Gould against Gapper, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1804 |
| Date | 07 June 1804 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 1102
IN THE COURT OF KING'S BENCH.
Referred to, Mackonochine v. Penzance, 1881, 6 App. Cas. 445; R. v. Tristram, [1902], 1 K. B. 829.
[345] gould against gapper, Clerk (a). Thursday, June 7tb, 1804. Where the Spiritual Court incidentally determines any matter of common law cognizance, such as the construction of an Act of Parliament, otherwise than the common law requires, prohibition lies after sentence; altho' the objection do not appear upon the face of the libel, but is collected from the whole of the proceedings below. [Referred to, Mackonochie v. Penzance, 1881, 6 App. Cas. 445; B. v. Tristram, [1902], 1 K. B. 829.] In prohibition the plaintiff declared, that whereas the trial of the bounds of parishes and of prescriptions and customs has immemorially been by the common law^ and not by the ecclesiastical law; and that during the year 1797 and the two following years the plaintiff had occupied lands which were lately parts of a tract of waste land called King's Sedgemoor in the county of Somerset, and which had been lately inclosed allotted and divided under an Act of the 31 Geo. 3; and which lands so occupied by the plaintiff until the allotting and dividing, &c. were not within the parish of High Ham in the said county, or the titheable places thereof, but was extra-parochial. And that there is a saving in that Act of the rights of the Crown. And that within the parish of High Ham there has been immemorially a modus of 2d. an acre for all (a) Vide the report of this case on the motion for the prohibition, 3 East, 472. 5 EAST, 346. GOULD V. GAPPER 1103 meadow land, in lieu of tithe of hay and agistment, and of l|d. for every milch cow depastured in such land, in lieu of tithe of milk and agistment, and of Id. for every heifer depastured on the same, in lieu of agistment tithe; yet the defendant, rector of the parish of High Ham, to aggrieve the plaintiff and disinherit the Crown, and to bring the cognizance of a plea which belongs to the Crown to another sort of trial in the Consistorial Court of the Archdeaconry of Wells, exhibited his libel in the said Court against the plaintiff, alleging that in the year 1797 and the two following years the defendant was rector of High Ham and the proprietor of the tithes, and that the plaintiff during that time occupied the said meadow lands in the [346] said parish, and mowed and received the hay therefrom, and depastured unprofitable cattle there, and ploughed the said other lands there and sowed them with corn, for which tithe was due to the defendant. That the plaintiff pleaded in his defence to the libel the matters'above suggested, and offered to prove the same by evidence. That the defendant by way of personal answer denied that the said lands were extra-parochial, because the proprietors of lands in the adjoining parishes, of which High Ham was one, claimed rights of common on King's Sedgemoor, as appurtenant to their respective tenements, and that King's Sedgemoor was parcel of the said several parishes adjoining, though the precise bounds of each were not certainly known. And further the defendant alleged, that King's Sedgemoor was not mentioned in the said Act as extra-parochial, but that the same was therein stated to be in, near, or adjoining to the several parishes mentioned, of which High Ham was one; and that the commissioners under the said Act allotted"King's Sedgemoor amongst the several parishes mentioned, which had rights of common thereon ; and that they allotted part of King's Sedgemoor, adjoining to the old inclosures of High Ham, to the said parish, for the rights of common appurtenant to certain tenements in High Ham, and other part of King's Sedgemoor they allotted to Low Ham, alleged to be a hamlet of High Ham. That the defendant by his said answer further alleged, that by an Act of the 37 Geo. 3, the parcels of meadow and land in question in the occupation of the plaintiff were allotted in respect of some of the rights of common appurtenant to some of the tenements in the parish of High Ham and hamlet of Low Ham, and were parcels of the allotments made under the last-mentioned Acts; and that the same were within the bounds of the [347] parish of High Ham. And the defendant further alleged, that by the said Act secondly above mentioned it was enacted, that all the lands which should be allotted by virtue thereof should be held under and subject to the same charges, tenures, customs, suits, services, and incumbrances as the tenements in respect of which such allotments were made would have been subject to if such Act had not passed. And the defendant further submitted by his answer, that under the stat. 2 & 3 Ed. 6, the rector of High Ham was entitled to the tithe of increase of cattle depastured in the said tract of pasture land prior to the passing of the first-mentioned Act; and that the defendant denied the modus. Yet notwithstanding the matters alleged, the defendant had caused the plaintiff to be convicted of- the premises, and the plaintiff had been condemned by the Spiritual Court in a large sum to be paid to the defendant in lieu of tithe, &c.; and the defendant still prosecutes his suit in the Ecclesiastical Court, &c. To this the defendant demurred generally, and the plaintiff joined in demurrer. Dampier, in support of the demurrer, contended, 1st, that it was too late to call for a prohibition after sentence on the ground that the Ecclesiastical Court had tried the boundary of the parish, or the existence of a modus. For though these are questions properly triable by a jury, and the plaintiff might before sentence'have come here and stopped the trial" in the Ecclesiastical Court; yet as that Court has jurisdiction of such questions incidentally, (for the question of parochial boundary may arise in every cause of substraction of tithe,) and the objection goes only to the defect of trial, the plaintiff, after submitting to the trial there, and taking his chance of a decision in [348] his favour, cannot object to it. Full v. Hutchins (a), Argyle v. Hunt (b), Bannister v. Hunt (c), Blaquiere v. HavMns (d), Symes v. Symes (e), Buggin v. Bennett (f), Offley v. Whitehall (g), and 2 Roll. Abr. 209, pi. 2. All the cases shew, that where the Ecclesiastical Court has original jurisdiction of the cause (as here it (a) Cowp. 422. (5) 1 Stra. 187. (c) 10 Mod. 12. ' (d) Dougl. 378, octavo edit. () 2 Burr. 813. (/) 4 Burr. 2035. (g) Bunb. 17. 1104 GOULD V, GAPPER 5 EAST, 349, must be admitted to -have had), and nothing appears upon the face of the libel to oust it, prohibition does not lie after sentence merely for defect of trial. This distinguishes the present ease from F"anacre v. Spleen (K), where the objection appeared on the face of the libel; as it also did in Paxton v. Knight (i), where the party had libelled upon a prescription over which the Ecclesiastical Court had no jurisdiction. The authority of that ease, however, is opposed to the case in 1 Ld. Kay. 435. And in Dutens v. Robson(k), though the party libelled upon a modus, yet that being admitted, a prohibition was denied. And by Argyle v. Hunt (I), the party applying for a prohibition shall not, after sentence at least, allege matter dehors the libel to shew that the Court below had not jurisdiction. But, secondly, supposing prohibition will in any case lie after sentence in a matter originally within the jurisdiction of the Ecclesiastical Court, the question will be, whether the construction of Acts of Parliament belong in all cases to the Temporal Courts exclusively ; so that if the Ecclesiastical or Admiralty Courts construe them otherwise than the Temporal Courts would have done, prohibition shall go even after sentence; or whether those Courts have not jurisdiction to construe Acts incidentally coming under their cognizance in matters [349] within their jurisdiction, whose decision thereon, however erroneous, can only be rectified on appeal. It may be admitted, that wherever the rule of the ecclesiastical law is directly different from that of the common law, and must necessarily lead to a different result, the latter is entitled to the preference; and prohibition may go even after sentence; as where the Ecclesiastical Court requires proof by two witnesses of matters proveable by one at common law : though prohibitions even in this case have been denied (a)1. Or where the question arises on the meaning of the words " next of kin." 2 .Eol. Abr. 303, pi. 28 : or on the extent of the word month, in matters not spiritual. In these cases the construction of the respective Courts must necessarily be different. So prohibition will go at any time if an Inferior Court misconstrue an Act regulating its own jurisdiction. 12 Rep. 42. And this was the ground of the doctrine laid down in Brymer v. Atkins (b)1. There the Prize Court had put a construction on the stat. 16 Geo. 3, c. 5, s. 14, which the Court of C. B. considered that the Prize Court had authority to do, and did not prohibit it. And yet if the construction put by Inferior Courts on Acts of Parliament be not binding any further than as it coincides with the judgment of the Courts at Westminster, it is in effect to deny their jurisdiction ; for an erroneous judgment upon a matter within the jurisdiction of a Court can only be rectified on appeal. But if the matter were eoram non judice, the Prize Court could have had no authority to put any construction on the statute, and it must have been prohibited in the first instance. The Spiritual Court may have jurisdiction of matters coming incidentally in question there where it [350] would not have had original jurisdiction over such matters. Eeg. 57 b., 58. So it may judge of a statute. 2 Rol. Abr. 307, pi. 16. Pen's case, M. 8 Jac. ib. 308, pi. 22. Lwy v. Lucy, H. 14 Car. There a parson sued for tithes in the Spiritual Court ^against one who pleaded a lease for years made to him by the parson; to which the...
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