PROHIBITION.

13 EDWARD I. STAT. 4. CIRCUMSPECTE AGATIS-Certain cases wherein the king's prohibition doth not lie.-See Title-" ECCLESIASTICAL COURTS, ENGLAND," vol. iii. p. 1.

2 H. 4, f. 9.

24 EDWARD 1. THE STATUTE OF THE WRIT OF CONSULTATION. -In what case a consultation is grantable. Whereas ecclesiastical 12 H. 7, f. 22. judges have often surceased to proceed in causes moved before them, by force of the king's writ of prohibition, in cases wherein remedy could not be given to complainants in the king's court, by any writ out of the chancery, whereby such plaintiffs were deferred of their right and remedy in both courts, as well temporal as spiritual, to their great damage, like as the king hath been advertised by the grievous complaint of his subjects: our lord the king willeth and commandeth, that where ecclesiastical judges do surcease in the aforesaid cases, by the king's prohibition directed unto them, that the chancellor, or the chief justice of our lord the king for the time being, upon sight of the libel of the same matter, at the instance of the plaintiff (if they can see that the case cannot be redressed by any writ out of the chancery, but that the spiritual court ought to determine the matters) shall write to the ecclesiastical judges, before whom the cause was first moved, that they proceed therein, notwithstanding the king's Rast. 483. prohibition directed to them before. Given in the eighteenth year. 9 EDWARD 2, STAT. 1, PREF. & CAPS. 1-6.—No prohibition shall be granted where tithes be demanded, where money is paid for them.See Title "CHURCH, HER RIGHTS AND LIBERTIES," vol. i. p. 516m. Certain statutes made during the reigns of king Henry the third, king Edward the first, or king Edward the second, but uncertain when, or in which of their times.-Articles against the king's prohibitions.-See Title- ECCLESIASTICAL COURTS, ENGLAND," vol. iii. p. 1.

Regist. 44.

1 Roll 378,

500.

50 EDWARD 3, CAP. 4.-No prohibition shall be allowed after consultation duly granted.—It is ordained and stablished of the said Cro. Car. 208. assent, that whereas a consultation is once duly granted upon a 2 Roll 207, prohibition made to the judge of the holy church, that the same judge may proceed in the cause by virtue of the same consultation, notwithstanding any other prohibition thereupon to him delivered: 3 Bulstr. 182. provided always, that the matter in the libel of the said cause be Latch 6. not engrossed, enlarged, or otherwise changed.

8 & 9 WILLLAM 3, CAP. 11, SEC. 3.-An act for the better preventing frivolous and vexatious suits.

Carthew 463.

Regist. 45.

waste, &c. to recover costs

III. Be it further enacted by the authority aforesaid, that from and Plaintiff obtaining after the said five and twentieth day of March, in all actions of judgment on waste, and actions of debt upon the statute for not setting forth of an action of tithes, wherein the single value or damage found by the jury shall not exceed the sum of twenty nobles, and in all suits upon any writ or writs of scire facias, and suits upon prohibitions, the plaintiff obtaining judgment, or any award of execution after plea pleaded or demurrer joined therein, shall likewise recover his costs of suit; and

for writs of

on affidavit

declaration in case the

party is di

to

if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same in like manner as aforesaid.

1 WILLIAM 4, CAP. 21.-An act to improve the proceedings in prohibition and on writs of mandamus.—Whereas the filing a suggestion of record on application for a writ of prohibition is productive of unnecessary expense, and the allegation of contempt in a declaration in prohibition filed before writ issued is an unnecessary form; and it is expedient to make some better provision for payment of costs in cases of prohibition; be it enacted by the king's most excellent majesty, by and with the advice and consent of the lord's spiritual and temporal, and commons, in this present parliament asApplications sembled, and by the authority of the same, that it shall not be necesprohibitions sary to file a suggestion on any application for a writ of prohibition, may be made but such application may be made on affidavits only; and in case only. the party applying shall be directed to declare in prohibition before Contents of writ issued, such declaration shall be expressed to be on behalf of such party only, and not, as heretofore, on the behalf of the party and of his majesty, and shall contain and set forth in a concise manner so much only of the proceeding in the court below as may be necessary to shew the ground of the application, without alleging the delivery of a writ or any contempt, and shall conclude by prayDefendant ing that a writ of prohibition may issue; to which declaration the may demur to party defendant may demur, or plead such matters, by way of traverse or otherwise, as may be proper to shew that the writ ought not to issue, and conclude by praying that such writ may not issue; Judgment. and judgment shall be given, that the writ of prohibition do or do not issue, as justice may require; and the party in whose favour judgment shall be given, whether on nonsuit, verdict, demurrer, or otherwise, shall be entitled to the costs attending the application and subsequent proceedings, and have judgment to recover the same; and in case a verdict shall be given for the party plaintiff in such declaration, it shall be lawful for the jury to assess damages, for which judgment shall also be given, but such assessment shall not be necessary to entitle the plaintiff to costs.

declare in

prohibition.

declaration.

Costs.

Damages.

So much of

c. 13, as

II. And be it further enacted, that so much of an act passed in 2&3 Ed. 6, the second and third years of the reign of king Edward the sixth, intituled an act for payment of tithes, as relates to prohibition, shall be and the same is hereby repealed.

relates to

prohibition repealed.

The enactments of 9

relating to

returns to

in mentioned

III. And whereas the provisions contained in a certain act of Anne, c. 20, parliament passed in the ninth year of the reign of queen Anne, intituled an act for rendering the proceedings upon writs of mandamus writs of man. and informations in the nature of a quo warranto more speedy and damus there effectual, and for the more easy trying and determining the rights of and the pro- offices and franchises in corporations and boroughs, relating to the ceedings writs of mandamus therein mentioned, have been found useful and tended to all convenient, and the same ought to be extended to the proceeding other writs of on other such writs; be it therefore enacted, that the several enactments contained in the said statute relating to the return to writs of mandamus, and the proceedings on such returns, and to the recovery of damages and costs, shall be and the same are hereby extended and made applicable to all other writs of mandamus, and the pro

thereon, ex

mandamus.

ceedings thereon, except so far only as the same may be varied or altered by this act.

are

tion of cer

writs of man

directed.

IV. And whereas writs of mandamus, other than such as relate For protecto the offices and franchises mentioned in or provided for by the tain officers said act made in the ninth year of the reign of queen Anne, to whom sometimes issued to officers and other persons commanding them to damus are admit to offices, or do or perform other matters in respect whereof the persons to whom such writs are directed claim no right or interest, or whose functions are merely ministerial in relation to such offices or matters; and it may be proper that such officers and persons should in certain cases be protected against the payment of damages or costs to which they may otherwise become liable; be it therefore enacted, that it shall be lawful for the court to which application may be made for any writ of mandamus, (other than such as relate to the said offices and franchises mentioned in or provided for by the said act made in the reign of queen Anne), if such court shall see fit so to do, to make rules and orders, calling not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to shew cause against the issuing of such writ and payment of costs of the application, and upon the appearance of such other person in compliance with such rules, or in default of appearance after service thereof, to exercise all such powers and authorities, and make all such rules and orders, applicable to the case, as are or may be given or mentioned by or in any act passed or to be passed during this present session of parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims: provided always, that the return to be made to any such writ, and issues joined in fact or in law upon any traverse thereof, or upon any demurrer, shall be made and joined by and in the name of the person to whom such writ shall be directed; but nevertheless the same shall and may, if the court shall think fit so to direct, be expressed to be made and joined on the behalf of such other person as may be mentioned in such rules; and in that case such other person shall be permitted to frame the return, and to conduct the subsequent proceedings, at his own expense; and in such case, if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person or persons on whose behalf the return shall be expressed to be made, and who shall have the like remedy for the recovery of costs and enforcing the judgment as the person to whom the writ shall have been directed might and would otherwise have had.

not to abate

V. And be it further enacted, that in case the return to any such Proceedings writ shall, in pursuance of the authority given by this act, be ex- by removal pressed to be made on behalf of any other person as aforesaid, the of officer. further proceedings on such writ shall not abate or be discontinued by the death or resignation of, or removal from office of, the person having made such return, but the same shall and may be continued and carried on in the name of such person; and if a peremptory writ shall be awarded, the same shall and may be directed to any successor in office or right to such person.

Costs to be

in the dis

court.

VI. And, for making some further provision for the payment of cretion of the costs on applications for mandamus, be it further enacted, that in all cases of application for any writ of mandamus whatsoever, the costs of such application, whether the writ shall be granted or refused, and also the costs of the writ, if the same shall be issued and obeyed, shall be in the discretion of the court, and the court is hereby authorized to order and direct by whom and to whom the same shall be paid.

9 & 10 VICTORIA, CAP. 113.-An act to improve the proceedings in prohibition and on writs of mandamus in Ireland.—Whereas by an act 1 W. 4, c. 21. passed in the first year of the reign of his late majesty king William the fourth, intituled an act to improve the proceedings in prohibition and on writs of mandamus, certain provisions were made relating to applications for writs of prohibition, and to the proceedings thereon, and to damages and costs of such applications and proceedings; and it is expedient that the said provisions should be extended to and be in force in Ireland: be it therefore enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, Provisions of that the several enactments contained in the said statute relating to act 1 W. 4, c. 21, as to applications for writs of prohibition, and to declarations and other pleadings and proceedings thereon, and to the recovery of costs and damages therein, shall be and the same are hereby extended to and shall be in force in Ireland.

writs of

pro

hibition extended to Ireland.

the act

mandamus

of writs of

Provisions of II And whereas the provisions contained in an act passed in the 19 G. 2. (I.) parliament of Ireland in the nineteenth year of the reign of his late as to writs of majesty king George the second, intituled an act for the better reguextended to lation of corporations, relating to the writs of mandamus, therein other cases mentioned, have been found useful and convenient, and the same mandamus. ought to be extended to the proceedings on other such writs; be it therefore enacted, that the several enactments contained in the said last mentiond statute relating to the returns to writs of mandamus, and the proceedings on such returns, and to the recovery of damages and costs, shall be and the same are hereby extended and made applicable to all other writs of mandamus, and the proceedings thereon, except so far only as the same may be varied or altered by this act.

For protection of cer

tain officers

to whom writs of

are directed.

III. And whereas writs of mandamus, other than such as relate to the offices and franchises mentioned in or provided for by the said act made in the nineteenth year of the reign of king George mandamus the second, are sometimes issued to officers and other persons, commanding them to admit to offices or do or perform other matters in respect whereof the persons to whom such writs are directed claim no right or interest, or whose functions are merely ministerial in relation to such offices or matters; and it may be proper that such officers and persons should in certain cases be protected against the payment of damages or costs to which they may otherwise become liable; be it therefore enacted, that it shall be lawful for the court in Ireland to which application may be made for any writ of mandamus (other than such as relate to the said offices and franchises mentioned in or provided for by the said act made in the reign of king George

returns of

the second), if such court shall see fit so to do, to make rules and orders calling not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to show cause against the issuing of such writ, and payment of costs of the application; and upon the appearance of such other person in compliance with such rules, or in default of appearance after service thereof, to exercise all such powers and authorities, and make all such rules and orders applicable to the case, as are or may be given or mentioned by or in any act passed or to be passed during this present session of parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims: provided always, that the return to be made to any such Proviso as to writ, and issues joined in fact or in law upon any traverse thereof, writs and issues joined. or upon any demurrer, shall be made and joined by and in the name of the person to whom such writ shall be directed; but nevertheless the same shall and may, if the court shall think fit so to direct, be expressed to be made and joined on the behalf of such other person as may be mentioned in such rules, and in that case such other person shall be permitted to frame the return, and to conduct the subsequent proceedings at his own expense; and in such case, if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person or persons on whose behalf the return shall be expressed to be made, and who shall have the like remedy for the recovery of costs and enforcing the judgment as the person to whom the writ shall have been directed might and would otherwise have had.

not to abate

the return.

IV. And be it enacted, that in case the return to any such writ Proceedings shall, in pursuance of the authority given by this act, be expressed by death, &c. to be made on behalf of any other person as aforesaid, the further of the officer proceedings on such writ shall not abate or be discontinued by the having made death or resignation of or removal from office of the person having made such return, but the same shall and may be continued and carried on in the name of such person; and if a peremptory writ shall be awarded the same shall and may be directed to any successor in office or right to such person.

the discre

V. And for making some further provision for the payment of The costs of application costs on application for mandamus, be it enacted, that in all cases formadaof applications for any writ of mandamus whatsoever in Ireland the mus to be in costs of such application, whether the writ shall be granted or refused, tion of the and also the costs of the writ, if the same shall be issued and obeyed, court. shall be in the discretion of the court, and the court is hereby authorized to order and direct by whom and to whom the same shall be paid.

secutor in

validity of a

VI. And whereas it is expedient that parties interested in the Where proissuing of or in the proceeding upon writs of mandamus shall be tends to obenabled in certain cases to have the judgments and decisions of the ject to the court of queen's bench in Ireland in respect of the said writs, and return to a of the proceedings thereon, reviewed by a court of error, if they he must do shall so think fit, and that a certain mode of effecting the same shall be ordained and established: and whereas there is not any power or authority given by the said recited act of the reign of his majesty

mandamus,

so by way of

demurrer.