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11. The suggestion must have been moved, and rejected in Suggestion the spiritual court, before it can be admitted in the temporal to be first

i moved in court. - In the bishop of Winchester's case (2 Co. 45.) it was held, the spirithat in a suit for tithes in the spiritual court, a man may have a tual court. prohibition, suggesting a prescription or modus, before or without pleading. But this seems not to be law. For in the 12 W. a prohibition was moved for, suggesting a custom. But it was denied by Holt chief justice, and the court, unless they pleaded it below, because perhaps they might admit the plea. Also in the 10 W. it was said by Holt chief justice, that if a modus be pleaded in the spiritual court, and admitted, no prohibition shall go; but if the question be, whether a modus or no modus, a prohibition shall go; and so is the law, viz. wherever the matter which you suggest for a prohibition is foreign to the libel, you must plead it below (5), before you can have a prohibition; otherwise where the cause of prohibition appears on the face of the libel. 2 Salk. 551. (6)

12. M. 4 An. Burdett and Newell. A rule was made to shew Affidavit to cause, why a prohibition should not be granted, to stay a suit be mad

the sugges. against the plaintiff, in the court of the archdeacon of Litchfield, tion. for not going to his parish church, nor any other church on sundays or holidays, nor receiving the sacrament thrice a year; upon suggestion of the statute of Eliz. and the toleration act, and then qualifying himself within that act; and alleging that he pleaded it below, and that they refused to receive his plea. It was shewed for cause, that this fact was false, and the plaintiff was not a dissenter, nor had qualified himself as above; and [ 225 ] therefore it was moved, that the court would not allow the rule to stand, unless they had an affidavit of the fact; for by that means any person might come and suggest a false fact, and oust the spiritual court of their jurisdiction. Which was agreed to by the court, and therefore the rule was discharged. Ld. Raym. 1211.

And by Holt chief justice, the distinction is this: Where the matter suggested appears upon the face of the libel, we never

(5) Dikev. Brown, 2 Raym. 835. Farresl. or 7 Mod. Rep. 137. 2 Inst. 64. acc. Aliter, comm. semb. where the spiritual court incidentally determines any matter of common law cognizance otherwise than as common law requires, Gould v. Gapper, infra 16. n.; and though there is a distinction in ecclesiastical practice between the answer and the plea of a modus, (Stone v. Harwood, Rep. t. Hardw. 357. Broughton v. Hustler, 10 East. 349. Gwill. 951.) an affidavit “ that defendant had answered on oath or pleaded," such modus was held sufficient to found a prohibition : for it appeared that there was nothing to try in the court below but the modus insisted on in defendant's answer.

(6) Thus it cannot be granted on process before libel and appearance, Transer v. Watson, 1 Salk. 35. 2 Ld. Raym. 321. S. C. See Dutens y, Robson.

necessary.

insist upon an affidavit; but unless it appear upon the face of the libel, or if you move for a prohibition as to more than appears on the face of the libel to be out of their jurisdiction, you ought to have affidavit of the truth of the suggestion. 2 Salk.

549. (k) Strict proof 13. It is said, the suggestion need not be precisely proved, in of the sug- order to obtain a prohibition. For where the suggestion was for gestion not

a modus for lamb and wool, though the proof failed as to the wool, and it was urged that therefore they had failed in the whole; yet a prohibition was granted. And in the case of

Austen and Pigot, it was said, that the proof in a prohibition need not to be so precise, but if it appears that the court christian ought not to hold plea thereof, it sufficeth. Gibs. 1029. (1)

But if the suggestion appears to the court to be notoriously false, they will not grant a prohibition; for by Holt chief justice, they ought to examine into the truth of the suggestion, and see

what foundation it hath. L. Raym. 587. Suggestion 14. Lord Coke says, the suggestion for a prohibition may be traversable.

traversed in the temporal court. 2 Inst. 611.

And Dr. Watson says, if the suggestion for a prohibition contains no other matter upon which a prohibition ought to be granted to the spiritual court, besides the refusal of a plea there, which by the common law is a good plea, and ought to have been allowed, in such case the refusal is traversable. Therefore

supposing that a modus decimandi, or a prescription of a manner [ 226 ] of tithing is triable in the spiritual court; if in a suit there for

a modus decimandi another modus be pleaded, or that there is no such modus, and that plea is refused; or if in a suit for tithes of lands not tithe-free, a prescription is pleaded as to the manner of tithing, and that plea is refused ; and a prohibition is moved for, upon suggestion of such refusal ; the refusal being the principal matter of the suggestion, is therefore traversable. Wats. c. 57.

in fine. (m) Not on the 15. Prohibitions are not to be granted on the last day of the last day of term. So is the rule set down in the books : to which Rolle the term.

adds, nor on the last day save one: and the reason of both is, that there would not be time for notice to be given to the other side. But it is added in Latch, that upon motion, on the last

(k) Where it is necessary to suggest a particular fact to the court, as a custom, it must be verified by affidavit. Caton v. Burton, Cowp. 330..:

(1) Austen v. Pigot, Cro. Eliz. 736. For the court will refuse a consultation if any modus be found though different from that laid. But, at the same time, if the modus be not proved as laid by the plaintiff in prohibition, there must be a verdict for the defendant, who is entitled to costs. Brock v. Richardson, 1 T. Rep. 427. :

(m) Vide also Peters v. Prideaux, 3 Keb. 332.

he cause dot for and granted out of ore

ter sen. tence.

day of the term, there may be a rule to stay proceedings till the next term. Gibs. 1029. (7)

16. T. 10 W. Gardner and Booth. Where it doth appear in May be af. the libel, or by the proceedings in the cause, that the cognizance ter of the cause doth not belong to the spiritual court; a prohibition may be moved for and granted after sentence : and this holds in all cases but where one is sued out of his diocese; for there, if he doth not take advantage of it before sentence, he shall not have a prohibition after sentence; and the reason is, for that the cause doth belong to the spiritual court; and though it doth not belong to that spiritual court, it belongs to some other, and not to the king's temporal court. 2 Salk. 548.

So in the case of Parker and Clarke, M. 3 An. The clerk of a parish libelled against the churchwardens, for so much money. due to him by custom every year, and to be levied by them on the respective inhabitants in the said parish; and after sentence in the spiritual court, the defendants suggested for a prohibition, that there was no such custom as the plaintiff had set forth in his libel. It was objected against granting the prohibition, that it was now too late, because it was after sentence, especially since the custom was not denied; for if it had, and that court had proceeded, then and not before it had been proper to move for a prohibition. But by Holt chief justice; It is never too late to move the king's bench for a prohibition, where the spiritual court hath no original jurisdiction, as they had not in this case, because the clerk of a parish is neither a spiritual person, nor is this duty in demand spiritual, for it is founded on a custom, [ 227 ] and by consequence triable at law; and therefore the clerk may have an action on the case against the churchwardens, for neglecting to make a rate, and to levy it, or if it had been levied, and not paid by them to the plaintiff. 6 Mod. 252. 3 Salk. 87. (8)

(7) Latch. 7. 2 Roll. Rep. 456. And in one case it was granted on the last day, leave having been got the day before to move it then. Catchside v. Ovington, 3 Burr. 1922.

(8) A prohibition cannot be had after sentence, unless the want of jurisdiction in the court below appear on the face of the proceedings in it. Argyle v. Hunt, Stra. 187. Blaquiere v. Hawkins, Doug. 378. Ladbroke v. Cricket, 2 T. Rep. 649. But if it appear on the face of the proceedings that the court has exceeded its jurisdiction, a prohibition will be granted even after sentence. Symes v. Symes, 2 Burr. Rep. 813. Buggin v. Bennett, 4 id. 2035. Catchside v. Ovington, 3 id. 1923. and see Com. Dig. tit. Prohibition (D). Thus the consistorial court of the bishop of Norwich having ordered certain churchwardens to deliver in their accounts, but having afterwards examined the account and struck a balance, which they refusing to pay, the judge pronounced them contumacious, and excommunicated them; the court of king's bench being moved for a prohibition, granted it; for

Plaintiff 17. The plaintiff, as well as defendant, in the spiritual court, may have a

na may have a prohibition to stay his own suit. To this purpose,

the ecclesiastical court may compel churchwardens to deliver in their accounts, but cannot proceed to examine the different articles. Leman v. Goulty, 3 T. Rep. 3. And where the plaintiff in prohibition properly pleaded a modus to a suit for tithes in the ecclesiastical court of the dean of the cathedral church of Sarum ; but the judge of the court by an interlocutory sentence decreed him to answer more fully, from which sentence he appealed, and his appeal was dismissed with costs. The court of king's bench granted a prohibition to both courts, in order to stay execution for the costs ; for the sentence was not final; and it also appeared on the face of the proceedings that the jurisdiction of the ecclesiastical court ceased when the modus was pleaded, and could not recommence till there was a verdict for the defendant, and a consultation awarded. Darby v. Cosens, 1 T. Rep. 552. i Dougl. 378. n. But the rule lastly abovementioned is applicable to those cases only where prohibitions are granted for want of original jurisdiction in the courts below, and not to those cases where they may be had if duly applied for, on account of a defect of trial. For where a matter collateral and incidental to a suit arises, which is properly triable at common law as a modus, though the courts of common law would have granted a prohibition before sentence on account of the defect of trial in the ecclesiastical court, they will not grant it after sentence if the defendant there pleaded the modus, and submitted to the trial of it; for by so doing he has waived the benefit of a trial at common law. Full v. Hutchins, Cowp. 422. Other cases cited arguendo, 5 East, 348. So where it did not appear on the face of the proceedings that the fact of boundary of parish (for trial of which prohibition was moved) was denied or in issue below, Stainbank v. Bradshaw, 10 East, 349. And to oust the ecclesiastical court of its jurisdiction it is not enough that a custom or prescription be stated, except it be denied by the other side, and the court are proceeding to try it: for it may be immaterial to the question. Dutens v. Robson, 1 H. Bla. 100. See Jones v. Stone, ante, 6. But after a decision for the rector in a suit for tithes in the archidiaconal court, the defendant below applied for a prohibition on the ground of misconstruction of an act of parliament, on which as a matter of common law cognizance incident to the suit, that court had determined the case. The court of K. B. directed plaintiff to declare in prohibition for the more solemn adjudication of the question, Wheother, supposing the court below to have misconstrued the act, a

prohibition should go after sentence in a matter in which the court « below had original jurisdiction, or whether it was only a ground of • appeal ?' Gare and Gould v. Gapper, 3 East. Rep. 472. and afterwards on demurrer to the declaration, the whole law of prohibition before and after sentence having been ably discussed, the Court held that where the spiritual court incidentally determines any matter of common law cognizance, such as the construction of an act of parliament, otherwise than the common law. requires, prohibition lies after sentence, although the objection does not appear on the face of the libel but is collected from the whole of the proceedings below, Gould

shoother judicial.f the judges which the kings to the king's be pro

when archbishop Bancroft alleged that the plaintiff's having made choice thereof, and brought his adversary there into trial, should by all intendment of law and reason, and by the usage of all other judicial places, thereby conclude himself in that behalf; yet the answer of the judges was, that none may pursue in the ecclesiastical court, for that which the king's court ought to hold plea of; but upon information thereof given to the king's courts, either by the plaintiff or by any mere stranger, they are to be prohibited, because they deal in that which appertaineth not to their own jurisdiction. (n) And in the case of Worts and Clyston, M. 12 Ja. the same thing was declared and adjudged in the court of king's bench. Gibs. 1027. Cro. J. 350.

Ē. 30 G. 2. Paxton and Knight. This was a question whether à prohibition should be granted, to stay proceedings in an ecclesiastical court, in a suit by a quaker, for a seat in a church ; founding his title upon a prescriptive right. In which suit the ecclesiastical court had determined against him. And now he came, after sentence below, for a prohibition. (Note, an immemorial prescription was alleged on both sides.) On shewing cause against the prohibition, it was urged, that the court will not, after sentence, grant a prohibition, unless the defect of jurisdiction appears upon the face of the libel. And the aforesaid case of Market Bosworth was insisted on, where the spiritual couri had adjudged against the custom set up; though their law allows a less time, than the common law, to make a custom : but the prohibition was denied. So here, if the spiritual court will admit less evidence of a prescription than the temporal courts will, and the prescription is nevertheless found to be groundless; it is certain that the party who sets it up can have no reason to come for a prohibition after sentence: and his only reason for it can be (as the court observed in the aforesaid case) to get clear of those costs, which he hath by his own vexatious suit rendered himself liable to, and which (as was there adjudged) he ought to pay.—But the court seemed to think, that if the sentence of the ecclesiastical court was a nullity, their award of costs must be so too. And here are reciprocal prescriptions alleged. And the prescriptive right of the one is determined [ 229 ] for, though that of the other is determined against. They have adjudged the adverse prescription to be a good one, which they could not try, and which they will establish upon less evidence

v. Gapper, 5 East. Rep. 345. Again, no prohibition will be granted to a spiritual court after sentence on a libel for certain words spoken of a woman which were not actionable at law unless accompanied by special damage. So if that court has cognizance of part of the charge only and not the rest. Carslake v. Mapledoram, 2 T. Rep. 473. (n) 2 Inst. 607.

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