reference to the question last put by the Lord Chief Justice. And, on a subsequent day (November 8th), Price, being desired by the Court to name any authorities which he had found applicable to the point (but without re-arguing the case), mentioned the following: 2 Inst. tit. Articuli Cleri, sect. 3. p. 602.; same title, sect. 14. p. 609. The resolution of the Judges in Sir John Bennet v. Dr. Easedale (a), that a sentence of the Star-chamber, making the plaintiff incapable of any office of judicature, "never took from him the office, but the execution thereof, nor gave authority to place others." Isabel Peel's case (b), Walker v. Adams (c), Scarborough v. Justus Lyrus (d), Fitzherbert, N. B. 45 F. 106 D. The form of a writ of prohibition in Regist. Brev. 38., concluding "et si quid per vos minus rite in hac parte attentatum fuerit, id sine dilatione revocari faciatis." Similar forms, Regist. Brev. 39, 40. 43. Home v. Earl Camden (e). [Parke J. The king has ratified the sentence of dismissal in this case; and he might also have dismissed the officer without any court-martial.] Home v. Lord Bentinck (judgment of Dallas C. J«) (g) furnishes an answer to this observation. Where a court-martial has, in fact, been held, this Court may restrain its proceedings by prohibition, whatever might be the case if a different course had been adopted. [Parke J. also referred to the authorities cited in Com. Dig. Prohibition, D., particularly Hall v. Norwood (h), as making against the present motion.] Cur. adv. vult. 1833. In the Matter of Poɛ. (a) Cro. Car. 55. (c) 1 Sid. 331. 2 Keb. 200. 215. 227. (b) Cro. Car. 113. (d) Latch. 252. where the decision was against the prohibition. (e) 2 H. B. 533. (h) 1 Sid. 166. (g) 8 Price, 249. Y y 3 DENMAN 1833. In the Matter of POE. DENMAN C. J., in the same term (November 14th), delivered the judgment of the Court. An application was made for a rule to shew cause why a writ of prohibition should not issue, prohibiting the execution of the sentence of a court-martial, which, in the month of August, had been holden at Chatham, on charges preferred against an officer in the 55th regiment, on the ground that the facts alleged in the charge were insufficient to bring the party within the articles of war. In the course of the statement it appeared that a commission had been directed to certain officers, for the purpose of carrying on this enquiry; that witnesses had been examined, and the trial proceeded to its termination; that the Court had pronounced the defendant guilty, and sentenced him to be dismissed from his Majesty's service, and, finally, that that sentence had been ratified and approved by the king, who had accordingly dismissed the applicant from the army. We could not understand why, and to what end, a prohibition should be granted, nor to whom it could be directed, nor what it could prohibit; for not only had the sentence been carried into complete execution, but the court-martial itself, having performed all its functions, had ceased to exist. The learned counsel, however, argued that the writ might be directed to the Judge Advocate, as in the case of Grant v. Gould (a), which case, or rather some parts of Lord Loughborough's elaborate judgment upon it, were supposed to furnish authority for granting this rule. We may here observe, that the rule for a prohibition was there discharged, on its being satisfactorily proved that no valid objection to the proceedings of the court-martial existed, and no (a) 2 H. Bl. 69. thing was said respecting the person to whom it was addressed; otherwise it is not easy to see what power the judge-advocate could possess after the sentence had been reported to his Majesty, and received his royal approbation; and the prayer of the suggestion is remarkable in humbly imploring that "the writ may be directed to Sir Charles Gould the judge-advocate, or to some other competent person or persons, to hinder him from proceeding in ordering the execution of the sentence." That case clearly falls short of the purpose for which it was cited, as the sentence was not fully executed, and this fact is stated in the affidavit on which the rule was founded. We, therefore, desired to be furnished with some authority (if any could be found) for granting a prohibition, after complete execution of the sentence imposed by the inferior court; and several cases were, at a subsequent day, laid before us; none of which, however, on examination, appear to us to establish the proposition, while others are examples of acting on the contrary doctrine. In Hall v. Norwood (a) the Court held that a motion for a prohibition came too late after judgment and execution in the Court below, because there is no person who can be prohibited. And a similar view is taken in Darby v. Cosens (b), by Ashhurst and Buller Js., the only judges in court, who support the prohibition on the ground that something remained to be done. But it is needless to enter at large into the law of prohibition in general, for a court-martial stands on grounds peculiar to itself. When it pronounced its sentence, it ceased to exist (c). To the judge-advocate no other duty (c) See, however, 1 Macarthur on Courts-Martial, p. 262. 4th edit. ; in which it is said that military courts-martial remain in existence till dis 1833. In the Matter of POE. 1833. In the Matter of Poɛ. duty then belonged than that of transmitting the sentence for approbation; and even supposing the case of Grant v. Gould to furnish some argument that a writ of this nature might be directed to him before execution of the sentence, still it is impossible to discover what he could be required to abstain from after execution. If, then, the writ were to issue at all, we see no court or individual to whom it could be addressed other than the king himself, who, acting on the sentence, has been pleased to dismiss the officer from his service. Now, admitting for a moment that it were possible to address any writ directly to his Majesty, when it is considered that this power is undoubtedly inherent in the crown, and might have been lawfully executed even without any court-martial, it will at once appear manifest that no prohibition can lie in such a case. For what the king had power to do, independently of any enquiry, he plainly may do, though the enquiry should not be satisfactory to a court of law, or even though the court which conducted it had no legal jurisdiction to enquire. We do not think it necessary to consider whether the charge that has been tried is so framed as to bring the party within the articles of war; but we agree with Lord Loughborough's remark in Grant v. Gould," It would be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction by a justice of the peace." We are all clearly of opinion that the rule moved for cannot be granted. Rule refused. solved by the same authority by which they were held; and the reason given is, that they may be directed to revise the sentence, or to intimate publicly in court to the person tried, his Majesty's pleasure, or that of the commander-in-chief. See also p. 131. and Appendix, No. iv. (Orders in Lieut. Jephson's case) in the same volume. 1833. DOE on the Demises of ANDREW PRITCHARD and Others against DODD. N Where 4. de- 2.42€ 44 mises to B. for a the term of his natural life, to the demise is, the life of B. On the trial of this ejectment before Denman C. J., at following lease; the defendant's counsel insisting that it The lease purported to be made on the 24th of May 1816, between Zachariah Kemp and James Corrick, assignees of the estate and effects of John Pritchard the younger, a bankrupt, of the first part; the said John Pritchard of the second part; and John Adams of the third part; and it began with the following recital: demised to B., But where A. and administra. tors, for the term of his natural life, and the lease contained a for quiet enjoy- ment of the his executors, A.: Held, that in the demising clause must be and not to B., though his A., the grantor, name was the "Whereas, by an agreement in writing (a), bearing last antecedent. (a) Not proved at the trial. on |