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<p><head>17 Aug 1804</head></p> | |||
<p>As every thing distreined<lb/> | |||
<p> | is presumed to be the<lb/> | ||
As every thing distreined<lb/> is presumed to be the<lb/> property of the wrong <lb/>doer, it follows that <lb/>such things wherein no <lb/>man can have an absolute <lb/> | property of the wrong <lb/> | ||
doer, it follows that <lb/> | |||
such things wherein no <lb/> | |||
man can have an absolute <lb/> | |||
& valuable property <lb/> | |||
(as dogs, cats, rabbits, <lb/> | |||
& all animals feræ naturæ) <lb/> | |||
cannot be distreined.<lb/> | |||
III 7, 8.</p> | |||
<p>Things fixed to the freehold<lb/>may not be distrained,<lb/> as | <p>Things fixed to the freehold<lb/> | ||
may not be distrained,<lb/> | |||
as caldrons, windows,<lb/>doors, & chimney<lb/> | |||
pieces, for they savor of<lb/> | |||
the realty. III 10</p> | |||
<p>The remedy for excessive<lb/> distresses is by a<lb/> special action on the<lb/> statue of Marlbridge;<lb/> for an action of trespass<lb/> is not maintainable<lb/> upon this account, it<lb/> being no injury at the<lb/> common law. III 12.</p> | <p>The remedy for excessive<lb/> | ||
distresses is by a<lb/> | |||
special action on the<lb/> | |||
statue of Marlbridge;<lb/> | |||
for an action of trespass<lb/> | |||
is not maintainable<lb/> | |||
upon this account, it<lb/> | |||
being no injury at the<lb/> | |||
common law. III 12.</p> | |||
<p>By our excellent constitution | <p>By our excellent constitution<lb/>t | ||
he sole executive<lb/> | |||
power of the law<lb/> | |||
is vested in the person<lb/> | |||
of the king. III 23</p> | |||
<p>In all...courts the<lb/> king is supposed in<lb/> contemplation of law<lb/> to be always present.<lb/>III 24</p> | <p>In all...courts the<lb/> | ||
king is supposed in<lb/> | |||
contemplation of law<lb/> | |||
to be always present.<lb/> | |||
III 24</p> | |||
<p>Records...are of<lb/> such high and super-eminent<lb/> authority, that<lb/> their truth is not to<lb/> be called in question.<lb/> For it is a settled rule<lb/> of maxim that nothing<lb/> shall be averred against<lb/> a record, | <p>Records ... are of<lb/> | ||
such high and super-eminent<lb/> | |||
authority, that<lb/> | |||
their truth is not to<lb/> | |||
be called in question.<lb/> | |||
For it is a settled rule<lb/> | |||
of maxim that nothing<lb/> | |||
shall be averred against<lb/> | |||
a record, nor shall any<lb/> | |||
plea, or even proof,<lb/> | |||
be admitted to the contrary.<lb/> | |||
III 24</p> | |||
<pb/> | |||
<p>Formerly every suitor<lb/> | |||
was obliged to appear <lb/> | |||
<add>[in court]</add> | |||
in person ... and an <lb/> | |||
idiot cannot to this day<lb/> | |||
appear by attorney, but <lb/> | |||
in person; for he hath <lb/> | |||
not discretion to enable <lb/> | |||
him to appoint a proper <lb/> | |||
substitute. III 25.</p> | |||
<p> | <p>The court of king's<lb/> | ||
bench ... is the supreme<lb/> | |||
court of common law <lb/> | |||
... tho' the king himself <lb/> | |||
used to sit in this court, <lb/> | |||
& is still supposed so to <lb/> | |||
do; he did not, neither<lb/> | |||
by law is he <del>is</del> | |||
empowered, <lb/> | |||
to determine any cause <lb/> | |||
or motion but by the <lb/> | |||
mouth of his judges.<lb/> | |||
III 41</p> | |||
<p>The court of king's<lb/> bench ... | <p>The court of king's<lb/> | ||
bench ... on the plea<lb/> | |||
side, or civil branch ...<lb/> | |||
hath an original jurisdiction<lb/> | |||
& cognizance of<lb/> | |||
all <hi rend="underline">trespasses</hi>, & other injuries<lb/> | |||
alledged to be committed<lb/> | |||
<hi rend="underline"><foreign>vi et armis</foreign></hi>:<lb/> | |||
which being a breach<lb/> | |||
of the peace, savor of a<lb/> | |||
criminal nature, altho'<lb/> | |||
the action is brought for<lb/> | |||
a civil remedy; & for<lb/> | |||
which the defendant<lb/> | |||
ought in strictness to pay<lb/> | |||
a fine to the king, as<lb/> | |||
well as damages to the<lb/> | |||
injured party ... III 42.</p> | |||
<p>In process of time, by<lb/> | |||
a fiction, this court began<lb/> | |||
to hold plea of<lb/> | |||
all personal actions<lb/> | |||
whatsoever, & has continued<lb/> | |||
to do so for ages:<lb/> | |||
it being surmised that<lb/> | |||
the defendant is arrested<lb/> | |||
for a supposed trespass,<lb/> | |||
which he never has in<lb/> | |||
reality committed; &<lb/> | |||
being thus in the custody<lb/> | |||
of the marshall of<lb/> | |||
this court, the plaintiff</p> | |||
<pb/> | |||
<p>is at liberty to proceed<lb/> | |||
against him for any<lb/> | |||
other personal injury:<lb/> | |||
which surmise, of being<lb/> | |||
in the marshall's custody,<lb/> | |||
the defendant is<lb/> | |||
not at liberty to dispute.<lb/> | |||
III 42.</p> | |||
<p><foreign><hi rend="underline">In fictione juris semper<lb/> | |||
substitit æquitas.</hi></foreign> III 43</p> | |||
<p>By a ... fiction all kinds<lb/> | |||
of personal suits may<lb/> | |||
be prosecuted in the<lb/> | |||
court of exchequer ...<lb/> | |||
The writ upon which all<lb/> | |||
proceedings here are grounded<lb/> | |||
is called a <foreign><hi rend="underline">quo nunus</hi></foreign>:<lb/> | |||
in which the plaintiff<lb/> | |||
suggests that he is the<lb/> | |||
king's farmer or debtor,<lb/> | |||
& that the deft hath<lb/> | |||
done him the injury or<lb/> | |||
damage complained of;<lb/> | |||
<foreign><hi rend="underline">quo nunus sufficiens<lb/> | |||
existit</hi></foreign> ... to pay the king<lb/> | |||
his debt or rent ...<lb/> | |||
But now ... the surmise<lb/> | |||
of being debtor to the<lb/> | |||
king, is ... become matter<lb/> | |||
of form, & nere words<lb/> | |||
of course, & the court is<lb/> | |||
open to all the nation<lb/> | |||
equally. The same holds<lb/> | |||
with regard to the equity<lb/> | |||
side of the court: for<lb/> | |||
there any person may<lb/> | |||
file a bill against<lb/> | |||
another upon a bare<lb/> | |||
suggestion that he is<lb/> | |||
the king's accountant;<lb/> | |||
but whether is is so, or | |||
not, is never controverted.<lb/> | |||
III 45, 46.</p> | |||
<p>Wherever the common<lb/> | |||
law can give redress,<lb/> | |||
this court [the court military]<lb/> | |||
hath no jurisdiction: which<lb/> | |||
has thrown it entirely out<lb/> | |||
of use as to the matter of<lb/> | |||
contracts, all such being usually<lb/> | |||
cognizable in the courts<lb/> | |||
of Westm<hi rend="superscript">r</hi> Hall, if not directly,<lb/> | |||
at least by fiction of law:<lb/> | |||
as if a contract be made at<lb/> | |||
Gibraltar, the plff may suppose<lb/> | |||
it made at Northampton.<lb/> | |||
III 103.</p> | |||
<!-- DO NOT EDIT BELOW THIS LINE --> | <!-- DO NOT EDIT BELOW THIS LINE --> | ||
{{Metadata:{{PAGENAME}}}}{{ | {{Metadata:{{PAGENAME}}}}{{Completed}} | ||
17 Aug 1804
As every thing distreined
is presumed to be the
property of the wrong
doer, it follows that
such things wherein no
man can have an absolute
& valuable property
(as dogs, cats, rabbits,
& all animals feræ naturæ)
cannot be distreined.
III 7, 8.
Things fixed to the freehold
may not be distrained,
as caldrons, windows,
doors, & chimney
pieces, for they savor of
the realty. III 10
The remedy for excessive
distresses is by a
special action on the
statue of Marlbridge;
for an action of trespass
is not maintainable
upon this account, it
being no injury at the
common law. III 12.
By our excellent constitution
t
he sole executive
power of the law
is vested in the person
of the king. III 23
In all...courts the
king is supposed in
contemplation of law
to be always present.
III 24
Records ... are of
such high and super-eminent
authority, that
their truth is not to
be called in question.
For it is a settled rule
of maxim that nothing
shall be averred against
a record, nor shall any
plea, or even proof,
be admitted to the contrary.
III 24
---page break---
Formerly every suitor
was obliged to appear
[in court]
in person ... and an
idiot cannot to this day
appear by attorney, but
in person; for he hath
not discretion to enable
him to appoint a proper
substitute. III 25.
The court of king's
bench ... is the supreme
court of common law
... tho' the king himself
used to sit in this court,
& is still supposed so to
do; he did not, neither
by law is he is
empowered,
to determine any cause
or motion but by the
mouth of his judges.
III 41
The court of king's
bench ... on the plea
side, or civil branch ...
hath an original jurisdiction
& cognizance of
all trespasses, & other injuries
alledged to be committed
vi et armis:
which being a breach
of the peace, savor of a
criminal nature, altho'
the action is brought for
a civil remedy; & for
which the defendant
ought in strictness to pay
a fine to the king, as
well as damages to the
injured party ... III 42.
In process of time, by
a fiction, this court began
to hold plea of
all personal actions
whatsoever, & has continued
to do so for ages:
it being surmised that
the defendant is arrested
for a supposed trespass,
which he never has in
reality committed; &
being thus in the custody
of the marshall of
this court, the plaintiff
---page break---
is at liberty to proceed
against him for any
other personal injury:
which surmise, of being
in the marshall's custody,
the defendant is
not at liberty to dispute.
III 42.
In fictione juris semper
substitit æquitas. III 43
By a ... fiction all kinds
of personal suits may
be prosecuted in the
court of exchequer ...
The writ upon which all
proceedings here are grounded
is called a quo nunus:
in which the plaintiff
suggests that he is the
king's farmer or debtor,
& that the deft hath
done him the injury or
damage complained of;
quo nunus sufficiens
existit ... to pay the king
his debt or rent ...
But now ... the surmise
of being debtor to the
king, is ... become matter
of form, & nere words
of course, & the court is
open to all the nation
equally. The same holds
with regard to the equity
side of the court: for
there any person may
file a bill against
another upon a bare
suggestion that he is
the king's accountant;
but whether is is so, or
not, is never controverted.
III 45, 46.
Wherever the common
law can give redress,
this court [the court military]
hath no jurisdiction: which
has thrown it entirely out
of use as to the matter of
contracts, all such being usually
cognizable in the courts
of Westmr Hall, if not directly,
at least by fiction of law:
as if a contract be made at
Gibraltar, the plff may suppose
it made at Northampton.
III 103.
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Identifier: | JB/097/144/001"JB/" can not be assigned to a declared number type with value 97. |
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1804-08-17 |
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144 |
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31528 |
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