Entry of Award.]-The award of the arbitrator, arbi- CHAP. XXII. trators or umpire, when made, is entered as the judgment Entry of in the cause, and is as binding and effectual as if given by award. the judge; but, at the first court held after the expiration of one week after the entry of the award, the judge may set it aside, or, with the consent of both parties, may revoke the reference and order another (ƒ). falsely before him could not be indicted for perjury. See R. v. Hallet, 20 L. J., Mag. Cas. 197. (f) 9 & 10 Vict. c. 95, s. 77, p. 397. What courts may grant a prohibition. THE writ of prohibition is a writ issuing out of the superior courts to restrain any inferior courts, within the limits and bounds of their several jurisdictions prescribed to them by law. It is granted in all cases where an inferior court exceeds its powers, either by acting where it has no jurisdiction, or where, having a primary jurisdiction, it takes upon itself the decision of something not included within its jurisdiction (a). There was formerly great difference of opinion whether this writ was discretionary, or to be granted, ex debito justitiæ; but it is now clear that at the suit of the party aggrieved it is of right, though discretionary in the sense that, from the circumstances of the case, the courts may exercise a legal not arbitrary discretion (b). And consequently, when a party establishes to the court facts upon which an application is properly founded, whether appearing on the face of the proceedings or not, he is entitled to the writ as of right, as in the cases of mandamus and quo warranto (c). What Courts may grant a Prohibition.]—Any one of the superior courts of common law at Westminster may (a) 2 Inst. 601; F. N. B. 40; 12 Rep. 65; Bac. Ab. tit. Prohibition. (b) Bac. Ab. Prohibition (B.) and cases there cited. Mayor of London v. Cox, L. R., 2 H. of L. 239, 278. See the opinion of the judges de livered by Willes, J., which contains a great body of learning on the Law and Practice of Prohibition. (c) Jackson v. Beaumont, 11 Exch. 300; Mayor of London v. Cox, ubi supra. award a prohibition to the county courts, so also may the CHAP. XXIII. Court of Chancery (d); but until recently the former courts could only grant it in term time, while the latter, which sits also in vacation, might issue it either in term time or in vacation (e); it seems, however, that it will not entertain such applications in term time, as they come more appropriately under the cognizance of courts of law (f). The writ from Chancery appears not to be returnable, but if disobeyed that court grants an attachment returnable in the Queen's Bench or Common Bench (g). And now by the 12 & 13 Vict. c. 109, ss. 26, 27, 28, a writ of prohibition may issue out of the Petty Bag Office of the Court of Chancery in vacation as well as in term time (h), and by the 13 & 14 Vict. c. 61, s. 22, any judge of any of the superior courts of common law may, as well in term time as in vacation, hear and determine applications for writs of prohibition directed to the judges of the county courts, and may make such rules or orders for the issuing of such writs as might have been made by the court. If the inferior court has no jurisdiction, a writ of prohibition may be granted even on the application of a stranger (i). But the grant of the writ at the suit of a stranger is discretionary; not ex debito justitiæ as at the suit of the party aggrieved (j). The courts will not grant a rule nisi for a prohibition on the last day of term in cases where the party has been dilatory in applying for it; indeed, it is doubtful whether in such a case they will grant it at all (k), unless a rule for that purpose has been obtained on a former day (1). But a rule may be obtained, on motion, staying proceedings till the ensuing term (m). This rule of practice is of little importance now that any of the judges can at any time grant a prohibition. In what Cases granted.]—A prohibition is granted In what cases either absolutely or hoc usque only until a particular act granted. (d) F. N. B. 53; 4 Inst. 71. (e) Montgomery v. Blair, 2 Sch. & Lef. (Ir.) 136. (ƒ) Peere Wms. 476; Wright v. Cattell, 13 Beav. 81; S. C., 19 L. J., Chanc. 527. (g) 4 Inst. 81. (h) Wright v. Cattell, 13 Beav. 81; S. C., 19 L. J., Chanc. 527. (i) 2 Inst. 602; Wadsworth v. Queen of Spain, 17 Q. B. 171; S. C., (j) Re Forster, 4 B. & S. 187; (1) Tidd, 498; 3 Burr. 1922. PART I. be done. The first is peremptory and ties up the inferior jurisdiction till a consultation is awarded; the second is ipso facto discharged upon performing the act, and that without any writ of consultation (n). A writ of prohibition will be granted to a county court in any case in which it exceeds the jurisdiction given by the several statutes by which it is governed, or takes upon itself the cognizance of any action of ejectment in which the value or rent of the lands exceeds 201., or of any action in which the title to any corporeal or incorporeal hereditaments, of which the value or rent exceeds 201., or to any easement or licence where the value or rent of the dominant or servient tenement exceeds 201., or to any toll, fair, or market or franchise, is in question, or in which the validity of any demise, bequest, or limitation under any will or settlement may be disputed, or (except where such a case is sent for trial from a superior court) for any malicious prosecution, libel or slander, seduction, or breach of promise of marriage (o). The writ will issue also if the action be in its nature one over which the county court has jurisdiction, but the defence raises a question which it has no power to try, as where a defence raises a question of title to hereditaments of more than 207. value or rent (p). Other instances in which a writ of prohibition will be granted are pro defectu triationis, that is, the want of any means of trying, as when it is impossible to try the cause by the proper and legitimate evidence (4). Taking a wrong course in trying is not, however, such a defect (r). So where the judge is a party, or has an interest, neither he nor his deputy can determine a cause or sit in court (s). A prohibition was issued where a judge, of his own authority, and without the consent of the plaintiff, amended the particulars, with a view, by reducing the plaintiff's demand below 501., to give the county court jurisdiction (t). A writ of prohibition may be partial, and prohibit so much of a plaint as exceeds the jurisdiction of the inferior court, allowing it to proceed as to the residue. Thus, (n) Bac. Ab. Prohibition (F.); Taill v. Edwards, 6 Mod. 308. (0) 9 & 10 Vict. c. 95, s. 58. See further of these, ante, Chap. IV., JURISDICTION. (p) Mayor of London v. Cox, L. R., 2 H. of L. 239. See Pearson v. Glazebrook, L. R., 3 Exch. 27. (9) Per Lord Denman, C. J., in Winsor v. Dunford, 12 Q. B. 608; (r) Per Patteson, J., in Winsor v. Dunford, ante. (s) Salk. 396; Hardw. 503. (t) Hill v. Swift, 10 Exch. 726; S. C., 24 L. J., Exch. 137; 1 Jur., N. S. 167. where the cause of action disclosed by the particulars was CHAP. XXIII. divisible, and part had arisen within the jurisdiction of a county court and part out of the jurisdiction, the Court of Queen's Bench granted a prohibition as to the latter only (u). The writ of prohibition is not taken away by the 13 & 14 Vict. c. 61, ss. 14 and 16, where a county court is acting without jurisdiction (v). In what Cases not granted.]—But the court will not In what cases inquire into the correctness of the judge's decision, where not granted. it is upon a matter clearly within his jurisdiction (w). Where, therefore, the judge of a county court gave judgment for the plaintiff, notwithstanding that at the trial the defendant's plea (that judgment had already been obtained and execution executed against him in another inferior court in an action brought in the latter court upon the same cause of action) was admitted to be true, the superior court declined to interfere (x). So, where after recovery of a judgment for a debt against a defendant in a county court, he petitioned for and obtained his discharge under the Insolvent Act, and inserted the debt in the schedule, and on a judgment summons before the county court, under the 9 & 10 Vict. c. 95, s. 98, pleaded his discharge, but the county court judge notwithstanding made an order for the payment of the debt by instalments, and afterwards, upon default, for his committal, it was held that although the defendant, who had been imprisoned, might be entitled to his discharge, it was, at most, an error in the exercise of the powers of the county court judge, and that therefore prohibition would not lie (y). It does not lie for receiving improper evidence (z), nor for the misconstruction of a statute (a), nor on the ground that a former action has been removed (u) Ex parte Walsh, 1 E. & B. 383; S. C., 22 L. J., Q. B. 137; 17 Jur. 596. See also Free v. Burgoyne, 5 B. & C. 400. (v) Wright v. Cattell, 13 Beav. 81; S. C., 19 L. J., Chanc. 52. (w) Winsor v. Dunford, 12 Q. B. 608; S. C., 12 Jur. 630; Joseph v. Henry, 19 L. J., Q. B. 365; S. C., 15 Jur. 104; Lexden Union v. Southgate, 10 Exch. 201; S. C., 23 L. J., Exch. 316; Norris v. Carrington, 16 C. B., N. S. 396; Farrow v. Hague, (x) Toft v. Rayner, 5 C. B. 162. (z) In re Dunford, 12 Jur. 361. (a) In re Bowen, 15 Jur. 1196. |