the reference: it was held that he was entitled to a prohi- CHAP. XXIII. bition (f). Where, on the hearing, a party objects to the jurisdiction of the county court, he does not waive his right to a writ of prohibition by obtaining from the judge a statement of a case for appeal (g). writ. Setting aside Writ.]-The 12 & 13 Vict. c. 109, pro- Setting aside vides by sect. 39, that in every action, suit and proceeding pending, or which shall be commenced in the common law side of the Court of Chancery, or in the superior courts of common law, the judges thereof respectively may hear and determine all such matters or applications arising in or incident to any such action, suit or proceeding as before that act might have been determined by the Lord Chancellor and the Master of the Rolls, or either of them, and also may perform all such business, matters and things in, about, touching or concerning any action, suit or proceeding on the common law side of the Court of Chancery as by virtue of any orders or regulations for the time being in force by virtue of that act might be performed by such judge, subject, however, and according to the provisions of that act, and the laws, rules and regulations for the time being in force for the regulation of the said court, and the practice and proceedings thereof. A writ of prohibition issued out of the Petty Bag Office in vacation on an ex parte affidavit without leave of the court or of a judge, and disclosing no sufficient ground of prohibition on the face of it, will be set aside on motion (h), which motion may be made in either of the superior courts at Westminster. The Court of Exchequer Chamber, however, is not one of the superior courts of common law within the statute (i). It is no answer to such an application, that the attorney of the applicant had not entered his name and address in a book at the Petty Bag Office as required by the 12 & 13 Vict. c. 109, s. 44 (k). But a prohibition issued out of the Petty Bag Office, which upon its face appears to be regular, and which contains a good ground for prohibition, will not be set aside though issued ex parte (1). (f) Knowles v. Holden, 24 L. J., Exch. 223. (g) Beaumont v. Jackson, 11 Exch. 300; S. C., 24 L. J., Exch. 301. (h) In re Baddeley, 4 Exch. 508; Still v. Booth, 1 L. M. & P. 440. (i) Garrard v. Tuck, 8 Com. B. 259. (k) Re Baddeley, ante. (1) Swain v. Cor, 1 Cox, Macrae & Herts, 362. PART I. Effect of, on county court. By sect. 22 of the 13 & 14 Vict. c. 61, any rule or order for a writ of prohibition made by any judge of a superior court, or any writ issued by virtue thereof, may be discharged or varied, or set aside, by the court, on application made thereto by any party dissatisfied with such rule or order. A writ of prohibition will be set aside if it does not show on the face of it the ground upon which such court is alleged to have acted without jurisdiction (m). Before the 19 & 20 Vict. c. 108, the next proceeding after a writ of prohibition was by declaration and pleadings (n), but by sect. 42 of that act, the rule or order is made final. Effect of, on Proceedings in County Court.]—The proceedings in granting of a rule nisi or summons for a prohibition, will, if the court or a judge so direct, operate as a stay of proceedings in the cause until the determination of the rule, or until the court or judge otherwise orders, and the judge of the county court must from time to time adjourn the hearing of the cause to such day as he thinks fit. If, however, a copy of the rule or summons is not served by the party who obtained it on the opposite party, and on the registrar of the county court, two clear days before the day fixed for the hearing, the judge of the county court may order the party who obtained it to pay the costs of the day or part of them, unless the superior court or judge has made some order respecting them (0). Error. Where a writ of prohibition has been granted on an ex parte application, and the party who obtained it does not lodge it with the registrar, and give notice to the opposite party that it has issued two clear days before the day fixed for hearing the cause, the judge of the county court may order him to pay the costs of the day or part of them; unless the superior court or judge has made some order respecting them (p). Error.]-It has been determined by the House of Lords that no writ of error will lie upon the refusal of a prohibition; but when a consultation is awarded it is (m) In re Clive, C. C. C. 375. (I.); 1 Wm. Saunders, 136 b; Hall v. Maule, 4 A. & E. 283. (o) 19 & 20 Vict. c. 108, s. 40. (p) Ib. s. 41. with an ideo consideratum est, and then a writ of error CHAP. XXIII. will lie (q). to act. Order requiring Judge or Officer to act.]-Before the Order requiring 19 & 20 Vict. c. 108, if the judge or officer of a county judge or officer court improperly declined to exercise jurisdiction or do any act, the mode of compelling him to act was by writ of mandamus, issued by the Court of Queen's Bench (r). But by that act it is provided that no mandamus shall issue to a county court, but that any person requiring the judge or any officer of a county court to do any act relating to the duties of his office, may apply to any superior court, upon an affidavit of the facts, for a rule or summons calling upon the judge or officer of a county court, and also the party to be affected by such act, to show cause why such act should not be done. If, after the service of such rule or summons, good cause is not shown, the superior court may by rule or order direct the act to be done; and the judge or officer of the county court, upon being served with the rule or order, must obey it on pain of attachment. The superior court may, in any event, make such order with respect to costs as seems fit (s). The decisions are conflicting upon the question, whether the superior court has power to deal with the costs in the court below. The Court of Exchequer (t) held that they had power to discharge an order for costs made by the county court judge. The Court of Queen's Bench (u), dissented from this view, and while making an order directing the judge to proceed, held that they had no power over the costs below. The Court of Common Pleas, in a still later case, have held upon a very similar section, relating to appeals, that they had power to deal with the costs in the inferior court (v). A rule under this provision will not be granted where the judge of the county court has acted judicially, though (q) The Bishop of St. David's Case, Ld. Raym. 545. (r) Bac.Abridg., Mandamus (D.). See an instance of mandamus to the judge of a county court, R. v. Richards, 2 L. M. & P. 263; S. C., 20 L. J., Q. B. 351. (s) 19 & 20 Vict. c. 108, s. 43, p. 406. By this section the above power was given to the superior courts and to a single judge thereof, but by 21 & 22 Vict. c. 74, s. 4, the (t) Whitehead v. Procter, 3 H. & (u) Churchward v. Coleman, L. R., 2 Q. B. 18. (v) Gage v. Collins, L. R., 2 C. P. 381, ante, p. 245. PART I. wrongly. Where on the day appointed for the first examination of an insolvent, an application was made for leave to withdraw the petition on the ground that the date on which it was presented did not appear upon it, and the judge of the county court, upon the application being opposed, refused it, and adjourned the examination of the insolvent sine die; it was held that the county court judge having adjudicated upon the matter, a superior court had no power to order him to remove the petition from the file, or to dismiss it, or name a day for the hearing (r). If a superior court refuses to grant an order as above, no other superior court may grant it; but the party may make a fresh application to the same court on different grounds (y). (x) In re Corbett, 4 H. & N. 452; (y) 19 & 20 Vict. c. 108, s. 44. S. C., 28 L. J., Exch. 254. |