husband, if he neglects or refuses to make her an allowance suitable to her station in life.

4. The suit for restitution of conjugal rights is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case they will be compelled to come together again, if either party be weak enough to desire it, contrary to the inclination of the other.

5. The suit for nullity may be brought if sufficient cause existed previous to the marriage, such as rendered it unlawful ab initio, that is to say, corporal imbecility.

6. A suit may also be brought for declaring the validity of a marriage, or the legitimacy of the offspring; in order that the plaintiff may have his legitimacy, or his right to be deemed a natural born subject, or the validity of his own marriage, or that of his father and mother, or grandfather and grandmother, ascertained and declared. Finally, there is,

7. The suit causa jactitationis matrimonii; which may be brought when one maliciously gives out that he or she is married to the other, in order that he or she may be enjoined perpetual silence upon that head; the only remedy that can be given for this injury.

The interference of the court in these cases is sought by petition, filed in the registry; on which a citation issues to the respondent, requiring him to appear and answer the matters alleged against him. To this answer, when made, the complainant replies; the respondent, if need be, making further answer; the issues ultimately joined between the parties being next ordered for trial, either by the court itself or by a jury if either of the parties so require.

Maritime causes, which constitute the third branch of the jurisdiction of the Probate, Divorce, and Admiralty division of the High Court, are such injuries, which though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach, as was supposed, of our ordinary courts of justice, were therefore remedied in the High Court of Admiralty. If part of any contract, or other cause of action, arose

upon the sea, and part upon the land, the common law excluded the Admiralty court; for, part belonging properly to one cognizance and part to another, the common or general law took place of the particular. Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen's wages, were one proper object of the admiralty jurisdiction, even though the contract for them had been made upon land; yet, in general, if there had been a contract made in England, and to be executed upon the seas, as a charter-party or covenant that a ship should sail to Jamaica, or should be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London or the like; these kinds of mixed contracts belonged, not to the admiralty jurisdiction, but to the courts of common law. These and similar nice questions can no longer arise, as the divisional court, by which the jurisdiction of the Admiralty is now exercised, has all the powers and authority of the High Court of Justice; and has therefore, in cases of prize, in time of war between our own nation and another, or between two other nations, which are taken at sea, and brought into our ports, an undisturbed and exclusive jurisdiction to determine the same according to the law of nations.

III. I am next to consider such injuries as are cognizable by the High Court of Justice. And herein I shall for the present only remark, that all possible injuries whatsoever that do not fall within the exclusive cognizance of the other tribunals, are for that very reason within the cognizance of this court. For it is a settled and invariable principle, that every right when withheld must have a remedy, and every injury its proper redress. The explanation of these injuries, and their remedies, will occupy many subsequent chapters. But before concluding the present, it is desirable to mention two species of injuries, whose nature justifies our immediate consideration: and these 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 without authority.

1. 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 issues, where judges of any subordinate

court delay the parties; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a procedendo is awarded, commanding them to proceed to judgment; but without specifying any particular judgment, for that, if erroneous, may be set aside on an appeal: and upon farther neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment. A procedendo, however, is rarely resorted to, the remedy by mandamus being preferable.

The writ of mandamus is a command issuing in the name of the sovereign, and directed to any person, corporation, or inferior court of judicature requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Queen's Bench division has previously determined, or at least supposes to be consonant to right and justice. A mandamus lies, for instance, to compel the admission or restoration of the party applying to any office or franchise of a public nature; to academical degrees; to the use of a meetinghouse, &c.; 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 enumerate. It issues to the judges of an inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed; as to enter up judgment; to hear an appeal; to swear a churchwarden, and the like. This writ is grounded on the oath of the party injured, of his own right, and the denial of justice below: whereupon 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 returns an insufficient reason, then there issues a peremptory mandamus, to do the thing absolutely: to which no other return is admitted, but obedience. If the inferior judge or other person makes no return, or fails in his obedience, he is punishable for his contempt by attachment. If, however, he returns a sufficient cause, although it should be false in fact, the court

.

will not try the truth of the fact on affidavit; but will for the present believe him, and proceed no further on the mandamus ; in which case the party injured may adopt one of two courses. He may either have an action against the defendant for his false return, and, if it be found to be false, he shall in such action recover damages equivalent to the injury sustained; or he may plead to the return as if it were a defence to an ordinary action. The plaintiff, if ultimately successful in either course has a peremptory mandamus to the defendant to do his duty.

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 law has provided a remedy by the writ of prohibition; directed to the judge and parties to 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. 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 Divisional Court that awarded it; 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 objects of it, even from the time of the Constitutions of Clarendon to the exhibition of certain articles of complaint to the king by Archbishop Bancroft in 3 Jac. I., from which, and from the answers to them, much may be collected concerning the reasons of granting and methods of proceeding in prohibition.

The mode of obtaining and following out this writ has been much simplified by modern legislation. The party, who seeks the prohibition, makes an application, founded on affidavit, for a rule calling upon the party to be prohibited, and the other party interested in the question between them, to show cause why a writ of prohibition should not issue. This rule is made

absolute at the expiration of the time allowed for showing cause, unless cause be shown; in which case the rule is discharged, the writ issues, or the party applying for it is directed to declare in prohibition. In the latter event the party seeking the intervention of the court must set out the proceedings in the court below to which he objects, and after trial of facts disputed, or argument as to the law involved, as in the case of an ordinary action, judgment is given that the writ of prohibition do or do not issue. When issued there is no course open to the parties but obedience, which will, if necessary, be enforced by attachment.

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 properly belong to their jurisdiction.

CHAPTER V.

OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS.

I COME now to consider in a more particular manner, the remedies obtainable in the High Court of Justice for injuries or private wrongs of any denomination whatsoever. The superior courts of common law and the Court of Chancery have as we have seen been merged in the High Court of Justice; but each of the four divisions which may be said to have succeeded to these courts, possesses the same general and special authorities as the tribunal, which it represents, exercised before this fusion took place. It will therefore be convenient, firstly, to define the several injuries hitherto cognizable by the courts of common law, with the respective remedies applicable to each particular injury, pointing out in what cases relief was more appropriately sought in equity; secondly, describe the several branches of jurisdiction hitherto exercised by the Court of Chancery; and, thirdly, explain the method of obtaining these various remedies by action. And in dealing with the first branch of this inquiry, I shall confine myself to such wrongs as may be committed in