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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 fi&tion (which is not traversable 9) 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 da

mages shall be given for the party complaining, and the de.
fendant, 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 prohi-
bition 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 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 the fact that gave rise to it
be afterwards fal6fied, the cause shall be remanded to the
prior jurisdiction. If, for instance, a custom be pleada
ed in the spiritual court; a prohibition ought to go, be.
cause 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 pro-
hibition, and take a declaration, (which must always pursue
the suggestion) and so plead to issue upon it; denying the
contempt, and traversing the custom upon which the prohi-
bition was grounded : and, if that ifsue be found for the de-
fendant, he shall then have a writ of confultation. The writ
of confiiltation may also be, and is frequently, granted by the
9 Barn. Not. 4to. 143,


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 juftice; in preventing them from tranfgressing 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 jurifdiction.



THE former chapters of this part of our commentaries

T 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 cog. nizance of wrongs or injuries by private or special tribunals, and the public ecclefiaftical, 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 fall, 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 applica. ble to each particular injury. And, in treating of these, I thall 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


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 dif. pute 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 case of asfault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the inftant he receives the injury a; 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 mirrorb to be “the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Justiniano, jus prom fequendi in judicio quod alicui debetur.

The Romans introduced, pretty early, fet 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 pro. per remedy only. “ Actiones, say the pandects, compositae funt, quibus inter fe homines disceptarent ; quas actiones, ne populus prout vellet institueret, certas folennefque effe 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. The a See book II. ch. 29.

| d F. 1. 2. 3. 4 6. b c. 2. 1.

e Cic pro Nuraena. $ 11. de oral. Inf. 4.6. pr.

l. 1. c. 41.

concealment concealment was ridiculous: but the establishment of fome standard was undoubtedly necessary, to fix the true state of a question of right; left in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it',sunt jura, funt for. « mulae, de oni nibus rebus conftitutae, ne quis aut in genere injuriae, aut in ratione actionis, errare pofiit. Expressae enim funt ex unii: cujufque damno, dolore, incommodo, calamitate, « injuria, publicae a praetore formulae, ad quas privata lis ac

s 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 same 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. fonal, 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 same which the civil law calls “ actiones in perfonam, quae adversus eum intenduntur, qui ex contractu vel 6 delito obligatus eft aliquid dare vel concedere h.” Of the former nature are all actions upon debt or promises; 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 actiors) 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 hereditaf Pro. Q:. Rofrio. §. 8.

confenfu et voluntate eorum. (1. 5. de exe Sunt quaedam brevia formata super ceptionibus. c. 17. $. 2. certis cafibus de cursu, et de communi con i bio Inft.4.6.15. lio totius regni approbata et concesa, quae i«, 2. .6. quidem nellatenus mutari poterikt abfque


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