Where the matter is apparent. As for settling Church wardens' Accounts. Or where a Custom as to the Disposing of Seats comes into question. Or a man is improperly rated. SUIT FOR A PROHIBI- On whose application. a Prohibition, was determined by verdict, and then a Consultation awarded. (a) But after an Appeal, a Prohibition is not allowed, unless the matter be apparent, for by that the party affirms the Jurisdiction. (b) And as the Spiritual Court has no Jurisdiction to settle a Churchwarden's accounts, a Prohibition was granted after Sentence allowing the accounts, and an Appeal to the Arches. (c) And a Prohibition was granted after an Appeal to the Arches, and then to the Delegates and Sentence affirmed there, it appearing that a Custom as to the ordering and disposing of the Seats, had come into question. (d) A Prohibition was also granted, on a Libel to charge a man to the Repair of the Church in respect of a Light House, after Sentence and an Appeal to the Delegates. (e) A Suit for Prohibition must be brought in in one of the Superior Temporal Courts, and whether the defendant proceed or not after the Prohibition, an attachment goes to bring him into Court. (ƒ) If the Ecclesiastical Court hold plea of any matter which belongs not to their Jurisdiction, the Queen's Courts will issue a Prohibition, upon an application made either by the plaintiff, the defendant, or even a mere stranger. (g) A Prohibition may be issued against a Com- Against whom. moner or a Peer, but not against the King. (h) But no man is entitled to a Prohibition, unless he is danger of being injured by some Suit actually depending; and, therefore, upon a petition to the Archbishop, or other Ecclesiastical Judge, a Prohibition quia timet does not lie. (i) And when a defendant is cited in the Ecclesiastical Court, he must appear there before he can apply to a Common Law Court for a Prohibition. (k) The constant practice is not to grant a Prohibition, till some further proceedings have been taken after the coming in of the Plea; for, perhaps, they may never proceed, and then there is an end of the matter. (1) As If the Plea tendered to the Spiritual Court be bad on the face of it, Prohibition will be refused. if, for instance, a void Modus, such as an uncertain recompense for a certain duty has been pleaded. (m) If the defendant pleads a Plea which raises a question beyond the Jurisdiction of the Ecclesiastical Court, but afterwards waives it, a Prohibition will not be granted, in this stage of the proceedings. (n) (h) Bac. Abr. "Prohibition " (M); Ex parte Smyth, 5 Nev. & M. 147. (i) Bac. Abr. "Prohibition " (C); Allen, 56. (k) Ex parte Law, 2 D. P. C. 528; S. C. 2 A. & E. 45; S. C. 4 Nev. & M. 7. (7) Borough v. Fowler, 1 Ld. Kenyon, 356. (m) Roberts v. Williams, 12 East. 33; Startup v. Dodderidge, 2 Ld. Raym. 1162. (n) Carden v. Cotty, 7 D. P. 6. 666 Party must be in danger of being injured. Defendant must have appeared in the Eccle siastical Court. There must be ceedings after further pro Plea. Where the Where tho Plea is waived. Where two Where two or Where the Defendant dies. Plaintiff may have a new Prohibition against his Executors. Mode of application for a Prohibition. Method of proceeding A Suggestion formerly necessary. Two cannot join in Prohibition where the injury is several. (0) But when the injury is joint, and two or more are allowed to join in a Prohibition, and one of them dies, the Writ shall not abate; because nothing is to be recovered by them, but they are only to be discharged. (p) If the defendant in a Prohibition die, his executors may proceed in the Ecclesiastical Court, and the Judges of the Court, out of which the Prohibition was granted, will also in such case make a Rule to the Spiritual Court to proceed. (p) But the Plaintiff may, if he please, have a new Prohibition against the executors. (q) When a Prohibition is sought for, the party aggrieved in the Court below appears in the Superior Court, setting forth the cause and nature of his complaint, in being drawn ad aliud examen, by a Jurisdiction or manner of process disallowed by the Laws of the Kingdom. (r) The method of proceeding during Term time during Term. is in the way of an ordinary Rule to shew cause. (s) Formerly, before a party was entitled to a Prohibition, it was incumbent upon him to suggest 'what had been done in the Court below. That suggestion, containing a formal statement of the facts, was entered on Record, and if the facts were not impeached, the Court was bound to take them to be true. (t) But now, on an application for a Writ of Prohibition, it is not necessary to file a suggestion on Record, but such application may be made on affidavits only. (u) A copy of the Libel must be given. By the Statute 2 Hen. V. c. 3, and 2 (or 2 and 3) Edw. VI. c. 13, s. 14, whoever sues in Prohibition must deliver to the Court a copy of the Libel. (x) Therefore, if the Spiritual Court refuse a copy Or a of the Libel, a Prohibition lies quousque, &c., after which the Spiritual Court cannot proceed till a copy is granted. (x) Prohibition quousque lies. But a Prohibition for refusing a copy, ought not on an to be granted till an affidavit of the refusal. (y) Affidavit of Refusal. second Pro hibition lies. If the Ecclesiastical Court refuse to grant a copy Where a of the Libel, and a Prohibition is granted in consequence, and thereupon they grant the copy, and afterwards proceed in the Cause, and the matter is not within their Jurisdiction, then another Prohibition lies. (z) If the matter alleged in the affidavits appears to Where a Writ the Court to be sufficient, the Writ of Prohibition of Prohibition immediately issues, commanding the Judge not to hold, and the party not to prosecute, the Plea. (a) issues. Where a Prohibition has been granted generally, Where it may and a Custom is disputed, it is usual to amend the be amended. (t) See Darby v. Cosens, 1 T. R. 555. (u) 1 Will. IV. c. 21, s. 1. (F 15); Mod. Ca. 308. (y) Com. Dig. "Prohibition " (F 15); Anon. 1 Vent. 252. (z) Bac. Abr. "Prohibition " (G); Moor. 917. (a) 3 Bla. Com. 113. Writ may be obtained out of Chancery during Vacation. It may be set aside by any Courts. Writ by limiting the Prohibition to the Trial of the The usual course in Vacation is to make an ex A Writ of Prohibition issued out of the Court of of the Superior Chancery, is a proceeding within the meaning of 12 & 13 Vict. c. 109, s. 39, and a motion to set such Writ aside, may be made in either of the Superior Courts at Westminster. (e) Where the point is nice and doubtful. Plaintiff has leave to declare. But defendant may always put him to declare. On an application for a Prohibition, the point may sometimes be too nice and doubtful to be decided merely upon a motion; and then for the more solemn determination of the question, the party applying for the Prohibition is directed by the Court to declare in Prohibition. (ƒ) Therefore, where the matter seems doubtful to the Court, upon a question of fact or law, the plaintiff has leave to declare; that the parties may have the fact properly tried by a Jury, or the law solemnly considered as in a cause. (g) But even when the Court is clearly of opinion that there is sufficient ground for the Prohibition, the defendant has a right to put the plaintiff to declare, that his Jurisdiction may not be taken from (b) Bishop of Ely v. Gibbons, 4 Hag. 158. (c) Baddeley v. Denton, 19 L. J., N. S., Exch. 44. (d) See ante, p. 137. (e) Baddeley v. Denton, 19 L. J., N. S., Exch. 44. (f) 3 Bla. Com. 113. (g) Per Lord Mansfield, C. J. St. John's College v. Todington, 1 Burr. 193. |