In assise. In assise of against the tenant, it shall not be inquired of the points of the writ, but of the damages only, for the seisin is acknowledged.(a) The assise is taken at large whenever the defendant attempts to put some particular matter in issue and fails in so doing, either by bad pleading or by making default. In these cases the assise cannot be taken out of the point of assise, for that is only when there is some collateral issue joined to be tried; nor can it be taken in right of damages, for that is only when the collateral issue has been found against the defendant, or he has confessed the action; it is therefore taken at large, that is to say, in the same manner, as if the defendant had pleaded, nul tort nul disseisin. Thus in an assise, if the tenant pleads in bar and the plaintiff makes title, and the tenant does not answer or traverse the title, the assise shall be awarded at large and not upon the title, inasmuch as the title is not put in issue, and if any other title is found for the plaintiff he shall recover (b), and so if the tenant pleads the release of the plaintiff in bar, and afterwards makes default, the assise shall be taken at large. (c) There are also some cases in which the assise is taken at large in respect of the person of the plaintiff, as where the assise is brought by an infant, when, although a bar be pleaded by the tenant, the assise is to be taken at large. (d) It seems too, that when a plea in abatement, which only goes to the person of the plaintiff, is found against the defendant, yet the assise shall afterwards be taken at large (e), and if the tenant vouches, and the voucher is counterpleaded, and the counterplea found for the demandant, the assise must be taken at large and the points inquired into. (ƒ) The jury in an assise of mortdancestor are summoned in the mort d'ancestor. manner before pointed out with regard to assises generally, and the assise is taken either in the point of assise or for damages, &c. as above mentioned. The points of the assise in mortdancestor are three, viz. Seisin in fee of the ancestor on the day of (a) 1 Rol. Ab. 274, l. 13. Br. Ab. Ass. 256. (b) 1 Rol. Ab. 274, 1. 36. Br. Ab. Assise, 282. (c) 1 Rol. Ab. 274, l. 47. (d) 1 Rol. Ab. 275, (L). Vin. Ab. Assise, (L. M. N. O. P.), Gilb. Hist. (e) 1 Rol. Ab. 273, I. 41. 2 Iust. 399, (ƒ) Dyer, 311, a. In assise of his death. 2. The dying seised within fifty years before the commencement of the suit; and, thirdly, whether the plaintiff be mortd'ancestor. the next heir. (a) These points are not to be inquired into where the assise is taken out of the points of assise, or merely in right of damages, but if issue is joined on one of the three points, it seems that the others must be inquired into. (b) It should be observed that in actions of aiel, besaiel, and cosinage, if default be made at the trial, judgment by default must be given as in other writs of præcipe quod reddat, without inquiring into any point of the writ. (c) In quare impedit the issue is made up, and the parties pro- In quare impedit. ceed to trial, as in ordinary cases; but in consequence of the provisions of the statute of Westminster 2, c. 5, giving damages in writs of quare impedit, there are four points which must be inquired into at the trial. 1. Whether the church be full. 2. If full, of whose presentation. 3. If six months (d) have elapsed between voidance and action brought; and 4, the value of the church (e), and if the jury omit to inquire of these points at the trial, the omission may be supplied by writ of inquiry (ƒ), or the damages may be released. (g) Many of the issues which occur in quare impedit are to be tried by certificate of the ordinary, and not by jury. Thus able or not able, if the clerk be alive, must be tried by certificate (h); but if he be dead it shall be tried by jury, for the bishop cannot examine him. (i) Whether the church is void by deprivation shall be tried by the bishop. (k) So resignation shall be tried by him (1), but whether the church is void by resignation shall be tried by jury, for the avoidance is notorious, and the resignation, which is a spiritual act, is only evidence of that. (m) The (a) 2 Inst. 399. Booth, 207. (b) Dyer, 311, a. Booth, 207. 2-Inst. $99. (c) 2 Inst. 399. (d) These are calender months, ante, p. 233, note, (f). (e) Dyer, 135, a. Keilway, 57, b. Boswell's case, 6 Rep. 51. 2 Mall. quare imp. 86. Wats. Clerg. Law, 285. and see post, in title "Damages?" (ƒ) Dyer, 135, a. 2 Town. Judg. 191. Cheyney's case, 10 Rep. 118, b. (g) Dyer, 135, a, and see post, in title (h) 2 Rol. Ab. 583, 1. 39. Com. Dig. (m) Ibid, 1. 47. 12 Rep. 68. In quare impedit. plea of plenarty, or full or not full, shall be tried by the spiritual law, because the church is full by institution, which is a spiritual act (a), but void or not void shall be tried by the common law. (b) Institution, which is a spiritual act, shall be tried by the bishop's certificate. (c) Induction, which is notorious to the country, shall be tried by jury (d), so if the issue be on institution and induction, the trial shall be by jury, for the common law is preferred. (e) And where matter of spiritual cognizance is mixed and entangled with matter of temporal cognisance, it shall be tried by the country. (f) As both parties are actors in quare impedit, either the plaintiff or defendant may carry down the cause for trial. (g) (a) 2 Rol. Ab. 583, 1.51. Co. Litt. 344, a; but the jury at the trial may inquire whether the church be full or not. See above. (b) Ibid. (c) 2 Rol. Ab. 584, l. 3. Trials per pais, 22. (d) 2 Rol. Ab. 584, 1. 5. Boswell's case, 6 Rep. 49, a. (e) 2 Rol. Ab. 584, 1, 7. (f) Com. Dig. Trial, (A. 3). (g) Banks's case, 2 Salk. 652. Tidd's Pr. 820, (8th edit.). Of Damages. In real actions, properly so called, no damages are recoverable, but in certain real actions they have been given by various statutes; as in dower, entry sur disseisin, mortd'ancestor, &c. and though such actions are, strictly speaking, mixed, they are yet usually denominated real actions. (a) In cases in which damages have been superadded by statute, the old form of declaring remains, and the plaintiff does not demand damages either in his writ or count (b), but in certain mixed actions, as in waste (c) and warrantia charta, the plaintiff demands damages in his declaration. (d) In an assise of novel disseisin, which is properly a mixed action, damages were recoverable at common law against a disseisor. (e) In real actions in which damages have not been given by statute, no damages are at this day recoverable. Thus they are not recoverable in any writ of right. (ƒ) in a formedon (g), in a writ of partition (h), in admeasurement of pasture (i), in a perambulatione faciendâ (k), in a scire facias or other writ of execution (), but in a scire facias in the nature of a quare impedit, between coparceners upon a composition, damages may be given. (m) If a writ of error be brought in delay of execution in a real action and the judgment is affirmed, or the writ of error discontinued, or the plaintiff in error nonsuit, the defendant in error is entitled to recover damages for the delay and wrongful vexation by the statute 3 H. 7, c. 10, even in actions in which originally no damages were recoverable. (n) (a) Co. Litt. 285, b. Sayer on Dam. 5. (b) 2 Inst. 286. Pilfold's case, 10 Rep. 117, a. Co. Litt. 535, b. Com. Dig. Dam. (A. 1, 2). (e) Co. Litt. 355, b. (d) See ante, p. 176. (e) 2 Inst. 284, and see post. (f) Co. Litt. 32, b. (g) 1 Rol. Ab. 574, l. 45. (h) 2 Inst. 289. Countess of Warwick v. Lord Barklye, Noy, 68, and see Noy, 143, yet the plaintiff declares ad (k) 1 Rol. Ab. 575, 1. 7. (1) 1 Rol. Ab. 574, 1. 42. 2 Saund. 72, v. (note). (m) Br. Ab. sci fa. 54. (n) Graves v. Short, Cro. Eliz, 616. Hullock on costs, 287; but see Smith v. Smith, Cro. Car. 425, and see post, in title "Costs." In general. In general. In real actions, in which damages have been given by statute, the damages are only the accessary, and the land, &c. recovered is the principal; and therefore when the jury neglect at the trial to assess the damages, such omission may be supplied by a writ of inquiry, or the damages may be released; neither of which can be done in personal actions where damages only are recoverable. (a) In those real actions in which damages are recoverable, if the tenant vouches and the vouchee enters into the warranty and loses, he shall answer the damages (b), and so also with regard to tenant by receit. (c) With regard to the time up to which damages are to be computed, there is a distinction between personal and real actions. In the former, the plaintiff declares for damages, which are the object of the writ, and the principal thing in demand, and he can only recover them up to the time of action brought (d), but in the latter, in which the damages are only an accessary, the demandant may in general recover them, in case of verdict, up to the time of verdict, and in case of a writ of inquiry, up to the time of awarding the writ. (e) In some actions however, as in dower and quare impedit, the time for which the damages shall be recoverable is specified by statute. (f) There is a distinction also with regard to actions for the recovery of land and of rent, for in a præcipe quod reddat, or assise for rent, of the seisin of the demandant, which is capable of computation, the court may give damages after verdict up to the time of judgment. (g) If one of several coparceners who have suffered damage dies before judgment, the survivors may recover the whole damages (h), but after judgment the personal representatives of the party who has obtained judgment and died, will be entitled to the damages, (i) In many cases damages may be severed in real actions. Thus (a) Butler v. Ayre, 1 Leon. 92. Bent- (b) Br. Ab. Dam. 45. 2 Inst. 288. (d) Com. Dig. Dam. (D); but interest |