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jurisdiction is defective in the inability to enforce its decrees. No other process exists but excommunication. 2. COURTS MILITARY, OR COURTS OF CHIVALRY.
Damages Never Given. As this court cannot meddle with anything determinable by the common law, it can give no damages. Can only order reparation in point of honor. It is not a court of record. 3. COURTS MARITIME, OR OF ADMIRALTY.
Jurisdiction. For injuries committed on the high seas and not within the precincts of any county. It has jurisdiction of things flotsam, jetsam, and ligan. If part of the contract lies upon the the sea and part on the land, the admiralty court has no jurisdiction. It belongs to other courts. A contract for seamen's wages made on land is an instance of this. So also is a contract made on the sea to be performed on land. The proceedings are similar to those of the civil law. The first process is usually by arrest of the defendant's person. The court may fine and imprison for a contempt in the face of the court. 4. COURTS OF COMMON LAW. INJURIES COGNIZABLE THEREBY.
Jurisdiction. All other injuries are cognizable by these courts. Every wrong has its remedy, and every injury its redress. These injuries and these remedies will be treated of in subsequent chapters. Two species of injuries will be treated of here. One, when justice is delayed by an inferior court, that has proper cognizance, or when such inferior court takes upon itself to examine a cause and decide the merits without legal authority. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo or of mandamus.
Procedendo. This writ issues out of the court of chancery, where judges of any subordinate court delay the parties and give no judgment for either party. The writ, in the king's name, commands them to proceed to judgment, but without specifying any particular judgment; for that judgment, if erroneous, may be set aside on writ of error or appeal, and upon further neglect, the judges of the inferior court may be punished by contempt by writ of attachment, returnable in the king's bench cr common pleas.
1 Excommunication is now prohibited. In lieu thereof, the defendant is pronounced contumacious.
Mandamus. A command, issuing in the king's name, from the court of king's bench, and directed to any person, corporation or inferior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court 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, where the injured party has also another more tedious mode of redress, as in the case of an admission or restitution to an office. It issues in every case, where the party has a right to have a thing done, and has no other specific means of compelling its performance. It will lie to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal, to academic degrees, to the use of a church, etc. It lies for the production, inspection or delivery of public books and papers, for the surrender of the regalia of a corporation, to oblige corporations to affix their seal, to compel the holding of a court, and for an infinite number of other purposes.
To Inferior Courts. It issues to the judges of any inferior court, commanding them to do justice, whenever the same is delayed. It is the peculiar business of the court of king's bench to superintend all inferior tribunals, and to enforce the exercise of their judicial and ministerial powers, and this not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice.
Process. The writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below, whereupon to satisfy the court that there is ground for such interposition, a rule is usually made, directing the party complained of, to show cause why a writ of mandamus should not issue. If he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some cause to the contrary, to which a return or answer must be made at a certain day.
The Return. If the return shows no sufficient 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 for his contempt, by attachment. But 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 on affidavits, but will for the present believe him, and proceed no further on the mandamus. The party injured has an action against him for false retnrn, and may recover adequate damages, together with a peremptory mandamus to do his duty.
Encroachment of Jurisdiction. The second 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 provided a remedy by the writ of prohibition.
Writ of Prohibition. This writ issues out of the court of king's bench, but for the furtherance of justice, it may in some cases be had from the courts of chancery, common pleas or exchequer, directed to the judge and parties to a suit in an inferior court, commanding them to cease from the prosecution thereof, upon 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.
Penalty for Disobedience. And if either the judge or the party shall proceed after such prohibition, an attachment for contempt may be issued at the discretion of the court, and an action will lie against them to recompense the party injured in damages. So long as the clergy held, that the ecclesiastical courts were wholly independent of the civil, great struggles occurred between the temporal and spiritual courts concerning the writ of prohibition, and the proper object of it.
Process. 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 process disallowed by law, upon which at the court's discretion, the writ of prohibition directly issues, commanding the judge not to hold, and the party not to prosecute his plea. Sometimes the point may be too doubtful to be decided merely upon a motion, and then the party applying is directed by the court to declare in prohibition, that is, to prosecute an action, by filing a declaration against the other upon a fiction, which is not traversable, that he has proceeded in the suit below, notwithstanding the writ of prohibition.
The Judgment, And if upon demurrer and argument, the
court shall finally be of opinion, that the matter suggested is a sufficient ground of prohibition in point of law, then judgment with nominal damages shall be given to the complainant; and the defendant and also the inferior court shall be prohibited from proceeding further. On the other hand, if the superior court think differently, then judgment shall be given against the party complaining, and a writ of consultation shall be awarded, so called, because upon deliberation, the judges find the prohibition to be ill-founded, and therefore by this writ, return the cause to its original jurisdiction, to be there determined in the inferior court.
Not Conclusive. Even in ordinary cases, the writ of prohibition is not absolutely conclusive. Though the ground be a good one in point of law, for granting the prohibition, yet if the fact that gave rise to it, afterwards be falsified, the cause shall be remanded to the former jurisdiction.
CHAPTER VIII.-OF WRONGS AND THEIR REMEDIES.
The Subject Treated. We will at this time confine ourselves to such wrongs, as may be committed in the intercourse between subject and subject, which the king, as the fountain of justice, is bound to redress in the ordinary forms of law.
Natural Remedy. As all wrong is merely a privation of right, the natural remedy is to put the party in possession of that right, of which he has been deprived. This may be effected, by the delivery of the subject matter in dispute to the legal owner, as when lands or chattels are unjustly withheld or invaded, or where there is not an adequate remedy, by exacting a pecuniary satisfaction in damages, as in case of assault, breach of contract, etc.
Right to Damages. At the time of the injury, the party has acquired an inchoate right to damages, though such right be not fully ascertained, till they are assessed by law.
Actions and Suits. The instruments, whereby the remedy is obtained, are a diversity of suits or actions, the lawful demand of one's right.
Suits, Their History. The Romans, after the example of the Greeks, early introduced set forms for actions and suits, and made it a rule that each injury should be redressed by its proper remedy only. The forms of these actions were secreted in the books of the pontifical college, till the secretary of Appius Claudius stole and published a copy. Bracton, speaking of original writs, on which all our actions are founded,declares them to be fixed and immutable, unless by act of parliament. SUITS ARE PERSONAL, REAL AND MIXED.
Personal Actions. These 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 founded upon contracts, the latter upon torts or wrongs. Of the former nature are all actions upon debts or promises; of the latter all actions for trespasses, nuisances, assaults, slander, and the like.
Real Actions. These concern real property only, in which the plaintiff claims title. These actions are now pretty generally laid aside in practice, on account of the nicety required, and the great length of process.
Mixed. These actions partake 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.
Two kinds of Private Wrongs. There are two kinds: the one without violence, as slander or breach of contract; the other coupled with force, as batteries or false imprisonment. The latter species savor of a criminal kind, being attended with breach of the peace, for which a fine should be paid the king, as well as a private satisfaction to the party injured. Another division is, into those injuries, which affect the rights of persons, and those which affect the right of property.
Rights of Persons. These are absolute, which belong to private men considered merely as individuals; and relative, which are incident to them as members of society, and connected with each other by various ties and relations. As the absolute rights are those of personal liberty and of private property, so the injuries must be of a corresponding nature.
1 All real and mixed actions are now abolished, except actions for dower, quare impedit and ejectment.