Page images
PDF
EPUB

prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any farther. On the other hand, if the superior court shall think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded ; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to it's original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cafes, the writ of prohibition is not absolutely final and conclusive. For, though the ground be a proper one in point of laiu, for granting the prohibition, yet, is the faEl that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, 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 false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always pursue the suggestion) and so plead to Mue upon it; denying-the contempt, and traversing the custom upon which the prohibition was grounded: and, if that issue be sound for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act'of parliament, do properly belong to their jurisdiction.

CHAPTER TH! EIGHTH.

Of WRONGS, And Their REMEDIES,

v RESPECTING THE RIGHTS OF PERSONS.

THE former chapters of this part of our commentaries having been employed in describing the several methods of redressing 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 jurisdictions of this kingdom ; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively 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, secondly, describe the method os pursuing and obtaining these remedies in the several courts.

First then, as to the several 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 such wrongs as may be committed in the mutual intercourse between subject and subject; which the king as the fountain of justice is officially bound to redress in the ordinary forms of law: reserving such

H 3 injuries injuries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature.

Now, since all wrong may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner j as when lands or personal chattels arc; unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages ; as in cafe of assault, breach of contract, t*fc: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury J; though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which arc sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the mirror b to be " the lawful demand of one's right:" or as Bracten and Fieta express it, in the words of Justinian z}jitsprosequendi in judicio quod alictii dvbetur.

The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks ; and made it a rule, that each injury should be redressed by it's proper remedy only. "Acliones, fay the pandects, compafitae "suirtx quibus inter fe komines dijeeptarent; quas aeiisnes, nepa"pulus prout vellet injlitueret, certas folennesqtte ejse volueruntd." The forms of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people c. The

• See bnok II. ch. 29. ■' 77". i. 2. 1. \. 6.

I> c. 2, \. 1. * Lie. pro Muraeiu, §. II.. t!c oral.

c IJI. 4. 6. fr. I. 1. c. 41.

concealment

concealment was ridiculous: but the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses itf, "font jura, font for"mulae, de omnibus rebus conflitutae, tie quis aut in genere in"juriae, aut in ratione aclionis, errare poffit. Expreffae enitn "font ex uniuscujusque damno, do/ore, incommedo, calamitate, "injuria, publicae a praetore formulae, ad quits privafa Us 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 parliament *. And all the modern legislators of Europe have found it expedient, from the fame reasons, to fall • into the fame or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguiflied into three kinds; actions perfinal, i real, and mixed.

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to. be founded on contracts, the latter upon torts or wrongs: and they are the fame which the civil law calls "aBiones inptr"fonam, quae adverfos cum intenduntur, qui ex eontraBu vel '* drfitlo obligatus ejl aliquid dare vel conedere V Of the former nature are all actions upon debt or promises •, of the latter all actions for trespasses, nusances, assuilts, defamatory words, and the like.

Real actions, (or, as they are called in the mirror',feodal

. actions) which concern real property only, are such whereby

-f'the plaintiff, here called the demandant, claims title to have

any lands or tenements, rents, commons, or other heredita

'Pro. i^a. Roftic. $. 5?. eanfenfu et vdwntatt fj'tfffi* (J. 5 de tx

? Sun: quaedam Irtvia fumata si'per cefstombus, c* 17. ^. 2.)

ceri'u casn-41 de mryj,et dtr.Mrr.ut:': cotiji- h hji* £, 6. lj,

totius rrgni afp'ubaia et ant-tf/a, quat l c. z. ^. 6.

fu.ucm nui:u:tnut mutlr'. j>i;er'.n: ahtque

H 4 meats, ment6, in see-simple, see-tail, or foT term of life. By these actions formerly all disputes concerning real estates were decided -, but they are now pretty generally laid aside 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 since introduced, by other actions personal and mixed.

Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance, an action of waste: which is brought by him who hath the inheritance, in remainder or reversion, against the tenant for life, who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Glocestcr k, which is a personal recompence; and so both, being joined together, denominate it a mixed action.

Under these three heads may every species 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 necessary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the respective natures, of all private wrongs, or civil injuries, which may be offered to the rights of cither a man's person or his property; recounting at the fame time the respective remedies, which are furnifhc! by the law for every infraction of right. But I must first beg leave to premise, that all civil injuries are of two kinds, the one without force Ot violence, as flar.der or breach of contract; the other coupled -with force and violence, as batteries, or false imprisonment'. Which latter species savour something of the criminal kind, being always attended with some violation os the peace; for which in strictness of law a sine ought to be paid to die king, as

l: C Ed. I. c. J. I Finch. L. 134.

well

« PreviousContinue »