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Of granting a Prohibition absolutely, or hoc usque only.
PROHIBITIONS are granted either absolutely, or hoc usque only till such an act be done; the first of these. is peremptory, and ties up the inserior jurisdiction till a consultation is awarded; the second is ipsosaclo discharged upon complying with the act, and that without any writ os consultation. 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 quousque the copy be delivered. Vent. 252. 2 Salk. 55?. pi. 19.
The stat. 2 Hen. 5. stat. 1. c. 3. requires a copy of the libel in the ecclesiastical court to be given to the party sued there. But as this statute extends only to the tcclestajlical courts, a prohibition was denied to be granted to the admiralty court, upon a suggestion that they resused to give the party sued there a copy of the libel. Ld. Raym. 442.
A prohibition quousque fhey give a copy of the libel, if it be granted before any li.bel exhibited, does not bind them from exhibiting any libel; but after, they shall 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 cfscio in the ecclesiastical court, they were not bound to give the party a copy of the articies: but the law is otherwise; for in such cases, if they resuse to give a copy of the articles, a prohibition shall go qitousque they deliver it. Ld. Raym. 991.
In C. B. rule was made for civilians to be heard on both sides 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 sides, or not at all. Enlarge the rule: perhaps, when our opinion is known, a doctor may attend on the other fid*. Afterwards no civilian attending to argue for the prohibition, the court would not hear doctor Lee against it. Barnes 428.
Of declaring in Prohibition, &c.
TH E court seldom awards a prohibition upon the motion, but generally grants a rule nisi, or that the adverse party should shew cause why it should not be granted. Cro. El. ib. 94. 5 Mod. 247. Ld. Raym. 86. 236. IVil. Rep. 7.pl.2. •''...
Also in nice and difficult cases it is usual to direct the plaintiff to declare in prohibition. Cro. El. 736. 4 Mod. j 51. Lev. 125. Ld. Raym. 88.—and so proceeJ to issue, that the merits of the cause may be brought before them with the greater exactness, and the court thereby be the better enabled to judge of the reasonableness of granting or refusing the writ. Stil. Pracl. Reg. 43. F. N. B. 44.
When the court inclines to grant the motion for a prohibition, the desendant has a fort of right to insist that the plaintiff shall declare; but where the court inclines against the motion, the plaintiff has no such right, for there might be judgment by desault, 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 Bijhop of Ely. Mich. 30 Gee. 2.
The court is not obliged to give direction for such declaration, but are absolute judges of the sufficiency or insufficiency of the suggestion. Leon. 181.
On shewing cause against a prohibition, the court made the rule absolute, with a direction that the plaintiff should declare in prohibition. He tendered a declaration, but the defendant refused it, and applied to stay the proceedings, as being willing to submit. The other insisted he had a right to go on, and so get at the costs of the motion, which he could not otherwise have; but the court stayed the proceedings without costs; saying, the direction to declare was in savour of the desendant, who might waive it. Gegge v. Jams. Str.i. 1149. [Fide the statute 8 W 9 IV. 3. c. n. /. 3. which gives costs 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 such judgment and execution, after plea or demurrer, the costs shall be taxed from the suggestion, so as to take in the motion. Wills v. Turner. ILL 2 Geo. I. C. B.
VViiere the party is oidered to declare in prohibition, he ought not to take out the writ, but serving ihe other side with a rule is sufficient; and if in that suit be obtain judgment,
..--Of declaring In Prohibition, &V.
me'nr, the judgment is /let prohibition otherwise it is quod tat consultation therefore if the party be excommunicated, the ., . mandatory part of the writ to a/Toil the party is not to be obeyed til! after trial bad. The Dean and Bishop of IVells. Mich. %$Geo. 2.
It was at the defendant's instance made ptrt of the rule whereby a writ of prohibition was granted, that the plaintiff should declare in prohibition. Defendant afterwaids 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 desendant's agent that he need not deliver it; but as he had been at the trouble and expence in . preparing it, he delivered the same, and called for a plea. Desendant pleaded nothing to the merits, but only that he did not proceed in the spiritual court after the prohibition, gave a rule to reply, and demanded a replication. Whereupon plaintiff applied to the court, and obtained a rule for desendant to shew Cause, why he should not pay the plaintiff's costs <>F the proceedings in prohibition. Which rule was made absolute. The court looked on the plea to be a sham nugatory plea, and not to the merits of the cause: the '• allegation, that desendant has proceeded, contrary to the pro•',,. hibition, is and must be put into every declaration of this -. kind: but whether he has so proceeded, or not, is totally im-• material. The stat. 8 & Q IV. 3. c. 10. s. 3. gives costs .-' after plea or demurrer: but this is not a plea within the sta. -. 'tute. Seed v. IVolfenden. Barnes 148.
In cases of tythes and suth sort of matters where many things are' in controversy, it is very frequent to order the prohibition .to stand as to part, and a conjultation to go as to '-• the other part.'
If the declaration in prohibition varies from the suggestion, this is naught, and a consultation shall be awarded. 7 Mod. 113. Leon. 128. For the surmise 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 tarn declaration, for it supposes a con'•• 'tempt'to the king in proceeding after the writ delivered. . 12 Gi. 61.
.'• Where an issue is joined on a declaration in prohibition, if the jury find a verdict for the plaintiff, yet they shall give no more th2n one shilling damages, for'it is in nature of an issue to inform the conscience of the court. Carter v. Leeds. ' Mich'. 1 Geo. 2. liut aster the pLintiff has had
Of declaring in Prohibition, &c.
judgmerst quid ftet probibiti-7- he may bring his action upon the case, and recover the damages he has sustained/"
If the jury, upon an issue ioined in a prohibition de morlo decimandL find a different modus, thin that alledged 'be the plaintiff, yet the desendant shall not have 'a co'iisulution $ because it appears that he ought not to sue for -tythes in specie, there being a modus found. Vent. 32.'
'The declaration ought to shew a place where the dessend ant proceeded, after the prohibition served; otherwise, the plaintiff shall not have judgment, though the writ of enquiry funds damages. 1 Vent. 348, 350. Ray. 3B7. 2 Jones I iC. 2 Shew. 145.
Two persons cannot join in the declaration, where the cause of complaint is several. Cre. Car. 162.
If the libel be against several parishioner*, who ail insist upon the same modus, they cannot join, but must haveseve-' ral prohibitions. Tel. 128. R. Raym. 425,
If there appears cause for a prohibition, there shall-not be a consultation, though'the declaration be desective for want of form; as because there is not the profort of a deed, or letters patent. Per Coke. I Rol. 332.
After a rule given to declare in prohibition, the defend%« - i»y submit and stay proceedings. Stra. H'49.
Of granting a Consultation, &c*
IF 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 consultation, without putting him to declare upon the prohibition. Cro. Cur. 97.
So, after a prohibition granted* if upon trial the matter be found for the desendant, generally, a consultation snail
So if the matter found for the desendant varies in words,
but not in substance, from the suggestion * as if the suggestion 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 suggestion for a prohibition, and the libel in the spiritual court, there ought to be a consultation; for the prohibition ought to be founded upon the libel; as if the libel be for tythes of corn* and a modus be suggested for tythes of hay, upon demurrer to the declaration in prohibition* a consultation shall got
So if there be a variance in quantity* as if the libel be
for two hundred saggots of wood* and the suggestion be for twenty only. Tel. 79.
So after a prohibition granted, if it appears that the spiritual court has conusance for part, a consultation shall go quoad, &c. 12 Co. 44.
So if, after a prohibition granted* it be not served till sentence and appeal* it cannot be afterwards used. Cro. \ Jac. 429.
But a consultation shall 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 shall not be granted upon motion before plea or demurrer. Cro. Car. 238.
Nor shall a consultation go, where a verdict is found for the desendant, if it appears upon the whole matter that the spiritual court has no conusance; as if a prohibition be upon a suggestion, that all lands jn A. are discharged by a modus, and there is a verdict for the desendant, because it is found that all, except ten acres, are within the modus; yet a consultation does not go for such mistake in the issue, if the libel was not for tythes of the ten acres. 2 Rol. 320. L. 5, 15. Hob. 19a.
So if the suggestion was of unity, ratione cujus he shall
Ve discharged, and a verdict finds that he shall not be dis