cation for a writ of prohibition, but such application may be made on affidavits only; and in case the party applying shall be directed to declare in prohibition before writ issued, such declaration shall be expressed to be on behalf of such party only, and not, as heretofore, . on the behalf of the party and of his majesty, and shall contain and set forth, in a concise manner, so much only of the proceeding in the court below as may be necessary to show the ground of the application, without alleging the delivery of a writ or any contempt, and shall conclude by praying that a writ of prohibition may issue; to which declaration the party defendant may demur, or plead such matters by way of traverse or otherwise, as may be proper to show that the writ ought not to issue, and conclude by praying that such writ may not issue; and judgment shall be given, that the writ of prohibition do or do not issue as justice may require; and the party in whose favour judgment shall be given, whether on nonsuit, verdict, demurrer, or otherwise, shall be entitled to the costs attending the application and subsequent proceedings, and have judgment to recover the same; and in case a verdict shall be given for the party plaintiff in such declaration, it shall be lawful for the jury to assess damages, for which judgment shall also be given, but such assessment shall not be necessary to entitle the plaintiff to costs.

The judges of the ecclesiastical courts, who are appointed by the ordinary, and not by the crown, are subject not only to the control of the temporal courts for exceeding their jurisdiction, but also in some instances to the commands of the latter courts, if they decline to exercise their jurisdiction when by law they ought to exercise it.(s)

*Jurisdiction of Courts of Equity.]-Courts of equity [ *468] have no jurisdiction to try the legality of marriage, especially after sentence in the spiritual court in a cause of jactitation of marriage, although the proceedings in the latter court were collusive. A woman brought a bill against her supposed husband's son by a former wife. He insisted she never was married to his father, but to one whose marriage with her was proved. Upon this the woman sued in the spiritual court in a jactitation cause, and obtained sentence against him, and relied upon it in chancery, where it was held to be conclusive evidence.(t) The defendant pleaded in answer to a bill a marriage and a sentence in her favour in the ecclesiastical court in a suit of jactitation of marriage, and the plea was allowed, the sentence being conclusive.(v) The fact of a marriage charged by the bill, and denied by the parties' answers (there being some circumstances in evidence from which a marriage might be inferred) must be tried at law, a jury being the proper judges of the fact.(u) The defendants by their answer objected that the plaintiffs, who claimed under their parents' marriage settlement, were illegitimate, no marriage having been solemnized until after their birth. A mar

(s) 1 Addams, 266.
(t) Hatfield v. Hatfield, 5 Br. P. C. 100,

2d ed. cited Str. 961.

(v) Meadows v. Duchess of Kingston, Ambl. 756. As to the effect of decisions in the ecclesiastical courts where they have con

current jurisdiction, see Bissell v. Axtell, 2
Vern. 47; Bouchier v. Taylor, 7 Br. P. C.
414; Vanborough v. Cock, 1 Ch. Cas. 200;
Bland v. Elliott, Finch, 67; Parker v. Dee,
Ib. 123; Digby v. Cornwallis, 3 Ch. R. 40.
(u) Revel v. Fox, 2 Ves. sen. 269.

riage de facto having been proved by the authenticated certificate of a regularly licensed clergyman, and by other unexceptionable evidence, it was held to lie upon the party impeaching the marriage to prove its nullity, and therefore in a case where that had not been attempted, the court of chancery pronounced in favour of the validity of the marriage for the purposes of the suit, without directing an issue.(x)

In one case the lord chancellor directed the validity of a Jewish marriage to be tried in the ecclesiastical court; for which purpose a suit of jactitation of marriage was instituted in the ecclesiastical court by the wife against the asserted *husband. (y) And a suit has been directed to be instituted by the lord chan[ *469 ] cellor for trying the validity of the marriage of a ward of court.(z) And there are several instances of suits directed by the court of chancery to be instituted in the ecclesiastical court for the purpose of trying the validity of marriages of persons who have been found lunatic by inquisition. (a)

It does not come within the province either of a court of law or equity to decide whether there exist grounds of divorce by reason of adultery or cruelty ;(b) or whether the conduct of the parties has been such as will entitle them to a divorce, to be obtained in the ecclesiastical court or in the house of lords.(c) So courts of equity have no jurisdiction to decree a separation between husband and wife.(d)

SECT. II. OF THE EFFECT OF SENTENCES OF ECCLESIASTICAL COURts.

1.-OF SENTENCES IN SUITS RELATING TO MARRIAGES.

Sentences of Ecclesiastical Courts evidence in Temporal Courts.]— The common law courts give credit to the proceedings and sentences of the ecclesiastical courts upon matters within the peculiar jurisdiction of the latter courts.(e)

The certificate of the ordinary when returned to the temporal court is conclusive upon all parties upon questions of bastardy and marriage.(ƒ)

(z) Piers v. Taite, 1 Drury & Walsh, 279. (9) Lindo v. Belisario, 1 Hagg. Cons. R. 216; ante, pp. 70-72.

(*) Warter v. Yorke, 19 Ves. 451; ante, p. 313.

(a) Smith v. Smith, Poynter, 167 n., 2d ed.; ante, pp. 192, 193.

(b) St. John v. St. John, 11 Ves. 532.
(c) Westmeath v. Westmeath, Jac. R. 139.
AUGUST, 1841.-X

(d) Angier v. Angier, Gilb. Eq. R. 152; Pre. Ch. 496; Head v. Head, 3 Atk. 547; 1 Ves. sen. 17; Legard v. Johnson, 3 Ves. 352.

(e) 2 Ventr. 43; 5 Rep. 7 a; 7 Rep. 42 b; Co. Litt. 125 a; 4 Rep. 29 a; Jones v. Bow, Holt, 285; Bull. N. P. 113; Morris v. Webber, 2 Leon. 169. 172. 176, 177.

(f) Bull. N. P. 245; 2 Wils. 128; Rex v. Rhodes, Leach, 29; see ante, pp. 462-463.

[ *470 ] Where in civil causes the temporal courts find the question of marriage directly determined by the ecclesiastical courts, they receive the sentence of these courts, though not as a plea yet as proof of the fact; it being an authority accredited in a judicial proceeding by a court of competent jurisdiction; but still they receive it upon the same principles, and subject to the same rules, by which they admit the acts of other courts. Hence a sentence of nullity and a sentence in affirmance of a marriage have been received as conclusive evidence on a question of legitimacy arising incidentally upon a claim to real estate. A sentence in a cause of jactitation has been received upon a trial in ejectment as evidence against a marriage, and in like manner in personal actions, immediately founded on a supposed marriage. So a sentence of nullity is equally evidence in a personal action against a defence founded upon a supposed coverture. But in all these cases the parties to the suits, or at least the parties against whom the evidence was received, were parties to the sentence and had acquiesced under it, or claimed under those who were parties and had acquiesced.(c)

In Jones v. Bow, (d) on a trial of ejectment at bar, the question being whether C. was married to J., under whose issue the plaintiff claimed, and the defendant offering by way of anticipation of the plaintiff's evidence of the marriage, and to prevent his giving any evidence, a sentence of the arches in a suit of jactitation of marriage,. decreeing that there was no marriage, the whole court upon debate held, that such sentence whilst unrepealed was conclusive against all matters precedent, and that the temporal courts must give credit to it, being of spiritual cognizance.(e)

A sentence in a cause of jactitation was received as conclusive evidence against the plaintiff in an action for seducing his wife, though the sentence was not pronounced till after the issue joined in the action at common law.(f) And a similar sentence was held conclusive against a contract of marriage in an action for damages founded [ #471 ] on the breach of such contract.(g) By conclusive is meant that the court will not receive evidence to contradict it. It is a general rule that wherever a matter comes to be tried in a collateral way, the decree, sentence or judgment of any other court having competent jurisdiction, shall be received as conclusive evidence of the matter so determined. The temporal courts must take notice of the forms of sentence in the ecclesiastical courts. And though a party, notwithstanding a sentence in a suit of jactitation, might at any time have sued for restitution of conjugal rights, such sentence is conclusive in collateral actions, until it is reversed or overturned by some other sentence.(h) If a proper suit has been instituted in the ecclesiastical court in relation to the validity of a marriage in the lifetime of the pretended husband, and a sentence is given against the marriage, it will bind every body, because it is final and

(c) De Grey, C. J. Duchess of Kingston's temp. Hardwicke, by Lee, 11. case, 20 How. St. Tr. 540.

(g) Da Costa v. Villa Real, 2 Str. 961. (h) Meadows v. Duchess of Kingston, Ambl. 761; Clewes v. Bathurst, Str. 960; Da Costa v. Villa Real, ib. 961.

conclusive; as being the proper jurisdiction in civil cases, unless the question of marriage be merely an incidental point relating to the grant of letters of administration.(i) Although the de facto husband was not party to the suit, nor to the sentence of the spiritual court which dissolved the marriage between him and the woman, but the woman only, yet the sentence against the wife being but declaratory was held to be good, and to bind the husband de facto.(k) So where a party had issue by his wife de facto, and after a sentence of nullity of marriage married another woman, it was held that so long as the sentence of nullity stood unreversed, that the issue of the first marriage was illegitimate.() It was said that a sentence of divorce for consanguinity or affinity would have been conclusive evidence to bastardize the children born in wedlock before the divorce.(m)

Sentences on collateral matters.]-The sentence of the ecclesiastical court is not conclusive unless the matter in issue *has been directly determined by it. Thus, in an action of Thus, in an action of [*472 ] trover the plaintiff proved the goods to be in his possession, and to have been taken away by the defendant, who showed that they belonged to J. B. in her lifetime, and that the defendant was entitled to them as her administrator. Upon this the plaintiff proved that some few days before her death she was actually married to him, whereupon the defendant insisted that the spiritual court had determined the right to be in him by the grant of letters of administration, which negatived the existence of the alleged marriage. But HOLT, C. J. held that the grant of the letters of administration was not conclusive upon the point, that the plaintiff was not the intestate's husband, which was not directly determined by the grant of administration, although it would have been otherwise if the question of marriage on the grant of the letters of administration had been tried and decided.(n) The sentence of the ecclesiastical court in a criminal suit for fornication is not evidence against the legitimacy of the issue of the party claiming by descent, because the point of marriage was not decided.(0)

The Effect of Sentences in Criminal Matters.]—But although the law stands thus with regard to civil suits, proceedings in matters of crime, and especially of felony, fall under a different consideration; first, because the parties are not the same; for the king, in whom the trust of prosecuting public offences is vested, and which is executed by his immediate orders or in his name by some prosecutor, is no party to such proceedings in the ecclesiastical court, and cannot be admitted to defend or examine witnesses, in any manner intervene, or appeal; secondly, such doctrines would tend to give the spiritual courts, which are not permitted to exercise any judicial cognizance in matters of crime, an immediate influence in trials for offences and to draw the decision from the course of the common law, to which it, solely and peculiarly belongs.(p) The statute 1 Jac. 1, c. 11, which

(i) Baker v. Pritchard, 2 Atk. 388; Roach v. Garvan, 1 Ves. sen. 159; see Brownsword v. Edwards, 2 Ves. sen. 245; Montagu v. Maxwell, Vin. Abr. tit. Executors, 65, pl. 9. (k) Bunting v. Lepingwell, 4 Rep. 296. (1) Kenn's case, 7 Rep. 41. (m) Hilliard v. Phaley, 8 Mod. 182. (n) Blackham's case, Šalk. 290; Roach v.

Garvan, 1 Ves. sen. 159; Brownsword v.
Edwards, 2 Ves. sen. 245; Thompson v.
Donaldson, 3 Esp. 63.

(0) Hilliard v. Phaley, 8 Mod. 180; Brownsword v Edwards, 2 Ves. sen. 243.

(p) De Grey, C. J. Duchess of Kingston's case, 20 How. St. Tr. 540, 541.

[ *473 ] made polygamy *a felonious offence, and for the trial of such offence necessarily gave to the temporal courts a cognizance of the lawfulness of marriage, provided that the act "shall not extend to any person divorced by a sentence in the ecclesiastical court, nor to any persons where the former marriage has been by the ecclesiastical court declared null and void." By this statute there were two cases in which the sentence of the ecclesiastical court will protect against the criminal inquiry, namely, the case of a sentence of divorce, and the case of a sentence of nullity of marriage.(q) But the statute made no exception in favour of a sentence in a cause of jactitation; and as such a sentence is not conclusive even in the court where it was delivered, and declares not directly but only collaterally the invalidity of marriage, it has been adjudged not to be a bar to a criminal prosecution. In the case of the Duchess of Kingston, who was tried for polygamy, a sentence in the ecclesiastical court against the validity of a former marriage, in a suit of jactitation of marriage, was produced in evidence on her behalf, and contended to be conclusive, being unappealed from. But first it was holden not to be conclusive in itself, the sentence having decided on the invalidity of the marriage only collaterally, and not directly. But further, admitting it in general to be conclusive, yet the effect of it might be avoided by showing that it had been obtained by fraud or collusion; and she was declared guilty.(r)

A sentence of divorce a mensa et thoro was a sufficient answer to an indictment for bigamy, under the 1 Jac. I. c. 11.(s) But the stat. 9 Geo. 4, c. 31, s. 22, is differently worded, and does not seem to include such a divorce, for it declares that the penal consequences of bigamy "shall not extend to any person who at the time of the second marriage shall have been divorced from the bond of the first marriage, or whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." (t)

It seems that the question as to the validity of a mar[ *474 ]riage *may be entertained in the ecclesiastical court, notwithstanding a conviction for bigamy.(u)

We have already adverted to the weight which will be attached to the sentence of a foreign court on a question of marriage.(x) Where the marriage was contracted in Denmark, between parties who were both domiciled there, and afterwards dissolved by an ordinance of the king of Denmark, and it was established by the evidence of Danish lawyers that by the law of that country the king can grant a divorce a vinculo matrimonii, and that such a dissolution is valid, administration was granted to the widow of a subsequent marriage, the court not deciding how far it would have been effectual in a matrimonial cause, where both the burthen and nature of the proof is different.(y) But it was decided by the Court of Chancery that a sentence of divorce pronounced in Denmark cannot defeat the rights acquired by parties under a marriage solemnized in England.(z)

(9) 1 East P. C. 467.

(r) Duchess of Kingston's case, 20 How. St. Tr. 355.

(s) Middleton's case, Kelyng, 27; 1 East's P. C. c. 12, s. 4.

(t) Ante, pp. 225-227.

(u) Ante, pp. 230, 231. See Boyle v. Boyle, 3 Mod. 164; Bull. N. P. 245.

(x) Ante, pp. 149, 150.

(y) Ryan v. Ryan, 2 Phill. R. 332.
(z) MCarthy v. Decaix, 2 Russ. & M.