PROHIBITION, a writ to prohibit a court and parties to a cause then depending before it from further proceeding in the cause. It will be convenient to define,-1, out of what courts it issues; 2, to what courts it may be addressed ; 3, under what circumstances it is grantable ; 4, at whose instance it may be obtained; 5, at what time it may be obtained ; 6, the form and incidents of the proceeding.
1. A writ of prohibition usually issues from one of the three superior courts of common law at Westminster. It may issue from the Common-Law Court at Lancaster, and from the common-law side of the Court a Chancery.
2. It may be addressed to any other temporal court, such as to the Admiralty Courts, to Courts-Martial, to any inferior court in a city or borough, to the Duchy or County Palatine Courts, to the &winery Courts, to the Commissioners of Appeals a Excise, to any court by usurpation without lawful authority, or to a court whose authority has expired. When any one has a citation to a court out of the realm, a prohibition lies to prevent his answering. It seems also that it might issue to the Court of Exchequer, and to the Court of Common Pleas ; but not to the Court of Chancery ; nor is there any instance of a pro hibition to the King's Bench. It may be granted by any of the three superior common-Law courts to any spiritual court, and by the common-law courts of Chester and Lancaster to the spiritual courts within the county palatine and duchy.
3. The writ is grantable in all cases where a court entertains matter not within its jurisdiction; or where, though the matter is within its jurisdiction,' it attempts to try by rules other than those recognised by the law of England. Matter may be said to be not within the juris diction of a court in two senses : 1, when the subject-matter enter tained is in its nature not cognisable by the court ; 2, where the subject-matter is in its nature cognisable by the court, but lies out of the local district where only that court has jurisdiction ; or, in the case of a court whose jurisdiction is general, when the subject-matter lies in a local district exempt from the general jurisdiction of the court, or where the subject-matter of the cause relates to persons over whom the court has uo jurisdiction.
A prohibition will lie—to the courts of Admiralty, if they entertain questions of a contract made or to he executed within the kingdom; to the county court, if an action be brought in it on a judgment in one of the superior courts; to a spiritual court, if it takes cognisance of any plea concerning a title to an advowson, or an office, or goods, money, or chattels; and this applies even in die case of goods or orna ments given to a church, or matters of a criminal nature punishable only temporarily : in short, as it has been said, anything for which a remedy exists at common law.
Prohibition lies equally both where the matter of the suit is not cognisable by the court, and where, though the substance is cognisable, matter arises during the progress of it, and is clearly about to be tried, over which the court has uo cognisance. Thus, if in a cause properly cognisable by a spiritual court, a question arises, and is necessarily about to be tried, as to the existence of a custom, or a prescription, or the limits of a parish, or where in a suit for tithes there is plea of a module or that the lands are discharged by etatute, or tithes aro chimed of things for which no tidies are due, or the defendant makes Ede by lease, fie., a prohibition will lie immediately. And a pro hibition is in all cases grantable where a court allows illegal or disallows legal evidence, as where the Commissioners of Appeals for the Excise determine by the minutes of evidence taken by a justice of the peace, instead of examining the witnesses tied veer, or a spiritual court disallow! proof of payment, &c., because proof of it ie made only by a single witness, or where it has misconstrued an Act of Parliament, or disallows an award when it is good by law.