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 consulta. tion. 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 suggest. ed 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 be, long to their jurisdiction.

CHAP. VIII.

OF WRONGS, AND THEIR REMEDIES, 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 cogni zance 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, de. scribe 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 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 re

dress in the ordinary forms of law; reserving such injuries or en. [116] croachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is gene. rally 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 into 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 un. justly 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 assault, breach of contract, &c.: to which damages the

party injured has acquired an incomplete or inchoate right, the instant he re. ceives the injury; (a) though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this re. medy is obtained (which are sometimes considered in the light of the reme dy 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 Bracton and Fleta express it, in the words of Justinian, (c) jus prosequendi in judicio quod alicui debetur.

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 its proper remedy only. "Actiones, say "the pandects, compositae sunt, quibus inter se homines disceptarent : quas "actiones, ne populus prout vellet institueret, certas solennesque esse volu"erunt." (d) 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 concealment was ridiculous: but the establishment of some standard was undoubtedly necessary, [117] 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 it, f) "sunt jura, sunt formulae, "de omnibus rebus constitutae, ne quis aut in genere injuriae, aut in ratione "actionis, errare possit. Expressae enim sun ex uniuscujusque damno, do"lore, incommodo, calamitate, injuria, publicae a praetore formulae, ad quas privata lis accommodatur." And in the same 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. (g) And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same 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 personal, 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 personam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere." (h) of the former nature are all ac. tions upon debt or promises; of the latter all actions for trespasses, nusances, assaults, defamatory words, and the like.

Real actions, (or as they are called in the mirror, (i) 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 hereditaments, in fee-simple, fee-tail, or [118] for term of life. By these actions formerly all disputes concern. ing real estates were decided; but they are now pretty generally laid aside e Inst. 4. 6. pr. d Ff. 1. 2. 2. § 6. e Cic. pro Muraena. § 11. de orai. l. 1. c. 41. f Pro Qu. Roscio. § 8. g Sunt quaedam brevia formata super certis casibus de cursu, et de communi consilio tatius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate corum. (1. 5. de excep. tionibus, c. 17. § 2)

a See Book II. ch. 29.

b c. 2. § 1.

h Inst. 4. 6. 15.

i c. 2. § 6.

(1) See divisions, Com. Dig. Action, D. 1. 2. 3. 4.; Bac. Ab. Actions in general, A. Vor. II. 12

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 Gloucester, (k) which is a personal recompense; 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 either a man's person or his property; recounting at the same time the respective remedies, which are furnished 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 or violence, as slander or breach of contract; the other coupled with force and violence, as batteries or false imprisonment. (1) Which latter species savour something of the criminal kind, being always attended with some violation of

the peace; for which in strictness of law a fine ought to be paid [119] to the king, as well as a private satisfaction to the party injured. (m)

And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system, of wrongs, must correspond and tally with the former positive system, of rights. As therefore we divided (n) all rights into those of persons, and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.

The rights of persons, we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a correspondent na

ture.

I. As to injuries which affect the personal security of individuals, they

k 6 Edw. I. c. 5.

m Finch. L. 198. Jenk. Cent. 185.

i Finch. L. 184.

D See Book 1. cb. 1.

(2) For injury to life, in general, cannot be the subject of a civil action; the civil remedy being merged in the offence to the public. Therefore no action will lie for battery of wife or servant, whereby death ensued. Styles, 347. 1 Lev 247. Yelv. 89. 90. 1 Ld. Raym 339. The remedy is by indictment for murder, or, formerly, by appeal, which the wife might have for killing her husband, provided she married not again before or pending her appeal; or the heir male for

are either injuries against their lives, their limbs, their bodies, their health, or their reputations.

1. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being of the most atrocious species of crimes, the subject of the next book of our commentaries.

2, 3. The two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And [120] these may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury: but, to complete the wrong, there must be both of them together. (o) The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis; (p) this being an inchoate, though not an absolute violence.3 2. By assault; which is an attempt or offer to beat another, without touching him: as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him, but misses him; this is an assault, insultus, which Finch (9) describes to be" an unlawful settling upon one's person. This also is an inchoate violence, amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party p Regist 104. 27 Ass. 11. 7 Edw. IV. 24.

o Finch. L. 202.

१ Finch. L. 202.

the death of his ancestor, and which differed principally from an indictment in respect of its not being in the power of the king to pardon the offender without the appellor's consent. See post, 4 Book, 312. 6. 5 Burr 2643. But appeals of murder, treason, felony, and other offences, were abolished by 59 Geo III. c. 46. s. 1. In general, all felonies suspend the civil remedies, Styles, 346,7; and before conviction of the offender there is no remedy against him at law or in equity, id. ibid. 17. Ves. 331.; but after conviction and punishment on an indictment, of the party for stealing, the party robbed may support trespass or trover against the offender. Styles, 347 Latch. 144. Sir. Wm. Jones, 147. 1 Lev. 247. Bro. Ab. tit. Trespass. And after an acquittal of the defendant, upon an indictment for a felonious assault upon a party by stabbing him, the latter may maintain trespass to recover damages for the civil injury, if it be not shewn that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminalty of the offender. Thus it is provided by 52 Geo. III. c. 63. s. 5. that where bankers, &c. have been guilty of embezzlement, they may be prosecuted, but the civil remedy shall not be affected. The 21 Hen. VIII. c. 11. directs that goods stolen shall be restored to the owner upon certain conditions, namely, that he shall give or produce evidence against the felons, and that the felon be prosecuted to conviction thereon. Upon per formance of these, the right of the owner, which was before suspended, becomes perfect and absolute; but he cannot recover the value from a person who purchased them in market overt, and sold them again before the conviction of the felon, notwithstanding the owner gave such person notice of the robbery while they were in his possession; but he must proceed against the original felon, or against the person who has the chattel in his possession at the time of the conviction. 2 T. R. 750. And the above act does not extend to goods obtained by false pretences. 5 T. R. 175.; see further 1 Chitty's Crim. L. 5. Chitty.

In the United States, or in most of them, the law will not support the title of a person, to property that was embezzled, against the original owner, although the holder purchased it in market overt. See Johnson's Dig title Trover. Com Di Day's ed tit Trover.

(3) As to menaces and threats in general, see Com Dig. Battery, D. Vin. Ab. Menace, A. A menace of bodily harm, or to pull down a house, if followed by some consequent inconvenience is actionable, but not unless such consequence ensue. See ante, 1 Book, 136 31. Com. Dig. tit. Battery, D. Vin. Ab. tit Menace, A. Bac Ab tit. Assault Co Lit 253 b. Asdo what menace is actionable and recognised by law, Co. Litt. 161. b. 162 a 6 East, 126. 153.; and see form of a declaration for a menace, 2 Lutw 1428. Without some consequent damage no action is sustainable, and the party can only apply to a magistrate to bind the aggressor to keep the peace. Id. ibid. A threat to commit trespass to land or personal property, though attended with real damage, is not actionable. Id bid But some threats, made in writing, demanding money, or imputing some infamous crime, amount to a telony, punishable with transportation, and in such case the civil remedy is merged in the public offence. 4 Geo IV. c. 54. 6 G. IV. c. 19. Hawk. P. C. book 1. c. 53. 6 East, 120. 133. 2 East, P. C 1106. And to threaten an attorney, or other officer of a court of justice, in order to deter him from the performance of his duty, is punishable by fine and imprisonment. Latch. 220. Vin. Ab. Menace, C. Chitty

injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury. 3. By battery; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." And therefore upon a similar principle the Cornelian law de injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accom. panied with pain from pulsation, which was attended with none. (r) But battery is, in some case, justifiable or lawful: as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defence; and, if sued for it, may plead son assault demesne, or that it was the

plaintiff's own original assault that occasioned it. So likewise in [121] defence of my goods or possession, if a man endeavours to deprive

me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away.(r) Thus too in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation. (s) And, if sued for this or the like batte. ry, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery." 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating cir

r Ff. 47. 10. 5.

(4) See in general, Coin. Dig. Battery, C Bac. Ab. Assault and Battery, A. An assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm, by any means calculated to produce the end, if carried into execution. Levelling a gun at another within a distance, from which, supposing it to have been loaded, the contents might wound, is an assault. Bac. Ab. Assault, A. Abusive words alone cannot constitute an assault, and indeed may sometimes so explain the aggressor's intent, as to prevent an act, prima facie an assault, from amounting to such an injury; as where a man, during assize time, in a threatening posture, half drew his sword from its scabbard, and said, if it were not that it is assize time, I would run you through the body; this was held to be no assault, the words explaining that the party did not mean any immediate injury. 1 Mod. 3. Bul. N P 15 Vin Ab Trespass, A. 2. The intention as well as the act constitute an assault. 1 Mod. 3. case 15. Assault for money won at play is particularly punishable by 9 Ann. c. 14. 4 East, 174. Chitty. (5) Com. Dig. Battery, A. Bac. Ab. Assault and Battery, B. A battery is any unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund 29. b. n. 1. Id. 13 & 14 3 Taking a hat off the head of another is no battery. 1 Saund. 14. It must be either wilfully committed, or proceed from want of due care, Stra. 596 Hob. 134. Plowd 19., o'herwise it is damnum absque injuriâ, and the party aggrieved is without remedy 3 Wils. 303 Bac. Ab Assault and Battery, B.; but the absence of intention to commit the injury constitutes no excuse, where there has been a want of due care. Stra. 596. Hob. 154. Plowd 19. But if a person unintentionally push against a person in the street, or if without any default in the rider a horse runs away and goes against another, no action lies. 4 Mod. 405. Every battery includes an assault, Co. Litt 253.; and the plaintiff may recover for the assault only, though he declares for an assault and battery. 4 Mod. 405. Chitty.

(6) Com. Dig. Maliciously injuring with a sharp instrument, or firing a gun, &c. are made cri minal by statute 43 G. III. c. 58.

(7) As to mayhem in general, see Com. Dig. Battery, B.