1 Conclufion. manner, and agreed to be the uniform practice ever fince. And E. I Geo. 2. between Sir Thomas Bury and Cross, the fame doubt was raised by a new master; and the court ordered costs from the first motion. Str. 82. M. 10 G. 2. Middleton and Croft. The plaintiff in prohibition, having prevailed in one point, altho' he failed in all the rest, moved for cofts, and it was moved that they might be taxed from the time of the first motion, according to feveral 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 git of the proceedings, but only a circumstance; and that it would be very hard, that they who had prevailed upon the merits, should pay cofts. 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 confideration in the house of lords in Dr. Bentley's cafe, where the prohibition flood as to fome articles, and there was a confultation for the reft: to be fure it will be confidered in the quantum, but we cannot deny costs. Str. 1062. 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 tendred a declaration, but the defendant refused it, and applied to stay proceedings, as being willing to submit. The other infifted 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. 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 ufurpations of the popes and spiritual courts. But by the corruption of these later 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 impoffible 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 (tays he) in my poor judgment, if the reverend judges would think of fome way to reftrain them, or to make them pay well for their delay, by making 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 fome 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. Pfalmody. See Publick worship. Publick Notary. See Rotary Publick. (0) The practice of the courts of common law, in granting prohibitions, 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 defired to be reformed in granting of prohibitions;" but his objections were fully answered by them. 2 Inft. 601. If a prohibition be improperly obtained by an untrue suggestion, a confultation will be awarded, which remits the cause to the proper jurisdiction; fee Consultation. And our judges have 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 fubject." Cro. Jac. 431. For according to Mr. J. Blackstone, as on the one hand the courts of Westminster lend the ecclefiaftical 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. 232 refort to church, I. Due attendance on the publick worship. veral parts thereof. I. Due attendance on the publick worship. All perfons shall I. Can. 90. THE churchwardens or questmen of every parish, and two or three more discreet persons to be chofen for fidemen or assistants, shall diligently fee that all the parishioners duly resort to their church upon all fundays and holidays, and there continue the whole time of divine service: and all fuch as shall be found flack or negligent in resorting to the church (having no great or urgent caufe 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. On pain of punishment by the censures of the church. On pain of 12 d. a funday. 2. By the 5 & 6 Ed. 6. c. 1. All perfons shall diligently and faithfully (having no lawful or reasonable excuse to be abfent) endeavour themselves to refort to their parish church or chapel accustomed, or upon reasonable let thereof, to some usual place where common prayer and fuch 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 foberly during the time of the common prayer, preaching, or other fervice of God: on pain of punishment by the cenfures of the church. f. 2. And for the due execution hereof; the king's most excellent majesty, the lords temporal, and all the commons in this pre fent parliament assembled, do in God's name require and charge all the archbishops, bishops, and other ordinaries, that they hall endeavour themselves to the utmost of their knowledges, that the due and true execution thereof may be bad throughout their diocefes and charges, as they will answer before God for fuch evils and plagues wherewith Almighty God may justly punish bis people, for neglecting this good and wholesome law.... f. 3. 3. By the 1 El. c. 2. All persons shall diligently ana faithfully, having no lawful or reasonable excuse to be ablens, endeavour endeavour themselves to refort to their parish church or chapel accustomed, or upom reasonable let thereof, 10 fome usual place where common prayer and fuch fervice of God shall be used, in fuch 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 foberly, during the time of the common prayer, preaching, or other fervice of God there to be used and miniftred; on pain of punishment by the cenfures of the church, and also upon pain that every person so offending shall forfeit for every such offence 12 d. 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 fuch offender, by way of distress. f. 14. All persons] Femes covert as well as others. Gibf. 291. Except dissenters qualified by the act of toleration, who refort to fome congregation of religious worship allowed by that act. 1 W. c. 18. f. 2. 16. (And persons who shall take the oaths and come to fome congregation or place of religious worship permitted to Roman catholicks by 31 G. 3. c. 32. .9.] But they who repair to no place of publick worship, are still punishable as before that act [or the 31 G. 3. c. 32.]. And if the church-wardens shall happen to prefent a perfon, who poffibly may go to some other place; the proof thereof rests upon the perfon presented, and the abfence from church juftifies the presentment. Gibf. 964. Having no lawful 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 fide, 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. Gibf. 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 asual place where common prayer and fuch fervice of God shall be used in fuch time of let] By the common law or practice of the church of England, no person can be duly discharged from attend.. ing 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 requeft, quest, and grants him letters of licence under seal, to be exhibited (as there shall be occafion) in proof of his difcharge. Which licences are very common in our eccle. fiaftical records. Gibf. 291. And there to abide orderly and foberly] It is not enough to come, unless he also abide; nor enough to abide when he is come, unless he come so as to be present at the several parts of divine service, and also remain there throughout orderly and foberly; the clause being penned conjunctively, and fo the guilt and forfeiture incurred by the violation of any one branch. Gibf. 292. Among the constitutions of Egbert, archbishop of York, one is, that whilst the minister is officiating, if any person shall go out of the church, he shall be excommunicated; and this is taken from a canon of the fourth council of Carthage. Gibf. 964. And all archbishops and bishops, and every of their chancellors, commissaries, archdeacons, and other ordinaries having any peculiar ecclefiaftical jurisdiction, shall have power to inquire hereof in their visitation, fynods, and elsewhere within their jurisdiction at any other time and place, and to take accufation, and informations of all and every the things abovementioned, done committed or perpetrated within the limits of their jurifdictions; and to punish the fame by admonition, excommunication, fequestration, or deprivation, and other cenfures and procefs, in like form as heretofore bath been used' in like cafes by the queen's ecclefiaftical laws. f. 23. And the justices of afsize shall have power to inquire of, bear and determine the fame, at the next assizes; and to make process for execution, as they may do against any perfon being indicted before them of trespass, or lawfully convicted thereof. And every archbishop and bishop may at bis liberty and plecfare join and affociate himself to the justices of affize, for the inquiring of, hearing and actermining the fame. f. 17, 18, 19. And all mayors bailiffs and other head officers, of cities boroughs and towns corporate to which justices of afsize do not commonly repair, shall have power to inquire of bear and determine the fame yearly within fifteen days after the feast of Eafter and St. Michael the archangel; in like manner and form as the justices of afsize may do. f. 22. Also by the 3 J. c. 4. If any subject of this realm shall not repair every funday to fome church chapel or usual place appointed for common prayer, and there hear divine fervice, according to the faid ftatute of the 1 El. c. 2. it shall be lawful for one justice of the peace, on proof to him made by confeffion or oath of witness, to call the party before him; and if be |