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cations to the court in banc, to which alone the name of motions is properly applied; not deeming it necessary to take any particular notice of such applications as are made to a single judge at chambers, a branch of practice more summary in its nature than the former, and turning for the most part on matters of subordinate importance (a).
A motion, then, is an application made to the judges, viva voce, in open court, and it may be either incidental to an action,-a relation in which we have already had occasion sometimes to refer to it,-or it may be wholly unconnected with that kind of remedy. · In the superior courts, it can be made by none but a counsel or barrister, to the exclusion of attornies; and the practice of every court requires that it should, in general, be supported by affidavit of the matter of fact on which it is founded (6). Its
(a) As to proceedings before a single judge, see Bagley's Chamber Practice ; Lush's Pr., pp. 668—678, 2nd edit. And see 11 Geo. 4 & 1 Will. 4, c. 70, s. 4, and 1 & 2 Vict. c. 45, s. 2. The importance of the practice at chambers, has been now increased by the Common Law Procedure Acts; particularly by the provision of 15 & 16 Vict. c. 76, s. 52, authorizing the sufficiency of pleadings, in certain cases, to be decided upon by a judge at chambers.
(6) Affidavits are made on various occasions in the course of judicial proceedings, and are sworn before the court or some officer appointed to take affidavits in such court. (As to such officers, see 22 Vict. c. 16.) It may be remarked here, that a practice formerly obtained of making voluntary affidavits, i. e. affidavits sworn before magistrates or others, in matters on which no judicial inquiry was pending; but by 5 & 6 Will. 4, c. 62, this practice is now
prohibited, and a form of declaration substituted for such voluntary affidavits. And it is provided that any person making such declaration falsely, shall be guilty of a misdemeanor. This declaration is also substituted for the affidavits that used formerly to be taken to verify documents, &c., in the different departments of the state. It is further to be remarked, that the provisions of 17 & 18 Vict. c. 125, s. 20, and 24 & 25 Vict.c. 66, (vide sup. vol. 111. p. 635,) by which witnesses, either in civil or criminal proceedings, unwilling from alleged conscientious motives to be sworn on oral examination, are permitted to make affirmation in lieu of oath, applies also to persons called upon to make affidavit or deposition. See also 17 & 18 Vict. c. 125, s. 45, as to the affidavits allowed in answer to affidavits in support of motions; sect. 48, as to the examination, before a judge or master, of persons refusing to make affidavit when required to do so by
object, in a general point of view, is to obtain an order, -called, in the superior courts of common law, a rule (c), directing some act to be done in favour of the applicant; which rule, when obtained, is served (d) upon the party by whom the act is to be performed. The rule so moved for, is in its form usually a rule to show cause, (otherwise called a rule nisi,) commanding the party, on a certain day therein named, to show cause to the court, why he should not perform the act, or submit to the terms therein set forth ; but in some cases, where the right to the relief prayed for is very clear, it is a rule absolute in the first instance, commanding the thing to be done, without the appointment of any day to show cause. Upon the day appointed by the rule nisi, the counsel for the party on whom it was served, accordingly appears, and is heard in opposition to it; and, the counsel by whom it was moved having been afterwards heard in reply, the court either discharges the rule, or makes it absolute, as the case may and that
the terms either that the costs of the application be paid by one of the parties to the other, or without costs, as may appear most equitable under the circumstances of the case. But if the party served with the rule, fail to appear in opposition to it, it is made absolute as a matter of course. If made absolute, a new rule to that effect is then served on the party ruled; who is bound to obey it upon peril of a writ of attachment as for a contempt(e),-a writ issued by the court in vindication of its own authority, and under which the party attached is liable to coercion by the arrest of his person.
any party to any civil proceeding in month and year on which the same the superior courts; and 6 Geo. 4, c. is drawn up, without reference to 87; 15 & 16 Vict. c. 76, s. 23; 18 & any other time or date. 19 Vict, c. 42, as to the admission, (d) As to the time and manner in the courts here, of affidavits duly of service of rules, see Reg. Gen. administered abroad.
H. T. 1853, (Pr.) rr. 162-167; E.T. (c) By Reg. Gen. H. T. 1853, 1856. (Pr.) r. 149, every rule of court (e) Vide sup. vol. 111. p. 380. must be dated the day of the week,
We shall now resume the main subject of the chapter, viz. the consideration of such of the remedies afforded at common law, as are distinct, in their nature, from an action. These chiefly consist of what are called prerogative writs: [which do not issue as of mere course, without showing some probable cause why the extraordinary powers of the Crown are called in to the party's assistance (g);] and they are principally as follows:
1. The writ of Procedendo. This [issues out of the Court of Chancery, when judges of any subordinate court do delay the parties, for that they will not give judgment, either on the one side or the other, when they ought so to do (h).] In such case a writ of procedendo ad judicium [shall be awarded, commanding the inferior court, in the name of the Crown, to proceed to judgment, but without specifying any particular judgment; for that, if erroneous, may be set aside by proceedings in error, or by writ of false judgment. And upon further neglect or refusal, the judges of the inferior court may be punished for their contempt by writ of attachment,] returnable in the courts at Westminster. A procedendo may also be awarded out of any of the superior courts, where an action has been removed to it from an inferior court, and it appears to the superior court that it was removed on insufficient grounds (i). And by 21 Jac. I. c. 23, a suit once so
(g) 3 Bl. Com. 132. In R. v. cases, however, the writ of manCowle, Burr. 855, prerogative writs damus from the Court of Queen's are also distinguished from writs Bench is a concurrent remedy, and“ ministerially directed, viz. those is- one more frequently resorted to in sued to the sheriff; the prerogative practice. As to the writ of mandawrits being generally directed to mus, vide post, p. 5. no sheriff or minister of the court; (i) See 21 Jac. 1, c. 23; Jac. Dict. but to the public or private parties, Procedendo; Blanchard v. De la whose acts are the subject of com- Crouée, 9 Q. B. 869; Reg. Gen. plaint.
1853, (Pr.) r. 116. (h) F. N. B. 153, 240. In such
remanded, shall not be again removed, before judgment, into any court whatsoever.
II. The writ of Mandamus. In treating of which we shall refer mainly, and in the first instance, to the common law or prerogative writ of mandamus ; though we shall add a few words as to another species recently introduced by the statute 17 & 18 Vict. c. 125, and which may be described as the mandamus incidental to an action (j).
1. Taking the term of mandamus in its first sense,—the power of issuing this writ, belongs exclusively to the Court of Queen's Bench. [It is a high prerogative writ, of a most extensive remedial nature ;] and is in its form a command issuing in the Queen's name, from the Court of Queen's Bench, and [directed to any person, corporation, or inferior court of judicature, within the Crown's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty; and which the court has previously determined, or at least supposes, to be consonant to right and justice.] In its application, it may be considered as confined to cases where relief is required in respect of the infringement of some public right or duty (k), and where no effectual relief can be obtained in the ordinary course of an action at law (1). Such is the general principle;
(j) Even prior to this Act, there was a mandamus auxiliary to an action, viz. the mandamus to examine witnesses in India and other British dominions in foreign parts. (See 13 Geo. 3, c. 63, s. 44, and 1 Will. 4, c. 22, s. 1.) The mandamus, in such cases, may be awarded by any of the superior courts at Westminster.
(k) R. o. Bank of England, 2 B. & Ald. 622.
(1) See R. v. Bishop of Chester, 1 T. R. 396 ; R. v. Archbishop of
Canterbury, 8 East, 219; Ex parte Robins, 1 W. W. & H. 578; R. v. Nottingham Old Water Works Company, 6 A. & El. 355 ; R. v. Bristol Dock Company, 2 Q. B. 69 ; 'The Queen v. Lancashire and Yorkshire Railway Company, 1 Ell. & Bl. 228. It is no objection to granting a mandamus, that the party against whom the complaint is made, may be proceeded against by indictment. R. v. Severn Railway Company, 2 B. & Ald. 646.
but as to the specific instances in which the writ will be granted, they are much too numerous for complete detail (m). We may remark, however, that (among other cases) this writ lies to compel the admission or restoration of the applicant [to any office or franchise of a public nature, (whether spiritual or temporal,) to academical degrees, to the use of a meeting house, or the like.] And that it will be also granted for the production, inspection, or delivery, of public books and papers; or to compel the surrender of the regalia of a corporation; or to oblige bodies corporate to affix their common seal; or to compel the holding of a court;] or the proceeding to an election in corporate and other public offices (n). In addition to which, we may notice, as another important application of this writ, [that it issues to the judges of any inferior court(o), commanding them to do justice according to the power of their office, whenever the same is delayed. For it is the peculiar business of the Court of Queen's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the Crown or legislature have invested them; and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice(p).
(m) A copious enumeration of officer of any such court, for refusing them will be found in 1 Chit. Gen. to do any act relating to the duties of Pr. of Law, 789. See also Tapping his office ; but that application must on Mandamus ; and the recent cases be made to any of the superior of Ex parte Lee, El. Bl. & Ell. 863, courts of law, for a rule to show cause and the Queen v. Southampton why such act should not be done. (Commissioners, &c.), 1 El. Bl. & See also as to such refusal, by a S. 5.
stipendiary or other magistrate, 11 & (n) See 11 Geo. 1, c. 4; and 7 12 Vict. c. 44, s. 5; R. v. Ingham, Will. 4 & 1 Vict. c. 78, s. 24 ; R. v. 17 Q. B. 884 ; R. v. Paynter, 28 Mayor, &c. of London, 1 T. R. L. T. (Q. B.) 303 ; R. v. Dayman, 146; R. v. Leyland, 3 M. & S. 184; 29 L. T. (Q. B.) 125. R. v. Norwich, 1 B. & Adol. 310. (p) As to the time of application
(0) It is provided, however, by for a writ of mandamus to justices, 19 & 20 Vict. c. 108, s. 43 (amended to enter continuances and hear an by 21 & 22 Vict. c. 74, s. 4), as to appeal, see Reg. v. Richmond, 1 E. the County Courts, that no mandamus B). & El. 253, et Reg. Gen. ibid. p. shall henceforth issue to a judge or 255.