exertion both of the clergy and laity that church was restored.-Had it been in the minds of the clergy and laity for a courfe of years paft, that the woods of bishops, and more efpecially of deans and chapters, including prebendaries, were a folid, permanent, and increasing fund of real property, devolved to them for the fuftentation of the cathedrals, the palaces, and houses of the church, probably that venerable edifice might never have fallen into fuch ruin, or might have been reftored with much lefs difficulty. I am afraid that the state of fome other noble monuments of the finest Gothic architecture in this kingdom is not very confoling; that they are mouldering and crumbling into ruins. I have heard it obferved with grave and ferious regret, that no funds have been appropriated for the prefervation of them: perhaps a time will come when that which I take to be an error will be corrected, and when it will be found that all the property of the church is a fund for the fuftentation of thofe fabrics; but that the woods in particular are a specific fund fo to be employed no man can doubt. I repeat my opinion that the confequences of this difcuffion may be highly beneficial to the public; and though I muft now say that this rule must be discharged, perhaps hereafter the public will be difpofed to acknowledge that the promoter of this application was a friend to the Church of England.

HEATH J. Though many points have been properly made in this caufe, and have been elaborately argued at the bar, yet I fhall confine myself merely to the difcuffion of those which principally affect the question in the view wherein I fhall confider it. Previous to the inquiry whether the Bishop of Durham is liable to a prohibition for having felled the trees and grubbed up the woods in queftion, it must be decided whether fuch prohibition be grantable at the inftance of Jefferfon, aftranger, who is in nowise connected with this tranfaction in point of intereft or otherwife. A prohibition for wafte was certainly a common law remedy; it therefore grantable at the inftance of the party injured, and of no other perfon whatever. In ancient times it probably commenced in an original writ iffuing out of Chancery; afterwards the Court itself granted it on a fiction that an original writ had iffued. In the books there are fome loofe dicta that an act of parliament and the common law should respectively stand as originals according to the circumftances of the cafe; but this is not law, unless it be confined to prohibitions for excefs of jurifdiction, and to reftrain wafte. Recourfe has been had to reafoning by analogy from the

was

cafes

1797.

JEFFERSON

V.

Bishop of DURHAM.

1797.

JEFFERSON

บ.

Bishop of DURHAM.

cafes of rectors; but no cafe has been cited, no precedent has been produced of a prohibition against a parfon to stay wafte in felling trees that was not granted at the fuit of the patron or churchwardens. The report of Knowle v. Harvey is very loose and inaccurate; it is not ftated on whose fuggeftion the prohibition was granted; probably it was at the inftance of a party interested. The fame observation will apply to Coftard's cafe, 2 Roll. 111. In Sacker's cafe, 3 Bulst. the prohibition wasgranted pendente lite. There being therefore no inftance of a prohibition granted in any analogous cafe, it remains to examine the cafe of the Bishop of Durham, 35 Ed. 1. I fhall take my Lord Coke's own report of this proceeding, "by which it appears," fays he, 11 Co. 49. Liford's cafe," that the Parliament referred him to the ordinary remedy of prohibition at common law." It does not appear even in this cafe who were the petitioners in Parliament. It might be at the inftance of the bifhop's own tenants who had common of eftovers in his woods. The commons made the application; for the commons were the great inqueft of the nation. Cutting down the woods at that time was no fmall grievance, when the ufe of foffile coals was not common. According to feveral books, it was faid by Lord Coke that a prohibition was afterwards granted in the King's Bench; though it is not expreffed whether, on the application of the King, the tenants of the bishop, or any other perfon injured by the fpoil and wafte. It is however obfervable that from the 35 Ed. 1. to the time of Lord Coke the precedent was never followed in a fingle inftance. This appears by the avowal of the Chief Juftice himself, for he is made to say, 2 Bulst. 279., "We will revive this again." In the Year Books 2 H. 4., cited at the bar by the counfel who fhewed cause, it is faid by Thirning Ch. J. that if a bishop or archdeacon fhall cut down all his wood, he shall not be punished at common law: but this muft be understood according to the subject-matter, that they fhall not be fubject to an action of wafte.—Thirning fays he fhall not be punished by the patron, nor by any other way. It does not follow that a prohibition will not lie at the inftance of a party injured, because a prohibition is not a procedure for punishment originally, though it might follow in the cafe of a contempt of the prohibition. The opinion of Thirning was extrajudicial; it may however ferve to fhew the current opinion of the day. It remains to be confidered whether the circumftance of the King being interested will furnish a ground for the prohibition. This

idea is founded on a dictum of Lord Coke, reported to have been
uttered on a different occafion, and principally referred to in
1 Roll. 335.
"Any perfon may have this writ against him,
(meaning Sacker,) for it is the King's writ," and the prohibition
was not to wafte. By the King's writ he must be understood to
mean a prerogative writ, for every writ is the King's writ. Does
then this doctrinehold with respect to the other prerogative writs?
It is not applicable to the writ of mandamus in the Court of
King's Bench, or to the writ of ne exeat regno in a Court of
Equity. Those writs are only grantable at the inftance of fome
party interested. The writ of habeas corpus from neceffity can
only be applied for on behalf of the party interefted. Admitting
that a fubject cannot fue an original writ in the King's name, the
inference is, that he could not fue an original writ iffuing out of
the Court of Chancery; and if fo, it goes a great way to prové
that he is not entitled to a prohibition in this Court, which pre-
fumes a writ of prohibition iffuing out of the Court of Chancery.
Add to this, that this is a prohibition of a fingular nature, inaf-
much as it is founded on a fuggeftion, and applied for merely on
affidavit. After all, what reliance can there be had on these
dicta of Lord Coke under all the circumftances attending them?
They were not the refult of a calm difpaffionate inquiry: that
great lawyer was much heated in the controverfy between the
Courts at Westminster and the Ecclefiaftical Courts. In every
part of his conduct his paffions influenced his judgment. Vir acer
et vehemens. His law was continually warped by the different
fituations in which he found himfelf. There is the lefs reafon for
granting this prohibition, because it is not the only remedy: the
Crown has its officers, whofe duty it is to watch over its in-
terefts: the metropolitan may proceed against the bishop for
dilapidation: the officers of the Crown and the metropolitan
may exercise their difcretion, and are competent to decide
whether this fuppofed melioration be really one or not. But we
are bound by the ftrict rules of law, and cannot decide upon the
propriety of the bishop's conduct, but only whether in ftrictness
it amounts to wafte. However, I do not found my opinion on
the exercise of a diferetionary power refiding in the Court, but
that neither on principle nor on precedent are we warranted in
granting this prohibition at the instance of a stranger.

ROOKE J. I am of the fame opinion. The queftion with refpect to the power of the Court has been already fo completely exhaufted,

K 2

1797.

JEFFERSON

ย.

Bishop of DURHAMI

1797.

JEFFERSON

V.

Bishop of DURHAM.

exhaufted, that there is nothing for me to add. Something however has been faid in the courfe of the argument, as to the right of bishops to destroy the woods which are the property of the church, on which I think it neceffary to make fome obfervation. I confider the bishop as having to certain purpofes a fee-fimple in his bifhopric. But he is feifed to a fpecial intent, as a public officer for public trufts. If before the restraining ftatute he had alienated the property of the fee, he would have been guilty of a grofs breach of truft, and I conceive there was a remedy at common law. As a general principle it is waste to deftroy woods. But thefe great officers have duties annexed to their station; as the repairs of the palaces, bridges, and manfionhoufes of the fee; and they would not exceed the limits of their duty if they applied the woods to the repair of their cathedrals. If through the forbearance of their predeceffors, the woods belonging to the church are in such a state that it is advisable to cut them down, this may be done, very beneficially for the fee, by cutting only a part one year and a part another, and at the fame time planting fo as to create a renewal of this kind of property. But it may be doubted whether a bifhop can grub up the woods at all without the licence of Parliament. At any rate, however, I am clear that this court has no jurifdiction in the prefent cafe.

Rule discharged.

Nov. 21ft.

1 East's Rep. 82.

332

perfecting bail above, waves all

CHAPMAN v. SNOW.

A defendant by RUNNINGTON Serjt. on the 18th November obtained a rule to fhew caufe, why an exoneretur fhould not be entered on objections to the the bail-piece and a common appearance allowed; the affidavit fufficiency of the of debt having omitted to negative a tender in bank notes ache was held to cording to the directions of 37 G. 3. c.45.S.9. (a)

affidavit on which

bail.

(a) In Stewart v. Smith, a fimilar rule having been obtained, Shepherd Serjt. this day fhewed caufe, and ftated that the affidavit was made in Ireland only two days after the paffing of the act.

HEATH and ROOKE Js. (abfente Eyre Ch. J.) faid, that though it was a hard case, they could do nothing, for the act was po

fitive. Vid. Nesbitt v. Pym, 7 T. R. 376. note (e).

Shepherd then applied for leave to file fupplemental affidavit. Sed per Curiam· We have conferred with the Judges on the conftruction of this act, and think that a fupplemental affidavit cannot be allowed.

Rule abfolute.

The

The arreft took place on the 5th of Auguft: the Defendant had put in and perfected bail above, and a plea had been demanded.

Le Blanc Serjt. fhewed caufe: and contended that the Defendant had waved any irregularity in the affidavit: ift, By putting in bail above; 2d, By delaying to apply to the Court till the 18th November, twelve days after the commencement of the term, (a)

Runnington in fupport of the rule. It was impoffible for the Defendant to make this application, till he was regularly in court, which he was not till he had put in and perfected bail. HEATH and ROOKE J. (abfente Eyre Ch. J.) held that the Defendant had waved the irregularity, and

Discharged the rule. (b)

EYRE Ch. J. on the next day faid, My Brothers have mentioned to me a rule for entering an exoneretur on the bail-piece, and allowing a common appearance, which was yesterday difcharged, and I think properly discharged. The Defendant is not now in cuftody, he has put in bail, and is therefore too late to make this application, If he were to be allowed to move now, I do not fee why he should not be at liberty to move after proceedings commenced against the bail. Perhaps the Plaintiff has proceeded against them, and is very near judgment; for any thing that I know, he may have got judgment. Where then is the Court to ftop? Here the procefs is bad: the party does not come in the first inftance, but does a voluntary act by perfecting special bail: the caufe goes on with a total difregard to what has paffed; the bail to the fheriff are difcharged, and the whole of that proceeding is gone. Shall the Defendant now be allowed to apply to us to discharge the fpecial bail, and introduce common bail in their place? I think that he should not be heard.

(a) Vid. 7 T. R. 376. n. (a), Fenwick v. Hani, where length of time was holden by the Court of K B. to be no waver of the

objection. Cont. Levy v. Daponte, ib. and Deberough v. Copinger, 8 T. R. 77.

(b) Vid. Goodrvin q. t. v. Parry, 4 T. R. 577. Huffey v. Wilson, 5 T.R.254. Morgan v. Johnfon, 1 H. Bl. 628. Norton v. Butler Danvers, 7 T. R. 375, King g, t. v. Horne, 4 T. R. 349.

1797.

CHAPMAN

V.

SNOW.