Croucher v Collins
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 145
COURT OF KING'S BENCH
[136] 22. ckouoher versus collins. Mich. 19 Car. II. Eegis, Eol. 382. Same precedent. 2 Mod. Ent. 367. Southampton, to wit.-Be it remembered, that heretofore, to wib, in the term of the Holy Trinity last past, before our lord the King at Westminster, came Henry Croucher, of the pariah of Corhampton, in the county aforesaid, Esquire, who sues in this behalf as well for our lord the King as for himself, by Charles Ballett, his attorney, and brought here into the Court of our said lord the King then there, his certain bill against William Collins, Esquire, proprietor of the Rectory of the parish-church of Corhampton aforesaid, as he asserts, in the custody of the marshal, &c. of a plea o£ trespass and contempt; and there are pledges of prosecuting, to wit, John Doe and Richard Roe ; which said bill follows in these words, that is to say : Southampton, to wit, Henry Croucher, of the parish of Corharnpton, in the county aforesaid, Esquire, who sues in this behalf as well for our lord the King as for himself, complains of William Collins, Esquire, proprietor of the rectory of the parish-church of Corhampton aforesaid, as he asserts, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea, wherefore he prosecuted a plea in the Court-Christian, after His said Majesty's prohibition (1) to the contrary thereof first (1) This action is, in notion of law, founded upon an attachment against the defendant, for a contempt in proceeding after a writ of prohibition has been served upon him. But it is a mere fiction, used for the purpose of trying with greater certainty, whether the Inferior Court ought to proceed further in the suit. The defendant is not in fact served with a writ of prohibition, and therefore has not in fact incurred any contempt for a disobedience of it. But this matter is alleged for form's sake, to entitle the plaintiff to demand damages of the defendant, and thereby to give, the action the requisites of a suit. The supposed contempt however is the reason of its being a gui tarn action ; (a) because it is an established rule, that in every case of a contempt to the King, the action must be as well to answer the King as the party suing. Moor, 64. This fiction seems to have been derived from the ancient practice in prohibition. For it is said, that formerly the Courts of Common Law could not grant a prohibition in any case, unless the party were in contempt for proceeding after he was served with an original writ of prohibition out of Chancery, and an alias (a) The action is not now gui tarn. See 1 W. 4, c. 21, post, 136, note (c). 146 CROUCHER V. COLLINS 1WMS. SA0ND. 136. directed and delivered to him, for this, to wit, that whereas within the said parish of Corhampton there are, and from time whereof the memory of man is not to the contrary there have been, as well a rector and vicar, as a rectory and vicarage, of the and pluries directed to him. In that ease an attachment for prohibition issued against him returnable in the K. B. or C. B. (see the form, Reg. 33 b.), whereon the party, who aued out the writ of prohibition, might declare to recover the damages he had sustained by the defendant's obstinacy. 12 Eep. 58, Langdale's case. Sir Edward Coke in the same report says, the attachment is only a judicial writ; but this appears to be a mistake; it seems certain that it is an original writ. It begins as original writs do, with "si A. B. fecerit te securwm, &c. time pone, &c." Reg. 35 a. 1 B. & P. 121, Jefferson v. Bishop of Durham. But the modern practice is to file a suggestion (b) in Court, stating the nature of the case and the proceedings in the Court below, and concluding with a prayer for a prohibition. See the Books of Entries, tit. Prohibition, passim. If the suggestion be to stay a suit in the Ecclesiastical Court for substraction of tithes or other ecclesiastical dues, it must be proved by two witnesses by virtue of stat. 2 & 3 Edw. 6, c. 13, s. 14. But this statute only extends to tithes payable de jure, and not to such as are against common right. 2 Inst. 662. So it is said, that proof is not necessary where the suggestion is in the negative; as that the parsonage is not impropriate ; or that the land does not lie in the parish ; or that the parson is not inducted ; for the quaint reason that a negative cannot be proved. Ibid. So where the suggestion is that the parson has made a contract or agreement for his tithes, no proof is necessary. Yelv. 102, Tanner v. Small. Ibid, 119, Cobb. v. Hunt. However, when the party must prove the suggestion, an entry of the proof which he has made is then drawn out and entered of record. See the form Cromp. Prac. 281, 2d ed. Upon this suggestion, the Court grants a rule to shew cause why a prohibition should not issue, which is afterwards made absolute or discharged, according to the circumstances of the case. If it be a nice or doubtful case, the Court will make the rule absolute, and direct the party applying to declare, which he does by serving the other side with the rule, without taking out a writ, and then delivering his declaration. Bull. N. P. 218. But as the direction to declare is in favour of the defendant, he may afterwards submit and refuse the declaration, and the Court will on his application stay the proceedings without costs. 2 Str. 1149, Gegge v. Jones. So when the Court is of opinion that there should be a prohibition, the party against whom it is prayed has in a manner a right to insist that the plaintiff shall declare; though the person who applies for the prohibition has no such right, when the Court is of opinion against the prohibition. 1 Black. Rep. 81, Rex v. Bishop of Ely. S. C. 1 Burr. 198. If a verdict be for the plaintiff upon an issue joined on this declaration, the jury only give nominal damages. Bull. N. P. 219. By stat. 8 & 9 W. 3, c. 11, in suits upon prohibitions, the plaintiff obtaining judgment, or an award of execution after plea pleaded or demurrer, shall recover his costs; and if the plaintiff shall be nonsuit or discontinue, or a verdict pass against him, the defendant shall recover his costs, (c) (J) This is no longer necessary. See 1 W. 4, c. 21, post, 136, note (c). (c) [Most important alterations in the subjects of the above notes have been made by stat. 1 W. 4, e. 21, which, after reciting that the filing a suggestion on record on application for a writ of prohibition is productive of unnecessary expence, and that the allegation of contempt in a declaration in prohibition filed before writ issued is an unnecessary form, and that it is expedient to make some better provision for payment of costs in cases of prohibition, enacts " that it shall not be necessary to file a suggestion on any application for a writ of prohibition, but such application may be made on affidavits only. And in case the party applying shall be directed to declare in prohibition before 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...
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