150 The largest class of cases where Prohibitions have 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 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 147 Where Prohibition lies to stay proceedings for a 148 Where adjudication will not be prevented id. As in the grant of a Fa culty to appropriate part 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- id. Nor where it appears good on the face of it. id. Where matters triable at Common Law arises in- 154 .. 146 ...... 155 id. As the construction of a Statute Or question of legal lien on a Will.. id. Prohibition is granted where the Spiritual Court properly 156 Manner of exercising Ju risdiction no ground for id. But Citation must shew an offence within the Juris- 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 id. PROHIBITION MAY GRANTED AFTER SEN- 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- 159 Nor where steps have not been taken to enforce the id. AN UNSOUND DISCRETION IS THE SUBJECT OF AP- 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 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- 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 id. Nor to the Costs of a Rule for issuing a Prohibition id. Nor to the Costs of a first Trial where there has id. The Jury may assess Damages id. Prohibition does not neces sarily put an end to the 171 But proceedings are staid.. id. Finding of the Jury sets the matter at rest....... Judgment is conclusive id. When Jury disproves a Prescription or Custom, 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 163 164 id. Where the defendant dies id. Plaintif may have a new Prohibition against his 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- 173 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) (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. |