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Of granting a Prohibition abfolutely, or boc ufque only.

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ROHIBITIONS are granted either abfolutely, or hoc ufque only till fuch an act be done; the first of thefe, is peremptory, and ties up the inferior jurifdiction till a confultation is awarded; the fecond is ipfo fatto difcharged upon complying with the act, and that without any writ of confultation. 6 Mod. 308.

When a prohibition is moved for because a copy of the libel is denied, the court requires that oath should be made of the denial, and the prohibition is only quoufque the copy be delivered. Vent. 252. 2 Salk. 553. pl. 19.

The ftat. 2 Hen. 5. Stat. 1. c. 3. requires a copy of the libel in the ecclefiaftical court to be given to the party fued there. But as this ftatute extends only to the ecclefiaftical courts, a prohibition was denied to be granted to the admiralty court, upon a fuggeftion that they refused to give the party fued there a copy of the libel. Ld. Raym. 442.

A prohibition quoufque they give a copy of the libel, if it be granted before any libel exhibited, does not bind them from exhibiting any libel; but after, they fhall not proceed till they give a copy of it. 6 Mod. 308.

It was formerly held by all the judges, 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 quoufque they deliver it. Ld. Raym. 991.

In C. B. rule was made for civilians to be heard on both fides in relation to a prohibition. Dr. Lee attended to argue against the prohibition; but none would attend to argue for it, as by affidavit appeared. Per Cur. We ought to hear civilians on both fides, or not at all. Enlarge the rule: perhaps, when our opinion is known, a doctor may attend on the other fide. Afterwards no civilian attending to argue for the prohibition, the court would not hear doctor Lee against it. Barnes 428.

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Of declaring in Prohibition, &c.

HE court feldom awards a prohibition upon the motion, but generally grants a rule nifi, or that the adverfe party fhould fhew caufe why it fhould not be granted. Cro. El. 16.94. 5 Mod. 247. Ld. Raym. 86. 236. Wil. Rep. 7. pl. 2.

Alfo in nice and difficult cafes it is ufual to direct the plaintiff to declare in prohibition. Cro. El. 736. 4 Mod. 151. Lev. 125. Ld. Raym. 88.-and fo proceed to illue, that the merits of the caufe may be brought before them with the greater exactnefs, and the court thereby be the better enabled to judge of the reasonableness of granting or refufing the writ. Stil. Pract. Reg. 43. F. N. B. 44.

When the court inclines to grant the motion for a prohibition, the defendant has a fort of right to infift that the plaintiff fhall declare; but where the court inclines against the motion, the plaintiff has no fuch right, for there might be judgment by default, and the court be obliged to prohibit against their own opinion; and it is no injury to the plaintiff, as he may apply to another court. The King v. the Bishop of Ely. Mich. 30 Geo. 2.

The court is not obliged to give direction for fuch declaration, but are abfolute judges of the fufficiency or infufficiency of the fuggeftion, Leon. 181.

On fhewing cause against a prohibition, the court made the rule abfolute, with a direction, that the plaintiff should declare in prohibition. He tendered a declaration, but the defendant refused it, and applied to ftay the proceedings, as being willing to fubmit. The other infifted he had a right to go on, and fo get at the costs of the motion, which he could not otherwife have; but the court ftayed the proceedings without costs; faying, the direction to declare was in favour of the defendant, who might waive it. Gegge v. Jones. Stra. 1149. [Vide the ftatute 8 & 9 WV. 3. c. 11. f.. 3. which gives cofts in prohibition upon plaintiff's obtaining judgment, or any award of execution after plea pleaded or demurrer joined] but the plaintiff can recover no costs in prohibition, unless he has execution after plea or demurrer and judgment for him; but then after fuch judgment and execution, after plea or demurrer, the colts thall be taxed from the fuggeftion, fo as to take in the motion. Wills v. Turner. Hil. 2 Geo. 1. C. B.

Where the party is ordered to declare in prohibition, he ought not to take out the writ, but ferving the other fide with a rule is fufficient; and if in that fuit he obtain judg

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Of declaring in Prohibition, &c.

ment, the judgment is flet prohibitio, otherwife it is quod eat confultatio; therefore if the party be excommunicated, the. mandatory part of the writ to affoil the party is not to be obeyed till after trial bad. The Dean and Bishop of Wells.: Mich. 25 Geo. 2.

It was at the defendant's inftance made part of the rule whereby a writ of prohibition was granted, that the plaintiff fhould declare in prohibition. Defendant afterwards demanded a declaration, and threatened a non pros for want thereof, Whereupon a declaration was prepared: and when it was ready he was told by defendant's agent that he need not deliver it; but as he had been at the trouble and expence in preparing it, he delivered the fame, and called for a plea. Defendant pleaded nothing to the merits, but only that he did not proceed in the fpiritual court after the prohibition, gave a rule to reply, and demanded a replication. Whereupon plaintiff applied to the court, and obtained a rule for defendant to fhew caufe, why he fhould not pay the plaintiff's cofts of the proceedings in prohibition. Which rule was made abfolute. The court looked on the plea to be a fham nugatory plea, and not to the merits of the caufe: the allegation, that defendant has proceeded, contrary to the prohibition, is and muft be put into every declaration of this kind but whether he has fo proceeded, or not, is totally immaterial. The ftat. 8 & 9 W. 3. c. 10. f. 3. gives cots after plea or demurrer: but this is not a plea within the statute. Seed v. Wolfenden. Barnes 148.

In cafes of tythes and fuch fort of matters where many things are in controverfy, it is very frequent to order the prohibition to ftand as to part, and a confultation to go as to the other part.

If the declaration in prohibition varies from the fuggeftion, this is naught, and a confultation fhall be awarded. 7 Med. 113. Leon. 128. For the furmife is as the writ.

The declaration in prohibition is founded upon an attachment for a contempt, and therefore the declaration in prohibition is a qui tam declaration, for it fuppofes a contempt to the king in proceeding after the writ delivered. 12 Go. 61.

Where an iffue is joined on a declaration in prohibition, if the jury find a verdict for the plaintiff, yet they fhall give no more than one filling damages, for it is in nature of an iffue to inform the confcience of the court. Carter v. Leeds. Mich. 2 Geo. 2. But after the plaintiff has had judgment

Of declaring in Prohibition, &c.

judgment quod ftet prohibitio, he may bring his, action upon the cafe, and recover the damages he has fuftained."

If the jury, upon an iffue joined in a prohibition de modo decimandi, find a different modus, than that alledged by the plaintiff, yet the defendant fhall not have a confultation; because it appears that he ought not to fue for tythes in fpecie, there being a modus found. Vent. 32.

The declaration ought to fhew a place where the defend ant proceeded, after the prohibition ferved; otherwife, the plaintiff fhall not have judgment, though the writ of enquiry finds damages. 1 Vent. 348, 350. Ray: 387. 2 Jones 123. 2 Show. 145.

Two perfons cannot join in the declaration, where the caufe of complaint is feveral. Cro. Car. 162.

If the libel be against feveral parishioners, who all infift upon the fame modus, they cannot join, but must have feve-" ral prohibitions. Yel. 128. R. Raym. 425.

If there appears caufe for a prohibition, there fhall not be a confultation, though the declaration be defective for want of form; as because there is not the profert of a deed, or letters patent. Per Coke. I Rol. 332. After a rule given to declare in prohibition, the defenday fubmit and ftay proceedings. Stra. 1149.

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Of granting a Confultation, &c.

F a prohibition be granted without notice to the other party, and upon motion it appears that there was no cause for it, the court will grant a confultation, without putting him to declare upon the prohibition. Cro. Car. 97.

So, after a prohibition granted, if upon trial the matter be found for the defendant, generally, a confultation shall go.

So if the matter found for the defendant varies in words, but not in substance, from the fuggeftion; as if the fuggeftion be, that two thirds of the tythes belong to the plaintiff, and the verdict is two entire parts of all tythes.

So if there be a material variance between the fuggeftion for a prohibition, and the libel in the fpiritual court, there ought to be a confultation; for the prohibition ought to be founded upon the libel; as if the libel be for tythes of corn, and a modus be fuggefted for tythes of hay, upon demurrer to the declaration in prohibition, a confultation fhall go Tel. 79:

So if there be a variance in quantity, as if the libel be for two hundred faggots of wood, and the fuggeftion be for twenty only. Yel. 79.

So after a prohibition granted, if it appears that the fpiritual court has con ufance for part, a confultation shall go quoad, &c. 12 Go. 44.

So if, after a prohibition granted, it be not ferved till fentence and appeal, it cannot be afterwards ufed. Cro. Jac. 429.

But a confultation fhall not be granted except in term. 12 Co. 41.

Nor by a judge, but only in court. Ibid.

Nor after a declaration upon a prohibition, it fhall not be granted upon motion before plea or demurrer. Cro. Car. 238.

Nor fhall a confultation go, where a verdict is found for the defendant, if it appears upon the whole matter that the spiritual court has no conusance; as if a prohibition be upon a fuggeftion, that all lands in A. are difcharged by a modus, and there is a verdict for the defendant, because it is found that all, except ten acres, are within the modus; yet a confultation does not go for fuch mistake in the iffue, if the libel was not for tythes of the ten acres. 2 Rol. 320. L. 5, 15. Hob. 192.

So if the fuggeftion was of unity, ratione cujus he shall be difcharged, and a verdict finds that he fhall not be dif

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charged

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