6. Pleading After Oyer. A party will have the same time to plead after oyer as he had before, and the time which elapses between the demand of oyer and the giving of it must not be counted as a part of the time of pleading. Pleading a Waiver. By pleading, every objection to the oyer, as that it has not been granted, or that it has been improperly or insufficiently given, is waived; and where a party craves and accepts oyer, and puts the instrument on record, he is precluded from objecting to the want of profert as a substantial defect.* advantage of a variance between the declaration and the bond, even though the plaintiff has declared against one of several obligors. Meredith V. Duval, 1 Munf. (Va.) 76. 1. Mulholand v. Van Fine, 8 Cow. (N. Y.) 132; Read 7. Patterson, 14 Johns. (N. Y.) 328; Webber v. Austin, 8 T. R. 356. 2. Warren v. Camack, 12 N. J. L. 178. If There Be a Stipulation Extending the 3. Auditor v. Woodruff, 2 Ark. 73. 215. 1092 Volume XVI. PROHIBITION. BY PERCY FINLAY. I. DEFINITION and Nature oF WRIT, 1094. II. JURISDICTION TO ISSUE, 1096. 1. State Courts, 1096. a. Courts of General Furisdiction, 1096. 2. Federal Courts,_1101. a. Supreme Court of the United States, 1101I. [II. TRIBUNALS AND OFFICERS PROHIBITED, I102. 2. Boards, Commissioners, Councils, etc., 1106. 4. Legislative and Executive Officers, 1108. IV. ISSUANCE OF WRIT DISCRETIONARY, 1109. V. WHEN ISSUED, 1110. 1. General Rule, 1110. 2. When the Court Has Never Acquired Furisdiction, 1113. a. For Want of Service of Process, 1113. b. For Want of Appeal, 1114. 3. When the Court Has Lost Furisdiction, 1115. a. By Final Order, 1115. b. By Appeal Taken, 1116. c. By Removal Proceedings, 1118. d. By Assumption of Furisdiction by Another Court, 1119. 4. When Amount Involved Exceeds Court's Furisdiction, 1119. 5. For Excess of Territorial Furisdiction, 1121. 6. When Furisdiction Depends upon Void Act, 1122. 7. For Departure from Statute Conferring Furisdiction, 1123. 8. For Disqualification of Fudge, 1124. VI. WHEN REFUSED, 1125. 1. General Rule, 1125. 2. When No Objection Has Been Made to the Furisdiction of 3 the Inferior Court, 1128. When There Is Another Adequate Remedy, 1130. 4. When Application for Writ Is Too Late, 1132. 5. When No Act in Excess of Furisdiction Is Threatened, 1133. 6. When No Injury Can Result, 1133. 7. Compliance Ad Interim, 1134. VII. PARTIES, 1134. 1. The Applicants, 1134. 2. The Respondents, 1135. VIII. PROCEDURE, 1135. 1. At Common Law, 1135. 2. Modern Practice, 1137. 3. Suggestion or Petition and Affidavit, 1138. 6. Absolute or Peremptory Writ, 1141. 7. Enforcement of Writ, 1142. 8. Costs, 1142. 9. Appeal, 1143 · I. DEFINITION AND NATURE OF WRIT. A Writ of Prohibition is an extraordinary writ, issuing out of a superior court, directed to the judge and parties of a suit in an inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally or some collateral matter arising therein is beyond the jurisdiction of the court.1 Purpose of Writ. It is a common-law writ of great antiquity,2 and was framed to confine courts of special, limited, or inferior jurisdiction within the proper limits of their authority 3 and to 1. 3 Black. Com. 112. Alabama. - Ex p. Walker, 25 Ala. 81; Exp. Roundtree, 51 Ala. 42; Ex p. Brown, 58 Ala. 536. Arkansas. Ex p. Williams, 4 Ark. 537; Sand. & H. Dig. Stat. 1894, § 4892. California. - Spring Valley Water Works v. San Francisco, 52 Cal. 111; Maurer v. Mitchell, 53 Cil. 289; Day v. Superior Ct., 61 Cal. 489. Colorado. Leonard v. Bartels, 4 Colo. 95; People v. District Ct., 6 Colo. 534 Y. 531; Thomson v. Tracy, 60 N. Y. 31; Sweet v. Hulbert, 51 Barb. (N. Y.) 312; People v. Fitzgerald, 15 N. Y. App. Div. 539. South Carolina. State v. Whyte, 2 Nott & M. (S. Car.) 174; State v. Kirkland, 41 S. Car. 29. Virginia. - James v. Stokes, 77 Va. 225; Nelms v. Vaughan, 84 Va. 696. West Virginia. — Buskirk v. Judge, 7 W. Va. 91; Fleming v. Commissioners, 31 W. Va. 608. Wisconsin.-State v. Gary, 33 Wis. 93. Wyoming. State v. District Ct., 5 Wyoming 227. United States. S. 68. - Ex p. Easton, 95 U. - No Court Having Jurisdiction. It is not necessary that the cause or act should be within the cognizance of another court, for prohibition will be issued when no court has the jurisdiction objected to, or when the act is beyond the limits of judicial power. State v. Houston, 40 La. Ann. 393. 2. Ex p. Ray, 45 Ala. 15; Sherlock 7. Jacksonville, 17 Fla. 93; Arnold v. Shields, 5 Dana (Ky.) 18; Planters' Ins. Co. v. Cramer, 47 Miss. 200; Seele v. State, I Tex. Civ. App. 495. 3. Connecticut River R. prevent the confusion in the administration of justice which the usurpation by lower courts of jurisdiction not intrusted to them by law would produce.1 Excess and Absence of Jurisdiction. It issues to an inferior court when such court exceeds its jurisdiction in a cause of which it may take cognizance, no less than when it has no jurisdiction whatever.2 It Is a Prerogative Writ, emanating by authority of the sovereign power of the state, to be used with great caution and forbearance and to be issued only in cases of great necessity.3 It Is a Civil Remedy, obtained by an original civil proceeding, which is not a part or continuation of the prohibited suit.1 419; Ingersoll v. Buchanan, I W. Va. 181; Smith v. Whitney, 116 U. S. 167; Worthington v. Jeffries, L. R. 10 C. P. 379. "The office of this writ is to restrain subordinate courts and inferior judicial tribunals of every kind from exceeding their jurisdiction. It is an ancient and valuable writ, and one the use of which in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the constitution and laws of the state, it has been intrusted." Appo v. People, 20 N. Y. 531. 1. Sherwood v. New England Knitting Co., 68 Conn. 543. In People v. Works, 7 Wend. (N. Y.) 486, the court said: "It is the remedy provided by the common law against the encroachment of jurisdiction, to keep inferior courts and tribunals within the limits and bounds prescribed to them. The reason of prohibitions in general is that they preserve the rights of the courts and of individuals. The wisdom and policy of the law suppose both best preserved when everything runs in its right channel; as, if one might be allowed to encroach, another might, and thus confusion be produced in the administration of justice." "The process of prohibition arises from the fact that the supreme authority commits the administration of justice to a variety of tribunals, which creates a necessity that a superintending power shall exist, and be exerted upon fit occasion, to restrain each within its prescribed orbit, and so prevent intolerable confusion and disorder." Ex p. Bradley, 9 Rich. L. (S. Car.) 95. Prohibition is used to keep such [inferior] courts within the limits and bounds prescribed for them by law; for it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law intrusted." Ensign Co. v. Carroll, 30 W. Va. 532. 2. People v. Circuit Ct., 169 Ill. 201; State v. St. Louis Ct. App., 99 Mo. 216; State v. Slover, 126 Mo. 652; State v. Withrow, 133 Mo. 500; St. Louis, etc., R. Co. v. Wear, 135 Mo. 230; People v. Fitzgerald, 15 N. Y. App. Div. 539; Sweet v. Hulbert, 51 Barb. (N. Y.) 312. For Excess of Jurisdiction see also infra, V. 1. General Rule, and V. 5. For Excess of Territorial Jurisdiction. 3. Southern Pac. R. Co. v. Superior Ct., 59 Cal. 471; Leonard v. Bartels, 4 Colo. 95; Sherwood v. New England Knitting Co., 68 Conn. 543; Doughty v. Walker, 54 Ga. 595; State v. Judge, 10 Rob. (La.) 169; Connecticut River R. Co. v. Franklin County, 127 Mass. 50; Vail v. Dinning, 44 Mo. 210; Walcott v. Wells, 21 Nev. 47: In re Schumaker, 90 Wis. 488. The exercise of unauthorized judicial or quasi-judicial power is regarded as a contempt of the sovereign, which may result in injury to the state or citi zens. State v. Young, 29 Minn. 474. 4. Planters' Ins. Co. v. Cramer, 47 Miss. 200; Memphis v. Halsey, 12 Heisk. (Tenn.) 210; Mayo v. James, 12 Gratt. (Va.) 17; State v. Evans, 88 Wis. 255. "A writ of prohibition is a civil remedy, given in a civil action, as much so as a writ of habeas corpus, which this court has held to be a civil and not a criminal proceeding, even when instituted to arrest a criminal prosecution." Farnsworth v. Mon. Acts on the Court. The proceeding in prohibition is a proceeding between courts, and the writ acts directly on the court, commanding it to cease entertaining the prohibited suit, or forbidding it to act in excess of its jurisdiction.1 Preventive Rather than Remedial. While it is frequently called a remedial writ, it is preventive rather than remedial or corrective, and undoes what has already been done only as incident to its principal object.2 II. JURISDICTION TO ISSUE 1. State Courts — a. COURTS OF GENERAL JURISDICTION. — At Common Law, the writ of prohibition, being the king's prerogative writ, was originally issued out of the Court of King's Bench, but the practice of issuing it was afterwards adopted by the courts of Common Pleas, Exchequer, and finally Chancery.3 In the United States, where the common law has not been modified by statute, the writ has been accepted as a part of the commonlaw system, and courts possessing general common-law jurisdic 4 tana, 129 U. S. 104. But in LincolnLucky, etc., Min, Co. v. District Ct., 7 N. Mex. 486, it was said that the proceeding by which prohibition is obtained is appellate or relative and not original or abstract. 1. Burch . Hardwicke, 23 Gratt. (Va.) 51; Seele v. State, I Tex. Civ. App. 495. Prohibition Differs from an Injunction against proceedings at law in that an injunction in such case is directed only against the parties litigant, while a prohibition is directed to the court itself. State v. Superior Ct., 13 Wash. 226; People v. Circuit Ct., 169 Ill. 251; State v. Whitaker, 114 N. Car. 818; Mealing v. Augusta, Dudley (Ga.) 221. 2. Ex p. Roundtree, 51 Ala. 42; Coker v. Superior Ct., 58 Cal. 177; Cosby v. Superior Ct., 110 Cal. 45; State v. Burckhartt, 87 Mo. 533; State v. St. Louis Ct. App., 97 Mo. 276; State v. District Ct., (Mont. 1899) 56 Pac. Rep. 219: Thomson v. Tracy, 60 N. Y. 31; State v. Stackhouse, 14 S. Car. 417; People v. Carrington, 5 Utah 531. Distinguished from Mandamus. - Prohibition arrests and prohibits further action, while mandamus commands action. State v. Judge, 4 Rob. (La.) 48; Gresham v. Ewell, 84 Va. 784. 66 Counterpart " " of Mandamus. - Code Civ. Pro. Mont., § 1980, making a writ of prohibition "the counterpart of the writ of mandate," does not change the character of the writ, and no question can be inquired into except that of jurisdiction in the proceeding inaug urated by it. State v. District Ct., (Mont. 1899) 56 Pac. Rep. 219. 3. State v. Rombauer, 104 Mo. 619; Lincoln-Lucky, etc., Min. Co. v. District Ct., 7 N. Mex. 486; People v. Court of C. Pl., 43 Barb. (N. Y.) 278; Jackson v. Maxwell, 5 Rand. (Va.) 636; Reg. v. Justices, (1894) I Q. B. 453 The Jurisdiction Assumed by the Chancery Court during the vacation of the Jaw courts became concurrent and was exercised during the term time of the law courts, but subsequently applications for the writ were entertained only in vacation. Ex p. Lynch, I Madd. 14; In re Bateman, L. R. 9 Eq. 660; In re Foster, 3 Jur. N. S. 1238, 24 Beav. 428; Montgomery v. Blair, 2 Sch. & Lef. 136. 4. Planters' Ins. Co. v. Cramer, 47 Miss. 200. > In Arnold v. Shields, 5 Dana (Ky. 18, the court said: “ Prohibition, being a useful and usual common-law remedy, should be deemed applicable and proper here, unless abolished by statute or desuetude, or deemed inconsistent with our peculiar institutions. It has not been abolished by any positive enactments; nor can we perceive any reason for considering it either obsolete or incongruous. Wherefore, we do not feel authorized to decide otherwise than that it is still here an existing legal remedy in an appropriate case.' "Where the statute has not interfered to change or modify the common law, the different writs and processes which have long been in use for the |