really turns on the construction of the word "several." If there had been in this case distinct articles of charge, as in Hart v. Marsh (1), some of which were proved and others not, we might apply the sentence distributively, and take those words as proved for which the sentence might be passed. But there is not such a force in the word "several," here, as enables us to make that kind of distribution. No distinction is made among the words referred to: "several scandalous" &c. "words in the said libel mentioned " does not exclude *any. It is not as if the Judge had said "several of the scandalous" words. The sentence clearly proceeds upon the statement of all; among the rest, therefore, those of which the Spiritual Court could not take cognizance. The comity of Courts in respecting each other's sentences is grounded on a supposition that they will act only according to their powers: but, if the proceeding now in question were held good, Courts might give themselves jurisdiction over any thing by coupling that which was out of the jurisdiction with something within it. I am of opinion that the sentence here applies to the whole of the words, and improperly does so and our judgment, therefore, must be for the plaintiff. PATTESON, J.: It is argued for the defendants in prohibition that the words themselves, of which the libel complains, charge nothing beyond drunkenness and indecency. But they charge an act done, amounting to an assault, and for which an indictment would lie: and, consequently, an action at common law would lie for the words. But then it is suggested that there were other words, and the sentence may have proceeded upon them. And it is true that, if the sentence had proceeded upon part only of the words, and those properly of ecclesiastical cognisance, a prohibition would not have lain. But the word "several" cannot so confine the sentence; it would be too much to give that effect to an accidental omission of the article "the;" for I cannot but think that the form of words used is to be so accounted for. They are, as it appears to me, a finding that all the words mentioned in the libel were spoken; and, if so, the case of a charge proved in part *does not apply. Then the question arises whether a prohibition can be awarded in this stage of the suit. But Full v. Hutchins (2) decides this. There the libel was for tithes. A modus and customs were set up in defence; and the Ecclesiastical Court enquired into (2) 2 Cowp. 422. (1) 44 R. R. 506 (5 Ad. & El. 591). EVANS v. GWYN. [ *858 ] [859] EVANS v. GWYN. [ *860] these, and gave sentence; after which a prohibition was moved WILLIAMS, J.: It was scarcely contended at the Bar that a prohibition might not go after sentence, if the Spiritual Court appeared by the proceedings to have acted without jurisdiction: but the case was compared to Hart v. Marsh (3); and it was said that, where the libel contained some matters which were, and some which were not, cognisable in the civil Courts, it lay on the party impeaching the sentence to show that the Ecclesiastical Court had adjudicated on subjects beyond its jurisdiction. Then, has that Court here proceeded upon words importing a common law offence? It clearly has: for the words stated in the libel imply an assault of some kind. The point which alone created some difficulty was, whether the words could be severed so as to confine the sentence to that which was matter of spiritual jurisdiction: but I think it clear that, taking the libel and the sentence together, we must conclude that (1) Cranden v. Walden, 3 Lev. 17. Com. Dig. Prohibition (G 14). (3) 44 R. R. 506 (5 Ad. & El. 391). the whole of the words formed the foundation of the sentence. It is contended that the word "several" denotes a part only of the words charged; but the words in the earlier portion of the sentence are, "I have found" "that the proctor for the said the Rev. T. B. Gwyn hath fully and sufficiently proved his intention deduced in a certain libel and other pleadings given in, exhibited" &c. "Intention," there, does not mean, in the ordinary sense, "animus" (1); the sense *is, that the whole ground of charge has been made out; that is, that the whole of the words have been proved. If so, the Ecclesiastical Court has given judgment on one part of the case over which it had no jurisdiction. WIGHTMAN, J.: It is clear that the Ecclesiastical Courts in general have not concurrent jurisdiction with the civil; though it is an excepted case from the rule, where the words libelled relate to a spiritual matter and person. Mr. Bovill does not dispute that the words here raise some imputation for which an action at law would lie: but he argues that the charge of defamation may be limited to matter which is of spiritual cognizance exclusively by the innuendo ; "meaning by such words, among other things, that on the said occasion the said Rev. T. B. Gwyn was not sober, and that he wanted to violate the person of her the said Mary Evans, or that he otherwise conducted or wanted to conduct himself indecently and incontinently towards her." But, supposing that an innuendo could have the effect contended for, the language relied upon purports only to give a part of the meaning. Again, it is suggested that the sentence convicts Mary Gwyn only of speaking “several," not "the several," defamatory words mentioned in the libel, and therefore it may be taken that the judgment proceeds on some of the words only, and those of ecclesiastical cognizance. But I think, taking the expressions in the ordinary sense, it must be understood that all the words mentioned in the libel were proved. And, if the sentence proceeded upon all, and some were of temporal cognizance, a prohibition ought to go, according to the authorities cited in argument, and an Anonymous (2) case in 3 Mod., which was not referred to. (1) Some discussion took place as to this word during the argument. E. V. Williams pointed out that it Judgment for plaintiff. meant "intentionem litis," the com- EVANS v. GWYN. [ *861] [ *862 ] 1844. April 25. [ 887 ] [ *888] REG. v. JAMES CLARK. (5 Q. B. 887-895; S. C. D. & M. 687; 13 L. J. M. C. 91; 8 Jur. 489.) Where justices have directed an indictment against a parish, under stat. 5 & 6 Will. IV. c. 50, s. 95, for non-repair of a highway, and the Judge of Assize directs payment of the costs out of the parish highway rate (1), he must ascertain the amount of costs, and order payment of the sum so ascertained. Where the Judge's order is only to pay the costs generally, this Court cannot enforce such an order by mandamus. Whether the amount can be ascertained after the commission of the Judge of Assize has expired, quære. AT a Special Sessions for the highways, holden 3rd November, 1840, the justices of the Liberty of St. Albans, Hertfordshire, ordered that Robert Bullock should prefer a bill of indictment at the next Hertfordshire Assizes against the inhabitants of the parish of Chipping Barnet, in the said liberty, for suffering a highway to be out of repair. The indictment was preferred, and a bill found, at the Hertfordshire Spring Assizes, 1841: and the case was tried before Gurney, B., at the Hertfordshire Spring Assizes, March, 1842, when a verdict of Guilty was returned. The learned Baron respited the judgment, and, on application of the counsel for the prosecution, ordered that the costs should be paid out of the highway rate of the parish. The note of the clerk of Assize in the Court minute book was as follows. "The inhabitants of the parish of Chipping Barnet for non-repair of a road. It is ordered by Mr. Baron GURNEY that the costs of this prosecution be paid out of the rate made and levied, or to be made and levied, in pursuance of the 5 & 6 Will. IV. c. 50, in the said parish of Chipping Barnet." This note was signed by the learned Baron; and he respited the recognizances to the next Assizes for the same county. At the Hertfordshire Summer Assizes, 1842, the judgment was respited to the next Hertfordshire Assizes on the application of the defendants. Afterwards the prosecutor applied to the taxing Masters of the Crown Office, and of some other offices, and to the deputy clerk of Assize for the Home Circuit, to tax the bill of costs; which they all declined to do, alleging that they had no authority. In October, 1842, application was made to GURNEY, B., to ascertain the costs and insert the amount in his above mentioned order: but the learned Judge, after hearing counsel, refused to interfere. At the Hertfordshire Spring Assizes, 1843, the prosecutor applied to (1) 5 & 6 Will. IV. c. 50, s. 27; but see now the Local Government Act, 1894 (56 & 57 Vict. c. 73), ss. 25 and 29, and the Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 216 and 217. -J. G. P. PATTESON, J., then sitting in the Crown Court, for the costs, but did not apply for judgment, as the road had been repaired. His Lordship, after consulting Lord Denman, Ch. J., the other Judge of Assize, refused the application, and again respited the judgment. Immediately after the Circuit, the prosecutor renewed his application to GURNEY, B., who refused a summons. At the Hertfordshire Summer Assizes, 1843, the prosecutor applied to PARKE, B., then sitting in the Crown Court, for judgment and costs: but his Lordship refused to make any order as to the costs, and discharged the recognizances (1). Afterwards the prosecutor requested the clerk of the peace for Hertfordshire to tax the costs, as if they had been referred to him by both parties. The clerk of the peace did so, and allowed 3201. The bill of costs was delivered to James Clark, being then surveyor of the highways of Chipping Barnet, and payment demanded: but he refused to pay. Kelly, in last Hilary Term, on affidavit setting forth the above facts, obtained a rule calling on Clark to show cause why a mandamus should not issue, commanding him to pay to Robert Bullock, or his attorney, "the costs of the prosecution of the indictment against the inhabitants of the said parish in the said affidavit mentioned." From the affidavits in answer it appeared that no amount of costs had been in any way ascertained at the Spring Assizes, 1842 ; that Clark had been appointed surveyor in April, 1842; that 321. only had been handed over to him by the previous surveyors; and that, at the times of the delivery to him of the bill of costs and of the service of the present rule nisi, he had in his hands, as surveyor not above 50l. Platt and Godson now showed cause: This order for costs was made in supposed pursuance of stat. 5 & 6 Will. IV. c. 50, s. 95, which enacts that, where the justices have directed an indictment to be preferred at the Assizes or Quarter Sessions against the inhabitants of a parish, "the costs of such prosecution shall be directed by the Judge of Assize before whom the said indictment is tried, or by the justices at such Quarter Sessions, to be paid out of the rate made and levied in pursuance of this Act in the parish in which such highway shall be situate." But the order is incomplete, because the learned Judge (1) It was stated, on the argument, that a fine of 18. was imposed. REG. 2. CLARK. [ 889] |