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which notwithstanding what is said in Liford's case, 11 Co.49. B.,
, to prevent an abbot from committing waste in the possef-
. 299., which went to the sheriff' to prevent waste, and which, he says, may be used at this day. The prohibition of waste directed to the party which lay at common law, having been taken away by the Stat. Wejl.2. the present motion cannot be supported unless upon some distinction in favour of the Crown.
This is an application for a prerogative writ, without any other foundation than theangrydicta(a)of Lord Coke, sitting in the King's Bench, and asserting the jurisdiction of that Court by throwing out an invitation to all the King's subjects to move for such a writ;
yet it is remarkable, that, in the course of 200 years, no perfon appears to have accepted the invitation. For his own opinion he had no other ground than a case in parliament which occurred 300 years before that time, viz. the Bishop of Durham's cafe,
35 Ed. 1. (b) Rot. Parl. vol. i. p. 198. No. 46. That case feems to have been much misunderstood. Anthony Beak was then Bifhop of Durham, of whom Lord Coke fays, 4 Inft. 216. in the margin: “This was Anthony Beak of that state and greatnesse (c) 23 never any bishop was, Wolfiy except.” By a record of 33 Ed. 1.
() In Roll. 86. speaking of the writ mises et taillages auxi bien des damages
nre Seigur le Roy pur trespas donne ill eft may have this writ against him (a vicar), atteint, come d'autre manere de caillages, kat it is the writ of the King."
qil sount si enpoveriz qil ne pount leur terre () PETITIONES IN PARLIAMENTO. tenir dount li ure Seigur le Roy qe est A. D. 1306. 35 Edw. I. No. 46. avowe del Esylife avantdice ne y mette re. Ant. Bek.
medie l’Esglise avantdite sera dilherite &
& de la Corone & du Chapitre de Doream.
Bishop of DURHAM.
Rot. 101. cited by Noy Attorney-General, Cro. Car. 253. it appears that the Bishop of Durham pretended he had such privileges, that the King's writ ought not to run there, and because one brought the King's writ there, imprisoned him; and for this cause it was adjudged, that he should lose his liberties for his time. And we may collect from Rot. Parl. vol.i. p. 197. No. 39. (a) p. 205. No. 77.(6) which are both of the 35 Ed. 1, that the temporalties of the Bishop, together with the regalis libertas, were then in the hands of the King(c); for with the regalis libertas the. temporalties passed, as the demesnes of a lord go with the manor, and the profits and rents of burgage lands with the borough, Madox Firma Burgi, p. 7. 251. Nor is this at all improbable, fince the temporalties of the Bishop of Norwich were seized a few years before for a similar offence, as appears by Trin. 21 Ed. 1., Rot. 406. cit. Cro. Car. 253. If it be true that the King was in poliession of the temporalties, we may suppose that the aid of parliament was called in to prevent so powerful a subject as Anthony Beak from committing waste on lands belonging to the Crown. The case of the Bishop of Durham, 35 Ed.1., was probably a petition of the commons on the relation of the Dean and Chapter, to the King fitting in council, that is, the council of peers, and there
(a) A.D. 1306. 35 Edw. I. No. 39. fub-ballirorum Regis ibidem, & non dic.
Uxor Will’i le Marefchall. tringit aliquem liberum ieu villanum in cicio Ad peticoem Beatricis que fuit uxor Willi Lpatu pro hujusmodi fuftentacoe nisi tande Mareschal petentis remedium super eo, tummodo viilanos dicti Epi. Et præterea idem quod cum Ricus pater ejus feofaiset &c. et custos cepit in manum Dni Regis Burgum poilmodum ten’illa devenerunt ad mazus Dunelm', Derlington, Aukelond, -toke:on, Antonii Episcopi Dunolm' rempore cujus & Gatitheved, & inercat' et colnet in dictó diétus Willus vir suus ohiit, poft cujus mor.
Epatu & tenet Curias ibidem & capit protem fequebatur ad Epm exigeudo jus fuum ficua & jam duo Brevia de rec!o pendent in qui nichil ei inde facere voluit p quod lup- Curia ipsius Epifcopi & Ballivi fui nan plicat Domino Regi desicut illa non habet poífunt ingredi cur' prediétam ad faciendo aliam fuftentacoem quod remedium et jus partibi's justiciam: leem dictus custos leisivit fibi fiat ne pereat pro defećłu. Et dicit in manum Regis manerium de Sadberg cuin quod di&ta tenementa sunt in Werk in Tyne wapentach' eidem manerio pertinen' quod dale infra libertatem et sunt in manu Regis quidem manerium eft de novo perquisit de fomul cum aliis terris que fuerunt in manu antecelioribus Domini Regis, & eit extradiéti Epi infia eandem libertatem, &c. neum regali libertati dicti Epatus, &c. (6) A. D. 13C6. 35 Eddw.l. No.77. Refponfo. - Ita refponfum eft, Mittatur Ballivus Epi Dumeln'.
suh pede figilli Canceliar' ifta petitio RoAd petitionem ejufdem Ballivi petentis gero le Branbanzon & fociis fuis, &c. coram remedium fuper co quod cum Regalis Li. quibus judicium redditum fuit de reguli bertas Epatus capta fit in manu regis certis libertate capienda in manum Regis, & ipa
super hoc ordinent remedium competens de causis, custos dicti Epalus impendit ip- quoad omnes iltos articulos. sum Epifcopum quod non poffit habere Curiam iam Earon' ficut alii liberi diéti Holingsbed's Cbronicles, vol
. 3: P. 315. it is
(c) In the account of this tranfaction in Epatus habent, & etiam idem Cutes levare said that the King levied talliages on the facit blad. ad valenc. XL. ti de villanis tenants of the fee of Durban, dicti Ei pro fuitentatione Coronatorum &
Bishop of DURHAM.
fore having had the concurrence of the three eftates, may be confidered as an act of parliament (a). The order made was not declaratory of the cominon law, for the petition not only recites wafte committed, but talliages levied on the bondsmen of the church to pay the damages which the Prior of Durham had recovered (b) in an action against the Bishop; and the writ in that cafe issued out of Chancery, not as a court of justice, but as the repository of the great feal, which was necessarily annexed to the writ; and Lord Coke must have been mistaken when he faid, in Liford's cafe, 11 Co. 49 a. “ that the parliament did refer him to the ordinary remedy of the common law by writ of prohibition in such cafe,” since by the Siat. of Irejt. 2.
Ed. i. that writ (if ever it lay against a bishop) was taken away.
The accounts of the Bishop of Durham's cafe given by Lord Coke, when fitting in the Court of King's Bench, are variously reported in the books. In Stockman v. Whither, Mich. 12 Jac. 1 Roll. 86. he is made to affert “ that the Parliament said that a prohibition ought to be granted out of the King's Bench, and that it was granted accordingly.” And in a note in 2 Bulft. 279. of the fame Fear and term that “on motion made, the prohibition was granted by the Judges of the King's Bench.” But in the case of Knowle v. Harvey, 1 Roll. 335. he says, “that it was granted in Parlia
In Stampe v. Clinton, alias Liford, i Roll. 1oo. he is again reported to have said, “ that it was granted in the King's Bench;” whereas in his own report of Liford's case, he cites the Roll in Parliament, “ inhibeatur per breve de cancellaria." In three books therefore he is reported to have affirmed that the writ in the Bishop of Durham's case went from the King's Bench ; and probably he did fo; but had reason to alter his opinion when he came to make out and publish his own report of Liford's case. If however we are to consider the writ in that cafe as a common law writ, perhaps these discordant accounts may be reconciled in this manner. Formerly the courts of common law could not grant any prohibition in any case, unless the party were in contempt of an original writ directed to him out of Chancery; which was not returnable either in the King's Bench or Common Pleas, but was directed to the Court or party prohibited: if notwithstanding such writ with alias and pluries, the Court or party perfifted in doing that which was prohibited, an attachment fur prohibition issued returnable either in
Bimop of DURHAM.
the King's Bench or Common Pleas. Langdale's case, 12 Co. 58. 38 H. 6. 14. abridged Bro. Prohibition, pl. 6. This was probably the original practice in all prohibitions. Afterwards these Courts on a fi&tion issued an original writ in prohibition to confine Ecclesiastical Courts within their jurisdiction; if the Judges of those Courts proceeded contrary to the common law, the Courts of King's Bench or Common Pleas allowed a suggestion to be filed that they had proceeded fo and fo, and supposed them in contempt, as if a writ had actually issued out of Chancery: and this may serve to explain the words in Fitz. Abr. Attachment fur Prohibition, pl. 15. 2 Inft. 300. and 4 Inft. 99. “ That the common law, which in those cases is a prohibition of itself, ftands inftead of an original.” This fiction did not eafily gain ground in the Common Pleas. Broke, who was himself Chief Justice of the Common Pleas, doubts it (a). In Mich. 6 Jac. Langdale's cafe, 12 Co, 58. it was debated in the Common Pleas, whether that Court could issue a prohibition to the Court of High Com, millioners, when no plea was there pending, and it was resolved by Coke, Chief Justice, and the other Judges of that Court, that it might. And in the next year Lord Chancellor Egerton called together the Judges of the King's Bench and Exchequer, of whom he demanded whether the Court of Common Pleas had authority to grant any prohibition without writ of attachment or plea den pending; and the above resolution was unanimously affirmed. 4 Inft. 99, 100. (6). And this seems to be now settled; for in Bufhell's case, Vaughan 157. Lord Vaughan, speaking of the Common Pleas, said “all prohibitions for incroaching jurisdiction issue as well out of the Common Pleas as King's Bench." This view of the subject seems to reconcile Lord Coke's different dicta respecting the Bishop of Durham's case. For as the fiction did not extend to prohibition of waste, an order was probably made in Parliament, that a writ should issue out of Chancery, directed to the Bishop and his minifters, and this was the ordinary remedy out of Chancery; if the Bishop perfifted, another writ was issued returnable in the King's Bench, and then, if he continued to waste, he was in contempt, in which case the ordinary remedy was by a writ out of the King's Bench. But on no ground can the Bishop of Durham's case be considered as an authority for granting an original writ in a Court of Çom,
The first case in which the power of the King's Bench to issue an original writ in prohibition of waste was asserted, was Stockman v. Wither, i Roll. 86.; also alluded to in the anonymous note, 2 Bulft. 279. which varies from Rolle by saying, “ We will grant it by the stat. 35 Ed. 1." As that however was founded on the idea that the writ in the Bithop of Durham's cafe iflued out of the King's Bench, contrary to the authority of the Parliament Roll, it must fall to the ground. Besides it is contradicted by a report of the faihe cafe under the name of the Bifhop of Salisbury's case, Godb. 239., where it was holden that though waste by a Bishop may be punished in the Ecclesiastical Court, that a prohibition will not lie; and the reporter cites 2 H. 4. 3. where Thirning Ch. J. and Tiwit J. maintain the farne doctrine. Vid. also Bro. Abr. Deposition, pl. 1. The next cafe in order is Knowle v. Harvey, 1 Roll. 335. 3 Bulfir. 158. where a prohibition was granted to a vicar by the common law for cutting down trees; but from Bulstrode it appears that the trees were growing in the church-yard which would bring it within the 35 Ed. 1. “ ne rector profternat arbores, &c."; moreover the writ was moved for by the church wardens pending a suit between them and the Defendant, and might therefore have iffued under the Statute of Gloucester. Sacker's cafe, 3 Bulf.91. Moor 917. cited i Roll. 335. which comes next, was a prohibition against a vicar continuing in possession of the vicarage by consent of the parties after judgment against him, and was therefore either pendente placito, or founded on the writ in the Register, P.77. Costard's cafe, 2 Roll. 111. was only a prohibition to a ricar under 35 Ed. 1. and Drury v. Kent, Hob. 36. to an incumbent for waste while a quare impedit was pending. There is a case of the Lord of Rutland, i Lev. 107. ì Keb. 557. i Sil. 152. which according to the two last reporters was an applica. tion for a prohibition to a rector, for opening mines in the glebe; according to Levinz for opening mines and cutting down trees; but from the record of the cafe, Liber Placitandi 240. the first account appears to be correct; the Court said, “ that if it were grantable, no mines could ever be opened in the glebe;" but added “ that for cutting down trees to the destruction of the church, they would grant it;" probably under the 35 Ed. 1. All the cases in the books have now therefore been disposed of, except a cate of Acland v. Atwell, 2 Roll. Abr. 813. where a prohibition was granted to a patron against a prebendary FOL. I