inferior court of judicature within the king's dominions, 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 extensively remedial nature; and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office: (7) but it issues in all cases where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus 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; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particularly to remark, that 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. For it is the peculiar business of the court of king'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. A [*111] mandamus may therefore be had to the courts of the city of London, to enter up judgment; (g) to the spiritual courts to grant an administration, to swear a church-warden, 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, in order more fully to satisfy the court that there is a (g) Raym. 214. (7) The writ of mandamus is only issued where there is a clear legal right, and the party has no other adequate remedy. Shipley v. The Bank, 10 Johns., 484; People v. Stevens, 5 Hill, 616; People v. Judges of Oneida C. P., 21 Wend., 20; People v. Supervisors, 11 N. Y., 563; People v. Judges of Branch C. C., 1 Doug. Mich., 319; St. Luke's Church v. Slack, 7 Cush., 226; James v. Commissioners, 13 Penn. St., 72. The court will exercise a discretion in awarding or refusing it. Weber v. Zimmerman, 23 Md., 45; Ex parte Stickney, 40 Ala., 160. Its office is to compel the performance of a ministerial act, but not to control the exercise of judicial discretion. Ferris v. Munn, 2 N. J., 161; Lamar v. Marshall, 21 Ala., 772; People v. Auditor General, 3 Mich., 427; Ex parte Davenport, 6 Pet., 661. It cannot command an act to be done which, without the writ, the officer or court would have no power to perform. Johnson v. Lucas, 11 Humph., 306; State v. Judge, &c., 15 Ala., 740. It may compel an inferior court to take action, but cannot require it to come to any particular conclusion. Chase v. Blackstone Canal Co., 10 Pick., 244; People v. Inspectors, &c., 4 Mich., 187; U. S. v. Lawrence, 3 Dall., 42; Hoyt ex parte, 13 Pet., 279; Elkins v. Athearn, 2 Denio, 191; State v. La Fayette County Court, 41 Mo., 222. But where an inferior court takes unauthorized action it may be compelled by this writ to vacate it if the party has no other remedy. Ex parte Bradstreet, 7 Pet., 634; People v. Judges, &c., 1 Cow., 576; Ten Eyck v. Farlee, 1 Harr., 269; People v. Judges, &c., 1 Doug. Mich., 434. Though generally used to enforce the performance of public duties, it may also be resorted to for the enforcement of private rights when withheld by public or corporate_officers. People v. Walker, 9 Mich., 328; Case v. Wresler, 4 Ohio St., 561; Nourse v. Merriam, 8 Cush., 11; Helm v. Swiggett, 12 Ind., 194. But in the case of neglected public duties, a private citizen will not generally be permitted to move for this writ; the attorney general is the proper relator. Sanger v. County Cm'rs, 25 Me., 291; Heffner v. Commonwealth, 28 Penn. St., 108; Hamilton v. State, 3 Ind., 452; People v. Regents of University, 4 Mich. 98. The supreme court of the United States issues this writ in cases falling within the federal jurisdiction, and the supreme court of each state also issues it in proper cases. And in some of the states inferior courts are allowed to issue the writ. A peremptory mandamus is not often issued in the first instance, but the case is heard on an alternative writ, or on an order to show cause, and the peremptory writ is awarded, if at all, as the final result. probable ground for such interposition, a rule is made (except in some general cases, where the probable ground is manifest) 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 itself is issued, at first in the alternative, either to do thus, or signify some reason to the contrary; to which a return, or answer, must be made at a certain day. 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 respect and 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 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 injuries sustained; together with a peremptory mandamus to the defendant to do his duty. Thus much for the injury of neglect or refusal of justice. 2. The other 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 has provided a remedy by the writ of 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 further. [*112] ance of justice, it may now also be had in some cases out of the court of chancery, (h) common pleas, (i) or exchequer, (k) (8) 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; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises; (4) to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings: (m) or it may be directed to the courts christian, the university courts, the court of chivalry, 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, or the latter a contract made or to be executed within this kingdom. Or, if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes, (n) or the like; in such cases also a prohibition will be awarded. 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 those 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 (h) 1 P. Wms. 476. (i) Hob., 15. (1) Lord Raym., 1408. (8) In the United States it may be issued by the supreme court to the United States district courts when proceeding as courts of admiralty and maritime jurisdiction. And in the several states, the supreme court of the state may issue the writ in proper cases. See State v. Commissioners, 1 Mill, 55; S. C., 12 Am. Dec, 596; Appo v. People, 20 N. Y., 531; Arnold v. Shields, 5 Dana, 18; S. C., 30 Am. Dec., 669; People v. Wayne Circuit Court, 11 Mich., 393; State v. Nathan, 4 Rich., 513; Mayo v. James, 12 Grat., 17; State v. Clark County Court, 41 Mo., 44. might be determined 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. And if either [*113] the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it; (o) and an action will lie against them, to repair the party injured in damages. So long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper object of it; even from the time of the constitutions of Clarendon, made in opposition to the claims of Archbishop Becket, in 10 Hen. II, to the exhibition of certain articles of complaint to the king by Archbishop Bancroft, in 3 Jac. I, on behalf of the ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminsterhall, (p) much may be collected concerning the reasons of granting and methods of proceeding upon prohibitions. A short summary of the latter is as follows: 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 manner of process disallowed by the laws of the kingdom: 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; that is, to prosecute an action, by filing a declaration against the other, upon a supposition or fiction (which is not traversable) (9) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of the opinion, that the matter suggested is a good and sufficient ground of *pro[*114] libition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any farther. On the other hand, if the superior court shall 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. And, 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. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration (which must always pursue the suggestion), and so plead to issue upon it; denying the contempt and traversing the custom upon which the prohibition was grounded; and if that issue be found for the defendant, he shall then have a writ of consultation. 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 good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior (0) F. N. B. 40. (p) 2 Inst. 601-618. (q) Barn. Not. 4to, 148. courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction. CHAPTER VIJI. OF WRONGS AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. THE former chapters of this part of our Commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury; and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts. First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king, as the fountain of justice, is officially bound to redress in the ordinary forms of law: reserving such *injuries or encroachments as may occur between the crown and the subject, to be distinctly considered here[*116] after, as the remedy in such cases is generally of a peculiar and eccentrical nature. Now, since all wrong may be considered as merely 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 withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury; (a) though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror (b) to be "the lawful demand of one's right: or, as Bracton and Fleta express it, in the words of Justinian, (c) jus prosequendi in judicio quod alicui debetur. The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule that each injury should be redressed by its proper remedy only. "Actiones," say the pandects, "composita sunt, quibus inter se homines disceptarent: quas actiones ne popu (a) See book II, ch. 29. (b) C. 2, § 1. (c) Inst. 4, 6, pr. lus prout vellet institueret, certas solennesque esse voluerunt." (d) The forms of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people. (e) The *concealment was ridiculous: but the establishment of some standard [*117] was undoubtedly necessary to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it, (f) "sunt jura, sunt formula de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publica a prætore formulæ, ad quas privata lis accommodatur. And in the same manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament. (g) And all the modern legislatures of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; actions personal, real and mixed. (1) Personal 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 said to be founded on contracts, the latter upon torts or wrongs: and they are the same which the civil law calls "actiones in personam, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere." (h) 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 (or, as they are called in the Mirror, (i) feudal actions), which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other *hereditaments, in fee-simple, fee-tail, or for term of life. By [*118] these actions formerly all disputes concerning real estates were decided: but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management; and the inconvenient length of their process: a much more expeditious method of trying titles being since introduced by other actions personal and mixed. 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. As, for instance, an action of waste, which is brought by him who hath the inheritance, in remainder or reversion, against the tenant for life, who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester, (k) which is a personal recompense; and so both being joined together, denominate it a mixed action. Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed, therefore, now to enumerate the several kinds, and to inquire into the respective natures of all private wrongs, or civil injuries which may be offered to the rights of (e) Cic. pro Muræna. § 11, de orat. l. 1, c. 41. (d) Ff. 1, 2. 2, § 6. (f) Pro. Qu. Roscio, §8. (g) Sunt quædam 'brevia formata super certis casibus de cursu, et de communi consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. L. 6, de exceptionibus, c. 17. § 2. (h) Inst. 4, 6, 15. (1) C. 2. § 6. (k) 6 Edw. I. c. 15. (1) All real and mixed actions were abolished by statute 3 and 4 Wm. IV. cc. 27, 86, except actions for dower, quare impedit and ejectment, and a new proceeding in ejectment was substituted for that form of action by the common law procedure act of 1852. |