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As

Of Prohibition.

S all external jurifdiction, whether ecclefiaftical or civil, is derived from the crown, and the adminiftration of juftice 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 jurifdiction prefcribed them by the laws and ftatutes of the realm; and for this purpose a writ of prohibition was framed fo early as the 3 Ed. I. which writ iffues out of the fuperior common law courts, to reftrain all inferior courts, whether ecclefiaftical or temporal, maritime, military, &c. upon a fuggeftion made in the fuperior court, that fuch inferior court hath affumed a greater or other power than was entrusted to it by law, or that it hath refufed to allow of acts of parliament, or hath expounded them contrary to their true and proper expofition and intent, &c. &c.

If inferior courts exceed their jurisdiction, the officer who executes the fentence, and in fome cafes the judges that give it, are in fuch fuperior courts punishable, fometimes at the fuit of the king, fometimes at the fuit of the party, fometimes at the fuit of both, according to the variety of the cafe. Dav. 52.

The writ of prohibition is to preferve the right of the king's crown and courts, and is intended for the ease and quiet of the fubject; fo that it is the wifdom and policy of the law to fuppofe both beft preferved when every thing runs in its right channel, according to the original jurisdiction of every court. Show. Par. Caf. 63.

So that prohibitions do not import that the ecclefiaftical or other inferior temporal court are alia than the king's courts; but fignify that the caufe is drawn ad aliud examen than it ought to be and therefore it is always faid in all prohibitions (be the court ecclefiaftical or temporal to which it is awarded) that the caufe is drawn ad aliud examen contra coronam et dignitatem regiam. 2 Inftit. 602. Rol. Rep. 252. 3 Bulf. 120. Palm. 297.

From

TH

From whence it iffues.

HE fuperior courts at Westminster, having a fuperin tendency over all inferior courts, may, in all cafes of innovation, &c. award a prohibition: in this the power of the King's Bench has never been doubted. F. N. B. 53. 4 Inft. 71.

Alfo the court of Chancery may award a prohibition, which may iffue as well in vacation as in term time; but fuch writ is returnable into B. R. or C. B. Bro. Proh. pl. 6. 4 Inft. 81. Will. Rep. 43.

As the common law courts are not always open, if one is fued in an inferior court for a matter out of the jurifdiction, the defendant, 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 fact did arise out of the jurifdiction, and that the defendant tendered a foreign plea, which was refused; and if a prohibition has been granted out of Chancery improvidè, `or without these circumftances attending it, the court will grant a fuperfedeas thereto. Will. Rep. 476. pl. 135.

As the jurifdiction 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 fense of all the judges, that this court may, upon a fuggeftion, grant prohibitions, to keep as well temporal as ecclefiaftical courts within their bounds and jurifdictions; 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. pl. 6. Noy 153. 12 Co. 58, 108. Bro. Con. pl. 3. 4 Inftit. 99. 2 Brownl. 17. Vaughan 157.

The grand feffions in Wales may also send a prohibition, and write to the fpiritual courts there, as well as the courts here may. Sid. Sed vide Cro. Car. 341. Jones 330.

Vau. 411.

92.

In B. R. and C. B. this difference hath been made, that in B. R. a prohibition may be awarded upon a bare furmife without any fuggeftion on record; but that for a prohibition out of C. B. there must be a fuggeftion on record, and therefore the latter is confidered as the fuit of the party, and in which he may be nonfuited, and is not difcontinued by the demise of the king; but the former is only in nature of a commiffion prohibitory, which is difcontinued by the demife of the king. Noy 77. Palm. 422. Latch. 114.

But

From whence it iffues.

But if an attachment iffues upon fuch prohibition, or the party puts in bail, then it becomes a private fuit, not difcontinued by the demife of the king; and after fuch proceeding the party may be nonfuit, but not before. Palm. 423. Latch. 114.

But per Holt, ch. just. B. R. a prohibition cannot be moved for, if it be infifted, till the fuggeftion be entered on record. Salk. 136.

So for want of a fuggeftion on record the court of B. R. discharged the rule to fhew cause why a prohibition should not be awarded. Hawkins, affignee of Wooldridge, a bankrupt, against Blaquire and others, affignees of Sampfon, Hil. 20 Geo. 3.

It hath been faid, that the granting a prohibition is ex debito juftitiæ; but the better opinion feems to be, that the awarding a prohibition is a matter difcretionary, i. e. that from the circumftances of the cafe, the fuperior courts are at liberty to exercise a legal difcretion herein, but not an arbitrary one in refufing prohibitions, where in fuch like cafes they have been granted; or, where by the laws and ftatutes of the realm they ought to be granted. Salk. 33. pl. 6. Ld. Raym. 220, 578, 586.

It hath been determined in the house of lords, that no writ of error will lie upon the refufal of a prohibition; but when a confultation is awarded it is with an ideo confideratum eft, and then a writ of error will lie, because there is a judgment. Ld. Raym. 545. Salk. 136.

No prohibition can be had, unless the party is in danger by fome fuit actually depending; and therefore a prohibition cannot be granted before a libel, or appearance to a fuit below. Salk. 35. pl. 8. March. 24, 25. For a prohibition quia timet does not lie. Allen 56.

It is clearly agreed, that in all cafes where it appears upon the face of the libel, that the admiralty or spiritual court, &c. have not a jurifdiction, a prohibition may be awarded, and is grantable as well after as before sentence; for the fuperior courts are to take care that the inferior courts keep within their due bounds. 2 Inft. 602. 2 Roll. Abr. 318. Noy 137. Sid. 65. Cro. El. 571. Moor 462, 907. Carth. 463. Skin. 299. pl. 2. But after fentence a prohibition fhall not go, unlefs the want of jurifdiction in the court below appears upon the face of the proceedings. Burr. Rep. 4 pt. 2036, to 2040.

Of

Of the Suggestion for a Prohibition.

WHERE the court has a natural jurifdiction of the

thing, but is restrained by fome statute, as by 23 H. 8 for not citing out of the diocefe, there the party must come before fentence; for after pleading and admitting the jurif diction 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. pl. 153, 155, &c. 543. pl. 1. Ld. Raym. 27. Salk. 30. Carth. 33.

2 Salk.

When a prohibition is moved for, the method is for the party to file a fuggeftion in court, ftating the proceedings that have been had in the court below, and then fuggesting the reason why he prays the prohibition; and upon this the court grants a rule to fhew caufe why a prohibition should not iffue; and if upon fhewing cause it appears to the court that the furmife is not true, or not clearly fufficient to ground the prohibition upon, they will deny it; otherwise they will make the rule abfolute for a prohibition; or if the matter be doubtful 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 enfuing term. Latch. 7. 2 Rol. Rep. 456.

The fuggeftion for a prohibition is to the following effect:

The form of a fuggeftion for a prohibition to the bailiff of a borough to prohibit him from holding plea in a matter arifing extra jurifdi&tionem.

"Great Britain. Be it remembered, that on

next

after fifteen days of Saint Martin, in this fame term, before the lord the king at Westminster, comes A. B. in his proper perfon, and giveth the 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 of April in the third year of the reign of the late king Edward the firft, it was (amongst other things) ordained and established by the authority of the fame parliament "Of great men and their bailiffs, and other (the king's officers only excepted unto whom efpecial authority is given) which at the complaint of fome, or by their own authority attack other paffing through their iurifdiction with their goods, compelling them to anfwer

1

Of the Suggestion for a Prohibition.

answer afore them upon contracts, covenants and
trefpaffes, done out of their power and their ju-
rifdictions, where indeed they hold nothing of
them, nor within the franchife, where their power
ís, in prejudice of the king and his crown, and to
the damage of the people: it is provided, that
none from thenceforth fo do; and if any do, he
fhall pay to him, that by this occafion fhall be
attached, his damage double, and fhall be grie-
voufly amerced to the king" as by the said statute
(amongst other things it more fully appears) ne-
vertheless one C. D. not ignorant of the premises,
but contriving and intending the faid A. against
the form of the ftatute, unjustly to vex, opprefs
and weary, and to draw him into plea in the
court of our lord the king, of record, of the bo-
rough of Bridgnorth, in the county of Salop, held
in the faid borough, before the bailiff of the faid
borough, in a certain action which had arifen and.
accrued out of the jurifdiction of that court; and
alfo the common law of the realm (to every fubject
of right due) to derogate from and abridge, and
the due courfe of law to fubvert, and the iffues
and profits which to the faid lord the prefent
king thereof might happen, and which to his
royal crown efpecially belongeth to diminish, in
the faid court of our faid lord the prefent king,
of record there, held on
in the nineteenth

year of the reign of the lord the prefent king, before the bailiffs of the faid borough, according to the cuftom of the faid borough, from time whereof the memory of man is not to the contrary ufed and approved, levied his certain plaint against the faid A. in a certain plea of trefpafs upon the cafe, to the damage of the faid C. D. of fifty pounds: and the faid C. D. by pretence of the plaint aforefaid, in form aforefaid, levied and affirmed, then and there caufed and procured him the faid A. paffing within the jurifdi&tion of that court, to be attached and arrested, and compelled the faid A. to appear in the faid court, and the faid A. of and upon the premifes unjustly conftrained to answer. And thereupon in the fame court, held on the day of VOL. II.

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