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ration—either together with any other demand capable of being enforced in such action, or separately,-setting forth therein the grounds of such claim; and that though performance of the duty has been demanded, it has been neglected or refused. If judgment is given in such action, that a mandamus do issue, a peremptory writ of mandamus, (besides the ordinary execution proper to the action,) is to issue accordingly, commanding the defendant forthwith to perform the duty; and in case of disobedience, it may be enforced by attachment. Or the court may, on application of the plaintiff, direct that the act shall be done by the plaintiff, (or by some person appointed for the purpose by the court,) at the expense of the defendant.

III. The writ of Prohibition (z). [A prohibition is a writ issuing properly only out of the Court of Queen's Bench (a); but for the furtherance of justice, it may now also be had in some cases out of the Court of Chancery, Common Pleas, or Exchequer (b); directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof,-upon a surmise either that 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, if they hold plea of land or other matters not lying within their respective franchises (c) ;] or to a borough or other court of record, if it attempts to entertain any matter not within its jurisdiction (d);--or to

(z) As to prohibition, see the following modern cases :-Ex parte Tucker, in re Inman, 1 M. & Gr. 519; Tucker v. Tucker, 4 Man. & Gr. 1074; Hassach v. Cambridge University, 1 Q. B. 593; Re Dean of York, 7 Q. B. 1; Evans v. Gwynn, 5 Q. B. 844; Francis v. Steward, ibid. 984; De Haber v. Queen of Portugal, 21 L. J. (Q. B.) 488.

(a) Company of Horners, 2 Roll.

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[the courts christian, the university courts, 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 (e), or the last a contract made or to be executed within this kingdom (ƒ). Or if, in handling of matters clearly within their cognizance, courts of justice transgress the bounds prescribed to them by the laws of England (g);] as where a spiritual court requires two witnesses to prove a release or payment of tithes (h), or the like; in such cases also a prohibition will be awarded (i). [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 such 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

county court, meaning thereby the sheriff's court, which, in his time, held pleas of debt and damages under 40s. It will, however, be remembered, that since the introduction of the district county courts, under 9 & 10 Vict. c. 95, this is no longer the case (vide sup. vol. III. pp. 393 et seq.) As to the writ of prohibition in reference to the district county courts, see 13 & 14 Vict. c. 61, s. 22; 19 & 20 Vict. c. 108, ss. 40-42, 44; Toft v. Rayner, 5 C. B. 162; Ellis v. Watt, 8 C. B. 614; Fearon v. Norvall, 5 D. & L. 439; Marsden v. Wardle, 3 Ell. & Bl. 695; Jackson v. Beaumont, 11 Exch. 300; Knox v. Shepherd, 2 L. T., N. S. 351.

(e) Vanacre v. Spleen, Carth. 33. The spiritual courts have power to construe a statute, the effect of which incidentally comes before them in the course of a proceeding where they have jurisdiction. (Hall v.

Maule, 7 Ad. & El. 721.)

(f) But see 24 Vict. c. 10, ss. 5, 6, 8, 10, 11, &c., which make it necessary to take Blackstone's illustration here, with some qualification.

(g) If sentence has been given in the court below, the court in which application is made for a prohibition will presume that there was no excess of jurisdiction, unless such excess be distinctly proved, or be apparent on the face of the proceedings. (See Hart v. Marsh, 5 Ad. & Ell. 591.)

(h) Mallary v. Marriott, Cro. Eliz. Hob. 188.

667;

(i) A prohibition will not be awarded in reference to a mere point of practice, where the court has jurisdiction on the general subject of the cause. See Ex parte Smyth, 1 Tyr. & G. 227; Jolly v. Baines, 12 Ad. & El. 201; Ex parte Story, 12 C. B. 767.

[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 (i).

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);]

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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 (1). 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 fiction— which 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 Vict. c. 108, s. 42, that the matter shall be finally disposed of by rule or order, and no declaration, or further proceedings in prohibition, allowed.

(7) 1 Will. 4, c. 21, s. 1.

(m) Barn. Not. 4to. 148.

(n) For the former course of proceeding in prohibition, see Com. Dig. Prohibition (H); Bac. Ab. Prohibition.

[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 judges on the several circuits,― this 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

(o) 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.

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