the defendant from continuing to print portraits from the said plates, it was held that the plaintiff was entitled to recover damages on both counts of his declaration, and was also entitled to an injunction(n). 1452 Injunctions and orders to stay proceedings.-If any action, suit, or proceeding is commenced, or prosecuted, in disobedience of a writ of injunction, rule, or order from the superior courts, or a judge thereof, the proceeding will be utterly null and void, and the parties prosecuting it will be liable to an attachment, 15 & 16 Vict. c. 76, s. 226. The court also will stay proceedings after order made, and before the writ of injunction is actually issued(o).

SECTION II.

OF THE REMEDY BY PROHIBITION FOR THE PREVENTION OF JUDICIAL WRONGS.

1453 The writ of prohibition is a writ issuing out of Chancery(p), or one of the superior courts at Westminster, directed to the judge or officers of an inferior court, prohibiting them from intermeddling with, or executing, anything of which, by law, they ought not to take cognizance. The object of the writ is to enforce the due administration of justice by keeping all inferior courts within the limits and bounds. of their several jurisdictions, as defined by the laws, customs, and statutes of the realm(g). Where an inferior court proceeds in a course properly within its jurisdiction, no prohibition can be awarded till the pleadings raise some issue which the court is incompetent to try. But where the foundation for the jurisdiction is itself defective, a prohibition may be applied for at once(r).

(n) Mayall v. Higby, 31 Law J., Exch. 329; 1 H. & C. 148; ante, pp. 56-58.

(0) Corbett v. Ludlam, 11 Exch. 450; 25 Law J., Exch. 25.

(p) See Re Bateman, L. R., 9 Eq. Ca. 660.

(q) Bac. Abr. PROHIBITION. Prohibitions del Roy, 12 Co. 63-61. See State v. Third District Court, 16 La. An. 185; Baldwin v. Cooley, 1 S. C. 236; Ex parte Smith, 34 Ala. 455.

(r) See Mayor of London v. Cox, L. R., 2 H. of L. Ca. 239. Before the writ will lie a plea to the jurisdiction must have been interposed in the court below and overruled. Hanger v. Keating, 26 Ark. 51. Ex parte Little Rock, 26 Ark. 52. Ex parte McMeechen, 7 Eng. 70. Unless it appears upon the face of the proceedings that the court below could have no jurisdiction. Arnold v. Shields, 5 Dana, 18. The writ lies to prevent the exercise of unauthorized power in a cause or proceeding of which the inferior tribunal has jurisdiction as well as where the entire cause is without the jurisdiction of such court. Quimbo Appo v. People, 20 N. Y. 531.

The writ of prohibition, therefore, from the Queen's courts at Westminster, still goes to the ecclesiastical courts(s), as well as to the courts of admiralty(t), courts-martial, county courts, courts baron, the ViceChancellor's court, the court of the Earl Marshal, the Lord Mayor's court, courts of quarter sessions, municipal councils, and to all magistrates, sheriffs, commissioners, and persons acting in a judicial capacity, to restrain their proceedings when they are acting, or are about to act, in excess of their jurisdiction(u). It lies also in certain cases to restrain the proceedings of courts of criminal jurisdiction, and will be granted to prevent a coroner holding an inquest from extending his inquiries beyond the proper limits of his office(v).

When the act sought to be prohibited is not a judicial act, a prohibition will not lie(w); but all acts based upon a decision judicial in its nature, and affecting either a public or a private right, are judicial acts; such as an order by church-building commissioners to stop up a footpath through a churchyard(x); or the apportionment of a countyrate by commissioners(y); or an order of sessions regulating the fees of the clerk of the peace(z).

1454 Prohibition before judgment.-Wherever the case is of such a nature as to show on the face of the proceedings a want of jurisdiction in the inferior court, it is the bounden duty of the superior court to issue the writ of prohibition in whatever stage of the proceedings below that fact is made manifest, either by the Crown or by any one of its subjects. The misconstruction of an Act of Parliament by an inferior tribunal, whereby it is about to do something which it is not authorized to do, is one of these cases; the enforcement of a rate or tax imposed without lawful authority is another(a).

When it appears from the very form of an information or plaint, and particulars of a cause of action in the inferior court, that the court has no jurisdiction in the matter, the party served with the process may at once apply for a prohibition, without entering any appearance, or

(8) 2 Inst. 598, 599.

(t) James v. Lond. and South-West. Rwy., L. R., 7 Exch. 187, 287.

(u) Bac. Abr., PROHIBITION(1). Birch, In re, 15 C. B. 743. Chabot, In re, 17 Law J., Q. B. 336. Church v. Inclos. Com., 31 Law J., C. P. 201. Mayor of London v. Cox, supra. (v) Reg. v. Herford, 29 Law J., Q. B. 249.

(w) Death, Ex parte, 18 Q. B. 647; 21 Law J., Q. B. 337. Reg. v. Salford, 18 Q. B. 687. State v. Clark County Court, 41 Mo. 44. Home Ins. Co. v. Flint, 13 Minn. 244.

(x) Reg. v. Arkwright, 12 Q. B. 960.

(y) Reg. v. Aberdare Canal Co., 14 Q. B. 854.

(z) Reg. v. Coles, 8 Q. B. 75.

(a) Burder v. Veley, 12 Ad. & E. 263. Veley v. Burder, ib. 311. White v. Steel, 13 C. B., N. S. 231; 31 Law J., C. P. 265. Foster v. Foster, 32 Law J., Q. B. 314.

taking any steps to defend himself in the court below(b), or he may appear and take the objection, and go for a prohibition, in case the judge rules against him. When the defect of jurisdiction is not made manifest at the commencement of the proceedings by the plaintiff himself, but depends upon certain questions of fact, the defendant may bring before the court the facts depriving it of jurisdiction, and object to any further proceeding in the matter, and go for a prohibition, if the judge comes to an erroneous decision upon the facts before him, and assumes to have jurisdiction when in point of law he has none(c).

Cases are to be met with where the courts have refused to grant writs of prohibition upon motion, where the question of the cause of action having arisen within or without the limits of a limited jurisdiction might be raised by plea in the court below, and the question, being one of fact, seemed proper for the decision of the inferior court, and there was no reason to suppose that it would come to a wrong conclusion and exceed its jurisdiction(d); but the court will grant the writ even in these cases, if it deems it advisable; and it is laid down that the writ ought to go in any stage of the proceedings below, if the superior court see sufficient reason to suppose that the inferior court is exceeding, or is about to exceed, its jurisdiction(e).

1455 Prohibition after judgment and execution.-"The king's courts at Westminster," observes Lord Coke, "being informed either by the parties themselves, or by any stranger, that any court, temporal or ecclesiastical, doth hold plea of that whereof they have not jurisdiction, may lawfully prohibit the same, as well after judgment and execution as before "(f). If goods seized in execution still remain in specie in the hands of the bailiffs, or the sheriff or officer of the court, the writ may command that they release the distress, and restore the goods to the party from whom they have taken them(g). But when goods seized under an execution no longer exist in specie in the hands of the officer, but have been sold, and the proceeds paid over to the execution creditor, the suit in the inferior court is at an end; everything

(b) De Haber v. Queen of Portugal, 20 Law J., Q. B. 489. Crompton J., Manning v. Farquharson, 30 L. J., Q. B. 22. Mayor of London v. Cox, supra.

(c) Ante, pp. 860-862. Jackson v. Beaumont, 11 Exch. 300. Hardy v. Walker, 23 Law J., Exch. 57.

(d) Joseph v. Henry, 19 Law. J., Q. B. 369. Reg. v. Twiss, L. R., 4 Q. B. 407; 38 L. J., Q. B. 228.

(e) Cox v. Mayor, etc., of London, 32 Law J., Exch. 285; 1 H. & C. 338; L. R., 2 H. of L. 239.

(ƒ) 2 Inst. 602. Kimpton v. Willey, 1 L. M. & P. 280.

(g) Fitz. Nat. Brev. 46a. Jones v. Owen, 18 Law J., Q. B. 8.

has been done that can be done, and no prohibition can then be issued or enforced, for there is nothing left to prohibit(h).

"If it appears," observes Lord Mansfield, "upon the face of the proceedings, that the court below have no jurisdiction, a prohibition may be issued at any time, either before or after sentence, because all is nullity; it is coram non judice. But where it does not appear upon the face of the proceedings, if the defendant below will lie by, and suffer that court to go on under an apparent jurisdiction, it would be unreasonable that this party who, when defendant below has thus lain by, and concealed from the court below a collateral matter, should come hither after sentence against him there, and suggest that collateral matter as a cause of prohibition, and obtain a prohibition against it after all this acquiescence in the jurisdiction of the court below "(i). 1456 Prohibition where appeal lies.-It is no ground for refusing a writ of prohibition to show that the party applying for it has a power of appeal, or has appealed, against the decision of the court below, for "the power of prohibition is in no case taken away by the privilege of appeal"(k).

1457 Prohibition to the ecclesiastical courts to restrain their proceedings in a matter or cause before them will be granted whenever it is shown that the court has done, or is about to do, something contrary to the general law of the land, or manifestly beyond the jurisdiction of the court; but not to correct mere irregularities of practice(l), or misconstruction of the canons of the church, in matters not affecting the rights and liberties of the subject at common law(m).

The principle on which the writ goes to the spiritual court, as stated by Blackstone(n), is the danger of a different decision of the same rights, and even of the same identical interests by different courts, "an impropriety, he observes, which no wise government can, or ought

(h) Denton v. Marshall, 32 Law J., Exch. 91. Poe, In re, 5 B. & Ad. 681. The writ has been granted against the sheriff and judgment creditor, to withhold the collection of a judgment rendered by a court having no jurisdiction, although the court had ceased to exist, and the sheriff had resigned, the execution having been issued but not returned. Ingersoll. Buchanan, 1 West Va. 181.

(i) Buggin v. Bennett, 4 Burr. 2037. Yates v. Palmer, 1 D. & L. 288. Ld. Abinger, Roberts v. Humby, 3 M. & W. 122; ante, pp, 1145-1146.

(k) Ld. Denman, C.J., Burder v. Veley, 12 Ad. & E. 263. Jackson v. Beaumont, 11 Exch. 300; 24 Law J., Exch. 301. To the contrary, People v. Wayne, 11 Mich. 393. People v. Clute, 42 How. (N. Y.) 157. People v. Marine Court, 36 Barb. 341. State v. La Crosse, 11 Wis. 50. Ex parte, Smith, 23 Ala. 94.

(7) 2 Inst. 599-617. Bull, N. P. 218. Gould v. Capper, 5 East, 365. Burder v. Veley, 12 Ad. & E. 261. Story, Ex parte. 8 Exch. 201; 22 Law J., Exch. 33. Richards. Dyke, 3 Q. B.

256. Home v. Camden, 2 H. Bl. 533, per Eyre, C.J. (m) Titchmarsh v. Chapman, 1 D. & L. 732.

(n) Vol. III., pp. 112, 113.

to, endure, and which is, therefore, a ground of prohibition "(o). The writ is granted not only where a plain and manifest excess of jurisdiction has been claimed or exercised by the court, but also in cases where, although the subject-matter is of ecclesiastical cognizance, yet the party would receive some wrong or injury by the course of proceeding in the ecclesiastical court, or be deprived of some benefit or advantage to which the common or statute law would have entitled him. One class of those cases is, where such court is proceeding to try a matter which is triable only by the common law, as a custom, prescription, or modus. Another, where, in a case of spiritual cognizance, a collateral question arises which is not properly of spiritual cognizance, in which case the courts of common law oblige the ecclesiastical court to admit such evidence as the common law would allow(p); as when a lease is offered to be proved in an ecclesiastical court, and is rejected because by their law two witnesses are required. Another, where the spiritual court takes upon itself the construction of statute law, and decides contrary to the construction which is put upon the statute by the temporal courts. And many instances are found where the ecclesiastical courts have been prohibited from enforcing church-rates, although that was a matter within their jurisdiction (g). But all compulsory proceedings for enforcing such rates are now abolished, as has been previously mentioned.

A prohibition will also go to the ecclesiastical courts to prevent them from taking cognizance of any suit or proceeding for defamation and slander, or for brawling in a church or churchyard; which were formerly matters of ecclesiastical cognizance(r), but have now been removed from the jurisdiction of the spiritual courts(s).

1458 Notwithstanding an appeal entered in a superior court of ecclesiastical jurisdiction, the writ of prohibition will go to the inferior spiritual court to stop the appeal, and all further proceedings in the matter; for "there is no reason," observes Lord Denman, "for driving the subject to the expensive process of appealing from one spiritual court to another, to abide the chance of a repetition of the error, which, if committed, can at last be rectified only by prohibition, and may be

(0) Burder v. Veley, 12 Ad. & E. 259.

(p) Breedon v. Gill, 1 Ld. Raym. 219, 222.

(q) Jeffrye's case, 5 Rep. 67 b. 17 Vin. Abr. PROHIBITION, H. pl. 4. 2 Roll. Abr. ib. pl. 5; ib. K. pl. 1, 10. Blank v. Newcomb, 12 Mod. 327. Rogers v. Davenant, 1 Mod. 194; 2 Mod. 8. Anon. 12 Mod. 416. Veley v. Burder, 12 Ad. & E. 311.

(8) 18 & 19 Vict. c. 41; 23 & 24 Vict. c. 32; but brawling by persons in holy orders is still within the cognizance of the spiritual courts. Ibid.