and which is therefore a ground of prohibition. And if either the judge or the party fhall proceed after fuch prohibition, an attachment may be had against them, to punish them for the contempt, at the difcretion of the court that awarded it°; and an action will lie against them, to repair the party injured in damages.

So long as the idea continued among the clergy, that the ecclefiaftical state was wholly independent of the civil, great ftruggles were conftantly maintained between the temporal courts and the fpiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the conftitutions of Clarendon, made in oppofition to the claims of archbishop Becket in 10 Hen. II, to the exhibition of certain articles of complaint to the king by archbishop Bancroft in 3 Jac. I. on behalf of the ecclefiaftical courts: from which, and from the answers to them figned by all the judges of Westminster-hall P, much may be collected concerning the reafons of granting and methods of proceeding upon prohibitions. A fhort fummary of the latter is as follows. The party aggrieved in the court below applies to the fuperior court, fetting forth in a fuggeftion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manne: of procefs difallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be fufficient, the writ of prohibition immediately iflues; commanding the judge not to hold, and the party not to profecute, the plea. But fometimes the point may be too nice and doubtful to be decided merely upon a motion: and 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 9) that he has proceeded in the fuit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court fhall finally be of opinion, that the matter fuggefted is a good and fufficient ground of 1 Barn. Not. 4to. 143.

o F. N. B. 40

P 2 Inft. 601-518.

prohibition in point of law, then judgment with nominal damages fhall be given for the party complaining, and the defendant, and allo the inferior court, fhall be prohibited from proceeding any farther. On the other hand, if the fuperior court fhall think it no competent ground for restraining the inferior jurifdiction, then judgment fhall be given against him who applied for the prohibition in the court above, and a writ of confultation fhall be awarded; fo called, because, upon deliberation and confultation 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 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 inftance, a custom be pleaded in the fpiritual court; a prohibition ought to go, becaufe 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 purpofe the party prohibited may appear to the prohibition, and take a declaration, (which mufr always purfue the fuggeftion) and fo plead to lue 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 fhall 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 ftop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and fpeedy juftice; in preventing them from tranfgrefling 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 EIGHT H.

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 cognizance 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 private 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, fecondly, describe 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 refpective remedies applicable to each particular injury. And, in treating of thefe, I shall at prefent confine myself to fuch 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: referving such injuries

H 3

injuries or encroachments as may occur between the crown and the subject, to be diftinétly confidered hereafter, as the remedy in fuch cafes is generally of a peculiar and eccentri

cal 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 fubject-matter in difpute 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 fufferer 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 mirror to be "the lawful demand of one's right:" or as Bracton and Fleta exprefs it, in the words of Juftinian , jus profequendi in judicio quod alicui debetur.

b

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 inftitueret, certas folennefque effe voluerunt a.” 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, ftole a copy and published them to the people . The

a See book II. ch. 29.

b c. 2. §. 1.

c Lift. 4. 6. pr.

d Ff. 1. 2. 2. §. 6.

e Cic. pro Muraena. §. It.. de orat.

7. 1. c. 41.

concealment

concealment was ridiculous: but the establishment of fome standard 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 conflitutae, ne quis aut in genere in“juriae, aut in ratione actionis, errare poffit. Expressue 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, 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 fimilar method. With us in England the feveral fuits, or remedial inftruments of juftice, are from the fubject of them diftinguished into three kinds; actions perfinal, 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 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 promifes ; of the latter all actions for trefpaffes, nufances, affaults, defamatory words, and the like.

REAL actions, (or, as they are called in the mirror i, 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