1787-11-13 (static/transcriptions/1787/11/311.jpg)

hath concluded himself, and shall have no Action on that Statute, but he ought to plead the Special Matter, viz. to the Jurisdiction of the Court, and by that means take advantage of it. And for this reason it, that the Superior Courts here refuse to grant prohibitions to inferior Courts on a Suggestion that the cause arose out of their jurisdiction, till the Defendant hath pleaded that matter in the inferior Court to the Jurisdiction of the Court. Some attempts (I confess) have been made to obtain prohibitions on bare Surmises only, as appears in Bainman and Smith’s Case; Mod: Rep: 63 and Sid. 464 But after in the case of Cox and St. Aubin, Mod. Rep. 81, it was held by the Lord Hale and the whole Court, that no prohibition will lie in that Case on a bare Surmise only, unless there be a Plea first duly put in to the Jurisdiction of the Court, and so that Case in 2 Ro. 317. is to be intended.
And there can be no other reason for it, but that the Action being transitory, they can’t be said to exceed their Jurisdiction till they are informed by the Defendant’s Plea where the excuse of action arose; for otherwise the Superior Courts wou’d grant Prohibitions on bare Suggestions only, as they do in other Cases where Court exceed their Jurisdictions.
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