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then, for the more folemn determination of the question, the party applying for the prohibition is directed by the court to declare in prohibition; that is, to profecute an action, by filing a declaration, against the other, upon a fuppofition or fiction (which is not traversable 4) that he has proceeded in the fuit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion, that the matter fuggefted is a good and fufficient ground of [114] prohibition in point of law, then judgment with nominal da

mages fhall 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 fuperior court shall think it no competent ground for reftraining the inferior jurifdiction, then judgment fhall be given against him who applied for the prohibition in the court above, and a writ of confultation shall be awarded; fo called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the caufe to it's original jurifdiction, to be there determined, 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 rise to it be afterwards falfified, the caufe fhall be remanded to the prior jurifdiction. If, for instance, a cuftom 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 fuch 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 pursue the fuggeftion) and fo plead to iffue upon it; denying the contempt, and traverfing the custom 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 alfo be, and is frequently, granted by the

q Barn. Not. 4to. 148.

court

114 court without any action brought; when, after a prohibition iffued, upon more mature confideration 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 fpeedy juftice; in preventing them from tranfgreffing their due bounds; and in allowing them the undisturbed cognizance of fuch caufes as by right, founded on the ufage of the kingdom or act of parliament, do properly belong to their juris diction.

CHAPTER THE EIGHTH.

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

HE former chapters of this part of our commentaries having been employed in defcribing the feveral 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 feveral fpecies of courts; together with the cog nizance of wrongs or injuries by private or fpecial tribunals, and the public ecclefiaftical, military, and maritime jurisdictions 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 pri vate wrongs of any denomination whatsoever, not exclufively appropriated to any of the former tribunals. And herein I shall, first, define the feveral injuries cognizable by the courts of common law, with the refpective 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 feveral injuries cognizable by the courts of common law, with the refpective remedies applicable to each particular injury. And, in treating of these, I fhall at prefent confine myfelf to fuch wrongs as may be com mitted in the mutual intercourfe between fubject and subject; which the king as the fountain of juftice is officially bound to redress in the ordinary forms of law: referving such

injuries

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

Now, fince all wrong may be confidered as merely a privation of right, the plain natural remedy for every fpecies of wrong is the being put in poffeffion of that right, whereof the party injured is deprived. This may either be effected by a fpecific delivery or restoration of the subject-matter in difpute to the legal owner; as when lands or personal 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 case of affault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the inftant he receives the injury; though fuch 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 mir Tor to be "the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Juftinian, jus profequendi 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 should 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 inflitueret, certas folennefque effe voluerunt3" The forms of thefe actions were originally preferved in the books of the pontifical college, as choice and ineftimable secrets; till one Cneius Flavius, the fecretary of Appius Claudius, stole a copy and published them to the people. The

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concealment was ridiculous: but the establishment of fome ftandard was undoubtedly neceffary, to fix the true state 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 pofit. Expreffae enim "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, fpeaking 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 legiflators of Europe have found it expedient, from the fame reasons, to fall into the fame or a fimilar method. With us in England the feveral fuits, or remedial inftruments of juftice, 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 perfonal duty, or damages in lieu thereof: and, likewife, whereby a man claims a fatisfaction in damages for fome injury done to his person 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, nuifances, 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 heredita

↑ Pro. Qu. Refcio. §. 8.

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

confenfu et voluntate eorum, (1. 5. de ex-
ceptionibus. c. 17. §. 2.
h Inft. 4.6.15.
i c. 2. §. 6.

ments,

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