eral subject-matter.' But this is putting the doctrine rather too strongly. Such a. rule would prevent the application of the writ in any case where the question is as to jurisdiction of the person only. But where the question of jurisdiction turns upon the sufficiency or insufficiency of the service of process, and the court below has held it to be sufficient, the fact that a superior court may be of a different opinion will not authorize the issuance of the writ. A different rule must prevail, however, where there is an entire want of service, or where such service could in no case give the court jurisdiction.

Where the right to a change of venue is given by statute, if the action is brought in the wrong county, such remedy is a speedy and adequate one and must be resorted to. A different rule prevails in some of the states.3 And if an application for a change should be made and denied in a case where such application would have the effect to oust the court of jurisdiction, prohibition would be the proper remedy."

But it has been held that, where there is an entire abience of jurisdiction over the person, growing out of the fact that he is sued in a personal action out of the district of his residence, the writ will not lie, the reason given being that the court has jurisdiction of the cause, and he has his remedy by appeal or certiorari.3

It is otherwise where the action is local and the subjectmatter of the suit is not within the territorial jurisdiction of the court. And where a party is brought into the jurisdiction as a witness and service is made upon him away

1 Ex parte Ellyson, 20 Gratt. 24; McConiha v. Guthrie, 21 W. Va. 134, 141.

2 Fresno Nat'l Bank v. Superior Court, 83 Cal. 491; 24 Pac. Rep. 157. City of North Yakima r. Superior Court, 4 Wash. St. 655; 30 Pac. Rep. 1053; State v. Superior Court, 5 Wash. St. 639; 32 Pac. Rep. 553. Ante, secs. 24, 45, 47, 51; State v. Superior Court, 5 Wash. St. 518; 32 Pac. Rep. 457.

5 People v. Hills, 5 Utah, 410; 16 Pac. Rep. 405; State v. Hocker, 14 Sou. Rep. 586.

6 Grangers Bank v. Superior Court, 33 Pac. Rep. 1095; City of North Yakima v. Superior Court, 4 Wash. St. 655; 30 Pac. Rep. 1053.

from his place of residence, proceedings under the service may be prevented by prohibition.' The question turns upon the effect of bringing an action in the wrong county or state, which has been considered in other sections of this work.2

In those cases, or in those states where it is held that the right to be sued in a particular place is a mere privilege that may be waived, and that the commencement of the action in the wrong place must be taken advantage of by objection made in the court in which the action is pending, the writ will not lie. But in those cases or in those states where the want of jurisdiction is absolute, where the action is brought in the wrong place, and no objection need be made to the court in which the action is commenced in order to secure a transfer of the action or to divest the court of jurisdiction, prohibition is the proper remedy.

The power to issue writs of prohibition by appellate courts is confined, in some of the states, to cases in which appeals may be taken to such courts, and in matters affecting their appellate jurisdiction; while in others the power is not so limited, but such courts are given full original jurisdiction to issue the writ to all inferior courts in all cases.5

It is held in some of the states that no appeal will lie from a judgment or order refusing a writ of prohibition.

This is placed upon the ground that the writ is not a writ of right but issues only at the discretion of the court, and the action of the court in a matter of discretion is not reviewable. But, as has been shown above, the great weight of authority, at least of modern authority, is to

1

1 People v. Flansburg, 26 N. Y. Supl. 329; ante, sec. 37.

2 Ante, secs. 45, 46, 47, 49, 51.

3 State v. Hocker, 14 Sou. Rep. 586.

4 Grangers Bank v. Superior Court, 33 Pac. Rep. 1095; Fritts v. Camp, 94 Cal. 393; 29 Pac. Rep. 867.

State v. McCrea, 40 La. Ann. 20; 3 Sou. Rep. 380; Connecticut River R. R. v. County Commissioners, 127 Mass. 50, 57; Commonwealth v. Latham, 85 Va. 632; 8 S. E. Rep. 488; State v. Henry, 41 La. Ann. 908; 6 Sou. Rep. 807.

6 State v. Bowerman, 40 Mo. App. 576.

the effect that it is a writ of right and does not rest wholly within the discretion of the court. It follows that the action of a court refusing the writ may be reviewed on appeal, and so it is generally held.'

The question whether an order to show cause why a writ of prohibition shall not issue may be made by a judge at chambers or in vacation, in the absence of some statute authorizing it, is open to serious question, although the right has been upheld in some of the cases.2

And whatever may be the correct rule as to an order to show cause the writ can only issue by a court.

Prohibition is the proper remedy to prevent action by a judge who is disqualified by interest, or otherwise.3

82. HABEAS CORPUS.-It is not the purpose of this section to enter into a history of the writ of habeas corpus or of the causes for its issuance further than may be found to be necessary in an effort to ascertain the extent of and limitations upon the jurisdiction of the courts in issuing the writ, the extent to which they may go in the investigation of the

1 "It is often said that the granting or refusing of a writ of prohibition is discretionary, and, therefore, not the subject of a writ of error. That may be true where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ of prohibition. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. This is the clear result of the modern English decisions, in which the law concerning writs of prohibition has been more fully discussed and explained than in the older authorities. In re Forster, 4 Best & S. 187, 199; Mayor, etc., of London v. Cox, L. R. 2 H. L. 239, 280; Worthington v. Jeffries, L. R. 10 C. P. 379, 380; Chambers v. Green, L. R. 20 Eq. 552, 555. See, also, Weston v. City Council of Charleston, 2 Pet. 449, reversing on error s. c., Harp. 340." Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570, 573.

'State v. Rombauer, 104 Mo. 619; 15 S. W. Rep. 850; 16 S. W. Rep. 502.

3

Ante, sec. 62; North Bloomfield Mining Co. v. Keyser, 58 Cal. 315; Heilbron v. Campbell, 23 Pac. Rep. 122.

jurisdiction and acts of other courts, and the extent and character of the relief that may be afforded under the writ. For this purpose it is sufficient to say that it is a writ the object of which is to liberate those who are unlawfully imprisoned,' whether by the action or under the order or judgment of a court, or without the forms of law.

The right to the writ exists independently of and can not be taken away by statute. The right is guaranteed by the constitution of the United States and of the states,3 and the power to issue it is given, very generally, to all of the superior courts, state and national, and the judges thereof, from the courts of final appellate jurisdiction down.* But the power is sometimes given to the court alone and not to the judges. And, generally, the power given to the appellate courts is vested in them as original and not as appellate jurisdiction alone.

Generally, an appeal is also given from the subordinate to the higher courts in the exercise of the jurisdiction to issue the writ," but not always.' And where no appeal is allowed by statute certiorari may be resorted to.3

In some of the states the doctrine that there can be no appeal in this class of cases is placed upon the ground that the jurisdiction of all of the courts and judges to issue the writ is original and concurrent, and none can review the action of another."

The causes for which the writ may issue are not, generally, provided by statute, except where the office of the

Ex parte Watkins, 3 Pet. 193, 202.

2 People v. Liscomb, 60 N. Y. 559; 19 Am. Rep. 211.

3 Hurd Habeas Corpus, 105.

4 Ex parte Yerger, 8 Wall. 85; Ex parte Bollman, 4 Cranch, 75; People v. Liscomb, 60 N. Y. 559; 19 Am. Rep. 211; Ex parte Burrus, 136 U. S. 586; 10 Sup. Ct. Rep. 850; Patterson v. State, 50 N. J. L. 421; 14 Atl. Rep. 125.

In re White, 33 Neb. 812; 51 N. W. Rep. 287.

Speer v. Davis, 38 Ind. 271; Ex parte Trader, 24 Tex. App. 393; 6 S. W. Rep. 533.

Ex parte Jilz, 64 Mo. 205; 27 Am. Rep. 218; Ferguson v. Ferguson, 5 Mo. 197; In re Strickland, 41 La. Ann. 324; 6 Sou. Rep. 577.

8 State v.

Herndon, 107 N. Car. 934; 12 S. E. Rep. 268. "In re Strickland, 41 La. Ann. 324; 6 Sou. Rep. 577.

9

writ is intended to be extended or enlarged.' Therefore, the general principles upon which it was issued in England before our constitutions and statutes were enacted will control the courts in the exercise of their jurisdiction, subject to the limitations, if any, imposed by our laws.

The causes for which the writ may issue have been increased, and the extent to which the courts may go in investigating such causes have been extended and enlarged quite materially in some of the states. But in none has the writ been made less effective or the causes for which it may issue been diminished.*

The general rule is that the writ is jurisdictional, when directed to a court or judicial officer, and can only be used to inquire into the jurisdiction of such court or officer, and that it can not be used as a writ of error or appeal for the purpose of inquiring into mere errors or irregularities;" nor can the court determine, under the writ, whether the acts alleged constituted the offense charged or not, or the sufficiency or insufficiency of the evidence to warrant the imprisonment of the party seeking the writ.

But the inquiry is not confined to the question whether the court had jurisdiction of the cause and of the defend

1 Ex parte Watkins, 3 Pet. 193, 201; Cooley Const. Lim. *p. 347.

2 Ex parte Parks, 93 U. S. 18; Cooley Const. Lim. p. 347.

3 People v. Liscomb, 60 N. Y. 559; 19 Am. Rep. 211; Ex parte Maxwell, 11 Nev. 428.

Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18; In re Eldred, 46 Wis. 530; 1 N. W. Rep. 175; Ex parte Siebold, 100 U. S. 371; In re Terry, 128 U. S. 289; 9 Sup. Ct. Rep. 77; Wright v. Wright, 74 Wis. 439; 43 N. W. Rep. 145; Commonwealth v. Lecky, 1 Watts, 66; 26 Am. Dec. 37, 41, 42; Cooley Const. Lim. *pp. 347, 348.

6 Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18; Ex parte Siebold, 100 U. S. 371; Ex parte Fisher, 6 Neb. 309; Phillips v. Welch, 12 Nev. 158; Ex parte Winston, 9 Nev. 71; Ex parte Maxwell, 11 Nev. 428; Turney v. Barr, 75 Ia. 758; 38 N. W. Rep. 550; Commonwealth r. Lecky, 1 Watts. 66; 26 Am. Dec. 37, 40, 41; Cooley Const. Lim. *pp. 347, 348.

7 Horner v. United States, 143 U. S. 570;

12 Sup. Ct. Rep. 522.

8 Horner v. United States, 143 U. S. 570; 12 Sup. Ct. Rep. 407; Orteiza v. Jacobus, 136 U. S. 330; 10 Sup. Ct. Rep. 1031; Ex parte Marx, 86 W. Va. 40; 9 S. E. Rep. 475; In re Haskell, 52 Fed. Rep. 795.