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 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 such causes as by right, founded on the ufage of the kingdom or act of parliament, do properly belong to their jurifdiction. CHAPTER THE EIGHTH. OF WRONGS, AND THEIR REMEDIES, TH 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 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 confider 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 exclufively appropriated to any of the former tribunals. And herein I fhall, firft, 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 several courts. FIRST then, as to the feveral injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of thefe, I fhall at prefent confine myself to fuch wrongs as may be committed in the mutual intercourfe between subject and subject; which the king as the fountain of justice is officially bound to redress in the ordinary forms of law: referving fuch injuries injuries or encroachments as may occur between the crown and the subject, to be diftinctly confidered hereafter, as the remedy in fuch cafes 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 species of wrong is the being put in poffeffion 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 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 fufferer a pecuniary fatisfaction in damages; as in case of asfault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the inftant he receives the injury; though such right be not fully ascertained 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. THE Romans introduced, pretty early, fet forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury fhould 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." The forms of these actions were originally preferved in the books of the pontifical college, as choice and ineftimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, ftole a copy and published them to the people. The 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 f, "funt jura, funt for"mulae, de omnibus rebus conftitutae, ne quis aut in genere in"juriae, aut in ratione actionis, errare poffit. Expressae 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 legiflators of Europe have found it expedient, from the fame reasons, to fall into the same or a fimilar method. With us in England the feveral fuits, or remedial inftruments of justice, are from the subject 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, likewise, 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 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 f Pro. Qu. Rofcio. §. 8. Sunt quaedam brevia formata fuper certis cafibus de curfu, et de communi confilio totius regni approbata et conceffa, quae quidem nalidtenus mutari poterins abjque confenfu et voluntate eorum. (1. 5. de exceptionibus. c. 17. §. 2. h Inft. 4. ments, ments, in fee-fimple, fee-tail, or for term of life. By these actions formerly all difputes concerning real estates were decided; but they are now pretty generally laid afide 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 fince introduced, by other actions personal and mixed. MIXED actions are suits partaking of the nature of the other two, wherein fome 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 reverfion, against the tenant for life, who hath committed waste therein, to recover not only the land wafted, which would make it merely a real action; but also treble damages, in pursuance of the ftatute of Gloucefterk, which is a personal recompence; and fo both, being joined together, denominate it a mixed action. UNDER these three heads may every fpecies of remedy by fuit or action in the courts of common law be comprized. But in order effectually to apply the remedy, it is first neceffary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the refpective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's perfon or his property; recounting at the fame 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 flander or breach of contract; the other coupled with force and violence, as batteries, or false imprisonment'. Which latter fpecies favour fomething of the criminal kind, being always attended with some violation of the peace; for which in ftrictness of law a fine ought to be paid to the king, ás 6 Ed. I. c. 5. VOL. III. K 1 Finch. L. 184. well |