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Of granting a Consultation, Sec.
tharged rations inde; though it be against the plaintiff', yet being impertinent, for the sact to be'tried was, whether there was an unity,' &c. a consultation does not go? 2 Rol. 320../. 35. it Co. 15.
So, though there be an immaterial variance between the suggestion and the libel, a consultation does not go: as if the suggestion be so* a total discharge upon the stat. 31 H. 8. and recites the libel to be for twenty saggot?, where it was for two hundred; for it was not material for what quantity the ljbe! Was, when the plaintiff claims a discharge for the whole. Til. 79. .
So if the suggestion varies in quantity from the libel, if it be conformable to the copy of the libel delivered by the spiritual court,' this variance shall not be a ground for a consultation. 2 Rol. 329. /. 4$.
A writ of consultation is to the following effect:
G EO RGE the third, by the grace of GW, of Great Britain, France, and Ireland, king, desender of the '* saith, and so forth. To the right worshipful
J. C. master -of arts, vicar general, and principal of-
description of A. B. of the parish of . in
the county os Devon, for this, that by the laws, &c. [Here set forth the substance of the libel.] as by the libel of the said C D. arnongst other things more sully appears. And whereas the said A. B. has lately prosecuted and caused to be directed to you our certain prohibition, out of our court; before our justices at IVeslminJhr, that you should no sarther hold the plea aforesaid, in the court christian aforesaid, before you or any thing sarther in that behalf attempted, by pretence of which our said prohibition you have from thence hitherto delayed, and yet do delay surther to proceed in the cause aforesaid, as we have understood, to the great damage of the said C. D. and to the manisest prejudice of the ecclesiastical liberty.— Wherefore the said C. D. hath in our court, before our said justices at IVcJlminJkr, humbly besought Vol. II. S us
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Of granting a Consultation, &c. .
us to grant him our aid and assistance in this behalf; and we savourably consenting to the petition of him the said C. D. and being unwilling that the cognisance, Which to the ecclesiastical court in this behalf belongs, should be surther delayed by such salse and subtle assertions j because in our said court, before our said juftices at Westminster, it is in such manner proceeded, that it is considered by the same court, that the said C. D. may have our writ of consultation to the court christian aforesaid,our said writ of prohibition to the contrary thereof notwithstanding, whereof the said A. B. is convicted, as it appears to us on record. We therefore being unwilling that the said C. D. should be in any wise injured in this behalf, signify to you> and command, that you may in that cause lawsully proceed and further do what you shall know to belong to the ecclesiastical court, our said prohibition to the contrary thereof before to you directed in any wise notwithstanding.
Witness Sir William de Grey, knight, at Westminster, the - day of, Use.
'Where a Prohibitionljnay be granted after a Consultation awarded, and .where not, and of Disobedience to the Writ of Prohibition.
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BY the 50 Ednu.'i-- c- 4- "I* '9 ordained and stablished, That .where a* consultation is once duly granted i\jpori. a'prohibition made tor the judge. of the holy- church, that the same judge may proGeed in the caufe by virtue of the . same consultation, notwithstanding any bfher prohibition to . him thereupon delivered :. Provided always, trrat the matter .rn the KbeT of the said cause be not engrosted, enlarged, or . otherwise changed'.". . '.
."Judge of holy1 church,. means spiritual judge; .ajid therefore, this'statute extends not to the court of admiralty. 2 Brownl.
3,5- v.. - . '. :'' .
Same judge', means ecclesiastical judge in generals or per.' son competent,' and not to the same individual person. Pop. 159. Palm. 418. Latch. 6, 75.
This statute hath been construed to. extend to those cases only where a consultation hath been lawsully granted; that , is, upon the right and merits of the thing in question, and not to such cases Where for desect of form* misprision of a clerk, mispleading an.act of parliament, (3c. consultations have been awarded. • 2 '.Brownl. 26,' 247. Leon. 136. 3 Bulst. j82. Moor 0/I7.'
And therefore regularly, where a consultation was awarded upon the merits, the party shall not have another probation upon the same suggestion.
Though he appeals, and then prays another prohibition. R. Pop. 159. Lat. 6. 1 Rol. 378. Moor 919.
Though the consultation be granted by another court. Cro. El. 277. . . .
And though he varies in the modus upon which the former prohibition was had. 1 Rol. 378.
But if a consultation was awarded 'for want of form in the suggestion, or proceeding thereon, another prohibition may be allowed. Cro. Car. 208.
So if the consultation was awarded. for want of proof of the suggestion within thejtx months,. pursuant to the statute jiif 3 Edw. 6. the pla:iuifF is not precluded, but may bring another prohibition, [but then he must pay double cofls according to the statute, Carth. 46 z.] for this statute'of Edward 2- goes to the suggestion made upon the same libel, . and to a consultation .duly granted, and not to the case of not having witnesses ready to prove the suggestion through
S 2 negligence.
Where a Prohibition may be granted aster a Consultation awarded, and where not, and of Disobedience to the. Writ of Prohibition.
negligence. But it was said by Holloway just. that after a consultation awarded for not .proving his suggestion, &a the party shall be for ever barred from having anoth'ef prohibition on the same libel. Comb. 63.
But if, after a consultation for want of proving his suggestion, the party appeals, there may be another prohibition to the court, to which the appeal was, upon the same suggestion. 2 Rol. 500. • l
So if after a consultation the libel is enlarged or changed. 2 Rol. 207. . '» * .'
So isa consultation goes for a collateral matter, as if the plaintiff was nonsuited. Com. Dig. 4 Vol. 484. But. Keb. 286. —If upon the trial of a suggestion the plaintiff be nonsuit, • no new prohibition shall be granted, although the nonsuit was occasioned for want of some of the plaintiff's witnesses, who were to prove the truth of the suggestion, and who were necessarily obliged to be absent.
But where the suggestion was for a modus of tythe of Jambs in the parish, and a consultatipn went; another prohibition shall'go upon a suggestion of the same modus in a' particular farm. 2 Vent. 47. This case is reversed there.
So if a consultation goes, and there be afterwards a new libel for the fame species of tythes in another year, a prohibition shall go upon the same suggestion as was tried before.. Tel. 102.
And if a consultation goes, and 'the party against whom, appeals; the appellee may have a prohibition, though the appellant cannot have it. Pop. 159.
So if, after a consultation, the plaintiff pleads the same matter (which was suggested and found against him at common law) in the spiritual court, which is. accepted, arrd proceeds there for a trial; the former desendant may have a new prohibition: for they cannot try in the spiritual court, a matter determined at a trial at law, which was proper to be there tried, as if a discharge within 31 H. 8 was suggested. 7. Rol. 319. I. 45. Hob, 286.
If the ecclesiastical court resuse to grant a copy of the libel for which a prohibition is granted, and thereupon they grant the copy, and afterwards proceed in the cause, the matter not being within their jurisdiction, another prohibition lies. Moor 917.
Where a Prohibition may be granted after a Consultation awarded, and where not, and of Disobedience to the Writ of Prohibition.
If the desendant in prohibition dies, his executors may proceed in the ecclesiastical court, and the judges of the court out of which the prohibition was granted will also in such case make a rule to the spiritual court to proceed: But then the plaintiff may, if he pleases, have a new prohibition against the executors. Lil. Rep. 155.
The disobeying a prohibition is a contempt to the superior court that awards it, and punishable by attachment, which issues against the judge and party for proceeding after such prohibition, and for which they are subject to fine and imprisonment according to the direction of the superior court. F.N.B. 40. Bro.Att. Pro. pi. 5. 9. 1 r. and 279. Tho' the writ was not directed to the party. 19 H. 6. 54. And such attachment may be awarded against a peer of the realm. 21 Ed: j,. 2fl. 7
An attachment was granted upon an affidavit that the party proceeded after a prohibition delivered to him, in a suit for a seat in the church, which the plaintiff claimed by prescription; and upon his appearance and examination upon interrogatories, he consessed the matter, and was fined five marks. Dr. IVainrighss case. 2 Jon. 47.
And not only an attachment lies for proceeding in the same cause pending a prohibition, but also for instituting a new suit for the same thing; as if a person libels for tythes, and a prohibition is brought, and he libels for tythes of another year, the first not being determined, an attachment shall be awarded. Leon. lii. Moor 599.
And in an attachment upon a prohibition, the plaintiff* shall recover damages and costs against the party, for proceeding after the writ of prohibition awarded. Cro. Car. 559. 2 Jon. 128. Vent. 348. 3 Lev. 360.