Co. Litt. 11. Clerke Prax. Cur. Adm. The proceedings of the courts of admiralty bear much re- Proceedings. semblance to those of the civil law, but are not entirely Hale Hist. founded thereon; they also adopt and make use of other C. L. 36, 52. marine laws, as the Rhodian laws and laws of Oleron; the whole being regulated by acts of parliament and common usage. The first process in these courts is frequently by arrest of the defendant's person; and they also take recognizance or stipulation of certain fidejussors, in the nature of bail, and in case of default may imprison for a contempt. All possible injuries that do not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are within the cognizance of the common law courts of justice. s. 13. Ibid. s. 11. 1 Roll. Abr. Raym. 78. 1286. i Ventr. 1. The first of these injuries, refusal or neglect of justice, is The writ of remedied either by writ of procedendo or of mandamus. A procedendo. writ of procedendo ad judicium issues out of the court of chan cery, where judges of any subordinate court delay the parties, or will not give judgment, commanding them to proceed to F. N. B. 153, judgment, and upon neglect or refusal they may be punished 154, 240. by attachment for contempt. A writ of mandamus is a command issuing in the king's Mandamus. name from the court of king's bench, directed to any person, corporation, or other inferior court of judicature, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes to be consonant to right and justice. It is a high prerogative writ of a most extensive remedial nature: and may be issued, in some cases, when the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office; but it issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance. A mandamus Where it lies. therefore lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, &c.; it lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal, and to compel the holding of a court. It issues to the judges of any inferior court, commanding them to do justice according to the powers of their office whenever the same is delayed. A mandamus may be had to the courts On what grounded. Raym. 214. tory. of the city of London to enter up judgment; to the spiritual courts to grant an administration, to swear a churchwarden, and the like. This writ is grounded on a suggestion by the oath of the party injured of his own right, and the denial of justice below; whereupon a rule is made, directing the party complained of to show cause why a writ of mandamus should not issue; and if he shows no sufficient cause the writ is issued, at first in the alternative, either to do thus or signify some reason to the contrary; to which a return or When peremp- answer must be made at a certain day (i). And if the inferior judge, or other person to whom the writ is directed, returns, or signifies an insufficient reason, then there issues in the second place a peremptory mandamus to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his obedience, he is punishable by attachment. If he at the first returns a sufficient cause, although it should be false in fact, the court of king's bench will not try the truth of the fact upon affidavits; but will, for the present, believe him, and proceed no farther on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a perempEncroachment tory mandamus to the defendant to do his duty. Another of jurisdiction. injury, 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 a grievance for which the common law has provided a remedy by the writ of prohibition. A 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 also be had in some cases out of the court of chancery, common pleas, or exchequer; directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon 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; if they hold plea of (i) By 1 Wm. 4, c. 21, s. 3, the enactment of 9 Anne, c. 20, relating to returns to writs of mandamus therein mentioned, and the proceedings thereon, are extended to all other writs of mandamus. land, or other matters not lying within their respective franchises; to the county courts, or courts baron, when they 351 attempt to hold plea of the value of 40s.; to the courts chris- Finch. L. 451. tain, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; or if in dealing with matters within their cognizance, they transgress the bounds prescribed Cro. Eliz. 666. to them by the laws of England. And if either the judge or F. N. B. 40. the party shall proceed after such prohibition, an attachment may be had against them; and an action will lie against them for damages. Hob. 188. The methods of proceeding upon prohibitions are as fol- Proceedings in lows: The party aggrieved in the court below applies to the prohibitions. superior court, setting forth in a suggestion upon record the nature and cause of his complaint (j), in being drawn to another trial by a jurisdiction or process disallowed by law; 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 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 prohibition (k), that is to prosecute an action, by filing a declaration against the other, upon a supposition or fiction which is not traversable, that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if upon demurrer 4to. 148. and argument, the matter suggested is found to be a sufficient ground of prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant and the inferior court shall be prohibited Writ of confrom proceeding any farther. But if the superior court shall sultation. (j) But see now the next note. Barn. Not. (k) By 1 Wm. 4, c. 21, s. 1, applications for writs of prohibition may be made on affidavit only, and if the party applying shall be directed to declare in prohibition before writ issued, such declaration shall be expressed to be on behalf of such party only, and not, as heretofore, on behalf of the party and of the king, and shall contain and set forth in a concise manner so much only of the proceeding in the court below as may be necessary to show the ground of the application, without alleging the delivery of a writ or any contempt, and shall conclude by praying that a writ of prohibition may issue, to which declaration the defendant may demur, and the party in whose favour judgment shall be given shall be entitled to costs. 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. 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. 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 sufficient ground to stop the proceedings below. CHAPTER VIII. OF WRONGS AND THEIR REMEDIES RESPECTING THE RIGHTS OF PERSONS. THE injuries cognizable by the public and general courts of As all wrong may be considered 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 withholden or invaded; or where that is not a possible or an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault or breach of contract. The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be "the lawful demand of one's right;" or as Bracton and Fleta express in the words of Justinium, jus prosquendi in Inst. 4, 6. pr. judicio quod alicui debetur. The several suits or remedial instruments of justice are from the subject of them distinguished into three kinds; actions personal, real, and mixed (a). or actions. Personal actions are such whereby a man claims a debt Personal personal duty or damages in lieu thereof; and also whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are founded upon contracts, the latter upon torts or wrongs, being the same which the civil law calls personal actions, which are commenced against him who, by contract or through the commission of some offence, is bound to give or surrender something. Of the former nature are all actions upon debt or promises; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like. Real actions which concern real property only are such Real actions. whereby the plaintiff claims title to any lands (b). 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 (c). 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 and false imprisonment. This distinction of private wrongs into injuries, with and without force, runs through all the variety which are here treated of, and as all rights were before divided into those of persons and those of things, so the same general distribution of injuries will now be made into such as affect the rights of persons, and such as affect the rights of property. Civil injuries, and with force. without force abso The rights of persons were distributed into absolute or such The rights of as appertain to private men as individuals; and relative or person rela such as are incident to them as members of society. The tive. 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 nature. Injuries which affect the personal security of individuals, are Injuries affect (a) By 3 & 4 Wm. 4, c. 27, s. 36, all real and mixed actions, except for dower, quare impedit, and ejectment are abolished. (b) See the last note. (c) See note (a), ante. A A |