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Of granting a Confultation, &c.

charged ratione inde; though it be against the plaintiff, yet being impertinent, for the fact to be 'tried was, whether there was an unity, &c. a confultation does not go? 2 Rol. 320... 35.

It Co. 15.

So, though there be an immaterial variance between the fuggeftion and the libel, a confultation does not go: as if the fuggeftion be for a total difcharge upon the ftat. 31 H. 8. and recites the libel to be for twenty faggots, where it was for two hundred; for it was not material for what quantity the libel was, when the plaintiff claims a difcharge for the whole. Tel. 79.

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So if the fuggeftion varies in quantity from the libel, if it be conformable to the copy of the libel delivered by the fpiritual court, this variance fhall not be a ground for a confultation. 2 Rol. 329. 1. 45.

A writ of confultation is to the following effect:

in

GEORGE the third, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and fo forth. To the right worshipful 7. C. mafter of arts, vicar general, and principal official of the epifcopal or confiftorial court of &c. Whereas C. D. lately in the court chriftian before you impleaded A. B. by the the name and defcription of A. B. of the parish of -the county of Devon, for this, that by the laws, &c. [Here fet forth the fubftance of the libel.] as by the libel of the faid C. D. amongst other things more fully appears. And whereas the faid A. B. has lately profecuted and caufed to be directed to you our certain prohibition, out of our court, before our juftices at Westminster, that you fhould no farther hold the plea aforefaid, in the court chriftian aforefaid, before you or any thing farther in that behalf attempted, by pretence of which our faid prohibition you have from thence hitherto delayed, and yet do delay further to proceed in the caufe aforefaid, as we have understood, to the great damage of the faid C. D. and to the manifest prejudice of the ecclefiaftical liberty.Wherefore the faid C. D. hath in our court, before our faid juftices at Westminster, humbly befought VOL. II. S

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Of granting a Confultation, &c.

us to grant him our aid and affiftance in this behalf; and we favourably confenting to the petition of him the faid G. D. and being unwilling that the cognifance, which to the ecclefiaftical court in this behalf belongs, fhould be further delayed by fuch falfe and fubtle affertions; because in our faid court, before, our said juftices at Westminster, it is in fuch manner proceeded, that it is confidered by the fame court, that the faid C. D. may have our writ of confultation to the court chriftian aforefaid, our faid writ of prohibition to the contrary thereof notwithstanding, whereof the faid A. B. is convicted, as it appears to us on record. We therefore being unwilling that the said C. D. fhould be in any wife injured in this behalf, fignify to you, and command, that you may in that caufe lawfully proceed and further do what you fhall know to belong to the ecclefiaftical court, our faid prohibition to the contrary thereof before to you directed in any wife notwithstanding.

Witnefs Sir William de Grey, knight, at Westminster, day of, &c.

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Where

Where a Prohibition may be granted after a Confultation awarded, and where not, and of Difobedience to the Writ of Prohibition.

BY the 50 Edw. 3. c. 4. " It is ordained and stablished,

That where a confultation is once duly granted upon a prohibition made to the judge of the holy-church, that the fame judge may proceed in the caufe by virtue of the fame confultation, notwithstanding any other prohibition to him thereupon delivered Provided always, that the matter in the libel of the faid caufe be not engroffed, enlarged, or • otherwife changed."

Judge of holy-church,, means fpiritual judge; and therefore, this ftatute extends not to the court of admiralty. 2 Brownl. 35.

Same judge, means ecclefiaftical judge in general, or perfon competent, and not to the fame individual perfon. Pop. 159. Palm. 418. Latch. 6, 75.

This ftatute hath been conftrued to extend to those cafes only where a confultation hath been lawfully granted; that is, upon the right and merits of the thing in queftion, and not to fuch cafes where for defect of form, mifprifion of a clerk, mifpleading an act of parliament, &c. confultations have been awarded. 2 Brownl. 26, 247. Leon. 130. 3 Bult. 182. Moor 917..

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And therefore regularly, where a confultation was awarded upon the merits, the party fhall not have another prohition upon the fame fuggeftion.

Though he appeals, and then prays another prohibition. R. Pop. 159. Lat. 6. 1 Rol. 378. Moor 919. Though the confultation 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.

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But if a confultation was awarded for want of form in the fuggeftion, or proceeding thereon, another prohibition may be allowed. Cro. Car. 208.

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So if the confultation was awarded for want of proof of the fuggeftion within the fix months, pursuant to the statute 3 Edw. 6. the plaintiff is not precluded, but may bring another prohibition, [but then he must pay double cofts according to the ftatute, Carth. 463.] for this ftatute of Edward 3. goes to the fuggeftion made upon the fame libel, and to a confultation duly granted, and not to the cafe of not having witneffes ready to prove the fuggeftion through negligence.

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Where a Prohibition may be granted after a Confultation awarded, and where not, and of Difobedience to the Writ of Prohibition.

negligence. But it was faid by Holloway juft. that after a confultation awarded for not proving his fuggeftion, &c the party shall be for ever barred from having another prohibition on the fame libel. Comb. 63.

But if, after a confultation for want of proving his fuggeftion, the party appeals, there may be another prohibition to the court, to which the appeal was, upon the same fuggeftion. 2 Rol. 500.

So if after a confultation the libel is enlarged or changed. 2 Rol. 207..

So if a confultation goes for a collateral matter, as if the plaintiff was nonfuited. Com. Dig. 4 Vol. 484. But. Keb. 286. -If upon the trial of a fuggeftion the plaintiff be nonfuit, no new prohibition fhall be granted, although the nonfuit was occafioned for want of fome of the plaintiff's witneffes, who were to prove the truth of the fuggeftion, and who were neceffarily obliged to be abfent.

But where the fuggeftion was for a modus of tythe of lambs in the parifh, and a confultation went; another prohibition fhall go upon a fuggeftion of the fame modus in a particular farm. 2 Vent. 47. This cafe is reverfed there.

So if a confultation goes, and there be afterwards a new libel for the fame fpecies of tythes in another year, a prohibition fhall go upon the fame fuggeftion as was tried before. rel. 102.

And if a confultation goes, and the party against whom, appeals; the appellee may have a prohibition, though the appellant cannot have it. Pap. 159.

So if, after a confultation, the plaintiff pleads the fame matter (which was fuggefted and found againft him at common law) in the fpiritual court, which is accepted, and proceeds there for a trial; the former defendant 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 difcharge within 31 H. 8 was fuggefted. 2 Rol. 319. 1.45. Hob. 286.

If the ecclefiaftical court refufe to grant a copy of the libel for which a prohibition is granted, and thereupon they grant the copy, and afterwards proceed in the caufe, the matter not being within their jurifdiction, another prohibition lies. Moor 917.

Where a Prohibition may be granted after a Confultation awarded, and where not, and of Difobedience to the Writ of Prohibition.

If the defendant in prohibition dies, his executors may. proceed in the ecclefiaftical court, and the judges of the court out of which the prohibition was granted will alfo in fuch case make a rule to the fpiritual court to proceed: But then the plaintiff may, if he pleases, have a new prohibition against the executors. Lil. Rep. 155.

The difobeying a prohibition is a contempt to the fuperior court that awards it, and punishable by attachment, which iffues against the judge and party for proceeding after fuch prohibition, and for which they are subject to fine and imprisonment according to the direction of the fuperior court. F.N.B. 40. Bro. Att. Pro. pl. 5.9. 11. and 279. Tho' the writ was not directed to the party. 19 H. 6. 54. And fuch attachment may be awarded against a peer of the realm.. 21 Ed. 3. 3 pl. 7.

An attachment was granted upon an affidavit that the party proceeded after a prohibition delivered to him, in a fuit for a feat in the church, which the plaintiff claimed by prefcription; and upon his appearance and examination upon interrogatories, he confeffed the matter, and was fined five marks. Dr. Wainright's cafe. 2 Jon. 47.

And not only an attachment lies for proceeding in the fame cause pending a prohibition, but alfo for inftituting a new fuit for the fame thing; as if a perfon libels for tythes, and a prohibition is brought, and he libels for tythes of another year, the first not being determined, an attachment fhall be awarded. Leon. III. Moor 599.

And in an attachment upon a prohibition, the plaintiff fhall recover damages and cofts against the party, for proceeding after the writ of prohibition awarded. Cro. Car. 559. 2 Jon. 128. Vent. 348. 3 Lev. 360.

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