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150

The largest class of cases

where Prohibitions have
been granted

142 Where a matter is only

triable at Common Law id. Such as Prescriptions, Customs, &c......

id. As a Prescription for a Seat id. Or claims by extraparochial persons

id. Or where a Prescriptive

right of way is claimed 143 Or a Churchway surmised

to be a common Highway id. Or trying the right of nam

ing Churchwardens id. But not in questions be

tween Rector and Vicar id. Where Prescription is admitted.

id. Proceeding towards the

Trial of a Prescription id. There must be a Plea or Allegation

144 French v. Trask over-ruled id. Prohibition refused where

a Lease was not properly
in issue

id. Where Prescription is denied

145 Where it is pleaded

id. As where a person is sued for a Seat

id. Prohibition will be granted id. Where a Custom is ad. mitted .

id. Where it is denied.. Where it is pleaded

id. Where a Modus is admitted .

id. Where it is pleaded

id. Question as to the bounds of a Parish

147 Ground for Prohibition id. Bounds of Vills in the same Parish

id.

Question whether a Pa

rochial Church or Chapel
of Ease

147 Where Prohibition lies to

stay proceedings for a
Faculty

148 Where adjudication will not be prevented

id. As in the grant of a Fa

culty to appropriate part
of a Church

id. Or a Faculty to confirm Alterations....

id. Erections and Alterations

in Great St. Mary's id. Prohibition refused

149 Where it lies after Faculty is granted

id. DEFECT OF TRIAL On what principle this class

of cases is founded id. Where a collateral question arises

id. Or where the Common Law

is to be declared..... id. As where the question is,

whether a Church Rate

has been properly imposed 151 But not if the matter be not essential

id. Grounds for Prohibition to a Church Rate

id. Rate made without due authority

152 Where the person rated is not liable

id. Rate made for an improper purpose

153 But not where a Rate is

said to be needlessly im-
posed

id. Nor where it appears good on the face of it.

id. Where matters triable at

Common Law arises in-
cidentally

154

.. 146

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...... 155

id.

As the construction of a

Statute Or question of legal lien on a Will..

id. Prohibition is granted

where the Spiritual Court
construes a Statute im-

properly
When the objection must be
taken

156 Manner of exercising Ju

risdiction no ground for
Prohibition

id. But Citation must shew an

offence within the Juris-
diction of the Ecclesias-
tical Court..

id. Or Prohibition will be granted

id. Practice of the Ecclesiastical Courts

157 Mere irregularities no

ground for Prohibition id. Either in the method of examining Witnesses

id. Or even where there is Perjury..

id. But it lies quousque for

refusing a copy of the
Articles

id. PROHIBITION MAY

GRANTED AFTER SEN-
TENCE

158 Where it is shewn that the

Court had no Jurisdiction id. But Prohibition will not be

granted where the Spiritual Court had cognizance of part of the charge

id. Want of Jurisdiction must be apparent

id. The General Rule

id. It is improper to go out of the proceedings

id. But an objection may be

collected from them 159 And so be apparent on the

face of the proceedings.. id.

Where Jurisdiction is re

strained by Statute, Pro-
hibition does not lie after
Sentence ....

159 Nor where steps have not

been taken to enforce the
Sentence..

id. AN UNSOUND DISCRETION

IS THE SUBJECT OF AP-
PEAL

160 As where a wrong Sentence

is given on the merits id. It is no ground for Prohibition

id. Unless on Appeal the Sena

tence shews an apparent

want of Jurisdiction id. Prohibition lies to a Court

of Appeal which has no
Jurisdiction

id. Or which exceeds its Juris. diction

id. Even at the Suit of the

party who has appealed 161 Prohibition refused where

case was depending id. Prohibition lies after Appeal ..

id. Where the matter is appa.

162 As for settling Church

wardens' Accounts id. Or where a Custom as to

the Disposing of Seats

comes into question id. Or a man is improperly rated

id. SUIT FOR A PROHIBITION id. On whose application id. Against whom

163 Party must be in danger of being injured.

id. Defendant must have ap

peared in the Ecclesias-
tical Court...

id. There must be further pro

ceedings after Plea id. Where the Plea is bad on the face of it .

id.

rent ........

BE

On what the action of

Prohibition was formerly founded

168 It is now on the footing of

an ordinary action id. Statement in the Declaration

169 Pleadings in the case

id. Several Pleas may now be pleaded

id. Plea may be amended id. For what Judgment is given 170 Successful party entitled to Costs

id. But not to those incurred in the

Ecclesiastical
Court

id. Nor to the Costs of a Rule

for issuing a Prohibition id. Nor to the Costs of a first

Trial where there has
been a second one

id. The Jury may assess Damages

id. Prohibition does not neces

sarily put an end to the
Suit...

171 But proceedings are staid.. id. Finding of the Jury sets the

matter at rest.......
Of which the Record of the

Judgment is conclusive
evidence

id. When Jury disproves a

Prescription or Custom,
the claim so founded falls
to the ground....

id. So where defendant's Plea

covers the whole case.... 172 But if the verdict is in

favour of plaintiff, the

Spiritual Court proceeds id. Procceding after Writ deli

id .

...

Where the Plea is waived 163
Where two cannot join in
Prohibition

164
Where two or more join,
and one dies

id. Where the defendant dies id. Plaintif may have a new

Prohibition against his
Executors

id. Mode of application for a Prohibition

id. Method of proceeding during Term

id. A Suggestion formerly necessary

id. But now the Application is

made on Affidavits only 165 A copy of the Libel must be given

id. Or a Prohibition quousque lies

id. On an Affidavit of refusal id. Where a second Prohibition lies

id. Where a Writ of Prohibition issues

id. Where it may be amended id. Writ may be obtained out

of Chancery during Vacation

166 It may be set aside by any

of the Superior Courts.. id. Where the point is nice and doubtful.

id. Plaintif has leave to declare

id. But defendant may always

put him to declare.... id. As he has a right to a Declaration

167 Refusal of a Prohibition.. id. Fresh application cannot be

made to the same Court id. Though it may to the others 168 Refusal of all not conclu

sive against plaintif .. id.

vered is a contempt id. Attachment will be granted for disobeying a Prohibition

id.

. . . . . . . .

Unless Prohibition be superseded

172 And it may be awarded against a Peer

id. Attachment granted after a

Prohibition in a Suit for

a Seat claimed by Pre-
scription.....

173
Also for instituting a new

Suit for the same thing id. What has been held not a contempt...

id.

.

In the time of our Saxon ancestors there was no Formerly no sort of distinction between the Lay and the Ecclesias- distinction

between Lay tical Jurisdictions,--the County Court was as much and Ecclea Spiritual as a Temporal Tribunal; the rights of the siastical JurisChurch were ascertained and asserted at the same time, and by the same Judges as the rights of the laity. (a)

For this purpose the Bishop of the Diocese, and Bishop and the Alderman or Earl, or, in his absence, the Sheriff Alderman sat

in the County of the County, used to sit together in the County Conrt. Court, and had there the cognizance of all Causes, as well Ecclesiastical as Civil ; a Superior Deference being paid to the Bishop's opinion in spiritual matters, and to that of the lay Judges in temporal. (6) This system, however, was not relished by the

Separation Court of Rome, and after the Norman Conquest, made by

William the William the Conqueror was at length prevailed Conqueror. upon to separate the Ecclesiastical Court from the Civil, and to establish, what Sir William Blackstone calls, “this fatal encroachment." A Charter was accordingly issued, which prohibited any Spiritual Cause from being tried in the secular Courts, and commanded the suitors to appear before the Bishop only, whose decisions were directed to conform to the Canon Law. (c)

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(a) 3 Bla. Com. 61. ,

(6) 3 Bla. Com. 61; L. L. Eadgar, c. 5.

(c) 3 Bla. Com. 62, 63; Hale Hist. C. L. 102; 4 Inst. 259.

This was dis.

Henry 1. King Henry I., at his accession, among other revived the

restorations of the laws of King Edward the Conunion.

fessor, revived the union of the Civil and Ecclesiastical Courts; which, according to Sir Edward Coke, after the great heat of the Conquest was passed, was only a restitution of the ancient law of England. (d)

The Popish Clergy, however, early disapproved of approved of by this measure, and therefore, in their Synod at Westthe Popish Clergy. minster, 3 Henry I., they ordained that no Bishop

should attend the Discussion of temporal causes,

which soon dissolved this newly-effected union. (d) And Stephen

When upon the death of King Henry I., the made Eccle

usurper Stephen was brought in and supported by siastical causes subject to the the Clergy, we find one article of the oath which Bishop only. they imposed upon him, was, that ecclesiastical

persons and ecclesiastical causes should be subject only to the Bishop's Jurisdiction. And it was about this time that the contest began between the laws of England and those of Rome, the Temporal Courts adhering to the former, and the Spiritual adopting

the latter as their rule of proceeding. (e) Connection

Sir William Blackstone says: “the timely aids,

which the Common and Statute Laws have lent to Ecclesiastical and Common the Ecclesiastical Jurisdiction, may serve to refute Law Courts.

that groundless notion which some are too apt to entertain, that the Courts at Westminster Hall are at open variance with those at Doctors Commons. It is true they are sometimes obliged to use a

between the

(e) 3 Bla. Com. 64; Spelm. Cod. 301.

(d) 3 Bla. Com. 63; Curt.
Hen. I. in Spelm. Cod. Vet.
Legum, 305; 2 Inst. 70; Spelm.
Cod. 301.

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