the aforesaid cafes, 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 fight of the libel of the fame matter, at the inftance of the plaintiff (if they can fee that the cafe cannot be redreffed by any writ out of the chancery, but that the fpiritual court ought to determine the matters) fhall write to the ecclefiaftical judges before whom the cause was first moved, toat they proceed therein, notwithstanding the king's prohibition diTelled to them before.

Upon fight of the libel] For (as it was heretofore held,) agreeable to the libel ought the confultation to be. And therefore in Hofkins's cafe, when the parfon fued in the fpiritual court for all the tithes, of fuch a ground, and the defendant obtained a prohibition, upon furmife that the queen had been feifed of two parts of the tithes, and had granted them away, and that he had paid the two parts to the grantee, altho' the prohibition was for the two parts only, yet when the parfon prayed confultation for the third part, it was denied; because his confultation could not be granted but according to his libel, and fo he must libel for his third part de novo. But Hobart leaves a query on this cafe, whether he might not have had a confultation, as to the third part only. And the very next year, in Berrie's cafe, where the parfon fued for tithes of hay in fpecie for a hundred acres; and in a prohibition iffue was taken, whether the inhabitants had used to pay for all tithes of hay of all ancient meadows within the town a certain rate tithe; and the jury found there was such a custom for all the ancient meadows, faving for certain called Barton meadows, for which tithes had been paid in kind; and that the party who was fued for tithes in the fpiritual court, had hay upon five acres of the Barton meadow; it was refolved, that if the jury had found against the custom generally, as they might well have done, the parfon fhould have had his confultation for all; but however as they found the truth diftributively, that he had caufe to fue in the fpiritual court for one part, but not for the other, he had confultation as to the Barton land; inasmuch as the libel for tithes in kind for the hundred acres, was several, for all or any part; and therefore for fo much as was Barton, and out of the custom, it was as well libelled, as if it had been for that alone. Gibf. 1030. Hob. 115, 194.

The refolution upon this head, in Fuller's cafe, was as follows: When any libel in the ecclefiaftical court contains many articles: it any of them do not belong to the

cognizance

cognizance of the court chriftian, a prohibition may be granted generally; and upon motion made, confultation may be awarded as to things which do belong to the fpiritual jurifdiction; for the writ of confultation with a quoad, is frequent and usual. 12 Co. 44.

If they can fee that the caje cannot be redreffed] This fuppofeth ftrict examination of the matter; which is always made before confultation awarded. For confultations are the judgments of courts had upon deliberation, whereas prohibitions are granted upon furmiles. To this purpose it was faid by Vaughan chief juftice, (Vaugh. 323) We find no record of prohibitions denied, for there is no entry made of motions not granted; but of prohibitions granted there is" which makes the granting of a prohibition of no great authority, unless upon action brought a consultation be denied upon demurrer. Gibf. 1030.

It is on account of the great deliberation to be bestowed on thefe occafions, and its being an award of the court, and final, that no confultation can be granted, though by all the judges, out of term; nor by any of them within the term, out of court, as was refolved in Fuller's cale; and lord Coke fays, the name of the writ imports this, that the court upon confultation amongit them ought to award it. Gib. 1030. Gib. 1030. 12 Co. 41.

And by the 50 Ed. 3. c. 4. Where a confultation is once duly granted upon a prohibition made to the judge of holy church, the fame judge may proceed in the cause by virtue of the fame confultation, notwithstanding any other prohibition thereupon to bum delivered: Provided always, that the matter in the libel of the faid caufe be not ingroffed, inlarged, or otherwife changed.

Where a confultation is once duly granted] H. 42 Eliz. Sibley and Crawley. On a prohibition for tithes; the defendant fhewed, that before that time the plaintiff had fued in chancery, to stay it by English bill, and afterwards brought a prohibition there, and a confultation was there granted, and that this pronibition is for the fame cause, namely, for matter of difcharge; wherefore he prayed a confultation upon this ftatute, which requireth, that confultation being once duly granted, there fhall not be another prohibition. But the court held, that this confultation was not duly granted according to the intent of the ftatute; because the prohibition was not duly grantable there, and fo out of the ftatute: for it was not duly granted upon an English bill. And by the court, The tatute is to be intended where the confultation is granted

upon

the aforefaid cafes, by the king's prohibition directed unto them, that the chancellor or the chief juftice of our Lord the king for the time being, upon fight of the libel of the fame matter, at the inftance of the plaintiff (if they can fee that the cafe cannot be redreffed by any writ out of the chancery, but that the fpiritual court ought to determine the matters) fhall write to the ecclefiaftical judges before whom the cause was firft moved, toat they proceed therein, notwithstanding the king's prohibition direlled to them before.

Upon fight of the libel] For (as it was heretofore held,) agreeable to the libel ought the confultation to be. And therefore in Hofkins's cafe, when the parfon fued in the fpiritual court for all the tithes, of fuch a ground, and the defendant obtained a prohibition, upon furmise that the queen had been feifed of two parts of the tithes, and had granted them away, and that he had paid the two parts to the grantee, altho' the prohibition was for the two parts only, yet when the parfon prayed confultation for the third part, it was denied; because his confultation could not be granted but according to his libel, and fo he must libel for his third part de novo. But Hobart leaves a query on this cafe, whether he might not have had a confultation, as to the third part only. And the very next year, in Berrie's cafe, where the parfon fued for tithes of hay in fpecie for a hundred acres; and in a prohibition iffue was taken, whether the inhabitants had used to pay for all tithes of hay of all ancient meadows within the town a certain rate tithe; and the jury found there was such a custom for all the ancient meadows, faving for certain called Barton meadows, for which tithes had been paid in kind; and that the party who was fued for tithes in the fpiritual court, had hay upon five acres of the Barton meadow; it was refolved, that if the jury had found against the cuftom generally, as they might well have done, the parfon should have had his confultation for all; but however as they found the truth distributively, that he had caufe to fue in the spiritual court for one part, but not for the other, he had confultation as to the Barton land; inasmuch as the libel for tithes in kind for the hundred acres, was feveral, for all or any part; and therefore for fo much as was Barton, and out of the custom, it was as well libelled, as if it had been for that alone. Gibf. 1030. Hob. 115, 194.

The refolution upon this head, in Fuller's cafe, was as follows: When any libel in the ecclefiaftical court contains many articles: if any of them do not belong to the

cognizance

cognizance of the court chriftian, a prohibition may be granted generally; and upon motion made, confultation may be awarded as to things which do belong to the fpiritual jurifdiction; for the writ of confultation with a quoad, is frequent and ufual. 12 Co. 44.

If they can fee that the caje cannot be redressed] This fuppofeth ftrict examination of the matter; which is always made before confultation awarded. For confultations are the judgments of courts had upon deliberation, whereas prohibitions are granted upon furmifes. To this purpose it was faid by Vaughan chief justice, (Vaugh. 323) "We find no record of prohibitions denied, for there is no entry made of motions not granted; but of prohibitions granted there is:" which makes the granting of a prohibition of no great authority, unless upon action brought a confultation be denied upon demurrer. Gibf. 1030.

It is on account of the great deliberation to be bestowed on thefe occafions, and its being an award of the court and final, that no confultation can be granted, though by all the judges, out of term; nor by any of them within the term, out of court, as was refolved in Fuller's cafe ; and lord Coke fays, the name of the writ imports this, that the court upon confultation amongst them ought to award it. Gib. 1030. 12 Co. 41.

And by the 50 Ed. 3. c. 4. Where a confultation is once duly granted upon a prohibition made to the judge of holy church, the fame judge may proceed in the caufe by virtue of the fame confultation, notwithstanding any other prohibition thereupon to bim delivered: Provided always, that the matter in the libel of the faid caufe be not ingroffed, inlarged, or otherwife changed.

Where a confultation is once duly granted] H. 42 Eliz. Sibley and Crawley. On a prohibition for tithes; the defendant fhewed, that before that time the plaintiff had fued in chancery, to ftay it by English bill, and afterwards brought a prohibition there, and a confultation was there granted, and that this pronibition is for the fame cause, namely, for matter of difcharge; wherefore he prayed a confultation upon this ftatute, which requireth, that confultation being once duly granted, there fhall not be another prohibition. But the court held, that this consultation was not duly granted according to the intent of the ftatute; because the prohibition was not duly grantable there, and fo out of the ftatute: for it was not duly granted upon an English bill. And by the court, The tatute is to be intended where the confultation is granted

upon

upon examination of the matter, and not for the infufficiency of the proceedings. Whereupon it was awarded, that the prohibition fhould ftand. Cro. Eliz. 736.

And afterwards, E. 11 Ja. in the cafe of Tey and Cox, we find it laid down as a rule by the whole court of king's bench, that it it be apparent matter, that the confultation was not duly granted, then a new prohibition may be granted. 2 Brownl. 35. Mod. 917 Gbf. 1031.

Upon a probibition made to the judge of holy church] But fo, that the firft confultation hath been granted upon the matter or fubftance of the fuggeft on, and not for default of form only For in the cafe of Cox and Seymour, though the fame fuggeftion had been made before, in four feveral prohibitions for the fame land, and the fame manner of tithing was alledged, and every of the four times confultation had been granted; yet, because it was in every inftance only for default of proof within fix months, through neglect to have the witneffes ready in due time according to Edward the fixth's ftatute of tithes, and not upon the right or trial of the cuftom; the fuggeftion was held to be good, and a fifth prohibition grantable. And in the cafe of Stroud and Hofkins, H 6 Cha (p) the fame doctrine is laid down as follows: The ftatute of the 50 Ed 3. is intended, where confultation is granted upon the fubftance of the fuggeftion, being proved to be infufficient in verdict, or non-fuit after evidence; and not where it is granted for the infufficiency of the form of the fuggeftion, or in the proceeding thereupon. Which doctrine had been also laid down before, in the 7 Ja. in the court of king's bench (9); namely, when a confultation is granted upon any default of the prohibition in form, by mifprifion of the clerk, or by mifpleading of any ftature; in that cafe, or fuch like, a new prohibition may be granted upon the fame libel: but if confultation be granted upon the right of the thing in queftion, there a new prohibition fhall not be granted upon the fame libel. Gibf. 1031.

But the next year, in the 8 Ja. in the cafe of Dorwod and Brikinden (r), the court feems to have gone fomewhat farther than bare form in the rule there laid down; viz.