Breedon vers gill see comb v Edward p d Martin v Mackonochie Q b d App Cas  entry Mod vol No prohibition shall be grant upon a suggestion any part of  which be false the commissioner of appeal from the commissioner of excise must  examine the witness de to make new they can proceed upon the evidence give  before the commissioner of excise S c salk upon appeal from the commissioner  of excise to the commissioner of appeal accord to car cap S the commissioner  of appeal offer to proceed in the examination of the former sentence upon the  deposition take at the former trial upon which motion be make in B R mich will  for a prohibition upon suggestion that all issue ought to be try by  examination of witness viva voice but that the commissioner of appeal proceed  upon short note take by the clerk of the commissioner of excise who have no  authority which be not examination by the oath of credible witness as the  statute direct and it be argue at bar for the prohibition by sir Thomas powys  sir Bartholomew shower and Mr Northey and against the prohibition by the  attorneygeneral the solicitor general and Mr Cowper the same term and be move  the last day of the term Mr Howell the clerk of the commissioner of excise  inform the court that the suggestion be false for the examination of the  witness be not by the clerk but by the commissioner of excise for they be  examine in the presence of the commissioner and upon a oath administer Lord  Raymond by their order upon which the court take the suggestion to be false  deny to grant a prohibition upon the authority of hob the parish of ashton  case and afterward in Hilary term will the suggestion be amend and frame in  this manner videlicet that the commissioner ought not to admit the deposition  take before the commissioner of excise to be evidence but ought to proceed  upon evidence of witness examine before themselves viva voice upon oath  administer by themselves or by confession of the party and then it be argue by  the counsel for the prohibition that the proceed be irregular because it do  not pursue the direction of the statute for all examination ought to be upon  oath by the letter of the Act and the Act empower they to administer a oath  which argue that it be the intent of the parliament that they shall proceed  upon evidence give before themselves and if the Act have not prescribe this  method the commonlaw will have supply it which say that all proceed ought to  be by examination of witness viva voice beside that this proceed upon the  deposition before take can be a sufficient ground for the commissioner of  appeal to find their judgement for the evidence notwithstanding may be  misrepresent or evidence take of the one side only if sentence be give against  a man before the commissioner of excise by default if the commissioner of  appeal upon appeal to they try the matter only by deposition the party  condemned will lose the benefit of crossexamine the witness deposition take  before justice of peace can be read upon appeal to the quarter session nor can  deposition take before commissioner of bankrupt be use at a trial at commonlaw  and therefore these proceed be irregular they pray the aid of this court which  ought to control all inferior jurisdiction and correct they in their irregular  proceed and Mr Northey cite a case in the time of king Charles the second  where the mayor of London espouse the cause of a plaintiff so vigorous in a  court of the city that no attorney dare appear for the defendant until hale  chief justice Lord Raymond er p by menace of a mandatory writ out of the king  bench allay the heat of the mayor he cite also a case between short and friend  enter hill will mark B R rot Mod salk Carth holt show where the case be thus  John friend by his will give to Martha friend and make short his executor and  die short pay the legacy to Martha friend and afterward Martha friend make  friend the defendant her executor and die friend sue short for the legacy  devise by John friend to Martha friend his testatrix in the spiritual court  where short plead payment and produce one witness to prove it and because the  spiritual court refuse to Lord Raymond admit the proof of one witness  prohibition be grant out of the king bench and short declare upon the  prohibition and after solemn debate consultation be deny by the whole court  but e contra it be argue against the prohibition that since the statute have  give the commissioner of appeal jurisdiction in the principal matter by  implication it empower they to proceed to the determination of the principal  matter by mean the most proper and which shall seem convenient in their  discretion and they have choose mean agreeable to reason pursuant to the  statute and commodious to the party for the witness be examine and  crossexamined before the commissioner of excise and their deposition enter by  the clerk in court and subscribe by the witness themselves how can it appear  to the commissioner of appeal that the party be oppress in the former sentence  if they be not allow the same evidence upon which it be find trial of the  cause de to make new will not be trial by appeal when therefore these  deposition be transmit to the commissioner of appeal and they proceed upon  they be not this proceed upon oath without doubt examination upon oath in  write be examination upon oath within the intent of the statute and more  beneficial to the king and to the party for by this the evidence if the  witness die be preserve and the proceed upon the appeal be more expeditious  and the presence of the witness be not require when their attendance be  requisite in another place in appeal to parliament no evidence be admit but  that which be give at the former trial and the reason why the evidence give  before the commissioner of bankrupt can be allow at a trial at commonlaw be  because such matter do not come into the king bench c by way of appeal and the  reason of the proceed of the justice at the quartersession as be mention by  the plaintiff counsel be because their ancient method of proceed be so and in  the same manner this new jurisdiction follow their proper rule for where  original matter be give to original jurisdiction they may choose their method  of proceed and no other court can overrule they holt chief justice say that  this case seem to differ from all the case of prohibition which have be grant  but the case of SAorter and friend seem to have the most resemblance but yet  no prohibition ought to be grant to the spiritual court for not have allow  evidence which the commonlaw do not allow but as to the course of grant  prohibition for not allow evidence which will be good at commonlaw the  difference be thus when the ecclesiastical court be possess of a cause which  be mere of spiritual conusance the court of Lord Raymond commonlaw allow they  to pursue their own method in the determination of it but when in such cause  collateral matter arise which be not of their conusance proper there the court  of commonlaw enforce they to admit such evidence as the commonlaw will allow  therefore if the spiritual court require more than one witness to prove the  revocation of a nuncupative will the king bench c do not intermeddle but if in  a suit for a legacy payment or a release be plead if they do not admit proof  by one witness the king bench grant a prohibition in appeal in the  ecclesiastical court they examine the witness de to make new upon a new  allegation but that allegation may be compose of the same fact and the  appellant do not begin to show his gravamen but the other ought to maintain  his sentence and it seem to he that it be reasonable that the commissioner of  appeal shall have power to proceed by these deposition but yet he can not be  of opinion that it be discretionary in the commissioner of appeal et  adjournatur and afterward in term pasch will the court pronounce their opinion  that the commissioner of appeal ought to administer new oath upon the appeal  because the Act of parliament be Lord Raymond er p express and have give they  power to administer oath for the same purpose and therefore a prohibition be  grant quoad the admit of the deposition take in write before the commissioner  of excise but holt chief justice say that his private opinion be that if the  witness be dead or can not be find then the commissioner of appeal may make  use of these deposition but that not be before he judicial he will not give a  judicial opinion