4 Ark. 537 | Ark. | 1842
By the Court,
Writs of prohibition were granted in England, both in the common pleas and king’s bench. Burke's case, Vaugh. 157, 209; Langdale's case, 12 Co. 58, 109. It lay where an inferior court was proceeding without jurisdiction. Pringe vs. Child, Moore 780; Martin vs. Archbishop of Canterbury, And. 258; or where the jurisdiction belonged', properly, to another court; Edwards' case, 13 Co. 9; Case of Prohibition, 12 Co. 76; or when the inferior court transcended its jurisdiction, by holding plea for too large an amount; Coats vs. Suckerman, 1 Ro. 252; or where a plaintiff had • one demand, and split it into several actions, so as to give an inferior court jurisdiction; Catchmade’s case, 6 Mod. 91. So, where the judges proceeded in cases, where they were prohibited by act of parliament. Porter vs. Rochester, 13 Co. 4. The writ would not liftjo court having cognizance of the cause, or jurisdiction of the subject, on a suggestion of erroneous proceeding. March. 92, Pl. 152. The remedy, in such cases, was by appeal. Smith vs. Mayor of London, 6 Mod. 78; Guillan vs. Gill, 1 Lev. 164. The rule was, at common law, that no prohibition lay to an inferior court, in á cause arising out of their jurisdiction,-until that matter had been pleaded in the inferior court, and the plea refused. Cook vs. Liceuse, I Lord Raym. 346; Wayman vs. Smith, 1 Sid. 464; 1 Mod. 64, S. C.; 1 Mod. 81; Marriott vs. Shaw, Com. 278; Mendyke vs. Stint, 2 Mod. 272. It must appear, in the suggestion, that the plea was verified, and ten-dercd in person, during the sitting of the inferior court. Sparks vs. Wood, 6 Mod. 146; Clerk vs. Andrews, 1 Show. 12. And there is no precedent of a prohibition, quia timet. The writ was obtained on a suggestion, without which no prohibition lies to an inferior court. Bishop vs. Corbet, 1 Lev. 253; Plaxton vs. Honore, 12 Mod. 435.
The suggestion stated the nature of the case, the proceedings in the court below, and concluded with a prayer ibr prohibition. If the motion was founded on matter of suggestion only, an affidavit of the truth of the matter suggested, was necessary; 10 Mod. 387; Burdett vs. Newell, 2 Ld. Raym. 1211; Salk. 549; but it was otherwise, where the truth of the suggestion appeared on the face of the proceedings below, though after judgment. Godfrey vs. Liewellin, Salk. 549; Selby vs. York, C. T. Hard. 392. Upon the suggestion being filed, the court granted a rule to show cause why the writ should not issue, which was afterwards made absolute, or discharged, according to the circumstances of the case. If it was a nice or doubtful case, the court made the rule absolute, and directed the party applying to declare, which he did, by serving the other side with the rule, without taking out a writ, itnd then delivering his declaration. If the defendant then submitted, he might refuse the declaration, and the court would then, on ¿is' application, stay the proceedings, without costs, because he acknowledged that the rule ought to go, and declined relying on the proceedings below; 1 Saund. 136, n. 1; Bull. N. P. 218; Gegge, vs. Jones, 2 Str. 1149; or the defendant might insist upon a declaration. Bu t if the court was of opinion against a prohibition, the party applying had nS right to declare. Rex vs. Bishop of Ely, 1 W. Black. 81; S. C. 1 Burr. 198.
The inferior court was bound to desist immediately, on the application for a prohibition, and the court above look notice of their practice to do so; and would take care there should be no further proceedings, by attaching the judge of the inferior court, for his contempt in going on. 1 Saund. 136, n. 2. By the declaration, the party who applied for the prohibition, suing qui lam, complained of the party proceeding against him in the inferior court, of a plea, wherefore he prosecuted a plea in the court below, &c., after a prohibition to the contrary thereof, directed and delivered to him, for this, to wit: that whereas, &c., setting forth all the facts, the objection to the jurisdiction made in the court belov», and the refusal'of the court to admit the plea and allegation, concluding that the defendant is endeavoring and' contriving to obtain, or has judgment and condemnation, though the writ of prohibition had been directed delivered to him on, &c.,to the contrary, in contempt of the State, and to the damage of the plaintiff, &c., concluding with the common ad damnum. Crouch vs. Collins, 1 Saund. 136; Lilly's Entries, 316, 328.
This declaration commenced an action, which was, in notion of law,, founded upon attachment against the defendant, for a contempt, in proceeding after a writ of prohibition had been' served upon him. But it was a mere fiction, used for the purpose of trying, with greater certainty, whether the inferior court ought to proceed further in the suit. The defendant was not, in fact, served with any writ of prohibition, and, therefore, had not, in truth, incurred any contempt for a disobedience of it, but this matter was alleged for form’s sake, to entitle the plaintiff to demand damages of the defendant, and thereby to give the action the requisites of a suit. Notice was necessary to be given to the defendant, before his appearance. State vs. Allen, 2 Iredett. 183. He then either demurred or pleaded to the declaration, but, in either event, he traversed the proceeding, after prohibition servefjl, and the contempt, and commenced his plea or demurrer to the material points, in order to have a consultation in this behalf, and prayed judgment and a writ of consultation. 1 Saund. 136.
Whether the defendant pleaded or demurred, no verdict was taken on the traverse, as to the further proceeding and the contempt. ' It was immaterial, like the finding as to the vi et armis, in trespass. Stratford vs. Neale, 1 Str. 482; S. C. 8 Mod. 1. If there was a verdict for the plaintiff, and if, upon demurrer, the court were of opinion that there was not sufficient ground for a prohibition, judgment, was given for the plaintiff, and both the defendant and the inferior court were prohibited from going any further. It was then, and not till then, that the writ of prohibition actually issued. 1 Saund. 136. The writ was directed to both the court and the party, and commanded the one not to hold, and the other not to follow the plea. 1 N. Hill, 200.
If, on the other hand, the verdict was for the defendant, or the court, upon demurrer, was of opinion that there was no ground for a prohibition, then a writ of consultation was awarded; and where this writ was awarded on the merits, there could never be another prohibition upon the same suggestion. This writ was called the writ of consultation, because, upon consultation had, the judges found the prohibition to be ill founded, and therefore, by this writ, they returned the cause to its original jurisdiction, to be there determined, and com.manded the inferior court to proceed and determine it, the prohibition to the contrary notwithstanding. 1 Saund. 136, n. 5; Lilly's Entries, 562; 1 Keb. 286; 8 Mod. 3; 2 Keb. 404, pl. 17. If the declaration varied from the suggestion, it was bad. Harrows' Case, 7 Mod. 114; Gomersall vs. Bishopp, 1 Lecon, 128. Both parlies in prohibition being actors, there might be traverse upon traverse. Fort. 350. No traverse, however, could be taken on ah allegation that the court below refused the plea. Moore, 425; Stratford vs. Neale, Str. 483.
If there was no plea or demurrer in due time, judgment went by nihil dicit. Turner vs. Rainier, 12 Mod. 447.
Such we have ascertained, after considerable research, to have been the common law doctrine and mode of proceeding. And as we have no statute upon the subject, the common law, with all its incidents, is, of course, as far as applicable, in force here, and it only becomes necessary so to mould the remedy, as to render it available under our system of jurisprudence, preserving, as far as practicable, all its common law attributes.
We understand, then, that a party wishing to avail himself of this writ, in our courts, must, if the facts are not presented by the record of the inferior court, make the proper suggestion to the inferior tribunal, setting forth all the material facts upon which he relies, with the proper allegations, and if the facts do,not appear on the record, verily the truth of them by affidavit. Upon the presentation of the suggestion, a rule should be entered upon the opposite party, requiring'him to show cause, upon a given day, in’ court, why thg writ should not issue; which rule, when so entered’ and served upon the inferior court and the party, shall stay all further proceedings in the case; and the court will then, in their discretion, make it absolute, or discharge it, and, if the former, direct the party to declare, without issuing the writ. If the defendant, upon the suggestion being presented, admits the facts, the rule will go, and the writ issue. But if he insists upon a declaration, the case then takes its ordinary course, and must be decided upon demurrer, or plea to the merits, and the writ be granted, or the cause remanded to its original jurisdiction, to be there proceeded in and determined.
As it is a qui tam action, under our statute a bond for costs must be filed, before or upon the filing of the declaration, which is the commencement of the action,
In the case now before us, and in which the party asks a writ of certiorari to bring up the proceedings of the circuit court, it is evident there has been a total disregard of all the principles which govern the mode of proceeding upon prohibition, and that until there has been a final disposition of it by the circuit court, the appellate jurisdiction'of this court does not attach. Upon final judgment, a writ of error will lie, as in ordinary cases.
The application for the writ of certiorari must, therefore, be refused.'