
    
      Wm. W. Johnson vs. Peter G. Basquere, Justice, and others, Freeholders. Thomas Miller vs. Boon, Tax Collector of St. Paul’s, and Rice, Sheriff.
    
    1. Where an issue was made up in prohibition, for the purpose of trying the question whether the narrator was entitled to occupy in society the status of a free white man, it was held by the court, that the narrator had a right either to take a non-suit on his own motion, or by leave of die court to discontinue his proceedings at any stage of them before publication of the verdict.
    
      2. The rights of the parties should be reciprocal; and where either is a voluntary actor, he may stop and retrace his steps that have been taken onjiis own motion.
    
      Before Butler, J., at Walterboro’, November Term, 1842.
    These cases arose out of proceedings in prohibition. In. the first of the above stated cases, the defendants, as magistrate and freeholders, were about to try the narrator as a free person of color, and by leave of a circuit Judge, he had filed his declaration in prohibition, in which he alleged and averred that he had a right to occupy in society the status of a free white man of South Carolina. The defendants, by the Solicitor of the southern circuit, J. D. Edwards, denied that he was a free white man ; and the issue thus made was to be tried by a jury. Much evidence was offered on both sides. Many witnesses on the part of the narrator, said that he was received in society, and regarded as a free white man, whilst witnesses on the part of defendants, testified that his great grand-mother, by the mother’s side, was a mulatto. The case was submitted to the jury, after full argument and a fair trial. When the jury returned to the court room, the foreman stepped to the clerk’s desk to write his verdict, and when he was about to deliver the record to the clerk, a motion was made to poll the jury, which the presiding Judge refused. The counsel for the narrator then moved to discontinue his proceedings without publishing the verdict, which, from some cause, the counsel suspected was unfavorable to his client.. This motion was granted by the court.
    The narrator was in court, and had the appearance of a white man. He had been a member of a volunteer company, and had voted at the general election for members of the Legislature. There was no question but what his li-neage on his father’s side, was that of white, and rather respectable people. His mother, Mary, was the daughter of one Nancy Patrick, formerly Nancy Miller. Patrick, who had married Nancy, was regarded a colored man, and Mary was born in wedlock; but several witnesses said Patrick never claimed her, and that her mother said she was the child of an Irish schoolmaster, Ellis, living in the neighborhood at the time she was begotten and born, and she was so generally regarded. Nancy Miller’s father was a white man, who married Elizabeth Tan, the greatgrandmother of narrator. Elizabeth Tan was a colored woman, with thick skin and long hair; and from what came out in another case, she was originally from North Carolina, and claimed to be an Egyptian.
    In the second case stated, the question was, whether the narrator was subject to a poll tax imposed qn free persons of color, of African origin and taint; or whether he was entitled to occupy the position of a free white man.
    In support of the affirmative of the issue, the narrator produced in evidence proceedings in prohibition, had before Judge Bay, at Chambers, on the 15th of June, 1¿36.
    The Judge granted a writ of prohibition, restraining the tax collector therein, (the same that is now before the court,) from collecting the capitation tax, upon the alleged ground, that the narrator, Isaac Winningham, and his wife Rachel, and their descendants, were not subject to be taxed as free persons of African origin, but that they were exempt from such a tax, as the descendants of Egyptians. It was proved on the trial, that the narrator was one of the persons specifically named in the proceedings before Judge' Bay, and the counsel for the narrator here rested his case, contending that his client was protected from any proceedure against him as a free person of color, under the foregoing judgment.
    The Solicitor had the narrator called into court, and his appearance was that of a mulatto. At this stage of the proceedings, and perhaps when the Solicitor was about calling witnesses to shew that narrator was a mulatto, the counsel for narrator moved to discontinue his proceeding, preferring to rely on the judgment of Judge Bay, rather than to trust to his client’s color, before the jury. The presiding Judge granted the motion.
    A motion was now made to reverse the order in the first case, which was in these words :
    “ On motion of the relator’s Counsel, before the publication of the verdict of the jury in' this case, it is ordered, that the relators have leave to withdraw the proceedings in prohibition.”
    And also in the other, because the same is contrary to law.
    Edwards, Solicitor, for the motion.
    Rhett & Perry, contra,
    cited 3 McCord, 558 ; 1 Bailey, 262.
   Curia, per

Butler, J.

The rights of parties in cases of prohibition, must depend on the legal character and position of the parties concerned, as well as the object to be attained by the proceeding itself. The primary object of the writ of prohibition is to restrain inferior courts within their jurisdiction, upon a suggestion that the cognizance of the matter belongs not to such courts ; and in case they exceed their jurisdiction, the officer who executes the sentence, and in some cases the Judges that give it, are punishable in the superior courts; sometimes at the suit of the king, sometimes at the suit of the party, and sometimes at the suit of both, according to the nature of the case. 5. Bac. Abr. A. A prohibition issuing out of the common pleas, must be by suggestion on record, and therefore is considered at the suit of the party, in which he may be non-suited. 5 Bac. Abr. 649. When a party files his suggestion to assert a private right, by restraining an inferior court from violating or putting it in jeopardy, he is a voluntary actor, and carries on the proceedings in his own name; and in such case he cannot be at the mercy of the opposite party, so far as to be forced to submit to a verdict that might be conclusive of his rights, In such case, like every other party who is attempting to enforce a private remedy, he ought to have the right, by letting fall his action, or submitting to a non-suit, to save himself from the legal consequences of a verdict. During the trial of an issue, he might be surprised by unexpected disclosures of the witnesses ; or from any other cause he might think it prudent to stay present proceedings. It is said in 5 Bac. Abr. F., that if, however, the court incline in favor of the prohibition, the defendant has, it seems, a right to put the plaintiff to declare; and having such right, he may, of course, waive it, and, after a rule given to declare, submit and stay proceedings.” The rights of the parties should be reciprocal, and where either is a voluntary actor, he may stop and retrace his steps that have been taken on his own motion. The narrator, in the case under consideration, had a right to file his suggestion, for the purpose of protecting his rights and franchises from violation by the defendants. His object was to enforce a private remedy at his own suit. Before the declaration was ordered to be filed, and before the defendants were brought into, court, he could have withdrawn his proceedings, without prejudice to any one. When the issue was made up, did the narrator forfeit any right that he had before 7 If so, it was by the act of the court, and not by his own will; or it may have been at the suggestion of the defendants. In the latter case, it is clear, where a declaration is tendered by the plaintiff, at the instance of the defendant, the defendant may refuse to plead and submit. And where the declaration is filed by the order of the court, it would be for the benefit of the plaintiff; and in such case, the plaintiff could waive the intended benefit, and stop his proceedings, either on his own motion, or by leave of the court. The court having a control over its own orders, can always exercise a discretion in relation to them, when prudence and justice require it. In this case, then, the plaintiff had a right, either to take a non-suit on his own motion, or to obtain leave of the court to discontinue his proceedings at any stage of them. He perhaps adopted the more prudent course, by applying to the court to discontinue his case ; and we think the Judge exercised a proper discretion in granting him leave. The result of the matter is, that the plaintiff has gained nothing by his suit, but has placed himself in the situation that he occupied before its commencement.

The decision below, in both the above cases, being the same, is hereby affirmed ; and this motion is dismissed.

O’Neall, Evans, and Wardlaw, JX, concurred.

Richardson, J., absent.  