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[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 (2).

A short summary of the method of proceeding in prohibition, is as follows. The party aggrieved in the court below applies to the superior court, setting forth 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.] And this used formerly to be done by filing, as of record, a suggestion, containing a formal state of the facts; but now by 1 Will. IV. c. 21, it is provided, that it shall not be necessary to file any suggestion, but that an application for a writ of prohibition may be made by affidavits only, that is, in the way of an ordinary motion, by a rule to show cause; upon which, if the matter alleged appear to the court, upon the showing cause, 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 prohihition(k);]


(i) Blackstone remarks (vol. iii. p. 113), that “so long as the idea " continued among the clergy, that “ the ecclesiastical state was wholly

independent of the civil, great “struggles were constantly main“ tained between the temporal courts “ and the spiritual, concerning the “ writ of prohibition and the proper “ objects of it. Even from the time “ of the constitutions of Clarendon ; “made in opposition to the claims “ of Archbishop à Becket, in 10 “ Hen. 2, to the exhibition of cer“ tain articles of complaint to the “ king, by Archbishop Bancroft, in " the third year of James the first,

on behalf of the ecclesiastical

From which articles, and “ from the answers to them signed “ by all the judges of Westminster “ Hall, much may be collected con“ cerning the reasons of granting, and “ methods of proceeding upon, prohi"bitions." He cites 2 Inst. 601--618.

(k) See a recent instance, White v. Steel, 5 L. T. (N. S.) 449, C. B. A declaration in prohibition will always be directed, on the application of the person against whom the prohibition is sought. (Remington v. Dolby, 9 Q. B. 176.) With respect, however, to applications for a writ of prohibition to a County

that is, to deliver a declaration against the other, setting forth, in a concise manner, so much of the proceeding in the court below, as may be necessary to show the ground of the application, and praying that a writ of prohibition may issue(l). And this used formerly to be connected with an allegation that the party sued on behalf of the Crown as well as of himself; and with a supposition or fictionwhich was not traversable (m)—that the defendant had proceeded in the suit below, notwithstanding a writ of prohibition. But by the statute just mentioned, the use of these forms is now expressly abolished. And it is provided, that to this declaration, the party defendant may demur, or plead such matters, by way of traverse or otherwise, as may

be proper to show that the writ ought not to issue, and shall conclude by praying that such writ may not issue —that judgment shall be given that the writ of prohibition do or do not issue, as justice may require—and that the party in whose favour judgment shall be given (whether on nonsuit, verdict, demurrer, or otherwise) shall be entitled to the costs attending the application and subsequent proceedings, and have judgment to recover the same. And, further, that in case a verdict shall be given for the party plaintiff in such declaration, it shall be lawful for the jury to assess damages, for which judgment shall also be given; but that such assessment shall not be necessary to entitle the plaintiff to costs. The effect of the legislative provisions here cited, has consequently been to place prohibitions, after a rule to declare has been obtained, upon a footing substantially of an action; and in this respect it exhibits, we see, a close resemblance to a mandamus (n). After a writ of prohibition has been issued, if either the judge of the court below, or a party, shall proceed in disobedience to it, [an Court, it is provided by 19 & 20 (1) 1 Will. 4, c. 21, s. 1. Vict. c. 108, s. 42, that the matter (m) Barn. Not. 4to. 148. shall be finally disposed of by rule (n) For the former course of proor order, and no declaration, or ceeding in prohibition, see Com. further proceedings in prohibition, Dig. Prohibition (H); Bac. Ab. allowed.



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[attachment may be had against them to punish them for the contempt, at the discretion of the court that awarded it, and an action will lie against them to repair the party injured in damages (o).]

IV. Another remedy analogous to these, is the writ of Quo warranto. [This writ is in the nature of a writ of right for the Crown(p), against him who claims or usurps any office (9), franchise, or liberty (r),—to inquire by what authority he supports his claim, in order to determine the right (s). It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. This was originally returnable before the king's justices at Westminster(t); but afterwards only before the justices in eyre, by virtue of the statutes of quo warranto, 6 Edw. I. c. 1, and 18 Edw. I. st. 2 (u). But since those justices have given place to the king's temporary commissioners of assize (x), - the judges on the several circuits,- this

x, branch of the statutes lost its effect (y). And writs of quo warranto, (if brought at all,) must now be prosecuted and determined before the king's justices at Westminster. And in case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the Crown,--for that the party is entitled to no such franchise, or hath disused or abused it,—the franchise is either seized into the sovereign's hands, to be granted out again to whomsoever he shall please, or, if it

(0) F.N.B. 40; 2 Inst. 601-618. (p) R. v. Shepherd, 4 T. R. 381.

(9) See Darley v. The Queen, 12 Cl. & Finn. 520 ; R. v. Mousley, 16 L. J. (Q. B.) 89; Re Barlow, 30 L. J. 271 (Q. B.) As to offices, vide sup. vol. 11. p. 640.

(r) R. v. Archdall, 8 Ad. & El.

281 ; and as to franchises and liberties, vide sup. vol. 1. p. 670.

(s) Finch, L. 322; 2 Inst. 282.

(t) Old Nat. Brev, fol. 107, edit. 1534.

(u) 2 Inst. 498 ; Rast. Entr. 540.
(x) Vide sup. pp. 430 et seq.
(y) 2 Inst. 498.


[be not such a franchise as may subsist in the hands of the Crown, there is merely judgment of ouster, to turn out the party who usurped it (2).

The judgment on a writ of quo warranto, (being in the nature of a writ of right,) is final and conclusive even against the Crown: which, together with the length of its process, probably occasioned that disuse into which it is now fallen ; and introduced a more modern method of prosecution, by information filed in the Court of Queen's Bench by the attorney-general, in the nature of a writ of quo warranto ;- wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown(a). But it hath long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor (b); the fine

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(2) R. v. Stanton, Cro. Jac. 259; R. v. Mayor of London, 1 Show, 280.

(a) Blackstone remarks, (vol. iii. pp. 263, 264,) that “ during the “ violent proceedings that took “place in the latter end of the

reign of King Charles the second, " it was, among other things, thought “expedient to new-model most of " the corporation towns in the king, “ dom. For which purpose many of “ those bodies were pursuaded to “ surrender their charters; and in“ formations in the nature of quo warranto

were brought against “ others, upon a supposed, or fre“ quently a real forfeiture of their “ franchises by neglect or abuse of “ them. And the consequence was, “ that the liberties of most of them were seized into the hands of the

king, who granted them fresh “ charters, with such alterations as

were thought expedient; and,

during their state of anarchy, the “ Crown named all their magis• trates. This exertion of power, " though perhaps in summo jure it

was for the most part strictly legal, gave a great and just alarm ; the

w-modelling of all corporations “ being a very large stride towards “ establishing arbitrary power. And “ therefore it was thought necessary,

at the Revolution, to bridle this " branch of the prerogative, at least

so far as regarded the metropolis, by statute 2 W. & M. c. 8; which enacts, that the franchises of the

city of London shall never here. " after be seized or forejudged for

any forfeiture or misdemeanor “ whatsoever.”

(6) It is discretionary, however, in the court to grant or withhold a quo warranto information in such cases. (R. v. Parry, 6 Ad. & El. 810.)

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[being nominal only (c).] It is therefore considered in modern practice as merely a civil proceeding (d).

This proceeding is now applied as [between party and party, without any intervention of the prerogative, by virtue of the statute 9 Anne, c. 20; which permits an information in the nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same,—who is then styled the relator (e), - against any person usurping, intruding into, or unlawfully holding any franchise, or office, in any city, borough, or town corporate (f ).] The same Act provides for the speedy determination of such information (g);

(c) See the difference in the ap- (see 11 Ad. & El. 2) no rule shall plication of mandamus and quo war- hereafter be granted for filing any runto respectively illustrated in the information in the nature of a quo cases of R. v. Oxford, 6 Ad. & El. warranto, unless, at the time of 349; R. v. Winchester, 7 Ad. & El. moving, an affidavit be produced, 215; R. v. Phippen, ibid. 970. After by which some person or persons an office is determined, an informa- shall depose, that such motion is tion in quo warranto to try the title made at his or their instance, as thereto will not be granted.


relator or relators. And such perHarris, 6 Ad. & El. 475.) An in- son or persons shall be deemed to formation in quo warranto does not be the relator or relators, in case lie for exercising the office of guar- such rule shall be made absolute, dian to a poor law union. (Re Aston and shall be named as such relator Union, ibid. 784.) But it lies in re. or relators in such information, in spect to the office of clerk to a board case the same shall be filed, unless of guardians appointed by statute. the court shall otherwise order. (See (Queen v. St. Martin's in the Fields, R. v. Hedges, 11 Ad. & El. 163; 17 Q. B. 149.) It does not lie in R. v. Anderson, 2 Q. B. 740.) As to respect of the office of clerk to the who may be relator, see R. v. Parry, justices of a borough. (The Queen

6 Ad. & El. 810; R. v. Greene, v. Fox, 8 Ell. & Bl. 939.)

2 Q. B. 460. And see 6 & 7 Vict. (d) 4 Bl. Com. 312. In virtue c. 89, s. 5, as to the notice to be of its being considered as a civil given to the opposite party of the proceeding, the court will grant a application. &c. new trial, though the verdict should (f) But an information in quo have been for defendant. (R. v. warranto cannot be brought against Francis, 2 T. R. 484.) The Com- a body corporate at large, for acting mon Law Procedure Act, 1852, does as a corporation, unless at the innot, however, apply to an informa- stance of the attorney-general. R. tion in quo warranto. (Reg. v. Seale, v. White, 5 Ad. & El. 613. 5 Ell. & Bl. 1.)

(8) By 6 & 7 Vict. c. 89, s. 5, the (e) By Reg. Gen. M. T. 3 Vict. court may order the venue in infor.

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