Monday, October 13, 2008

Legal Talk (1)

Topic: Understanding Legal Terms Pre: 1901 #1


A term which, in its broadest sense, includes every lawful proceeding in a court of justice for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Formerly the term was confined, in English law, to an ordinary proceeding in a common law court, while the word suit was applied to a proceeding in equity. By the reformed procedure in many of our States, all distinction between actions at common law and suits in equity, as well as between the different forms of common law actions, have been abolished, and only a single civil action is recognized.

If the prosecution is not instituted and carried on by one party against another, it is denominated by some statutes a special proceeding. The earliest classification of common law actions was: (1) real actions, or those based on the plaintiff's right of property in specified lands, so called because the res, or property itself, was sought to be recovered; (2) mixed actions, such as those for partition of lands for ejectment or for waste; (3) personal actions, or those against a particular person for a money judgment. The distinction between real and personal actions is the foundation of the classification of property as real and personal. This third class was subdivided into actions ex contractu, such as debt and covenant and actions ex delicto, such as trespass and detinue. Again, actions are divided into local and transitory, according as they must be brought in a certain county or state, or as they may be brought wherever the defendant is found. An action for trespass to land is local, and it must be brought in the State where the land is situated; while an action for slander of title to that land is transitory. The action of account at common law was used much earlier than, and is distinct from, the action upon an account stated, which came into the law as a common count. The action of account would lie at common law, and by early English statute against one acting in a fiduciary capacity other than a trustee, or against one whose duty it was to render an account to the plaintiff, to compel the defendant to render an account and to pay the amount due on such accounting.

Forcible Entry and Detainer.

The taking or keeping possession of real property through threats or force, with no authority of law. To make such forcible entry there must be such acts of violence, menaces, or gestures as may give reason to anticipate personal injury or danger in making a defense. But the force must be more than is implied in mere trespass.

There are in most of the States statutes regulating proceedings in cases of forcible entry, directing the manner of proceeding for the restoration of property unlawfully withheld and the punishment of the offender. The plea of ownership is not a justification of the defendant, for no one may enter even upon his own property in any other than a peaceable manner. Nor can he be excused on the plea that he entered to enforce a lawful claim or make a distress, nor on the plea that possession was finally obtained by entreaty. The policy of this legislation is to prevent the disturbance of the public peace, and to compel disputants to settle their controversy in a court of justice.

Originally by the common law of England the right of entry upon land of which one had been unlawfully deprived might be exercised by force or threats, if necessary. But by a series of early statutes, the first of which dates back to the time of Richard II., this remedy was limited to an entry "in a peaceable and easy manner, and not with force or strong hand." (14)

Sources Utilized to Document Information


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