Sivut kuvina

2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition.


*A prohibition is a writ issuing properly only out of the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery, (h) common pleas,(i) or exchequer; (k) directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, npon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises;(1) 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 try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or if, in handling of matters clearly within their cognizance, 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. And if either the [*113 judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the 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, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper object of it; 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 Westminster hall, (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." But sometimes the point

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The Supreme Court of the United States has power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States. Act of Congress, Sept. 24, 1789, 1 Story's Laws, 59.-SHARSWOOD.

"The general grounds for a prohibition to the ecclesiastical courts are either a defect

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 a prohibition; that is, to prosecute an action, by filing a aclaration, against the other, upon a supposition or fiction (which is not traversable) (7) 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 suf ficient ground of *prohibition in point of law, then judgment with *114] nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any further. 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 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, 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 falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom 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 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 sugges tion,) 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. The writ of con sultation 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. 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 cogni zance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.18

(9) Barn. Not. 4to, 148.

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 prohibition. Lord Kenyon, 3 T. R. 4. But when a prohibition is granted after sentence, the want of jurisdiction must appear upon the face of the proceedings of the spiritual court. Ibid. Cowp. 422. See also 4 T. R. 382. See also 2 H. Bl. 69, 100. 3 East, 472.-CHRISTIAN.

18 The ancient practice as to the writ of prohibition has been much simplified and improved by stat. 1 W. IV. c. 21.-STEWART.

The Supreme Court of the United States hath power to issue writs of prohibition to the federal district courts, when proceeding as courts of admiralty and maritime jurisdiction. Act of Congress, Sept. 24, 1789, 1 Story's Laws, 59.-SHARSWOOD.




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 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 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, 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 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: 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 wrongs 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 dispute 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 assault, breach of contract, &c. to which damages the party injured has acquired an incomplete or inchoate right the instant 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 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, "composita sunt, quibus inter se homines disceptarent: quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt."(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 ridicu[*117 lous; but the establishment of some standard was undoubtedly necessary, 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 formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressa enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a _prætore formulæ, ad quas privata lis accommodatur." And in the same manner

(*) See book ii. ch. 29.

(4) C. 2, 21.

(•) Inst 4, 6, pг.

VOL. II.-6

(d) Ff. 1, 2, 2, 3 6.

() Cic. pro Muræna, 8 11, de orat. 1, c. 41.
() Pro Qu. Roscio. § 8.


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, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere."(h) Of the former nature are all actions upon debt or promises; of the latter, all actionɛ for trespasses, nuisances, 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 for term of life. By these ac

*118] tions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside 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 sus tained. 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.1

Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. 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 nature, 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 *119] to be paid 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

() Sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate corum. L. 5, de exceptionibus, c. 17, 22. (*) Inst. 4, 6, 15.

(4) C. 2, 26.

(*) 6 Edw. I. c. 5.
() Finch, L. 184.

() Finch, L. 198. Jenk. Cent. 185.

1 Real actions, with the exception of three,-dower, right of dower, and quare impedit,— were entirely abolished by stat. 3 & 4 W. IV. c. 27, s. 36. All mixed actions, with one exception, the action of ejectment,-were abolished by the same statute. The action of ejectment thus preserved has now, by the Common-Law Procedure Act 1852, been aiso swept away, and a new procedure or action of ejectment substituted in its place.→ STEWART.

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 divide(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 corresponding nature.

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

(*) See book i. ch. 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 an action will not lie for battery of wife or servant, whereby death ensued. Styles, 347. 1 Lev. 247. Yelv. 89, 90. 1 Lord 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 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, 347;) 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. Abr. 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 shown that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminality 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 performance 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.

By the common law, the wife or husband, parent or child, of the party killed, cannot recover any pecuniary compensation for the injury sustained by the death of the relative, (Baker vs. Bolton, I Camp. 493;) and this was the law till the stat. 9 & 10 Vict. c. 93 enacted that whenever the death of a person shall be caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to such action may be sued by the executor or administrator for the benefit of the wife, husband, parent, or child of the person deceased. The jury, in any such action, may give damages proportionable to the injury resulting from the death, to be divided among the parties for whose benefit the action is brought, in shares as the jury shall direct. Blake . Midland Railway Company, 21 L. J. R. 233, Q. B. S. C. 18 Ad. & El. 93.-STEWART

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