assumed that the custom exists and is not to be disputed. But the custom set out in the plea is not the custom which the declaration shews to be in dispute in the Ecclesiastical Court: the plea omits the allegation in the libel that, according to the custom, Foston "contributed to" "all expenses and charges necessarily laid out and expended by the churchwardens" "of Long Bennington." The custom is entire: if not proved as alleged it is not proved at all. The defendant in prohibition seeks the whole rate: if there be any part to which he is not entitled, he must fail altogether; Pense v. Prouse (a). And the plea, besides, leaves unnoticed the allegation as to Foston being a part of the parish of Long Bennington, which is also disputed in the Ecclesiastical Court. Further, the custom, as alleged in the libel, is bad. Many expenses will fall upon the churchwardens of a parish which are of recent origin: for instance, expenses attending registration under stat. 52 G. 3. c. 146. ss. 2, 5. No custom could apply to these (b). But an objection is made to the declaration. It will be contended that it does not appear that the facts were in issue in the Ecclesiastical Court, or that the Court is proceeding to try them. This objection was made in Byerley v. Windus (c), where the cause had, in the Ecclesiastical Court, not gone beyond the personal answer of the plaintiff in prohibition. But the Court said (d): "When once it appears by the proceedings in the Spiritual Court, that the prescription, instead of being admitted, is disputed, and that the parties are in (a) 1 Ld. Raym. 59. (b) See Rex v. St. Bartholomew the Great, 2 B. & Ad. 506. (c) 5 B. & C. 1. (d) 5 B. & C. 21, 23. See p. 24, note (a). progress to bring its existence to trial, the courts of Queen's Bench. 1846. DOLEY V. common law are not bound to wait till the parties have incurred the expense of putting it in issue, but the prohibition is grantable at once: " and further: "According REMINGTON. to the usage and course of proceeding in the Court Christian, neither the personal answer nor plea ever put in issue any of the facts in a libel. They are put in issue or admitted by a previous step, a negative or an affirmative issue: a negative issue denying what the libel states, an affirmative issue admitting it. A personal answer is one of the consequents upon a negative issue, and is required, at the instance of the plaintiff below, to supply him with proof of what is previously in question by the negative issue. A plea is a statement of new matter." Here a negative issue has been given in; the libel admitted to proof; and then the personal answer has been made and then the plaintiff in prohibition has articulately propounded certain matters by way of proof. The matters disputed, namely, the custom and parochiality, are essential to the case made in the Spiritual Court by the defendants in prohibition: until they are determined, the Spiritual Court can do nothing. In The Earl of Beauchamp v. Turner (a) this Court refused a prohibition because the matter which the Spiritual Court could not try was not in issue; and Patteson J. said: "In order to raise an issue on the lease, it should be stated in a responsive allegation." Here the question is so raised. Cowling, contrà. The declaration is bad. The allegations of the libel are independent: the second alone Volume IX. 1846. DOLBY REMINGTON. relates to the custom. It is suggested that the custom is itself bad: but that would not entitle the plaintiff here to a prohibition, because it does not yet appear that the Spiritual Court will hold the custom to be good. In Boothly v. Baily (a) the Court, on the ground of the prescription being bad, refused the prohibition. The prohibition is demanded for defect, not of jurisdiction, but of trial. If the fact of the custom be not in dispute, the prohibition cannot go; Byerley v. Windus (b). The plaintiff in prohibition relies on the negative issue, as traversing the custom in toto. It does so: but afterwards, in the personal answer, the custom is divided, a part being admitted and a part denied: and after that the plaintiff in prohibition articulately propounds a denial of the custom as it is asserted in the plea on the present record. The personal answer corresponds rather with an answer in Chancery than a plea in a common law court. The responsive allegation, counter allegation, &c., correspond to the plea, replication, &c., in our courts; 3 Burn's Ecc. L. 189, 190. (9th ed.), tit. Practice, I. 3.; Ib. 298., tit. Practice, II. 5. The question at issue will therefore appear from the latest step. Now here the pleadings in the Spiritual Court finally leave only a part of the custom in issue. There is no averment, in the declaration, that the Spiritual Court is about to proceed to trial of the fact. If this case had occurred before stat. 1 W. 4. c. 21., a contempt must have been alleged, as in 6 Wentw. Pl. 249–255. By sect. 1 of the statute, it is no longer necessary to aver a contempt; but the prohibition is not made grantable in any case where it was not grantable previously. Now (a) Hob. 69 (5th ed.). (b) 5 B. & C. 1. 21. 1846. here nothing appears indicating an encroachment on Queen's Bench. the common law courts. In Byerley v. Windus (a), the parties were clearly proceeding to trial: there were no subsequent pleadings, as here. But, if the declaration be good, it is answered by the plea. If the custom be found, upon trial at law, to exist in fact, a consultation will go; Scot v. Wall (b), Rogers's Ecc. L. 733, tit. Prohibition. The plea alleges that a part, at least, of the custom alleged in the libel does exist. If that be so found, on trial, the Spiritual Court may proceed, to that extent. The formal conclusion of a libel is "the party proponent not obliging himself to prove all and singular the premises, nor to the burthen of a superfluous proof, against which he protests and prays, that so far as he shall prove in the premises he shall obtain in his petition, the benefit of the law being always preserved," &c.; 3 Burn. Ecc. L. 271, tit. Practice, II. 3. The prayer of the declaration is, that the Spiritual Court may be prohibited "further" to "hold plea:" whereas, if the matter in the plea be true (which the demurrer admits), the Court ought to go on to the extent of the custom stated. The prohibition, therefore, as prayed for, cannot go. [Patteson J. The custom alleged in the libel is entire: there is nothing to shew that the Spiritual Court will proceed as to a part only of such custom. And, if your plea be true in fact, we cannot order the Ecclesiastical Court to go on with the trial of matters which they have no power to try.] They would be directed to go on pro tanto only. In Hallack v. The University of Cambridge (c) this Court held that a prohibition could not (a) 5 B. & C. 1. 22. (c) 1 Q. B. 593. (b) Hob. 247 (ed. 5.). DOLBY V. REMINGTON. Volume IX. go, where the Spiritual Court was petitioned for several 1846. DOLBY V. REMINGTON. matters, some of which it might grant. That case, so far, overrules Pense v. Prouse (a). Peacock, in reply. The libel seeks to make the parish of Foston, not an individual, pay a specified proportion of a certain rate, on the ground of a custom alleged in that libel. If any part of that custom be untruly alleged, the suit in the Spiritual Court fails entirely, because then no such custom exists; Morewood v. Wood (b), Wilson v. Page (c). The plaintiff in prohibition denies the custom totally, and then, in his personal answer, says that a part is untruly alleged. There is, therefore, an issue on a question which, will determine the event of the suit, and which question the Spiritual Court cannot try. It is no answer to this, that a part of the custom, that is, in legal effect, a different custom, does exist. Besides, the personal answer does not narrow the question: the whole custom was previously in issue: and then the personal answer is for the purpose of shewing how the denial is to be supported; Byerley v. Windus (d). So the matter afterwards articulately propounded does not narrow the issue. [Patteson J. Is it clear that the Spiritual Court will hold, as we do, that a custom is entire?] If they hold otherwise, that is a ground for prohibition. The prohibition goes whenever the fact to be tried is one which the Ecclesiastical Courts, from their rules not being those of the common law, cannot try; Com. Dig. Prohibition (F 14.), citing Foster v. Hide (e). The (a) 1 Ld. Raym. 59. (e) 1 Rol. R. 332. (b) 4 T. R. 157. |