and remembering also, that in that very cafe, (reported in 1 H. Blac. 515.,) as also in Brymer v. Atkins, 1 H. Bl. 164. & 188., Lord Loughborough and the other Judges of the Court of C. B. clearly confidered the mifconftruction of an act of parliament as ground of prohibition: adverting, I fay, to these authorities and circumftances, we cannot feel ourselves warranted in holding, that the grounds of granting prohibitions are so narrow and limited as to be confined folely to cafes of excess of jurifdiction. Mr. J. Blackflone, in the third volume of his Commentaries, c. 7., fpeaking of the writ of prohibition, fays, that "it 66 may be directed to the courts chriftian, the univerfity court, "&c. where they concern themselves with any matter not with"in their jurisdiction; or if, in handling matters clearly within "their cognizance, they tranfgrefs the bounds prefcribed to them "by the laws of England; as where they require two witneffes "to prove the payment of a legacy; in fuch cafes also a pro"hibition will be awarded. For as the act of signing a release "or actual payment is not properly a fpiritual question, but "only allowed to be decided in thofe courts, becaufe incident " or acceffary to fome original queftion, clearly within their 1804. GOULD against GAPPER Clerk. jurifdiction, it ought therefore, when the two laws differ, to ❝be decided, not according to the fpiritual, but the temporal [366] * law; elfe the fame queftion might be determined different ways, according to the court in which the fuit is depending; an impropriety which no wife government can or ought to endure; "and which is therefore a ground for prohibition." This opinion. of Sir William Blackfone feems to be the fair refult drawn from a great variety of cafes in which prohibitions have been granted, and where the ecclefiaftical court had moft undoubtedly cognizance, but had determined matters of the common law, inci. dentally arifing, in a manner different from that in which the courts of common law would have decided the fame points, And that such are proper grounds of prohibition has been alfo allowed by the most confiderable Judges who have at different periods fat in Westminster Hall. It will be fufficient shortly to mention fome of them. In 2 Roll. Abr. 301. pl. 11. it is flated that if a woman, after a divorce a menfa et thoro, fue in the ecclefiaftical court for a legacy given to her, and the release of the Baron be pleaded and difallowed, a prohibition fhall be granted. In Baftard v. Studley, 2 Lev. 209., a legacy was left to A. and B.; A. died, and the executor of A. fued in the fpiritual court for A's fhare; there being no furvivorship in fuch cafe 1804. GOULD against GAPPER, Clerk. cafe by the law ecclefiaftical; whereupon B. fued a prohibition: and, upon argument, it was adjudged that the prohibition should ftand. And Lord Chief Baron Comyns in his Digefl, tit. Probibition, G. 23. introduces this cafe, by ftating as a rule of law the conclufion which refults from it, viz. that prohibition fhall go, if a fuit in the fpiritual court be determined contrary to the right "at common law." In 1 Roll. Rep. 12. in a fuit for tithe, an award was pleaded, and prohibition moved for, as this was a 367 matter triable at law; but denied. And the Court faid, if the spiritual court have cognizance of the principal, they shall have it of the incident, though triable at common law. But Lord Coke added, if the fpiritual court fhould decide otherwife on fuch award than it ought by common law, that then a prohibition fhould be granted; which was allowed by Doddridge. In Sir William Juxon v. Lord Byron, 2 Lev. 64., in a fuit for tithes by mortgagor in poffethon, the mortgagee came in pro intereffe fuo, and the ecclefiaftical court decided agninft him; and prohibition was denied, because they had done right. But Hale and the whole Court agreed, "that though the fpiritual court may try matters cog"nizable at the common law which fall in incidentally, where "the principal is ecclefiaftical; yet they fhall be prohibited if "they proceed in the trial of fuch incident temporal matter "other wife than the common law would." The authority of this cafe is recognized by Lord Mansfield in Full v. Hutchins. And in Shotter v. Friend, Carth. 142. where payment of a legacy was offered to be proved by one witnefs and difallowed; after fentence, prohibition was awarded on this ground, that where the fpiritual court determine any incident temporal matter, they must do it according to the courfe of the common law; and if they do not, a prohibition will go: as if they require the revocation of a nuncupative will to be proved by two witneffes; or hold that tithes are not well fet out without notice to the parfon. All thefe, it is to be obferved, are cafes of things within the jurifdiction of the fpiritual court, and might be the subject of appeal. And authorities may be found equally strong as to the courts of Weftminfler Hall interfering by prohibition where ftatutes have been expounded otherwife than the courts of common law would expound them. As to which I will first refer [368] to the answers of all the Judges to the complaint exhibited by Archbishop Bancroft in the reign of Jac. I., one of which was; "that the Judges, under colour of authority to interpret fta"tutes in favour of their prohibitions, made caufes ecclefiaftical "to be of temporal cognizance. To which the answer was, out 1804. GOULD against GAPPER, Clerk. [369] 1804. GOULD against GAPPER, Clerk. [370] out tithes; because that Court held it not a fufficient setting out, the parfon not being prefent; it being fufficient by our law, although the parfon be abfent: which cafe was relied on in that of Shotter v. Friend, already mentioned. In Berkley v. Morris, Hardrefs, 502. in a proceeding in the Admiralty for an account of a merchant ship taken as prize, a plea of the statute of limitations was refused; and the Court of Exchequer, Hale being the Chief Baron, held that the plea ought to have been received; for that the statute was 'pleadable in the Admiralty; and if it were not received, that the rejecting it was a good cause of prohibition; and likewife if they received it, and did not give fentence thereupon as the common law requires. In Carter v. Crawley, Sir T. Ray. 496. the question was, if the reprefentatives of a deceased aunt of an inteftate were entitled to a fhare of his perfonal eftate under the ftatute of diftributions, jointly with a living aunt of the inteftate? And there (p. 497.) Lord North faid, "whatever is determined at common law to be the true meaning of that act must be a rule to the ecclefiaftical courts; for the courts of common law are entrusted with the expofition of acts of parliament, and we ought not to fuffer them to proceed in any other manner than fhall be adjudged by the King's courts to be the true meaning of the act." And though there were, according to Freeman's Report, 197. a difference of opinion, yet that was as to the construction of the ftatute of diftributions, and not as to the abovementioned pofition of Lord North, for the purpose of which this cafe is now cited. And in the cafe of Pearfe v. Hubbard, Strange, 249. it was matter for the Admiralty Court of Cinque Ports to determine, whether the party under the true conftruction of the act of parliament, 3 Geo. 1. were liable to the penalty for navigating a fhip, not being a member of the Trinity House: it was the proper forum fpecially appointed by the ftatute to try and decide on the offence, if the offender were found within the jurifdiction of the fame; and if they gave an erroneous judgment, it might be corrected on appeal: yet the Court interpofed by prohibition: and Lord C. J. Pratt there confiders not only a want of jurifdiction as a ground of prohibition, but also the circumftance of a Court proceeding by the rules of the civil law deciding otherwise than the courts of common law would upon the same subject. For he says, "admitting the cafe to be within the intent of the act, yet "furely in the cafe of a freehold we ought to be fatisfied of that "that removal, i. e. of the juftice of that removal, by their "fhewing a power to make by-laws and every other step neceffary to make a lawful * removal; and for want of this as well as for want of jurifdiction, I think no confultation fhould "go." The fubject-matter of all these cafes, both as they involved the determination of questions of a temporal nature, and the construction of ftatutes, was clearly within the jurisdiction of the feveral courts prohibited. They are cafes in which the judgment given below might have been corrected on appeal: and fome of them are cafes where the common law courts have taken upon themselves the conftruction of acts of parliament made respecting fubjects peculiarly relating to the inferior courts so prohibited, and have yet even in fuch cafes granted prohibitions when fuch inferior courts mifconftrued thofe acts of parliament. And the diftinctions attempted in the argument for the defendant fail in fhewing that the queflion now under confideration does not fall within the authority of thofe determinations in which prohibitions have been granted; for the cafes cited fhew that prohibitions have been granted in queftions within the jurifdiction of fuch inferior courts, not merely where the rules of the two jurifdictions neceffarily clafh with each other, or in cafes of conftruction of flatutes regulating their jurifdictions; but that the courts of common law have in all cafes, in which matter of a temporal nature has incidentally arifen, granted prohibitions to courts acting by the rules of the civil law, where fuch courts have decided on fuch temporal matters in a manner different from that in which the courts of common law would decide upon the fame: and that this has been the doctrine of the Judges, not only in the time of Lord Coke, when a confiderable degree of jealoufy fubfifted between the courts of Wminfter Hall and thofe of ecclefiaftical jurisdiction, but in the times of Lord Hale, Lord Halt, Lord C. J. Pratt, and as lately as in the time of Lord Mansfield, who in the cafe of Full v. Hutchins particularly inftanced the mifconftruction of an act of parliament as a ground for prohibition, even after sentence; the reafons of which are fo ftrongly marked by Sir Wm. Blackfione in the paffage already cited from his Commentaries. And to use by adaptation to this subject a part of the words of Lord C. J. Vaughan, in Hill v. Good, p. 304., and whofe authority has been quoted to fhew that the common law has encroached on matters fpiritual, it may be faid, "though if the "granting 1804. GOULD againt GAPPER, Clerk. *[ 371 ] [372] |