Imágenes de páginas
[ocr errors]

(*109] niprison both them and their principal (b). They may also

fine und imprison for a contempt in the face of the court (c). And all this is supported by immemorial usage, grounded on the necessity of supporting a jurisdiction so extensive (d); though opposite to the usual doctrines of the common law: these being no courts of record, because in general their process is much conformed to that of the civil law (e).

IV. I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason within the cognizance of the common law courts of justhat every right when withheld must have a remedy, and every injury its proper redress. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration : and which are, either when justice is delayed by an inferior court that has proper cognizance of the cause ; or, when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.

1. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo (21), or of mandamus. A writ of procedendo ad judicium issues out of the court of chancery, where 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. In this case a writ of procedendo shall be awarded, commanding them in the king's

name to proceed to judgment; but without specifying any particu[*110] lar judgment, for that if erroneous) may be set aside in the

course of appeal, or by writ of error or false judgment : and upon farther neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment returnable in the king's bench or common pleas (S).

A writ of mandamusiis, ingeneral, a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or 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 of an office ; but it issues in all cases where the party bath 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 lemporal; to academical degrees ; to the use of a meeting-house, fc.: it

(c) Bro. Abr. t. error, 177.
if) F. N. B. 153, 154, 240.

(0,1 Roil. Abr. 531. Godb. 193. 260.
(e) 1 Ventr. 1.
d) I Keb. 552.

(21) In New York the effect of this writ issues out of the Supreme Court. (2 R S would be obtained by the mandamus, which 586, 9 54, &c.)

(13) See Hov, n. (13) at the end of the Vol. B. III.

hes 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(s); 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 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 shew cause why a writ of mandamus should not issue : and, if he shews 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 (22), (23). 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 injury sustained ; together with a peremptory mandamus to the defendant to do his duty (24). 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 (25) is a writ issuing properly only out of the [*112)

(8) Raym. 214.

(22) In New York the party prosecuting of an action done. Case by the name of Dean che writ may plead or demur to the return, and and Chapter of Dublin v. Dougntt. Ibid. Bu.. an issue in fact or in law may be joined. (2 N. P. 104, S. C. See 3 Sim. R. 8. R. S. 586, 9 55, &c).

(24) See further upon the writ of manda (23) In the case of a peremptory mandamus mus. p. 264. post. ao writ of error lies. Dean of Dublin v. The (25) As lo the writ of prohibition in geneKing, Br. P. C. 73. Edit. 1803. IP. W. 348 ral, see Com. Dig. tit. Prohibition ; Bac. AC -351. But since stat. 9 Ann. c. 20, which tit. Prohibition ; 2 Saund. index, lit. Prohibj. allows special matter to be pleaded to a man- tion; and see an excellent illustration of the damus, it seems that a writ of error lies upon a nature and object of this proceeding, given by judgment thereon, because it is in the nature the court in % Hen. Bla. 533.

rourt of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery (1), common pleas (i), or exchequer (k) (26); 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 (1); 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 lithes (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 might be determined different ways, according to

the court in which the suit is depending: an impropriety, which [*113] no wise government can or ought to endure, *and which is there

fore a ground of prohibition. And if either 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 Westminster-hall (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 (27), (28): The party aggrieved in the court below applies to the superior court, setting forth in a sugges

(h) IP. Wms. 476.

(i) Hob. 15.
(k) Palmer. 523.
(1) Lord Raym. 1408.

(m) Finch. L. 451.
(n) Cro. Eliz. 666. Hob. 188.
(0) F. N. B. 40.
(p) 2 Inst. 601-618.

(26) In New-York it issues only from the (27) See Lee's Prac. Dit. tit. Proh bition Supreme Court; the return may in like man- (28) As to the mode of proceeding in Nen ner be denied or demuned to. (2 R. S. 587, York, see 2 R. S. 587, 9 61 exc.


2on 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 :he judge not to hold, and the party not to prosecute, the plea (29), 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 quescion, the party applying for the prohibition is directed by the court to declare a 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 opinion, that the matter suggested is a good and sufficient ground of prohibition in point of law, then judgment with nomi- [*114) nal 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 nu 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 cuslom 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 con sultation. 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 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 parlia ment, do properly belong to their jurisdiction.

(9) Barn. Not. 4to. 148. (29) The general grounds for a prohibition a prohibition may be granted even after sen to the ecclesiastical courts are, either a defect tence. But where it has jurisdiction, and gives of jurisdiclion or a defect in the mode of trial, a wrong judgment, it is the sulject matter of If any fact be pleaded in the court below, and appeal and not of prohibition. Lord Kenyon, the parties are at issue, that court has no ju. 3 T. R. 4. But when a prohibition is granted risdiction to try it, because it cannot proceed after sentence, the want of jurisdiction must According to the rules of the common law; appear upon the face of the proceedings of the und in such case a prohibition lies. Or where spiritual court. Ibid. Cowp. 422. See also 4 T the spiritual court has no original jurisdiction, R. 382. See also 2 H. Bl. 69. 100. 3 Eas., 472 VOL. II.





The former chapters of this part of our commentaries having been em ployed 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 treat ing of the nature and several species of courts ; together with the cog nizance 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 1 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 (*116] bound to redress in the ordinary forms of law : reserving such 'in

juries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature.

Now, since all wrongs 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

adequate remedyby making the sufferer a pecuniary satisfaction in dainages ; as in case of assault, breach of contract, fc.: 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 (6) to be "the lawful demand of one's right:" nr, as Bracton and Fleta express it, in the words of Justinian (e), jus [*156 quendi in judicio quod alicui debetur.

The Romans introduced, pretty early, set forms for actions and suits an their law, after the example of the Greeks ; and made it a rule, thit each injury should be red-essed by its proper remedy only. “ Actiones, say the

(c) Inet. 4. 6. pr.

(a! See book II. ch. 29. (b) c. 2. 01.

« AnteriorContinuar »