of imposing an obligation upon individuals, the Court ought to exercise as widely as they can the power of controlling those bodies of persons if they admittedly attempt to exercise powers beyond those given to them by Act of Parliament (see per Brett, L.J., R. v. Local Government Board, 1882, 10 Q. B. D., at p. 321).

PRINCIPLES UPON WHICH PROHIBITION IS GRANTED.-Excess of Jurisdiction. Prohibition is, as a rule, granted to restrain a Court from acting without jurisdiction or in excess of its jurisdiction.

The general doctrine is that prohibition will never be granted where the Court sought to be affected by it has clear jurisdiction (see, for example, In re The New Par Consols, Ltd. (No. 2), [1898] 1 Q. B. 669), unless it is proceeding in a manner contrary to the principles, not the rules, of the common law (see Ex parte Story, 1852, 12 C. B., at p. 777).

It is a well-known rule of the common law, which has already been referred to, that the King's Courts that may award prohibitions, being informed either by the parties themselves or by any stranger that any Court, temporal or ecclesiastical, doth hold plea of that whereof they have not jurisdiction, may lawfully prohibit the same as well after judgment and execution as before (see 2 Inst., 602; see also per Pollock, B., R. v. The Judge of the County Court of Lincolnshire, 1887, 20 Q. B. D., at p. 170).

In other words, prohibition will generally be granted where an inferior Court acts without jurisdiction or in excess of jurisdiction. And even though the inferior Court has jurisdiction as to part of the subject-matter of the action, yet if there be any portion of the cause of action which is beyond the jurisdiction, prohibition will lie (see Rowland v. Hockenhull, 1691, Raym. (Ld.) 698; Lord Camden v. Horme, 1791, 4 T. R. 397; Gold v. Turner, 1874, L. R. 10 C. P. 149).

But where the subject of a suit in an inferior Court is within the jurisdiction of that Court, though in the proceedings a matter be stated which is out of its jurisdiction, yet unless it is proceeding to try such matter prohibition will not lie (see Dutens v. Robson, 1789, 1 Black. (H.) 100; see also Read v. Brown, 1888, 22 Q. B. D. 128).

Where the superior Court is clearly of opinion both with regard to the facts and the law that the inferior Court is acting in excess of or without jurisdiction, the writ of prohibition will be granted, and in such a case, it was formerly said, neither the smallness of the claim nor delay on the part of the applicant is a reason for refusing the writ (see Worthington v. Jeffries, 1875, L. R. 10 C. P. 379).

In Courts where there are formal pleadings the jurisdiction is ousted, and prohibition will consequently lie, as soon as any matter that may involve a question which is not cognisable by the Court is pleaded (see Tinniswood v. Pattison, 1846, 3 C. B. 243). On the other hand, to deprive the Court of jurisdiction in cases where there are no pleadings, it must appear affirmatively in evidence that a matter has arisen over which the Court has no authority (see Lilley v. Harvey, 1848, 17 L. J. Q. B. 357; Lloyd v. Jones, 1848, 17 L. J. C. P. 206). Where an inferior Court proceeds in a cause properly within its jurisdiction, no prohibition will be awarded until the pleadings raise some issue which the Court is incompetent to try (see The Mayor, etc., of London v. Cox, 1866, L. R. 2 H. L. 239).

As a general rule, in order to give an inferior Court jurisdiction, it is

necessary that the cause of action should have arisen within the local limits of such Court, or that the defendant, and in some cases both plaintiff and defendant, be resident within such limits, at the time the action is brought; hence in cases where, though the subject-matter of the action is within the jurisdiction but the case is not within the local limits of the Court, prohibition will lie (see Rowland v. Hockenhulle, 1691, 1 Raym. (Ld.) 698; Jacobs v. Brett, 1875, L. R. 20 Eq. 1; Hawes v. Paveley, 1876, 1 C. P. D. 418; Moore and Another v. Gamgee, 1890, 25 Q. B. D. 244).

In any case where an inferior Court encroaches upon or interferes with the jurisdiction of the superior Courts, prohibition will lie, as, for example, where an inferior Court takes cognisance of a case in respect of which an action is pending in a superior Court, or where an action is brought in an inferior Court on a judgment of a superior Court (see Anonymous, 1614, 1 Rolle, 54).

Any irregularity, also, on the part of the judge of an inferior Court, such as will amount to an excess of jurisdiction, will be ground for a prohibition, although the case may in other respects be within his jurisdiction; but prohibition will not lie in respect of a mere mistake made by a judge not amounting to an excess of jurisdiction (see Jones v. Jones, 1848, 17 L. J. Q. B. 170). In such cases, however, unless the judge has actually exceeded his jurisdiction, prohibition will not lie (see Zohrab v. Smith, 1848, ibid. 174; Ex parte Rayner, 1847, 17 L. J. C. P. 16; Robinson v. Lenaghan, 1848, 17 L. J. Ex. 174).

Among the various recent applications of the writ of prohibition it may be mentioned that the writ has been granted to restrain proceedings in a County Court against a friendly society (Jones v. Slee, 1886, 32 Ch. D. (C. A.) 585), to restrain proceedings before a magistrate against a company for not forwarding to the Registrar of Joint Stock Companies a list of members and summary sufficiently complying with the requirements of sec. 26 of the Companies Act, 1862 (see In re Briton Medical and General Life Association, 1888, 39 Ch. D. 61), and to restrain justices from hearing and determining an information against a postmaster under the Weights and Measures Act, 1878, for using a false scale supplied by the Post Office, on the ground that such an inquiry was not within the scope of the justices' jurisdiction (see R. v. Justices of Bromley, 1890, 38 W. R. 253).

Ecclesiastical Courts.-The principles upon which the superior Courts of common law proceed in exercising their jurisdiction as to granting a Prohibition to the Ecclesiastical Courts were reviewed in the case of Veley v. Burder, 1841, 12 Ad. & E. 265. In that case Tindal, C.J., in his judgment in the Exchequer Chamber (ibid. pp. 311, 312), stated that "the first and largest class of cases in which prohibitions have been granted by the Queen's Courts at Westminster is where a plain and manifest excess of jurisdiction has appeared to have been claimed or exercised by the Ecclesiastical Court. The others are founded on the general principle that, notwithstanding the subject-matter is of ecclesiastical cognisance, the party would receive some wrong or injury by the course of proceeding in the Ecclesiastical Court, or be deprived of some benefit or advantage to which the common or statute law would entitle him. One class of these cases is, where such Court is proceeding to try a matter which is triable only by the common law; as a custom, prescription, or modus. Another, where, in a case of spiritual cognisance, a collateral question arises which is not properly of spiritual cognisance;

in which case the Courts of common law oblige them to admit such evidence as the common law would allow (see Breedon v. Gill, 1697, 1 Raym. (Ld.), at p. 222), as when, for example, a lease is offered to be proved in an Ecclesiastical Court, and is rejected because by their law two witnesses are required; or, for the same reason, where the fact in dispute is the payment of a legacy. Another, where the spiritual Court takes upon itself the construction of statute law, and decides contrary to the construction which is put upon the statute by the temporal Courts. And lastly, another class of exceptions, which seems to apply itself more closely to the case before us, namely, that the spiritual Courts being always bound to declare the common law, when it becomes necessary to declare it, in the same manner as the Common Law Courts would do-when, as in the present instance, the very groundwork and foundation of the proceedings of the spiritual Court is the holding of a supposed church rate to be a valid rate, which, upon the construction of a Court of common law, is held to be no rate at all. In such case, in order to prevent the conflict which would arise from a decision taking place one way in the spiritual Court and the opposite way in the Courts of common law, the prohibition is allowed to go' (see also per Lord Ellenborough, C.J., Gould v. Gapper, 1804, 5 East, at p. 371).

The jurisdiction with regard to prohibition of the Ecclesiastical Courts has been thus laid down in a later case. The temporal Courts cannot take notice of the practice of the Ecclesiastical Courts, or entertain a question whether in any particular cause, admitted to be of ecclesiastical cognisance, the practice has been regular. Thus, in the case of a defect which is a matter of procedure and not of jurisdiction, such as the objection that the chancellor of a diocese has given judgment without consulting the bishop after being requested to do so, the remedy is by appeal, and the objection cannot be raised by prohibition (see R. v. Tristram, [1901] 2 K. B. 141).

The only instances in which the temporal Courts can interfere by way of prohibiting any particular proceeding in an ecclesiastical suit are those in which something is done contrary to the general law of the land, or manifestly out of the jurisdiction of the Court (per Littledale, J., Ex parte Smyth, 1835, 3 Ad. & E., at p. 724).

The writ of prohibition will therefore lie to the Ecclesiastical Courts to restrain proceedings by them in any case over the subject-matter of which they have no jurisdiction. It is not within the province of this article to examine the jurisdiction of the Ecclesiastical Courts, but it may be mentioned, by way of illustration, that it was provided by a statute of the reign of Edward I. that all pleas concerning rights to freehold, and all actions concerning, or for the recovery of, money, debts, and chattels (except so far as they related to wills and matrimony, in respect of which the Ecclesiastical Courts had jurisdiction until comparatively recently), and all crimes, misdemeanors, and acts amounting to a breach of the peace, must be tried by the King's Courts. Prohibition, therefore, would lie to restrain any Ecclesiastical Court from taking cognisance of any such matter over which they have no jurisdiction (see 2 Coke, Inst., 600; Comyns, Dig., tit. "Prohibition" (F 5); Bacon, Abr., tit. "Prohibition; Fitzherbert, Natura Brevium, 40; Burn, Ecclesiastical Law, 9th ed., 1842, tit. "Prohibition ").

County Courts.-Prohibition is available against a County Court

judge in any case where he acts without jurisdiction or in excess of his jurisdiction. The jurisdiction of the County Courts is purely statutory, and is now defined by the County Courts Act, 1888, and by the rules made thereunder (see COUNTY COURTS; see also Jones v. Currey, 1851, 2 L. M. & P. 474; Knowles v. Holden, 1855, 24 L. J. Ex. 223; Smith v. Pryse, 1857, 7 El. & Bl. 339; Brown v. Cocking, 1868, L. R. 3 Q. B. 672; Tomkins v. Jones, 1889, 22 Q. B. D. 599; M'Intosh v. Simpson, [1901] 1 Q. B. 487; Lumley v. Osborn, ibid. 532).

When an order was made in a County Court action appointing a receiver to receive the interest of a sum in the hands of trustees, and ordering the trustees to pay a specific amount out of the interest to the receiver half-yearly until satisfaction of the judgment, it was held that, as it depended on the absolute discretion of the trustees whether anything should be paid to the judgment debtor, such an order for payment could not be made against the trustees, who were not parties to the action; and the County Court judge having exceeded his jurisdiction in making the order, the proper remedy was by prohibition (see R. v. The Judge of the County Court of Lincolnshire, 1887, 20 Q. B. D. 167). So where the judge of a Court had without jurisdiction ordered the high bailiff of a foreign County Court to pay damages to the plaintiff for negligence in levying an execution, which had been issued in the County Court, but was sent for execution to the foreign County Court, it was held that the high bailiff was entitled to a writ of prohibition (R. v. The Judge of the County Court of Shropshire, 1887, 20 Q. B. D. 242). Prohibition has recently been granted to prevent further proceedings in a County Court on the ground that it had no jurisdiction to make an order for the service of a summons on a defendant in Scotland, notwithstanding that there was an alternative remedy open to the defendant by application to the County Court judge to set aside the service (Channel Coaling Co. v. Ross, [1907] 1 K. B. 145).

Prohibition will not be granted to review the decision of the judge of a County Court where, on the face of the plaint, the subject-matter stated is clearly within his jurisdiction, but where the fact on which his jurisdiction depends rests upon conflicting evidence (see Joseph v. Henry, 1850, 1 L. M. & P. 388). But where there is no conflict of evidence, and by reason of an erroneous decision in point of law the judge has exercised a jurisdiction which does not by law exist, prohibition should issue (see per Cockburn, C.J., Elstone v. Rose, 1868, 9 B. & S., at p. 513).

And where a judge of an inferior Court purports to give himself jurisdiction by misconstruing an Act of Parliament, the superior Courts will interfere by prohibition; and on the same principle a County Court judge cannot give himself jurisdiction by wrongly construing a document (see per Pollock, B., R. v. The Judge of the County Court of Lincolnshire, 1887, 20 Q. B. D., at p. 170).

On the other hand, a prohibition to a County Court judge will always be refused in cases where he is acting within his jurisdiction (see Payne v. Hogg, [1900] 2 Q. B. 43).

So where the judge of a County Court having jurisdiction in winding up companies made an order of committal for disobedience of an order made by him in the course of the winding up of a company, on an application being made for a prohibition to him on the ground that he had not jurisdiction to make the order for committal, it was held that,

he being invested for the purposes of the winding-up jurisdiction with the powers of the High Court, a prohibition could not be granted (In re The New Par Consols, Ltd. (No. 2), [1898] 1 Q. B. 669; see also Payne v. Hogg, [1900] 2 Q. B. 43).

And a prohibition will not lie to a County Court judge who has granted a new trial on the ground of the misconduct of the jury, although there was no evidence to warrant him in so doing, if the subject of the suit and the application for a new trial were within his competence and jurisdiction (see R. v. The County Court Judge of Greenwich, 1888, 37 W. R. (C. A.) 132).

Nor does prohibition lie to a County Court judge who is exercising bankruptcy jurisdiction (R. v. Northallerton County Court Judge, [1898] 2 Q. B. 680).

Personal Interest of Judge.—A judge of an inferior Court will, on a similar principle, be prohibited from taking cognisance of any case in which he is personally interested.

It is a leading principle of English law that no one is allowed to be a judge in his own case; in other words, the least pecuniary interest in the subject-matter of the litigation will disqualify any person from acting as a judge (see per Stephen, J., R. v. Farrant, 1887, 20 Q. B. D., at p. 60; see also Dimes v. The Proprietors of the Grand Junction Canal, 1852, 3 H. L. C. 759). So any order made by a magistrate in a matter in which he has any direct pecuniary interest is voidable (see R. v. The Recorder of Cambridge, 1857, 8 El. & Bl. 637). And where a judge or magistrate has any such substantial interest in the subject-matter of the litigation as to make it likely that he has a bias in the matter, though it be not a pecuniary interest, he is disqualified from acting in the case (see Anonymous, 1698, 1 Salk. 396; per Blackburn, J., R. v. Rand, 1866, L. R. 1 Q. B., at p. 232; R. v. Meyer and Others, 1875, 1 Q. B. D., at p. 177; R. v. Handsley, 1881, 8 Q. B. D., at p. 387). On the other hand, where a magistrate has not such a substantial interest in the result of the hearing as to make it likely that he would have a bias, he will not be disqualified from taking part in the decision of a case (see the cases last referred to). So the fact that a magistrate has been subpoenaed, and it is intended to call him as a witness at the hearing, is not a legal disqualification from sitting; and the High Court will not, on that ground, grant a prohibition to the magistrate from sitting (see R. v. Farrant, 1887, 20 Q. B. D. 58).

Action against Foreign Sovereign.-The writ of prohibition is available to prevent an action or any legal proceedings in English Court against a foreign sovereign who has not submitted to the jurisdiction (see De Haber v. The Queen of Portugal, Wadsworth v. The Queen of Spain, 1851, 17 Q. B. 171), for a foreign sovereign cannot be sued in the English Courts for acts done by him in his sovereign capacity in his own country (see The Duke of Brunswick v. The King of Hanover, 1848, 2 H. L. C. 1); and in respect of acts done in this country, the Courts have no jurisdiction over an independent foreign sovereign, unless he submits to the jurisdiction (see Mighell v. Sultan of Johore, [1894] 1 Q. B. (C. A.) 149).

Judicial Proceedings.-Prohibition, however, lies only to restrain judicial proceedings. It is a rule, therefore, that proceedings which are

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