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Of proving the Suggestion, and in what Gases 'necessary, and at what Time,.
The suggestion need not be proved strictly,—proof by hear-say is sufficient. Palm. 397 -—or that it is so by com- . mon same. Noy 28. Nor with precise certainly as to .al! its circumstances; but that if it be proved in substance, or in such a manner as to shew that the ecclesiastical court hath not jurisdiction, it is sufficient.
And the suggestion may be proved by persons, although such persons at the trial may not be able and competent witnesses. Mich. 27 Car. 2. C. B. Sharp v. Hobarts.
If a suggestion consists of two parts, one witness to one part, and another to the other part, is sufficient. Vent. JO7.
And note: The fix months is according to the -calendar, and not lunar months, for this is a c imputation which concerns the chuich. Hob. 179.- '2 Mod. 50. Lit. Rep. 19. And thejix months commence from the tejlt of the writ, and not from the time of the rule for awarding it... 2 Ld. Ray.
11J2. 2 Salk. 554. pi. 20, 656: pi. 2.
And if the surmise be proved .busoje one os the judges within the six months, it is sufficient, although it is not recorded till after the sii months by -th^ coprt, - Noy 30. But it must be entered in the tjffice* 2 Show. ^oS.
And proof which is not sufficibnt may be supplied with better within the six moath*. • .£rf. Rep. \ 55.
The piaintiff had obtained.. a-jr^Ja to 'hew cause why a consultation should neK; go, for wastn'f the plainjisf:'s proving his suggestion within the.^v months, and..:\vhy the plaintiff should «ot pay double costs.- Upon cause fh^wn it appeared, that the declaration had been, by rule, ordered to be made agreeable to the proceedings in the..spiritual court, and thereupon <t prohibition to issue. .Aiu| the'court being of opinion, thaf- the 'time./pr;,piling. the suggestion ought to be computed from the time of $he:amgndrne:u, and not sarther back.; -the.six months were not expired..; Sp theruie was discharged. Barms A, to.. - - . . -';?
Of entering the Proof of the Suggestion,
WHEN the party has proved his suggestion before a judge, according to the 14th sect. ostke%l3 30/' Edw. 6. c. 13. an entry of such. proof must be drawn out in order to be entered of record in court, which is to be done in the following manner, after the suggestion and the award qf the writ of prohibition.
"And the writ of the prohibition of the lord the king., is granted to him, is'c." .*--'
AFTERWARDS, that is to say, on the
day of in the twentieth year of the reign
of our sovereign lord George the third, of Great Britain, France, and Ireland, king, desender of the saith, dsV. at in the county of
before [the judge] comes, the said A. B. in his proper person, and to verify, testify, and prove his suggestion aforesaid, and all and every matter and thing contained in the same suggestion on the part of the said A. B. to be proved, produceth three good lawsul and sufficient witnesses, to wit, 0. P. of in the county afore
said, hufbandman, and aged about twenty-four years, or thereabouts; j£. R. of the same place, labourer, aged sixty years or thereabouts; and S. T. of the parish of in the said
county, sarmer, aged forty years and upwards, before the said justice at aforesaid,
according to the form of the statute in such case made and provided: which said witnesses so as. aforesaid produced by the said A.B. being then and there sworn upon the holy Evangelifts, to depose the truth of and upon the premises specified in the aforesaid suggestion, say and depose, and each of them severally upon his oath saith and deposeth in manner and form following, that is to say, the said 0. P. for himself, upon his oath saith and deposeth, that, i$c. [Here enter the proof of what he swears.] And the said jP. R. for himself upon his said oath saith and deposeth, that, £S?c. [Enter what he swears to.] And the said O. P. and j^. R. for themselves severally upon their said oath say, and depose, that, &c. [Enter what they both swear to.] And the said r"-" S. T.
Of entering the Proof of the Suggestion.
S. T. for himself, upon his said oath, saith and deposeth that, £?<:. [The part he swears to.] Which said depositions taken before the said [the • name of the judge] in form aforesaid, the said justice afterwards, to wit, in Michaelmas term, in the nineteenth year of the reign of our said lord the now king, delivered by his own proper hands, into the court of our said lord the king of the Bench, here to be enrolled of record.
Sworn the day of
in tfie year of our Lord 1780.
Where .. •'' . - '.-- - ['' .
Where the Suggestion must be verified by an' Affidavit.
IN some cases the courts require an affidavit to. be made on application for aprohibition, to support the suggestion.
Per Holt ch. just. B. R.. in Godfrey v. Llewgllin. I i IV. 3. the bishop of St. David's case. Where the matter suggested for a prohibition appears upon the sace of the libel, we never insist upon an affidavit; but unless it appear upon the sace of the libel, or.if you move for a prohibition as to more than appears upon the sace of the libei, to.be out of their jurisdiction, you ought to have off davit of the truth of your suggestion. Salk. 549. pi. 3.
Upon motion for a prohibition, there must be an affidavit that the matter suggested to have been pleaded was pleaded below in the spiritual court, and disallowed, vide Ld. Ra\m. 1211. for otherwise, any one might come and suggest a salse sact, and so oust the spiritual court of their jurisdiction.
In Hynes v. Thompson, [mentioned by AJltn Jce, in Buggin v. Bennet. Burr. 4 pt. 2039—4°-] Lordch. just. Lee laid down the rule to be, " That if you move for a prohibition upon any thing not appearing upon' the sace of the proceedings, you ought to hive an assidavit of the truth of the suggestion." And he eked Godfrey and Lleweliin. 2 Salk. 549. in point; and 2 Salk. 55s. pi. 13. where Holt ch. just. laid down the law to be, "That wherever the matter which you suggest for a prohibition is foreign to the libel,' you must plead it below, before you can have a prohibition; otherwise, where the cause of prohibition appears uptn.the libel." And lord ch. just. Lee said in th.=.t cale of Hyries v. Thompson, that he thought it must either be pleaded "that there was such a custom," or an affidavit of it. And Mr. f. Chappie hinted, that prohibitions had been too easily granted: And was of opinion, that there ought to have been an affidavit to verify the suggestion.
In Driver v. Colgate, [mentioned also by Aflon fee, in the same case of Buggin v. Bennett. Burr. 4 pt. 2039—40.] The court held, that there was no necessity to plead it below, in cafes of prohibition for zvards spoken wheie the-y an by the custom actionabie, as there is in cafe of a prohib: tion or suggestion of a modus. For in the former case, they cannot go on if the suggestion - be true; .'but in the latter of a mo.dus—if the rm>du-> be admitted in thr: spiritual court, they may go on j because'the j uriidicUon continues.
..-.'•- --.:--*.• -v-. • -.,i .. ?-. .»--..- •
. . ©ffiotiibftton. 25s
Where tbe Suggestion must be verified by an •. '.. • Affidavit.
In all other cases the court laid d.own a general rule, "• that the matter must either be pleaded below, or verified by affidavit." Vide Burr. 4 pt. 2040.
As in case for a prohibition to the consistory court of London, in a cause for calling a woman " whore" in London, there must be an assidavit of the cujlom, and also that the words were spoken theie. Theyer v. Eajlwick. Burr. 4.pt. 2032.
In C. B. on shewing cause why a prohibition should not be granted, it was objected that no affidavit was filed whereby the libel whereupon the plaintiff had moved appeared to be a true copy. Per cur. The objection is good. Rule discharged, Eaglesfieldv. Anderson. Barnes 427.