The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Langdale’s Case.

Prohibition.

(1608) Michaelmas Term, 6 James I.

In the Court of Common Pleas. First Published in the Reports, volume 12, page 58.

Ed.: This is one of several notes in this part of the Reports discussing the travails of Marmaduke Langdale, whose ex-wife, Joan, sued him before the High Commission for failing to pay alimony. He sought a prohibition from Common Pleas even though he had no suit then pending before it. The court awarded the prohibition anyway. These notes detail the forms and rationale for prohibitions to the ecclesiastical court.

Prohibition.In the case of Langdale in this very Term, in a Prohibition to the high Commissioners, two points were moved; The one, if a Feme-covert1 may sue for Alimony before the high Commissioners. The other, if the Court of Common Pleas may grant a Prohibition, when no Plea is pendent in the Common Pleas: As in this case no Plea can there depend betwixt Husband and Wife. And forasmuch as this concerns the Jurisdiction of the Court, this was first of all debated, divers objections were made against it.

1. That this Court hath not Jurisdiction to hold Plea without an Original, unlesse it be by priviledge of an Attorney, Officer, or Clerk of the Court, unlesse that it be in an especiall case, viz. when there is an action |[59] there depending for the same cause; then it was agreed that a Prohibition shall be awarded out of the Common Pleas, in respect that the Court hath an action there depending for the same cause, and so being possessed of the cause, it gave the Court Jurisdiction to award Prohibition out of the same Court: And for that the Prohibition ought to recite, Quod cum tale placitum pendet, &c.2 and the Defendant Pendente placito praedicto,3 hath pursued in Court Christian: And with this accords, as hath been said, F. N. B. 43 g. where it is said, that if a man be sued in the Common Pleas for a Trespasse, if the Plaintiff also sue in Court Christian for the same cause, the Defendant may shew this in the Common Pleas, and shall have a Prohibition then directed to the Judges: And so alwaies when the matter is pendent in the Common Pleas, if suit be for the same cause in Court Christian, he shall have a Prohibition: But a man shall have a Prohibition out of the Chancery, or Kings Bench upon his surmise, surmising that he is sued in Court Christian for a temporall cause; And 2 Edw. 4. 11. 6. was cited, where it is held that Ne admittas,4 which is a Prohibition, doth not lye unlesse that the Quare impedit5 be pendent.

And it was answered and resolved by Coke chief Justice, Warburton, Daniel, and Foster, Justices, that the Common Pleas may award a Prohibition, although that no Suit be there pendent, for this, that the Common Pleas is the principall Court of Common Law for Common Pleas: For it belongs to the Jurisdiction of the Common Pleas to determine all Common Pleas.

Quia communia placita non sequantur Curiam nostram,6 as it is enacted by Magna Charta, which hath thirty times been confirmed by other acts of Parliament: Then if the Ecclesiasticall Judges incroach upon the Jurisdiction of the Common Pleas to hold Plea of any thing against the Common Law of the Land, or of any thing triable by the Law, there the Principle Court of Common Law shall grant a Prohibition, and that without Originall Writ, for divers causes.

1. For that no Originall Writ which issues out of Chancery is retornable or into the Kings Bench or Common Pleas, but is directed to Judge, or party, or both, and is not retornable: But it appears in the Register, that if the Prohibition be contemned, then the Chancellor may award an Attachment to punish this contempt, retornable or in the Common Pleas, or in the Kings Bench: But an Attachment in such case is but as a Judiciall Writ; And this appears by the Register, fol. 33. Andif the Attachmentinsuchcaseberetornable into the Common Pleas, &c. the Plaintiff in the Declaration shall make mention of an Originall Writ in the Chancery, and of the contempt, &c. as appears in a notable President.

2. There was great reason that no Originall Writ of Prohibition shall be returnable, for the Common Law was a Prohibition in it self, and he who did incroach upon the Jurisdiction of it incurred a contempt: And with this agrees our Books, as 9 Hen. 6. 56. in Attachment upon a Prohibition in the Common Pleas, William Babington then chief Justice of the Bench, concerning a Suit in Court Christian of tythes of grosse Trees: And there Fulthorp the Serjeant took exception to the Count, for this, that the Plaintiff in his Count did not declare upon any Statute nor that any Prohibition, Scil. Original Writ was directed unto him: And there it is held that the Statute of 45 Edw. 3. and the Common Law also was a Prohibition in it self: And thus the rule of the Book, 19 Hen. 6. 54. Prohibition, for this, that one had sued in a Court Baron against the Common Law; And there Ascue said, the Statute is a Prohibition in it self, so it is held |[60] in 8 Ric. 2. title Attachment sur Prohibition, 15. Note, by Clopton in the Common Pleas, who then was a Serjeant, that if a Plea be held in Court Christian, which belongs to the Court of the King, without any Prohibition in facto, the Plaintiff shall have an Attachment upon a Prohibition, for this, that the Law is a Prohibition in it self, for by the Law they ought to hold no Plea, but that which doth belong to their Jurisdiction, Quod fuit concessum, &c.7 Register 77. Estrepment. Praecipimus quod inhibeas, &c.8 F. N. B. 259. Regist. 112. Supersedeas9 to a Court Baron, for holding plea Vi et armis, or above forty shillings: And F. N. B. a Writ of Consultation is as much an originall as a Prohibition, yet the Common Pleashathgrantedinfinite Consultations, ergo10 Prohibitions, Qui habet jurisdictionem absolvendi, habet jurisdictionem ligandi:11 And one Writ is as Originall as the other.

Note, there are many severall Writs of expresse Prohibitions, Scil. Prohibitions with this word Prohibemus vobis,12 and Letters in nature of Prohibitions, as Supersedeas, by which it is commanded, Quod supersed in placito praedicto:13 And Injunction is a Prohibition, and also in its nature, for the words are an Injunction to the party, not to the Judge; And a Supersedeas is to an Officer or Judge, not to the party.

Prohibition of wast returnable out of Chancery, Quia retornabile.14 Express prohibitions are in two manners, the one founded upon a Suggestion, the other upon Record; upon suggestion where plea is pendent, and yet the suggestion is the foundation, for it is not so without a plea pendent, but is founded upon Record when no plea is pendent, as shall be said hereafter: For Prohibitions founded upon Record, Ne admittas, &c. ought to re-cite the plea pendent, for all those which are founded upon Record ought to recite a plea pendent. So a Writ to the Bishop to admit a Clark, is a Judiciall Latitat,15 as Dyer defends it: And as to the Book of 2 Edw. 4. it is well agreed, that this doth not lye in the Common Pleas, unlesse a Quare impedit be depending, for this ought to recite a Writ to be depending, and it should be against reason to restrain any to present, or to make Wast by Estrepment,16 unlesse that a Writ be pendent: And as to the opinion of Fitzherbert, it was affirmed for good Law, for every one agrees it, that if a plea be pendent in the Common Pleas, then a Prohibition there lies, and the pendency or not pendency of a plea is not materiall for divers causes.

1. The pendency of a Plea may give a priviledge to the party, but no Jurisdiction to the Court in collaterall Suit: And there is a diversity betwixt Priviledge of Court, and Jurisdiction of Court, for a Plea pendent may give priviledge to the party, Eundo, redeundo & morando,17 but doth not give Jurisdiction to the Court to hold plea by Bill by collaterall Suit against any other, as an Officer, Attorney or Clerk may.

2. The Prohibition in such a case where plea is pendent is no processe Judiciall upon the Record, for it is a collaterall Suit.

3. If the Common Pleas, which is the proper Court for Common Pleas, cannot grant a Prohibition without a Plea pendent; certainly the Kings Bench, which holds plea of Common Pleas by secondary means, cannot do it: And so the Archbishop of Canterbury in his Articles concerning Prohibitionsholds, that neither the one Court nor the other may grant Prohibitions in such a case: But inasmuch as the Common Law is in stead of an Originall, as hath been said, both Courts may grant it.

4. Infinite Presidents may be shewn of Prohibitions out of the Common Pleas, without recitall of any plea pendent, as is agreed on the other part: And true it is, that it ought to be, if the Court hath not Jurisdiction |[61] to grant any without plea pendent. Every petty Clerk of the Common Law shall have by his priviledge a Prohibition without plea pendent; a fortiori,18 the Common Law it self may prohibite any one, who against the Common Law shall incroach upon its Jurisdiction, and enquire of things done against the Jurisdiction of the Court. Plea pendent is cause of priviledge and not of Jurisdiction, 4 Edw. 4. 37. 37 Hen. 8. 4. Action or information upon the Statute of 2 Hen. 5. cap. 5. is but an information to the Court of wrong done to the Common Law, for this, that no Originall Writ lies, as upon penall Law, upon Malum prohibitum, this is Malum in se de quo Curia intelligi & informari voluit.19

5. A President is in 22 Edw. 4. where a prohibition was granted out of the Common Pleas, for that the Plaintiff might have a Writ of false Judgment at the Common Law: The Record it self agrees with the Report, for the words of the Record are,

6. That Officers and Clerks, as well in the Common Pleas, as in the Exchequer, and Farmers of the King in the Exchequer, may have by priviledge of Court a Prohibition without Originall: a fortiori, the Law it self shall have greater priviledge then an Officer or Clerk, and certainly to enforce the party to bring an action will be a means to multiply Suits to no end, for the Law it self in 4 Edw. 4. fol. 37. if any man upon the Statute of 2 Hen. 5. for not delivering of a Libell, be brought into the Common Pleas: And if he cannot have a Prohibition without such Suit, this shall be a cause, as hath been said, to multiply Suits, and is against the publick Weal; For he will bring his action upon the Statute before that he will be deprived of his Prohibition, and by that he gives himself cause of Prohibition; every Prohibition is as well at the Suit of the King as of the party, as is held in 28 Edw. 3. 97. false Latine shall not abate, nor excommunication in the plaint is no plea: For this is the Suit of the King, as well for his Jurisdiction as for the party, who by Law may choose his Court, 15 Edw. 3. title Corrody 4. The King may sue for this contempt where he pleaseth.

Note, that although the Originall cause was in the Kings Bench for Corrody, Excommunication is no plea in disability of the Plaintiff, because it is the Suit of the King for contempt to his Law. vide 21 Hen. 7. 71. Kelway 6. in quare non admisit,20 4 Edw. 4. 37. for not delivery of a Libell in the Common Pleas, and then he shall have a Prohibition by all the Justices: so upon the Statute of 2 Edw. 6. c. 13. for suing for Tythes where there is a prescription, &c. And this shall be to introduce multiplication of Suits, when himself gives cause of Prohibition, 38 Hen. 6. 14. 22 Edw. 4. 20. 13 Edw. 3. title Prohibition, 11. after a Judgment in the Common Pleas, after which the Patron sues the Recoverer in Chancery, surmising equity, Attachment upon a Prohibition out of the Common Pleas, yet no Plea pendent.

Note, the Reporter reported this Attachment to issue out of the Common Pleas, for the Chancellor would not prohibite him.

32 Hen. 6. 34. An Attorney in the Palace assaulted and menaced, the Court shall take a Bill and enquire of it, 4 Edw. 4. 36, 37. there a Prohibition without view of Libell, for this, that action was pendent, Statham Prohibition 3.

Prohibition super Articulos,21 title Prohibition plea 5. gives a Prohibition before, scil. Coram Justiciariis nostris apud West.22vide F. N. B. fol. 69 b. in a Writ of Pone, Register indic. coram Justiciariis nostris apud West.23 is the Common Pleas, F. N. B. 64 d. 38 Edw. 3. 14. Statute 2 Edw. 6. cap. 13. such Courts grant Prohibitions who have used to grant them: Hales Case in |[62] my Reports. Note the reason that many Prohibitions were granted in the Kings Bench, for that no Writ of Error lies but in Plaint.

[1. ][Ed.: Married woman.]

[2. ][Ed.: But when such plea is pending, etc.]

[3. ][Ed.: While the aforesaid plea was depending,]

[4. ][Ed.: Writ to prohibit a bishop from admitting a clerk to contested benefice or other office.]

[5. ][Ed.: Writ to recover a presentment, or right to appoint a clerk to benefice or advowson.]

[6. ][Ed.: Common pleas shall not follow our court,]

[7. ][Ed.: Which was granted, etc.]

[8. ][Ed.: We command that you inhibit, etc.]

[9. ][Ed.: Writ staying the proceedings of an inferior court.]

[10. ][Ed.: therefore.]

[11. ][Ed.: He who has jurisdiction to absolve, has jurisdiction to bind:]

[12. ][Ed.: We prohibit you.]

[13. ][Ed.: That you surcease in the aforesaid plea.]

[14. ][Ed.: Because it is returnable.]

[15. ][Ed.: Writ of general summons, not restricted to service in one place.]

[16. ][Ed.: Spoil or waste by a life Tenant to the determine of the reversioner or remainderman.]

[17. ][Ed.: literally, “In going, remaining or returning,” a privilege from arrest for debt.]

[18. ][Ed.: so much the more so,]

[19. ][Ed.: a wrong as a result of prohibition . . . a wrong in itself, whereof the court wishes to be told and informed.]

[20. ][Ed.: why he did not admit (apparently a heading in Kelway).]

[21. ][Ed.: Prohibition upon the articles.]

[22. ][Ed.: that is to say, before our Justices at Westminster.]

[23. ][Ed.: Put on the register before our Justices at Westminster.]