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ation of another patron in court christian, amounting to a fourth part of the value of the benefice; the right of tithes at this day is

to be tried at the common law. 2 Inst. 491. Not for 2. It hath been holden, that if the spiritual court do proceed proceeding wholly on their own canons, they shall not be at all controuled by the ca

by the common law (unless they act in derogation from it, as by questioning a matter not triable before them, as the bounds of a parish, or the like); for they shall be presumed to be the best judges of their own laws: and therefore in such case, if a person is aggrieved, his proper remedy is not by prohibition, but by

appeal, 1 Haw. 4. 13. Ayt. Par. 171, 438.(8) Not for 3. In case the principal matter belong to the cognizance of trying tem- the spiritual court, all matters incidental (though otherwise of a dents.ca temporal nature) are also cognizable there; and no prohibition (See ante, will lie, provided they proceed in the trial of such temporal inciCourts,11. dent, according to the rules of the temporal law.

Thus in Shotter v. Friend, H. 1 W. An executor being sued for a legacy in the spiritual court, pleaded payment, and offered to prove it by one witness; which the judge refused, and gave sentence against him. Upon this matter suggested, a prohibition was moved for. And by the court; 1. Where the ecclesiastical court proceedeth in a matter merely spiritual, if they proceed in their own manner, though it is different from the common law, no prohibition lieth ; as in probate of wills, there if they refuse one witness, no prohibition lieth. 2. Where they have cognizance of the original matter, and an incident happens which is of temporal cognizance, or triable by the common law; they shall try the incident, but must try it as the common law would: thus in a suit for tithes, or for a legacy, if the defendant pleads a

release or payment; or in a suit to prove a will, if the defendant [ 220 ] plead a revocation. So in the case at bar; they shall try the

matter of payment or no payment, but then they must admit such proof as the common law would, otherwise they reject the cause themselves, and ought to be prohibited. 3. A bare suggestion, that the defendant hath but one witness, and that they take exception to his credit and reputation, is no cause of prohibition; for if they admit the proof of one witness, whether he be a credible witness or not they shall judge, and the party hath no remedy

but by appeal. 2 Salk. 547. Ld. Raym. 220. (9) Not for a 4. A temporal loss, ensuing upon a spiritual sentence, is not temporal

of itself cause of prohibition. So it was adjudged in the 42 & 43

(8) Com. Dig. tit. Prohibition (G. 22.). A prohibition does not lie to the spiritual court for proceeding contrary to the canon law, Bishop of St. David's v. Lucy, 1 Salk. 134. 1 Raym. 447. 539.

(9) See 3 Mod. 283. S. C. ante Evidence, 1. and Com. Dig. tit. Prohibition (G. 23.)

Eliz. in the case of Baker and Rogers (Cro. Eliz. 789), where the conseqnen, deprivation was for simony; on which occasion the reasoning of the

- tial loss. the court was thus : Although it was said, that in the spiritual court they ought not to have intermeddled to divest the freehold, which is in the incumbent after induction ; 'true it is, they should not meddle to alter the freehold, but they meddled only with the manner of obtaining his presentment, which by consequence divested the freehold from him, by the dissolution of his estate, when his admission and institution is avoided. In like manner, where an incumbent (Roberts v. Pain, 3 Mod. 67.) was libelled against in the arches, for not being twenty-three years of age when made deacon, nor twenty-four when made priest, and prayed a prohibition, because a temporal loss (namely, deprivation) might follow; the court denied the prohibition, and compared this case to that of a drunkard, or ill liver, who are usually punished in the ecclesiastical courts, though a temporal loss may ensue; and if prohibitions should be granted in all cases where a temporal loss might ensue, those courts would have little or nothing to do. Gibs. 1028.

5. M. 1 Ann. Galizard and Rigault. There was an indict- For temment for assaulting, beating, wounding, and endeavouring to poral matravish the wife of B. upon which the party was convicted; and with spiri.

ters mixt afterwards the husband brought an action of trespass, for the tual. same cause; and now the party being also libelled against in the spiritual court for the same fact, namely, for soliciting her chastity, moved for a prohibition to the proceedings in the spiritual court. And it was urged for the jurisdiction of the spiritual court, that they may punish for the solicitation and incontinence, and that this suit was for the health of the soul, the others for fine and damages. But by the court a prohibition was granted ; for it being an attempt and solicitation to incontinence, coupled [ 221 ) with force and violence, it doth by reason of the force, which is temporal, become a temporal crime in toto, as if one say, thou art a whore and a thief, or thou keepest a bawdy house, which are temporal matters, the party shall not proceed in the spiritual court: so if it be said of a woman that she is a bawd only, and not that she keeps a bawdy house : but Holt chief justice said, if one commit adultery, and the husband bring assault and battery, this shall not hinder the spiritual court, for it is a criminal proceeding there, and no indictment lies at the common law for adultery. 2 Salk. 552.

But if a man libel for two distinct things, the one of which is of ecclesiastical cognizance, and the other not; a prohibition shall be granted as to that which is of temporal cognizance, and they of the court christian shall proceed for the other. Pense v. Prouse. Ld. Raym. 59. (1)

(1) But not after sentence, comm. semb. 2 T. R. 473. Carslake v.

On trial of 6. H. 10 W. The Churchwardens against The rector of Marcustoms.

ket Bosworth. The churchwardens' libel against the rector, that there hath been time out of mind, and is, a chapel of ease within the same parish; and that the rector of the said parish for time out of mind hath repaired and ought to repair the chancel of the said chapel; and that the chancel being out of repair, the defendant being rector hath not repaired it. The rector in the said court denied the custom. And a decree was made for the rector that there was no such custom, and costs were taxed there for the said rector. The churchwardens moved for a prohibition ; and it was argued for the prohibition, that it ought to be granted, because it appears that the libel is upon a custom, which the defendant hath denied; and it may be the question was in the spiritual court, custom or not, which is not triable there, but at the common law; and then this appearing upon the libel, that the court hath not jurisdiction, a prohibition may be granted after sentence. But all the court held the contrary. For by Holt chief justice; The reason for which the spiritual court ought not to try customs is, because they have different notions of customs, as to the time which creates them, from those that the common law hath : For in some cases the usage of ten years, in some twenty, in some thirty years, make a custom in the spiritual court; whereas by the common law it must be for time immemorial. (2) And therefore since there is so much difference between the laws, the common law will not permit that court to

adjudge upon customs, by which in many cases the inheritances [ 222 ] of persons may be bound. But in this case, that reason fails :

for the spiritual court is so far from adjudging that there is any such custom which the common law allows, that they have adjudged that there hath not been any custom allowed by their law, which allows a less time than the common law to make a custom. And the plaintiffs having grounded their libel upon a custom which was well grounded if the custom had not been denied (for libels there may be upon customs), but the custom being denied and found no custom, it is not reason to prohibit the court in executing their sentence against the plaintiffs. For the design of a motion for a prohibition, is only to excuse the plaintiffs from costs. And there is no reason but that they ought

me in some or in somereates thehave differe

Mapledoram, infra. Thus in Gardner v. Parker, 4 T. Rep. 351. where the suit was for breaking open a chest in a church and taking away the title deeds to the advowson, a prohibition was granted; for this is distinguishable from Welcome v. Lake (supra, Church, VIII. 24.) where the bells being the goods of the church were in the custody of the churchwardens, who libelled for them, but here only trespass or trover could be maintained.

(2)See Anon. 1 Vent. Rep. 274. S. P.

to pay them; since it appears, that they have vexed the defendant without cause. And therefore a prohibition was denied. Ld. Raym. 435. (3)

T. 12 W. Jones and Stone. David Jones, the vicar of N. was libelled against in the spiritual court, for that by custom time out of mind, the vicars of N. had by themselves or others, said and performed divine service in the chapel of Chawbury, for which there was such a recompence, and that he neglected. The defendant came for a prohibition, and without traversing this custom, suggested that all customs were triable at common law. And it was urged, that it was enough for a prohibition, that a custom appeared to charge the vicar with a duty, for which he was not liable of common right. But by Holt chief justice : A parson may be bound to an ecclesiastical duty by custom, and when he is bound by custom, the spiritual court may punish him if he neglects that duty; the custom might have a reasonable commencement by composition in the spiritual court, and begin by an ecclesiastical act; and a bare prescription only is not a sufficient ground for a prohibition, unless it concerns a layman; whereas here it is an ecclesiastical right, an ecclesiastical person, and an ecclesiastical duty, and the prescription not denied. 2 Salk. 550. i Lord Raym. 578.

(On trial of [Prohibition on trial of a modus in tithe suits. See Tithes, a modus in

tithe suits.] IV. 13.]

7. When the issue of a matter depending in the spiritual court, On the conis determined or influenced by any statute, a prohibition lieth. struction of

acts of parThe reason is, because the temporal judges have the interpretation is of all statutes or acts of parliament, whether they concern temporal matters or spiritual.

In some of the books there is an intimation, that not only all statutes whatever are to be interpreted by the temporal courts; but also that when a statute is made, giving remedy in a matter of ecclesiastical cognizance, the very making of such statute doth

[ 223 ] ipso facto take the right of jurisdiction from the spiritual court, and transfer it to the temporal; if there is not a special saving in the act, to preserve the spiritual jurisdiction. But to this the rule laid down by lord Coke, (which is also generally followed by the books), is a full answer; — An act of parliament being in the affirmative, doth not abrogate or take away the jurisdiction ecclesiastical, unless words in the negative be added, as and not otherwise, or in no other manner or form, or to the like effect. Gibs. 1028.

8. T. 2 An. By Holt chief justice: It was formerly held by On a refu. all the judges of England, that when there was a proceeding ex sal of

copy of the officio in the ecclesiastical court, they were not bound to give the libel.


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party a copy of the articles; but the law is otherwise, for in such cases, if they refuse to give a copy of the articles, a prohibition shall go until they deliver it; and accordingly, upon motion, a prohibition was granted in the like case by Holt chief justice and

the court. Ld. Raym. 991. [Anon. Salk. 553. acc.] On a colla 9. Prohibition may be granted upon a collateral surmise; that teral sur. mise. (4) is, upon a surmise of some fact or matter not appearing in the

libel. It was heretofore a petition of the clergy to the king in parliament, that no prohibition might be granted, without first shewing the libel: and it was a complaint of archbishop Bancroft in the time of king James the first, that prohibitions were granted without sight of the libel, which (as it was there said) is the only rule and direction for the true granting of a prohibition, because upon diligent consideration thereof it will easily appear, whether the cause belong to the temporal or ecclesiastical cognizance; as, on the other side, without sight of the libel, the prohibition must needs range and rove with strange and foreign suggestions, at the will and pleasure of the deviser, nothing pertinent to the matter in demand. To this charge of granting prohibitions without sight of the libel, the judges in their answer say nothing; but as to granting them upon suggestion of matters not contained in the libel, their words are these: Though in the libel there appear no matter to grant a prohibition, yet upon a collateral surmise the prohibition is to be granted; as, where one is sued in the spiritual court for tithes of sylva cædua, the party may suggest, that they were gross or great trees, and have a prohibition, yet no such matter appeareth in the libel; so if one be sued there

for violent hands laid on a minister by an officer, as a constable, [ 224 ] he may suggest, that the plaintiff made an affray upon another,

and he to preserve the peace laid hands on him, and so have a prohibition : and so in very many other like cases; and yet upon the libel no matter appeareth, why a prohibition should be

granted. Gibs. 1027. () On the

10. H. 13 W. Libel in the spiritual court by the husband and husband's suing on whes 10

wife, for calling the husband cuckold: Ruled by Holt chief the wife's justice, that a prohibition shall go, because they cannot both sue cause of

in that court for that word, but the wife only, the imputation action,

being upon her; and the husband and wife by the law spiritual may not join in suit in the ecclesiastical court as they must do in the temporal, but each shall sue separately upon their own cause of action. Anon. 3 Salk. 288.

(4) A prohibition cannot be granted on a suggestion which is plainly false in fact, Smith v. Wallet, i Ld. Raym. 587. 1 Salk. 58. S. C. Aston v. Castle Birmidge, Hob. Rep. 66.; and though the surmise be matter of fact and triable by a jury, the court may at discretion refuse it. Jones v. Jones, Hob. Rep. 185.

(i) Vid. 2 Inst. 607.

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