Evidence in the Bishop's Court be fore the the certifi cate. unques accouple had been put in, took the writ from the Bishop's secretary, through a suspicion that a certificate was about to issue to his prejudice, and the defendant had another writ without motion in Court, on which the Bishop certified in favour of the plea, the document was holden void for this irregularity, and another writ awarded. (a) The learned writer on Dower, who seems to have investigated this subject with great attention, expresses himself very doubtfully regarding the evidence on which granting of the Bishop should act before he grants his certificate. It may be gathered, however, that regular testimony should be tendered on the inquisition, and that it should be independent of the admissions of either of the parties. In cases within the marriage act, Lord Mansfield has intimated that the solemnities of that statute should be adhered to. (b) And where that act is not applicable, with respect to Jews or Quakers, for instance, it is probable that circumstantial evidence may properly be received, although no direct authority may have arisen out of proceedings which are so rare. (c) Exceptions. The two exceptions in which this mode of trial in real actions is not available, are where the marriage has taken place in a foreign country, or in Scotland, where there is not any episcopal jurisdiction. (d) And it appears from Hardres, that during the Commonwealth the mode of trial here was per pais, since the hierarchy was at that time abolished. (e) (a) Sir Tho. Jones, 38. Smith v. Smith. (c) See Park on Dower, p. 13. (e) Hardr. 65. ficate is The course, as we have already seen, is to apply by This certimotion to the Court, that the writ for obtaining this never certificate may be awarded, and as the document itself pleaded. concludes the right of the party, it is clearly unnecessary to plead it at any time, for in itself it is the end and decision of the proceeding. in cases of It is no matter of surprise that the certificate in cases Certificates of bastardy should have fallen into disuse at the same bastardy. time with the discontinuance of real actions; and on this account it may be sufficient to observe, that the certificate was the mode of trial only upon pleas of general bastardy, and that it went to the Bishop of the diocese in which the lands lay, but that special bastardy was, on the contrary, tried per pais, since it was not by any means probable that a certificate in this latter case would proceed upon the true foundation, which was, that the birth in wedlock should be intended to have taken place in the county where the lands lay. (a) SECT. III. Of the Bishop's Certificate under 54 G. 3. c. 54. in Cases of Non-residence. It is well known, that in consequence of certain derelictions on the part of some of the established clergy with regard to residence on their respective cures, a (a) 2 H. Bl. 156, 157. 12 Rep. 67. statute was passed (a) inflicting certain penalties upon offenders who had not procured licences from their diocesans for such neglect of residence. Many individuals, however, who had good cause of absence, had omitted to avail themselves of the protection which their Bishop could have afforded them, and were of course exposed to the punishments of the act. It happened, that a certain person, who had filled an official situation in some of the dioceses, was disposed, in conjunction with another, to take advantage of these accidental, or, at the most, venial errors; and in pursuance of this scheme he instituted prosecutions against several clergymen who were, neverthless, proper objects for licences. This inconvenience and injustice being felt and acknowledged by the legislature, the statute, which introduces the certificate now before us, was passed. By 54 G. 3. c. 54. s. 1. it is enacted, that all licences for the nonresidence of any spiritual persons, which shall have been granted, or which shall be granted on or before the 1st day of July, 1814, by any Archbishop or Bishop, under and subject to the provisions of the 43 G. 3. c. 84., and upon which the Archbishop or Bishop granting the same shall certify, that they verily believe, that the causes of granting such licences really and truly have existed for many periods antecedent to the granting thereof, such causes being specified in such certificates respectively, and that the Archbishop or Bishop giving such certificates would have granted the licences to which they refer, from the periods specified in such certificates, if proper application had or could have been made to him (a) 43 G. 3. c. 84. in due form for the same, and that the conditions, if any, upon which such licence would have been granted, have been performed and complied with; and also, all certificates given by any Archbishop or Bishop to any spiritual persons of their respective dioceses, which shall certify that the Archbishop or Bishop giving such certificate would have granted licences for the non-residence of such spiritual persons for and during the periods specified in such certificates, for causes of a temporary nature, to be also specified in such certificates, and which they are satisfied and verily believe did really and truly exist, and which may have ceased, if proper application had or could have been made to him in due time for the same, and that the conditions, if any, upon which such licences would have been granted have been performed and complied with; shall be deemed and taken to be good and valid as licences under the said act of 43 G. 3., for the purpose of exempting such persons respectively from any pecuniary penalties and forfeitures for non-residence, from, and for, and during the periods specified in such certificates respectively, as fully and effectually as if licences had been duly granted at and for such periods, and had been duly registered, and all the provisions of the said act of 43 G. 3. in relation thereto duly observed. The second section prescribes the mode of registering the licence and certificate. By s. 4. a party against whom any suit for penalties of this nature had been brought before the 6th of Dec. 1813, may apply to the Court, or to a Judge, in order that the proceedings may be discontinued, upon payment of the costs incurred up to the time of such application being made, such costs being taxed as between attorney and client, and such Court or Judge is authorized, upon such ap C plication, and proof by affidavit of the granting and registering of any licence and certificate, or of the notification of any exemption, and that sufficient notice thereof, together with a copy of the licence, certificate, or notification, as the case may be, has been given to the plaintiff or plaintiffs, or his or their attorney, and of the application, and of the ground upon which the same is made, to make such order of discontinuance. The 43 G. 3. c. 84. has been repealed, as we shall see presently, by 57 G. 3. c. 99. s. 1., but previous to that repeal, it had been fruitlessly contended that 54 G. 3. c. 54. had cancelled its provisions; so that where the directions of the former act had not been complied with, the remedy proposed by the legislature was holden not to be applicable. Thus, where the defendant was sued for non-residence on the livings of Glympton and Oddington, it was moved, that the action should be discontinued, on the ground, that the Bishop of Oxford, in whose diocese these places were situate, had granted the defendant a licence for non-residence, assigning as a reason the defendant's having obtained a similar licence from the Bishop of Exeter in respect of a royal donation within that diocese, there being no parsonage-house there, and his having performed the duties of that donation regularly. But the Court considered this as a licence for a special purpose, and so within the 20th section of 43 G. 3. c. 84., which requires such a licence to be confirmed by the Archbishop, and as that ceremony had not been observed on this occasion, they discharged the defendant's rule. (a) With respect, however, to (a) 6 Taunt. 52. Wright v. Flamank, Clerk. 1 Marsh. 368. S. C. |