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1804.

GOULD

again GAPPER,

Clerk,

[355 )

tence the plaintiff cannot complain of the defect of trial of the modus or boundary. The ground of its decision might be that Sedgemoor was not extraparochial, and in that case the King had no right. This would not be construing the act, but deciding on a fact. The sum given may have been for the tithes of increase of cattle under the stat. 2 & 3 Edw. 6. which creates such a charge, and the stat. 37 Geo. 3. wbich maintains it, even supposing the parish to'which the moor appertains to be uncertain. It is not alleged by the ecclesiastical court that these lands were extraparochial before the act, and were only brought within the parish by its operation, in which case it might be said that the saving of the King's right (if it were not previously granted away) ought to operate.

Burrough contrà. The statute in question cannot be said to be directory to the ecclesiastical court, wherein no mention is made of that jurisdiction, but which merely contains general provisions, which must of course be taken to apply to the courts of common law. Neither can it be said that the ecclesiastical court has not proceeded to adjudge tithe to the rector upon the construction of the Sedgemoor act, as bringing the allotments within the parish ; for the place, which was before alleged to be cxtraparochial, is denied to be so by the rector in his answer, because the inhabitants of the parish of High Ham claimed rights of common on King's Sedgemoor, which was parcel of the several parishes adjoining, and that the act did not mention it to be ex. traparochial, and that the allotments under the act were made in respect of such rights of common appurtenant to the tenements in the parish, &c.; and that the act of the 37 Geo. 3. subjected the allotments to the same charges, &c. as the tenements in respect of which they were made ; evidently putting the whole case u on the acts as having virtually made those allotments parts of the parish, and subject to the same burthens as the old inclosures. Now the only object of the Sedgemoor act was the division of the moor between the lords of manors and the commoners claiming rights thereon before the statute, and nothing is said respecting the right to tithe, which is therefore left as it was before. No parochial rights were ever before exercised on the moor, nor does the ad state it to be within the boundaries of any parish, but lying near or adjoining ; though by way of distinction the several parts are allotted to particular parishes. Then the clause in the High Ham act, 37 Geo. 3. directing the allotments

VOL. V.

1804. to be subject to the same « charges" as the old tenements in

respect of which they were made, merely relates to private GOULD against

charges, &c. on the estate, such as dower, mortgages, &c. acGÄPPER, cording to Moncaster v. Watson (a), and does not relate to tithe ; : _Clerk. the rectors of the * several parishes being no parties to the act, 1635° ]. but merely the Lords and Commoners; and the accompanying

words, such as uses, estates, trusts, &c. explain the meaning of the word charges. [Lawrence ). A similar clause in the case of the Stonehous: Bridge act lately (6) received the same construction. Then the last clause but one faves to the lords of the manors all their privileges, except such for which compensation was made, and which were intended to be barred by the act, namely, common of pasture. And the last clause faves all the King's right and title with the same exception. Now if any person were before entitled to the tithe of the allotments which were extraparochial, it must have been the King. It is clear there. fore that the ecclefiaftical court in giving the rector the tithe of fuch allotments has misconstrued the acts, the interpretation of which belongs exclusively to the courts of WeAminster, and therefore the misconstruction of them is a good ground of prohibition after sentence: the sentence itself is the gravamen ; for till then it could not be known that the court below would misconstrue the acts. The current of authorities from the time of James the first to that of the doubt expreffed by Buller J. in Lord Camden v. Hoine, in Error (c), (which doubt was not war.

ranted by the authorities then mentioned, and upon further in( 3521 vestigation would probably have been removed from the mind

of the learned Judge), shews that where the cccleGaftical court

(a) 3 Bur. 1375.

(6) H. 44 Geo. 3. B. R. That was a cafe fent up from the Court of Quarter Sessions in Devonshire, upon a question concerning the va. lidity of a poor rate. The stat. 7 Geo. 3. for building Stonehcufe Bridge, by f. 19. exempted it from “ the land tax or any other pub“ lic or parochial rate or tax whatsoever ;” and by f. 20. provided that certain persons and their heirs should stand seised of the tolls of the bridge “ to the same uses, trusts, and estates, and subject to the

fame wills, settlements, limitations, remainders, charges, tenures, " rents and incumbrances” as the ferry was in lieu of which the bridge was erected. And held that the word charges only extended to private charges on the estate. (6) 4 Term Rep. 396, 7.

acts 1804.

Gould

against GAPPER,

Clerk.

acts contrary to the rules of the common law in any matter of common law cognizance, such as the construction of acts of parliament, the courts of Westminster will prohibit it. This was the express decision of the court in the case cited by the same Judge from 2 Rol. Abr. 306. pl. 10. and it is confirmed by other authorities. Where indeed the objection is only to the trial, it is the fault of the party if he do not apply before sentence; and non conftat but that the Court below may have decided wrong on the fact, and not on the law; but where the sentence is the grievance, he can never come too late. The doctrine referred to as laid down by Lord Loughborough in Home v. Lord Camden (&), “ that the exposition of the statute law ap. pertains to the king's courts of record, and ought to be discussed and determined in those courts,” is not new, but is confirmed by the whole court in Howe v. Nappier (b). That was a suit in the Admiralty for seamen's wages, there being an agreement under seal; on which a prohibition went. Lord Mansfield there said, “ a prohibition is ex debito justitiæ if the Court of Admi. ralty proceed contrary to Act of Parliament.” The true question in these cases is, Whether the court below are proceeding against the common law? If the sentence itself stated that the court had decided against a prescription set up in a suit for sube traction of tithe on the ground that it was not proved by more than one witness, this court would interfere by prohibition even after sentence. In Wheeler's case (c), the ecclefiaftical court had jurisdiction over the subject-matter, namely, the working upon holidays, yet as it had misconstrued the stat. 5 Ed. 6. disregarding the exception of works of necessity, such as carry ing hay, prohibition went. Admitting that the church had au. thority to appoint holidays, and to punish the breakers thereof; the court said that the feast of St. John Baptist was a holiday by act of Parliament ; and therefore it did belong unto the judges of the law whether the same were broken by doing such work on that day., So where the Judge of the prerogative court had on granting administration to one Slawney (d), taken bond of him with the conditions usual there, but beyond what was re. quired by the stat. 21 H. 8. c. 5. ; on prohibition prayed against proceedings there on that bond this court was clear that the

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preto.

1804.

GOULD

against GAPPER,

Clerk.

[359]

prerogative court could not impose any other condition than the
statute required; “ for they must take their bond according
to the law; and when it is sued the meaning and exposition of
the statute, and of the condition of the obligation both are to be
judged by the courts of cominon law. Again in Sir W. Juxon
v. Lord Byron (a), where the ecclefiaftical court had inci-
dentally put a construction upen a private act of Parliament, in
which this court agreed and therefore denied a prohibition ;
Lord Hale and the whole court agreed, “ that the fpiritual court,
though they may try matters cognizable at common law which
fall in incidentally where the principle is ecclesiastical, yet they
shall be prohibited if they proceed in the trial of such incident
temporal matter otherwise than the common law would." In
Carter v. Crawley (b) prohibition went because the spiritual court
had misconstrued the words of the statute of diftributions. And
in Berkley v. Morrice (c), where the Admiralty Court were pro-
hibited for refusing to receive a plea of the statute of limita-
tions, in a fuit for an account between the captain and owner
of a merchant ship, this Court said, that it was a good cause of
prohibition if they did receive the plea and did not give fen-
tence thereupon as the common law requires. Prohibition also
went in Pierce v. Hopper (d) upon the misconstruction of the
pilot act, 3 Geo. 1. C. 13. There is no cafe over which the eccle.
fiaftical court have clearer jurisdiction than in matters of pro-
bate ; and yet where they had revoked a probate because the
executor had become bankrupt, this Court in Adriel Mill's
case (e) granted prohibition after sentence and appeal. So it was
done in Rebowe v. Bickerton ( f). In Buggin v. Bennett (8) pro.
hibition was denied, not because it was applied for after sentence
in the Admiralty, but because the suit being for feamen's wages,
it did not expressly appear that the, contract was by deed on
land: but it was admitted that if that had been thewn pro-
hibition would have gone even after fentence : and yet the ob-
jection would not have appeared on the face of the libel. The
fame observation will apply to other coses. In Driver v. Cole.
pate there cited (1), the modus set up being admitted, and the
spiritual jurisdiction continuing over the original cause of fuit,
there was no neceffity for a prohibition; but no consent will

(a) 2 Lev. 64.
(d) 1 Stra. 249
($) 4 Burr. 2035.

(O) T. Ray. 496.
(e) Skin. 299.
(5) Ib. 2040.

(c) 1 Hardr. 502. (f) Bunb. 81.

give

1804.

GOULD

against GAPPBRO

Clerk.

( 360 )

give them jurisdiction where the law does not': and if the want of it appear in any of the proceedings, prohibition lies. The true rule is laid down in Shotter v. Friend (a), that where the spiritual court have cognizance of the principal, they shall have cognizance of the incidents and accessaries; but if the inci. dent be a matter merely temporal, they must proceed there according to the course of the common law, and not fecundum jus ecclesiasticum. And by the report in Salkeld it is not too late to come for a prohibition after fentence ; for the sentence in that case is the grievance. And this agrees with Porson v. Scott (6). He also referred on this head to the answers of the Judges on the great controversy in 1604, 2 Inft. 613, 614. answer to object. 20.; to Lord C. J. Vaughan's judgment in Hill v. Good (c); and to tliat of Lord C. J. Eyre in Lord Camden v. Home (d) in Dom. Proc. Secondly, he contended that the ecclesiastical court had no jurisdiction to determine on the boundaries of parishes; that they had done so in this case, and therefore might be prohibited after sentence as well as before. For which he cited Keilw. 110. b. 13 Rep. 17. 2 Inf. 599. i Bulir. 159. Foffer v. Hide, 1 Rel. Rep. 332. 17 Vin. Abr. 581. Prohibition L. I, Phillips v. Stacke, Noy, 147. Frezewell's case, 2 Rol. Abr. 319. Hains v. Jescot, Comb. 356. Butler v. Vateman, 1 Sid. 89. 5 Bac, Abr. Prohibition, 663. H. 18 Vin. Abr. 28., and i Gibl. Codex, tit. 9. c. 13. fo. 239.

Dampier in reply, said, that the last objection as to the ques tion of boundary went to the defect of trial only, and not of jurisdiction; and therefore unless that distinction were wholly done away, which was recognized in several of the later cafes, the objection ought to have been made before sentence; and if the trial in the ecclesiastical court were submitted to, it was no ground for prohibition. In Frezewell's case, 2 Rol. Abr. 319. pl. 2. which is the strongest authority the other way, being after trial, non conftat but that the defect of jurisdiction might have appeared on the face of the libel: and it is, besides, suggested that the king's right came in question, where the maxim of nul. lum tempus occurrit regi would apply. And it also seems to

[3611

(a) Carth. 142. and Salé. 547 (6) Sayor, 176. '

(c) Vaugh. 304. and vi. Harrison v. Burwell, ib. 220. and 2 Finer: 15-20.

5) 2 H. Blus. 533

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