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1797.

JEFFERSON

Bishops of DURHAM.

to that cafe, says, “ and this seems to be good law;" and in
2 Bulil. 279. it is said, that the whole Court agreed with him.
The fame is again recognised in Stampe v. Liford, Roll. 100.
and Liford's cafe, u Co. 49., where it is called the ordinary re-
nedy of the common law. That a prohibition may issue against
a parfon is clear from Knowle v. Harvey, i Roll. 335. 3 Bulfi.
158. and though that cafe is open to the observation that there
was a plea penting, yet it is expressly faid to have been granted
by the common law on fuggeftion. Sacker's case was not plea
pending, for the fuit was at an end, and Lord Coke there faid,
“ you may have a prohibition, not only for the patron, but also
for any; for the second incumbent: for this is the King's writ, and
any one may have a prohibition for the King.” Whether Cof-
tard's case was under 35 Ed. 1. ne rector, &c. or not, is immate-
rial, since that statute was in affirmance of the common law, and
clearly a prohibition of waste was there granted against a vicar
on motion in the King's Bench. These cases are almoft all
abridged in 2 Roll. Abr. 813. and to them is added Acland v. At-
tell, to which no answer has been given. In the Lord of Rut-
land's case, 1 Keb. 557., which, according to the record in the
Liber Placitandi 246. is the most accurate report, the Court said
they would grant a prohibition against a parfon for waste in cut-
ting trees; and in Liber Placitandi 240. there is a record of a
fuggeftion for such a prohibition in the King's Bench, whick
ferves to thew that cutting down trees was then the subject of
prohibition on fuggestion in a court of common law. This doc-
trine therefore does not depend on the hafty dicta of Lord Coke
in court, but was deliberately adopted by him in his closet, and
introduced into his reports; nor does it reft on the authority of
one Judge or one reporter, but is confirmed by the repeated de-
terminations of the whole Court, reported in different books. It
seems also to have been fanctioned by the subsequent opinions of
Lord Hardwicke, 2 Atk. 217. Barnardist. 399. and Amb. 176.
who granted injunctions against churchmen to stay waste on
analogy to the prohibition at common law.

2dly, A diftinction has been attempted between prohibitions to reftrain wafte, and to restrain an excess of jurisdiction, but has been supported by no authorities; and reason operates againft it. It has been urged, that unless this Court were to iffue prohibitions to inferior Courts, its own jurisdiction would be infringed. But it may be answered, that such prohibitions

issue

I 4

1797.

JEFFERSON

Bishop of DURHAM.

issue on matters which could never come before the Common Pleas for judgment. Thus if an inferior Court conftrue an act of Parliament, in a subject peculiar to its jurisdi&tion, contrary to the rules of the common law; as in cases of prize, which are not cognisable by this Court. Brymer and others v. Atkins, i H. Bl. 164. But fuppofing it had any where been holden that this Court had not a concurrent authority with the King's Bench in prohibiting the inferior Courts, yet in cases of waste, which seem to be peculiar to this Court, it ought to have the power of prohibition. This is called a prerogative writ, but it is also a civil remedy; and indeed the prohibition to the inferior Courts is as much a prerogative writ as the present. So quard impedit is a prerogative writ; and yet that is so peculiar to this Court, that it is an instance of the King's power that he may fue it in any other Court. (a)

3dly, It stands settled as the unanimous opinion of all the Judges, that this Court may grant prohibitions in certain cales without plea pending. Langdale's cafe, 12 Co. 58. 4 Inft. 100. If therefore it is established that the circumstance of plea pending is not necessary to give jurisdiction to this Court, then all the cases which have been cited of prohibitions granted in the King's Bench plea pending, may be considered as authorities for the Common Pleas to grant them where pica is not pending. In this question the Court will not examine how far the timber ought, with a view to the benefit of the church, to be cut down, or whether the produce is to be employed for the reparation of the palaces or other tenements of the fee. The intention of deftroying the woods of the diocese is avowed. But the law protects the thing as it is, and the Court will not allow him who is committing what must be deemed waste, to say, that such waste will be for the benefit of his fucceffors.

Eyre Ch. J. One good effect which has arisen from the length of this discussion is, that the way has been much cleared for the consideration of the precise question before the Court; namely, Whether a writ of prohibition lies in the Court of Common Pleas to restrain a bishop from committing waste in the poffesfions of his fee?

The state of the common law with respect to waste has been fo fully laid open by the bar, that I need do little more than allude to it. At common law, the proceeding in waste was by writ of

(a) Reg. 29, 30, F. N. B. 32.

prohibition

1797.

JEFFERSON

Bishop of DURHAM

prohibition from the Court of Chancery, which was considered
as the foundation of a suit between the party suffering by the
waste, and the party committing it. If that writ was obeyed, the
ends of justice were answered; but if that was not obeyed, and an
dias and pluries produced no effect, then came the original writ
of attachment out of Chancery, returnable in a court of common
law, which was considered as the original writ of the court. The
form of that writ shews the nature of it. It was the fame original
writ of attachment which was and is the foundation of all pro-
ceedings in prohibition, and of many other proceedings in this
Court at this day. Si (a) A. B. fecerit te fecurum, &c. tunc pone,
&c.quod fitcoram justiciariis noftris, &c. oftenfuraquare fecit vastam,
fc.contrà prohibitionem noftram, &c. That writ being returnab
in a court of common law, and most usually in the Court of Com-
non Pleas, on the Defendant appearing the Plaintiff counted
against him; he pleaded, the question was tried, and if the De-
fendant was found guilty, the Plaintiff recovered fingle damages
for the waite committed. Thus the matter ftood at common law.
It has been said, (and truly fo I think, fo far as can be collected
from the text-writers,) that at the common law this proceeding lay
only against tenant in dower, tenant by the courtesy and guardian
in chivalry. It was extended by different statutes(6) to farmers,
tenants for life, and tenants for years, and I believe to guardians
in focage. That which these statutes gave by way of remedy, was
not so properly the introduction of a new law, as the extension
of an old one to a new description of persons; the course of pro-
ceeding remained the same as before these statutes were made.
The first act which introduced any thing fubftantially new, was
that (c) which gave a writ of waste or eftrepement pending the
fuit. It follows of course that this was a judicial writ, and was to
issue out of the courts of common law: but except for the pur-
pose of staying proceedings pending a fuit, there is no intimation
in any of our text writers that any prohibition could issue from
those Courts. By the stat. of West. 2. the writ of prohibition
from the Chancery which existed at common law is taken away,
and the writ of fummons substituted in its place: and although
it is faid by Lord Coke, when treating of prohibition at the com-
mon law, that it may be used at this day,” those words, if true
at all, can only apply to that very ineffectual writ directed to the

(a) Braeton, lib.4. Tr. 6. 6.18 & 19. 2 Inf. 299. Reg. 35. & al.

(6) Marlbridge, 6.24. Glouc. c. 5.
(6) Glouc. 6. 13.

sheriff,

1797

JE PERSON

Bishop of DURIAM.

sheriff, empowering him to take the polle comitatus to prevent the commission of waste intended to be done. The writ directed to the party was certainly taken away by the statute. At least as far as my researches go, no such writ has issued even from Chancery, in the common cases of wafte by tenants in dower, tenants by the curtesy, and guardians in chivalry, tenants for life, &c. &c. fince it was taken away by the statute of Westm. 2. Thus the common law remedy ftood with the alteration abovementioned, and with the judicial writ of estrepement introduced pendente lite.

As far as can be collected from the text-writers of a very early period, and from the forms of proceeding contained in books of very high authority, such as the Register and Fitzherbert's Natura Brevium, it seems that there did not occur in practice, and that there was not in fact any remedy at common law against churchmen committing waste, fufficiently known for them to treat of. Braclon has two whole chapters in the fourth book, on the subject of waste. His obfervations are confined to perfons liable to the action in the time of Hen. 3., and he (a) gives the writ of prohibition as the foundation of the suit. The Regisier and Fitzherbert take no notice of that writ, because they proceed upon the law as altered by the statute of Westminster 2., and accordingly consider the writ of summons as the foundation of the suit. But no one of them has a writ directed against a churchman. It is not merely that these books are silent on the subject, but the case which was alluded to, 2 H. 4. 3., proves to demonftration that such a course of proceeding at the common law against churchmen was not in use at that time. In that cafe Thirning Ch. Juft. takes upon himself to pronounce, veryauthoritatively, that churchmen cannot be punished at common law if they cut down all the woods of their ecclefiaftical possessions. I will not say that the law was so, but I may safely make this inference from his words, that such a proceeding was not usual or in practice at that time.

Our books are full of declarations that destruction and dilapidation are causes of deprivation in churchmen, and that affords some argument to prove that waste by them was not that of which it was supposed the common law could take notice, since it was *referred to another jurisdiction. It is not very consonant with the fimplicity of the old law to give two remedies for the fame evil;

() Brector, lib. 4. Tr. 6. 6.18.f.2. 2 Inf. 299.

1

JEFTERSON

if a remedy was already provided at the common law, the eccle- 1797. fiaftical jurisdictions would not be allowed to interfere to the extent of deprivation. So if there was an effectual remedy by the ecclefiaftical censures to that extent, it affords a strong ground Bishop of

DURHAM to infer, that there was no proceeding at common law in the same cafe. I cannot find, from the earliest writers, down to the 12th of Jac. I, that it was ever understood or treated of in the books of common law, that any proceeding in walte lay against a churchman. It was reserved for the learning and industry of that great man Sir Edward Coke, whose name ought never to be mentioned in a court of law without the highest respect, to bring to light the record of the Parliament Roll of 35 Ed. 1., which I need not now re-itate, as it has been so often mentioned at the bar. After that record was brought to light and considered, Sir Edward Coke and the Judges of his time, thought themselves warranted in making several very important conclufions from it: First, they said that the King's anfwer had a reference to the course of the common law; they went further, and from thence inferred, that a writ of prohibition lay at common law against a churchman who committed wafte; they proceeded further still, in concluding that such a prohibition lay in the Court of King's Bench, and going one step beyond that, they declared that such a writ of prohibition being the King's writ, and founded on his right of patronage, any man might have it. In this manner may be explained the strong language of Sir Edward Coke as reported in 1 Roll. 86. “ If any “ man will move it, I will grant a prohibition.” I do not perceive that it was observed at the time when this language was held, that such had been the known course of the common law previous to the discovery of that record. An expression which, according to the report of the fame case in 2 Buls. fell from Sir Edward Coke, and which confirms me in the opinion that it had not been so understood by those Judges, is very remarkable. Sir Edward Coke there says, “ We will revive this proceeding:" an expression which leads me to infer, that if such a remedy ever exifted, it had been buried for three centuries in obfcurity. Let me now suppose for a moment that Sir Edward Coke and the Judges of his time were right in their conclusions on that record; that there was a remedy at common law; that such remedy was the writ of prohibition; that the Court of King's Bench might ifsue it, and lastly, that any man who applied to that Court might have it; ftill we must recollect that we are fitting in the Court of Common Pbeas and not in the Court of King's Bench. All these [ 124 ]

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