defendant does not appear at the hearing, either in person or by some one duly authorised on his behalf, and no sufficient excuse for the defendant's absence bo shown, the registrar may, by leave of the judge, upon due proof of the service of the summons and of the debt being due and owing, enter up judgment for the plaintiff, and have the same power to make an order for pay- [*454] ment by instalments, or to enter up judgment of nonsuit, or to strike out or adjourn the cause, as the judge of the court has; but the judgment so entered up, and any execution thereon, may be set aside, and a new trial granted, upon such terms, if any, as the judge may think fit to require (h). Should neither counsel nor attornies attend, at the hearing of a suit in the county court, the judge must endeavour to elicit from the parties and their witnesses (whose attendance is procured by summons (i)), such facts as will enable him to determine the question or questions in dispute. When the case is closed on both sides, the judge, if unassisted by a jury, decides both on fact and law; but, if assisted by a jury, he will direct them in point of law, whilst they decide upon the facts. Judgment is then given for the plaintiff or defendant-unless, indeed, the former be nonsuited-and entered on the minutes of the court. The judge also directs the mode of payment (which in certain cases may be by instalments), of any sum to which he may find the plaintiff entitled (k). The costs of the action abide the event, unless otherwise ordered by the judge, and execution may issue for them (7). When the judgment has been entered up, it may be enforced by execution against the goods, leviable by writ of fieri facias; (592) the wearing apparel and bedding of the judgment debtor or his family, and the tools and implements of his trade, to the value of 57., being, however, protected from seizure (m). Execution against the person may be obtained on * summons, where default is made in complying with the order of the judge for payment of the money recovered (n). [* 455] It is competent to either party, dissatisfied with the verdict or decision of the case, to apply for a new trial, which the judge may in his discretion order to take place before a jury, although the action was not originally so tried (0). The mode of removing a cause from the jurisdiction of the county court to that of a superior court, is by writ of certiorari. The right of so removing a Certiorari. cause exists at common law, but conditions have been annexed by statute to the exercise of the right in regard to cases in the county court. (593) By the 9 & 10 Vict. c. 95, a cause may be thus removed (h) 30 & 31 Vict. c. 142, s. 16. (k) 19 & 20 Vict. c. 108, s. 45; and rule 110. When an order has been made for the debt to be paid by instalments, execution will not issue till after default in payment of an instalment; and it may then issue for the whole sum due, ib. s. 95. (m) 9 & 10 Vict. c. 95, ss. 94, 96; 8 & 9 Vict. c. 127, s. 8. (n) See 9 & 10 Vict. c. 95, ss. 98, 99 (as modified by 22 & 23 Vict. c. 57). These provisions are repealed, as from Jan. 1, 1870, by the 32 & 33 Vict. c. 83, and for them is substituted, so far as applicable, s. 5 of the 32 & 33 Vict. c. 62. (0) Rule 173. (592) See, as to execution, and other modes of enforcing judgments, etc., 4 Wait's Pr. 1 et seq. (593) As to the nature and office of the common-law writ of certiorari, see 5 Wait's Pr. 455, et seq. when the debt or damage claimed exceeds 51., by leave of a judge of one of the superior courts, if the cause shall appear to him proper to be so removed, and on such terms as he shall deem fit to impose (p). But even if the claim in the county court do not exceed 57., it may, under the 19 & 20 Vict. c. 108 (q), be removed by certiorari to a superior court, if such court or judge shall deem it desirable that the cause be tried there, and if the party applying for the writ, shall give the security required by the act, and comply with the conditions imposed by such judge in the exercise of his discretion. One of the usual grounds for granting the writ is, that difficult questions of law will arise in the suit. If either party to a suit in the county court, when the claim is for a sum between 207. and 50%., or when jurisdiction is given by agreement (unless the right of appeal is specially excluded also by agreement (r)), is Appeal to superior court. dissatisfied with the determination or direction of the said court in *point of law, or upon the admission or rejection of evidence, such [* 456 ] party may appeal from the same to any of the superior courts of common law at Westminster (s). Before, however, the appeal is allowed to be prosecuted, sufficient security must be given by the appellant (t). An appeal may be brought from the decision of a county court judge, on the same grounds and subject to the same conditions as specified in the 13 & 14 Vict. c. 61, s. 14, in any action of ejectment, or in which the title to a corporeal or incorporeal hereditament comes in question, and with the leave of such judge in any action in which an appeal had not previously been allowed (u). And here may conveniently be mentioned two species of injuries, which may be done to suitors and others by courts of limited jurisdiction: they are1, when justice is delayed by an inferior court having proper cognizance of the cause; and, 2, when such inferior court takes upon itself to examine and decide a cause without legal authority. 1. The first of these injuries, refusal or neglect of justice, is remediable at common law by writ of procedendo, or of mandamus. A writ of procedendo 1. Remedy where issues where the judge of a subordinate court delays the litigat justice is delayed by an inferior court. Writ of procedendo. ing parties, and will not give judgment, either on the one side or on the other, when he ought to do so. In this case a writ of procedendo will be awarded, commanding him in the queen's name to proceed to judgment; but without specifying any particular judgment, for the judgment, if erroneous, may be set aside or rectified: and upon further neglect or refusal, the judge of the inferior court may be punished for his contempt, by attachment (x). The writ of mandamus, so far as it falls under our present consideration, is a command issuing in the queen's name from the court of queen's bench, and directed to an * inferior court of judicature within the Mandamus. [*457] queen's dominions, requiring it to do some particular thing therein specified, which the court of queen's bench has previously determined, or at least supposes to be consonant to right and justice. It is a high (p) Sect. 90; 13 & 14 Vict. c. 61, s. 16. (q) Sect. 38. (r) 17 & 18 Vict. c. 16, s. 1. (8) 13 & 14 Vict. c. 61, s. 14, as altered by 15 & 16 Vict. c. 54, s. 2. See 19 & 20 Vict. c. 108, s. 68. (t) 13 & 14 Vict. c. 61, s. 14; see rule 134. (u) 30 & 31 Vict. c. 142, s. 13. (x) F. N. B. 153, 154, 240. See Reg. v. Scaife, 18 Q. B. 773. prerogative writ, extensively remedial in nature (y), and issues where the party has a right to have something done, and has no other specific means of compelling its performance. (594) A mandamus may, accordingly, issue to the judge of an inferior court, commanding him to do justice according to the powers of his office, whenever the same is delayed, or where he refuses to act (z). For it is the peculiar business of the court of queen's bench to superintend inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature has invested them: and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. 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 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 *called upon makes no return, or fails in respect and [* 458] 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 queen's bench will not try the truth of the fact upon affidavits. By virtue of the statute 1 Will. 4, c. 21, the party applying for the writ may, however, plead to, or traverse, all or any of the material facts contained in the return, and the party making it may reply, take issue, or demur, and by this mode of procedure damages and costs may be recovered, and a peremptory writ of mandamus may be awarded (a). Also, by the 6 & 7 Vict. c. 67, if the party (y) A mandamus has been defined by Lord Mansfield (1 W. Bla. 352) to be a prerogative writ, flowing from the king himself, sitting in the court of king's bench, superintending the police and preserving the peace of the country. (2) Reg. v. Brown, 7 E. & B. 757. (a) No action can be brought for anything done in obedience to a peremptory mandamus. 6 & 7 Vict. c. 67, s. 3. (594) In the United States, the authority to issue the writ of mandamus does not exist as a prerogative power of the courts, but is derived by grant from the government, through the constitution, or legislative enactments. And when the power has been granted in general terms to a court, it is to be governed by the common-law rules as to when it is proper to be issued. Moses on Mand. 17; Matter of Turner, 5 Ohio, 543; Kentucky v. Dennison, 24 How. (U.S.) 66. The writ is generally issued by the highest court of judicature having jurisdiction at law. Com. v. Select and Common Councils of Pittsburgh, 34 Penn. St. 496; Peoria v. Grove, 20 Ill. 525. Two things must concur to entitle a party to the writ: First. That he has a legal right to have something done by the party to whom he seeks to have the writ directed, and which has not been done. Second. That he has no legal specific remedy to which he can resort to compel the performance of this duty. State v. Nicholson Pavement Co., 35 N. J. L. 396. And see Mansfield v. Fuller, 50 Mo. 338; State v. Bridgman, 8 Kan. 458; Fitch v. Diarmid, 26 Ark. 482; La Grange v. State Treasurer, 24 Mich. 468; Seymour v. Ely, 37 Conn. 103. As to the power of the supreme court of the United States to issue writs of mandamus, see Act of Congress, Sept. 24, 1789, § 13; 1 Stat. at Large, 81; Marbury v. Madison, 1 Cranch, 137; Ex parte Bradstreet, 12 Peters, 174. prosecuting the writ wish to object to the validity of the return, he may do so by way of demurrer, upon which the same proceedings will be had as in a personal action; and the party aggrieved by the judgment, may sue out a writ of error in the same manner as a party to a personal action may do, and similar proceedings will be taken thereupon and costs awarded, as in ordinary cases of writs of error (b). An action will also lie at suit of the party injured for a false return to a mandamus, and damages may be recovered therein equivalent to the injury sustained, and likewise a peremptory mandamus may be obtained to the defendant to do his duty. Such, as above stated, is the ordinary remedy for the injury of neglect or refusal to do justice by an inferior court. It has, however, been enacted (c), that no writ of mandamus shall issue to a judge or an officer of the [* 459] county court for refusing to do any act relating to the duties of his office; but any person requiring such act to be done may apply to a superior court or a judge thereof, upon an affidavit of the facts, for a rule or summons calling upon such judge or officer of the county court, and also upon the party to be affected by such act, to show cause why the act specified should not be done; and if after the service of such rule or summons good cause be not shown, the superior court or judge thereof may by rule or order direct the act to be done, and the judge or officer of the county court, upon being served with such rule or order, must obey the same on pain of attachment. 2. Remedy where there is an en croachment of 2. The other inquiry, viz., that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court which jurisdiction. has no legal cognisance of the cause, is a grievance, for which the common law has provided a remedy by the writ of prohibition. Prohibition. A prohibition is a writ issuing out of a superior court of law for the furtherance of justice, directed to the judge or party to a suit in an inferior court (d), or to both of them concurrently (e), commanding them to cease from the prosecution thereof, upon a sug[* 460] gestion, that either the cause originally, or some collateral matter arising therein, does not belong to the jurisdiction of the court which entertains it, but to the cognisance of some other court. All lawful jurisdiction, it has been said (ƒ), is derived from, and must be traced to the royal authority; (b) By C. L. Proc. Act, 1854, s. 77, the provisions of the C. L. Proc. Acts, "so far as they are applicable, shall apply to the pleadings and proceedings upon a prerogative writ of mandamus." (c) 19 & 20 Vict. c. 108, s. 43. The 11 & 12 Vict. c. 44, s. 5, has provided a procedure by rule, which may be employed instead of that by mandamus, for the purpose of determining any question as to the legality or illegality of any official act, which a justice of the peace may have refused to perform. (d) From the opinion of the judges, delivered in Mayor, &c., of London v. Cox, L. R. 2 H. L. 280, may be collected certain tests by which to determine whether a court of justice is an inferior or superior court:-(1.) In an inferior court the declaration must show that the cause of action arose within its jurisdiction. (2.) Whereas the judgment of a superior court unreversed is conclusive as to all relevant matters thereby decided, the judgment of an inferior court involving a question of jurisdiction is not final. 3. The plaintiff is liable to an action for executing the process of an inferior court beyond its jurisdiction, and cannot justify under such process, whether he knows of the defect or not, the judge and officer of the court being civilly liable if they knew of the defect of jurisdiction. (e) Mayor, &c., of London v. Cox, L. R. 2 H. L. 280. The court will not, in the exercise of this jurisdiction by prohibition, interfere on the application of a person who is a stranger, not in any way interested in the subject-matter of the suits sought to be prohibited, nor aggrieved by the alleged excess of jurisdic tion. Reg. v. Twiss, L. R. 4 Q. B. 407, 413, with which compare L. R. 2 H. L. 279. (f) Magor, &c. of London v. Cox, L. R. 2 H. L. 254, citing 2 Inst. 602. and any exercise, however fitting it may appear, of jurisdiction not so authorised, is an usurpation of the prerogative, and a resort to force unwarranted by law. Upon both of these grounds, therefore, viz., the infringement of the prerogative, and the unauthorised proceeding against the individual, prohibitions will be granted to restrain the court from intermeddling with or executing anything which by law it ought not to hold plea of; ex. gr., if in the lord mayor's court of London, which is an inferior court, the custom of foreign attachment should be extended to a case where neither the debt sued for nor the debt alleged to be due from the garnishee to the original debtor arose within the city, no one of the parties being a citizen or a resident within the city (g). Prohibition will also go to the county court, should it assume to try a matter not within the limits of its statutory jurisdiction (h). (595) A short summary of the regular procedure in prohibition is as follows:-The party aggrieved in the court below applies to the superior court, setting forth in his affidavits 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 [*461] 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, the declaration concisely setting forth so much only of the proceeding in the inferior court as is necessary to show the ground of the application. To this declaration the defendant pleads or demurs, and the judgment is that a writ of prohibition shall or shall not issue. The action of prohibition is thus in effect nothing more than an issue directed in a disputed case only to inform the conscience of the court whether the court below has power to proceed; both parties are actors, and no damages can be recovered therein, unless the plaintiff in the inferior court proceeds after a previous prohibition (i). The practice connected with prohibition to a county court has, we may add, been modified by statute (k), so that the matter brought before the superior court, or a judge thereof, as the ground for granting the writ, is finally disposed of by rule or order, and no declaration or further proceedings in prohibition are allowed. The equitable jurisdiction of the county court at present extends to(1.) Suits by creditors, legatees, whether specific, pecuniary, or residuary; (g) See Mayor, &c. of London v. Cox, L. R. 2 H. L. 239. (h) See, for instance, Elston v. Rose, L. R. 4 Q. B. 4. (i) L. R. 2 H. L. 278; 1 Will. 4. c. 21, s. 1.. (k) 19 & 20 Vict. c. 108, ss. 40-42. See also 13 & 14 Vict. c. 61, s. 22. (595) The supreme court of the United States has power to issue writs of prohibition to the federal district courts, when proceeding as courts of admiralty and maritime jurisdiction. Act of Congress, Sept. 24, 1789, § 13; 1 Stat. at Large, 81. Thus, where the district court has no jurisdiction of a cause brought before it, a prohibition will be issued from the supreme court to prevent proceedings. United States v. Peters, 3 Dall. 121. In the several States the supreme court of the State may also issue the writ in proper cases. As to what are proper cases, see, generally, Hanger v. Keating, 26 Ark. 51; Baldwin v. Cooley, 1 S. C. 256; Cody v. Lennard, 45 Ga. 85; People v. Wayne Circuit Court, 11 Mich. 393; Mayo v. James, 12 Gratt. (Va.) 17; People v. Clute, 42 How. 157. VOL. II-41 |