!

in the inferior court.

And even in ordinary cafes, the writ of prohibition is not abfolutely final and conclufive. For, though the ground be a proper one in point of law, for granting the prohibition, yet if the fact that gave rife to it be afterwards falfified, the caufe fhall be remanded to the prior jurisdiction. If, for inftance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found falfe, a writ of confultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always purfue the suggestion,) and fo plead to iffue upon it; denying the contempt, and traverfing the cuftom upon which the prohibition was grounded: and, if that iffue be found for the defendant, he shall then have a writ of confultation. The writ of confultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition iffued, upon more mature confideration the court are of opinion that the matter fuggefted is not a good and fufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and fpeedy justice; in preventing them from tranfgreffing their due bounds; and in allowing them the undisturbed cognizance of fuck caufes as by right, founded on the ufage of the kingdom or act of parliament, do properly belong to their jurifdiction.

CHAPTER THE EIGHTH.

OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS.

TH

HE former chapters of this part of our commentaries having been employed in describing the several methods of redreffing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurifdictions of this kingdom; I come now to confider at large, and in a more particular manner, the refpective remedies in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclufively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, fecondly, defcribe the method of pursuing and obtaining these remedies in the feveral

courts.

FIRST then, as to the feveral injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to fuch wrongs as may be committed in the mutual intercourse between subject and fubject; which the king as the fountain of justice is officially bound to redress in the ordinary forms of law: referving fuch injuries

injuries or encroachments as may occur between the crown and the fubject to be distinctly confidered hereafter, as the remedy in such cafes is generally of a peculiar and eccentrical nature.

Now, fince all wrong may be confidered as merely a priva tion of right, the plain natural remedy for every species of wrong is the being put in poffeffion of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the fubject-matter in dispute to the legal owner; as when lands or perfonal chattels are unjustly withheld or invaded: or, where that is not a poffible, or at least not an adequate remedy, by making the sufferer a pecuniary fatisfaction in damages; as in cafe of asfault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury; though such right be not fully afcertained till they are affeffed by the intervention of the law. The inftruments whereby this remedy is obtained (which are fometimes confidered in the light of the remedy itself) are a diverfity of fuits and actions, which are defined by the mirror to be "the lawful demand of one's right:" or as Brac ton and Fleta exprefs it, in the words of Justinian, jus prefequendi in judicio quod alicui debetur.

"

THE Romans introduced, pretty early, fet forms for actions and fuits in their law, after the example of the Greeks; and made it a rule, that each injury fhould be redreffed by it's proper remedy only. "Actiones, fay the pandects, compofitae "funt, quibus inter fe homines difceptarent; quas actiones, ne po"pulus prout vellet inftitueret, certas folennefque effe voluerunt.” The forms of thefe actions were originally preferved in the books of the pontifical college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claydius, ftole a copy and published them to the people. The

concealment was ridiculous: but the establishment of fome ftandard was undoubtedly neceffary, to fix the true ftate of a queftion of right; left in a long and arbitrary process it might be shifted continually, and be at length no longer difcernible. Or, as Cicero expreffes it, "funt jura, funt for"mulae, de omnibus rebus conftitutae, ne quis aut in genere in« juriae, aut in ratione actionis, errare poffit. Expressae enim 66 funt ex uniufcujufque damno, dolore, incommodo, calamitate, « injuria, publicae a praetore formulae, ad quas privata lis ac«commodatur." And in the fame manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliaments. And all the modern legislators of Europe have found it expedient, from the fame reasons, to fall into the fame or a fimilar method. With us in England the several suits, or remedial inftruments of justice, are from the fubject of them distinguished into three kinds; actions perfonal, real, and mixed.

PERSONAL actions are fuch whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a fatisfaction in damages for fome injury done to his perfon or property. The former are faid to be founded on contracts, the latter upon torts or wrongs: and they are the fame which the civil law calls " actiones in per"fonam, quae adverfus eum intenduntur, qui ex contractu vel "delicto obligatus eft aliquid dare vel concedere." Of the former nature are all actions upon debt or promises; of the latter all actions for trefpaffes, nuisances, affaults, defamatory words, and the like.

REAL actions, (or, as they are called in the mirror 1, feodal actions) which concern real property only, are fuch whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaconfenfu et voluntate eorum. (1. 5. de exceptionibus. c. 17. §. 2.) n Inft. 4. 6. 15. i c. 2. §. 6.

Pro. Qu. Rofcio. §. 8.

Sunt quaedam brevia formata fuper certis cafibus de curfu, et de communi confilio totius regni approbata et concessa, quae quidem nallatenus mutari poterint abfque

ments,

ments, in fee-fimple, fee-tail, or for term of life. By thefe actions formerly all difputes concerning real estates were decided; but they are now pretty generally laid afide in practice, upon account of the great nicety required in their management, and the inconvenient length of their process a much more expeditious method of trying titles being fince introduced, by other actions perfonal and mixed.

MIXED actions are suits partaking of the nature of the other two, wherein fome real property is demanded, and alfo perfonal damages for a wrong fuftained. As for instance, an action of wafte: which is brought by him who hath the inheritance, in remainder or reverfion, against the tenant for life, who hath committed waste therein, to recover not only the land wafted, which would make it merely a real action; but also treble damages, in pursuance of the ftatute of Gloucefterk, which is a perfonal recompence; and fo both, being joined together, denominate it a mixed action.

UNDER these three heads may every fpecies of remedy by suit or action in the courts of common law be comprized. But in order effectually to apply the remedy, it is first neces fary to ascertain the complaint. I proceed therefore now to enumerate the feveral kinds, and to inquire into the respective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's perfon or hist property; recounting at the fame time the refpective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premife, that all civil injuries are of two kinds, the one without force or violence, as flander or breach of contract; the other coupled with force and violence, as batteries, or falfe imprisonment. Which latter fpecies favour fomething of the criminal kind, being always attended with fome violation of the peace; for which in strictness of law a fine ought to be paid to the king, as

* 6 Ed. I. c. 5.

VOL. III.

Finch. L. 184,

K

well

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