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. And then The remedy is, Writ of error in a SUPERIOR court, AUDITA QUERELA. And here may come in the learning of writs of error, and audita querela. (e) The practice of setting aside verdicts UPON MOTION, and granting NEW TRIALS, has long superseded the remedy by " ATTAINT."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. SECT. XLVI. Remedies at common law. And first, of those WITHOUT SUIT. THE law in many cases provides a remedy WITHOUT SUIT, in general is either, which 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. In cases of RENTS, I may distrain the goods or cattle that are 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; Remedies that parties provide for themselves are of two kinds : 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. |