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then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare in prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition or fiction (which is not traversable l) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion, that the matter suggested is a good and sufficient ground of £ 114 ] 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, (hall 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 (hall 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 sounded, 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 cases, the writ of prohibition is not absolutely final and conclusive. For, though the ground be a proper one in point of law, for granting the prohibition, yet, if ihufatl 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 issue upon it; denying die contempt, and traversing the custom upon which the prohibition was grounded: and, if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the

1 Barn. Not. 4W. 148,

ccurt court without any action brought; when, after a prohibition issued, upon more mature consideration the court are os 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 speedyjustice; 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.




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 of 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 ihall at present confine myself to such wrongs as may be com-mitted 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

injuries injuries or encroachments as may occur between the crown and the subject, to be diltinctly 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; as when lands or personal chattels are 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, £s*<r .• 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 ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the mirror6 to be "the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Justinianc,jusprostquendi injudicio quod alicui dtbetur.

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 mould be redressed by it's pro« per remedy only. "Acliones, fay the pandects, compofitae ft sunt, quibus inter fe hotn'uus dlsceptarent; quas acliones, nepo"pulutprout vellet injiitueret, certas filiimesque ejft voluerunt*." 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 e. The

a See book II. ch. 19. <> Fs. 1.1. 1. § 6.

"c. z. § t. 'Cic fro fcuraena. § II. it fat.

tlnst. 4. 6. fr, 1. I. c. 41.

7 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 mighf be shifted continually, and be at length no longer discernible. Or, as Cicero expresses itf, "stint jura-, stint sor*' mulae, de omnibus rebus conflitutae, tie quis atit in genne i/i*' juriae, aut in rat'wne atlionis, errarepojsit. Exprefsae enim "sunt ex unitfeujusque damtio, dclore, imommodo, calamitate, *' injuria, publicae a praetore formulae, ad quas privata Us ac'*• commodatur." And in the fame manner our Bracton, speaking of the original writs upon which all our actions arc 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 distinguished into three kinds; actions per' final, 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 "atliones in per11 sonant, quae adversus eum intenduntur, qui ex contraclu vel "deliclo obligatus eft aliquid dare vel concedere k." Of the former nature are all actions upon debt or promises 5 of the latter all actions for trespasses, nuisances, assaults, 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 the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other heredita

* Pro. «>». Rifcio. §. 8. tvnjnfu it wluntateeorvm. (I. 5. deex

t Sunt auttedam brtvia ftrmata super eeptionibus. e. 17. §. 2.

eertts cajibui ds cursut ct de communt co*fi~ ^ Injl. 4. 6.15.

iio totiut regni approbate et C6ttceJ/atouat i t, 2. §• 6*

fuidem naUalcmi mutari ptterlnt absent


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