A prohibition will also lie where a court attempts to extend its jurisdiction to parties over whom it has none, as where a court-martial inquires into the conduct of a person not a soldier or sailor; the Stannary courts, whore neither parties are tinners, nor the matter in question respecting tin, &e.
4. A prohibition may be obtained at the instance of either party to en ecclesiastical suit. In the case of a suit for tithes against a lessee it may be obtained by the reversioner. Where a court has no juris diction over the matter of the suit, a prohibition is grantable at the request of a mere stranger.
5. If a court has no cognisance of the matter of a suit, prohibition will lie immediately after appearance, and it may be obtained by either plaintiff or defendant at any future time, even after sentence, appeal, and affirmation ; or after judgment and execution, provided it appears by the proceedings that the court had no jurisdiction. When the court has cognisance of a cause, prohibition will not lie until the matter out of its jurisdiction has not only arisen, but is also clearly in progress of being tried. If the matter is then admitted by the litigant parties, the court is still entitled to certain cognisance of the suit. If not admitted, and these circumstances, though not appearing on the face of the proceedings, are duly brought forward before judgment, a prohibition will then lie. If, however, a prohibition is not then applied for, but the party submit to the trial in the court whore the suit has been commenced and judgment is pronounced, no prohibition will lie unless it appear on tho proceedings, not only that matter out of the jurisdiction of the court has ariseu;but also that the matter has been wrongly decided. These observations only apply to permanent courts, end where something still remains to be done. In the case of an occa sional court, as a court-martial, it would be impossible to carry the principle into execution.
6. A writ of prohibition is applied for by motion in court, which sets out the proceedings in the suit. If the proceedings arc not Buffi dent to show the want of jurisdiction in the oourt against which prohibition is prayed, suggestions must be added, verified by affidavit, showing such want of jurisdiction.
If the court grants a rule, the other party is heard in answer. The court may then decide, either to refuse the prohibitiod, or, if they incline to grant it, direct the party applying to declare in prohibition. The declaration must contain a concise statement of the grounds of the application, and conclude by praying that the writ may issue. To
this the other party may demur on the ground that no sufficient cause appears for a prohibition, or he may plead such matters as ho thinks proper to show that the writ ought not to issue, and conclude by praying that it may not issue. If matters of fact are put in issue, they are tried by a jury. Judgment is given either on the demurrer or after nonsuit or verdict. The party succeeding is entitled to the costs of these proceedings, and, if a trial takes place, the jury may assess chunages. If the court decide in favour of the party applying, the writ issues and forbids the court and other party from further proceeding. In each cases, if the ground of application was that the court had no jurisdiction at all in the suit, the writ of prohibition is final. But if the ground is that something had arisen not cognisable by the court, during the progress of a suit, concerning a matter pro perly within its jurisdiction, the prohibition is not final. In such case the question is referred to the proper tribunal for trial, and if found against the applicant, the suit may be then resumed. In either case, where the court decides in favour of the party against whom prohibition is prayed, or the verdict lies been afterwards in his favour, the court award, a consultation, as it is called, by which the cause is again remitted to the original court. If parties proceed after a writ of pro hibition has been obtained and served, they are liable to an attachment for contempt. No prohibition for the same matter lies after a con Imitation has been awarded upon the merits.
There can be no pleadings in a prohibition to the County Courts, the merits of which must be determined on the application for the writ.
(Comyns's Digest ; 2 Inst., 699 ; 3 Blackst'Com.,Mr. Kerr's ed., e. 7.) The right of the common-law courts to issue writs of prohibition, and the mode in which they exercised that right, have often been the subject of great dispute between the common-law judges and the ecele elastics. The latter have several times exhibited many articles of grievance before the parliament and privy council against the former. The most famous of these are the ' Articuli cleri; exhibited by Arch bishop Bancroft, in the name of the whole clergy, in the third year of tho reign of James I. They are given at length by Lord Coke (2 Inst., 699), with a full view of the nature of the controversy between the parties and the unanimous answers of the judges.