Page images
PDF
EPUB

[This writ is granted on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below (9); whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition] a rule is made,-except under particular circumstances, where a rule will be granted absolute in the first instance (r),—[directing the party complained of to show cause why a writ of mandamus should not issue. And if he shows no sufficient cause,] and does not submit without contest to the application, [the writ itself is issued at first in the alternative, either to do this, or signify some reason to the contrary; to which a return or answer must be made at a certain day.]

[If the person to whom the writ is directed makes no return, he is punishable for his contempt by attachment.] If, on the other hand, he makes a return, and it be found either insufficient in law, or false in fact, there then 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 (s).] The sufficiency of the return, in point of law, was formerly deterinined, unless a special argument were ordered, in a summary way upon motion ; but as to the truth of its allegations in point of fact, it was a rule that this could not be investigated by any further proceeding on the mandamus ;-the complaining party having no remedy in case the facts were untruly alleged, but to bring an action on the case for a false return. In which action, if he obtained a verdict, he recovered [damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant.] But by 9 Ann. c. 20, in a mandamus for determining the right to a corporate office, and now by 1 Will. IV. c. 21, in all cases of mandamus, [the return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return. And after the prosecutor has obtained

(9) Unless there has been a distinct refusal to do that which it is the object of the mandamus to en. force, the writ will not be granted. (R. v. Brecknock, &c. Company, 3 A. & E. 217.)

(r) See R. v. Archdeacon of Lichfield, 5 Nev. & M. 42; Ex parte Penruddock, 1 Har. & W. 347 ; R. v. Fox, 2 Q. B. 246 ; R. v. Churchwardens of Manchester, 7 Dowl.

707. And see 6 & 7 Vict. c. 89, s. 5; 17 & 18 Vict. c. 125, s. 76, as to the notice to be given, in cases affecting corporate offices, to the opposite party of the application, and as to making the rule absolute in the first instance, if the court think fit; and as to the time at which the writ may be made returnable.

(s) R. v. Ledgard, 1 Q. B. 616.

. judgment, he shall have a peremptory writ of mandamus to compel his admission or restitution (t).] So that now the writ of mandamus is, (from the period at least of its return,) assimilated to an action; and the more closely,

! because by the same Acts it is also provided, that the prosecutor, if successful, shall recover damages, and that the successful party shall in all cases, upon judgment after issue joined, or by default, be entitled to his costs (u). In addition to which, it has been enacted by 6 & 7 Vict. c. 67, that the prosecutor objecting to the validity of the return, shall do so by way of demurrer to the same, in like manner as in an action; and thereupon the writ, return and demurrer shall be entered on record, and the court shall adjudge either that the return is valid in law, or that it is not valid in law, or that the writ of mandamus itself is not valid in law. And if the court adjudge that the writ is valid, but the return invalid, it shall proceed to award a peremptory mandamus ; and

(t) See 11 Rep. 79.

(u) As to the course of proceed. ing on mandamus, see R. v. Oundle, 1 A. & E. 283 ; R. v. Governors of Darlington School, 6 Q. B. 682 ; Ex parte Thompson, ibid. 721 ; Clarke o. Leicestershire and Northamptonshire Canal Company, ibid. 898; The Queen v. Ambergate Railway Company, 17 Q. B. 957.

By 1 Will. 4, c. 21, s. 8, the costs of the application for a mandamus, whether granted or refused, and the costs of the writ, where issued and obeyed, are in the discretion of the court. (See R. v. Oundle, ubi sup. ; R. v. Eastern Counties Railway Company, 2 Q. B. 578 ; R. v. St. Pancras, 2 Dowl. N. S 955 ; The Queen v. Ingham, 17 Q. B. 884.)

shall also, in any event, award costs to be paid to the successful party. The 1 Will. IV. c. 25, also provides, that either party shall be at liberty in every case where judgment is given against him upon a mandamus, (whether after demurrer or otherwise,) to take proceedings in error thereon, according to the ordinary course of error in actions (v).

Besides these provisions with respect to mandamus, we may notice the enactment of 1 & 2 Will. IV. c. 58, s. 8, intended to afford relief to officers and other persons to whom such writ is directed to issue, commanding them to admit to offices, or to do or perform other matters in respect of which they claim no right or interest. It is provided in favour of such persons, that it shall be lawful for the court to which application is made for the writ of mandamus, to relieve them from the liabilities incident to the execution thereof, by calling upon any other person, having or claiming any interest in the matter of such writ, to appear and show cause against the issuing of the same; and thereupon to make such rules and orders between all parties as the circumstances of the case may require.

2. As to the mandamus which we have described, as incidental to an action, it is provided by 17 & 18 Vict. c. 125, ss. 68—76 (x), that the plaintiff in any action, (except replevin and ejectment,) in any of the superior courts, may indorse

upon
the writ of summons and the

to be served, a notice that the plaintiff intends to claim a writ of mandamus commanding the defendant to perform some duty in which the plaintiff is interested (y). And the plaintiff may accordingly make such claim afterwards in his declaration-either together with any other demand capable of being enforced in such action, or separately,--setting forth therein the grounds of such claim; and that though performance of the duty has been demanded, it has been neglected or refused. If judgment is given in such action, that a mandamus do issue, a peremptory writ of mandamus, (besides the ordinary execution proper to the action,) is to issue accordingly, commanding the defendant forthwith to perform the duty; and in case of disobedience, it may be enforced by attachment. Or the court may, on application of the plaintiff, direct that the act shall be done by the plaintiff, (or by some person appointed for the purpose by the court,) at the expense of the defendant.

copy

(v) It is also provided by 17 & 18 Vict. c. 125, s. 77, that the provisions both of that Act, and of the 15 & 16 Vict. c. 76, so far as they are applicable, shall apply to the proceedings and pleadings upon a prerogative writ of mandamus issued by the Court of Queen's Bench.

(2) As to the costs of such writ of

mandamus, see 23 & 24 Vict. c. 126, s. 32.

(y) As to the cases in which this species of mandamus will lie, see Benson v. Paull, 6 Ell. & Bl. 373 ; Norris v. Irish Land Company, 8 Ell. & Bl. 512; Ward v. Lowndes, 28 L. J. (Q. B.) 265.

[ocr errors]

III. The writ of Prohibition (2). [A prohibition is a writ issuing properly only out of the Court of Queen's Bench (a); but for the furtherance of justice, it may now also be had in some cases out of the Court of Chancery, Common Pleas, or Exchequer (6); directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof,-upon a surmise either that 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, if they hold plea of land or other matters not lying within their respective franchises (c);] or to a borough or other court of record, if it attempts to entertain any matter not within its jurisdiction (d);-or to (2) As to prohibition, see the

Rep. 471. following modern cases :-Ex parte (0) Hutton's case, Hob. 27; 1P. Tucker, in re Inman, 1 M. & Gr. Wms. 476 ; Palmer, 523. See Ex 519; Tucker v. Tucker, 4 Man. & parte Smyth, 1 Tyr. & G. 225 ; and Gr. 1074; Hassach v. Cambridge Ex parte Tucker, in re Inman, 1 University, 1 Q. B. 593 ; Re Dean Man. & G. 529; Tucker v. Tucker, of York, 7 Q.B. 1; Evans v. Gwynn, 4 Man. & G. 1074. 5 Q. B. 844; Francis v. Steward, (c) Vaughan v. Evans, Ld. Raym. ibid. 984; De Haber v. Queen of 1408. Portugal, 21 L. J. (Q. B.) 488.

(d) 3 Bl. Com. p. 112. Black(a) Company of Horners, 2 Roll. stone gives, as one example, the

[ocr errors]

[the courts christian, the university courts, 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 (e), or the last a contract made or to be executed within this kingdom(s). Or if, in handling of matters clearly within their cognizance, courts of justice transgress the bounds prescribed to them by the laws of England (9);] as where a spiritual court requires two witnesses to prove a release or payment of tithes (h), or the like; in such cases also a prohibition will be awarded (i). [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 such 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

county court, meaning thereby the sheriff's court, which, in his time, held pleas of debt and damages under 40s. It will, however, be remembered, that since the introduction of the district county courts, under 9 & 10 Vict. c. 95, this is no longer the case (vide sup. vol. 111. pp. 393 et seq.) As to the writ of prohibition in reference to the district county courts, see 13 & 14 Vict. c. 61, s. 22; 19 & 20 Vict. c. 108, ss. 40–42, 44 ; Toft v. Rayner, 5 C. B. 162; Ellis v. Watt, 8 C. B. 614; Fearon v. Norvall, 5 D. & L. 439; Marsden v. Wardle, 3 El). & Bl. 695; Jackson v. Beaumont, 11 Exch. 300; Knox v. Shepherd, 2 L. T., N. S. 351.

(e) Vanacre v. Spleen, Carth. 33. The spiritual courts have power to construe a statute, the effect of which incidentally comes before them in the course of a proceeding where they have jurisdiction. (Hall v.

Maule, 7 Ad. & El. 721.)

(f) But see 24 Vict. c. 10, ss. 5, 6, 8, 10, 11, &c., which make it necessary to take Blackstone's illustration here, with some qualification.

(g) If sentence has been given in the court below, the court in which application is made for a prohibition will presume that there was no excess of jurisdiction, unless such excess be distinctly proved, or be apparent on the face of the proceedings. (See Hart v. Marsh, 5 Ad. & Ell. 591.)

(h) Mallary v. Marriott, Cro. Eliz. 667; Hob. 188.

(i) A prohibition will not be awarded in reference to mere point of practice, where the court has jurisdiction on the general subject of the cause. Smyth, 1 Tyr. & G. 227; Jolly v. Baines, 12 Ad. & El. 201; Ex parte Story, 12 C. B. 767.

a

See Ex parte

« PreviousContinue »