[ 11 ] presented to the bishop to be confirmed." And if the bishop approve of them, he shall confirm them, according to the form in the Book of Common Prayer. 4." And every one shall have a godfather or a godmother, as a witness of their confirmation (1).' "And no person shall be admitted godfather or godmother to any child at confirmation before the said person so undertaking hath received the holy communion (m).” 5. Lord Coke says, " If a man be baptized by the name of Thomas, and after, at his confirmation by the bishop, he is named John, his name of confirmation shall stand good. And this was the case of Sir Francis Gawdie, chief justice of the Court of Common Pleas, whose name by baptism was Thomas, and his name of confirmation Francis; and that name of Francis, by the advice of all the judges, he did bear, and afterwards used in all his purchases and grants (n). But this seemeth to be altered by the form of the present liturgy. In the offices of old, the bishop pronounced the name of the child or person confirmed by him, and if he did not approve of the name, or the person himself or his friends desired it to be altered, it might be done by the bishop's pronouncing a new name upon his ministering this rite, and the common law allowed the alteration; but upon review of the liturgy at King Charles the Second's restoration, the office of confirmation is altered as to this point, for now the bishop doth not pronounce the name of the person confirmed, and therefore cannot alter it (o). 6. By the rubric at the end of the office of confirmation :"There shall be none admitted to the holy communion, until such time as they be confirmed, or be ready and desirous to be confirmed (p).” Conge d'estire. CONGE d'eslire, in the language of France, which was introduced into our laws by William the Norman and his successors, signifieth leave to choose; and is the king's writ or licence to the dean and chapter to choose a bishop, in the time of vacancy of the see. Consecration of Churches-See Church. (1) Rubr. (m) Can. 29. (n) 1 Inst. 3. (0) Johns. A. D. 1281, numb. 3. (p) For the antiquity of confirmation, see De Cons. Dist. v. and Inst. J. C. ii. 4. Consistory. CONSISTORY is the Court Christian, or spiritual court, held formerly in the nave of the cathedral church, or in some chapel, aisle, or portico belonging to it; in which the bishop presided, and had some of his clergy for assessors and assistants. But this court now is held by the bishop's chancellor or commissary, and by archdeacons or their officials, either in the cathedral church or other convenient place of the diocese for the hearing and determining of matters and causes of ecclesiastical cognizance happening within that diocese (q). From the consistory the appeal is to the archbishop of the province (r). Consolidation of Churches--See Union. Consultation (8). CONSULTATION is a writ, whereby a cause being formerly removed by prohibition out of the ecclesiastical court, or Court Christian, to the king's court, is returned thither again. For if the judges of the king's court, comparing the libel with the suggestion of the party, find the suggestion false, or not proved, and therefore the cause to be wrongfully called from the Court Christian; then, upon this consultation or deliberation, they decree it to be returned again; whereupon the writ in this case obtained is called a consultation (t). Concerning which it is enacted by the statute intituled, "The Statute of the Writ of Consultation," made in the 24 Edw. 1, as followeth: "Whereas ecclesiastical judges have often surceased to proceed in causes moved before them, by force of the king's writ of prohibition, in cases where remedy could not be given to complainants in the king's court, by any writ out of chancery, because that such plaintiffs were deferred of their right and remedy in both courts, as well temporal as spiritual, to their great damage, like as the king hath been advertised by the grievous complaint of his subjects; our lord the king willeth and commandeth, that where ecclesiastical judges do surcease in the aforesaid cases, by the king's pro- [ 13 ] hibition directed unto them, that the chancellor or the chief justice of our lord the king for the time being, upon sight of 83. (9) Ken. Par. Ant. Gloss.; God. (r) God. 83. (s) [See Prohibition.] (t) Terms of the Law. the libel of the same matter, at the instance of the plaintiff, (if they can see that the case cannot be redressed by any writ out of the chancery, but that the spiritual court ought to determine the matters,) shall write to the ecclesiastical judges before whom the cause was first moved that they proceed therein, notwithstanding the king's prohibition directed to them before." Upon sight of the Libel.]-For (as it was heretofore held) agreeable to the libel ought the consultation to be. And therefore in Hoskins's case, when the parson sued in the spiritual court for all the tithes of such a ground, and the defendant obtained a prohibition, upon surmise that the queen had been seised of two parts of the tithes, and had granted them away, and that he had paid the two parts to the grantee, although the prohibition was for the two parts only, yet when the parson prayed consultation for the third part, it was denied, because his consultation could not be granted but according to his libel, and so he must libel for his third part de novo. But Hobart leaves a quære on this case, whether he might not have had a consultation as to the third part only. And the very next year, in Berrie's case, where the parson sued for tithes of hay in specie for a hundred acres, and in a prohibition issue was taken, whether the inhabitants had used to pay for all tithes of hay of all ancient meadows within the town a certain rate tithe; and the jury found there was such a custom for all the ancient meadows, saving for certain called Barton meadows, for which tithes had been paid in kind; and that the party who was sued for tithes in the spiritual court, had hay upon five acres of the Barton meadow; it was resolved, that if the jury had found against the custom generally, as they might well have done, the parson should have had his consultation for all; but, however, as they found the truth distributively, that he had cause to sue in the spiritual court for one part, but not for the other, he had consultation as to the Barton land; inasmuch as the libel for tithes in kind for the hundred acres was several for all or any part; and therefore for so much as was Barton, and out of the custom, it was as well libelled as if it had been for that alone (u). The resolution upon this head in Fuller's case was as follows when any libel in the ecclesiastical court contains many [14] articles, if any of them do not belong to the cognizance of the Court Christian, a prohibition may be granted generally; and upon motion made, consultation may be awarded as to things which do belong to the spiritual jurisdiction; for the writ of consultation with a quoad is frequent and usual (x). If they can see that the Case cannot be redressed.]—This supposeth strict examination of the matter, which is always made before consultation awarded. For consultations are the (u) Gibs. 1030; Hob. 115, 194. (r) 12 Co. 44. judgments of courts had upon deliberation, whereas prohibitions are granted upon surmises. To this purpose it was said by Vaughan, Chief Justice (y), "We find no record of prohibitions denied, for there is no entry made of motions not granted; but of prohibitions granted there is :" which makes the granting of a prohibition of no great authority, unless upon action brought a consultation be denied upon demurrer (z). It is on account of the great deliberation to be bestowed on these occasions, and its being an award of the court, and final, that no consultation can be granted, though by all the judges, out of term; nor by any of them within the term, out of court, as was resolved in Fuller's case; and Lord Coke says, the name of the writ imports this, that the court, upon consultation amongst them, ought to award it (a). And by the 50 Edw. 3, c. 4, "Where a consultation is once duly granted upon a prohibition made to the judge of holy church, the same judge may proceed in the cause by virtue of the same consultation, notwithstanding any other prohibition thereupon to him delivered: provided always that the matter in the libel of the said cause be not ingrossed, inlarged, or otherwise changed." Where a Consultation is once duly granted.]-H. 42 Eliz. Sibley and Crawley. On a prohibition for tithes, the defendant showed that before that time the plaintiff had sued in chancery, to stay it by English bill, and afterwards brought a prohibition there, and a consultation was there granted, and that this prohibition is for the same cause, namely, for matter of discharge; wherefore he prayed a consultation upon this statute, which requireth that consultation being once duly granted, there shall not be another prohibition. But the court held, that this consultation was not duly granted according to the intent of the statute, because the prohibition was not duly grantable there, and so out of the statute; for it was not duly granted upon an English bill. And by the court, the statute is to be intended where the consultation is granted upon exa- [ 15 ] mination of the matter, and not for the insufficiency of the proceedings. Whereupon it was awarded, that the prohibition should stand (b). And afterwards, E. 11 Jac. in the case of Tey and Cox, we find it laid down as a rule by the whole Court of King's Bench, that if it be apparent matter that the consultation was not duly granted, then a new prohibition may be granted (c). Upon a Prohibition made to the Judge of Holy Church.] -But so that the first consultation hath been granted upon the matter or substance of the suggestion, and not for default (y) Vaugh. 323. (z) Gibs. 1030. (a) Ibid.; 12 Co. 41. (b) Cro. Eliz. 736. of form only. For in the case of Cox and Seymour, though the same suggestion had been made before, in four several prohibitions for the same land, and the same manner of tithing was alleged, and every of the four times consultation had been granted; yet, because it was in every instance only for default. of proof within six months, through neglect to have the witnesses ready in due time according to Edward the Sixth's Statute of Tithes, and not upon the right or trial of the custom, the suggestion was held to be good, and a fifth prohibition grantable. And in the case of Stroud and Hoskins, H. 6 Car. (d), the same doctrine is laid down as follows: the statute of the 50 Edw. 3, is intended where consultation is granted upon the substance of the suggestion, being proved to be insufficient in verdict, or nonsuit after evidence, and not where it is granted for the insufficiency of the form of the suggestion, or in the proceeding thereupon. Which doctrine had been also laid down before, in the 7 Jac. in the Court of King's Bench (e), namely, when a consultation is granted upon any default of the prohibition in form by misprision of the clerk, or by mispleading of any statute; in that case, or such like, a new prohibition may be granted upon the same libel; but if consultation be granted upon the right of the thing in question, there a new prohibition shall not be granted upon the same libel (f). But the next year, in the 8 Jac. in the case of Dorwood and Brikinden (g), the court seems to have gone somewhat further [16] than bare form in the rule there laid down, viz. if a man libel for tithes for divers years, and a prohibition is granted for part of the years, and after that a consultation is awarded, yet the plaintiff may have a new prohibition for the residue of the time, notwithstanding the statute of the 50 Edw. 3, and that it be upon one selfsame libel (h). A case not unlike this was T. 1 Will. where a prohibition had been granted upon suggestion of a modus to pay 2d. for every lamb falling in the parish; after which, consultation was also granted; then there was a motion for a new prohibition, on suggestion of a modus of 2d. for every lamb falling in a particular farm of the same parish. And though it is there said, that if this modus had been found by the verdict, no consultation had been granted, yet the court inclined against a prohibition by reason of this statute (i). Though the modus be not found as laid, yet if any modus be found, it is a sufficient ground for refusing a consultation (k). The same Judge may proceed in the Cause.]-Mesme le (d) Cro. Car. 208. (e) 2 Brownl. 245. See also 2 Keb. 719. (f) Gibs. 1031. (g) 2 Brownl. 26. (h) Ibid. (i) 2 Vent. 47. (k) Brock v. Richardson, 1 T. R. 428. |