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which notwithstanding what is faid in Liford's cafe, 11 Co. 49. b., does not appear to be in affirmance of the common law, but an innovation. There is one writ, 2 Roll. Abr. 813., directed to the fheriff, to prevent an abbot from committing wafte in the poffef fions of his priory; this writ is tefte rege, therefore out of Chancery; and a fcire facias is added for the party to appear coram bis: this therefore probably iffued out of Chancery, returnable in the King's Bench, and is the only writ at all resembling that now moved for, and this iffued at the fuit of the King, who was the patron, and was directed to the fheriff and not to the party. Perhaps it was the writ alluded to by Lord Coke, 2 Inft. 299., which went to the fheriff to prevent wafte, and which, he fays, may be used at this day. The prohibition of wafte directed to the party which lay at common law, having been taken away by the Stat. Weft. 2. the prefent motion cannot be fupported unless upon fome diftinction in favour of the Crown.

This is an application for a prerogative writ, without any other foundation than the angry dicta (a) of Lord Coke, fitting in the King's Bench, and afferting the jurifdiction of that Court by throwing out an invitation to all the King's fubjects to move for fuch a writ; and 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 cafe 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 cafe feems to have been much misunderstood. Anthony Beak was then Bishop of Durham, of whom Lord Coke fays, 4 Inft. 216. in the margin: "This was Anthony Beak of that ftate and greatneffe (c) as never any bishop was, Wolfey except." By a record of 33 Ed. 1.

(a) In 1 Rell. 86. speaking of the writ of prohibition to a bishop, he fays, " If any man will move it, I will grant it ;" and in 1 Rall. 335. and 3 Bulft. 91. any one may have this writ againft him (a vicar), for it is the writ of the King."

(6) PETITIONES IN PARLIAMENTO.
A. D. 13c6. 35 Edw. I. No. 46.
Ant. Bek.

Voille noftre Seigneur le Roy enten dre qe Sire Antoyn Evefq; de Dorem waft & deftruit tut le Boys apurtenaunt a fa Eglife en l'Evelche de Dorem p doun & vent & mauveife garde & p mettre forges de fer & de plume & de arder Carbons. E etre te il charge les bondes del Efglife p divertes

mifes et taillages auxi bien des damages
qe le Priour de Dorem' & autre Gentz
ount defrene vers lui devaunt les Justices
nre Seigur le Roy pur trefpas donnt ill eft
atteint, come d'autre manere de taillages,
qil fount fi enpoveriz qil ne pount leur terre
tenir dount fi ure Seigur le Roy qe eft
avowe del Efglife avantdite ne y mette re-
medie l'Eglife avantdite fera difherite &
enpoverie en prejudice nre Seigur le Roy
& de fa Corone & du Chapitre de Doream.

Refponfio-Ita refponfum eft. Inhibeatur
per breve de Cancellaria Epifcopo & minif-
tris fuis ne faciant vaftum de contentis in
petitione.

(c) Vid. allo Store's Chronicle, p. 207.
Rot

1797.

JEFFERSON

ย.

Bishop of DURHAM.

1797.

JEFFERSON

บ.

Bishop of DURHAM.

Rot. 101. cited by Noy Attorney-General, Cro. Car. 253. it appears that the Bishop of Durham pretended he had fuch 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. (b) 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 paffed, as the demefnes 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 feized a few years before for a fimilar offence, as appears by Trin. 21 Ed. 1. Rot. 406. cit. Cro. Car. 253. If it be true that the King was in poffeffion of the temporalties, we may fuppofe that the aid of parliament was called in to prevent fo powerful a subject as Anthony Beak from committing wafte on lands belonging to the Crown. The cafe 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.

Uxor Will'i le Marefcball.

Ad peticoem Beatricis que fuit uxor Willi de Marefchal petentis remedium fuper eo, quod cum Ricus pater ejus feofaffet &c. et poftmodum ten' illa devenerunt ad manus Antonii Epifcopi Dunolm' tempore cujus dictus Willus vir fuus obiit, poft cujus mortem fequebatur ad Epm exigendo jus fuum qui nichil ei inde facere voluit p quod fupplicat Domino Regi deficut illa non habet aliam fuftentacoem quod remedium et jus fibi fiat ne pereat pro defectu. Et dicit quod dicta tenementa funt in Werk in Tyndale infra libertatem et funt in manu Regis fimul cum aliis terris que fuerunt in manu diéti Epi infia eandem libertatem, &c.

(6) A. D. 1306. 35 Edw.I. No. 77.

Ballivus Epi Dunelm'.
Ad petitionem ejufdem Ballivi petentis
remedium fuper eo quod cum Regalis Li-
bertas Epatus capta fit in manu regis certis
de caufis, cuftos dicti Epicus impendit ip-
fum Epifcopum quod non poffit habere
Curiam tuam Earon' ficut alii liberi dicti
Epatus habent, & etiam idem Cuftos levare
facit blad. ad valenc. XL. ti de villanis
dicti E pro fuitentatione Coronatorum &

fub-ballivorum Regis ibidem, & non di tringit aliquem liberum feu villanum in dicto Epatu pro hujufmodi fuftentacoe nifi tantummodo villanos dicti Epi. Et præterea idem cuftos cepit in manum Dni Regis Burgum Dunelm', Derlington, Aukelond, Stoketon, & Gatitheved, & inercat' et tolnet' in dieto Epatu & tenet Curias ibidem & capit proficua & jam duo Brevia de recto pendent in Curia ipfius Epifcopi & Ballivi fui non poffunt ingredi cur' predictam ad faciend' partibus jufticiam: Item dictus cultos feifivit in manum Regis manerium de Sadberg cum wapentach' eidem manerio pertinen' quod quidem manerium est de novo perquifit' de antecefforibus Domini Regis, & eft extraneum regali libertati dicti Epatus, &c.

Refponfio.- -Ita refponfum eft, Mittatur fub pede figilli Canceliar' ifta petitio Rogero le Branbanzon & fociis fuis, &c. coram quibus judicium redditum fuit de regali libertate capienda in manum Regis, & ipfi fuper hoc ordinent remedium competens quoad omnes ittos articulos.

(c) In the account of this tranfaction in Holing fbed's Chronicles, vol. 3. p. 315. it is faid that the King levied talliages on the tenants of the fee of Durban,

fore

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 common law, for the petition not only recites wafte committed, but talliages levied on the bondfmen 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 iffued out of Chancery, not as a court of juftice, but as the repofitory of the great feal, which was neceffarily annexed to the writ; and Lord Coke muft have been miftaken 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 fuch cafe," fince by the Stat. of Weft. 2. 13 Ed. 1. that writ (if ever it lay against a bishop) was taken away.

The accounts of the Bifhop 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 faid 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 year and term that "on motion made, the prohibition was granted by the Judges of the King's Bench." But in the cafe of Knowle v. Harvey, 1 Roll. 335. he fays, "that it was granted in Parliament." In Stampe v. Clinton, alias Liford, 1 Roll. 100. he is again reported to have faid, "that it was granted in the King's Bench;" whereas in his own report of Liford's cafe, 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 cafe went from the King's Bench; and probably he did fo; but had reafon to alter his opinion when he came to make out and publish his own report of Liford's cafe. If however we are to confider the writ in that cafe as a common law writ, perhaps thefe difcordant accounts may be reconciled in this manner. Formerly the courts of common law could not grant any prohibition in any cafe, unlefs 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 fuch writ with alias and pluries, the Court or party perfifted in doing that which was prohibited, an attachment fur prohibition iffued returnable either in

(a) Vid. 1 Bl. Com. 182. 4 Inft. 25.
(b) 4 Inf. 216. 1 Rot. Par. p. 169. No. 87.

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JEFFERSON

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Bishop of DURHAM.

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the King's Bench or Common Pleas. Langdale's cafe, 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 fiction iffued an original writ in prohibition to confine Ecclefiaftical Courts within their jurifdiction; if the Judges of thofe Courts proceeded contrary to the common law, the Courts of King's Bench or Common Pleas allowed a fuggeftion to be filed that they had proceeded fo and fo, and supposed them in contempt, as if a writ had actually iffued out of Chancery: and this may ferve 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 cafes is a prohibition of itself, ftands inftead of an original." This fiction did not eafily gain ground in the Common Pleas. Broke, who was himfelf Chief Juftice 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 iffue a prohibition to the Court of High Commiffioners, when no plea was there pending, and it was refolved by Coke, Chief Juftice, 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 depending; and the above resolution was unanimoufly affirmed. 4 Inft. 99, 100. (b). And this feems to be now fettled; for in Bufhell's cafe, Vaughan 157. Lord Vaughan, fpeaking of the Common Pleas, faid "all prohibitions for incroaching jurifdiction iffue as well out of the Common Pleas as King's Bench." This view of the fubject feems to reconcile Lord Coke's different dicta refpecting the Bishop of Durham's cafe. For as the fiction did not extend to prohibition of wafte, an order was probably made in Parliament, that a writ fhould iffue 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 iffued returnable in the King's Bench, and then, if he continued to wafte, he was in contempt, in which cafe the ordinary remedy was by a writ out of the King's Bench. But on no ground can the Bishop of Durham's cafe be confidered as an authority for granting an original writ in a Court of Com mon law.

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The firft cafe in which the power of the King's Bench to iffue an original writ in prohibition of wafte was afferted, was Stockman v. Wither, 1 Roll. 86.; alfo alluded to in the anonymous note, 2 Bulft. 279. which varies from Rolle by faying, "We will grant it by the ftat. 35 Ed. 1." As that however was founded on the idea that the writ in the Bishop of Durham's cafe iffued out of the King's Bench, contrary to the authority of the Parliament Roll, it muft fall to the ground. Befides it is contradicted by a report of the fame cafe under the name of the Bishop of Salisbury's cafe, Godb. 239., where it was holden that though wafte by a Bishop may be punifhed in the Ecclefiaftical Court, that a prohibition will not lie; and the reporter cites 2 H. 4. 3. where Thirning Ch. J. and Tirwit J. maintain the fame doctrine. Vid. alfo Bro. Abr. Depofition, 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 Bulftrode 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 churchwardens pending a fuit between them and the Defendant, and might therefore have iffued under the Statute of Gloucester. Sacker's cafe, 3 Bulfst. 91. Moor 917. cited 1 Roll. 335. which comes next, was a prohibition against a vicar continuing in poffeffion of the vicarage by confent of the parties after judgment against him, and was therefore either pendente placito, or founded on the writ in the Register, P.77. Coftard's cafe, 2 Roll. 111. was only a prohibition to a vicar under 35 Ed. 1. and Drury v. Kent, Hob. 36. to an incumbent for wafte while a quare impedit was pending. There is a cafe of the Lord of Rutland, 1 Lev. 107. 1 Keb. 557. 1 Sia. 152. which according to the two laft 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 246. the firft account appears to be correct; the Court faid, "that if it were grantable, no mines could ever be opened in the glebe;" but added " that for cutting down trees to the deftruction of the church, they would grant it ;" probably under the 35 Ed. 1. All the cafes in the books have now therefore been difpofed of, except a cafe of Acland v. Atwell, 2 Roll. Abr. 813. where a prohibition was granted to a patron against a prebendary

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FOL. I.

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