the inferior courts of com Instances. Where they concern them Instances. This writ may issue either to inferior courts of common May issue to law; as, to the Courts of the Counties Palatine or principality of Wales, if they hold plea of land or other matters mon law. not lying within their respective franchises (); to the County Courts or Courts-Baron, where they attempt to hold plea of any matter of the value of forty shillings (m): or it may be directed to the Courts Christian, the University Courts, the Court of Chivalry, or the Court of Admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to selves with mattry the validity of a custom pleaded, or the latter a con- ter out of their tract made or to be executed within this kingdom. Or, or transgress jurisdiction. if, in handling of matters clearly within their cognizance, its bounds. they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes (n), or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought, therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law; else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety, which no wise government can or ought to endure, and which is therefore a ground of prohibition. [*113 ] And if either the judge or the party shall proceed after Proceeding after prohibisuch prohibition, an attachment may be had against them, tion, remedy by to punish them for the contempt, at the discretion of the attachment. court that awarded it (o); 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 ecclesiastical state was wholly independent of the civil, (1) Lord Raym. 1408. (m) Finch, L. 451. (n) Cro. Eliz. 666. Hob. 188. Summary of the auswer, signed by all the judges of Westminsterhall, to Archbishop Bancroft's articles of complaint to the king. great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper objects of it (58); even from the time of the Constitutions of Clarendon, made in opposition 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 ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminsterhall (p), much may be collected concerning the reasons of granting, and methods of proceeding upon, prohibitions. A short summary of the latter is as follows. The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea (59). But (p) 2 Inst. 601-618. (58) That the clergy, if they might, would have accomplished the silencing of the common law, when opposed to the encroaching, overweening designs inherent in the very being of that order, has been very broadly mentioned in comparatively modern times. Ecclesiastical seem to have overawed the temporal courts. In Cheeseman v. Hoby, Willes, 680, the court, in giving judgment, is reported to have said, "There are so many jarring cases on the head of Prohibition, that it is very difficult to reconcile them. For when the power of the church ran very high, the judges were cautious in granting prohibitions; when it did not run so high, the judges ventured to go farther, by granting them." (59) The general grounds for a prohibition to the ecclesiastical courts are, either a defect of jurisdiction or a defect in the mode of trial. If any fact be pleaded in the court below, and the parties are at issue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition lies. Or where the spiritual court has no original jurisdiction, a prohibition may be granted even after sentence. But where it has jurisdiction, and gives a wrong judgment, it is the subject-matter of appeal and not of directed to de clare in prohi [* 114] sometimes the point may be too nice and doubtful to be decided merely upon a motion: and then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare in Where the prohibition (60); that is, to prosecute an action, by filing for the prohiparty applying a declaration, against the other, upon a supposition or fic- bition is tion (which is not traversable (q)) 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 *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, shall be prohibited from proceeding any farther. On the other hand, if the superior court shall think it no Where writ of competent ground for restraining the inferior jurisdiction, awarded. 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 prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, In ordinary the writ of prohibition is not absolutely final and conclu- prohibition sive. For, though the ground be a proper one in point not final. of law, for granting the prohibition, yet, if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a Instance. custom be pleaded in the spiritual court, a prohibition ought to go, because that court has no authority to try it; 4. (9) Barn. Not. 4to, 148. prohibition. Lord Kenyon, 3 T. R. ceedings of the spiritual court. Ibid. Cowp. 422. See also 4 T. R. 382.CH. But when a prohibition is granted after sentence, the want of jurisdiction must appear upon the face of the pro (60) See Gare v. Gapper, and Gould v. Same, cited in note (57), ante. consultation cases, writ of Of writ of con sultation: where granted. 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 the 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 (61). 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 suggested is not a good and sufficient ground to stop the proceedings below (62). 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 belong to their jurisdiction (63). (61) Of this writ, see the title, Pr. Dict. But in practice it never issues. The decision of the superior court that it issue, is deemed enough. (62) The modern cases relating to prohibition are collected in the Digests; the more early, in Com. Dig. titles Admiralty (F. 2, &c.), Prohibition, Pleader (3 H.), Waste (A. 1). As to Consultation, see also Com. Dig. title Prohibition (K. &c.). (63) The inferiority, and, in some cases, even the subserviency, of the ecclesiastical court, is especially marked in Crogate's case, 8 Co. 67 a. 1st Resolution; and in a later case by Lord Ellenborough, 3 Camp. 388, Beaurain, gent. v. Sir Wm. Scott, who there is reported to have said, that the law and practice of that court are matters of fact, to be proved by witnesses. And see Bushell's case, Vaughan, 143. CHAPTER VIII. OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. already treated. to be treated. THE former chapters of this part of our Commentaries Recapitulation having been employed in describing the several methods of subjects 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 Summary of at large, and in a more particular manner, the respective subjects now 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 1. Injuries and injuries cognizable by the courts of common law, with the their remedies 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 1. As to 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 redress in the ordinary forms of law: at common law. 2. The methods of pursuing them. first head. |