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Of the Suggeftion for a Prohibition.

in the nineteenth year of the reign aforefaid, before the faid bailiffs of the faid borough, the faid C. D. upon his aforefaid plaint did declare against the faid A. in manner and form following; that is to fay, C. D. complains against A. B. (here infert the declaration) &c. which faid plaint now remains in the faid court depending and undetermined, and there in the faid court is profecuted by the faid C. "Whereas, in truth and in fact, the aforefaid cause of action in the faid plaint and declaration mentioned, arofe and accrued to the faid C. D. out of the faid borough of Bridgnorth, and out of the jurifdiction of that court, that is to say, at the parish of ——— in the faid county of Salop, and not within, the faid borough of Bridgnorth, or within the jurifdiction of that court. And whereas the faid : holds nothing of them, the faid bailiffs, or within the franchife or jurif diction of that court. And, whereas in fact, the bailiffs of the faid borough, or any of them, never had or hath power to hold the plea aforefaid, nor to hear and determine the faid plea as aforefaid, arifing and accruing cut of the jurifdiction of the faid court, by the laws of this realm, nor by vir tue of any letters-patent of the faid lord the prefent king, nor of any of his progenitors or predecuffors, kings or queens of this realm; nor by any title of prefeription, from time whereof the memory of man is not to the contrary ufed and approved, or any otherwife howfoever; And 'although the faid A. all and fingular. the matters and things by him above fuggefted hath pleaded in his difcharge in the aforefaid court before the aforefaid bailiff of the faid borough, and there offered to verify and prove the fame by undeniable testimony

*Note: Where there is no defe&us jurifdi&ionis, but only triationis, the defendant mutt plead it below, and have his plea difallowed, before he can be entitled to a prohibition. But where there is a defectus jurifdictionis, the party has no occafion to plead it below, before motion for prohibition.-Therefore in the above precedent given of a fuggeftion there was no occafion for that part: of it.

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and proof; nevertheless, the bailiffs of the borough aforefaid, the aforefaid plea and allegation of the faid A. there to receive or admit altogether refufed, and threatened to give judgment in the faid court, in the faid action, againít the faid A. in contempt of our lord the prefent king, and to the great damage of the faid A. and contrary to the law of this realm, and alto against the form of the ftatute aforefaid; and this the faid A. is ready. to verify whereupon the said A. humbly imploring the aid and munificence of the court of our lord the prefent king, prays fpeedy remedy, and a writ of our lord the prefent king of prohibition to be directed to the faid bailiffs of the faid borough, and other competent judges in that behalf; and alfo to the faid C. his counfellors, attorneys, and follicitors in this behalf whomfoever, to prohibit them and every of them, that they, or any of them, in the faid plea of trefpafs, in any manner touching the fame in the faid' court, before the faid bailiffs of the faid borough, or any of them, to proceed, fhould not prefume, nor any further in that behalf fhould attempt, which to the further derogation of the crown of his prefent majefty, or to the contempt of the law, or the lofs or prejudice of the faid A. might in any wife turn, on pain of incurring the punishment due to violators of the law of this realm; but from all further profecution against the faid A., in the faid court, before the bailiffs of the faid borough, or any of them, fhould utterly defift, and each and every of them fhould defift; and it is granted to him, &c.

The form of a fuggeftion for a prohibition to an ecclefiaftical court on a libel there by a vicar against a parishioner for fubtraction of tithes, fetting forth that there is a modus in the faid parih,

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next,

England. Be it remembered, that on after days from the day of Enfier, in this fame term, before our lord the king, at Westminfer, comes A. B. by his attorney, and gives the court here to understand and be formed, that whereas all and all manner of ples,

Of the Suggestion for a Prohibition.

of and concerning any prefcriptions and customs whatsoever, within this realm, and the cognizance of fuch pleas belong and appertain to the faid lord the king, and his royal crown, and to the common law, and in the courts of our faid lord the king, of record, ought and have always been accustomed to be tried and difcuffed, and not in any ecclefiaftical court. And whereas on the day of January, 1779, the faid A. B. was, and from thence hitherto hath been, and ftill is, feized in his demefne as of fee, of and in divers, to wit thirty, acres of meadow, fituate, lying and being, within the parish of in the

county of and within the bounds, limits, and titheable places thereof; and, during the time aforefaid, was poffeffed of divers cows and calves, within the faid parish, and the bounds, limits, and titheable places thereof. And whereas within the faid parifh there are, and from time whereof the memory of man is not to the contrary have been, certain cuftoms and modes of tithing, that is to fay, one certain cuftom, &c. [inferting the customs and modules, &c.] nevertheless, one C. D. clerk, vicar of the parish of

aforefaid, not ignorant of the premifles, but contriving unduly to aggrieve and opprefs the faid A. B. against the due courfe of the law of this, realm, and to draw the cognizance of a plea which belongs to our lord the king's temporal courts, and ought there to be tried, difcuffed, and determined to another trial, on the

day of 1779, drew the faid A. B. into a plea and caufed him to appear in the court christian, before the right worshipful J. C. mafter of arts, vicar general, and principal of the episcopal or confiftorial court of lawfully conftituted his furrogate, or fome other competent judge in that behalf, by craftily and fubtilly libelling against the faid A. in the faid court chriftian-First, that in the year, &c. [ftate the libel] and although the faid A. hath alledged and pleaded all and fingular the matters above suggested and alledged in the faid court christian, in his discharge of and from the tithes, &c. and offered to prove

the

Of the Suggestion for a Prohibition.

the fame by indifputable evidence; yet the aforefaid fpiritual judges have altogether refufed, and ftill do refufe, to admit or receive the fame plea, allegation, or proof, and endeavour with all their might to compel the faid A. to pay the faid monies in the aforefaid libel fpecified, and daily threaten to condemn the faid A. of and upon the premises, in contempt of our faid lord the king and his laws, to the great damage and injury of the said A. and against the courfe of the law of this realm, and the cuftoms and prefcriptions aforefaid, all which faid premises the faid A. is ready to verify and prove, as the court of our lord the king here fhall direct wherefore the faid A. imploring the aid and affiftance of this court here, prays relief, and his majesty's writ of prohibition to be directed to the faid official principal of the epifcopal confiftorial court of - aforefaid, his furrogate, or other competent judge in this behalf, to prohibit them and every of them, that neither they nor any of them do any further hold pleas in the faid fpiritual court, before them or any of them, touching the premises aforefaid, or any part thereof, &c.

For other forms, refpecting other matters, fee the various books of entries.

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Of proving the Suggeftion, and in what Cafes. neceffary, and at what Time.

IF

F the fuggeftion for a prohibition is to ftop a fuit-commenced in the ecclefiaftical court for fubtraction of tythes or other ecclefiaftical dues, the 14 fect. of the 2 & 3 Edw. 6. c. 13. requires, "That if any party do fue for any prohibition "in any of the king's courts, that then the fame party,

before any prohibition fhall be granted to him or them, "fhall bring and deliver to the hands of fome of the jufti"ces or judges of the fame court where fuch party demand

eth the prohibition, the very true copy of the libel de"pending in the ecclefiaftical court, concerning the matter "whereupon the party demandeth the prohibition, fub"fcribed or marked with the hand of the fame party; and "under the copy of the faid libel shall be written the fug

geftion, wherefore the party fo demandeth the faid pro"hibition And in cafe the faid fuggeftion, by two honeft " and fufficient witnesses at the leaft, be not proved true in "the court where the prohibition fhall be fo granted, with

in fix months next following after the faid prohibition. "fhall be fo granted and awarded, that then the party that is "letted or hindered of his or their fuit in the ecclefiafti

cal court by fuch prohibition, fhall, upon his or their "request and fuit without delay, have a confultation grant"ed in the fame cafe in the court where the faid prohi"bition was granted; and fhall alfo recover double cofts and "damages against the party that so purfued the faid prohi"bition, &c."

موع

As this ftatute refers to the ftatutes 27 32 H. 8. which extend to tythes and offerings generally, all fuch tythes and church duties as are mentioned in thofe ftatutes are as

much within this act as if enumerated. 2 Inflit. 662. Comp. Incumb. 600. Dyer 170. b.

And therefore it extends to prohibitions to fuits for small tythes as well as great. Yelv. 102. Ld. Ray. 1172. So a fuggeftion of a modus decimandi ought to be proved within fix months, being within this act. Noy 148. Yelv.

104.

So where the party fuggefted, that he was to pay fo much upon an arbitrament, being the fame as a modus decimandi. Roll. Rep. 55.

But there needs no proof of the fuggeftion where the fuit is for tythes contrary to common right, or where the contract of the party is fuggefted. Yelv. 104, 119. 29. Hetl. 145. 2 Keb. 134. Lit. Rep. 297.

2 Leon.

The

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