The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Mich. 6 Jac. Regis,

Langdale's Case.

In Langdales Case this Term, in a Prohibition to the High Commissioners, two Points were moved: 1. If a Feme Covert may sue for Alimony before the High-Commissioners. 2. If the Court of Common Pleas may grant a Prohibition when there is no Plea pendant there: This concerning the Jurisdiction of the Court was first debated, and divers Objections were made against it.

1. That this Court hath not Jurisdiction to hold Plea, without an Original, unless by Priviledge of an Attor∣ney,

Officer, or Clerk of the Court, and unless it be in a special Case, viz. when there is an Action there de∣pending for the same Cause; then it was agreed, that a Prohibition ought to recite, Quod cum tale Placitum pendet, &c. And it was said, That F. N. B. 43. g. agrees with this. But a man ought to have his Prohibition out of Chancery, or the Kings Bench, upon surmise that he is sued in Court Christian for a Temporal Cause, and the 2 Ed. 4. 11. 6. was cited.

To this it was answered and Resolved by Coke, chief Justice, Warberton, Daniell, and Foster, Justices, That the Common Pleas may award a Prohibition, though no Suit be there pendent; for it is the principal Court of Common Law for Common Pleas, Quia Communia Pla∣cita non sequantur Curiam nostram, as it is Enacted by Magna Charta, thirty times confirmed by Parliam••••••; then if the Ecclesiastical Judges incroach upon the Juris∣diction of the Common Pleas, there the Court shall Grant a Prohibition, and that without Original Writ, for divers Causes:

1. Because no Original Writ issuing out of Chance∣ry is retornable into the King Bench or Common Pleas, but is directed to a Judge, or Party, or both, and is not retornable. And upon contempt of the Prohibition, the Chancellor may award an Attachment, retornable either in the Kings Bench, or Common Pleas, which in such case is but a Judicial Writ. And if such Attachment be retornable in the Common Pleas, &c. the Plaintiff in the Declaration shall make mention of an Original in Chancery, and of the contempt, &c. as appears in a no∣table President.

2. There was great reason that no Original Writ of Prohibition shall be retornable, for the Common-Law was a Prohibition in it self, and incroachment up∣on it incurred a contempt, and with this agrees our Books, 9 H. 6. 56. And there 'tis held, That the Statute of the 45 Ed. 3. and the Common Law also was a Pro∣hibition

in it self: and thus the Rule of the Book, 19 H. 6. 54. so is it held in 8 R. 2. Title Attachment Sur Pro∣hibition 15.

Note, By Clopton a Sergeant, at the Common Pleas, That if a Plea be held in Court-Christian, which belongs to the Court of the King, without a Prohibition in facto, the Plaintiff shall have an Attachment upon a Prohibi∣tion; Quod fuit concessum, &c. Register 77. Estrepement, Praecipimus quod inhibeas, &c. F. N. B. 259. Register 112. A Consultation is as much an Original, as a Pro∣hibition: And the Court hath granted a Consultati∣on, ergo Prohibitions. Qui habet jurisdictionem absol∣vendi, habet juris dictionem Ligandi.

There are several sorts of Prohibitions; one sort with this word, Probibemus vobis, and Letters in nature thereof, as Supersedeas. And Injunction is a Prohibition; and Prohibition of Wast out of Chancery &c.

Express Prohibition are in two manners; the one, founded upon a Suggestion; the other, upon Record: Upon Suggestion, where Plea is pendent, and yet the Sug∣gestion is the Foundation; but it is founded upon Re∣cord, where no Plea is pendent: for Prohibitions found∣ed upon Record, Ne admittas, ought to recite the Plea pendent. So a Writ to the Bishop, to admit a Clerk, is a Judicial Latitat, as Dyer defends it. As to the pen∣dency of a Plea, or not pendency, it is not material for divers causes.

1. The pendency of the Plea may give a priviledge to the party, but no Jurisdiction to the Court in a Collate∣ral Suit; between which there is great diversity.

2. The Prohibition, where Plea is pendent, is no pro∣cess Judicial upon Record, for it is a Collateral Suit.

3. If the Common-Pleas cannot grant a Prohibition, without a Plea pendent, then the Kings which onely holds Plea of Common-Pleas by second means cannot. But inasmuch as the Common-Law is instead of an Ori∣ginal, as hath been said, both Courts may grant it.

4. Infinite Presidents may be shewn of Prohibition out of the Common Pleas, without recital of any Plea pendent: And true it is, That it ought to be, if the Court hath not Jurisdiction to grant any without Plea-pendant; every petty-Clerk of the Common-Pleas shall have by his Priviledge a Prohibition without Plea-pen∣dent. A fortiori, the Common Law it self may prohi∣bite any one, 4 Ed. 4. 37. 37 H. 8. 4.

5. A President is in the 22 Ed. 4. where a Prohibi∣tion was granted, for that the Plaintiff might have a Writ of false Judgment at the Common Law. The Record and Report agree, the words of the Record are:

6. That Officers and Clerks as well in the Common-Pleas as in the Exchequer, &c. may have by Privileng of Court a Prohibition without Original; a fortiori, the Law it self shall have greater Priviledge than an Officer or Clerk, and to enforce the party to bring an Action, will be a means to multiply Suits to no end, 4 Ed. 4. fol. 37. every Prohibition is as well at the Kings Suit, as at the Parties, 28 Ed. 3. 97. false Latin shall not abate, nor excommunication in the Plaint is no Plea, 15 Ed. 3. Title Corrody 4.

Note, Though the Original cause was in the Kings Bench, for Corrody Excommunication is no Plea in dis∣ability of the Plaintiff: Vide 21 H. 7. 71 Kelway 6. quare non admissit, 4 Ed. 4. 37. for not delivery of a Libel in the Common Pleas, he shall have a Prohibition by all the Justices. So upon 2 Ed. 6. cap. 13. See 38 H. 6. 14. 22. Ed. 6. 20. 13 Ed. 3. Title Prohibition 11.

32 H. 6. 34. An Attorney in the Palace assaulted and menaced, the Court shall take a Bill and inquire of it, 4 Ed. 4. 36, 37. Statham Prohibition 3.

Prohibition super articulos, title Prohibition, pl. 5. gives a Prohibition before, Scil. coram Justicia••iis nostris apud Westm. Vide F. N. P. fol. 69. b. in a Writ of Pone:

Register. indic. coram Justicia iis nost is apud Westm. is the Common Pleas, F. N. B. 64. d. 38 Ed. 3. 14. Statute 2 Ed. 6. cap. 13. Hales Case in my Reports. Many Prohibitions were granted in the Kings Bench, because no Writ of Error lyes but in Plaint.