conviction, was given by the defendant, for the fair expenses of the prosecution, upon an understanding that the court would abate the period of his imprisonment. The security was held to be good, upon the ground that it was considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the imprisonment on him. See the Queen v. Tem pleman, 1 Salk, 55. Assassination. See tit. Murder. Assembly, Unlawful. See tit. Unlawful Assembly. Damages, Poor's Rate, Taxes. If an act which au think them selves ag ment can in an action BONNELL V. BRIGHTON AND ANOTHER, E. T. 1793. K. B. 5 T. R. 182. The defendants justified in an action of trespass for seizing goods, as commissioners of the D. enclosure act, for non-payment of the plaintiff's share of thorises the assessment on him as a party liable. The plea stated, that by the act of par- levying of liament referred to, the commissioners were authorised to set out and make a sum of roads; and that it directed the expenses of making and repairing those roads, money on certain per and all other expenses, to be borne by the owners and proprietors in certain sons, give proportions, to be ascertained by the commissioners in one general rate, and an appeal levied by their warrant of distress; and that it gave an appeal to any person to the ses who should think himself aggrieved by any thing done in pursuance of the act, sions in all (except where the orders of determination of the commissioners were directed cases where to be final,) to the general quarter sessions, at which the justices were author- the parties ised and required to hear and determine the matter of every such appeal, and to make such order as to them should seem meet, which was to be final and grieved, an conclusive on all parties; the plea then stated, that the defendants acted as objection to commissioners under the act, and made an assessment on the proprietors, by the asses which assessment the plaintiff was rated in certain sums for his proportion of" the charges; and for the non-payment thereof the defendants, in pursuance of t be tried the powers vested in them by the act, granted a warrant under which the goods of trespass, were seized. Replication, that the defendants by colour of the act, caused to but the par be repaired and widened divers ancient roads and ways, which the proprietors ty mast ap were not liable to repair, and that great part of the charges made in the plea peal. mentioned were incurred in so repairing and widening the roads last aforesaid; [ 402 ] and that the defendants, &c. of their own wrong, seized and took the goods, &c. To this replication the defendants demurred, assigning for cause, the plaintiff attempted to put in issue collateral matters; by the replication and upon persons convicted of assaults and batteries is fine, imprisonment, and the finding of sureties to keep the peace. But in cases of assault of a very aggravated nature, as with intent to commit an unnatural crime, the punishment of whipping has been inflicted, in addition to that of imprisonment and finding sureties for good behaviour; Rex v. Schofield, cited Burr. 184; and assaulting in the streets or highway, under the 6 Geo. 2. c. 23. s. 11. with intent to spoil people's clothes, and so spoiling them, is felony, and liable to transportation; so assaulting with intent to rob, is also made felony by the 7 Geo. 2. c. 21. and liable to transportation; so a-saulting a privy counsellor in the execution of his office, is felony without benefit of clergy; 9 Anne. e. 16; and any person assaulting or challenging on account of money won by gaming or betting, shall, on conviction by indictment or information, forfeit to the King all his goods and chattels, and be imprisoned for two years, in pursuance of the 9 Anne c. 14. But in cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the Court, even after conviction, to speak with the prosecutor before any judgment is pronounced, and a trivial punishment (generally a fine. of 18.) is inflicted if the prosecutor declares himself satisfied. See 4 Blac. Com. 363.4. that that the same was argumentative, and in other respects defective, &c. It was contended that the plaintiff's complaint was merely that he was assessed in too large amount, for which his remedy was by appeal to the sessions. On the other side it was urged, that as this was an excess of jurisdiction as to part, which was admitted by the demurrer, this action might be supported. Per Cur. This cannot be distinguished from an assessment made by the overseers of the poor, in which they sometimes make improper charges that ought not to be carried to the account of the parish; but it never was pretended, that on that ground the whole rate was to be considered as illegal, and its legality discussed in an action of trespass. The legislature have established a much more convenient forum, the quarter sessions, where these questions may [403] be canvassed, and where proper inquiry may be made, whether or not certain sums charged to the public have been properly expended, and ought to be allowed. The Court has always declined entering into any question respecting the quantum of the rate in an action of trespass, and has ever referred the parties to the sessions, to that tribunal which the legislature has specially appointed for the purpose of having a check and control over the expenditure of the public money. The legislature have not enumerated all the distinct matters by which any person may be aggrieved; but the words are general: “If any person shall think himself aggrieved by any thing done in the pursuance of the act." And therefore in all cases where a party thinks himself aggrieved by any thing under the act, he may appeal to the sessions; and, by way of greater caution, it is added, "which determination of the justices shall be final and conclusive to all parties concerned." The plaintiff consequently has mistaken his remedy; as, in order to determine the dispute between the plaintiff and the commissioners, the former should have appealed to the sessions, where, if he was right in his objections, so much of the charges might have been struck out of the rate, but still the rate would have been valid as to the rest. We must, therefore, give judgments for the defendants. Assets by Descent. See tit. Bond, Covenant, fleir. See tit. Affidavit of Debt, ante, vol. i. pl. 336-8. Bond, Debtor and Creditor, Chose in Action, Insolvent Debtor, Bankrupt, Remainder, Surrender, Trustee,' Trespass, Vendor and Purchaser, Ways. Assize, Urit of.* See tits. Entry, Writ of, Money had and received, Office, Right, Writ of. 1. CRAGG V. NORFOLK. E. T. 1673. K. B. 2 Lev. 108, 120; S. C. 1 Mod. 122; S. C. 3 Keb. 326; Lil. Ent, 47. What sei sin of an office is suf | 405 1 If one be committed by the House of Commons to A. who before and long after was in possession of the office of sergeant of arms to the House, and the ficient. prisoner compounds with B. for the fees, and gives him 20s. this is a good sei* A writ of assize in a remedy for the restitution of a freehold, of which the party has been disseised. Anterior to the introduction of this remedy, the right of possession seems only to have been recoverable by writ of entry, which was then usually brought in the county court, and was from that circumstance far from being a tedious or protracted proceeding. But after the Conquest, all causes were drawn into the King's court to create the greater dependance, and then the process issuing from term to term was found extremely dilatory. And hence a new remedy was invented to do justice to the people, and to determine the possession in the proper counties, and yet by the King's judges, Gilb. Ten. 47. 48. This was the remedy by assize, which seems to have been of Norman extraction (See Custmier. 16.,) and to have been introduced in the Reign of Hen. 2. by Glanvil, then Chief Justice; (Mirr. c. 2. s. 25; 1 Reev. Hist. 126;) as a more easy and expeditious method of recovering the freehold than was observed in the writ of entry, for which reason it is called by stat. Westm. 2; 13 E. 1. c. 24; festinum remedium; and hence the writ of entry was afterwards called a writ of entry in the nature of an assize. See Fleta. 214. 215; Glanvil. c. 7; Booth. 262; 3 Bl. Com. 184. As a writ of entry is a real action which disproves the title of the tenant, by showing the unlawful commencement of his possession, so an assize is a real action which proves the title of the demandant merely by showing his or his ancestor's possession; Spelm. Cod. 330; and these two remedies are in all other respects so entirely alike, that a judgment or recovery in one is a bar against the other, for both as brought against the disseisor suppose a writ of entry in the disseisee, and no action can be brought above once by the law for the same thing; Gilb. Ten. 48. Writs of assize are principally of two kinds; writs of assize of a novel disseisin, and writs of assize de mort d'auncestor. 1st. Of the writ of assize of novel disseisin. This writ is founded on a man's own possession; it is a commission to the sheriff to reserve the tenements with the chattels found in them, and put them in peace till a jury have tried the cause, who were by such writ authorised to be returned at the assizes by the sheriff; and by the original practice in this assize, the sheriff used to take the tenements, together with the chattels found in them, into his own possession, till the right was tried; but because this proved inconvenient, for that the sheriff could not keep such possession and turn it to the best advantage, especially where such an assize was long in dependance, the practice altered, and the tenant was continued in possession until the judgment; and by such writ the jury were empowered to inquire of damage, because the sheriff was to receive the chattels as well as the frank tenement, and therefore such damages being assessed by the jury, were awarded to the tenant that recovered as well as the frank tenement. See the form of the writ; Booth. 206. By the common law it lies only de libero tenemento, viz. lands, tenements, rents, and all that whereof a præcipe quod reddat lay; 8 Co. 46. a; 2 Inst. 411; but by the stat. W. 2. c. 25. it lies of profits apprender in a place certain. And by this stat. an assize is given of offices; 8 Co. 47. a; 2 Inst. 409; and this is but an affirmance of the common law by which an assize lay of an office by the name of land; 8 Co. 47. a; 2 Inst. 412. So by the stat. 52 H. 8. c. 7. an assize lies of a parsonage, vicarage, tithes, &c.; Dyer. 83. pl. 77. But an assize does not lie of an office which has not any profit to it; 8 Co. 47. b; 2 Inst. 412; nor of a rent out of rent; 3 H. 6. 20; nor of an annuity or pension; 14 H. 6. 12; nor of a passage over the water, nor of a way; Fitz. Ass. 440; nor of the profit of a fair Ass. 471; Fitz. Ass. 383. 417; nor for not doing service; Kell. 130; nor of an easement. Roll. Abr. 270; 8 Co. 46, b. An assize must be brought in the county where the land lies, see F. N. B. 117; Booth. 266. But it may be brought in the one bench or in the other, if the land lies in the county where they sit at the election of the party; F. N. B. 177. b. 437; 9 Ass. 17; but if one bench be there only, then in that; Reg. 196; but if neither the one nor the other be there, then before the justices in eyre, without a commission; Reg. 197; Br. Ass. 496; or before the justices of assize of the same county by their general commission; F. N. B. 177; E. 178. A; or before special commissioners; F. N. B. 178. I. K. As to the proceedings in assize, see 2 Inst. 411. 413; 1 Com. Dig. 577. 582; Assize, B. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20; Booth. 266; et seq; Plowd. 411. 412. See 1 Lee. Dict. Assize. An assize of novel disseisin is called testinum remedium. 1st. Because the tenant shall not be essoined. 2d. Shall not cast a protection. 3d. Shall not pray in aid of the King, 4th. Shall not vouch any stranger except he be present, and will enter presently into war [ 406] sin of the office by B. for he cannot be disseised thereof but at his election; adjudged and held likewise that proving that B. being in the lobby of the House of Commons, took hold of the door of the house and laid his hands upon it, the mace then being in the hands of A. to take it, but hindered by A. was good evidence of a seisin and disseisin. The sergeant of the mace to the House of Commons, in an action upon the case for a disturbance recovered damages, and whether this was sufficient evidence of seisin, the damages being recoverranty, 5th. The parol shall not demur for the nonage of the plaintiff or demandant. 6th. It is most beneficial, for in no action at common law a man shall recover damages but in an assize; statute Gloucester c. 1; 8 Co. 50; Booth. 262. It lies for him who is seized in feesimple, tail, for life, for tenant by elegit, per statute 13 E. 1. c. 18. and by statute merchant, per statute 23 H. 8. c. 6. for a reversioner, upon the ousting of his termor, or for the lord upon the ousting of his copyholder; for a joint tenant upon the ousting of his companion; for a parson of a church; for a common of pasture, per statute 13 E. 1. c. 20; 8 Co. 84, and for a tenant by recognizance in nature of a statute Staple, per stat. 23 H. 8. c. 6. But a tenant for years, or other, who has not sole seisin as the head of a college for his headship; 1 Ld. Raym. 9. See Phillips v. Bury, 2 T. R. 355. Or he who has the inheritance or freehold cannot maintain it if he had not possession or seisin. As if ces'uy que vie dies, or the lease of a lessee for years deterinines, the lessor or his heir cannot have an assize before entry against him who takes possession after the death of the cestuy que vie. or the determination of the lease for years; Rol. Abr, 271; 1 Com. Dig. 576; Assize, B. 5, An assize is against tenant of a freehold; and if the disseisor be not tenant, ought to be against his tenant and the disseisor. And if the tenant be not known it may be against the pernor of the profits within a year after his title commences. Or it may be against the disseisor himself at any time if he be pernor at the day of the writ purchased. If there be an assize of a rent, it ought to be against the terre-tenant as well as the disseigor. So if it be of an office which concerns land. If it be of a rent charge, it ought to be against all the tenants of the land out of which the rent itsues; F. N. B. 178. D. So in an assize of a rent seck, ibid. But in another rent, it is sufficient that one terre-tenant and disseisor be named, ibid. So it lies against the terre tenant and disseisor, though he alien or be ousted pendente lite. But in an assize of a rent against the mesne, or in an assize of tithes, the terre-tenant need not be named; Dyer. 83. a. 84. a; 1 Com. Dig. 576; Assize, B. 6. 2d. Of the writ of assize, de mort d'auncestor. This writ was sustainable where the father or mother, brother, sister, uncle, aunt, nephew, or niece, died seised of lands, and a stranger abated, then the heir had such writ, and to such writ was required an immediate descent, as from father to son, or from brother to sister originally; and it seems by the stat. of Glouc. c. 6. it extended to uncles and aunts, nephews and neices, because abatements had frequently happened upon the death of such relations: but the more remote relations were left to pursue the writ of entry as at common law. The first process in this action is an or ginal writ issuing out of Chancery, directed to the sheriff, commanding him to return a jury, who are called the recognitors of the assize; F. N. B. 177; Fleta. b. 4. c. 4. f. 222; Co. Lit. 153. 154. b; Kelw. 98; Booth. 211; 2 Inst. 308; Reg, 197; Plow. 73. 415; Rol. Abr. 131. On showing cause he is entitled to an imparlance, at the return of which the defendant may cast an essoign; but if no essoign be cast and the defendant do not appear at the return of the writ, or if the defendant cast an essoign and do not appear on the day to which it is adjourned, the next process is a re summons, and if the defendant do not appear at the return of that writ, the assize is then taken by default. The recognitors have to inquire of three points; 1st. Whether the ancestors were seized in fee on the day of his death; 2d. Whether he died within 50 years before the suing out of the writ; and 3d. Whether the plaintiff be the next heir; Booth. 207. But if issue be joined upon special pleadings, as where a feoffment or release, &c. is pleaded, the assize is then taken at large; see upon this subject Booth. 206. 209; F. N. B. 195. c. &c. Com. Dig, Assize, E. If after the plaintiff has recovered seisin in this action he be disseised of the same tenements by the same disseisor, he may have his remedy before the sheriff by writ of post disseisin. In these possessory actions, there is a time of limitation settled, beyond which no man shall avail himself of the possession of his ancestors, or himself, or take advantage of the wrongful possession of his adversary. Thus by the stat. 32 H. 8. c. 21. no person shall maintain assize of mort d'auncestor cosinage ayel, writ of entry sur disseisin, or other possessory action, of the possession of any of his ancestors or predecessors, for any manors, lands, &c. of any further seisin, but within 50 years next before the teste of the original, and by the same stat. scire facias, on fines, shall be sued in 50 years after cause of action fallen, and not after. And no person shall make any avowry or cognizance. for any rent, suit or service, or allege any seisin, or possession thereof in any ancestor, himself, or any other above 40 years next before such avowry or cognizance. And by the same statute no person shall maintain any action upon his seisin or possession, above 30 years before the teste of the original. But writs of assize have been superseded in practice by the less complicated and more expeditious remedy of ejectment, which, like the former, is a possessory action grounded ed in satisfaction of the fees, and he then being out of possession of his office, was doubted; some of the judges inclined one way, and some the other, and it was intended to have been found specially, but the plaintiff being unwilling to The defend stand to was nonsuited. ant must plead over in bar, at the same 2. SAVERIS V. BRIGGS. E. T. 1692. K. B. 1 Salk. 82. Per Cur. If the defendant plead in abatement he must plead in bar at the same time also; no imparlance shall be allowed without good cause, because it time he is a festinum remedium; and if there be several defendants, and any one of them pleads in do not appear the first day, the assize shall be taken by default against him. abatement. 3. CRAGGE V. NORFOLK. E. T. 1673. 2 Lev. 120. [ 407 ] Assize for the office of sergeant of the mace to the House of Commons. If the ten The plaintiff arraigned the assize the first day of the term, but the tenant being demanded made default. Judgment was obtained against him by default. judgment Then the demandant counted, and showed the King's patent for the office, shall be tak which was read, and the jury not being sworn, a special day was appointed, en by de when, Per Cur. The defendant may give what evidence he can, but he cannot fault; but al plead either in abatement or in bar of the assize, nor challenge, ant do not appear, though de fendant in such case he may 4. HEATH V. PAGET. M. T. 1659. K. B. 1 Lev. 1; S. C. 1 Keb. 3. This was an assize for the office of keeper of the writs and records of the cannot court of K. B. in which it was stated to be an ancient office, grantable by the plead or Chief Justice for life, to be exercised by the grantee or his deputy; it further challenge, stated that the office being void, the Chief Justice had granted it to the plaingive evi tiff. The defendant, after obtaining a day to except, made the following ob- dence. jection, that the writ being sued out in the time of the late disturbance, was by An assize security and pledges, whereas the writ in Latin is pone per vades et plegios and was former tades is sureties. And of that opinion were the Court, and the writ abated. ly vitiated See Godb. 381; Hob. 129 Dyer, 55; 6 Co. 27. An application was after- by the plea wards made to amend the teste of the writ, being doudecno of the king, instead ging in English. of duodecimo, on the ground that it was only an error of the clerk, but the The teste of Court said if the word be of the substance of the writ, be it either false Latin the writ is or no Latin, it is not amendable; but if it be not of the substance of the writ, not amenda it is amendable; here the date is of the very substance of the writ, and upon that ground it must be abated. See ante, tit. Amendment. · 5. ŠAVIER V. LANT HALL. H. T. 1688. K P. 1 Salk. 82; S. C. Comb. 173, be nonsuit 207; 3 Mod. 272. ble. The deman dant may ed if he be count instan This was an assize for the office of marshall of the K. B. against Lenthall not ready to and four others. The counsel was ready to arraign it in French; the recogter to the nitors did not appear, but the Court ordered the writ to be read, and said it tenants de might be returnable at any common day or return day. The plaintiff also did mand; but not appear, and the Court ordered the assize to be adjonrned till the next. where nei Then the assize was arraigned, and the tenant demanded that the demandant ther the re should count against him. The demandant was not ready, and prayed that it cognitors might be adjourned till another day, but it was denied, for this is festinum remenor plaintiff dium, and the tenant is to plead presently, which he cannot do when he hath appeared nothing to plead to, whereupon the demandant was nonsuited; but he was informed by the Court that he might have a new assize. 6. CRAIG V. NORFOLK. E. T. 1673. K. B. 1 Mod. 123. The plaintiff on an assize having failed to prove a seisin, he applied to the Court to withdraw a juror. Sed Per Cur. It cannot be done; for the assize would be then pending. on the first day, the Court ad journed the assize to the next. [ 408 ] On an as on a right of possession; but by a chain of legal fictions is so contrived, as to supply seve- size a juror ral defects, which attended the bringing of real actions, for there the party could not reco- cannot be ver any damages, neither could he regularly bring a second action if he was defeated in the withdrawn. first; 6 Co. 7. And the writ of assize as a remedy for trying the right to offices is now nearly rendered obsolete, by the universal practice of bringing an action for money had and received. See Aris v. Stukeley, 2 Mon. 260; Howard v. Wood, 2 Lev. 245; Powell v. Milbank, I T. R. 399. n; S. C. 2 Bl. Rep. 851; per Ashhurst, J. in the King v. Bishop of Chester, 1 T. R. 493, Bayter v. Dodsworth, 6 T. R. 681. An information in the nature of a quo warranto, however, is the only convenient method of trying the right to an office where there are no fees. See R. v. Bingham, 2 East, 311. |