On a collateral sur mise. (4) 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.] 9. Prohibition may be granted upon a collateral surmise; that 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 affiray 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. (i) On the husband's suing on cause of action. : 10. H. 13 W. Libel in the spiritual court by the husband and wife, for calling the husband cuckold: Ruled by Holt chief the wife's justice, that a prohibition shall go, because they cannot both sue in that court for that word, but the wife only, the imputation 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, 1 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. - moved in 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 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 the sugges tion. cause, why a prohibition should not be granted, to stay a suit be made of against the plaintiff, in the court of the archdeacon of Litchfield, 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) Dike v. 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 v. Robson. Strict proof of the sug gestion not necessary. Suggestion traversable. 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) 13. It is said, the suggestion need not be precisely proved, in order to obtain a prohibition. For where the suggestion was for 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. 14. Lord Coke says, the suggestion for a prohibition may be 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 last day of the term. 15. Prohibitions are not to be granted on the last day of the term. So is the rule set down in the books: to which Rolle 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. day of the term, there may be a rule to stay proceedings till the Gibs. 1029. (7) next term. ter sentence. 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 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. (S) 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 may have a 17. The plaintiff, as well as defendant, in the spiritual court, prohibition. may have a prohibition to stay his own suit. To this purpose, the ecclesiastical court may compel churchwardens to deliver in their But |