reafon within the cognizance of the common law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury it's proper redrefs. The definition and explication of these numerous injuries, and their refpective legal remedies, will employ our attention for many fubfequent chapters. But, before we conclude the prefent, I shall just mention two species of injuries, which will properly fall now within our immediate confideration: and which are, either when justice is delayed by an inferior court that has proper cognizance of the caufe; or, when fuch inferior court takes upon itself to examine a caufe and decide the merits without a legal authority.

L. THE first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo or of mandamus. A writ of procedendo ad judicium, iffues out of the court of chancery, where judges of any fubordinate court do delay the parties; for that they will not give judgment, either on the one fide or on the other, when they ought fo to do. In this cafe a writ of procedendo fhall be awarded, commanding them in the king's name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may be fet afide in the courfe of appeal, or by writ of error or [110] falfe 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'.

/A WRIT of mandamus is, in general, a conmand iffuing in the king's name from the court of king's bench, and directed to any perfon, corporation, or inferior court of judicature within the king's dominions, requiring them to do fome particular thing therein specified, which appertains to their office and duty, and which the court of king's bench

has previously determined, or at leaft fuppofes to be coufopant to right and juftice. It is a high prerogative writ, of a moft extenfive remedial nature: and may be issued in some cafes where the injured party has also another more tedious method of redrefs, as in the cafe of admission or restitution to an office but it iffues in all cafes where the party hath a right to have any thing done, and hath no other specific means of compelling it's 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 fpiritual 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 furrender of the regalia of a corporation; to oblige bodies corporate to affix their common feal; to compel the holding of a court; and for an infinite number of other purposes, which it is impoffible to recite minutely. But at prefent we are more particularly to remark, that it iffues to the judges of any inferior court, commanding them to do juftice according to the powers of their office, whenever the fame is delayed. For it is the peculiar bufinefs of the court of king's bench to fuperintend all inferior tribunals, and therein to inforce the due exercise of those judicial or minifterial powers, with which the crown or legiflature have invested them: and this, not only by restraining their exceffes, but alfo by quickening their negligence, and obviating their denial of juftice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment; to the spiritual courts to grant an adminiftration, to fwear a church-warden, and the like. This writ is grounded on a fuggeftion, by the oath of the party injured, of his own right, and the denial of justice below whereupon, in order more fully to fatisfy the court that there is a probable ground for fuch interpofition, a rule is made (except in fome general cafes, where the probable ground is manifeft) directing the party complained of to fhew caufe why a writ of mandamas fhould not iffue: and, if he

fhews no fufficient caufe, the writ itfelf is iflued, at first in the alternative, either to do thus, or fignify fome reason to the contrary; to which a return, or anfwer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or fignifies an infufficient. reason, then there iffues in the fecond place a peremptory mandamus, to do the thing abfolutely; 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 perfon makes no return, or fails in his refpect and obedience, he is punishable for his contempt by attachment. But, if he, at the first, returns a fufficient caufe, although it should be falfe in fact, the court of king's bench will not try the truth of the fact upon affidavits; but will for the prefent believe him, and proceed no farther on the mandamus. But then the party injured may have an action against him for his falfe return, and (if found to be falfe by the jury) fhall recover damages equivalent to the injury fuftained; together with a peremptory mandamus to the defendant to do his duty(5). Thos much for the injury of neglect or refufal of justice,

2. THE other injury, which is that of encroachment of jurifdiction, 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 iffuing properly only out of [112] the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now alfo be had in fome cafes out of the court of chancery", common pleas1, or exchequer; directed to the judge and parties, of a fuit in k Palmer. 523.

h1 P. Wms. 476.

i Hob. 15.

(5) See further upon the writ of mandamus, p. 264, post.

any

any inferior court, commanding them to ceafe from the profecution thereof, upon a fuggeftion that either the cause originally, or fome collateral matter arifing therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may iffue either to inferior courts of common law; as, to the courts of the countics palatine or principality of Wales, if they hold plea of land or other matters not lying within their refpe&ive franchises'; to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty fhillings: or it may be directed to the courts chriftian, the univerfity 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 tranfgrefs the bounds prefcribed to them by the laws of England; as where they require two witneffes to prove the payment of a legacy, a release of tithes", or the like; in such cases also a prohibition will be awarded. For, as the fact of figning a release, or of actual payment, is not properly a fpiritual queftion, but only allowed to be decided in those courts, because incident or acceffory to fome original queftion clearly within their jurifdiction; it ought, therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law; elfe the fame queftion might be determined different ways, according to the court in which the fuit is depending: an impropriety, which no wife government can or ought to endure, [113] and which is therefore a ground of prohibition. And if either the judge or the party fhall 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°; and an action will lie against them, to repair the party injured in damages.

Lord Raym. 1408. m Finch. L. 45.

n Co. Elz. 666, Hob. i88.

F. N. B. 40.

So

So long as the idea continued among the clergy, that the ecclefiaftical state was wholly independent of the civil, great ftruggles were conftantly maintained between the temporal courts and the fpiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the conftitutions of Clarendon, made in oppofition 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 Jac. I. on behalf of the ecclefiaftical courts: from which, and from the answers to them figned by all the judges of Westminster-hall P, much may be collected concerning the reafons of granting and methods of proceeding upon prohibitions. A short fummary of the latter is as follows. The party aggrieved in the court below applies to the fuperior court, fetting forth in a fuggeftion upon record the nature and caufe of his complaint, in being drawn ad aliud examen, by a jurifdiction or manner of procefs difallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be fufficient, the writ of prohibition immediately iffues; commanding the judge not to hold, and the party not to profecute, the plea (6). But fometimes the point may be too nice and doubtful to be decided merely upon a motion: and

P 2 Inft. 601-618.

(6) The general grounds for a prohibition to the ecclefiaftical courts are, either a defect of jurifdiction or a defect in the mode of trial. If any fact be pleaded in the court below, and the parties are at iffue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition lies. Or where the fpiritual court has no original jurifdiction, a prohibition may be granted even after fentence. But where it has jurifdiction, and gives a wrong judg ment, it is the subject matter of appeal and not of prohibition. Lord Kenyon, 3 T. R. 4..

But when a prohibition is granted after fentence, the want of jurifdiction must appear upon the face of the proceedings of the Spiritual court. Ibid. Corp. 422. See alfo 4 T. R. 382.

then,