him, in a summary way, where no Writ of Error will lie. (h) For the Court will always, on the demand of the party against whom the application is made, compel the party applying to declare in Prohibition. (i) right to Declaration. And, indeed, it appears that, in accordance with As he has a the earlier practice, a party has a right to a Declaration in Prohibition. And it must be assumed, that, if the defendant finds that he is wrong, he will submit, and refuse the Declaration, and then the Court will, on his application, stay the proceedings. The Costs of the subsequent proceedings will, in pursuance of Statute 1 Will. IV. c. 21. s. 1, fall upon him if Judgment is given against him. (k) But if the Court is clearly of opinion, that there Refusal of a is no ground for Prohibition, it ought to be decided Prohibition. without putting the defendant to expense, and delaying, in the mean time, the exercise of what appears to them a lawful Jurisdiction. For if in cases of this kind, the Court should too easily yield to hang up the matter, by letting the plaintiff declare in Prohibition, redress would come too late, and cost too much. (1) Where a Rule Nisi, for a Prohibition to an Ecclesiastical Court, has been discharged, the Court will not allow the motion to be renewed, upon affidavits stating matters not before presented to the (h) See per Lord Denman, C. J. Remington and another v. Darby, 8 Jur. 1135. (i) Remington v. Dolby, 9 Q. B. 176. (k) See per Lord Denman, C.J. Remington and anotherv. Darby, 8 Jur. 1135. (1) Per Lord Mansfield, St. John's College v. Todington, 1 Burr. 199; Dean of York's Case, 2 Q. B. 19, and see the remarks of Lord Denman upon it, Remington v. Dolby, 9 Q. B. 178. Fresh application cannot be made to the same Court. Though it may be to the others. Refusal of all against the Court, but existing at the time of the original application. (m) But the plaintiff is not precluded from applying for a Prohibition to any other Court in Westminster Hall, and taking their opinion. (n) And this was done in the late case of the Bishop of Exeter v. Gorham, where a Rule Nisi was granted by the Court of Exchequer, after having been refused by the Court of Queen's Bench and Common Pleas. A refusal, however, even by all the Courts is not not conclusive conclusive to the plaintiff. For if there is no Jurisdiction, the Sentence will be a nullity, and upon any attempt to execute or enforce it, the whole may be tried in an action. (p) plaintiff. On what the action of The action of Prohibition was founded upon a supposed contempt in disobeying the Writ of Prowas formerly hibition, which, in fact, was never delivered. It Prohibition founded. It is now on the footing of an ordinary action. was a mere matter of form that the King was a party, being purely a fiction of law, to give the party suing a right to Damages. But this fiction is done away with by 1 Will. IV. c. 21, s. 1 (p), and the damage of the party is now the only ground. (q) Mr. Serjeant Stephen states, in his Commentaries, that the effect of these legislative provisions has been to place a Prohibition, after a Rule to declare has been obtained, substantially upon the footing of an action, and that in this respect it still exhibits a close resemblance to a mandamus. (r) Declaration. And, therefore, in case the party applying, be Statement in directed to declare in Prohibition before Writ issued, such Declaration must be expressed to be, on behalf of such party only, and not as formerly, on behalf of the party and the King, and must contain, and set forth, in a concise manner, so much only of the proceeding in the Court below, as may be necessary to shew the ground of the application, without alleging the delivery of a Writ or any contempt, and must conclude by praying that a Writ of Prohibition may issue. (s) To this Declaration the defendant may demur, Pleadings in or plead such matters, by way of traverse or other- the case. wise, as may be proper to shew that the Writ ought not to issue, and conclude by praying that such Writ may not issue. (s) pleaded. And several Pleas may now be pleaded, though Several Pleas formerly it was not so, because the King was a may now be party to the Suit, and was not bound by the Statute of Anne (t), as he was not named in it. But now since the Statute of Will. IV. c. 21, the King being no longer a party to the Suit, the reason for the former practice is taken away. (u) In order to bring the question to be tried regu- Plea may be larly before the Court, a defective Plea, to a (r) 3 Steph. Com. 669; and for the former course of proceeding in Prohibition, see Com. Dig. "Prohibition" (H); Bac. Abr. "Prohibition." (s) 1 Will. IV. c. 21, s. 1. amended. For what Judgment is given. Successful party entitled to Costs. But not to those incurred in the Eccle Declaration in Prohibition, will be ordered to be amended. (x) And the Judgment to be given, is that the Writ of Prohibition do, or do not, issue, as justice may require. (y) The party in whose favour Judgment is given, whether on Nonsuit, Verdict, Demurrer, or otherwise, is entitled to the Costs attending the application and subsequent proceedings, and may have Judgment to recover the same. (y) But the Act 1 Will. IV. c. 21, s. 1, does not enable the Court, where a party has declared in siastical Court. Prohibition and succeeded, to grant him his Costs incurred in the Ecclesiastical Court. (z) Nor to the for issuing a Prohibition. Nor to the And where a Rule is made absolute for issuing a Costs of a Rule Prohibition, the Costs of the Rule cannot be granted to the successful party, under 1 Will. IV. c. 21, s. 1, as that Statute only applies to cases, where there have been pleadings in Prohibition. (a) The Rule H. T. 2 Will. IV., I. 64, that, when a New Trial is granted without any mention of Costs there has been in the Rule, the Costs of the first Trial shall not a second one. be allowed to the successful party though he succeed on the second, applies to issues in Prohibition ever since Stat. 1 Will. IV. c. 21, s. 1. (b) Costs of a first The Jury may assess Damages. Where a Verdict is given for the party who is plaintiff in a Declaration in Prohibition, the Jury may assess Damages, for which Judgment also shall be given, but such assessment is not necessary to entitle the plaintiff to Costs. (c) necessarily put an end to the does not Suit. Where the Ecclesiastical Court has original Prohibition Jurisdiction, a Prohibition does not necessarily put an end to the Suit. Thus, for instance, though a question whether a whole Parish or a Select Vestry should choose Churchwardens, is a Prescription triable at Common Law by a Jury, yet Sentence is to be given in the Spiritual Court according to their verdict. (d) But proceedings are staid in the mean time. But proceedThus the Court of Arches was enjoined from pro- ings are staid. ceeding as to a Custom till an issue was tried. (e) matter at rest. The finding of the Jury, however, sets the matter Finding of the at rest, and, of course, it is not open to the Eccle- Jury sets the siastical Court, to investigate the Custom whether it be legal or not. (f) of which the Record of the And the Record of the Judgments, setting forth a Verdict finding a Custom for the Parishioners to repair the Chancel, was held to be conclusive evi- conclusive dence in the Ecclesiastical Court of the existence and validity of the Custom. (g) evidence. If the claim in the Libel be founded on Prescrip- When Jury tion or Custom, which is denied, and upon trial of such Prescription or Custom, the Jury by their Verdict disaffirm it, it is obvious that the claim so founded falls to the ground. (h) So if a Prescription or Custom, when pleaded by (c) 1 Will. IV. c. 21, s. 1. (d) Banister v. Hopton, 10 Mod. 12. (e) Bishop of Ely v. Gibbons, 4 Hag. 156. (f) Bishop of Ely v. Gibbons, 4 Hag. 163. (g) Ibid. 156. (h) Rogers's Eccl. Law, 302. disaffirm a claim so |