PART I. Application for, when and how made. by certiorari and is still pending (b). Where a plaint was brought for trespass and false imprisonment, but the judge of the county court in giving judgment used expressions as if he were giving damages for a malicious prosecution, in which case the court would not have had jurisdiction, the Court of Queen's Bench held, that, although that might form a good ground for a motion for a new trial, they would not grant a prohibition (c). If the question whether the court has jurisdiction depends upon how a particular fact is found, a superior court will not grant a prohibition so long as that fact has not been found one way or other by the county court, for till then it cannot be said that he has improperly assumed jurisdiction (d). The Application for, when and how made.]-A prohibition may be obtained by the defendant as soon as any proceedings have been taken against him in the inferior court, and there is no occasion for him to wait till he has pleaded to the jurisdiction and the plea has been overruled (e); for a prohibition may be granted upon the request of a stranger as well as of the defendant himself, the reason being, that when an inferior court exceeds its jurisdiction, it is chargeable with a contempt of the crown as well as a grievance to the party (f). It may also issue in all cases where the want of jurisdiction appears on the face of the proceedings, so long as anything remains to be performed, that is, so long as there is anything which can be prohibited; for, as has been said, the argument, that, when the sentence was final and executed, the court could not grant a prohibition, for obvious reasons requires to be narrowly watched, otherwise the court would give effect to unlawful proceedings merely because they were brought to a conclusion (g). has been held that the defendant was not too late in his (b) Edwards v. Rogers, 19 L. J., Exch. 149; S. C., 14 Jur. 91. (c) Chivers v. Savage, 5 E. & B. 697; S. C., 25 L. J., Q. B. 85. See, however, Hunt v. North Stafford Railway Company, 2H. & N. 451. (d) Re The Skipton Industrial Cooperative Society v. Prince, 33 L. J., Q. B. 323. (e) Sewell v. Jones, 19 L. J., Q. B. 372; S. C., 15 Jur. 153, per Wightman, J.; Byerley v. Windus, 5 B. & C. 1; S. C., 7 D. & R. 564; De (f) Ede v. Jackson, Fortescue, 315; Wadsworth v. Queen of Spain, 17 Q. B. 171; S. C., 20 L. J., Q. B. 488. (g) Per Lord Denman in Re The Dean of York, 2 Q. B. 40. application when execution had issued and a levy had been CHAP. XXIII. made, but the goods had not been sold (g). When, however, the sentence has been completely executed the writ will not be granted, upon the ground that there is nothing to prohibit-thus, on a writ of partition a prohibition was refused on the ground that the partition had been made and possession given accordingly; for there was no person to be prohibited, and possession is never disturbed (h). So, on a motion for a rule to show cause why a prohibition should not issue to the judge-martial and advocate-general of his Majesty's forces to restrain the execution of the sentence of a court martial, the court refused the rule, because the sentence had been already carried into execution (i). But in a case which arose under sect. 122 of the 9 & 10 Vict. c. 95, where a mortgagor had obtained a warrant of possession on a judgment in the county court; but the relation of landlord and tenant did not, in truth, exist, the defendant obtained a rule nisi for a prohibition the day before the execution of the warrant of possession, and the court made it absolute, with a clause of restitution, although it was not served on the plaintiff until after the execution of the warrant of possession. But in that case the defendant's attorney had protested at the trial against the jurisdiction, and upon his expressing his intention of applying for a prohibition, the judge thereupon ordered possession in seven days instead of a month (j). The question whether a prohibition will be granted after sentence, where the want of jurisdiction does not appear on the proceedings, is one upon which inconsistent opinions have been expressed (k). But the true view must be taken to be that stated by Mr. Justice Willes, in delivering the opinion of the judges in the House of Lords in Mayor of (g) Kimpton v. Willey, 1 L. M. & P. 280; S. C., 19 L. J., C. P. 269; 14 Jur. 762; Arnott v. Dowsett, 1 Cox & Macrae, C. C. Cases, 118, Q. B., Com. Dig. Prohib. (D.); 2 Inst. 602; Gorham v. Bishop of Exeter, 15 Q. B. 52; S. C., 19 L. J., Q. B. 281; Roberts v. Humby, 3 M. & W. 120; Marsden v. Wardle, 3 E. & B. 695; S. C., 23 L. J., Q. B. 263. (h) Hall v. Norwood, 1 Sid. 165; and see per Maule, J., Kimpton v. Willey, 1 L. M. & P. 280; S. C., 19 L. J., C. P. 269; 14 Jur. 762; Re Denton v. Marshall, 1 H. & C. 654; S. C., 32 L. J., Exch. 89. P.N. (i) In re Poe, 5 B. & Ad. 681; Kimpton v. Willey, 1 L. M. & P. 280; S. C., 19 L. J., C. P. 269; 14 Jur. 762. (j) Jones v. Owen, 18 L. J., Q. B. 8; S. C., 13 Jur. 261. (k) Pears v. Williams, 2 L. M. & P. 515; S. C., 6 Exch. 833; 20 L. J., Exch. 381; Robinson v. Lenaghan, 2 Exch. 333; Roberts v. Humby, 3 M. & W. 120; Ricardo v. The Maidenhead Local Board of Health, 2 H. & N. 257. According to the latter case the absence of jurisdiction ought to be free from doubt to induce the court to interfere after judgment. S PART I. London v. Cox (1). "There is a distinction after sentence between a patent and a latent defect, for if the party below, whether plaintiff or defendant, thinks proper, instead of moving for a prohibition, to proceed to trial in the special or inferior court and is defeated, then if the defect be of power to try the particular issue only (defectus triationis as it has been called), the right to move for a prohibition is gone. If the defect be of jurisdiction over the cause (defectus jurisdictionis) and that defect be apparent upon the proceeding, a prohibition goes after sentence. If it be not apparent, but the party, instead of moving for a prohibition, pleads in the special or inferior court the facts ousting the jurisdiction, and such court improperly decides that it has jurisdiction, he may, notwithstanding such decision, upon satisfying a superior court that it was erroneous, obtain a prohibition. Where, however, the defect is not apparent, but depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the court below, and he has thought proper, without excuse, to allow that court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the right to grant a prohibition in respect of the right of the crown is not taken away, for mere acquiescence does not give jurisdiction, yet considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right, is not of course, the court would decline to interpose, except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant." It is clearly settled, that where a defendant appears and makes no objection to the jurisdiction of the court while the case is proceeding, nor till after payment of damages and costs, it is too late to apply for a prohibition, even although he had no opportunity of applying earlier to the superior court, unless the want of jurisdiction appears on the face of the proceedings (m). If an objection to the jurisdiction is taken in the inferior court, the judge ought to enter it on the proceedings, in order that the superior court may see if there is ground for prohibition (n). (7) L. R., 2 H. of L. 239, 282. (n) Per Parke, B., in Pears v. Wilson, 20 L. J., Exch. 383. Formerly the party aggrieved in the court below applied CHAP. XXIII. to the superior court, setting forth the nature and cause of complaint, in being drawn ad aliud examen, by a jurisdiction, or manner of process, disallowed by the laws of the kingdom; and this used to be done by filing as of record what was called a suggestion, containing a formal statement of the facts; but now, by the 1 Will. 4, c. 21, it is provided that it shall not be necessary to file any suggestion, but that an application for a writ of prohibition may be made by affidavits only, that is, in the ordinary way by motion for a rule to show cause; upon which, if the matter alleged appear to the court, upon the showing cause, to be sufficient, the writ of prohibition immediately issues, commanding the judge not to hold, and the party not to prosecute the plea. A writ of prohibition cannot (at least without special circumstances) be moved for on the last day of term (n). The affidavits, as in ordinary cases of motions to the court, must state clearly and distinctly the facts which show that the application should be granted, and it must appear affirmatively that the inferior court has gone beyond its jurisdiction (o). So, where the judge has jurisdiction to inquire into the objection, the affidavits must show that it was substantiated before him (p). They must be entitled simply in the court, and not in the name of the cause, as there is at that time no such cause in court; and if that objection is made on showing cause, the court will not allow them to be re-sworn (q). An order for a prohibition will not be granted unless there be a suggestion or affidavit filed as a ground for the order (r). Formerly, if a prohibition were refused by one court, a fresh application might be made to every court or judge of one of the courts of common law in Westminster Hall (s); but by the 19 & 20 Vict. c. 108, s. 44, it is provided that if an application for a prohibition is refused by one court or judge, no other court or judge may grant it. This does not, however, prevent an appeal from the decision of a judge to the full court, or a second application to the same court or judge on different grounds (t). A motion to set aside a judge's order for a prohibition (n) 1 Tidd, 498; Thorne v. Simmons, 9 C. B. 223. (0) Per Wilde, C. J., in Kimpton v. Willey, 1 L. M. & P. 280; S. C., 19 L. J., C. P. 269; 14 Jur. 762. (p) Kimpton v. Willey, ante. (q) Ex parte Evans, 2 Dowl., N. S. 410. (r) Harte v. Byrne, 1 Irish C. L. (s) Le Caux v. Eden, Dougl 620. PART I. Waiver. cannot be made later than the term next succeeding the order (u). Waiver.]—In cases where the want of jurisdiction does not appear on the face of the proceedings, even although the court originally had no jurisdiction, the defendant may, by lying by and acquiescing in the proceedings, under ordinary circumstances, be considered to have waived any objection (x); thus, if the question of title to an office is not raised at the hearing of a plaint, but the party is taken to be duly appointed (y), or if title to corporeal or incorporeal hereditaments is admitted (z), or if the defendant appears and gives notice of the statute of limitations (a); so where the entry of the judgment of the county court shows that a set-off was allowed by consent (b); so where the plaintiff was nonsuited at the first trial, with leave to move to set aside the nonsuit, no leave being reserved to enter the verdict at the next court day, the defendant having duly received notice that the plaintiff would apply to set aside the nonsuit and enter the verdict, which was accordingly done: it was held, that as he did not attend and oppose the motion, he was not entitled to a prohibition (c). But if a plea is put in to avoid judgment, and, before trial of the issue on that plea, and within a reasonable time, an application is made for a prohibition, there is no waiver (d). It has been said, that if, in a plaint for tolls in the county court, no objection was there taken to the jurisdiction, the defendant might still apply for a prohibition; for the admission of a party in such a case cannot give jurisdiction (e). Where also the parties to a plaint appeared before the judge, and consented to a reference without objecting to the want of jurisdiction, but one of them during the progress of the reference objected to the jurisdiction of the arbitrators, on the ground that title to land came in question, and the arbitrators proceeded with (u) Jordan v. Wilcoxon, 3 E. & B. 193. This case was decided upon the general rule applicable to all such applications. (x) Horne v. Earl Camden, 2 H. Black. 533; R. v. Clarke, 6 Q. B. 349; Mayor of London v. Cox, L. R., 2 H. L. 239, 282; per Willes, J. (y) Per Erle, J., Stevenson v. Stickle, 13 Jur. 1103; Chesterton v. Farlar, 7 A. & E. 713. (*) In re Knight, 1 Exch. 802. 257. (b) Winsor v. Dunford, 12 Jur. 629. (c) Crowe v. Hunt, Cox & Macrae, 153, B. C., Wightman, J. (d) Wadsworth v. Queen of Spain, 20 L. J., Q. B. 488. (e) Per Erle, J., in Wadsworth v. Queen of Spain, 20 L. J., Q. B. 493. |