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than the common law requires. And lord Mansfield said, that though he was very sorry that the court were obliged to grant the prohibition (because the party applied for it only to get rid of paying the costs occasioned by his own vexatious suit), yet he thought they could not avoid doing it. And the rule for a
prohibition was made absolute, i Burr. Rep. 314. Party dy- 18. If the defendant in a prohibition die; his executors may
proceed in the spiritual court, and the judges of that court, out of which the prohibition was granted, will also in such case make a rule to the spiritual court to proceed: but the plaintiff may, if he pleaseth, have a new prohibition against the executors.
Wats. c. 55. Costs. 19. A prohibition takes off the costs assessed upon an appeal, (Plaintiff.) where the cause is returned to the inferior court. This was ad
judged E. 7 Cha. in the case of Crompton and Waterford; where an appeal had been to the delegates, who overruled it, and assessed costs for the wrong appeal: And the court agreed with Richardson, that because a prohibition stays all proceedings, the costs were taken away; and added, that if the party was excommunicate, he should be absolved. Hetl. 167. Litt. 365. Gibs. 1029.
By the statute of the 8 & 9 W. c. 11. In suits upon prohibitions, the plaintiff obtaining judgment or any award of execution, after plea pleaded, or demurrer(9) joined therein, shall recover his costs of suit ; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same. 3. (1)
H. 4 G. Sir Henry Houghton and Starkey. After judgment for the plaintiff in prohibition, the question was, what costs ought to be allowed ; and whether they should be computed from the first motion, or only from the declaration, was the doubt. Upon search, it was found to be the course of all the courts, to tax only from the time of declaring, except in two instances; the one in the case of Eads and Jackson in the 2 Geo., and the other in the case of Brown and Turner; where they were allowed from the first motion. And of this opinion were all the judges. And all the officers were directed for the future to allow the costs of the first motion. And afterwards, H. 12 Geo. between Swetnam
and Archer, it was stated in the same manner, and agreed to be [ 230 ] the uniform practice ever since. And E. i G. 2. between Sir
Thomas Bury and Cross, the same doubt was raised by a new
(9) Thus semb. if defendant succeed on demurrer, he has no costs, Brymer v. Atkyns, H. 22 G. 3. C. P. Tidd. 7th ed.961.
(1) For the statute of Glocester, 6 Ed. 1. c. 1. s. 2. does not extend to cases when the crown is prosecutor as in prohibition, Comb. 20.
master; and the court ordered costs from the first motion. Str. 82. [See Cas. Pr. C. P.11.]
M. 10 G. 2. Middleton and Croft. The plaintiff in prohibition, having prevailed in one point, although he failed in all the rest, moved for costs, and it was moved that they might be taxed from the time of the first motion, according to several determinations. And this last was acquiesced in, if the court should be of opinion for costs. As to which it was objected, that the point in which the plaintiff prevailed was not the gift of the proceedings, but only a circumstance; and that it would be very hard, that they who had prevailed upon the merits should pay costs. But by the court, The words of the act are not to be got over, which give costs to the plaintiff, if he obtains any judgment: and this matter was under consideration in the house of lords in Dr. Bentley's case, where the prohibition stood as to some articles, and there was a consultation for the rest: to be sure it will be considered in the quantum, but we cannot deny costs. Str. 1062.-(2)
H. 14 G. 2. Gegge and Jones. Upon shewing cause against a prohibition, the court made the rule absolute, with a direction that the plaintiff should declare in prohibition. He tendered a declaration, but the defendant refused it, and applied to stay proceedings, as being willing to submit. The other insisted he had a right to go on, and so get the costs of the motion, which he could not otherwise have. But the court stayed the proceedings without costs; saying, the direction to declare was in favour of the defendant, who might waive it. Str. 1114.
[Where defendant pleaded nothing to the merits but only that (Costs. he did not proceed in the spiritual court after the prohibition, (Defendthe court ordered the defendant to pay plaintiff's costs of proceeding in prohibition. (3) Where defendant in prohibition lets judgment go by default, plaintiff is entitled by common law to a writ to inquire of his damages for the contempt in proceeding after the prohibition delivered : and of consequence by the stat. Glocester, to his costs (4), but not in this case from the first motion, but only from the time that the rule for a prohibition was made absolute, as defendant could not possibly be in contempt before.(5) And where plaintiff was nonsuited, it was holden that defendant ought only to have the costs of the nonsuit, and not those incurred by opposing the rule to shew cause why the writ of prohibition should not be granted.(6)]
[By proviso in § 5. the statute shall not extend to executors or
(2) So if defendant prevail as to part he shall have costs, Barnes, Ca. Pr. 138, 139. (3) Barnes, 148.
(4) Cas. Pr. C. P. 20. (5) Cas. Pr. C. P. 21.
(6) Sayer's Costs, 137.
administrators: and hence it has been determined that in prohibition they are not liable to payment of costs though defendants, and defeated on demurrer.(7)]
20. To conclude, Sir Simon Degge observeth, that prohibitions of themselves are excellent things, where they are used upon just, legal, and true grounds; and have often avoided the usurpations of the popes and spiritual courts. But by the corruption of these latter times, they are grown very grievous to the clergy (in the recovering of their tithes and other rights), being too often granted upon feigned and untrue suggestions, which it is impossible the judges should foresee without the spirit of prophecy. And (he adds) I think I may presume to say, that where one was granted before queen Elizabeth's time, there have been a hundred granted in this last age. And they are a very great delay and charge to the clergy; and it were well (says he) in my poor judgment, if the reverend judges would think of some way to re
strain them, or to make them pay well for their delay, by making [ 231 ] the plaintiff enter into recognizance to pay such costs as the court
out of which they issue should award, in case they should not prove their suggestion in convenient time : or some such other course as they in their great wisdom shall think just and meet. Deg. p. 2. c. 26. (0)
Note, Consultation is treated of under the title of that name.
Provisors. See Courts.
(7) Scammell and Others v. Wilkinson and Another, 3 East, 202.
(0) The practice of the courts of common law, in granting prohi. bitions, was seriously complained of in the reign of James I. by archbishop Bancroft, who in the name of the whole clergy exhibited to the privy council against the judges, “ certain articles of abuses « which were desired to be reformed in granting of prohibitions ;" but his objections were fully answered by them. 2 Inst. 601. If a prohibition be improperly obtained by an untrue suggestion, a consultation will be awarded, which remits the cause to the proper jurisdiction ; see eonsultation. And in Searle's case, the judges said " it is a rule not to grant a prohibition where the proceedings in « ecclesiastical courts are not against the law of the land and the “ liberty of the subject." Cro. Jac. 431. For according to Mr. J. Blackstone, as on the one hand the courts of Westminster lend the ecclesiastical courts a parental assistance in aiding the compulsive powers of their jurisdiction; so on the other they are obliged sometimes to exercise a parental authority by restraining those powers within their proper limits. Vol. 3. p. 103. For the form of pleadings on a writ of prohibition, see Soby v. Molins, Plowd. 468.
I. Due attendance on the public worship.
I. Due attendance on the public worship. (8)
1. Can. 90. THE churchwardens or questmen of every parish, All persons and two or three more discreet persons to be
t he shall resort
to church. chosen for sidesmen or assistants, shall diligently see that all the parishioners duly resort to their church upon all Sundays and holidays, and there continue the whole time of divine service : and all such as shall be found slack or negligent in resorting to the church (having no great or urgent cause of absence) they shall earnestly call upon them; and after due monition (if they amend not, they shall present them to the ordinary of the place.
2. By the 5 & 6 Ed. 6. c. 1. [$ 2. and 1 El. c. 2. $ 14.] All On pain of persons shall diligently and faithfully (having no laroful or reason
by the cenable excuse to be absent) endeavour themselves to resort to their sures of the parish church or chapel accustomed, or upon reasonable let thereof church. to some usual place where common prayer and such service of God shall be used in such time of let, upon every Sunday and other days ordained and used to be kept as holidays; and then and there to abide orderly and soberly during the time of the common prayer, preaching, or other service of God: on pain of punishment by the censures of the church [and of 12d. per Sunday, 1 El. c. 2. $ 14. only, see Dissenters, I. 2.]
And for the due execution hereof; the king's most excellent majesty, the lords temporal, and all the commons in this present parliament assembled, do in God's name require and charge all the archbishops, bishops, and other ordinaries, that they shall endeavour themselves to the utmost of their knowledges, that the due and true execution thereof may be had throughout their dioceses and charges, as they will answer before God for such evils and plagues wherewith Almighty God may justly punish his people, for neglecting this good and wholesome law. $ 3.
3. By the 1 El. c. 2. All persons shall diligently and faithfully, On pain of having no lawful or reasonable excuse to be absent, endeavour : themselves to resort to their parish church or chapel accustomed,
(8) See these acts more fully treated, Dissenters, I. 2. holidays, 4. popery, XV.
or upon reasonable let thereof, to some usual place where common prayer and such service of God shall be used, in such time of let, upon every Sunday, and other days ordained and used to be kept as holidays, and then and there to abide orderly and soberly, during the time of the common prayer, preaching, or other service of God there to be used and ministered ; on paid of punishment by the censures of the church, and also upon pain that every person so offending shall forfeit for every such offence 12d. to be levied by the churchwardens of the parish where such offence shall be done, to the use of the poor of the same parish, of the goods and lands of such offender by way of distress. § 14.
All persons] Femes covert as well as others. Gibs. 291.
Except dissenters qualified by the act of toleration, who resort to some congregation of religious worship allowed by that act. 1 W. c. 18. § 2. 16. [And persons who shall take the oaths and come to some congregation or place of religious worship permitted to Roman catholics by 31 G. 3. c. 32. 99.]
But they who repair to no place of public worship, are still punishable as before that act (or the 31 G. 3. c. 32.] And if the churchwardens shall happen to present a person, who possibly may go to some other place; the proof thereof rests upon the person presented, and the absence from church justifies the presentment. Gibs. 964.
Having no larwful or reasonable excuse] In the case of Elizabeth Dormer, an exception was taken to the indictment, because these words were omitted, not having any lawful or reasonable excuse ; but it was agreed by all, that these words are to come in on the other side, and need not be put into the indictment. Gibs. 291.
To their parish church] If one goes to a customary chapel within the parish, it is a good excuse ; but this must be pleaded. Gibs. 292.
If the plea in the spiritual court be, that this is not his parish church, and they refuse the plea, a prohibition will be granted : because that court cannot intermeddle with the precincts of parishes. Gibs. 292.
Or upon reasonable let thereof, to some usual place where common prayer and such service of God shall be used in such time of let] By the common law or practice of the church of England, no person can be duly discharged from attending his own parish church, or warranted in resorting to another, unless he be first duly licensed by his ordinary, who is the proper judge of the reasonableness of his request, and grants him letters of licence under seal, to be exhibited (as there shall be occasion) in proof of his discharge. Which licences are very common in our ecclesiasti-, cal records. Gibs. 291.
And there to abide orderly and soberly] It is not enough to come, unless he also abide; nor enough to abide when he is