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

The fuggeftion need not be proved strictly,-proof by hear-fay is fufficient. Palm 397 or that it is fo by common fame. Noy 28. Nor with precife certainty as to ali its circumstances; but that if it be proved in fubflance, or in fuch a manner as to fhew that the ecclefiaftical court hath not jurifdiction, it is fufficient.

And the fuggeftion may be proved by perfons, although fuch perfons at the trial may not be able and competent: witneffes. Mich. 27 Car. 2. C. B. Sharp v. Hobarts.

If a suggestion confifts of two parts, one witnefs to one part, and another to the other part, is fufficient. Vent. 107.

And note: The fix months is according to the calendar, and not lunar months, for this is a computation which concerns the church. Hob. 179. 12 Mod. 58. Lit. Rep. 19. And the fix months commence from the tejfe of the writ, and not from the time of the rule for awarding it... 2 Ld. Ray. 1172. 2 Salk. 554. pl. 20, 656. pl. 2.

And if the furmife be proved before, one of the judges within the fix months, it is fufficient, although it is not recorded till after the fix months by the court.: Ney 30. But it must be entered in the office. 2 Show. 303.

And proof which is not fufficient may be fupplied with better within the fix months. Lit. Rep. 155.

The plaintiff had obtained a rule to thew caufe why a confultation fhould not go, for want of the plaintiff's proving his fuggeftion within the fix months, and why the plaintiff fhould not pay double cofts. Upon caufe fhéwn it appeared, that the declaration had been, by rule, ordered to be made agreeable to the proceedings in the Ipiritual court, and thereupon a probibition to illue. And the court being of opinion, that the time for proving the fuggeftion ought to be computed from the time of the amendment, and not farther back; the fix months were not expired. So the rule was difcharged, Barnes 428.,

Of entering the Proof of the Suggestion,

HEN the party has proved his fuggeftion before a judge, according to the 14th fect. of the 2 & 3 of 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 of the writ of prohibition.

"And the writ of the prohibition of the lord the king is granted to him, &c."

AFTERWARDS, that is to fay, on the

day of

in the twentieth year of the reign of our fovereign lord George the third, of Great Britain, France, and Ireland, king, defender of the faith, &c. at in the county of before [the judge] comes, the faid A. B. in his proper perfon, and to verify, testify, and prove his fuggeftion aforefaid, and all and every matter and thing contained in the fame fuggestion on the part of the faid A. B. to be proved, produceth three good lawful and fufficient witneffes, to wit, O. P. of in the county aforefaid, husbandman, and aged about twenty-four years, or thereabouts; 2. R. of the fame place, labourer, aged fixty years or thereabouts; and S. T. of the parish of in the faid

county, farmer, aged forty years and upwards, before the faid justice at aforefaid, according to the form of the ftatute in fuch case made and provided: which faid witneffes fo as aforefaid produced by the faid A. B. being then and there fworn upon the holy Evangelifts, to depofe the truth of and upon the premises specified in the aforefaid fuggeftion, fay and depofe, and each of them feverally upon his oath faith and depofeth in manner and form following, that is to fay, the faid O. P. for himself, upon his oath faith and depofeth, that, &c. [Here enter the proof of what he fwears.] And the faid 2. R. for himself upon his faid oath faith and depofeth, that, &c. [Enter what he fwears to.] And the faid O. P. and 2. R. for themselves feverally upon their faid oath fay, and depofe, that, &c. [Enter what they both fwear to.] And the faid

S. T.

Of entering the Proof of the Suggestion.

S. T. for himself, upon his faid oath, faith and depofeth that, &c. [The part he fwears to.] Which faid depofitions taken before the faid [the name of the judge] in form aforesaid, the faid juftice afterwards, to wit, in Michaelmas term, in the nineteenth year of the reign of our faid lord the now king, delivered by his own proper hands, into the court of our faid lord the king of the Bench, here to be enrolled of record.

Sworn the

day of

in the year of our Lord 1780.

By me

Where

Where the Suggeftion must be verified by an Affidavit.

N fome cafes the courts require an affidavit to be made on application for a prohibition, to fupport the fuggeftion. Per Holt ch. juft. B. R. in Godfrey v. Llewellin. 11 W. 3. the bishop of St. David's cafe. Where the matter fuggefted for a prohibition appears upon the face of the libel, we never infift upon an affidavit; but unless it appear upon the face of the libel, or if you move for a prohibition as to more than appears upon the face of the libel, to be out of their jurifdiction, you ought to have affidavit of the truth of your fuggeftion. Salk. 549. pl. 3.

Upon motion for a prohibition, there muft be an affidavit that the matter fuggefted to have been pleaded was pleaded below in the fpiritual court, and difallowed, vide Ld. Raym. 1211. for otherwife, any one might come and fuggeft a falfe fact, and fo out the fpiritual court of their jurifdiction.

2

In Hynes v. Thempfon, [mentioned by Afton Jce, in Buggin v. Bennet. Burr. 4 pt. 2039-40.] Lord ch. juft. Lee laid down the rule to be, "That if you move for a prohibition upon any thing not appearing upon the face of the proceedings, you ought to have an affidavit of the truth of the fuggeftion." And he cited Godfrey and Llewellin. Salk. 549. in point; and 2 Salk. 551. pl. 13. where Holt ch. juft. laid down the law to be, That 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 caufe of prohibition appears upon the libel." And lord ch. juft. Lee faid in that cale of Hynes v. Thompson, that he thought it muft either be pleaded that there was fuch a cuftom,' or an affidavit of it. And Mr. J. Chapple hinted, that prohibitions had been too easily granted: And was of opinion, that there ought to have been an affidavit to verify the fuggeftion.

In Driver v. Colgate, [mentioned alfo by Afton Fce, in the fame cafe of Buggin v. Bennett. Burr. 4 t. 2039-40.] The court held, that there was no neceffity to plead it below, in cafes of prohibition for words fpoken where they ar by the custom actionable, as there is in cafe of a prohibi tion or fuggeftion of a modus. For in the former cafe, they cannot go on if the fuggeftion be true; but in the latter of a modus if the modus be admitted in the fpiritual court, they may go on, becaufe the jurisdiction continues.

Where the Suggeftion must be verified by an Affidavit.

In all other cafes the court laid down a general rule, "that the matter muft either be pleaded below, or verified by affidavit." Vide Burr. 4 pt. 2040.

As in cafe for a prohibition to the confiftory court of London, in a caufe for calling a woman "whore" in London, there must be an affidavit of the custom, and alio that the words were fpoken there. Theyer v. Eaftwick. Burr. 4 pt. 2032.

In C. B. on fhewing caufe why a prohibition fhould 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 difcharged. Eaglesfield v. Anderfon. Barnes 427.

Of