ftates it as a clear rule, that after fentence the courts of com mon law never grant a prohibition, unless the want of jurifdiction appear on the face of the libel:" for which he refers to Full v. Hutchins (a). Then after referring to the dictum in 2 Rol. Abr. 306. pl. 10. that if the ecclefiaftical court adjudge otherwife (upon a condition in a leafe) than is warranted by the common law, a prohibition will be granted; which he denies to be law; he proceeds to touch upon the merits of the decifion in the court below: and his opinion is the ftronger, because he feems to have differed from the court of appeals in their construction of the act. The dictum in Rolle and fome few ancient cafes have certainly gone great lengths; but they are attributable to a jealousy of the ecclefiaftical courts which at one time prevailed in the courts of common law, and justify the observation of Lord C. J. Vaughan (b), " that this Court had in some of the cafes bordered on things fpiritual." And the inclination of Lord C. J. Eyre's opinion to the fame purpose may be collected from the manner of his ftating the queftion in Home v. Ld. Camden (c). The ftrength of the argument on the other fide refts on the inconvenience there pointed out by Lord C. J. Eyre, namely, the poffibility of two different rules prevailing on the fame law, one in the courts of Westminster, the other in courts of peculiar jurifdiction, where the tribunals in the ultimate refort are not the fame. But this inconvenience exifts in other cafes, and is not therefore a conclufive objection. As where the courts of equity and the fpiritual courts have a concurrent jurifdiction in matters of tithe and matters of legacy. Or, as where the courts of Admiralty and of common law have concurrent jurifdiction in the cafe of mariners' wages, where the contract is made at fea and is not under feal, and in bonds of hypothecation which are under feal. So the plantation courts of Chancery in matters arifing there, and the court of Chancery here, where the parties live in England, have concurrent juris diction (d), though the ultimate appeal from the one is to the King in council, and not to the Houfe of Lords, as in the cafe of the other. The fame took place formerly on contracts of marriage, before the jurifdiction of the fpiritual court was taken away by the stat. 26 Geo. 2. c. 33. S. 13.: and other instances are (a) Cowp. 422. (b) 2 Ventr. 10. enumerated 1804. GOULD against GAPPER [ 352 ] [353] 1854. GOULD against GAPPER, Clerk. enumerated in Bac. Abr. Prohibition, I.. 5. None of these con. current jurifdictions could exift if the poffibility of conflicting decifions were an objection. And fuch objection is alfo inconfiftent with the law as now fettled in Full v. Hutchins (a), that a party is too late who comes after fentence for a prohibition where the defect in the court chriftian is in the trial and not in the jurifdiction. So where two libels are exhibited against two inhabitants of a parish for tithe, and they set up a modus over the whole parish, if one fubmit to the trial in the court christian, and the other obtain a prohibition before trial and try at common law, the one cafe may be ultimately decided before the delegates, and the other by the House of Lords, who may decide differently. But this inconvenience cannot alter the law. [Lord Ellenborough C. J. and Le Blanc J. obferved, that there the inconvenience would arife from the party's own fault, who did not apply in time for a prohibition.] In Hill v. Good (b) Lord C. J. Vaughan takes a distinction, which is confirmed in Wenmouth v. Collins (c), between statutes which give a new jurifdiction to the temporal courts, and thofe which are directory to the jurifdiction which before had cognizance of the fubject. In the latter cafe the court will not prohibit the ecclefiaftical court from proceeding, though the construction of the ftatute may come in question. Now here the acts in question do not alter the jurifdiction; they confirm to all the fame rights they had before. The Sedgemoor act ftates the moor to be near the' parishes, and makes the allotments parts of the parishes where the tenements in refpect of which they were made are fituated; [354] and it faves the right of the King. The High Ham act makes the part thereby inclofed fubject to the fame charges it was before. The ftat. 2 & 3 Ed. 6. c. 13. f. 3. makes the tithe of increafe of cattle on any lands of which the parish is not known payable to the rector of the parish where the owner of the cattle refided. Neither of thefe ftatutes gives the temporal courts any new jurifdiction, nor alters or affects any jurisdiction which the ecclefiaftical court had before; but the directions are general, and must be taken with reference to the court which had jurisdiction of the fobject-matter before. At any rate, however, before prohibition is granted it ought certainly to ap pear, which it does not, that the ecclefiaftical court neceffarily decided this cafe on the conftruction of the flatutes: after fen(b) Vaugh. 304. (c) 2 Ld. Ray. 850. (a) Cowp. 422. tence tence the plaintiff cannot complain of the defect of trial of the modus or boundary. The ground of its decifion might be that Sedgemoor was not extraparochial, and in that cafe the King had no right. This would not be conftruing the act, but deciding on a fact. The fum given may have been for the tithes of increase of cattle under the ftat. 2 & 3 Edrv. 6. which creates fuch a charge, and the ftat. 37 Geo. 3. wbich maintains it, even fuppofing the parifh to which the moor appertains to be uncertain. It is not alleged by the ecclefiaftical 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 faving of the King's right (if it were not previously granted away) ought to operate. Burrough contrà. The ftatute in queftion cannot be said to be directory to the ecclefiaftical court, wherein no mention is made of that jurisdiction, but which merely contains general provifions, which must of course be taken to apply to the courts of common law. Neither can it be faid that the ecclefiaftical 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 extraparochial, is denied to be fo 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 extraparochial, and that the allotments under the act were made in refpect of fuch rights of common appurtenant to the tenements in the parish, &c.; and that the act of the 37 Geo. 3. fubjected the allotments to the fame charges, &c. as the tenements in respect of which they were made; evidently putting the whole cafe upon the acts as having virtually made thofe allotments parts of the parish, and fubject to the same burthens as the old inclosures. Now the only object of the Sedgemoor act was the divifion of the moor between the lords of manors and the commoners claiming rights thereon before the ftatute, and nothing is faid refpecting the right to tithe, which is therefore left as it was before. No parochial rights were ever before exercifed on the moor, nor does the act ftate it to be within the boundaries of any parish, but lying near or adjoining; though by way of distinction the feveral parts are allotted to particular parishes. Then the claufe in the High Ham act, 37 Geo. 3. directing the allotments VOL. V. T 1804. GOULD GAPPER, against Clerk. [355] 1804. to be fubject to the fame "charges" as the old tenements in respect of which they were made, merely relates to private GOULD charges, &c. on the eftate, fuch as dower, mortgages, &c. acagainst GAPPER, cording to Moncafter v. Watfon (a), and does not relate to tithe ; Clerk. the rectors of the * feveral parishes being no parties to the act, [356]. but merely the Lords and Commoners; and the accompanying [357] words, fuch as ufes, estates, trufts, &c. explain the meaning of the word charges. [Lawrence J. A fimilar claufe in the cafe of the Stonehouf: Bridge act lately (b) received the fame construction.] Then the last claufe but one faves to the lords of the manors all their privileges, except fuch for which compenfation 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 fame exception. Now if any perfon were before entitled to the tithe of the allotments which were extraparochial, it must have been the King. It is clear therefore that the ecclefiaftical court in giving the rector the tithe of fuch allotments has mifconftrued the acts, the interpretation of which belongs exclufively to the courts of Weftminster, and therefore the mifconftruction of them is a good ground of prohibition after fentence: the fentence itself is the gravamen ; for till then it could not be known that the court below would mifconftrue 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. Home, in Error (c), (which doubt was not warranted by the authorities then mentioned, and upon further inveftigation would probably have been removed from the mind of the learned Judge), fhews that where the ecclefiaftical court (a) 3 Bur. 1375(b) H. 44 Geo. 3. B. R. That was a cafe fent up from the Court of Quarter Seffions in Devonshire, upon a queftion concerning the va lidity of a poor rate. The ftat. 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 S. 2c. provided that certain perfons and their heirs should stand feised of the tolls of the bridge" to the fame ufes, trufts, and eftates, and fubject to the fame wills, fettlements, 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 eftate. (6) 4 Term Rep. 396, 7. acts 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 exprefs decifion of the court in the cafe cited by the fame 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 fentence; and non conftat but that the Court below may have decided wrong on the fact, and not on the law; but where the fentence is the grievance, he can never come too late. The doctrine referred to as laid down by Lord Loughborough in Home v. Lord Camden (a)," that the expofition of the ftatute law appertains to the king's courts of record, and ought to be difcuffed and determined in those courts," is not new, but is confirmed by the whole court in Howe v. Nappier (b). That was a fuit in the Admiralty for feamen's wages, there being an agreement under feal; on which a prohibition went. Lord Mansfield there faid, "a prohibition is ex debito juftitiæ if the Court of Admiralty proceed contrary to Act of Parliament." The true queftion in thefe cafes is, Whether the court below are proceeding against the common law? If the fentence itself stated that the court had decided against a prescription set up in a suit for subtraction of tithe on the ground that it was not proved by more than one witness, this court would interfere by prohibition even after fentence. In Wheeler's cafe (c), the ecclefiaftical court had jurisdiction over the subject-matter, namely, the working upon holidays, yet as it had mifconftrued the ftat. 5 Ed. 6. difregarding the exception of works of neceffity, fuch as carry ing hay, prohibition went. Admitting that the church had authority 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 fame were broken by doing fuch work on that day.. So where the Judge of the prerogative court had on granting adminiftration to one Slawney (d), taken bond of him with the conditions ufual there, but beyond what was required by the stat. 21 H. 8. c. 5. ; on prohibition prayed against proceedings there on that bond this court was clear that the (b) 4 Burr. 1950. (a) 1 H. Blac. 476. (d) Hob. 83. T 2 prero 1804. GOULD against GAPPER, Clerk. [358] |