law put upon them, the superior courts at Westminster would grant prohibitions to restrain and control them. An appeal lay from these courts to the sovereign, in the last resort, which proves that the jurisdiction exercised in them is not derived from any intrinsic authority of their own (b). Probate of Wills of Personally.-The ecclesiastical courts had exclusive jurisdiction over the probate of wills of personal estate. Before 20 & 21 Vic. c. 77, proof of the will was given by the executor before the ordinary, i.e., as a general rule, the bishop of the diocese. Administration. They had, before 20 & 21 Vic. c. 77, transferring the jurisdiction to the Probate Court, exclusive jurisdiction over the administration of the estates of intestates, which were granted by the ordinary or the metropolitan (c). Distribution. They had a concurrent jurisdiction with the Court of Chancery with respect to distribution (d). Marriage. They had, before 20 & 21 Vic. c. 85, by which a new court, called the Court of Divorce and Matrimonial Causes, was established, exclusive jurisdiction in divorce and alimony, in suits for jactitation of marriage, in suits for restitution of conjugal rights, and in suits to compel the celebration of marriages in pursuance of marriage contracts (e). Ecclesiastical Jurisdiction. - The ecclesiastical jurisdiction of the ecclesiastical courts remains, in many respects, the same as it was formerly. It is exercised by, first, the Archdeacon's Court; secondly, the Consistory Court of the Bishop; thirdly, the Court of Arches (including the Court of Peculiars); and fourthly, the Judicial Committee of the Privy Council, sitting as a final Court of Appeal (ƒ). The judgments of the ecclesiastical courts were formerly as much subject to the equity of the Court of Chancery, as were the judgments of the common law courts (g). It has, however, been laid down that the temporal courts could not examine the decisions of the ecclesiastical judges in matters (b) See Stephen's Commentaries (ed. 7), vol. i., pp. 67, 68. (c) Stephen's Commentaries (ed. 7), vol. ii., p. 193. (d) Bouchier v. Taylor, 4 Brown's Cases in Parliament, 708, and Hargrave's Tracts, p. 473. (e) Stephen's Commentaries, vol. ii., pp. 238, 239. This last jurisdiction was abolished by 26 Geo. 2, c. 33, and 4 Geo. 4, c. 76, s. 27. (f) Stephen's Commentaries (ed. 7), vol. iii., pp. 305 et seq. (g) Vanbrough v. Cock, 1 Chane. Cases, 200. purely spiritual (h). But they had a right to control the spiritual court in cases in which it proceeded in opposition to the common law, on points in which the common law predominated over the law ecclesiastical (i). The temporal courts had also a right to restrain the spiritual court from contradicting what had been already finally decided upon by temporal judges, under authority expressly given to them by Act of Parliament (k). But the Court of Chancery refused to interfere in cases where the ecclesiastical courts had an exclusive jurisdiction (/). Thus, it refused to try questions concerning wills of personalty, either before or after probate, but referred the parties to the ecclesiastical court (m). It would, however, interfere under certain circumstances (n). Again, the probate if pleaded (0), was conclusive evidence of a will of personalty (p), except in the case of the probate itself having been forged, or having been obtained by surprise (q); in which case the probate might be annulled by sentence of the ecclesiastical court (r). Thus even fraud in obtaining probate of a will of personalty, was not examinable in chancery, after the will had been proved in the ecclesiastical court, so long as the probate remained in force (s). Nor was it examinable in the courts of common law. Thus payment of money to an executor, who had obtained probate of a forged (h) Bird v. Smith, Moore, 781; Caudrey's Case, Co. Rep., vol. iii., p. 15; Phillips v. Crawly, 1 Freeman, 83; R. v. New College, 2 Levinz, 14. (i) Hinks v. Harris, Carthew, 271; Hargrave's Tracts, p. 478. (k) Webb v. Cook, Cro. Jac. 535, 625, and Appendix B., p. 417; Boyle v. Boyle, 3 Mod., 164, Appendix B., P. 417. (1) R. v. Blatch, 5 Ves. junr., 113. (m) Attorney-General v. Ryder, 2 Ch. Cas. 178; Archer v. Mosse, 2 Vern., 8; Nelson v. Oldfield, 2 Vern., 76; Plume v. Beale, 1 P. Wms., 388; Stephenton v. Gardiner, 2 P. Wms., 286; Bransby v. Kerridge, 1 P. Wms., 548; Andrews v. Powers, Vin. Ab., vol. viii., p. 548, vol. xi., pp. 59, 66; Bennet v. Vade, 2 Atk., 324; Hargrave's Tracts, pp. 462, 463. (n) Sheffield v. Duchess of Buckingham, 1 Atk., 630. (0) Phillips v. Chichester, Sir T. Raymond, 404, and Hargrave's Tracts, p. 460; see also a case cited by Coke in Hensloe's Case, Co. Rep., vol. v., p. 64, where a history is given of the jurisdiction of the ecclesiastical courts in probate and administration. (p) Noel v. Wells, 1 Levinz, 235, Appendix B., p. 414. (q) Phillips v. Chichester, Sir T. Raymond, 404, and Hargrave's Tracts, p. 460. (r) Anon. Case, Comyns' Rep., 150. (8) Archer v. Mosse, 2 Vern., 8; Allen v. McPherson, 1 H. L. Cas., 191. This was not so, however, in a case of a will of realty; see Barnesly v. Powel, 1 Ves., 287. will, was held to be a discharge to the party paying it, and a bar to its being recovered again by another party to whom letters of administration were afterwards granted when the probate was repealed (†). Fraud, however, in obtaining probate of a will did not estop criminal proceedings for forging the will of which probate had been obtained (u). Again, as the spiritual court had an exclusive jurisdiction in administration, the Court of Chancery, in exercising its concurrent jurisdiction as to distribution, was concluded by sentences of the spiritual court in administration (v), so long as they remained unrevoked (r). In cases where the Court of Chancery had a jurisdiction concurrent with that of the spiritual court, if proceedings were first taken in the spiritual court, the Court of Chancery would not, as a rule, stay them by injunction (y); except in the case of legacies to infants (z). But a bill might be brought in chancery against an executor for discovery of the personal estate, before the will was proved, or during the litigation thereof, in the ecclesiastical court (a). And remedies might be pursued against an executor, concurrently in the ecclesiastical court and in the Court of Chancery (b). Questions of Marriage.-The temporal courts could try the fact of marriage. But the lawfulness of marriage could only be determined by the ecclesiastical court, unless it came in question in the temporal courts incidentally with other issues (c). And even a fraudulent sentence of the spiritual court, in a suit for jactitation of marriage, was conclusive in subsequent (civil) proceedings in the temporal (t) Allen v. Dundas, 3 T. R. 125; Allen v. McPherson, 1 H. L. Cas. 191. (u) R. v. Buttery and Macnamara, R. & R, C. C. R., 324, and other cases in Appendix B., p. 416, note (c). (v) Bouchier v. Taylor, 4 Brown's Cases in Parliament, 708; Thomas v. Ketteriche, 1 Ves., senr., 333, and Hargrave's Tracts, pp. 472-476; see, however, Parker v. Dee, Finch, 123, where an administration was repealed in Chancery, in proceedings on a bill for discovery of the intestate's estate, and new letters of administration granted to another, to whom the first administrator had accounted in the Prerogative Court. (x) Buller's N. P., 247. (y) Nicholas v. Nicholas, Prec. in Ch., 546; Basset v. Basset, 3 Atk., 207; Reynish v. Martin, 3 Atk., 333. (z) Rotherham v. Fanshaw, 3 Atk., 627. (a) Dulwich College v. Johnson, 2 Vern., 48. (b) Digby v. Cornwallis, 3 Rep. in Ch., 40. (c) Emerton v. Hide, Comb., 72: Pride v. Earl of Bath, 3 Levinz, 410; Hiliard v. Phaley, 8 Mod., 180, and Hargrave's Tracts, p. 478; Bouchier v. Taylor, 4 Brown's Cases in Parliament, 708. courts. Thus in Meadows v. Duchess of Kingston (d), which was a bill in chancery to set aside the will of the Duke of Kingston, bequeathing certain property to the Duchess, on the ground that it was founded in fraud, the Duchess having imposed herself upon the Duke as a single woman, and in which the defendant pleaded the same sentence of the ecclesiastical court as was submitted in evidence in the Duchess of Kingston's case, the sentence was held to be conclusive. Lord Chancellor Apsley said, "I lay it down as 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 (e). The general rule, however, respecting sentences of the spiritual conrt in dissolution of or against marriage, appears to have been, Sententia contra matrimonium nunquam transit in rem judicatam' (f). Hence, though such sentences were usually conclusive as evidence in the temporal courts (g), they were not pleaded as estoppels, and did not operate, strictly speaking, as such. They were, however, similar to estoppels in their binding effect upon parties and privies (h). And they might even bind strangers (i). Such sentences, however, though binding on the temporal courts, were not so in the spiritual court itself, but were liable to be reversed there (j). The effect by way of estoppel of judgments of the Divorce Court (now the Probate, Divorce, &c., Division of the High Court of Justice) has already been discussed in a previous chapter (k). But the same (d) 2 Ambler, 756. sentence was held to be not conclusive in subsequent criminal proceedings. See the Duchess of Kingston's case, Appendix B. (e) For a further discussion of the effect of fraud upon ecclesiastical sentences, see chap. iii., ante, pp. 70-74. (f) There does not appear, however, to be any such rule now in existence. See Lockyer v. Ferryman, L. R. 2 App. Cas. at p. 521 (note 7). (g) Kenn's case, Co. Rep. vol. iv., p. 136, and Appendix B., post, p. 412; Meadows v. Duchess of Kingston, 2 Ambler, 756. h) Jones v. Bour, Carth. 225, and Appendix B., p. 411; Clews v. Bathurst, (i) Bunting v. Lepingwell, Co. Rep., vol. ii., 355, and Appendix B., p. 412; Hatfield v. Hatfield, 5 Brown's Cases in Parliament, 100, and Appendix B., p. 413. See, however, the opinions of the judges in the Duchess of Kingston's case, Appendix B., p. 424, giving a history of the jurisdiction of the ecclesiastical courts. (j) Kenn's case, Co. Rep., vol. iv., p. 136, and Appendix B., p. 412. (Z) See chap. iv., ante, pp. 83-85. APPENDIX B. THE DUCHESS OF KINGSTON'S CASE. THIS was the trial of the Duchess of Kingston for bigamy (a). The trial took place before the House of Peers in Westminster Hall, in the year 1776. The facts of the case, as stated in the report of the trial in Leach's Crown Cases, were as follows:-Elizabeth Chudleigh married the Honourable Augustus John Hervey in 1744. In 1768 she instituted a suit for jactitation (b) of marriage against Mr. Hervey in the Consistory Court of the Bishop of London. The defendant admitted the jactitation. In February, 1769, sentence in the jactitation suit was pronounced to the following effect, namely, "That the said E. Chudleigh was, and now is a spinster, and free from all matrimonial contracts and espousals with the said A. J. Hervey" (c). In March, 1769, Miss Chudleigh married the (a) 20 St. Trials, pp. 355--651; 1 Leach C. C. 146; Smith's L. C. (8th ed.), vol. ii., pp. 784 et seq. The case, as laid before Hargrave, who was consulted as junior counsel by the prosecution, was as follows:-A., claiming to be a single woman, libels B., in the Consistorial Court of the Bishop of London, for jactitation of marriage. B. defends himself by alleging a marriage, and to this allegation A. puts in Afterwards witnesses are examined, and the cause is heard before the bishop's official, who pronounces sentence by which he declares A a spinster, and free from all matrimonial contracts or espousals, as far to us as yet appears, and concludes with an award of costs against B., in words an answer. describing the sentence to be a definitive sentence or final decree. Relying on this sentence, A. marries C., after whose death A. is indicted, under 1 Jac. 1, c. xi., for felony in marrying C., her former husband B being then alive. Upon the above facts, Hargrave was of opinion that the sentence of the Eccle siastical Court, if obtained bonâ fide, was binding on the Crown in the prosecution for bigamy, but that it might be avoided on the ground of fraud. (See his opinion in Hargrave's Tracts, pp. 450-486.) (b) As to the nature of a suit for jactitation, see the opinions of the judges, post p. 427. (e) See also post p. 429, where the above sentence is set out verbatim. |