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1797

JEFFERSON

Bishop of DURHAM.

exertion both of the clergy and laity that church was restored. Had it been in the minds of the clergy and laity for a course of years past, that the woods of bishops, and more especially of deans and chapters, including prebendaries, were a folid, permanent, and increasing fund of real property, devolved to them for the fuitentation of the cathedrals, the palaces, and houses of the church, probably that venerable edifice might never have fallen into such ruin, or might have been restored with much less difficulty. I am afraid that the state of some 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 observed with grave and serious regret, that no funds have been appropriated for the preservation of them: perhaps a time will come when that which I take to be an error will be cor. rected, and when it will be found that all the property of the church is a fund for the fuftentation of those fabrics; but that the Foods in particular are a specific fund fo to be employed norman can doubt. I repeat my opinion that the consequences of this discussion 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 disposed 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 cause, and have been elaborately argued at the bar, yet I thall confine myself merely to the difcuflion of those which principally affect the question in the view wherein I shall consider 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 question, it must be decided whether such prohibition be grantable at the instance of Jefferfon, aftranger, who is in nowile con nected with this transaction in point of interest or otherwise. A prohibition for waste was certainly a common law remedy; it was therefore grantable at the instance of the party injured, and of no other person whatever. In ancient times it probably commenced in an original writ issuing out of Chancery ; afterwards the Court itself granted it on a fiction that an original writ had issued. In the books there are some loose dicta that an act of parliament and the common law should respectively standas originals according to the circumstances of the case; but this is not law, unless it be confined to prohibitions for excess of jurifdi&tion, and to restrain walte. Recourse has been had to renfoning by analogy from the VOL. I.

cases

197

JEFFERSON

Bishop of
DuruAM.

cases of rectors; but no cafe has been cited, no precedent has been produced of a prohibition against a parson to stay waste in felling trees that was not granted at the suit of the patron or churchwardens. The report of Knowle v. Harvey is very loose and inaccurate; it is not ftated on whose fuggestion the prohibition was granted ; probably it was at the inttance of a party interested. The fame observation will apply to Costard's cafe, 2 Roll. 111. In Sacker's case, 3 Bulst. the proliibition wasgranted pendente lite. There being therefore noinstance of a prohibition granted in any analogous case, it remains to examine the case of the Bishop of Durham, 35 Ed. 1. I shall take my Lord Coke's own report of this proceeding, “ by which it appears,” says 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 instance of the bishop's own tenants who had common of eftovers in his woods. The commons made the application; for the commons were the great inquest of the nation. Cutting down the woods at that time was no finall grievance, when the use of follile coals was not common. According to several books, it was said by Lord Cokethat a prohibition was afterwards granted in the King's Bench ; though it is not expressed whether, on the application of the King, the tenants of the bishop, or any other person injured by the fpoil and waste. It is however observable that from the 35 Ed. 1. to the time of Lord Coke the precedent was never followed in a single instance. This appears by the avowal of the Chief Justice himself, for he is made to say, 2 Bulft. 279., “ We will revive this again.” In the Year Books 2 H. 4., cited at the bar by the counsel who fhewed cause, it is said by Thirning Ch. J. that if a bishop or archdeacon shall 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 shall not be subject to an action of waste. --Thirning says he shall not be punished by the patron, nor by any other way. It does not follow that a prohibition will not lie at the instance of a party injured, because a prohibition is not a procedure for punishment originally, though it might follow in the case of a contempt of the prohibition. The opinion of Thirning was extrajudicial; it may however serve to fhew the current opinion of the day. It remains to be confidered whether the circumstance of the King being interested will furnish a ground for the prohibition. This

1797

1 Roll. 335.

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idea is founded on a dictum of Lord Coke, reported to have been attered on a different occafion, and principally referred to in

“ Any person may have this writ against him, (meaning Sacker,) for it is the King's writ," and the prohibition Fis 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 prerogativewrits? 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 instance of some party interested. The writ of habeas corpus from necessity can only be applied for on behalf of the party interested. Admitting that a subject cannot fue an original writ in the King's name, the inference is, that he could not fue an original writ issuing out of the Court of Chancery; and if so, it goes a great way to prové that he is not entitled to a prohibition in this Court, which prefumes a writ of prohibition issuing out of the Court of Chancery. Add to this, that this is a prohibition of a singular nature, inafi much as it is founded on a fuggeftion, and applied for merely on affidavit. After all, what reliance can there be had on these dieta of Lord Coke under all the circumstances attending them ? They were not the result of a calm difpaflionate inquiry: that great lawyer was much heated in the controverfy between the Courts at Westminster and the Ecclesiastical Courts. In every part of his conduct his passions influenced his judgment. Vir acer e vehemens. His law was continually warped by the different situations in which he found himself. There is the less reason for granting this prohibition, because it is not the only remedy: the Crown has its officers, whose duty it is to watch over its interefts: the metropolitan may proceed against the bishop for dilapidation : the officers of the Crown and the metropolitan may exercise their discretion, and are competent to decide whether this supposed 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 waste. However, I do not found my opinion on the exercise of a discretionary power residing 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 same opinion. The question with relpect to the power of the Court has been already lo completely

exhausted,

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17974

JEFFERS IN

U.

Bishop of DURHAM.

exhausted, that there is nothing for me to add. Sometining however has been said in the course 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 necessary to make some obfervation. I consider the bishop as having to certain purposes a fee-simple in his bishopric. But he is feised to a special intent, as a public officer for public trufts. If before the restraining statute he had alienated the property of the see, he would have been guilty of a gross breach of trust, and I conceive there was a remedy at common law. As a general principle it is waste to destroy woods. But these great officers have duties annexed to their station; as the repairs of the palaces, bridges, and mansionhouses 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 predecessors, 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 same time planting fo as to create a renewal of this kind of property.' But it may be doubted whether a bishop can grub up the woods at all without the licence of Parliament. At any rate, however, I am clear that this court has no jurisdiction in the prefent cafe.

Rule discharged.

Nov. 211t.

3320

CHAPMAN V. SNOW. 1 East's Rep. 82. A defendant hy RUNNINGTON Serjton the 18th November obtained a rule

to thew cause, why an exoneretur should not be entered on objections to the the bail-piece and a common appearancc 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.45.8.9. (a)

above, waves all

bail

(a) In Stewart v. Smith, a similar rule fitive. Vid. Nifoitt v. Pym, 7 T. R.376. having been obcained, Sbepberd Serjt. this note (c). day shewed cause, and stated that the affi. Shepherd then applied for leave to file e davit was made in Ireland only two days fuppiemental affidavit. Sed per Curiem after the passing of the act.

We have conferred with the Judges on the Heaty and Rooke Is. (absente Eyre construction of this act, and think ihat a Ch. J.) faid, that though it was a hard cale, supplemental affidavit cannot be allowed. they could do nothing, for the act was po

Rule absolute."

The

17974

CHAPMAN

Snow.

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

Le Blanc Serjt. Thewed cause: and contended that the Defendant had waved any irregularity in the affidavit: ist, 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 support of the rule. It was impossible 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. (6) 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 custody, 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 stop? Here the process is bad: the party does not come in the first instance, but does a voluntary act by perfecting special bail: the cause goes on with a total disregard to what has passed; the bail to the sheriff are discharged, and the whole of that proceeding is gone.

Shall the Defendant now be allowed to apply to us to discharge the special bail, and introduce common bail in their place? I think that he thould pot be heard,

(a) Vid. 7 T. R. 376. n. (a), Fenwirk v. (6) Vid. Goodevin q. t. v. Parry, 4 T. R. Hoai, where length of time was holden by 577. Hulley v. Wilson, 5 T.R.254. Morgan the Court of K B. to be no waver of the v. Johnson, 1 H. Bl. 628. Norton v. Butler sbjectiun. Cent. Levy v. Daponte, ib. and 'Danvers, 7 T. R. 375. King 9. t. v. Horney Dobarayb v. Copinger, 8 T.R. 77.

4 T. R. 349.

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