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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 the jurisdiction prescribed them by the laws and statutes of the realm; and for this purpose a writ of prohibition was framed so early as the 3 Ed. 1. which writ issues out of the superior common law courts, to restrain all inserior courts, whether ecclesiastical or temporal, maritime., military, &c. upon a suggestion made in the superior court, that such inserior court hath assumed a greater or other power than was entrusted to it by law, or that it hath resused to allow of acts of parliament, or hath expounded them contrary to their true and proper exposition and intent, &c. &c.
If inserior courts exceed their jurisdiction, the officer who executes the sentence, and in some cases the judges that give it, are in such superior courts punishable, sometimes at the suit of the king, sometimes at the suit of the party, sometimes at the suit of both, according to the variety os the case. Dav. 52.
The writ of prohibition is to preserve the right of the king's crown and courts, and is intended for the ease'and quiet of the subject; so that it is the wisdom and policy of the law to suppose both best preserved when every thing runs in its right channel, according to the original jurisdiction of every court. Show. Par. Cas. 63.
So that prohibitions do not import that the ecclesiastical or other inserior temporal court are alia than the king's courts j but signify that the cause is drawn ad aliud examen than it ought to be: and therefore it is always said in all prohibitions (be the court ecclesiastical or temporal to which it is awarded) that the cause is drawn ad aliud examen contra coronam et dignitatem regiam. 2 Instit. 602. Rol. Rep. 25a. 3Buls. 120. Palm. 297.
From whence it issues.
TH E superior courts at Wejlminjler, having a superirftendency over all inserior courts, may, in all cases of innovation, &c. award a prohibition: in this the power os' the King's Bench has never been doubted. F. N. B. 53. 4 Inst. 71.
Also the court of Chancery may award a prohibition, which may issue as well in vacation as in term time} but such writ is returnable into B. R. or C. B. Bro. Proh. pi. 6. 4 Inst. 81. Will. Rep. 43.
As the common law courts are not always open, if one is sued in an inserior court for a matter out of the jurisdiction, the desendant, if it happen in vacation time, when only the Chancery is open, may move that court for a prohibition: but then it must appear by oath made, that the sact did arise out of the jurisdiction, and that the desendant tendered a foreign plea, which was resused; and if a prohibition has been granted out of Chancery improvide, of without these circumstances attending it, the court will grant a supersedeas thereto. Will. Rep. 476. pi. 135.
As the jurisdiction of the court of Common Pleas is founded on original writs out of Chancery, it was formerly doubted, whether it could, without count or plea depending therein, award a prohibition: but it has been determined by the unanimous sense of all the judges, that this court may, upon a suggestion, grant prohibitions, to keep as well temporal as ecclesiajlical courts within their bounds and jurisdictions; and that without any original writ or plea depending: the common law being in these cases a prohibition of itself, and standing instead of an original. Bro. Proh. pi. 6. Noy 153. 12 Co. 58, 108. Bro. Con. pi. 3. 4 Instit. 99. 2 Brownl. 17. Vaughan 157.
The grand sessions in Wales may also send a prohibition, and write to the spiritual courts there, as well as the courts here may. Sid. 92. Sed vide Cro. Car. 341. Jones 330. Vau. 411.
In B. R. and C. B. this difference hath been made, that in B. R. a prohibition may be awarded upon a bare surmise without any suggestion on record; but that for a prohibition out of C. B. there must be a suggestion on record, and therefore the latter is considered as the suit of the party, and in which he may be nonsuited, and is not discontinued by the demise of the king; but the former is only in nature of a commission prohibitory, which is discontinued by the demise of the king. Noy 77. Balm. 422. Latch. 114.
From whence it issues.
But if an attachment issues upon such prohibition, or the party puts in bail, then it becomes a private suit, not discontinued by the demise of the king; and after such proceeding the party may be nonsuit, but not before. Palm. 423. Latch. 114.
Sue per Holt, ch. just. B. R. a prohibition cannot be moved for, if it be insisted, till the suggestion be entered on record. Salk. 136.
So for want of a suggestion on record the court of B. R. discharged the rule to shew cause why a prohibition should not be awarded. Hawkins, assignee of Wooldridge, a bankrupts against Blaquire and others, ajjignees of Sampson, Hil. 20 Geo. 3.
It hath been said, that the granting a prohibition is ex debito jujlitia:; but the better opinion seems to be, that the awarding a prohibition is a matter discretionary, 1. t. that from the circumstances of the case, the superior courts are at liberty to exercise a legal discretion herein, but not an arbitrary one in resusing prohibitions, where in such like cafes they have been granted; or, where by the laws and statutes of the realm they ought to be granted. Salk. 33. pi. 6. Ld. Raym. 220, 578, 586.
It hath been determined in the house of lords, that no w/r of error will lie upon the resusal of a prohibition; but when a consultation is awarded it is with an tin confideration eft, and then a writ of error will lie, because there is a judgment. Ld. Raym. 545. Salk. 136.
No prohibition can be had, unlefs the party is in danger by some suitadtually depending; and therefore a prohibition cannot be granted before a libel, or appearance to a suit below. Sa/k. 35. pi. 8. March. 24, 25. For a prohibition quia limit does not lie. Allen 56.
It is clearly agreed, that in all cases where it appears upon the sace of the libel, that the admiralty or spiritual court, ££?r. have not a jurisdiction, a prohibition may be awarded, and is grantable as well after as- before sentence; for the superior courts are to take care that the inserior courts keep within their due bounds. 2 Inst. 602. 2 Roll. Abr. 318. Noy 137. Sid. 65. Cro. El. 571. Moor 462, 907. Carth. 463. Skin. 299. pi. 2. But aster sentence a prohibition shall not go, unlefs the want of jurisdiction in the court below appears upon the sace oi the proceedings. Burr. Rep 4 pt. 2036, to 204O.
Of the Suggestion for a Prohibition.
WHERE the court has a natural jurisdiction of the thing, but is restrained by some statute, as by 23 H. 8 for not citing out of the diocese, there the party must come before sentence j for after pleading and admitting the jurisdiction of the court below, it would be hard and inconvenient to grant a prohibition. Vide the authorities antea and Cro. Car. 97. 2 Show. 145. pi. 153, 155, &c. 2 Salk. 543. pi. 1. L.d. Raym. 27. Salk. 30. Carth. 33.
When a prohibition is moved for, the method is for the party to file a suggestion in court, stating the proceedings that have been had in the court below, and then suggesting the reason why he prays the prohibition j and upon this the court grants a rule to shew cause why a prohibition should not issue; and if upon shewing cause it appears to the court that the surmise is not true, or not clearly sufficient to ground the prohibition upon, they will deny it; otherwise they will make the rule absolute for a prohibition ; or if the matter be doubtsul they will order the party to declare. Hob. 67.
The court will not grant a prohibition the last day of term, but on motion a rule may be obtained to stay proceedings till the ensuing term. Latch. 7. 2 Rol. Rep. 456.
The suggestion for a prohibition is to the following effect:
The form of a suggestion for a prohibition to the bailiff oi a borough to prohibit him from holding plea in a matter arising extra jurisdiclionem.
"Great Britain. Be it remembered, that on next
after fifteen days of Saint Martin, in this same term, before the lord the king at Westminster, comes A. B. in his proper person, and giveththe court of our lord the king here to understand, that whereas by a certain act of parliament, made at a parliament holden at Westminster the twentyfifth day oi April in the third year of the reign of the late king Edward the first, it was (amongst other things) ordained and established by the authority of the same parliament " Of great men and their bailiffs, and other (the king's officers only excepted unto whom especial authority is given) which at the complaint of some, or by their own authority attack other passing through their iurisdiction with their goods, compelling them to 1 answer answer afore them upon contracts, covenants and trespasses, done out of their power and their ju-' risdictions, where indeed they hold nothing of them, nor within the franchise, where their power is, in prejudice of the king and his crown, and to the damage of the people: it is provided, that none from thenceforth so do; and if any do, he shall pay to him, that by this occasion shall be attached, his damage double, and shall be grievously amerced to the king" as by the said statute (amongst other things it more sully appears) nevertheless one C. D. not ignorant of the premises, but contriving and intending the said A. against the form of the statute, unjustly to vex, oppress and weary, and to draw him into plea in the court of our lord the king, of record, of the borough of Bridgnorth, in the county of Salop, held in the said borough, before the bailift' of the said borough, in a certain action which had arisen and accrued out of the jurisdiction of that court; and also the common law of the realm (to every subject of right due) to derogate from and abridge, and the due course of law to subvert, and the issues and profits which to the said lord the present king thereof might happen, and which to bis royal crown especially belongeth to diminish, in the said court of our said lord the present king,
of record there, held on in the nineteenth
year of the reign of the lord the present king, before the bailiffs of the said borough, according to the custom of the said borough, from time whereof the memory of man is not to the contrary used and approved, levied his certain plaint against the s*id A. in a certain plea of trespass upon the case, to the damage of the said C. D. of fifty pounds: and the said C. D. by pretence of the plaint aforesaid, in form aforesaid, levied and aiSrmed, then and there caused and procured him the said A. palling within the jurisdiction of that court, to be attached and arrested, and compelled the said A. to appear in the said court, and the said A. of and upon the premises unjustly constrained to answer. And thereupon in the same court, held on the day of
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