Selected quad for the lemma: authority_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	bishop_n	church_n	jurisdiction_n	5,357	5	9.3309	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80192	The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.	Colquitt, Anthony.; Washington, Joseph, d. 1694.; Great Britain. Court of Exchequer.; England and Wales. Court of Common Pleas.; England and Wales. Court of Chancery.; England and Wales. Court of King's Bench.	1698 (1698)	Wing C5416; ESTC R171454	291,993	354

Construction can be made of them but that an Estate in possession was thereby intended to pass 4. Object That this Fine and Grant must be construed to enure according to the intent of the Parties ut res magis valeat and they never intended to make a Forfeiture Answ Certainly no Man ever intended to make a Forfeiture of his own Estate those are generally the effects of Ignorance and not of the Will as the Case of Gimlet and Sands Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life then to the use of his Wife for Life Remainder in Tail to his Son and Heir Remainder to his own right Heirs and afterwards he made another Feoffment to Smith with Warranty the Mother and Son join in another Feoffment adjudged that this was a Forfeiture of her Estate for life though she had no notice of the Warranty made by her Husband for the Feoffment made by him was a publick Act upon the Land and she ought to have taken notice of it and though by her joining in the Feoffment with her Son she did not intend to forfeit her Estate yet the Law adjudges according to what is done But in the Case at Barr the intention of the Parties may be collected by the Act done and there is great reason to presume that the Parties thereby intended to displace the Reversion for the Husband joyning in the Fine and in the Warranty if it was no divesting the Warranty is of no use Another Objection has been only mentioned which is that admitting this should amount to a displacing if the Estate had been in possession yet in this Case it would not because it was prevented by the Lease for years in being But that cannot hinder the execution of this Fine 't is a Fine sur concessit which is executory in its nature and doth not pass any Estate or take any effect 'till executed and so is the Book 41 5. 3. 14. b. But in this Case the Fine was executed which may be by matter in pais as well as by Scire facias and as to this purpose may be executed by the entry of the Conusor 1 Rep. 106. Dyer 376. b. without suing out any Execution 38 Ed. 3. Brook tit Scire facias 199. If there had been a Fine executed there would have beén little doubt left in this Case and by the Attornment of the Lessee for years it must be admitted that this Fine was executed as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years and if so when a Fine executory is once executed 't is as good as a Fine sur Conusance de droit come ceo to make a forfeiture of the particular Estate Where a Feoffment is made and a Lease for years is in being the Feoffment is not good because in such case there must be a present transposition of the Estate Postea Moor and Pitt which is hindred by the Lease But in case of a Fine which is a Feoffment upon Record a Lease for years is no impediment or displacing of the Reversion for if Tenant in Tayl expectant upon a Lease for years levy a Fine 't is a discontinuance of the Tayl and notwithstanding this Lease the Fine has such an operation upon the Free-hold that it displaces the Reversion in Fee Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance it will much less hinder a displacing in this case But no Iudgment was given now in this Case another matter being debated whether the Plaintiff could have Iudgment because he was barred by the Statute of Limitations for it did not appear that he had been in possession for twenty years past and the Verdict hath not found any Claim or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester Oath Ex Officio not to be administred A Prohibition was granted last Easter-Term to the Bishop of Chichester upon a Suggestion made by Waterfield that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex the Bishop tendered him an Oath ex officio which was that he should Present every Parishioner who had done any Offence or neglected any Duty mentioned in certain Articles contained in a printed Book delivered to him some of which Articles concern the Church-warden himself and so in effect he was to swear against himself in case of any default which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction to administer the Oath ex officio or any other Oath whereby the person to whom 't is administred may be charged to accuse himself of any criminal matter whereby he may be lyable to any Censure or punishment and because the Bishop had Excommunicated him for refusing such Oath he prayed a Prohibition which was granted quoad the compelling him to make any answer to the said Articles concerning himself and the Excommunication was discharged But now upon the motion of Serjeant Brampston a Consultation was awarded because it appeared by the Affidavit of the Commissary who tendred this Oath and likewise by the act of the Court that he was Excommunicated for refusing to take the Oath of a Church warden according to Law which was the only Oath tendred and therefore the ground of the Prohibition being false a Consultation was awarded In this Prohibition it was recited That the Bishop cannot give an Oath but in two cases viz. in matters Testamentary and Matrimonial whereas they have authority in many cases more 't is true also that until his Iurisdiction was increased by Act of Parliament he could hold Plea in none but those two causes 2 Inst 487 537. but by the Statute De circumspecte agatis and of Articuli Cleri he may now hold Plea in many other cases The Bishop informed the Lord Chief Iustice that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English and had dispersed them all over the Kingdom intituling them a true translated Copy of a Writ of Prohibition granted by the Lord Chief Iustice and other the Iustices of the Court of Common Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Waterfield a Churchwarden for refusing to take the Oath usually tendred to persons in such Office by which Writ the Illegality of all such Oaths is declared and the said Bishop commanded to take off his Excommunication And this was declared by the Court to be a most seditious Libel and gave order to enquire after the Printer that he might be prosecuted Eleanor Plummer versus Sir Jeremy Whitchot Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape Vpon Nil debet

could not possibly secure them in his own House without subjecting himself to an Action and an Award that one Man shall take the Goods of another is void But if the Plea is not good yet if the Vmpirage be naught Iudgment is to be given for the Defendant for the advantage is saved to him upon the Demurrer And as to that the Vmpirage is but of one side for the Plaintiff is to do nothing nor is the Defendant to be acquitted of all Suits To which it was answered by the Plaintiff's Council That the Vmpirage was of both sides for there being Suits depending 't is awarded that each shall bear his own Charges which is a benefit to the Defendant for otherwise seing the right was in the Plaintiff the Defendant should have paid the Plaintiffs Costs as well as his own for which he cannot now sue without forfeiting his Bond Curia advisare vult Squibb versus Hole THE Plaintiff brought an Action of Escape Escape Action of Escape the Process was upon Bond not made within the Jurisdiction of an Inferiour Court and therefore no Escape and declares That he prosecuted one J. S. in the court of Ely upon a Bond made infra Jurisdictionem of that Court upon which he was taken and the Defendant suffered him to Escape Vpon Not Guilty pleaded the Iury found a special Verdict to this effect viz. That there was such a Bond upon which there was such a prosecution and such an Escape as in the Declaration but they find farther that this Bond was not made infra Jurisdictionem Curiae Maynard Serjeant who Argued for the Plaintiff said that this Action was commenced in an Inferiour Court upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae and that the Defendant was Arrested and suffered to Escape and whether if in truth the Bond was not made infra Jurisdictionem an Action of Escape would lye or whether all the proceédings are coram non Judice was the doubt He took a difference where an Inferiour Court hath an Original Iurisdiction of the Cause and hath conusance of such a Suit as is brought there for in such Cases the proceedings are not extra-judicial but if an Action is brought where properly no Action doth lye all the proceedings there are coram non Judice At the Common Law one who had a particular Iurisdiction to hold Pleas within a Liberty could not hold any Plea of a thing which did arise out of the Liberty for though it was transitory in its nature yet being alledged not within his Iurisdiction it was ill 2 Inst 231. But when the cause of Action arises infra Jurisdictionem that gives them Authority to proceed and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial when they have no possible way of finding whether in truth the Cause did arise within the * Post Crowder and Goodwin Iurisdiction of the Court or not But the Officer is bound to obey the Process of the Court if it appear as in this Case that they had conusance of it the Iudge is likewise bound to grant the Process otherwise he is subject to the Plantiffs Action for his refusal In some Cases the Plaintiff himself may not know where the Bond was made as if he be Executor of the Obligee c. Besides in this Case 't is set forth That in the Action below the Defendant pleaded non est factum and so had admitted the Iurisdiction or at least had waived it and it would be an insufferable mischief if after all this labour and charge the Defendant might avoid all again North Chief Iustice said That if this Cause had been tryed before him he would have Non-suited the Plaintiff because he had not proved the truth of what he laid down in his Declaration viz. That the Bond was made infra Jurisdictionem Curiae But as to the Matter as it stood upon the special Verdict he inclined that as to the Plaintiff who knew where the Bond was made all the proceedings were coram non Judice but as to the Officer it was otherwise for the Pleint and Process would be a good Excuse for him in an Action of false Imprisonment Judgment And afterwards by the Opinion of three Iudges viz. the Chief Justice Wyndham and Atkyns Iustices Iudgment was given for the Defendant That this was no Escape and that though the Party had admitted the Iurisdiction by his Plea of non est factum below yet that could not give the Court any Iurisdiction which had not any originally in the Cause and the Case of * Roll. Abt. tit Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point where the Plaintiff in an Action brought against an Officer declared in Hull upon a Bond made at Hallifax and had Iudgment and Execution and the Defendant escaped And in an Action brought for this Escape the Declaration was held ill because it did not alledge the Bond to be made infra Jurisdictionem Curiae Ellis Iustice of a contrary Opinion in omnibus Sams versus Dangerfield THE Plaintiff being Collector of the Hearth-Mony Departure brought an Action of Debt upon a Bond against his Sub-Collector conditioned to pay such Sums as he should receive within 14 days after receipt at such a place in the City of Worcester as the Plaintiff should appoint The Defendant pleads payment The Plaintiff assigns a breach in non-payment of such a Sum received at a place by him appointed The Defendant rejoyns that the Plaintiff appointed no place and the Plaintiff demurr'd And after Argument for the Plaintiff by Jones Serjeant this was adjudged a departure because the Defendant ought to have pleaded first that he had paid all but such a Sum for which as yet the Plaintiff had appointed no place of payment and Iudgment was given accordingly Smith versus Hall IN an Action brought against the Defendant for false Imprisonment he justified by virtue of a Latitat False Imprisonment doth not lye but an Action on the Case against the Sheriff for refusing sufficient Bail which the Plaintiff agreed in his Replication but farther set forth that after the Arrest and before the Return of the Writ he tendered sufficient Bail which the Defendant refused and Issue was joyned upon the tender which was found for the Plaintiff Newdigate Serjeant moved in Arrest of Iudgment 1. Though it was an Offence in the Defendant who was the Sheriff's Bayliff to refuse good Bail when tendred yet 't is not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute neither will this Offence make him a Trespasser ab initio because the taking was by lawfull Process Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival The Defendant as Bayliff to the Sheriff is not the proper Officer to

special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the

damages which he sustained before the Abatement And thereupon Iudgment was given for the Plaintiff Walwyn versus Awberry and others Tythes of a Rectory shall not be sequestred for Repairs of the Chancel Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat and four Loads of Rye c. The Defendants justifie for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair and that the Bishop of Hereford after Monition first given to the Plaintiff had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel and that the Defendants were Churchwardens of the Parish and that the particulars mentioned in the Declaration were Tythes belonging to the Plaintiff as Rector aforesaid and that by vertue of the said Commission they took the same for repairing of the said Chancel and that for these Tythes so taken they had accounted to the Bishop To this the Plaintiff demurred The Question was whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop and those who argued in the negative for the Plaintiff could not deny but that Church Reparations did belong to the Ecclesiastical Courts and that as often as Prohibitions have been prayed to that Iurisdiction Consultations have been as often granted notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed and the reason is because those Courts have original Iurisdiction of the Matter It was admitted also that Parishioners are bound to repair the Church and the Rector the Chappel and in this respect of their Lands and therefore if a Man hath Lands in one Town and dwell in another he shall be contributory to the Reparation of that Church where his Lands are and not where he inhabits And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees but then it must be understood that this was no real Duty incumbent upon them but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions but always proceeded by Ecclesiastical Censures as Excommunication of the Party refusing which is the proper remedy But in case of an Appropriation in the Hands of an Ecclesiastical Corporation as Dean and Chapter c. there if a Refusal be to contribute to the Repairs the Ordinary may sequester and the reason is because a Corporation cannot be excommunicated The Ordinary may also sequester in things of Ecclesiastical Cognizance as if the King do not present so he may take the Profits within the six Months that the Patron hath to present and apply them to the Pastor of the Church by him recommended because the Ordinary hath a provisional Superintendency of the Church and there is a necessity that the Cure should be supplyed until the Patron doth present and this is a kind of Sequestration But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons though he was lawfully entituled to them for a particular time and purpose For by the Statute of 13 Eliz. cap. 20. 't is Enacted That if a Parson make a Lease of his Living for a longer time than he is resident upon it that such Lease shall be void and he shall for the same lose one years Profits of his Benefice to be distributed by the Ordinary amongst the Poor of the Parish Now he had no Remedy to recover the Years Profits but in the Ecclesiastical Court he could not sequester and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute à fortiori he cannot in a Case exempted as this is from his Iurisdiction But admitting a Sequestration might go then this inconveniency would follow that if other Lands should be sequestred for the same purpose the former Sequestration could not be pleaded to discharge them because the interest is not bound thereby no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law but the same shall not charge the Land but the person in respect of his Land so that 't is he that is chargeable and may be excommunicated in case of refusal to contribute but his Lands cannot be sequestred because 't is not the business of the Ordinary to meddle with the temporal possessions of Lay-men but to proceed against them by Ecclesiastical Censures and the Parishioners Lands may be as well sequestred for the Repairs of the Church as the Lands of the Impropriator for the Repairs of the Chappel for which Reasons it was held that a Sequestration would not lie Ex parte Def. But on the other side it was said that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration which the Ordinary had power to grant in case of refusal and that his Authority in many Cases was not abridged by the Statute The Case of * 2 Cro. 518. Parry and Banks was cited where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph and a Vicaridge endowed which the Bishop dissolved in the 24th Year of Queen Elizabeth and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation and it was resolved that after the Statute of Dissolutions which made Parsonages Lay Fees the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand but being in that Case in the Hands of the Dean he might The Rector is to repair the Chancel because of the Profits of the Glebe which is therefore Onus reale impositum rebus personis and of that Opinion was Johannes de Atkin who wrote 100 years before Lynwood where in fol. 56. he saith That if the Chancel was out of repair it affected the Glebe And that the Constitution of the Canon Law is such will not be denied Vaugh. 327. and if so Canons being allowed are by use become parcel of the Common Law and are as much the Law of the Kingdom as an Act of Parliament for what is Law doth not suscipere magis aut minus Several Cases were put where the Bishop doth intermeddle with the

gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared