case Breedon against gill who tam c if a statute give jurisdiction to the  commissioner of the excise with a appeal from their decision to commissioner  of appeal require they to examine the fact upon proof make either by  confession of the party or by the oath of one or more witness the commissioner  of appeal must examine witness de to make new and can determine on the  evidence of the write minute of the deposition of the witness examine before  the commissioner of excise if such witness be alive and forthcoming and if  they do the court of king bench will grant a prohibition quoad the reception  of such write evidence although the statute say that the judgement of the  commissioner of appeal shall be final S c salk S c comb S c ld ray S c ray by  the statute car c certain imposition be give to the king upon beer and ale and  other liquor for the increase his majesty revenue and the forfeiture and  offence within that Act which be commit within the limit of the chief office  of excise in London be to be determine by the commissioner and governor of  excise appoint modern by the king or the major part of they or in case of a  appeal then by the commissioner of appeal for regulate that duty by car c a  additional Act make for the better collect the say duty and prevent the abuse  therein it be enact that no common brewer shall set up or alter any brew  vessel without notice thereof give to the office of excise or shall use or  keep any private or conceal storehouse cellar or other place for the modern er  p lie any beer ale or word in cask other than which he use in his common  brewhouse and which be open discover or know upon pain to forfeit fifty pound  for every tun what back copper and cool set up and make use of without such  notice give as aforesaid note the appellant be first to lie down the single  duty of excise in the hand of the commissioner and to give security to the  commissioner of appeal for the fine and forfeiture which be adjudge against he  if the judgement shall be affirm upon the appeal and likewise to pay double  cost but if reverse then the informer be to pay double cost the plaintiff  Breedon suggest for a prohibition that by the law of England when a issue be  join between the party it ought to be try by the evidence of witness viva  voice and not by note or minute of their testimony that a information be  exhibit against he before the commissioner of excise set forth that he be a  common brewer and do keep a private storehouse without acquaint the say  commissioner therewith that he be find guilty and that he appeal from their  sentence to the commissioner of appeal before who the informer produce as  evidence the minute take before the commissioner of excise and that the  witness who give evidence there be still alive which minute be allow as  evidence by the commissioner of appeal c the question now be whether a  prohibition shall be grant direct to they not to admit such evidence those who  argue for the prohibition insist that such evidence before the commissioner of  appeal be irregular and that it ought not to be allow in any court where the  party may be examine viva voice that the word of the statute be pen as if on  purpose to prevent such proceed for after the appeal be give to the party  grieve and authority to the commissioner of appeal to determine the same the  statute require they to modern summon the offender and upon his appearance or  contempt to examine the fact and upon proof make either by confession of the  party or by the oath of one or more witness which oath two of they have power  to administer to give sentence and to issue out warrant to levy the forfeiture  c so that the statute have provide in what method the commissioner of appeal  shall proceed and have give they power to administer a oath to the witness it  be plain that deposition take before the commissioner of excise can be read as  evidence before they beside the reason of the thing speak that such deposition  can be give in evidence there because the statute have not appoint any officer  to take such minute neither be their clerk upon his oath and the party can  have no remedy against he if he take such minute wrong nor can he compel he to  take they right he can be compel to put they in write what be do be to help  his own memory and never sign by the witness till of late this be a new  offence create by the statute and a new penalty impose which must have be  determine in the court of commonlaw if the lawmaker have not show how the  proceed shall be and what proof shall be make videlicet a voluntary confession  or oath of one or more witness which the commissioner of appeal have power to  administer now it will have be to very little purpose to give they that power  if they may as well admit any former deposition to be read in evidence which  indeed can be no evidence before the commissioner of excise themselves and  much less before the commissioner of appeal for they be to hear the cause  original without any regard to what have be do by the commissioner of excise  they be direct to proceed in a different manner from the commonlaw by which  law all examination of fact be to be make by witness and a jury it be true a  jury be not require in this case but witness be still necessary to prove the  fact and that upon oath viva voice and the rather because the party may have  liberty to crossexamine they in attaint the witness be examine upon oath de to  make new though no other can be produce but such who give evidence in the  original cause so here the witness be examine by the commissioner of excise  but on one side and judgement be give by default therefore the party must have  a right to have the witness modern examine de to make new upon the appeal  especial since the cause be now before another jurisdiction which be create  for the benefit of the party that he may have justice do beside wherever a Act  of parliament modern er p give a appeal the fact as well as the law be always  examine upon the appeal as for instance in the case of bastardy where two  justice have power by the statute Elizabeth c to make a order to charge the  parent for the maintenance of the bastard from which order they may appeal to  the session and there it be the constant practice to examine the fact again  and not to rely upon the examination take before the two justice it can be  object that deposition take in inferior court be transmit both to the delegate  and to the chancery and read and allow there without reexamining the witness  for this case be not like the proceed in those court where such deposition may  be read as evidence because the chancery be a court by prescription and  ancient usage and there be commissioner on both side to see justice do but a  constant usage can be in this case for it be a newcreated jurisdiction the  statute Elizabeth c give authority to two justice of peace to determine the  settlement of a poor man likely to be Chargeable to a parish but there be a  appeal give to the quartersession but it be never know that the session be  govern by any note take by the clerk of the two justice who make the original  order the commissioner of bankrupt be appoint by a new law but if bankruptcy  or not shall be the question at a trial at law the deposition take before such  commissioner shall not be read as evidence but the witness shall be examine  again live voice the next question will be whether this court will now  interpose since by the statute the judgement of the commissioner of appeal be  to be final as to that matter the grievance of the plaintiff begin at this  court of appeal who have proceed in another method than what be direct by the  Act and therefore the remedy be proper in this court who be not desire to  determine the cause but only to interpose where another court use any  extravagant method in proceed contrary to their power modern for this court  prohibit the court of admiralty and the ecclesiastical court even in such case  where they have a original jurisdiction if they either deny or delay  justiceFitz n b   a so in suit for tithe if any thing arise concern the bind  of parish or a modus kill they be prohibit hob b so where they deny the proof  of a thing by one witness they will likewise be prohibitedShotter v friend  show c though this court can examine the original cause for it be a oppression  which the commonlaw will not allow so if the spiritual court shall refuse to  give a copy of the libel this court will grant a prohibition until what time  see Com dig prohibition f d so if a justice of peace refuse to sign the rate  for the poorYelv cro car e or if a corporation will not choose officer it be  usual for the court of king bench to grant a mandamus ante salk Mod comb Foley  Sess case Bac Abr Mr Consts edition of bott poor law p f for this be for the  preservation of order and government and such proceed be not to take any thing  from a proper jurisdiction but to hinder they from proceed irregular now  although the statute say that the judgement of the commissioner of appeal  shall be final and though the commissioner of excise have a jurisdiction of  the subjectmatter yet if they err in their proceed this court will take notice  of the whole fact to do justice to the party injure as if the commissioner of  excise shall examine witness but not upon oath and give sentence which be  confirm upon appeal this court will reverse that sentence though the statute  be that the judgement of the commissioner of appeal shall be final those who  argue on the other side say that where a jurisdiction be create by Act of  parliament which give a appeal that must be the last resort and in such case  this court may command they to execute their power but can reform their  judgement see king v commissioner of the land tax term Rep g this statute give  the commissioner of appeal power to examine witness but leaves the method of  such examination to themselves now the nature of a appeal be that the court  from who sentence it be bring have do modern er p injustice to the party and  therefore it be very reasonable that the superior court shall know upon what  ground they proceed below which can be do more effectual than by read those  very deposition which be take there modern the case now before the court be  not by reason of any complaint that some of the witness be not examine or that  the commissioner of excise refuse to take their deposition and examine only  one side for in such case it have be proper to make application to this court  but it be to reexamine the same witness and to what purpose shall that be  unless to deny what they have already swear which will be to introduce perjury  beside it will tend to make the court of appeal a original jurisdiction which  be contrary to the very nature and intent of appeal for those commissioner be  not to admit any new evidence they must take the case as it be before the  commissioner of excise and judge whether they have do right or not to say that  order and decree make by commissioner of charitable use upon deposition take  before they shall not be confirm by the court of chancery upon read those  deposition be not applicable to this case it be true the matter must be  reexamined there because the statute give that court jurisdiction in those  case for it require such order and decree to be certify into that court under  the seal of the commissioner within such time as shall be limit in their  commission and then the chancellor be to take such order for the due execution  thereof as he shall think fit neither can the practice of the justice of peace  in the session upon appeal rule this case for they have a discretionary power  to examine the witness again viva voice or take such examination as have be  make by those of the inferior jurisdiction nor be this case like those where  prohibition have be grant to ecclesiastical court because by bring the appeal  you admit the jurisdiction of those court as for those prohibition to  spiritual court where they deny the proof of any payment by one witness it  seem to be very unreasonable when they have a original jurisdiction of the  cause that they shall not proceed in their own method it be true the statute  empower they to examine witness upon oath but do not say whether it shall be  in write or not now if the commissioner of excise cause such deposition to be  write which have be take before they and transmit they to the commissioner of  appeal that be a examination upon oath modern it be much better for the party  himself that the deposition shall be in write for if a witness shall die  before he can bring a appeal he may have the benefit of such deposition to be  read in evidence for he as well as against he last the proceed upon the  statute against bankrupt can be object to this purpose because such proceed in  inferior court be not conclusive but when action be bring in this court they  must be determine accord to the constant method use there neither do the court  of king bench send mandatory writ to other to direct they what judgement to  give but to command they to proceed accord to justice now the commissioner of  appeal proceed and give judgement in this case accord to such evidence as be  give below and it be in their power whether they will have the oath in write  or not but it have be the constant practice to have it in write it must be  agree that this Act have settle no course of proceed in this case it have only  exclude trial by jury and where no such trial be the fact be always determine  by deposition in write as in chancery there be case of the high nature try by  the oath of witness upon write deposition take before a examiner in a closet  curian the commonlaw do not require that witness shall be examine viva voice  except where the trial be by jury these deposition be take in court where the  evidence be enter and when that be do the party have nothing to do but to  appeal from a injury suppose to be do by a inferior court and it be very fair  to transmit that evidence which be give before they and upon which they give  their judgement it be true they will have the commissioner of appeal try the  cause de to make new which be contrary to the very nature of a appeal this  statute direct that the commissioner shall proceed by the oath of witness or  the confession of the party and the last resort be in the commissioner of  appeal if they do not peddle with what be out of their jurisdiction which be  not the complaint now but only of the course and method of the proceed the  case of Shotter v friend show a modern er p which be late adjudge in the court  of king bench come near this case for there a prohibition be grant to the  consistory court of the bishop of Winton after sentence because they refuse to  allow the proof of a payment of a legacy by one witness modern but a  prohibition be never yet grant to any ecclesiastical court for proceed accord  to such evidence as be allow by the commonlaw for which reason nothing be do  at this time but after in easter term in the nine year of William the three  upon further consideration a prohibition be grant quoad the admit of the  deposition take in write before the commissioner of excise for the  commissioner of appeal ought to examine the witness de to make new on the  appeal