pointed out by Mr. Dicey (1), not only that every interference with it should be punished, but also that there should be adequate security that every one confined without legal justification should be set free. This security is provided by the writ of habeas corpus ad subjiciendum, the festinum remedium, or speedy remedy, as it was called by Lord Coke, which has been always regarded as one of the most important safeguards of the liberty of the subject.

"The writ of habeas corpus," said Lord Esher, in a very recent case (2), “is a writ of procedure for the purpose of the Court making an order with regard to the person brought before it. It generally and originally had reference to persons whose liberty is affected, but the writ has always been used in the case of infant children to determine whether the person having charge of them as children is the right person to take charge of them. The question in such cases is one not of liberty but of nurture and education."

The following is the ordinary form of a writ of habeas corpus ad subjiciendum:

Victoria, by the Grace of God, &c., to greeting: We command you that you have in the Queen's Bench Division of our High Court of Justice (or before a judge in chambers) at the Royal Courts of Justice, London, immediately after the receipt of this our writ, the body of A. B., being taken and detained under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, to undergo and receive all and singular such matters and things as our said Court (or judge) shall then and there consider of concerning him in this behalf; and have you there then this Our writ.

Witness, &c.

Recourse is now but seldom had to the writ of habeas corpus ad testificandum, as a cheaper and more expeditious means is provided by the Acts of Parliament which shall next be noticed.

By 16 Vict. c. 30, s. 9, a warrant or order may be obtained to bring up any prisoner or person confined in any gaol, prison, or place, under any sentence or under commitment for trial or

(1) Dicey on the Law of the Constitution, 3rd ed. p. 195, et seq.

(2) The Queen v. Dr. Barnardo, [1891] 1 Q. B. 196. See further as to the writ of Habeas corpus, Cox v. Hakes, 15 App. Cas. 506 (where

the authorities are reviewed), considered and explained in The Queen v. Barnardo [1891], 1 Q. B. 194; and see, as to practice, Short and Mellor's Practice of the Crown Office, p. 350, et seq.

otherwise (except under process in any civil action, suit, or proceeding), to be examined as a witness in any cause or matter, civil or criminal, and any person so brought up shall be dealt with in like manner in all respects as persons brought up by habeas corpus. The County Court Act, 1888 (51 & 52 Vict. c. 43), s. 112, confers a similar power upon judges of county courts to bring up prisoners before them to give evidence.

The Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 18 (2), enables the Court or a judge to order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before an official or special referee, or before any arbitrator or umpire.

The prerogative writ of mandamus is a high prerogative Mandamus. writ issuing from the Crown side of the Queen's Bench Division of the High Court, commanding the person to whom it is addressed to perform some public or quasi public legal duty which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy (1).

The Judicature Act, 1873 (sect. 25, sub-sect. 8) provides that a mandamus may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made." The mandamus here spoken of is not the prerogative mandamus, but only "a mandamus which may be granted to direct the performance of some acts of something to be done which is the result of an action where an action will lie" (2).

(1) Glossop v. Heston and Isleworth Local Board, 12 Ch. D. 122. The principal general rules as to granting the high prerogative right of mandamus are summed up by

Mr. Shortt in his work on Informations (Criminal and Quo warranto), Mandamus, and Prohibition, p. 223, as follows:

(1) The applicant must have a legal right to the performance of some duty of a public and not merely private character.

(2) There must be no other effective lawful method of enforcing the right.

(3) The Court must be convinced that the remedy by mandamus will be practically effective to secure the object aimed at.

(4) There must have been a demand made upon the person or body on whom the performance of the

duty sought to be enforced is incum-
bent, and a neglect and refusal by
such person or body to perform it.

(5) The application must be to
compel the performance of some duty
which has not been done, it must not
be to order the undoing of an act
which has been done.

(6) The application must be made in proper time, i.e., it must not have been delayed too long, neither on the other hand must it be made prematurely; and

(7) The Court must be satisfied as to the propriety of the motives of the applicant. See also Short and Mellor, p. 12.

(2) Re Paris Skating Rink Co., 6 Ch. D. 731. See also Baxter v. London County Council, 63 L. T. 767; Mayor, &c., of the County Borough of Salford v. The County Council of Lancashire, 25 Q. B. D. 384.

Prohibition.

Quo warranto.

Certiorari.

A prohibition is a writ directed usually both to the Judge and parties of a suit in any inferior Court, commanding them to cease from the prosecution thereof. The origin of the writ of prohibition has been stated as follows:

"As all external jurisdiction, whether ecclesiastical or civil, is derived from the Crown, and the administration of justice is committed to a great variety of Courts, hence it hath been the care of the Crown that these Courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ

of prohibition was framed." (1)

The principal cases in which prohibitions have been granted, are as follows:

:

To Criminal Courts, to Ecclesiastical Courts of every kind, to the Palatine Courts, the Duchy Courts, the Vice-Chancellor's Court at the Universities, the Mayor's Court of the City of London, County Courts, Martial, Naval and Military Courts, the Courts of the Stannaries, to Coroners, Quarter Sessions, Justices, Courts of Request, and to the Salford Hundred Court (2). No order or proceeding of the Commissioners under the Railway and Canal Traffic Act, 1888, can be restrained by prohibition (3). The ancient writ of quo warranto which is now obsolete, but upon which the information of the present day is founded, was in the nature of a writ of right for the king against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim.

Procedure by quo warranto information which is now substituted for the ancient writ, is the appropriate remedy wherever there has been an usurpation of any office, whether created by charter alone or by the Crown with the consent of Parliament (4).

Quo warranto informations are of two kinds, those filed ex officio by the Attorney or Solicitor-General on behalf of the Crown, and those allowed by the Court to be exhibited by the Master of the Crown Office on the relation of some private individual.

The writ of certiorari is the process by which the Queen's Bench Division directs the judges or officers of any inferior court to certify or send proceedings before them, whether for

(') Bacon's Abridgement, Prohibition.

(2) See further Shortt on Information, &c., p. 431, et seq., and Short and Mellor's Practice of the Crown

Office, p. 75, et seq.

(3) Railway & Canal Traffic Act, 1888, 51 & 52 Vict. c. 25, s. 17.

(*) Darley v. The Queen, 12 Cl. & F. 541.

the purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the Court below (1).

The remedy by petition of right is given when the Crown is Petition of in possession of land, goods or money belonging to a subject, right. the object being to obtain restitution or compensation. A petition of right will also lie for damages in respect of a breach

of contract by the Crown (2).

() Short and Mellor's Practice of the Crown Office, p. 219, et seq.

(2) See The Windsor, &c., Railway Co. v. The Queen and the Western

Counties Railway Co., 11 App. Cas.
607, and as to the practice, Annual
Practice, 1890-1891, p. 810.

Mode of introduction.

CHAPTER XVIII.

BUSINESS OUTSIDE THE HIGH COURT.

Thus far our attention has been occupied with the practice which concerns business done in the High Court and the appeals therefrom. The next subject which claims our attention is a brief consideration of the positions of certain other bodies— some of them Courts in the strictest sense of the term-others not falling inside that category which exercise jurisdiction in this country.

PARLIAMENTARY BUSINESS.

A brief reference may first be made to that important class of business the promotion of private bills in Parliament. Private bills are described or defined by Sir Erskine May (1), as those which are not matters of public policy affecting the community, but are for the particular interest or benefit of any person or persons-ex. gr. an individual, a public company, or some particular locality. In dealing with public bills, Parliament acts purely in its legislative capacity, but with regard to private bills its functions are partly legislative and partly judicial. Private bills must be brought in on petition signed by the parties or some of them who are suitors for the bill, and the promoters of such bills must pay fees. An exception, however, exists in the case of bills of a quasi public nature which are introduced as public bills, but are treated like private bills in being referred to a committee, before whom petitioners against are heard. Such bills are spoken of as "hybrid bills" (2).

Before a private bill can be proceeded with, compliance with the Standing Orders must be proved to the satisfaction of the

() May's Parliamentary Practice, 9th ed. p. 745, et seq.

(2) See May's Parliamentary Practice, 787, and p. 745, et seq., for cases of bills affecting London, Dublin, and Edinburgh being treated as public bills. One of the Standing Orders of the House of Commons (226) pro

vides "that this House will not insist on its privileges with regard to any clauses in private bills, &c., sent down from the House of Lords, which refer to tolls and charges not in the nature of a tax, or which refer to rates assessed and levied by public authorities for local purposes."