1804. Thursday, June 7th. Where the Spiritual court fuch as the mon law after fen GOULD against GAPPER, Clerk (a). IN prohibition the plaintiff declared, that whereas the trial of the bounds of parishes and of prefcriptions and cuftoms has incidentally determines immemorially been by the common law, and not by the ecclefi any matter of aftical law; and that during the year 1797 and the two followcommon law ing years the plaintiff had occupied lands which were lately parts cognizance, of a tract of waste land called King's Sedgemoor in the county of conftruction Somerfet, and which had been lately inclofed allotted and divided of an act of under an act of the 31 Geo. 3.; and which lands fo occupied by parliament, the plaintiff until the allotting and dividing, &c. were not within otherwife than the com. the parish of High Ham in the faid county, or the titheable places thereof, but was extra-parochial. And that there is a requires, pro- faving in that act of the rights of the Crown. And that within hibition lies the parish of High Ham there has been immemorially a modus tence; altho' of 2d. an acre for all meadow land, in lieu of tithe of hay and the objection agiftment, and of td. for every milch cow depaftured in fuch do not appear land, in lieu of tithe of milk and agiftment, and of id. for every upon the face of the libel, heifer depaftured on the fame, in lieu of agiftment tithe; yet but is collect the defendant, rector of the parish of High Ham, to aggrieve ed from the the plaintiff and difinherit the crown, and to bring the cogniwhole of the proceedings zance of a plea which belongs to the crown to another sort of trial below. in the confiftorial court of the archdeaconry of Wells, exhibited his libel in the faid court against the plaintiff, alleging that in the year 1797, and the two following years the defendant was rector of High Ham and the proprietor of the tithes, and that the plaintiff during that time occupied the faid meadow lands in the faid parish, and mowed and received the hay therefrom, and depaftured unprofitable cattle there, and ploughed the faid other lands there and fowed them with corn, for which tithe was due to the defendant. That the plaintiff pleaded in his defence to the libel the matters above fuggefted, and offered to prove the fame by evidence. That the defendant by way of perfonal anfwer denied that the faid lands were extra-parochial, because the proprietors of lands in the adjoining parishes, of which High Ham was one, claimed rights of common on King's [346] (a) Vide the report of this cafe on the motion for the prohibition, 3 Eaf, 472. Sedgemoor, 1804. GOULD against GAPPER, Clerk. Sedgemoor, as appurtenant to their refpective tenements, and that King's Sedgemoor was parcel of the faid feveral parishes adjoining, though the precife bounds of each were not certainly known. And further the defendant alleged, that King's Sedgemoor was not mentioned in the faid act as extra-parochial, but that the fame was therein stated to be in, near, or adjoining to the feveral parishes mentioned, of which High Ham was one; and that the commiffioners under the faid act allotted King's Sedgemoor amongst the feveral parishes mentioned, which had rights of common thereon; and that they allotted part of King's Sedgemoor, adjoining to the old inclofures of High Ham, to the faid parish, for the rights of common appurtenant to certain tenements in High Ham, and other part of King's Sedgemoor they allotted to Low Ham, alleged to be a hamlet of High Ham. That the defendant by his faid answer further alleged, that by an act of the 37 Geo. 3. the parcels of meadow and land in queftion in the occupation of the plaintiff were allotted in refpect of fome of the rights of common appurtenant to fome of the tenements in the parish of High Ham and hamlet of Low Ham, and were parcels of the allotments made under the laft mentioned acts; and that the fame were within the bounds of the parish of High Ham. And the defendant further alleged, that by the [347] faid act fecondly abovementioned it was enacted, that all the lands which should be allotted by virtue thereof fhould be held under and fubject to the fame charges, tenures, customs, fuits, services, and incumbrances as the tenements in respect of which fuch allotments were made would have been fubject to if fuch act had not paffed. And the defendant further fubmitted by his answer, that under the ftat. 2 & 3 Ed. 6. the rector of High Ham was entitled to the tithe of increase of cattle depaftured in the faid tract of pasture land prior to the palling of the first mentioned act; and that the defendant denied the modus. Yet notwithstanding the matters alleged, the defendant had caused the plaintiff to be convicted of the premises, and the plaintiff had been condemned by the fpiritual court in a large fum to be paid to the defendant in lieu of tithe, &c.; and the defendant ftill profecutes his fuit in the ecclefiaftical court, &c. To this the defendant demurred generally, and the plaintiff joined in de murrer. Dampier, in fupport of the demurrer, contended, ist, that it was too late to call for a prohibition after fentence on the ground 1824. GOULD against GAPPER, Clerk. ground that the ecclefiaftical court had tried the boundary of the parish, or the existence of a modus. For though these are questions properly triable by a jury, and the plaintiff might before fentence have come here and stopped the trial in the ecclefiaftical court; yet as that court has jurifdiction of fuch questions incidentally, (for the queftion of parochial boundary may arise in every caufe of fubtraction of tithe), and the objection goes only to the defect of trial, the plaintiff, after fubmitting to the 348] trial there, and taking his chance of a decifion in his favour, cannot object to it. Full v. Hutchins (a), Argyle v. Hunt (b), Bannifer v. Hunt (c), Blaquiere v. Hawkins (d), Symes v. Symes (e), Buggin v. Bennet (f), Offley v. Whitehall (g), and 2 Roll. Abr. 209. pl. 2. All the cafes fhew, that where the ecclefiaftical court has original jurifdiction of the caufe (as here it must be admitted to have had), and nothing appears upon the face of the libel to ouft it, prohibition does not lie after fentence merely for defect of trial. This diftinguishes the prefent cafe from Panacre v. Spleen (b), where the objection appeared on the face of the libel; as it alfo did in Paxton v. Knight (i), where the party had libelled upon a prefcription over which the ecclefiaftical court had no jurisdiction. The authority of that cafe, however, is opposed to the cafe in 1 Ld. Ray. 435. And in Dutens v. Robfon (k), though the party libelled upon a modus, yet that being admitted, a prohibition was denied. And by Argyle v. Hunt (I), the party applying for a prohibition fhall not, after fentence at leaft, allege matter dehors the libel to fhew that the court below had not jurisdiction. But, fecondly, fuppofing prohibition will in any cafe lie after fentence in a matter originally within the jurifdiction of the ecclefiaftical court, the queftion will be, whether the construction of acts of parliament belong in all cafes to the temporal courts exclufively; fo that if the ecclefiaftical or admiralty courts conftrue them otherwife than the temporal courts would have done, prohibition fhall go even after fentence; or whether those courts have not jurifdiction to conftrue acts incidentally coming under their cognizance in matters within their jurifdiction, whofe decifion thereon, however er [ 349 ] roneous, can only be rectified on appeal. It may be admitted, that wherever the rule of the ecclefiaftical law is directly different from that of the common law, and muft neceffarily lead to a different refult, the latter is entitled to the preference; and prohibition may go even after fentence; as where the ecclefiaftical court requires proof by two witneffes of matters proveable by one at common law: though prohibitions even in this cafe have heen denied (a). Or where the question arifes on the meaning of the words "next of kin,” 2 Rol. Abr. 303. pl. 28.: or on the extent of the word month, in matters not fpiritual. In these cafes the conftruction of the refpective courts must neceffarily be different. So prohibition will go at any time if an inferior court mifconftrue an act regulating its own jurifdiction. 12 Re. 42. And this was the ground of the doctrine laid down in Brymer v. Atkins (b). There the prize court had put a construction on the ftat. 16 Geo. 3. c. 5. S. 14. which the court of C. B. confidered that the prize court had authority to do, and did not prohibit it. And yet if the construction put by inferior courts on acts of parliament be not binding any further than as it coincides with the judgment of the courts at Westminster, it is in effect to deny their jurisdiction; for an erroneous judgment upon a matter within the jurifdiction of a court can only be rectified on appeal. But if the matter were coram non judice, the prize court could have had no authority to put any conftruction on the ftatute, and it must have been prohibited in the first inftance. The fpiritual court may have jurifdiction of matters coming incidentally in question there where it would not have had original jurisdiction over fuch matters. Reg. 57. b. 58. So it may judge of a sta2 Rol. Abr. 307. pl. 16. Pen's cafe, M. 8 Jac. ib. 308. pl. 22. Lucy v. Lucy, H. 14 Car. There a parfon fued for tithes in the fpiritual court against one who pleaded a lease for years made to him by the parson; to which the latter replied that he was in fuch a year abfent from his benefice above 80 days, by which his leafe became void. And held that no prohibition lay on this plea, although grounded on the ftat. 13 Eliz.; and though it was objected that the judges of the fpiritual court should not have the expofition of a statute. Dr. Sutton's case (c), and Scadding's cafe (d), are to the fame effect. [Lord EllenSid. 161. 2 Rol. Abr. 299. pl. 10. (c) Latch. 228. Cro. Car. 65. tute. (a) Robert's cafe, 2 Cro. 269. (b) H. Blac. 164. 187, 8. (d). Velv. 134. borough 1804. GOULD against GAPPER, Clerk. [350] 1804. GOULD against GAPPER, Clerk. [351] borough C. J. It will not, I apprehend, be contended that the ecclefiaftical court has not jurifdiction to conftrue ftatutes incidentally coming in queftion before them; but only that if it conftrue them wrongly a prohibition fhall go. The refolution of the Judges in the reign of Jac. 1. does not go further than this.] All the authorities have been lately confidered in the cafes of Brymer v. Atkins, and Home v. Lord Camden (a)• What was faid by Lord Loughborough in the latter, "that the expofition of the ftatute law appertains to the King's courts of record, and ought to be difcuffed and determined in thofe courts," must be understood with reference to what was faid by his lordfhip in Brymer v. Atkins (b), where he ftates that the mifconftruction by a prize court of an act of parliament by which its jurifdiction was regulated would be a good ground of prohibition, on an ancient and effential maxim of the common law," that all courts of special jurifdiction created by act of parliament must be limited in the exercife of that jurifdiction by fuch conftruation as the courts of common law may give to the ftatutes; because if they had a latitude to conftrue at their difcretion the law by which they act, they would fet themselves above the common law.” In the cafe of Home v. Lord Camden, where the judgment of B. R. denying a prohibition to the prize court of appeals was ultimately fuftained by the Houfe of Lords, the reafons given by Afbburst (c) and Buller Justices (d), and particularly by the latter, are decifive against the prohibition. The former faid, " It is admitted that the courts of Admiralty have exclusive jurisdiction over all questions of prize; and if fo, they must have the fame jurifdiction over all matters that arife incidentally, either in conAruing acts of parliament or proclamations, in order to form their opinion on the principal queftion." Buller J. faid, that "if it were competent to us to decide whether or not the court of appeals had mifconftrued the act, I fhould defire further time to look into the authorities. But I think it is not now competent to the court to examine that question," &c. He afterwards (a) The first report of this cafe is in 1 H. Blac. 476, where the Court of C. P. gave judgment for the plaintiff in prohibition; the next, in 4 Term Rep. 82., where that decifion was reversed by B. R.; and again in 2 H. Blac. 533., where the judgment of B. R. was af firmed in Dom. Proc. (b) 1·H. Blac, 187,8. (c) 4 Term Rep. 395. (d) Ib. 196, 7. 400. ftates |