Not for a temporal confe

quential lofs.

For temporal matters mixt

revocation. So in the cafe at bar; they fhall try the matter of payment or no payment, but then they must admit fuch proof as the common law would, otherwise they reject the cause themselves, and ought to be prohibit ed. 3. A bare fuggeftion, that the defendant hath but one witness, and that they take exception to his credit and reputation, is no caufe of prohibition; for if they admit the proof of one witnefs, whether he be a credible witness or not they fhall judge, and the party hath no remedy but by appeal. 2 Salk. 547. L. Raym. 220.

4. A temporal lofs, enfuing upon a fpiritual sentence, is not of itself caufe of prohibition. So it was adjudged in the 42 & 43 Eliz. In the case of Baker and Rogers (Cro! Eliz. 789), where the deprivation was for. fimony; on which occafion the reafoning of the court was thus: Altho' it was faid, that in the fpiritual court they ought not to have intermeddled to diveft the freehold, which is in the incumbent after induction; true it is, they should not meddle to alter the freehold but they meddled only with the manner of obtaining his prefentment, which by confequence divefted the freehold from him, by the diffolu tion of his eftate, when his admiffion and inftitution is avoided. In like manner, where an incumbent (3 Mod. 67.) was libelled against in the arches, for not being twenty-three years of age when made deacón, nor twentyfour when made prieft, and prayed a prohibition, be caufe a temporal lofs (namely, deprivation) might follow; the court denied the prohibition, and compared this cafe to that of a drunkard, or ill liver, who are ufually punith ed in the ecclefiaftical courts, tho' a temporal lofs may enfue; and if prohibitions should be granted in all cafes where a temporal lofs might enfue, thole courts would have little or nothing to do. Gibf. 1028.

5. M. r Ann. Galizard and Rigault. There was an indictment for affaulting, beating, wounding, and endea with fpiritual. vouring to ravifh the wife of B. upon which the party was convicted and afterwards the husband brought an action of trefpafs, for the fame caufe: and now the party being alfo libelled against in the fpiritual court for the fame fact, namely, for foliciting her chastity, moved for a prohibi tion to the proceedings in the fpiritual court. And it was urged for the jurifdiction of the fpiritual court, that they may punish for the folicitation and incontinence, and that this fuit was for the health of the foul, the others for fine and damages. But by the court a prohibition was grant ed; for it being an attempt and folicitation to inconti

nence,

nence, coupled with force and violence, it doth by reason of the force, which is temporal, become a temporal crime in toto, as if one fay, thou art a whore and a thief, or thou keepest a bawdy houfe, which are temporal matters, the party fhall not proceed in the fpiritual court: fo if it be faid of a woman that she is a bawd only, and not that he keeps a bawdy houfe: but Holt chief juftice faid, if one commit adultery, and the husband bring affault and battery, this fhall not hinder the fpiritual court, for it is a criminal proceeding there, and no indictment lies at the common law for adultery. 2 Salk. 552.

But if a man libel for two diftinct things, the one of which is of ecclefiaftical cognizance, and the other not; a probibition fhall be granted as to that which is of temporal cognizance, and they of the court chriftian fhall proceed for the other. L. Raym. 59.

6. H. 10 W. The churchwardens against the rector On trial of cuf of Market Bofworth, The churchwardens libel against toms. the rector, that there hath been time out of mind, and is, a chapel of ease within the fame parish; and that the rector of the faid parifh for time out of mind hath repaired and ought to repair the chancel of the faid chapel; and that the chancel being out of repair, the defendant being rector hath not repaired it. The reator in the faid court denied the custom. And a decree was made for the rector, that there was no fuch custom, and cofts were taxed there for the faid rector. The churchwardens moved for a prohibition; and it was argued for the prohibition, that it ought to be granted, because it appears that the libel is upon a custom, which the defendant hath denied; and it may be the queftion was in the fpiritual court, cuftom of not, which is not triable there, but at the common law; and then this appearing upon the libel, that the court hath not jurisdiction, a prohibition may be granted after fentence. But all the court held the contrary. For by Holt chief justice; The reafon for which the fpiritual court ought not, try cuftoms is, because they have different notions of cuftoms, as to the time which creates them, from those that the common law hath; For in some cafes the ufage of ten years, in fome twenty, in fome thirty years, make a cuffom in the fpiritual court; whereas by the common law it must be for time immemorial. And therefore fince there is fo much difference between the laws, the common law will not permit that court to adjudge upon cuftams, by which in many cafes the inheritances of perfons may be bound. But in this cafe, that

reafon

On the confruction of aéte of parlia

ment.

}

reason fails: for the fpiritual court is fo far from adjudging that there is any fuch custom which the common law allows, that they have adjudged that there hath not been any cuftom allowed by their law, which allows a lefs time than the common law to make a custom. And the plaintiffs having grounded their libel upon a cuftom which was, well grounded if the custom had not been denied (for libels there may be upon cuftoms), but the custom being denied and found no cuftom, it is not reafon to prohibit the court in executing their fentence against the plaintiffs. For the defign of a motion for a prohibition, is only to excufe the plaintiffs from cofts. And there is no reason but that they ought to pay them; fince it appears, that they have vexed the defendant without caufe. And therefore a prohibition was denied. L Raym. 435.

W $

T. 12 W. Jones and Stone. David Jones the vicar of N. was libelled againft in the fpiritual court, for that by custom time out of mind, the vicars of N. had by themfelves or others, faid and performed divine fervice in the chapel of Chawbury, for which there was fuch a recompence, and that he neglected. The defendant came for a prohibition and without traverfing this cuftom, fuggefted that all customs were triable at common law. And it was urged, that it was enough for a prohibition, that a custom appeared to charge the vicar with a duty, for which he was not liable of common right. But by Holt chief justice: A parfon may be bound to an ecclefiaftical duty by custom, and when he is bound by custom, the fpiritual court may punish him if he neglects that duty; the custom might have a reasonable commencement by composition in the fpiritual court, and begin by an ecclefiaftical act; and a bare prefcription only is not a fufficient ground for a prohibition, unless it concerns a layman; whereas here it is an ecclefiaftical right, an ecclefiaftical perfon, and an ecclefiaftical duty, and the prescription not denied. 2 Sulk. 550.

7. When the iffue of a matter depending in the fpiritual court, is determined or influenced by any ftatute, prohibition lieth. The reafon is, because the temporal judges have the interpretation of all ftatutes or acs of parliament, whether they concetn temporal matters or Spiritusi.

In fome of the books there is an intimation, that not only all flatutes whatever are to be interpreted by the tem poral courts; but also that when a statute is made, giving remedy in a matter of ecclesiastical cognizance, the very

2

making

making of fuch: ftatute doth ipfo facto take the right of jurifdiction from the fpiritual court, and transfer it to the temporal; if there is not a special faving in the act, to preferve the spiritual jurifdiction. But to this the rule, laid down by lord Coke, (which is also generally followed by the books) is a full answer:An act of parliament. being in the affirmative doth not abrogate or take away the jurifdiction ecclefiaftical, unless words in the negative: be added, as and not otherwise, or in no other manner or form, or to the like effect, Gibf. 1028.

8. T. 2 An. By Holt chief juftice: It was formerly held by all the judges of England, that when there was a proceeding ex officio in the ecclefiaftical court, they were not bound to give the party a copy of the articles; but the law is otherwife, for in fuch cafes, if they refuse to give a copy of the articles, a prohibition fhall go until they deliver it; and accordingly upon motion, a prohibition was granted in the like cafe by Holt chief justice and the court. L. Raym. 991.

On a refufal of a copy of the libel.

furmife.

9. Prohibition may be granted upon a collateral fur- On a collateral mife; that is, upon a furmife of some fact or matter not appearing in the libel. It was heretofore a petition of the clergy to the king in parliament, that no prohibition might be granted, without first fhewing the libel; and it was a complaint of archbishop Bancroft in the time of king James the firft, that prohibitions were granted without. fight of the libel, which (as it was there faid) is the only rule and direction for the due granting of a prohibition, becaufe upon diligent confideration thereof it will eafily appear, whether the cause belong to the temporal or ecclefiaftical cognizance; as, on the other fide, without fight of the libel, the prohibition must needs range and rove with ftrange and foreign fuggestions, at the will and pleasure of the devifer, nothing pertinent to the matter in demand. To this charge of granting prohibitions without fight of the libel, the judges in their anfwer fay no-. thing but as to granting them upon fuggeftion of matters not contained in the libel, their words are thefe; Tho' in the libel there appear no matter to grant a prohi bkion, yet upon a collateral furmife the prohibition is to be granted; as, where one is fued in the fpiritual court for tithes of fylva cædua, the party may fuggeft, that they were grofs or great trees, and have a prohibition, yet no fuch matter appeareth in the libel; fo if one be fued there for violent hands laid on a minister by an officer, as a cone ftable, he may fuggeft, that the plaintiff made an affray

upon

On the huf

the wife's caufe of action.

upon another, and he to preferve the peace Taid hands on him, and fo have a prohibition; and fo in very many other like cafes; and yet upon the libel no matter appeareth, why a prohibition fhould be granted. Gibf. 1027. (b)

10. H. 13 W. Libel in the fpiritual court by the hul band's fuing on band and wife, for calling the husband cuckold: Ruled by Holt chief juftice, that a prohibition fhall go, because they cannot both Tue in that court for that word, but the wife only, the imputation being upon her; and the hufband and wife by the law fpiritual may not join in fuit in the ecclefiaftical court as they muft do in the temporal, but each fhall fue feparately upon their own caufe of action. 3 Salk. 288.

11. The fuggeftion muft have been moved, and rejected in the fpiritual court, before it can be admitted in the temporal court. In the bishop of Winchefter's cafe (2 Co. 45.) it was held, that in a fuit for tithes in the fpiritual court, a man may have a prohibition, fuggefting a prefcription or modus, before or without pleading. But this feems not to be law. For in the 12 W. a prohibition was moved for, fuggefting a, cuftom. But it was denied

by Holt chief juftice, and the court, unless they pleaded it below, because perhaps they might admit the plea. Alfo in the so W. it was faid by Holt chief juftice, that if a modus be pleaded in the fpiritual court, and admitted, no prohibition fhall go; but if the queffion be, whether a modus or no modus, a prohibition fhall go; and fo is the law, viz. wherever the matter which you fuggeft for a prohibition is foreign to the libel, you must plead it below, before you can have a prohibition; otherwife where the cause of prohibition appears on the face of the libel. 2 Salk. 551.

12. M. 4 An. Burdett and Newell, A rule was made to fhew caufe, why a prohibition fhould not be granted, to ftay a fuit against the plaintiff, in the court of the archdeacon of Litchfield, for not going to his parish church, nor any other church on fundays or holidays, nor receiving the facrament thrice a year; upon fuggeftion of the ftatute of Eliz. and the toleration act, and then qualifying himself within that act; and alledging that he pleaded it below, and that they refufed to receive his plea. It was fhewed for caufe, that this fact was falfe, and the plaintiff was not a diffenter, nor had qualified himself as