Consultation

The name of a writ whereby a cause, being formerly removed by prohibition out of an inferior court into some of the king's courts in Westminster, is returned thither again; for, if the judges of the superior court, comparing the proceedings with the suggestion of the party, find the suggestion false or not proved, and that, therefore, the cause was wrongfully called from the inferior court, then, upon consultation and deliberation, they decree it to be returned, whereupon this writ issues. Termes de la Ley; 2 Bl. Comm. 114. In French Law. The opinion of counsel upon a point of law submitted to them.

The name of a writ whereby a cause, being formerly removed by prohibition out of an inferior court into some of the king's courts in Westminster, is returned thither again; for, if the judg the superior court, comparing the proceedings with the suggestion of the party, find the suggestion false or not proved, and that, tation and deliberation, they decree it to be returned, whereupon this writ issues. Termes de la Ley; 3 Bla. Com. 114. In French Law. The opinion of counsel upon a poiut of law submitted to them.

In English law. A writ, in the nature of a procedendo, whereby a cause, being removed by prohibition out of the ecclesiastical court to one of the superior courts of law, is returned thither to be determined.

A writ whereby a canse which has been wrongfully removed by prohibition out of an ecclesiastical court toa temporal court is returned to the ecclesiastical court. Phillim. Eee. Law, 1439. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.

In French law. The opinion of coun: sel upona point of law submitted to tham.

In English practice. A writ, in the nature of a procedendo, whereby a cause, being removed by prohibition out of the ecclesiastical court to the king's court, [i. e. to one of the superior courts of law,] is returned thither again to be there determined. Termes de la ley. 3 Bl. Com. 114. 1 Wooddes. Lect. 93. 2 Tidd's Pr. 948. A similar writ has been used on prohibitions in some courts in the United States. 2 Burr. Pr. 184. See Prohibition, Procedendo. This writ is said by Blackstone to be so called because upon deliberation and consultation had upon the matter removed by the prohibition, the judges find it to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined in the inferior court. 3 Bl. Com. 114. A more satisfactory explanation, however, of the origin of this writ, may be derived from a reference to the ancient practice as laid down by Bracton. Anciently, where a prohibition was issued to a spiritual court, if the judges to whom it was directed thought it well founded, they would decree a supersedeas of the proceeding. If they were in doubt whether to proceed in the cause or not, they usually consulted the king's justices, (solent judices aliquando justiciarios consulere utrum procedere possent) by what were termed literae consultationis, to which the justices replied by writs of various forms, according to the case. Bract. 405 b, 406. 1 Reeves' Hist. Eng. Law, 466. Bracton gives several of these forms, which are rather in the nature of opinions than compulsory processes, and belong probably to a much earlier period than those given in the Register, (fol. 44—58.) It is not difficult to see how these obtained the name of writs of consultation, or upon consultation; the consultation itself being, as is clearly shown, not among the justices of the superior court, but between the judges of the two courts, in the nature of a conference.

practice, is a conference between the counsel or attorneys engaged on the same side of a cause, for the purpose of examining their case, and, if possible, removing the difficulties in their way. This should be had sufficiently early to enable the counsel to obtain an amendment of the pleadings, or furtherevidence. At these consultations the exact course to be taken by the plaintiff in exhibiting his proofs should be adopted, in consultation by the plaintiff’s counsel. Ina consultation on a defendant’s case, it is important to ascertain the statement of the defence, and the evidence which may be depended upon to support it, to arrange the exact course of defence, and to determine on the cross-examination of the plaintiff’s witnesses; and above all whether or not evidence shall be on the part of the plaintiff. The wishes of the client should in all cases be consulted. 3 Chit. Pr. 864.: