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long since, while arguing a cause in the Court of Appeals in the State of New York, denominated it an obsolete remedy. Modern treatises and works on practice say little, if anything, upon this branch of the law, and very few cases of prohibition find their way into our reports. If, therefore, we desire to learn much of this remedy, we are under the necessity of going to the earlier reports and treatises, which, unfortunately, are fast disappearing from our libraries.
We do not profess to be proficient in this branch of the law; and write upon it, more with the view of calling the attention of the Bar to it, than of throwing light upon it. For, while we are not under the necessity of resorting to this remedy so often as to many others, it is yet many times a very valuable and effective remedy, and is one we canuot afford to consign to oblivion. It seeks to prevent instead of repairing injuries. It does not under, take to undo what is done, but to stop the doing of that which ought not to be done. It reaches cases and parties, which can be reached in no other way, and by no other process. In its character it is similar to the remedy by injunction. And yet it is applicable to a different class of cases and issues to parties to whom a writ of injunction will not lie.
While constitutional or legislative provisions in the States and Canada recognize the existence of this remedy, these provisions do not undertake to provide when the remedy is proper, nor to direct the mode of practice, but leave it as it existed at common law. As a sample of the legislation on this subject, we will here give the law of Lower Canada, which is as extensive and comprehensive as the constitutional and statute law of many or all of the States.
"Writs of prohibition are addressed to Courts of inferior jurisdiction, whenever they exceed their jurisdiction. They are applied for, obtained, and executed in the same manner as writs of mandamus, and with the same formalities."—Code of Civil Procedure, Art. 1031, Sec. 4.
The thirteenth section of the Judicial Act of the United States provides that: "The Supreme Court shall also have appellate jurisdiction from the Circuit Courts, and Courts of the several States, in cases hereinafter provided for; and shall have power to issue writs of prohibition to the District Courts, when proceeding as Courts of Admiralty and maritime jurisdiction, and writs of mandamus in cases warranted by the principles and usages of Voi. I. Aa No. 3. Jaw, to any Courts appointed or persons holding office under authority of the United States."
Without, therefore, a knowledge of what the common law was upon this subject, we can have but a very limited understanding of the remedy by prohibition, as it exists in the States, and in Canada.
A prohibition has been defined a "Writ issuing properly only out of the Court of King's Bench, being the King's prerogative writ; directed to the judge and parties of 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."
It was denominated one of the King's prerogative writs, because it was deemed the right or privilege of the Sovereign to take supervision of, and to control his substitutes, and to compel them to do right, and to administer justice according to law. It therefore, formerly issued out of the Court of King's Bench only; as in that Court, the King was understood to preside in person, and aided in the administration of justice. And according to the theory of the common law, the King is the fountain of justice, and when the laws do not afford a remedy, and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the Sovereign may be brought in aid of the ordinary judicial powers of the Court. It had its origin in the will of the King, and not from legislative enactment. It was not a remedy provided by law, but was unknown to the law, and was given and granted by the Sovereign, because in theory, he was the fountain of justice, and might and should provide the means, by which the subject could obtain his right. But by long continued use, this remedy has outgrown its sovereign independent character, and is now regulated by law.
At first, as has been said, the writ issued out of the Court of King's Bench only; but afterwards the power to issue the writ to inferior courts was extended to the Court of Chancery, the Exchequer Court, and even the Court of Common Pleas. In the States, the power to issue the writ is generally given to certain specified courts, either by their constitutions, or by legislative enactments. In the absence of such provisions, it is apprehended that no court could issue this writ, unless it possessed the general superintending power of the Court of King's Bench, or the general equitable powers of the English Court of Chancery. And when express authority is given by the constitution or by statute to a court to issue this suit in certain specified cases, it must be presumed that there is no authority to issue it in any other cases; upon the maxim, "expressio unius est exclusio alterius."
In the issuing or withholding of this suit, the court is to be governed by a sound discretion. Not an independent, arbitrary, and irresponsible discretion, but a legal discretion. One that is founded upon and constituted by the principles of equity, and the rules of law.
Nor should the courts, in issuing this writ, be governed by narrow and technical rules, but should regard it as a convenient mode of exercising a wholesome control over inferior tribunals; for it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it has been committed, and after the parties have been to the [expense and annoyance of a trial in the inferior court. Such were the principles upon which courts formerly acted, and there is now no less reason for so acting than formerly.
The writ may be issued on the application of the party interested in the proceedings sought to be stayed, or on the application of a stranger to such proceedings. For it is apprehended that the keeping of all courts within their proper and legal jurisdiction is of such general interest and of such public importance, that the sovereign power should be exercised whenever and however informed of an intention in any tribunal to overreach the proper and legal limits of its.jurisdiction.
But in order to authorize a court to issue this high prerogative writ, the inferior court, against which it is directed, must be actually proceeding to act in a matter where it has no jurisdiction; a mere apprehension that such court will undertake to act, is not sufficient. For the presumption that no court will proceed in any matter not within its jurisdiction, is so strong, that it cannot be rebutted, except by the fact that it has actually commenced to act.
The writ is issued against the judge of the inferior court, and the party who is prosecuting the proceedings in such court, which is sought to be stayed; and it commands them to no further proceed in such case; disobedience of the command is punished by the attachment of the judge and party, followed by fine and imprisonment at the discretion of the court, as for contempt.
The writ is allowed to any inferior court, whether temporal, military, or ecclesiastical, and to the court of admiralty. At one time there was great strife between the civil and ecclesiastical courts; the latter were eager to extend the limits of their jurisdiction, and the former to keep the ecclesiastical courts strictly within their acknowledged jurisdiction. Consequently the writ of prohibition was frequently resorted to; and therefore much ot the learning upon this branch of the law, is found in the reports of cases where the writ was issued to ecclesiastical courts.
The writ is allowed whenever it is made to appear that an inferior court is exceeding the legal bounds, and proper limits of its jurisdiction, either by proceeding in a matter not within the jurisdiction of such court, or when the court has no jurisdiction over the person of the party complaining, or when a suit is commenced in an inferior court, upon a matter within its jurisdiction, but a matter arises in the defense of such action, which is not within the jurisdiction of such inferior court.
As illustrative of these propositions, we will here present a few cases where the courts have held the writ allowable.
In the case of The People vs. the Tompkins General Sessions. 19 Wend. Rep. 154, it was held that when a court is entertaining jurisdiction over a case in appeal, when no appeal was allowable by law, prohibition was a proper remedy.
In the case of Quimb Appo. vs. The People, 20 New York Reps. 531, it was held, that when a court had announced its intention to set aside a conviction and sentence, and to grant a new trial, in a case where the court had no legal authority to set aside a conviction and grant a new trial, prohibition would lie; it was insisted in that case, that the court had jurisdiction of the offence and over the person of the defendant, and that the setting aside of a conviction and sentence, and the granting a new trial, when the court had no legal authority to do so, was simply an error in the proceedings of the court; that errors cannot be reexamined in a writ of prohibition. The court, however, recognized the doctrine, that prohibition lies, when a court is transgressing the bounds prescribed by law, although it be, in handling matters, clearly within its cognizance.
In the case of D. Haber vs. The Queen of Portugal, 7 Eng. Law, and Equity, Reps. 340, it was held that no English court has jurisdiction to entertain an action against a foreign Sovereign for anything done, or omitted to be done, by him in his public capacity as representative of the nation of which he is the head. And that if a party should commence an action in an English court, against a foreign Sovereign, to enforce the payment of a debt, claimed to have been contracted by that Soverign in his public capacity, prohibition would lie, to prevent such party and the court in which such action was commenced from proceeding further in the case.
Prohibition also lies after judgment, to restrain a court from proceeding to execute a judgment, rendered in excess of jurisdiction.
Therefore, when suit was commenced in a County Court, upon a promissory note, and the defense set up that the consideration for the note was a certain piece of land; that the title was not good, and the consideration of the note had, therefore, failed, and objected, in hearing, to the jurisdiction of the courts on the ground that the County Court had no jurisdiction to determine title to real estate. The judge overruled the objection and gave judgment, and issued execution. It was held that prohibition would lie to restrain the execution of the judgment.
And in a case where the plaintiff's complaint was for a trespass, and the defendant set up title to the premises, upon which it was claimed the trespass was committed, and the judge dismissed the case on the ground that the court had no jurisdiction when title to real estate was involved, and yet rendered judgment against the plaintiff for costs, prohibition was held to lie, to restrain execution, Lawford vs. Partridge, 38 E. L. and E., Reps. 493.
In such cases the writ issues to the court, and not to the ministerial officer, in whose hands the execution is placed. For prohibition never lies to a ministerial omcer, to stay the execution of process in his hands.
And, again, prohibition does not lie to restrain a court from issuing an execution in a case where the inferior court has not exceeded its jurisdiction in rendering judgment, although it would be illegal and irregular for such court to issue the execution; prohibition being issued to restrain a court from exercising judicial powers only, and not to correct its irregular and erroneous proceedings in matters within its jurisdiction.
Where the inferior court has jurisdiction of the subject matter, and of the parties, but errs in its decision of law, prohibition does not lie. The remedy in such case is by writ of error,