he once had a

    possibility of being heir,

    & therefore the younger

    brother shall not inherit,

    but the land shall escheat

    to the lord: tho',

    had the elder died

    without issue in the

    life of the father, the

    younger son born after

    the pardon might well

    have inherited, for he

    hath no corruption of

    blood. II 255

    In the case of a sole

    corporation, as of a parson

    of a church, when he

    dies of resigns, tho' there

    is no actual owner of

    the land till a successor

    be appointed, yet there

    is a legal, potential

    ownership, subsisting

    in contemplation of

    law. II 261

    De minimis non curat lex II 262

    It...is... necessary for

    corporations to have a

    licence of mortmain

    from the crown, to enable

    them to purchase lands:

    for as the king is the

    ultimate lord of every

    fee, he ought not,

    unless by his own consent,

    to lose his privilege of

    escheats & other feudal

    profits, by the vesting of lands in tenants that can never be attainted or die. II 269

    A deed also, or other grant, made without any consideration, is, as it were, of no effect: for it is construed to enure, or to be effectual, only to the use of the grantor himself., II 290

    A deed... written on stone, board, linen, leather, or the like, is no deed. II 297

    Livery of seisin... if the conveyance or feoffment be of divers lands lying... in several counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be disputed, there must be as many trials as there are counties, & the jury of one country are no judges of the notoriety of fact in another II 315.

    Modus levandi fenis ....is as follows... The party to whom the land is to be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant, by suing out a writ, or precipe, called a writ of covenant: the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. II 330

    And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war....And this doctrine seems to have been extended to negro- servants, who are purchased, when captives, of the nations with whom they are at war, & continue therefore in some degree the property of their masters who buy them: though, accurately speaking, that property consists rather in the perpetual service, than in the body, or person of the captive. II 402

    Animals ferae naturae, all mankind had by the original grant of the creator a right to pursue & take.... & this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. II 403

    No man, but he who has a choise or free warren, by grant from the crown, or prescription which supposes one, can justify hunting or sporting upon another man's soil. II 417

    A prescription.... presumes a grant. II 418.