Sherwood v. New England Knitting Co.

Andrews, C. J. Bacon’s Abridgment, volume five, at p. 646, says: “As all external jurisdiction ... is derived from the crown, and the administration of justice is committed to a great variety of courts, hence it hath been the care of the crown, that these courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ of prohibition was framed . . . The object of prohibition in general is, the preservation of the right of the king’s crown and courts, and the ease and quiet of the subject. For it is the wisdom and policy of the law, to suppose both best preserved when everything runs in its right channel, according to the original jurisdiction of every court; for by the same reason that one court might be allowed to encroach, another might; which would produce nothing but confusion and disorder in the administration of justice.” And the book cites for the correctness of the rules stated, authorities as ancient as the time of Edward I., and others coming down to recent times. The necessity for some means by which each court might be required to confine itself within its own jurisdiction, was early presented to the people of the Colony of Connecticut. In 1740 the legislature of the Colony provided for the issuing of writs of prohibition by the Superior Court, or by any two of [548] the assisting judges thereof, to any other court held within the colony that “ do exceed their jurisdiction, or do hold plea of any matter, cause or thing, whereof by law such court bath no jurisdiction; ” and provided that the Superior Court might in such cases “.proceed and give judgment ... according to the course of the common or statute law, . . . as fully absolutely and entirely as the court of King's Bench, in that part of Great Britain called England, by law may do.” 8 Col. Rec. 360, 361. This Act was modified in 1750, by inserting in the clause respecting the exceeding of jurisdiction, the words “ whereby the person or persons suggesting are grieved.” In 1776, the Colony having achieved independence, the reference to the court of King’s Bench in England was omitted. In 1821 the statute concerning the writ of prohibition was revised—Revision of 1821, p. 314 —and as thus revised it has, in substance, continued to this time, and is now § 1299 of the General Statutes. Whatever authority the Superior Court or a judge of that court now has to issue a writ of prohibition, comes from the last named section. But the full scope and meaning of that statute is only to be known by considering the history of legislation concerning the writ. This history teaches that the Connecticut writ of prohibition is only a slight modification of the common law writ. 1 Swift’s System, 97, 98; 1 Swift’s Dig., p. 565. Notwithstanding the full authority so given to the Superior Court to grant writs of prohibition, an application for that remedy seems never to have been made until within a very few years. Our reports show only one case—and that in the year 1891— in which such a writ was actually granted. Fayerweather v. Monson, 61 Conn. 431. In a prior case in 1882 the writ had been denied. La Croix v. County Com’rs, 50 id. 321. Non-action may be as significant in determining the law as is action, and after this long period of time it must be held to be the established law in this State, that while the power of the Superior Court is ample to issue the writ of prohibition upon proper and necessary occasions, yet it will never do so'except in a clear case of excess of jurisdiction. [549] It is a prerogative writ, to be used with great caution and forbearance, for the furtherance of justice and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. 1 Swift’s Dig. 568, 565; Washburn v. Phillips, 2 Met. 296; People v. Seward, 7 Wend. 518; State v. Wakely, 2 Nott & M. (S. Car.) 410. The-ease decided in our own reports shows that in a clear instance of excess of jurisdiction, by which the party complaining is aggrieved, if there is no other adequate remedy in the ordinary course of procedure, it is the duty of the court to issue the writ. And in this respect we think the decision is in accordance with the law elsewhere. Mayor, etc., of London v. Cox, L. R. 2 H. L. 239, 278; Burder v. Veley, 12 Ad. & E. 233, 263; Shortt on Prohibition, 458; High, Ex. Rem., § 767. It is obvious from the nature and purpose of the writ, as shown by the common law as well as by our own statutes and usage, that it is only to be interposed in a clear case of excess of jurisdiction on the part of some judicial tribunal. The only reason on which it is claimed that the Court of Common Pleas did not have jurisdiction of the suit brought by the New England Knitting Company, is that the defendant is described as a receiver, and that the suit was brought without having obtained permission óf the court by which he was appointed. The Court of Common Pleas did have jurisdiction of the subject-matter of the action and of the parties, apart from the question of the defendant being a receiver. But a receiver is not exempt from being sued in all cases and under all circumstances. “The decree of a court of chancery appointing a receiver, entitles him to its protection only in the possession of property which he is authorized or directed by the decree to take possession of. When he assumes to take or hold possession of property not embraced in the decree appointing him, and to which the debtor never had any title, he is not acting as the officer or representative of the court of chancery, but is a mere trespasser, and the rightful owner of the property may sue him in any appropriate form of action for damages, or to recover possession of [550] the property illegally taken or detained.” Hills v. Parker, 111 Mass. 508, 511. In the suit brought by the Knitting Company it is evident that the plaintiff therein claimed that the property concerning which the suit was brought, had never belonged to the corporation for which the defendant was receiver. Moreover, if the receiver had been appointed by any court of the United States, the suit—and the injunction is only an incident of the suit—might properly have been brought against him without any such consent. U. S. Statutes of 1887, Chap. 873, § 3. The judge of the Superior Court was of opinion that the Court of Common Pleas acted in the belief that the receiver was appointed by a United States court. These grounds were sufficient to warrant the judge in refusing to issue the writ prayed for. Walton v. Greenwood, 60 Me. 356, 365. It does not appear that the Court of Common Pleas had done anything which was clearly in excess of its jurisdiction. In the arrangement of courts in this State the reasons given apply with added force in the present case. The Court of Common Pleas, the Superior Court, and the. judges of both, derive their power and jurisdiction from the same sovereignty. They are component parts in one judicial scheme, the whole being designed for the welfare and happiness of the people of the State. Such courts ought at all times to act with mutual respect for and forbearance towards each other. Each should act on the presumption that the other is desirous to exercise only its own proper jurisdiction. Between such courts jealousies would be unseemly; and any hasty or arbitrary exercise of authority would be inexcusable. The judge of the Superior Court seems to have acted on this theory. There is no error. In this opinion the other judges concurred.