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L 'L

>(L. UK.

L> 00

PEACTICAL ARRANGEMENT

ECCLESIASTICAL

LAW.

FRANCIS NEWMAN ROGERS, ESQ.

BARRISTER AT LAW,
AND ONE OF HBR MAJESTY'S COUNSEL.

LONDON t
SAUNDERS AND BENNING, LAW BOOKSELLERS,

(successors to J. BUTTERWORTH AND SON,)

43, FLEET STREET.
1840.

LONDON :

ftAYNER AND RODGE9, PRINTBAB.

109, Fetter Lane, Fleet Strael.

PREFACE.

The following pages are committed, with no inconsiderable
anxiety, to the favourable consideration of the Profession.

The want of a book of ready reference on the subject of
Ecclesiastical Law has long been felt, for Dr. Bum't admirable
work, notwithstanding the valuable notes which accompany the
later editions, hardly answers such a description. To supply
ibis demand, and, at the same time, to keep its size within the
dimensions of a circuit book, has been the object of the present
publication.

With this in view, many heads comprised in Dr. Burfis
Work have been omitted ; some of these, such as ** Benefit
OF Clergy ,** ** Charitable Uses,** ** Colleges,*' '' Dis-
senters," " Fees,** " Land Tax,** " Mortmain,** " Perjury,**
" Polygamy," " Rape,** "Stamps,** " Supremacy," and other
similar titles, seemed rather to belong to other divisions of the
law, and being ably treated of in standard works of authority,
it was considered unnecessary to introduce them here. Again,
with regard to such heads as " Holidays,** " Kalendar,*'
** Monasteries,** ** Popery,** and other similar titles, their
insertion did not appear to be of sufficient practical im-
portance to justify any considerable addition to the size of
the book in order to admit them. With regard to the title
** Leases,*' although, confessedly, a very important head, an
alteration of the law seemed so immediately impending, that

IT PREFACE.

though the article was cootipleted it has been withdrawn
from insertion, it not being thought right to hazard the
sacrifice of so much space as the addition of such an article
necessarily would have required. The head *' Tithes'* has
also been omitted, the law of tithes now depends, or at least
very soon will, entirely depend upon the act for their commu-
tation ; and it was not thought that it would be of any advantage
to print the act itself, as it may be so easily resorted to in the
many convenient publications in which it has been circulated*
The article '' Wills " has been condensed and limited as far
as possible* On the other hand, the article "Bastard ".has
been much amplified, and an abstract given <^ most of ibe
cases on the law of legitimacy, a subject which is frequently
discussed on the Circuit and at the Quarter Sessioas, and
on which there seems to be no sufficient practical treatise.
Again, the article " Church " has been muoh extendedi and
the law of " Church Pews," and the cases bearuig upon it, given
at considerable length. The head ''Mareiaoe*' has also
been considerably enlarged, not only in the body of the article
itself, but also by the addition of new and distinct titles, having
reference to the same subject, as '' Alimony,*' " Divorce/'
'* Jactitation of Marriaoe," and " Rbstitution op Com-
juoAL Rights." The article ''Prohibition" was originally
intended to be a distinct Treatise, but has been cut down to
meet the plan and size of the present work ; it is hoped that the
compression has not destroyed its practical utility. There have
been, also, other titles introduced, which are not found -in Dr.
Burn's work, such as '* Canon Law,", on the origin and au-
thority of that law, — *' Church Building," in whiob an attempt
has been made to abstract, arrange, and consolidate the various
Acts upon that subject. " Ecclbsiastical Commission,"
which contains a short abstract of the powers of the Ecde*
siastical Commissioners, and a short detail of the progress which
they had made, at the time that article went to pre§s, — in
dividing, consolidating, and re-arranging the old dioceses and
ecclesiastical districts and jurisdictions, and the formation of the

PREFACE.

new dioceses of Manchester and Ripon, " Faculty/* a head
which was considered would be of practical convenience, has
been also added ; and " Incumbent/' which is a fresh arrange-
ment of the materials contained in Dr. Burn's article *' Bene-

At the time Dr. Bvm's work was originally published, little
was knowni beyond the walls of Doctors* Commons, of the Law
of Pleading and Evidence, as administered by the Ecclesiastical
Courts of this country ; within the last few years, however, the
public has had the advantage of regular and able reports of the
decisions of those Courts ; an endeavour has consequently been
made, under the new titles '* Costs,** ** Evidence,*' ** Pleading/*
and ** Process/' to arrange and embody the decisions of the
Ecclesiastical Courts upon these points. The awkwardness
and difficulty of the attempt, by one not familiar with the prac-
tice of those Courts, has been, and i8» sincerely felt ; and had
there been even die slightest prospect that the subject would
be taken up by abler and more experienced hands, the present
undertaking would not have been persevered in; but, in
carrying out a plan of arranging the important points of Eccle-
siasdcal Law, it seemed to be impossible to shrink from some
notice of the above subjects, for any arrangement of Eccle-
siastical Law would have been rendered incomplete by their
omission ; and it may be added, and it is hoped, without the
imputation of presumption, that, although Gentlemen, who
practise in the Ecclesiastical Courts of this country, and who
are consequently familiar with the practice of those Courts,
may not derive much, if any, assistance from the articles alluded
to ; yet, to those who are uninstructed in the practice of those
Courts, the information which those articles contain, imperfect
as it is, may not be altogether useless*

TABLE OF CONTENTS.

ADVOCATE

ADVOWSON

ALIMONY

ALTERAGE

APPEAL

APPROPRIATION

ARCHDEACON

ARCHES

ARTICLES

AVOIDANCE

BAPTISM

BASTARD .

BISHOPS

BRAWLING AND SMITING

BURUL

CANON LAW

CATHEDRALS

CAVEAT .

CHANCELLORS

CHAPEL

CHURCH

CHURCH BUILDING

CHURCHWARDENS .

CHURCH YARD .

CLERGY

COMMENDAM

PlOB
1

3
35
41
42
56
59
61
63
66

105

116

125

134
138
142
143
147
156
194
214
236
239
247

pAor

CONSULTATION

. 248

CONTUMACY

. 1149

CONVOCATION

. 250

COSTS .

. . 255

COURTS ECCLESIASTICAL . 269
CURATE, STIPSNDURY . 247

DEAN AND CHAPTER

. 288

DEFAMATION .

•

. 295

DEGRADATION .

•

. 301

DEPRIVATION

•

. 302

DILAPIDATIONS

•

. 307

DISPENSATION

•

. 319

DIVORCE .

•

. 323

DONATIVE

•

. 352

ECCLESIASTICAL COMMIS-

SIGN .356

EVIDENCE . . 380

EXCHANGE . . .417

EXCOMMUNICATION . . 421

FACULTY . . .433

FIRST FRUITS AND TENTHS 441

INCUMBENT .

INHIBITION

INTERVJENER

. 453
. 447
. 479

VUl

TABLE OF CONTENTS.

PAGE

JACTITATION OF MAR-
RIAGE . . .482

LAPSE
LECTURER
LORD'S DAY

MARRIAGE

NOTARY .

OATH .
ORDINATION

PARISH

PARISH CLERK .

PECULIARS

PENANCE

PLEADING

PLURALITY .

PROCESS .

PROCTOR

PROHIBITION

PUBLIC WORSHIP

. 485

. 491

. 496

. 505

. 595

. 598

. 601

. 613

. 635

. 643

. 648

. 652

. 671

. 680

. 699

. 706

. 760

PAOS

REGISTER . . . 770
REQUEST. LETTERS OF . 789
RESIDENCE . . .791
RESIDENCE, HOUSES OF . 809
RESIGNATION . . . 882
RESTITUTION OF CONJU-
GAL RDGUT^ . 823

SEQUESTRATION . . 826

SEXTON . . . . 834

SIMONY .836

UNIONS AND DISUNIONS . 857

VESTRY

VICAR AND VICARAGE

VISITATION .

WILLS

. 865

. 890

. 894

. 900

APPENDIX.

CHURCH RATE

. 981

TABLE OF CASES.

Page

Abbott ▼. Peters - 916

Adey v. Theobald - 1010
Alchin V. Hopkins - 471. 475
Alsop V. Bowtrell - 100

Alston V. Atlay 17. 27. 66. 303.

672, 673. 676
Anfield y. Teversbill - 739
Angus V. Smith - 397

Anstruther y. Adair 103

Anthony y. Seager 215. 217. 624
Apperley y. Hereford (Bp. of) 27
Arbery y. Ash - 656

Arnold y. Earle - 912

Aston Parish y. Castle Bremridge

155
Atkinson y. Atkinson 402

Attorney General y. Dayy 622

y . Foster 21 9 (n)

■ y. Newcomb 494

y. Parker 493.

621, 622

y. Scott 626

y. Wickliffe 454

y . Wilkinson 87 1

Austen y. Dugger 121. 125. 266.

431

Bagg's ease
Bagnall y. Stokes
Bagshaw y. Basely
Baker y. Downing

316

736

805

875. 877

Baker y. Hall
y. Rogers

Page
722
838

Banbury case 78. 80. 88. 92, 93
Banister y. Hopton - 733. 75 1
Bardin y. Calcot
Barham v. Barham
Barker y. Lomax
y. May

Barker's case
Barnes y. Jackson
Barrett y. Barrett
Barrow y. Ken
Barrowes y. Loek
Bany y. Bulten
Barton y. Ashton
— — • y. Robins
y. Wells

Barwood y. Lark

Battily v. Cook

Baxter y. Buckley

Beare y. Jacob

Beaty v. Beaty

Beaurain y. Scott

Beazley y. Beazley 350. 381. 555

Becknellj Richard's, case 922

265. 438

686

726

723

665

176. 191

400

639

930

110.257
685

1005 (n)

590

916

432

258

498, 499

1011

666

828

Beeyer y. Beever
Begbie y. Leyy
Belcher y. Belcher
Bell y. Bell
Bennett y. Apperley

y. Bonaker 70. 229. 243

Bently's case - 756

Berard's case - 99 (ft)

Berry y. Banner - 866

Berwick y. Mailings - 919
Best y. Best 339. 601. 823

TABLE OF CASES.

Bilson v. Chapman
Birch V. Crewe
Bird V. Relph
Bimie v. Weller
Biron's case
Birtwhiatle v. Vardill
Bishop V. Hatch
V. Stone

Page
123
413
308, 309
220
741
77. 103
827
243
744

Blackett v. Blizard
Blackmore v. Brider 267. 567. 648
Blake v. Osbom - 184

Bland v. Lamb - 49

Bliss V. Woods - 147. 197
Blockley v.. Slater - 177

Bloxholme v. Williams 498

Blyth V. Soden - .547

Belle's case - 716

Bolton V. Bolton - 790

Bone V. Spear - 919

Boothby v. Baily 173. 732

Bough ton V. Bough ton 88

■■ ' V. Sandilands 88

Brabin v. Tradum 185. 189

— — V. Triniman - 752
Bradley v. Ricardo 402. 407

Brady V. Cubit - 911

Bramwell v. Bramwell 824

Breedon v. Gill 735. 746 (»)

Brettell v. Wilmot 1006 (n). 1011
Bridgman's (Sir O.) case 727

Bridgwater v. Crutchley 546

Brisco V. Brisco 37, 38. 56

Britten v. Waite - 472

Brogden v. Brown - 904

Bromley v. Bromley - 346
Brook V. Owen - 218

Brooksby v. Watts - 856

Broughton» Doe dem. v. Gully 470
Brown v. Brown - 562

V. Palfry - 733

V. Wallop - 101

V. Williams - 203

Brownlow V. Goldsborough 186
Bruce v. Burke 404. 507. 556
Bruere v. Bruere 1009, Add,

Buckley v. Rice Thomas 624
Bunting's case - 584

Bunting v. Leapingwell 588. 590
Boideaux v. Lancaster 72

Burgess v. Burgess 137.
Burgoyne v. Free

660, (u). 717.
Burian, St. case
Bum V. Farrar
Bumell y. Jenkins
Burnett v. Bonaker
Burrowes v . Burrowes
Burthenshaw v. Gilbert
Burton v. Callcot
Bury V. Philpot
Butler V. Butler
V. Dolben

Gatcman

- V.

433.

Butty. Jones
Butt's case
Buxton V. Bateman
Byerley v. Windus 191.

Page

330. 648

243. 307.

744. 790

353, («).

574

55. 256

764

918

933

238

85.97

789

617

436. 440

729

188

714.731.

747

Calder v. Calder - 41 1

Calland V. Troward - 19

Calvert v. Kitchen - 857

Campbell v. Maund626. 871. 879

V. Whitehead - 827

Capel V. Child - 278

Garden v. Garden - 1012

Carleton v. Hutton - 174
Carpenter's case - 730

Carr v. March - 275

Cartwrigbt v. Cartwiight 408.

902
Gates, Doe dem. v. Somerville 469
Catten v. Berwick - 215

Cawdrey's case - 763

Chambers y. Chambers 337. 345
Chapman v. Guy - 266

• V. Whitby 392

Cheal y. Cheal - 259

Chesterton y. Farlar 747. 990. 992.

997. 1002. 1011
Chettle y. Chettle - 336

Chichester y, Donegal - 478
Chick y. Ramsdale 566. 648

Cleayer v. Woodridge 567

Clementy. Rhodes 480, 481. 659

TABLE OF CASES.

lit

Cliffonl Y. Wicks
difton v. Oates

' V. Wortes

Page
186
734
724
118.492
306

Clinton v. Hatchard
Clogher, Bishop of, case
Clutton V. Cherry 170. 658. 871.

985
Cobh V. Cobb - 913

Coghlan's case - 903

Cole V. Corder - 300

Colebatcn v. Baldwin 729

Colebrooke v. Layton 474, 476
Colt V. Coventry, Bp. of 320
Colvin V. Fraser - 411

Combe's case - 901, (»)

Compton V. Bearcroft - 579
Comyns v. Boyer - 496

ConstaWe v. Tufhell 257

Cooper V. Scott - 268

Cope V. Cope 78, 79. 96

Coppin y. Dillon - 920

Coquot's case - 99, (n)

Corven's case - 179

Corvin v. Pym - 139

Cotteril y. James 50. 693

Cottington y. Fletcher 17

Cottle V. Warrington - 828
Conrtail v. Homfray 649

Cox y. Goodday 118. 243

Craven y. Sanderson 922

Crewe v. Crewe - 333

Cridland, Ex parte - 410
Croft V. Croft - 330. 655

Crompton y. Butler - 300
Crowley v. Crowley - 643
Cnramins v. Mayo - 669

Dalrymple y. Dalrymple 479. 481 .
505, 567. 576. 678. 588. 591
Daniel y. Nockolds - 936
Darby v. Cosens - 752

Dashwood v. Bulkely, Lord 545
Davis y. Wit '- 189

Dawe y. Williams 118. 123. 233
Dawson v. Fowle ^ 732

Page
Dawson y. Williamson 1005, (n)
Dearie v. Southwell - 51

Del Heith's case 507. 529. 584
Dennis v. Donovan - 546
Detheck's case * 120

Dew V. Clark 143. 655. 658.

901,(«). 904
Dick V. Dick - 562

Dickenson v. Dickenson 922

Dicks V. Huddersford - 242
Diddear v. Faucit 519. 521, 622

780

415

918

148. 493

338. 348

- 521

Dike V. Brown

Dinely v. Dinely

Dingle v. Dingle

Dixon V. Kershaw

Dobbyn v. Dobbyn

Dobbyns for Dobbyn

Dobie V. Masters 661 . 683. 839

Doddington v. Hudson 389

Doe V. Burford 938

V. Carter - 476

Doker v. GofF - 916

Done V. Hinton - 81

Donegal v. Donegal 691, (n). 752.

758
Durant v. Durant - 893

Dutins V. Robson - 730

Early v. Stevens - 513

East V. Bowerman * 552

Eaton V. Bright - 951

Edward for Henry Augustus Ed-
ward - - 521
Edwards v. Astley • 922

V. Exeter, Bishop of

1009, Add.
Elliot V. Gurr 549. 587. 688

Elvis V. York, Archbishop o^ 24
Elwes V. Elwes 349. 415

Ely, Bp. of, V. Gibbous 166

Evans v. Evans 891, 392. 394
Evans v. Knight 262. 902

Ewer v. Ambrose • 400

a 2 .

TABLE OF CASES.

F-

Page
Faircloth v. Gurney - 474
Fanshaw ▼. Verdon - 56

Farnworth v. Chester, Bishop of,

148. 152
Farquharson v. Farquharson 514
Faulkner v. Elgar 620. 624, 625
Fawcett v. Head - 242

Fellows V. Stewart - 523

Fennell v. Ridler - 498

Firth V. Finch - 390

Fitzmaurice's case - 590

Fletcher v. Le Breton 55

' V. Sondes, Lord, 850
Flight V. Salter 471. 475, 476
Foster v. Cooke - 100

V. Foster - 267

Fox V. Chester, Bp. of, 846, 847
Foxcroft's case 81. 507. 529. 584
Francis v. Ley - 126. 188
Franklin y. Hall - 245

Franklyn and the Master and Bre-
thren of St. Cross - 41
Frazer v. Frazer - 36

Free v. Burgoyne 244. 305. 640.

746. 757
French v. Trask - 731. 747
Friedlander y. London Assurance
Company - 402

Frost V. Bowerman - 564, (n)
Falbeck v. Allanson • 263
Full y. Hutchings - 751

Fuller y. Lane 169, 179. 189
Fuller's case - 745

FttUerton y. Dixon • 701

G«

Gape y. Handly - 620

Oapper y. Gould - 744

Gardner's case 78. 81. 84, 85, 86.
88. 99, (n). 100, 101. 103
Gate's y. Chamhers 257. 275
Gaudem y. Selby - 983

Gaunday's case • 639

Gibbons y. Hooper 473. 476

Gibson y. Clarke
Gillow V. Bourne
Gloucester case
Glover v. Hind
Goddin v. Wainwright
Golding v. Fenn
Goldsmid v. Bromer

Page

915

295

768

- 733

879

485. 576.

579. 581
Goodall v.Whitmore 256. 880. 998
Goodday v. Michell - 615
Goodman v. Goodman - 917
Goodridge v. Slack 395. 399

Goodright dem. Thomson y. Saul

84
Goodtitle d. Hevett v. Braham 413
Gould y. Gapper - 743

Grant v. Grant - 823

Greaterchy v. Beardsly - 184
Green v. Cobden - 698

V. Dalton - 523

Greenhill y. Greenhill 1010, Add.

1014
Greenwood's case 656. 904

Greenwood v. Greaves - 984

y. London, Bp. of, 846

Griffith v. Mathews 186. 191

V. Reed - 228.264

Griffiths y. Anthony 407

Grignion v. Grignion 726

Grindall v. Grindall 49. 264. 670
Groom v. Thomas 901, (n)

Grove's case - 303

Groves v. Homsey, Rector of 434
Guest v. Guest 826. 562. 564
Gully v. Exeter, Bp. of, 9. 28.32
Gurney v. Langlands 413

Hadley y. Reynolds 515

Haffey v. Haffey - 40

Halford v. Halford 395. 660

Hall y. Maule 744. 755. 757
Halton v. Cove 27. 35

Harford v. Morris 552. 564. 580
Harriet for Harriet Elizabeth 521
Harris y. BuUer 297. 719

TABLE OF CASES.

Hanria t. Drewe
■ ▼. Harris

Page

174

836. 837

637

920

Hartley y. Cooke
Hattat y. Hattot
Hawke y. Corri 482. 465. 592
Hawkea y. Hawkea 790. 922
Hawkins y. Choppell 8

Haydon y. Gould 686, 587. 591.

594, 595
Head y. Head 79. 81. 88. 92
Hele y. Exeter, Bishop of 458
Henderson y. French 713

Henley y.Morison 404

Herbert y. Herbert 2. 53. 143.

408. 478. 690
Hern v. Brown - 599

Higgs Doe dem, y. Chnrchwardens
of St. Mary, Reading 224

HiU y. Bulkley - 386

Binxnuin y. Hinxman 1014

Hoar y. Hoar • 340

Hobbs Doe dem. y. Cockell 223.
Hoby y. Hoby 262. 905

Hoile y. Scales - 123. 421
Holmer y. Dickinson 585

Holt y. Harland • 30

Home y. Camden, Lord 742. 744
Homer y. Homer - 104

Horsiall y. Handley - 128
Hubbard y. Beckford 166. 314

y. Prentice - 215

Hoet y. Dash - 122

Huntington y. Huntington 917
Hntcheson y. Brookbai^ 586,587.

591, 592. 594, 595
Hutchings y. Loyeland - 136
Hutchins y. Denziloe 682. 765

y, Dunford - 118

y. Gloyer - 142

L&J.

nderton y. Ilderton - 579
Inglefield y. Inglefield - 399
Ingram y. Wyat 386. 406, 407.

906. 912
Ives V, Wright - 617

Jackson y. Hiley
Jacob's case
James y. James
James y. Keeling
Jarman y. Bagster
Jarratt y. Steele
Jausen y. Damer

Page
224
550
741
233
122
170
930

Jefferson y. Durham, Bp. of, 317
Jeffrey's case 989, (n). 993, (n)
Jenkins y. Barrett 119. 383

Jenkins, Ex parte - 726

Jerm3m's case - 637

Jessot y. Collins 590, 591

Johnston v. Johnston 411.916.938
Jones y. Gbmold - 46

V. Hill - 315

V. Jones - 405. 415

y. Robinson - 580

y. Yamold - 407

Juxon y. Byron, Lord 742

Kansey y. Langham
Kay, Ex parte
Kemp y. Wickes
Kenrick y. Kenrick
y. Taylor

431

70. 594

403. 406

175, 176

723

891

547

Kift y. Bridgman
Kimbolton v. Bedel
King y. Sansom

y. York, Archbishop of, 28

King's Proctor y. Daines 919

Kingston, Duchess of, 485

Kington v. Hack - 651

Kinleide v. Harrison 906

Kirlew v. Butts - 473

Knight y. Gloyne 1002

Knowl V. Harvey - 310

Lacon y. Higgins
Ladd V. Widdows
Lambell v. Lambell
Lambert v. Lambert

580
354
933
397

TABLE OF CASES.

Page
Lanchester v. Thompson 1005, (n)

Langley v. Clarke

184

Latour v. Teesdale

574. 591

Land's case

314

Lecourt's case

99 An)

Ledyard v. Garland

909

Lee V. Matthews

123. 866

Leeson v. Fitzmaurice

592

Lewis T. James

233

■ ■ V. Lewis

918

Lincoln, Bishop of, v. Wolferstan

10. 845
Lindo V. Belisario 409. 485. 505,

506. 576. 579. 581
Little Hallingbury, case of 833
Littlewood v. Williams - 128
Llandysilio Churchwardens, Doe
dem. V. Roe - 227

Lloyd and C]arke v. Poole 49. 268
Lock V. Denner - 667

Lolly's case - 349, 350

Lomax v. Holden - 84

London, Bishop of, v. Ffytche 850
Long y. Symes - 944

Lousley t. Heyward 189. 436
LoYcden v. Loveden - 327
Lowe T. Jfoliffe - 401

Lucy V. St. Davids, Bishop of, 114

•- V. Lucy - 742

Lyson Y. Barrow - 968

MacAdam v.Walker 578. 582. 591
McCarthy v. De Caix - 350
Macclesfield's, Lord, case 326, (n)
Machin v. Tindal - 412

Maclean v. Maclean 394. 403. 660
Magnay v. St. Michael and St.

Martin - 438

Maidman v. Malpas - 238
Maria Holmes Oldacre for Maria

Oldacre - 521

Market Bosworth Churchwardens

▼. Rectar - 733. 751

Marsh V. Tyrrell, &c. 901, (n)
Marston v. Fox - 937

Martha Carolim for Martha 521

Page
Mastermanv. Maberley 919

Mather v.Ney - 517

Mathews v. Warner 917. 920. 930
Matingley v. Martin -> 742
Mawley v. Babet - 873

May V. Gilbert 173. 188

Mayhew v. Mayhew 519

Maynard, Lord t. Brand and

Philpot - 165. 1010

Meath, Bishop of, v. Winchester,

Marquis of, - 1009, Add.
Meek v. Curteis - 266

Middleton, Ex parte 500

Middleton v. Cioft 137; 538, (n).

582. 756

V. Javerin - 574

V. Middleton 53. 404

Millar's case
Miller v. Bloomfield
Palmer

- V.

727
- 991
982. 1010
728
346
656
103
688
654

Mingay's case
Mogg V. Mogg
Molony v. Molony
Monro v. Sandles
Montagu t. Montagu
Montefiore v. Montefiore
Morgan v. Curtis 175. 187. 192
Morris V. Davis 78, 79, 80, 81.

94. 96, 97
Mortimer v. Mortimer
Moss V. Brander
Moys V. Leake
Moysey v. Hilcoat
Mudd, Doe dem.. v. Suckermore

412
Mynn v. Robinson 399. 912

830.413

413

470, 472

153. 234

Nash v. Nash

414. 669

Neeld v. Neeld

655

Newberry v, Goodwin

118. 242.

763

Newland v. Watkin

470, 476

Newton v. Bawldry

160

Nichols v. Nichols

919

Nicholson v. Masters

1005

Nokes v. Mil ward

663

TABLE OF CASES.

Page
Norfolk's, Duke of, caie 326, (n)
North y. Barker 312. 314

V. Dickson 866

Northainpton*8, Maiqais of, ease

326, (»)
Northey ▼. Cock 260. 961

Norton t. Seton 137. 563

Oldham ▼. Oldham - 40

Oliver v. Oliver 823, 824

Oliver v. Hobart - 307

Onions v. Tyrer • 933

Orpington, Curate of, ease 311

Palmer v. Roffey
V. Tijou

121, 122
259

Parham v. Templar 43. 169. 178.

294
Parker v. Kemp - 734

V. Parker • 553

V. Williams - 7*1

Pamell v. Pamell 347. 554

Paxton V. Knight • 751

Payne*s case - 585

Peake v. Bourne - 638. 640
Pearce v. Rector of Clapham 688
Peate v. Dicken • 499

Peddle v. Evans - 265

Pendrell v. Pendrell 81. 83, 84
Perrott v. Perrott - 933

Pertreis v. Fondear 480. 575

Petler v. Gatman - 616

Pewtress v. Harvey - 757
PbilUps V. Slack - 730

Pickover's case - 272

Picton's case - 409

Pierce v. Wiltshire - 515

Pike V. Badmertng - 401

Pitman v. Bridger 176, 177, 178
PoGock V. London, Bishop of, 9
Pollard V. Wybom - 562
Poole V. Poole - 547

Popkin V. Popkin - 665

Page
Portsmouth v. Portsmouth 382.

554. 564, (n)
Pouget v. Tomkins 512. 522, 523
Powell v. Burgh • 6S5

Preqgmve v. Churdbwardens of
Shrewshury - 185

Price V. Clark and Pugh 55

V. Pratt - 81 1

Procurator General v. Stone 304
Prout v. Cromwell - 231

Pym's case - 173

Queen's case - 397

Queen v. St. Mary. Lambeth 872,

873

V, Stock - 1011

V. Wye . 1011

Radwell - 81. 83

Ravenscroft v. Hunter • 922
Ray V. Sherwood 480. 558, (n)
Redcliffe v. D'Oyley 310. 315
Reeves v. Reeves - 386

Rennell v. Limerick, Archb. of, 4

V. Lincoln, Bishop of, 17,

18. 294. 355. 1009, Add.
Repington v. Governors of Tarn-
worth School - 18. 355
Rex V. Bathurst - 494

V. Bathwick 507. 530. 550.

586

V. Birmingham 218. 526.

564. 568, (n)

V. Blackmore - 398

V. Bobbing - 638

— — V. Brampton 507. 550, (n).

585. 591, 592

V. Canterbury, Archbishop

of, - 1. 458. 494

V. Cator - 413

■ V. Chester, Archdeacon of,

218. 874, 87.5
V. Clerkenwell - 871

▼m

TABLE OF CA8ES.

Page
Rex ▼. Colendge • 1S2

▼. Croydon - 6S8

V. Davie - 6t2. 626

V. Davies - 641

V. Donley, Charehwardens

of, - . 1007

V. Edwards - 564

V. Ely, Bishop of, - 82

?. Eyre - 450, 4S1

Y. Fowler - 428

V. Gaskin - 641

V. Gloucester, Mayor of,

1004, (fi)
' V. Haworth Chapelwardens

1005

V. Hewitt . 429. 480

V. Inhab. of Wroxton 515

V. Kensington - 881

• V. Lambeth Churchwardens

874. 877

V. Lee - 62

V. Liverpool, Mayor, &c.

1011

y. London, Bishop of, 630

V. Lolly - 555

V, Luffe 78. 80. 82. 87. 92

▼. Mabey - 650

V. Martin - 881

V. Mashiter - 14. 622

V. Middlesex, Archdeacon of,

632

V. Neale - 641

▼. Northfield - 530

— — ▼. Oxford, Bishop of, 680.

848

V. Poynder - 218, (»)

V. Ricketts - 429, 430

V. Rotherhithe 1003, (n)

▼. St. Ann's Rector 626

V. St. John's Delpike 547

V. St. Margaret 995

▼. St. Mary, Lambeth 987

V. St. Michaels', Pembroke

986

v. St. Pancras 881. 884,

885, 886. 889

V. St. Paul's, Thetford 1005

V. St. Peter's, Thetford,

Churchwardens of 984

Pag»
Rex V. Stoke DamareU 682, 8S5
y. Tibshelf 514. 518. 55S

V. WaU
V. Warren
y. Watson
V. Waulley
y. Wavell
y, Whitchurch
y. Whitmarsh
y. Williams
v. Winchester,

y. Wix

Reynolds y. Blake
ReynoldsoB y. Blake
Rich y. Bushnell
Richards v. Richards
Richardson y. Berry
Rickards y. Mumford

689
639
565
555. 559, («)
. 1004, (n)
233
498
221
Bishop of,
218. 875. 878
681
7
6
187. 438
925
935, (a)
- 933

Ricketts v. Bodenham 750. 1001

Rider v. Smith
Roberts v. Williams
Roberts's ease
Robertson y. Powell
Robins v. Wolseley
Robinson v. Bedel
■ v. Gonsalve

177
732
736

- 297
326. 409

891

- 645
723

Robottom's case

Rochester, Bp.of, y. Thomas 312

Rogers y. Brooks

y. HoUed

Roos, Lord De, case
Rose v. Blackmore
Routledge v. Carruthers
Rowland v. Jones
Ruding y. Ruding
— — y. Smith

191, 192

19. 456

326, (n)

546, (k)

80. 86

242

848

574

Rutherford y. Maule 655. 927, 928

Salisbury, Bishop of, y. Phillips 13
St. David's, Bishop, case of 746
St. Giles and St. George, In re 881
St. Helens, Lord, v. Exeter, Mar-
chioness of, - 930
St. John y. Winchester, Bp. of 9
St. John's, Margate, Churchwar-
dens of, v. Parishioners 434

TABLE OF CA8ES.

Page
St. Lnkes ▼. St. Leoiuurda 618

Salmon v. Cromwell
▼. Hayes

- S93
914

471. 475

- S46
SIO
928
388

Baltmarsh ▼. Hewitt
Sampson y. Sampson
Sand's case
Sankey v. Lilley
Sapb ▼. Atkinson
Saanders v. Davies 242. 305. 307
Sayer and Hill y. Dean and Chap-
ter of Christchoich - 167
Scales ▼. Hoile - 119

Scammel v. Wilkinson - 714
Scarl's case - 717

Scarth y. London, Bishop of, 114
Schulles y. Hodgson 51. 599. 657
Scott y. Rhodes 915, 916

Seximsthire y. Scrimshire 573

Seager y. Bowie - 440

Searle y. Price 330. 391. 410. 556

Seijeant y. Seijeant

Sennan y. Sennan

Sewell y. Twyford

Shadbolt y. Wangh

Shaftoe v. Shaftoe

Sharpe y. Hansard

Shaw y. Pritchard

Sherard y. Harborongh. Lord, 14

Shotter y. Friend 736. 748. 750

397
922
991
701
40
236
469. 476

S&es y. Smith
Skinner's case
Slooombe y. St. John
Smith y. Foayes

y. Keate

y. Loyegroye

y. Maxwell

y. Sparrow

- y. Smith

y. Watkins

Smyth, Ex parte

917

723

- 215

822

982, (n)

146

507. 586

498

551. 644

298

738

y. Chamberlayne 84, 85

y. Smyth 39. 52. 54

Sophia Amyusia for Sophia 521
Soathwell - - 50

Speaie y. Bone - 412

Specot's case - 306. 457, 458
Spooner y. Brewster - 163
Spratt y. Harris - 968, (n)
Stallwood y . Treadgear 5 1 1 , (n) .

559

Page
Standen y. Standen 550» («)

Stanhope y. Baldwin 514. 522
Stanley y. Bemes - 969

Stamesy. Martin 401,402, (fi).404
Steadman y. Powell - 507
Stephens y. Webb - 55

Stephenson y. Langton - 218
Stewart y. M'Kean 99, (a)

Stocks y . Booth - 1 76

Stokes y. Lewis • 834

Stone y. Bishop - 307

Stones y. Cooke • 41

Stooghton y. Reynolds 874, 875
SuUiyan y. Sulliyan 346. 513. 519,

520. 521, 522. 565
Snndiman y. Broach - 500
Satton's case - 145

Sutton y. Drax - 263

Swift y. Swift 658. 823. 1012

Tagart y. Hooper
Talbot y. Hodgson
Tany y. Brown
Tattersall y. Knight
Tawnay's case
Taylor y. Deyey

y. Morley

■ y. Morse

Theaker's case
Theakestone y. Marson
Theobald y. Crichmore
Thomas y. Morris
^— y. Maud

1016

400

530. 585

169. 435

1003. 1006

615

1015

101

- 915

1001

170

257
Thompson y. Cooper 997

y.Sandford 991.998,(fi)

y. Tapp - 764

Thorpe y. Mansell • 144
Thrale y. London, Bp. of, 12. 31
Thynne, Lord, y. Stanhope 933
Tilewood y. Cousins 268

Tongue y. Allen • 515

Torre y. Castle - 920

Toyey y. Lindsay - 350

Townsend y. Thorpe - 640
Tree y. Quin - 523. 525, (n)
Trimlestown y. Dalton - 911
Tudor y. Tudor - 917, («)

TABLE OF CASES.

Page
Tulloch y. Allison - 905
Turner v. Meyers 550. 552. 554
Turton v. Turton - 266. 338

Veley and JosUn v. Burder 988

Wait V. Bishop - 829

Wake V. Conyers - 616

Wakefield v. Wakefield 518. 520
Walker V. Walker - 1011
Walter v. Gunner and Drury 181

V. Montagu 238. 666

T. Morgan - 435

Walton V. Rider - 592

Ward V. Wilkinson - 389
Wargent v. Hollings - 393
Warrender v. Warrender 555.

557, (fi)
Watkin v. Brent - 1015

Wateon's case - 398

Watson V. Thorp - 242

Webb V. Cooke - 740

V. Fearon 621. 623

Weld V. Weld - 562

Wells V. Gumey - 502

West V. Turner 282, («), 283. 795

V. Welby - 960

Westfaling v. Westfaling 9

Westrneath v. Westmeath 259.

265. 345. 823. 825
Weymouth V. Collins - 118
Wheatley v, Lawes - 400
Wheeler*s case - 742» 743
Wheeler y. Alderson 905

V. Batson 901, (n)

Whinfield v. Watkins 3 1 4. 3 1 7
Whish V. Hessee 397. 838, 839,(fi}
Whiston*8 case - 252

White V. Driver - 902

Widdowcroft for Meddowcroft 52 1
Wlgmore's case 590, 591

Willdnson y. Dalton - 387

Page

Wilkinson y. Gordon 402. 556
Wilks, Doe dem. v. Ramsden 470
William for William Peter 52 1
Williams v. Bott - 684

y. Brown 147. 197

y. Gonde - 911

— — — y. Goodyer - 120
— — y. Osborne, Lady 600

y. Paul . 499

y. Williams - 327

WiUoughby's, Lady, case 101

Wilson y. Brockley 519, 520

■■ y. Dennison - 625

y. MacMath - 872

y. Wctherell - 394

y. Wilson 40. 258. 939

Winchester's, M. of, case 901, (n)
Winchcombey Winchester,Bp.846
Winford, Lady y. Hillicr 387
Wiscombe v. Dods - 484

Wise y. Metcalf - 313

Wolferstan y. Lincoln, Bp. of, 66
Wood's, Dr., case - 316

Wood V.Wood - 917

Woolcombe v. Oulridge - 176
Wortes y. Clifton - 724

Wright y. Doe dem. Tatham 411

— v. Elgood - 515
■ v. Flaraank - 793

y. Homsey, Rector of 1 80

— v. Lamb - 803, (»)
Wyat v. Henry - 520, 521
Wyllie v. Mott - 178
Wyndover v. Carlisle, Bp. of, 31
Wynn v. Davies 243. 568, (i»)
v. Smithers - 793

Young v. Jones
« y. Manby

849
316

Zacharias v. Collis

912. 927

LIST OF CASES CITED

BY AUTHORITIES WITHOUT NAMES.

Page
Abbott y. Abbott (2 Phil. 578) 965

V. Peters (4 Hag.Eccl.380)

915

Ackerley y. Oldham and Wilbra-

ham (1 Phil. 248) 693. 954

▼. Parkinson (3 M. & S.

411) - - 432

Adams v. Bankart (5 Tyrw. 425)

388
▼. Rush (Stra. 1183) 231

- V. Savage (Ld.Raym. 854)

793
Addy V. Grix (8 Ves. 504) 926
Agard v. Peterboro, Bp. of, (Dyer,

296) - 11.26.846

Agg ▼. Davies (2 Phil. 341) 412
Aitkin V. Ford (3 Hag. 193) 954.

964
Alanson ▼. Bxookbank (Carthew

504) - - 502

Alban (Duke of) v. Beauclerk

(2 Atk. 639) - 921

Albany v. St. Asaph, Bp. of, (Cro.

Eliz. 119) - . 490

Albermarlc v. Rogers (2 Ves. Jun.

477) - - 7

(7 Bro. P.

C. 522) - 7. 14

Page

Aleson v. Aleson (2 Lee, App.

576) . 568

Alfray V. Alfray (2 Lee, 547) 530

Allen V. Allen (1 Lee, 244) 978

V. Bradshaw (1 Curt. 110)

909

V. Hill (Gilb. 261) 926

' V. Manning (2 Add. 490)

912 913

V. Wood (I Bing. N. C. 8)

577
Almes V. Almes (2 Hag. Sup. 156)

958
Alsop V. Bowtrel (Cro. Jac. 541)

83. 98. 100

V. Stacey (Palm. 10) 98

Alston v. Atlay {,7 A. & £. 306)

806

(2 Nev. & P. 492) 303

(6 Nev. & M. 686) 1 166

Amherst V. Dawling (2 Vem. 401)

16
Anderson v. Walker (2 Lut. 1030)

128

Andrews v. Cawthome (Willes

526) - 125. 132

- v. Powis (1 Lee, 242)

977

■ v. Simons (3 Keble, 504)

129

TABLE OF CASES CITED

Page

Andrews ▼• Symson (3 Keble,

523) - - 996

Angus V. Smith (1 M. & Mal.473)

398. 402
Anonymous (Cro. Eliz. 163) 23

(Latch 7) 759

(2 Show. 184) 28

Anstrather v. Adair (2 M. & Keen

513) - - 77. 103

Anthony v. Segar (Hag. Con. 9)

219, 220, 221
Antrobus ▼. Leggatt (3 Hag. 616)

979
Appelbee, re (1 Hag. 143) 933.

946. 964

Apperley ▼. Hereford, Bishop of,

(9 Bing. 681) - 28

Arbery v. Ashe (1 Hag. 214) 902,

905

Arbuckle y. Cowtan (3 Bos. & P.

321) - 827, 829

Argar v. Holdsworth (2 Lee, 515)

243. 525. 528
Arkley v. Arkley (3 Phil. 500)

230. 345. 668

Armiger v. Holland (Cio. Eliz.

601 247. 322. 488. 601

(4 Rep. 75)

15. 673

' (F. Moore,

542) - - 322

V. Wentworth (Yelv. 92)

733 745

Arnold v, Bath and Wells, Bishop

of, (5 Bing. 316) 23. 275. 492

v. Blencoe (1 Cox, 426)

958

'■ ' v.Earl and Newbee (2 Lee,

380. 529 - 389. 908

Arthington v. Chester, Bishop of,

(1 H. Bl. 424) . 274

——-—-▼. Coverley (Ab. Ca.

Eq. 518) - . 5

Arthur v. Bokenham (11 Mod.

157) - - 908

Asgai V. Hunt (10 Mod. 440) 713

Ashbumham v. Bradshaw (2 Atk.

36) . - 934

Page
AsMy V. Freckleton (8 Lev. 74)

175. 188
Astle V. Thomas (2 B. & C. 271)

233 234
AsUey v. Astley (1 Hag. 714) 829

V. Edwards (1 Hag. 490)

334
Atkins V. Bamewell (3 East, 92)

227
Atkinson ▼• Atkinson (2 Add. 484)

395. 408. 416

V. Barnard (2 Phil. 31 6)

959

▼. Jameson (5 T. R. 25)

502
Attorney General y. Brereton
(2 Yes. Jun. 429) 455. 151

y. Foster (10 Ves. 365)

14. 493. 620, 621

y. Foundling Hosp.

(2 Yes. Jun. 48) 910

V. Hewer (2 Yem. 387)

493

y. Key (2 Tyrw. 73)

926

■ ■ y. Lichfield, Bp. of,

(5 Yes. 827) - 14

y. London, Bp. of,

(4 Mod. 202) - 274

y. Newcombe (14 Yes.

9) - - 493

■ V. Parkin (Amb. 566)

492

(3 Atk. 576) 493. 620

y. Scott (1 Yes. Sen.

413) - - 620

y. Ward (3 Yes. 328)

934

y. Wilkinson (7 B.

Moore, 187) - 871

y. Wycliffe (I Yes.

Sen. 781) - 456

Aughde y. Aughtie (1 Phil. 201)

62. 258
Austen y. Dngger (1 Add. 307)

694. 698
Austen y. Pigot (Cro. Eliz. 736)

753. 758

BY AUTHORITIES WITHOUT NAMES.

xiu

Page
Austyn V. Twyne (Cro. Eliz, 500)

857. 859
Avery v. Crat (6 Rep. 64) 6. 489
Aylett V. Rex (3 Bro. P. C. 536) 8
Ayxy T. HUl (2 Add. 210) 006

BabingtoB v. Wood (Cro. Car. 180)

849
Bagnal y. Stokes (Cro. Eliz. 88)

730
Bain v. Bain (1 Add. 253) 39
Baker v. Batt (1 Curt. 125) 261.

912

V. Deniog (8 Ad. & El. 94)

926

V. Robinson (Cro. Eliz.

679) - 65. 303

V. Rogers (Cro. Eliz. 788)

242. 837. 846. 849. 851. 856
(F. Moore, 914) 849

V. Russell (1 Lee, 167) 974

V. Wood (Curt. 507) 872

Balfour y. Carpenter (1 Phil. 204)

21. 527. 565
Ball ▼. Cross (1 Salk. 164) 151.

629. 990
Ballard v. Gerrard (12 Mod. 608)

723

(1 Salk. 332)

703. 721
Balme v. Paver (Jacob, 305) 763
Banister v. Benjamin (Dyer« 48, a)

V. Hopton (10 Mod. 12)

728
Banning r. Fryer (Cro. Jac. 159)

738
Barclay v. Marshall (2 PhiL 188)

979

Bardin t. CalootI (Hag. Con. 14)

110. 118. 124, 126. 162. 236.

257. 437
Barham v. Barham (i Hag.Con. 5)

347. 683. 693. 752

Badger, in the goods of (1 Curt.

592) • 952

Page
Barker v. Barker (2 Add. 285) 346

V. Lade (4 Mod. 149) 758

V. Lomax (Willos, 662) IS

■ V. London, Bp. of, (1 H.

Bl. 412) 11, 12, 13, 14. 29

V. Ray (5 Mad. 64) 232

Barlee v. Barlee (1 Add. 304) 249

694

(2 Eden, 60) 275

Barnard v. Atkinson (2 Phil. 316)

936
Barnes ▼. Macbride (4 Hagg, 377)

947. 951
Bamewell v. Tracey (2 Roll. 43)

737
Barrett v. Glubb (2 W. BL 1052)

846
Barrow ▼. Barrow (2 Lee, 335)

924. 934. 960
Barton v. Ashton (1 Lee, 350) 641

V. Wells (1 Hag. Con. 21)

110
Bartue's, Wm.,case (Owen, 1 3) 759
Bastard v. Stockwell (2 Show. 50)

726
Bates's case (1 Vent. 41) 717
Batt V. Watkinson (2 Lut. 1027)

880

Battely v. Cook (2 Vem. 262) 232

Bauderok v. Mackaller (Cro. Car.

350) - - 857

Bayldon v. Bayldon (3 Add. 232)

923. 930
Bayley v. Ozf(M:d (2 Wils. 116) 9
Beare v. Jacob (2 Hag. 257) 43,

44
Beatty v. Beatty (1 Add. 160) 920
Beckwith v. Harding (I B. & Aid.
508) - - 162

Bedingfield v. Bedingfield (9 Rep.
18) . - - 67

Bedminster Manor (Dyer, 300, a)

11
Beeby v. Beeby (1 Hag. Con. 142)

335, 337, 339

(1 Hag. 789)

Beevor v. Beevor (3 Phil. 261)

40. 258
Begby v. Levy (1 Tyr. 130) 496

XIV

LIST OF CASES CITED

Page
Bell V. Armstropg (1 Add. 372)

948

V. Norwich, Bp. of, (Dyer,

254,6) - - 34

V. Timiswood (2 Phil. 22)

956
Bellett, ex parte (1 Cox, 297) 102
Bennett v. Bonaker (2 Hag. 25)

157. 229

(3 Hag. 24)

122. 243. 257. 259. 264. 664

V. Jackson (2 Phil. 190)

924

■ V. Norwich, Bp. of, (Cro.

Eliz. 600) - 10, 11

Bensted v. Collins (Bunh. 229)

712
Bernard v. Ewen (1 Keble, 5) 629
Best V. Be8t(1 Add. 411) 334

338. 344. 666

(2 Phil. 164) 330

338. 348
Botfoid V. Ford (Cro. Eliz. 472)

973
Bethan v. Dinmare (1 Lee, 158)

945
Beverley v. Cornwall (Cro. Eliz.
44) - . - 11

Bigg V. Keen (1 Lee, 124) 217
Billinghurst v. Bickers (1 Phill.
199) 905. 912. 948

Binckes, deceased (1 Curt. 286)

959
Bingham v. Smeatkwick (Cro.

Eliz. 455)
Bird V. Bird(l Lee, 209), 36, 415,

554

(2 Hag. 144) 332, 41 1.

415. 903, 906
V. Harrison (Skin. 85) 718
V. Line (1 Com. 190) 60

V. Lockey (2 Vem. 743) 933

V. Relph (4 B. & Ad. 826)

308. 309. 315

Birch V. Litchfield, Bp. of, (3 Bos.

& Pul. 452) 15. 27

Birkett V. Vandercom (3 Hag. 750)

943

BirtwUsUe v. Yardil (2 CI. & Fin.

571) - . 77.103

Page

Bishop V. Hatch (1 A. & £1. 171,

3 Nev. & Man. 498) 829

V. Sharp (2 Vem. 469) 908

Bittleston v. Clark (2 Lee, 229)

948
Blacket v. Blizard (9 B. & C. 852),

750. 985. 994

Blackmore, ex parte (1 B. 8c Ad.

122) - 126

Blagrave v. Agnes (2 Hag. 83)

956
Blake v. Usbome (3 Hag. 726)

734. 923
Blakelock, re (1 Hag. 682) 956
Bland v. Lamb (2 Jac. & W. 402)

Blanshard v. Bramble (1 M. & S.

31) . - - 227

Blewit v. Blewit (4 Hag. 410)

915. 937
Blinco V. Barkside(Cro. Eliz. 578)

41
Bliss V. Wood (3 Hag. 486), 152.

197. 275. 412
Blorer's case (Dyer, 353 h) 34
Bloxsome v. Williams (3 B. & C.
234) - . 498

Blyth v.Blyth (1 Add. 316) 55
Boddycott v. Dalzeel (2 Lee, 294)

960
Boehtlinckv. Schneider (3 £sp. 58)

409
Bond V. Bond (1 Lee, 429) 965

V. Faikney (2 Lee, 371)

943

V. Seawell (3 Bur. 1773)

920. 926
Bone V. Speare (1 Phill. 345) 919.

979
Bonsey v. Lee (3 Lev. 72) 728
Booth V. Potter (Cro. Jac. 533),

840. 849. 854. 856

Boraine's case (16 Ves. 346) 432

Botham v. Oresham (Cro. Eliz.

136) - . 740

Bothlingk v. Inglis (3 East, 380)

409
Bothy V. Smith (6 Rep. 80 b) 486
Bonghey v. Moreton (2 Lee, 532)

934

BY AUTHORITIES WITHOUT NAMES.

Page
BougfaCon ▼. Gou8ley (Cro. Elis.

663) ... 61

Bourget, in the goods of (1 Curtels,

591) - . 902

Bowles V. Harvey (4 Hag. 241)

979
Bowser v. Rickets (1 Hag. Con.

213) - - . 299

Bowyer v. High Commission Court

(2 Buls. 182) 715. 849. 854
Box T. Cole (Sid. 332) 740

Boxley v. Stuhhington (2 Lee,

537) - - . 909

Brabin ▼. Tradum (Pop. 140) 1 85
Braddyl ▼. Jehea (1 Lee, 568) 660

(2 Lee, 193) 937

Bradley v. Ricardo (8 Ring. 27)

397
Bradshaw v^Bradshaw (2 Lee, 289)

935
— — V. Davenport (8 Rep.
144) - . 10

Brady v. Cubit (Doug. 38) 937
Bragge ▼. Dyer (3 Hag. 207) 915
Braham v. Burchell (3 Add. 264)

908. 9 10. 948
Bramwellv.Bramwell(3 Hag. 618)

329. 337. 339. 823
Bray V. Bray (1 Hag. 163)40. 343
Brett V. Brett (3 Add. 224) 946

V. Rigden (Plowd. 343) 908

Brire v. Smith (WiUes, 1) 927

Bridgwater t. Cnitchley (1 Add.

480) 267. 519. 527- 544

Briggs V. Morgan (2 Hag. Con.

324) - 562. 564

(3 Phil. 325)

193.561.563.946

Brightman v. Kighley (Cro. Eliz.

43) - - 942

Brisco v.Bnsoo(3 Phil.206) 39.55.

(2 Hag. Con. 190),

37,38

— (2 Add. 259) 335.

659
Britton v. Standish (6 Mod. 278)

714

▼. Wade (Cro. Jac. 517)

890

Page
Britton t. Ward (Palm. 113) 891.

893
Broderip, re (1 Hag. 485) 947
Brogden v. Brown (2 Add. 336)

976. 979

Brokesby v. Wickham (1 Leon.

167) - - 10

Brook V. Turner (1 Mod. 211)

908, 909

Brookbank v. Alanson (12 Mod.

275) - - 502

Brooksbie's case (Cro. Eliz. 170)

10, 11
Broome v. Ellis (2 Lee, 525) 407
Brotherton v. Hellier (2 Lee, 131)

940
Brouncker v. Brouncker (2 Phil.

57) - - 977

Brown v. Brown (1 Hag. 523) 563

' V. Brown (2 Hag. 5) 37, 38

V. Hallett (2 Lee, 418) 915

V. Mugg (1 Salk. 161) 185

V. Palfry (3 Keb. 286) 616

V. Ramsden(8 Taunt. 559,

2 B. Moore, 612) 316
V. Thornton (6 Ad. & El.

185) - - 409

Browning v. Reane (2 Phil. 69)

552. 554. 950
Bruce v. Burke (2 Add. 480) 414.

530.573

Brudenell v. Boughton (2 Atk.

267) - . 920

V. Skidmore (5 Rep. 9)

712
Brudon v. Gill (Lord Raym. 219)

759

Bryan v. Whistler (8 B. & C.

287) - . 127

Brydges v. King (1 Hag. 256),

331. 545.906. 912
Brymer v. Atkins (1 H. Bl. 165)

742

Buckhurst, Earl of v. Winchester,

Bp. of, (1 Leon. 154) 29

Buckeridge v. Gooch (2 Phil. 131)

389

Buckinghamshire, Earl of, v.
Drury (8 Bro. P. C. 497)

ZVl

LIST OF CASES CITED

Page

Bndd T. Silver (2 Phil. 115) 953

Boiler V. Exeter (1 Vc«. 340) 12

Bolwer v. Bulwer (2 B. & Aid.

470) - 468. 822

V. Hasc (3 East, 217) 162

Bnnter v. Cook (1 Salk. 237) 908
Bonton v. Bateman (1 Lev. 71)

175. 188

Burdeaux v. Lancaster (12 Mod.

171) - - 72

(Holt, 317) 72

(1 Salk.332) 126

Bulges v. Ashton (Yelv. 28) 759
Burgess v. Burgess (1 Hag. Con.
384) 137. 260. 264

— — — (2 Hag. Con.
223) - - 327,328

Buxgis T. Boigis (1 Lee, 121) 951.

974

Bnxgoyne v. Free (2 Add. 405),

43. 62. 244. 389. 395. 398.

661
Burleton v. Humfrey (Amb. 256)

545
Bum V. Farrer (2 Hag. Con. 369)

682
Bumell ▼. Jenkins (2 Phil. 391)

55. 658
Burrell v. Eastlow (1 Lee, 159)

975
Barroughs v. Griffiths (1 Lee, 544)

948
Burrows v. Burrows (1 Hag. 109)

901. 917. 923
Burtenshaw v. Gilbert (Cowp. 52)

932
BusheU's case (1 Yaug. 157) 758
Bussell v. Marriott (1 Curt. 9) 927
Butler T. Dolben (2 Lee, 319) 62.

483. 692
Butler ▼. Yaleman (Sid. 89) 175.

617
(1 Lev. 78)

616. 724, 725
Butt V. Jones (2 Hag. 426) 257.

436. 441. 551
Buxton V. Bateman (Sid. 203) 176
Byerley v. Windus (5 B. 8c C. 1)

189. 709. 732

Page
Byrne v. DaLeel (3 Add. 61) 389

Calmady's case (Cro. Car. 595)

710
Cambiaso v. Negrotto (2 Ad. 439)

965

Camden, Lord v. Home (4 T. R.

342) - . 743.750

Campbell, Benj. (2 Hag. 555) 963.

V. Aldrick (2 Wils. 79)

243

V. Mund (1 Nev.& Per.

564) . . 879

▼. Maund (5 Ad. & El.

865) - . 871.879

Canterbury ▼. House (Cowp. 140)

966

V. Robertson (3 Tyr.

417. 1 Cro. & Mee. 711) 966

Capel V. Child (2 Tyr. 700) 275

V. Robarts (3 Hag. 156) 63.

411
CargiU v. Spence(2 Hag.Sup. 140)

404
Carleton v. Hutton (Palm. 424)

174
Carlion v. Mill (Cro. Car. 291)

432

Carlisle, Bp. of, case (Cro. Jac.

483) . - 737

Carolus V. Lynch (1 Lee, 13) 974

Carr v. Marsh (2 Phil. 198) 149.

153. 266

Carslake v. Mapledoram (2 T. R.

473) 711.718.750

Carstairs v. Pottle (2 Phil. 30)

915. 920. 935
Cart V. Marsh (Str. 1080) 162
Carter v. Pecke (3 Keb. 619) 310
Cartright's case (Free. 258) 959
Cart Wright v. Clarke (1 Phil. 122)

903
V. Vaudrey (5 Ves. 530)

102
Cassidy, re (4 Hag. 360) 920. 962

BY AUTHORITIES WITHOUT NAMES.

xvii

Page
Castell T. Tagg (1 Curt. 298) 928.

930
Castle y. Burditt (3 T. R. 623) 52
Catcbside v. Ovington (3 Burr.

1922) 713. 759. 979

Catesby v. Peterborough (6 Rep.

60) . . - 488

Cawdry v. Atton (Pop. 59) 303
Cecfl V. Darkin (Freem. 256) 969
Chainberlayne v. Hewitt (Lord

Raym, 73) 297. 300

Chambers v. Chambers (I Hag.

Con. 439) 329. 337. 345 . 666
Chapman T.Beard (3 Anst. 942)468

V. Guy (2 Lee, 32) 265

V. Whitby (3 Phil. 370) 393

Cbeale v. Cheale (1 Hag. 374) 700
Chester's, Bp., case (5 Mod. 433)

746
Chesterton v. Farlar (7 Ad. & El.

713) - 712. 750

(Curt. 345)

982. 997. 1006
Chettle ▼. Chettle (3 Phil.507) 339
Cheverton's case (3 Leon. 163) 27
Cheyney's, Lord, case (5 Rep. 69)

746
Chicbesley y. Thomson (Cro. Car.

104) - - 23

Chichester v. Donegal (1 Add. 21)

53, 54. 143, 481. 681. 693. 710.

915
■ Bp. of, V. Harward

(1 T. R. 652) 293. 723

Chick ▼. Ramsdale (Curt. 34) 558
Chittenden v. Knight (2 Lee, 559)

952
Christ's Church, Dean of, v. Par-

rott (4 Leon. 190) 241

Chuter y. Hatch (I Ad. & £1. 171 )

829
Cirkett, ex parte (3 Dow. P. C.

327) - - 641

Clark V. Clark (2 Lee, 269) 978
Clarke v. Douce (2 Phil. 335) 657

y. Pryn (Sid. 426) 455

y. Saflfery (Ry. & Mo. 127)

388
CTavton v. Prcsenham (5 Rep. 1)

503

Page
Cleer y. Peacock (Cro. Eliz. 359) 8
Clement y. Beard (5 Mod. 449)

502
Clerk y. Lee (10 Mod. 261) 75

V. Ward (4 Bro.P.C. 70) 927

Clifford V. Maybey(l Add. 124)

295

y. Wicks (IB. & Aid. 498)

189
Clifton y. Oates (2 Buls. 283) 725
Clinton y. Hatchard (1 Add. 96)

118. 259
Clutton V. Cherry (2 Phil. 373)

259. 264. 657. 985
Coates y. Brown (1 Add. 349) 265.

945
Coe y. Hume (4 Hag. 398) 261.

268. 956
Coke, goods of, (3 Add. 25) 954.

957
Cole y. Corder (2 Phil. 106) 406
Colebrooke y. Layton (4 B. & Ad.
578) . - 474

Colefat y. Newcomb (Ld. Raym.
1205) - 354. 495

Coles y. Trecothick (9 Ves. 246)

925
Collier's case (Cro. Eliz. 675) 712.

720
Collingwood y. Pace (1 Vent. 422)

952
CoIUns's case (1 Keb. 549) 629

V. /essot (Holt, 458) 591

(6 Mod. 155) 591

Colyin y. Fraser (2 Hag. 333) 129.
334. 391. 921. 929. 935

(2 Hag. 117 ».) 102.

689. 693
Constable y. Steibel (1 Hag. 56)

927. 946

y. Tuffhel (4 Hag. 465)

389. 913. 965

Conyers y. Kitson (3 Hag. 556)

^ 950. 955

Cook V. Brouncker (2 Phil.57) 37,

V. Cowper (2 Lee, 388) 918

Cooke's case (2 Rolle, 82) 739
Cooke V. Loxley (5 T. R. 4) 856

XV 111

LIST OF CASES CITED

Page

Coombes v. Talbot (4 Mod. 254)

713. 738
Cooper V. Allnatt (3 Phil.165) 220

V. Green (2 Add. 454) 682

Cope V. Butt (1 Hag. Con. 434)

528
Copeland v. Stanton (1 P. Wms.

414) • • 386

V. Rivers (2 Hag. 279) 267

Coppin V. Dillon (4 Hag. 362)

258. 921. 934. 953. 964, 965

Cornwallis v. Spurling (Cro. Jac.

57) - - 305

Corny V. CoUidon (Free. 285) 737
Corsen v. Dubois (Holt N. P. 241 )

392
Cort V. St. David's, Bp. of, (Cro.

Car. 340) - 463

Cory V. Pepper (2 Lev. 222) 717
Costard v. Windsor (Cro. Eliz.

775) . - 454

Cotter V. Laver (2 P. Wms. 624)

909
Cottingham v. Lofts (10 Mod.

272) . 729. 972

Cottle V. Warrington (5 B. & Ad.

453) - - 827
(2 Nev. &

Man. 227) - 829

Cotton V. Davies (Str. 52) 217
Courtail v. Honifray (2 Hag. 260)

382
Coussmaker v. Chamberlayne

(2 Lee, 243) 943. 960

Coward v. Marshall (Cro. Eliz.

721) - - 936
Cox V. Cox (3 Add. 276) 39
V, Goodday (2 Hag. Con.

138) - 118. 230. 768

V. Peck (1 Lee, 557) 965

V. Ricraft (2 Lee, 372) 310

Coxe's case (Dyer, 352, a) 321

(1 P. Wms. 30) 641

Cranden v. Walden (3 Lev. 1^)

718,719
Cranmer, ex parte (12 Ves. 452)

906
Craven v. Saunderson (7 Ad. &

El. 880) - 728^ 733

Page
Crepps V. Durden (Cowp. 640) 500
Crewe v. Crewe (3 Hag. 126)330.
333. 338. 340. 342. 348.
Crews V. Draper (1 Buls. 19) 990
Cringan, re (I Hag. 548) 942
Crisp V. Walpole (2 Hag. 531) 928
Crisp's case (Cro. Eliz. 164) 9
Crompton v. Butler (1 Hag. Con.
460) 136. 298. 300. 406.

Cromwell's, Ld. case (2 Rep. 74b,)

417
Croft V. Croft (3 Hag. 310) 33 U

416.654.668.671
Crosbie v. Macdouall (4 Yes. 610)

920
Crosley, Elizabeth (2 Hag. 80)

922. 936

V. Sudbury, Archdeacon of,

(3 Hag. 197) 644. 691. 967
Cross V. Salter (3 T. R. 639) 175

V. Smith (7 East, 258) 492

Crossman v. Churchill (2 Mod. 97)

23
Croucherv. Coffins (1 Sannd. 136)

759
Crowley v. Chipp (Curt. 456) 966
Crump, re (3 Phil. 497) 976

Cucko V. Starre (Cro. Car. 285) 227
Cuddington v. Withy( 2 Swanst.
174) - - 828

Cullenv. Morris (2 Star. 577) 432
Cumber t. Chaytor (Cro. Jac. 216)

11.487
Cundy v. Medley (1 Hag. 140) 915
Cunha, Countess de (1 Hag. 237)

960. 969

Cunningham v. Seymour (2 Phil.

250) - 945

Cunyngham v. Cunyngham ( Amb.

89) . - 9

Curling v. Thornton (2 Add. 17)

969
Curtis V. Curtis (3 Add. 33) 929

Dabbs v. Chisman (1 Phil. 154)

948

BY AUTHORITES WITHOUT NAMES.

XIX

Page

Da Costa v. Ledstone (2 H. Bl.

559) - 221. 233

Dacare v. Nixon (2 RoUe, 56) 618

lyaeth T. Batix (10 Mod. 64) 737

D'Agnilar v.D'Aguilar(l Hag. 773)

40. 258. 331. 339. 342. 663

Daliymple ▼• Dalrymple (1 Hag.

Cod. 54) 392. 479. 506. 564.

573. 578. 581. 657

Daropier ▼. Golaon (2 Phil. 54)

951. 956
Darby v. Cosens (1 T. R. 556)

728. 745. 748
Darling, re (3 Hag. 561) 123

Dartford, Vicar of, case (Str. 1 107)

241
DaTis, Thos. (2 Hag. 79) 962

(1 Add. 285, 2 Add. 102)

394. 415. 669

(3 Add. 80) 904

T. Davis (2 Add. 224) 948

Davies ▼• Davies (1 Lee, 444)

933, 934
Davy T. Salter (6 Mod. 252) 642.

749

V. Smith (3 Salk. 395) 927

Dawe V. Williams (2 Add. 136)

62. 118. 120. 123. 872

Dawney v. Dee (Cro. Jac. 605) 127

Dawson v. Wilkinson (Ca. tern.

Hard. 381) - 232

■ • V. Fowle (Ca. tem. Hard.

378) 216. 217. 732

Dawtrie v. Dee (Palm. 46) 163

Days V. Jarvis (1 Hag. Con. 172)

545. 686
Dean v. Russell (3 Phil. 334) 260.

389
Dearie ▼. Southwell (2 Lee, 119)

57
Debathe v. Fingal (16 Ves. 167)

544. 920. 926

De Blaquiere v. De Blaquiere (3

Hag. 322) . 38, 39

Deighton v. Holt (Cro. Jac. 388)

598

De Manneville v. De Manneville

(10 Ves. 52) - 103

Page
Denn's case (Cro. Car. 1 15) 60
Denny v. Barton (2 Phil. 575)

919, 920
Dent V. Prndence (Str. 52) 221.

226
Detbick's case (Cro. Eli2. 224) 120
Devereux v. Bullock (1 Phil. 77)

918
Devey v. Edwards (3 Add. 78) 964
Dew V. Clark (5 Russ. 166) 904

(1 H^. 311) 950

Dickes v. Brown (3 Buls. 314) 734
Dickison v. Holcroft (3 Keb. 148)

585
Diddear v. Fawcitt (3 Phil. 580)

540

Dighton V. Stratford on Avon (Sid.

461) . * 221

's case (1 Vent. 77) 221

Dike V. Brown (Ld. Raym. 835)

693. 752
Dingle v. Dingle (4 Hag. 388)918
Dixon V. Kershaw (Amb. 528)

150. 275. 493
Dobbyn v. Comeek (2 Phil. 102)

563
Dobson V. Cracherode (2 Lee, 326)

957
Dobson V. Tussy (7 Ring. 305) 871

(5 Moo. & P. 112) 871

Doe dem. Allen v. Ovens (2 B. &

Ad. 423) - 967, 968

- Baasett v. Mew (7 Ad.

& El. 240) - 949

Birtwhistle (2 CI. & Fin.

571) - - 77
Cates v. Somerville (9

D. & Ry. 100) . 469

— — Crutchfield v. Pearce (1

Pri. 353) - 9

■ Edwards v Gunning (7

Ad. & El. 240) - 949
Freeman v. Bartlett (3

M. & S. 99) - - 27
Jackson v. Hiley (10 B.

& C. 885) - 223
Hodsden v. Staple (2 T.

R. 695) - - 908

LIST OF CASES CITED

Page
Doe dem. Lancashire v. Lanca-
shire (5 T. R. 48) 988
Moore v. Ramsden (I

N. & M. 489) . 470
Mudd V. Suckermore (6

Ad. & El. 751) - 413

———Reed v. Harris (6 Ad.

& £1. 209) - 932

(8 Ad. & El. 12) 932

Wright ▼. Manifold (1

M. & S. 294) • 926

Doker y. Goff (2 Add. 45) 916
Donegal, Marchioness v. Donegal

(3 Phil. 586) 479. 681, 682. 693
Donellan v. Donellan (2 Hag. Sup.

144) - 332. 404

Dormoy, re (3 Hag. 767) 969
Draper v. Hitch (1 Hag. 674) 923.

930
Droney v. Archer (2 PhU. 327) 544
Drammond v. Hamilton (1 Lee,

357) - - 974

Drory v. Defontain (1 Taunt. 135)

497
Dufour V. Pereira (Dick. 419) 913
Duins y. Donovan (3 Hag. 304)

545. 567
Dnllingham ▼. Ky&ley (Cro. £liz.

251) - 722. 758

Dunn, re (1 Hag. 488) 91 9. 964

V. Dunn (2 PhU. 403) 337,

338
Duppa V. Mayo (1 Saun. 279) 993
Durant v. Durant (1 Add. 120)

209. 657

(2 Add. 274) 395

(1 Hag. 578) 36. 39.

329. 331. 336. 340. 346. 663.

683
Durham, Bp. of, v. Beaumont (1

Camp. 210) 392. 396

Dnrsley t. Berkeley (6 Yes. 260)

102
Dyer, re (1 Hag. 219) 701. 946

V. Craven (Dick. 662) 16

Dymoke v. Hobart (1 Bro. P. C.

108) • . . 10

Page
Eccleston v. Petty (Carth. 81) 927
Edcs v. Oxford, Bp.of (Vaugh. 21)

136. 247
Edgell v. Haywood (3 Atk. 356)

909
Edmonds v. Walker (3 Stark. 7)

399

, re (1 Hag. 698) 947

Edmunds v. Bird (1 Y. & B. 542)

960
Edwards ▼. Astley (1 Hag. 490)

969
Eire's case (Moore, 52) 294

Elderton, re (4 Hag. 210) 956
ElUott V. Ourr (2 PhU. 16) 77.

550. 681. 950
Ellis V. Smidi(l Yes. jim. 11) 926
Elme v. Da CosU (1 PhU. 173)

682. 954. 974
Elsden V. Elsden(4 Hag. 183)915
Elwes V. Elwes (I Hag. Con. 209)

331. 340. 662

■ (2 Lee, App. 573) 953

Ely, Bp. of V. Gibbons (4 Hag.

156) - - - 733

Emerson v. Boville (1 PhU. 342)

938
Engknd v. Hnrcomb (2 Add. 809)

256.306
Evans v. Ascough (Latch, 236)

291. 673

y. Ascuith (Palm. 470) 169.

136.291.322

V. Brown (Ld. Raym. 1101)

718

V. Evans (1 Hag. Con. 35)

344. 346. 385.391.898

V. Knight (1 Add. 241) 118.

386.389.391. 393« 908

(3 Phil. 413) 387

Evdin's case (Cro. Car. 551) 217
Evelyn v. Evelyn (Amb. 191) 952

, ex parte (2 My. & K. 4) 976

Ewing v. Wheatley (2 Hag. Con.

175) 527, 528. 533. 565

Exeter, Bp. of, v. Freake (Lut.

901) - - 31

BY AUTHORITIES WITHOUT NAMES.

XXI

Page
Bxeter, Dean and Chapter case (1

Salk. 334) - 72. 996

Byres ▼. Shaftesbury, Countess (2

P. Wms, 123) • 222

Farmer ▼. Sherman (Het. 133) 731

Famworth v. Chester, Bp. of (4

B. & C. 555) 23. 26. 27. 149.

150, 151, 152. 275.492

Faulkner ▼. Elger (4 B. & C. 449)

218.622
Fawcitt V. Diddear (3 Phil. 580)

948
Fawkener v. Jordan (2 Lee, 327)

960
Fearon v. Webb (14 Yes. 13) 14.

494. 620
Fellowes t. Stewart (2 Phil. 257)

258. 523

Fdldown ▼. Beale (Carth. 288) 861

Feldiam v. Feltham (2 P. Wms.

270) . - 911

Fennell v. Ridley (5 B. & C. 406)

498
Fennerv. Nicholson (Cro. Car. 61)

29
FentODy Martha (3 Add. 36) 963.

976

Fen wick ▼• Orosvenor, Lady (12

Mod. 610) - 710

Femes, Dean, Chapter case (Dav.

46) - - 354

Ferrers v. Ferrers (1 Hag. Con.

130) 338. 342. 348

Ferrier, re (1 Hag. 241) 975

Fellientone, Churchwardens (1

Leon. 177) - 222

Pettiplace ▼. Gorges (1 Ves. 46)

909

Held V. Cosens (3 Hag. 178) 123

Fielder v. Fielder (2 Hag. Con.

193) - 544

V. Hanger (3 Hag. 769) 958

Finch, Lady Hatton, re (3 Hag.
255) - - 703

Page
Finucane v. Gay fere (3 Phil. 316)

947
Fitton V. Hall (Cro. Eliz. 518) 26,

(5 Rep. 97) 26

Fitegerald v. Elsee (2 Camp. 634)

400

— V. Fitzgerald (2 Lee,

312) - 692. 789

Foote V. Richards (1 Lee, 265) 120
Forse v. Kembhng (4 Rep. 60) 908
Forster v. Forster (1 Hag. Con.
144) 324. 334. 342. 345

Foster v. Foster (1 Add. 462) 923.

933

V. Smith (5 Rep. 59) 457

Fox's case (Cro. Eliz. 41 ) 305, 306

V. Chester, Bp. of (2 B. 8c

C. 635) . 847. 854

(6 Bing. 20) 847. 848

V. Marston (Curt. 494) 937

Foy V. Lister (Ld. Raym. 1171)

753
France v. Aubrey (2 Lee, 534)

148. 973
Frances y. Ley (Cro. Jac. 366)

122. 127.188. 715
Franco ▼. Alvarenza ( 1 Lee, 659)

Frankland v. Nicholson (3 M. &

S. 262) - . 509

f^nklin v. Featherstonhaugh (1

Ad. & El. 475) - 269

Frankum v. Famworth (4 Dow.

P. C. 65) . 411

Free v. Burgoyne(5 B. & C. 400)

716. 724. 769. 765
[6 B. & C. 27) 538. 755. 759
[8 Dow. & Ry . 1 79) 244
(2 Hag. 664) - 242

French v. Dear (5 Ves. 546) 232
Frisswell v. Moore (3 PhiK 135)

964

Fruin v. York, Dean of (2 Keb.

778) - - 996

Fryer v. Johnson (2 Wils. 29) 126

Full V. Hutchins (Cowp. 425) 713.

721. 728. 733. 730

XXII

LIST OF CASES CITED

Page
FuUeck V. AUinson (3 Hag. 527)

901.903
Fuller V. Hooper (2 Ves. 241) 921

V. Lane (2 Add. 429) 169.

173. 175. 179. 180. 189. 230.

259. 435, 436
Fnllerton t. Dixon (4 Hag. 402)

945

Gale V. Lnttrell (2 Add. 234) 977
Galisand t. Rigaud (Ld. Raym.

809) - - 718

Gaily V. Selby (Str. 403) - 16
Gardner v. Parker (4 T. R. 351)

217. 222

'8 case (2 Roll. 160) 727

Gardiner v. Cooke (Mos. 16) 16
▼. Griffith (2 P. Wms.

404) - - 16

Gare v. Gapper (3 East, 472) 744
Gascoigne v. Ambler (Ld. Raym.

1004) - - 297

Gaacoyne ▼. Chandler (2 Lee, 241)

489
Gates V. Chambers (2 Add. 177)

667
Gatton V. Milwick (2 Saik. 536)

638
Gerrard v. Sherrington (1 Leon.

286) - • 759

Gibbens v. Cross (2 Add. 457)

921. 937. 955. 969
Gibbons v. Cloyne, Bp. of (Holt,

599) - . 721

Gibbs, re (1 Hag. 376) 920. 947
Gibson v. Clarke (1 Jac. & W.

159) - . - 5

Gilbert v. Bozzard (2 Hag. Con.

333) - 128, 129. 345

(3 Phil. 365) 125. 128. 236

Gilby V. Williamfr (Cro. Jac. 666)

714
Gillow V. Bourne (4 Hag. 192)936
Gilpin V. Gilpin (3 Hag. 150)341.

601
Glassingion v. Rawlins (3 East,

407) - - 52

Page
Glerer v. Hynde (1 Mod. 168) 229
Glover v. Shedd (1 Roll. 229) 721
Gloucester, Bp. of, ▼. Savacre
(Cro. Eliz. 65) - 29

Gobbett's case (Cro. Car. 339) 297
Godfrey v. Davis (6 Ves. 44) 102
Gomersal v. Bishop (1 Leon, 128)

755
Goodale t. Butler (Cro. Eliz. 590)

793. 800

(6 Rep. 21 5)

793. 800
Goodall V. Goodall (2 Lee 264)

37. 39. 335

T. Whitmore (2 Hag. 375)

257. 259. 264. 387. 996

Goodday ▼. Michell, (Cro. Eliz.

441) - 614

Goodtitle ▼. Clayton (4 Burr. 2224)

400
Goodwin v. Goodwin (Telv. 39)

727
Qolding T. Fenn (7 B. 8e C. 765)

217

Gordon t. Eyre (2 Lee 262) 955
Gorge, Sir Thos. v. Dalton (3 Leon.
196) - 11

Gosling ▼. Ellison (1 Salk. 880)

221
Gould y. Gapper (5 East, 863)

721. 748. 750.
Goulson V. Wainwright (Sid. 374)

657. 738
G^race v. Calembeig (1 Lee, 76)

919. 927. 968
Grange v. Denny (3 Buls. 174)

30. 34
Grant v. Grant (I Lee, 592) 39.

391. 530
Graunt v. Taylor (1 1 Rep. 16) 713
Graves, re (1 Hag. 313) 189

Grayson v. Atkinson (2 Ves. 454)

925

Greaterchy v. Beardsley (2 Lev.

241) . 175

Green v. Baker (6 Rep. 29) 464

V. Mayo (2 Lee, 521) 551

V. Penelden (Cro. Eliz. 228)

740

BY AUTHORITIES WITHOUT NAMES.

XXIIl

Page
Oreen ▼. Pope (Ld. Raym. 125)

628

V. Proctor (I Hag. 887)

262. 703

▼. Sbipworth (1 Phil. 58)

918. 954
Gieenongb v. Martin (2 Add. 289)

921. 986
Gieenatreet v. Cumyns (2 Phil. 10)

557. 562
Greenwood v. GTeaveB(4 Hag. 77)

230

— — V. London^ Biahop of,

(5 Taunt 745) 840. 846

Gregg V. Gregg (2 Add. 276) 40.

49, 50. 54. 258. 683

Greerside ▼. Benson (3 Atk. 248)

966

Griffin ▼. Feraid (1 Curt. 99) 919

Griffiiha V. Anthony (5 Ad. & El.

628) - 979

V. Matthews (5 T. R. 296

175. 189
Gfignion ▼. Giignion (1 Hag. 535)

63
Griadall ▼. GrindaU (3 Hag. 259)

332. 670

.^ (4 Hag. 10)68

Grrocera* Company v. Canterbury,

Abp. of (2 H. Bl. 770) 19. 247

Groenvelt v: Beerwel1(l Ld. Raym.

466) - 432. 899

Gfoom ▼. Thomas (2 Hag. 434)

901. 903

Grove v. Addis (2 Lee, 561) 979

Groyes v. Homsey, Rector of,

(1 Hag. Con. 188) 169. 180.

256, 257. 264. 434. 479

Guest V. Guest (2 Hag. Con. 321)

561, 562

Gully V. Exeter, Bp. of, (10 B.& C.

584) - 26. 28, 29

^4 Bing. 290) 8
(5 Bing. 4*i

42) 29
Gundon ▼. Lincoln, Bp. of (Plowd.

496) - - 57

Gumey v. Rawlins (2 Mee. & Wcl.

87) - 073

Page

Habergham v. Vincent (2 Ves. J.

231) - 919, 920

Hadman v. Green (Cro. Eliz. 145)

222. 226. 227
Haffey v. Haffey(14 Ve8.261) 40
Hale V. Exeter, Bp. of, (2 Salk.
589) . . 490

Haley v. Round (Dyer, 350 a) 34
Halford v. Halfoid (3 Phil. 98)
40. 332. 392. 895. 898. 521
Hall, re(l Hag. 139) 964. 978

V. Planner (I Lev. 196)229

V. Maule (7 Ad. & El. 721 )

749

V. Norwood (Sid. 166) 752

V. Warren (9 Ves. 604) 901

Halliday v. Hudson (3 Yes. 210)

914
Halton V. Cove (I B. & Ad 588)

Hamerton v. Hamerton (1 Hag.

23) 36. 39. 53. 479. 687. 694

(2 Hag. 8) 327. 331. 659

(3 Hag. 332) 435

Hammersley v. London, Bp. of,

1 Marsh. 293) - 846

Hannay v. Taynton (2 Add. 505)

962
Harding v. Goseling (3 Buls. 241 )

713. 724
Hardstone, re (1 Hag. 487) 964.

977
Hare v. Bickley (Plowd. 529) 5

v. Nasmyth (2 Add. 25) 665

Harford v. Morris (2 Hag. Con.
423) - - 564

Harley v. Bagshaw (2 Phil.48) 930
Harper v. Carr (7 T. R. 270) 227
Hartley v. Cook (5 Car. & P. 441)

637
Harris v. Bedford (2 Phil. 177) 915
(2 Phil. Ill) 314

V. Butler ( 1 Hag. Con. 486)

296

V. Drewe (2 B. & Ad. 164)

176

XXIV

LIST OF CASES CITED

Page
Harris v. Harris (2 Hag. Con. 148)

330. 343

(1 Hag. 351) 937

(2 Hag. 409) 330

334. 336

V. Hicks (2 Salk. 548) 549

146
▼. Milbum (2 Hag. 62) 261

974
T. Tippet (2 Camp. 636) 397

Harrison v. Cage (Ld. Rayxn. 386)

754

V. Stone (2 Hag. 537) 930

Hart*8 case (Cro. Jac. 472) 297
Hart V. Marsh (5 Ad. & £1. 591)

715. 728. 750

▼. YoUans (1 Dow. P. C.434)

829
Haslefoot v. Haslefoot (2 Lee, 477)

916
Haughton v. Starkey (Str. 82) 756

V.Wilson (Freem. 1 29) 738

Haw V. Burton (Comb. 84) 908

V. Planner (2 Keb. 124) 229

(lSaund.l4)229

Hawke v. Corn (2 Hi^. Con. 280)

332. 483. 485

Sir Edward (2 Lee, 262) 955

Hawkes v. Hawkes (1 Hag. 321)

36. 38. 1 89
Hawkins v. Chappel (1 Atk. 620)

14
Hawley's case (1 Vent. 142) 627
Hayes v. Watts (3 Phil.) 43) 544

545

Headington v. HoUoway (3 Hag.

280) " 927

Hearle v. Greenbank (3 Atk. 695)

16
Heath v. Atworth (Dyer, 240 b.) 67
Heffer v. Heffer (3 M. 8c S. 266)

525
Helyar v. Helyar (1 Lee, 472) 921 .

929. 935. 939
Hemming v. Price (2 Mod. 432)

549

Henderson v. French (5 M. & S.

406) - 979

Page

Henslow v. Sarum, Bp. of, Dyei*,

77 a.) - 30

Herber v. Westminster (IP. Wms.

774 . 152

Herbert v. Herbert (2 Phfl. 430)

49. 53. 409. 683. 979

(3 Phil. 58) 165. 673

■ (2 Hag. Con. 263)

340. 385. 681

Hereford, Dean of, v. Hereford

Bp. of, (Cro. Eliz. 440) 10

Heme v. Brown (1 Vent. 339) 599

Ve(l Hag. 222) 915. 922.

947. 965
Hesse^ Elector of, re (1 Hag. 93)

955. 963
Heydon v. Godsole (2 Buls. 167)

740

Heys V. Exeter College (12 Yes.

346) • 700

Hibber ▼. Calemberg (1 Lee, 558)

408
Higgins V. Grant (Cro. Eliz. 18) 12

▼. Hi^ns (4 Hag. 242)

978
Higginson v. Colcot (1 Lee, 138)

911
Hill ex parte (1 Deac. 87) {832

V. Bame (2 Lee, 250) 111. 454

V. Bulkely (l Phil. 280) 385

V. Exeter, Bp. of (2 Taunt.

69) - - 11. 846

V. Harris (2 Show. 460) 746

V. Yaux (Ld. Raym. 360) 726

HiUam V. Walker (1 Hag. 71) 948

Hilliard v. Jefferson (Ld. Raym.

212) - 238. 713

V. Jennings (Ld. Raym.

507) - - 927

Hillier v. MiUigan (1 Lee, 398)

645
Hills V. Mills (1 Salk. 36) 950

V. Worley (2 Atk. 604) 137

Hillyer v. MiUigan (2 Lee, 8) 645
Hinckley re (1 Hag. 477) 957
Hitchins v. Basset (3 Mod. 203)

936
Hoar V. Hoar (3 Hag. 137) 341

BY AUTHORITIES WITHOUT NAMES.

XXV

Page
Uobson V. Blackburn (1 Add. 274)

913
Hoby y. Uoby (1 Hag, 146) 908.

905. 956
Hodges v. Hodget (3 Hag. 118)

337. 824

HodgkiBson v. Fletcher (4 Camp.

69) - - 259

V, WOkie (1 Hag. Con.

262) . - 544

Hodson y. Shaip (10 East. 350)

745
Hofle y. Scales (2 Hag. 566) 119.

121

Holbech v. Bennet (2Lev. 12) 719

Holden ▼. Holden (1 Hag. Con.

453) - - 343,344

Hollah ▼• SL Martins Orgars (2

Add. 257) - 435

Hollingshead's Case (Cro. Car.

229) - 296. 718

Holme's case (Dyer, 26, a) 10

Holt y. Hdlaad (3 Lev. 59) 30

Holt's case (i Bals. 179) 721

Holt y. Winton, Bp. of (3 Ley. 46)

11.18

Home y. Camden, Earl (2 H. Bl.

537) - 743. 750

Hooton V. Head (3 PhU. 26) 975

Hopper y. Davis (1 Lee, 640)

437.441

H(»ne,ex parte(7 B.& 0.632)973

Homer y. Homer (1 Hag. Con.

337) 104. 344. 526. 544. 557.

566

Hors&ll v. Handley (8 Taunt.

136) - - 128

Horton y. Wilson (1 Mod. 167)

713
How v. Price (7 Mod, 112) 755
Howard v. Wilson (4 Hag. 107)

997
HoweU y. Metcalf (2 Add. 348)

965

y. Lock (2 Camp. 1 4) 390

Hubbard v. Penrice(Str.l246)2l7

Huble V. Clarke (1 Hag. 115) 949

Hudson V. Beauchamp (1 Add.

352) - - 408

Page
Huet v. Dash (2 Lee, 511) 121
Hughes y. Cook (1 Lee, 386) 951

y. Herbert (2 Lee, 287)

62. 692

y. Rickards (2 Lee, 543)

959

y. Turner (4 Hag. 52) 56.

935
Humphreys v. Ingledon (IP.
Wms. 752) . 970

Humphrys v. Knight (Cro. Car.
455) - - 247

Hunt y. Athill (2 Rolle. 211) 989
Hunter v. Bulmer (3 Phil. 260)256

V. Bryan (2 Add. 311)978

HurriU, re (1 Hag. 252) 947

Hutchings v. Denailoe (1 Hag.

Con. 170) 119, 120, 121. 136.

228. 406. 653. 664. 670

Button's Case (Latch. 116) 174

t in the goods of (Curt. 695)

949

Hchester, Earl of, ex parte (7 Ves.

349) - 544. 933

Ilderton v. Ilderton (2 H. BL 145)

75,76
He's case (1 Vent. 153) 834

Ingram y. Stioag (2 Phil. 294)

544.913.936.979

V. Wyatt (1 Hag. 384)

385, 386. 660. 906. 911. 915
I. S. v. Martin (2 Buls. 18) 800
Ive V. Samms (5 Rep. 116) 6
Iveson V. Harris (7 Yes. 252) 758

Jacob y. Dallow (12 Mod. 233,

2Salk. 551) - 175.714

Jackson v. Adams (2 Bing. N. C.

402) - -221

James v. Dean (15 Ves. 243.) 52

v. Reeling (3 Hag. 483) 264

Jameson v. Schonswar (I Dow. P.

0.178) — - 902

v. Cooke (1 Hag. 82) 915

XZVl

LIST OF CASES CITBD

Page

Jaqaet ▼. Cesar (2 SaoncL 07) 769

Jannan ▼. Bagster (3 Hag. 356)

119. 121. 340. 663. 665

V. Wise (8 Hag. 360) 121

Jay T. Webber (8 Hag. 4) 435

Jeffenon ▼. Durham, Bishop of

(1 Bos. & P. 105) 317. 759

Jeffrey v. Kenshley (5 Rep. 66}

728
JdLyll v. JekyU (1 Lee, 419) 918

974
Jenkins, ex parte (1 B. & C. 656)

428, 429. 698

V. Barrett (1 Hag. 12)

118. 120. 893. 664

■ ' ■ V. Whitehouse (1 Burr.

431) . . 909

Jenour v. Jenoor(10 Ves. 572)268

Jermyn's case (Cro. Jac. 670.^ 730

Jerxam, re (1 Hag. 550) 947

Jeirard ▼. Sannders (2 Ves. Jun.

454) . - 926

Jesus' Coll^ y. Bloom ( Amb. 54)

726
Johnson r. Lee (5 Mod. 238) 703

V. Ley (Skin. 589) 43

V. WeUs (2 Hag. 561)

937. 939
Johnston, re (4 Hag. 209) 407. 496

V. Johnston (1 Phil. 447)

411

▼. Parker (3 Pha. 39)

411.544.567
Jones T. Barrat (Bunb. 192) 833

V. Beytagh (3 Phil. 635)

954. 957

re (1 Hag. 81) - 942

V. Goodchild (3 P. Wms. 32)

102. 953

V. Jones (1 Hag. 254) 659

(2 Phil. 241) 384.946

v. Landaff, Bp. of (4 Mod.

31) • - 145

V. Robinson (2 Phil. 285)

545. 576
T. St Asaph, Bp. of (Comb.
395) - - 723

— V. Stone (Ld. Raym. 578)

713. 759

Jones ▼. Yamold (2 Lee, 570) 46
Jouet, Cavalier (2 Ad. 504) 962
Juxon ▼. Bynm (2 Ler. 64) 734

KadwaDader ▼. Bryan (Cro. Car.

162) . 710. 752. 755

Keane, re (1 Hag. 692) 956

Kearney v. Whitaker (2 Lee, 324)

955
Keeton, re, (4 Hag. 209) 407. 946
KeUy V. Walker (Cro. Elis. 655)

715. 750
Kemp y. Wickes (3 Phil. 264) 69.
70. 128. 130. 132. 424. 564
Kempe y. Kempe (1 Hag. 532) 37
Kenny v. Jackson (1 Hag.l05)977
Kenrick v. Kenrick (4 Hag. 114)

393

Kent y. NichoU (Owen, 49) 16

Killican y. Parker, Lord (1 Lee,

663) - - 945

King y.'Baylay (1 B. & Ad. 761)

294. 858

y. Farley (I Hag. 502) 906.

913. 929. 989

y. Fowler (Salk. 293) 429.

698

King's Proctor y. Stone (1 Hag.

Con. 424) 64, 65. 67. 544

Kington y. Hack (7 Ad. & £1. 712)

758
Kinleside y. Cleayer (1 Hag. 345)

958

y. Harrison (2 Phil. 449)

901. 905. 918

Kircudbright y. Kircudbright (8

Ves. 54) - - 848

— (1 Hag. 325) 939. 961

Kirkhouse y. Fawkener (2 Lee,

325) . . 701

Kirkman y. Kirkman (1 Hag. Con.

409) - - 343. 481

Kirkwall, Lady, v. Kirkwall, Lord

(2 Hag. Con. 277) 328. 338.

340. 349

BY AUTHORITIES WITHOUT NAMES.

zxvii

Page
Knight ▼. Cooke (I Lee, 413) 923

V. Mosely (Amb. 176) 317

Know] V. Harvey 3 Bols. 158)

309 317

(1 RoUe, 335) 309. 317

Kooystia V. Bnyskes (3 Phil. 531)

957

Lagden ▼. Robinson (1 Hag. Con.

501) - - 256

Lambert ▼. Knott (6 Dow. & Ry.

122) - - 232

V. Weal (4 Hag. 192) 382.

659. 997.
Lambell v. Lambell (3 Hag. 568)

933. 935. 950
Lamkin v.Babb(l Lee, 1)916.919
Lancaster v. Lowe (Cro. Jac. 92)

24. 487. 489
Lanchester y. Frewer (2 Bing. 361 ,

9 B. Moore, 688) 232. 868. 105
▼. Trlcker (1 Bing, 201,

8 B. Moore, 20) 232. 868

Lone V. Pigot (Moore 915) 715.

758
Laikins ▼. Larkins (3 Bos. 8c P.

16) - - 934

Laseelles v. Jobber (1 Lee, 443)

977

Laud ▼. Browne (1 Lee» 10) 919

Lantour ▼. Teesdale (8 Taunt.

830) - - 573

Law, ex parte (2 Ad. & El. 45)

747. 945

▼. Campbell (1 Hag. 56)

681. 958
Layton'scase (Latch. 125) 713
Lea V. Libb (3 Salk. 395) 927
Leake v. Coventry, Bp. of (Cro.
Eliz. 811) - - 673
Leaklns v. ClisseU (Sid. 146) 724
Le Breton v. Fletcher (2 Hag. 568)

929

— — ^— ▼. Le Quesne (2 Lee,

261) - - 969

Le Caux v. Eden (Doug. 613) 758

page
Lee ▼. Atkfaison (Telv. 172) 226.

728. 734

v. Chalcraft (3 Phil. 639) 666.

991. 1002

V. Drake (2 Salk. 468) 637

y. Matthews (3 Hag. 169) 120.

259. 665
Legastick v. Cowne (Moseley 391)

102
L^;att V. Legatt (1 Lee, 408) 390
Leah's case (3 Mod. 332) 704

V. Bonsall (1 Add. 399)

268. 924
Lemaine v. Staneley(Freem. 538,
3 Lev. 1) - 925

Leman v. Goulty (3 T. R. 3) 231 .
233. 711. 729. 748. 758
Lewin v. Lewin (1 Ves. 415) 14
Lewis V. Owen (1 Lee, 538) 52
L'Huille V. Wood (2 Lee, 22) 916
Lighton, Sir John, re, (1 Hag. 255)

943

Lilly V. Hardy (1 Lee, 52) 991

Lincoln, Bp. of, v. Wolferstan

(1 W. B1.490, 3 Burr. 1504)

66, 67. 840. 846
' V. Cooper (1 Leon. 248)

120

Lindo V. Belisario (1 Hag. Con.

216) 483. 506. 580. 671

Line v. Harris (1 Lee, 146) 150

Lingen's case (Dyer, 323) - 9

Linthwaite v. Galloway (2 Lee,

414) - - 958

Littlewood v. Williams (1 Marsh.

589) - - 126

(6 Taunt. 281) 125,

126. 128
Lien V. Seymore (Palm. 525) 758
Lloyd V. Nevill (1 Lee, 559) 977

V. Poole (3 Hag. 477) 52.

231. 259. 268
Lock V. Denner (1 Add. 361) 396.

398. 669

Logan V. Burton (8 Dow. 8c Ry.

299) - - 631

Lomax v. Armorer (1 Vent. 266)

220. 737

London, Bp. of, v. Ffytche (1 East,

487) - - 850

XXTUl

LIST OF CASES CITED

Page
London, Bp. of v. Meroen' Com-
pany (Stra. 931) - 31
Long v. Aldnd (3 Add. 48) 940
— V, Hemmings (1 Leon. 207)

5.9

V. Symes (3 Hag. 771) 261.

944
Longchamp ▼. Fiah (2 N. R. 415)

905. 907
Longfoid V. Byre (1 P. Wma. 740)

926

V. Pigott (Cro. Eliz. 56)

758

Loton ▼. Loton (1 Hag. 683) 975

Love V. Prin (Cro. Eliz. 753) 718

Loreden y. Loveden (2 Hag. Con.

1.) - 328. 331, 332

(I Pha. 208) 39. 55

Lovekin v. Edwards (1 Phil. 179)

979
Loverng ▼• Lovering (3 Hag. 85)

338. 340
Lowten ▼. Colchester, Mayor of,
(2 MeriT. 113) - 269

Lncas v. Lucas (2 Lee, 576) 955
Lacy V. St. David's, Bp. of
(7 Mod. 56) - 698

Lugg V. Lugg (Ld. Raym. 441)

937
Luke y. Aldeme (2 Vem. 31) 727
Lyon y. Balfour (2 Add. 501) 944

Machin y. Grindon (2 Lee, 406)

921
Macchin v. Moulton (1 Ld. Raym.

534) - 691

(2 Salk. 549) 691. 718. 762

Maodonnell y. Prendergast (3 Hag.

212) - - 944

Mackfdler y. Tedderick (Cro. Car.

361) - . 840

Mackenzie y. Handasyde (2 Hag.

224) . 906. 929

V. Rohinson (3 Atk.

558) . - 16

Maclae v. Ewing (1 Hag. 317)

917. 958. 960

Page
Maclean y. Maclean (2 Hag. 605)

397» 398
Macneal y. McQregat (1 Dow. &

CI. 256) - 26

McAdam v. Walker (1 Dow. 178)

553. 578
McArthy y. De Caix (2 CI. &

Fin. 569) - - 578

Magnay y. St. Martin's Rectory

(1 Hag. 48. 62) 437. 440

Maidman y. Malpass (1 Hag. Con.

205) 126. 128. 162. 228. 437

Mainwaring y. Giles (5 B. & A.

356) . 173. 175, 176. 187
Major y. Peck (Lut. 342) 962
Mfldlary y. Marriott (Cro. Eliz.

667) - . 736

Mallet y. Trigg (1 Vem. 41) 58
Manby y. Scott (Sid« 1 12) 552
Manly y. Lakin(] Hag. 130)919
Manning y. Happ (8 Salk. 37) 953
Mannodke's case (Dyer, 294* 5.)

292
Mansfield y. Shaw (3 Phil. 22) 261
Marayer, Donna Maria (1 Hag.

498) . - 910

Market Bosworth, Churchwardens,

y. Rector (1 Ld. Rajrm. 435)

662. 713
Marlborou^ y. Godolphin (2 Yes.

Sen. 75) - 90S

Marlow y. Pitfield(l P. Wms. 559)

726
Marriott y. Kinsman (Cro. Car.

219) . 908
y. Marriott (Str. 669) 941

044.

Marsh y. Bentham (2 Buls. 279)

309. 316

y. Fawcett (2 H. Bl. 583)

828

y. How (2 Atk. 49) 909

y. Smith (1 Leon. 26) 6

y. Tyrrell (I Hag. 133)

340. 609

(2 Hag. 133) 40

261.332. 337, 338. 411. 902

Marshall, re ( 1 Curt. 297) 959

Marston v. Roc, dem. Fox (8 Ad.

&E1. 63) - - 938

BY AUTHORITIES WITHOUT NAMES.

Page
V. Lakm (1 Hag. 244)
263. 923. 938. 948

▼. Nutkm (2 P. Wms.

267) - - 226

V. Robinson (2 Lee, 535)

260
V. Wattcn (1 Lee, 230) 906

Martyn v. Hine (Cowp. 437) 725
Masterman t. Maberly (2 Hag.
246) - 916. 920. 936

Masters ▼. Wood (2 Lev. 164) 737
Matthews v. Boxdett (2 Salk. 672)

137

V. Warner (4 Ves. 200)

913. 915. 917
May V. GDbert (2 Bills. 150) 188
Mayhew ▼. Mayhew (2 Phil. 11)

326. 521
Maynard ▼• Brand (3 Phil. 501)

523. 962
Mayo ▼. Brown (1 Lee, 570) 951
Mead ▼• Bygott (Cro. Eliz. 230)

120
Meath v. Belfield (1 Wilson, 215)

469
Meddowcroft v. Meddowcroft (2
Hag. Con. 207) - 38

Medlycott v. Assheton (2 Add.
231) - 921.934

Mcgit T. Johnson (Doug. 542) 102
Mercer v. Morland (2 Lee, 606)

952
Metcalfe, Sir John (1 Ad. 343)

963
Methuen v. Methnen (2 Phil. 416)

921

Midaelson v. Mkhelson (3 Hag.

147) • - . 843

Middkton, Ann (2 Hag. 60) 660

▼• Crofts (2 Atkins 650,

Ca. T. Hard. 395) - 757

ez parte (3 B. & C.

164) " - 498

— — — V. Janverin (2 Hag.
Con. 437) - 508

v. Middleton (2 Hag.

Sup. 139) 153, 332. 403. 659

Mildmay's case (1 Vent. 233) 726
Mill ▼. Blandford (2 Lee, 487) 951

Page
Millar's case (Freen. 283) 739
Millar v. Bloomfield (1 Add. 499)
43. 441. 991. 993. 997
— — V. Heinrick (4 Camp. 155)

409

V. Palmer (Curt. 540) 982

r- V. Scare (2 W. Bl. 1 141) 432

Miller v. Brown (2 Hag. 219)

261. 908

V. Shepherd (2 Lee, 520) 408

V. Washington (3 Hag. 277)

954
Millington v. Lorsby (1 Lee, 525)

977
Mirehouse v. Rennell (8 Bing. 490)

294. 355

(1 C. & Fin. 527) 18

Mitchell y. Mitchell (2 Hag. 76)

917. 919. 930
Montagu v. Montagu (2 Add. 374,

170. 481. 681

Montefiore v. Montefiore (2 Add.

371) • 906. 916

Moore's case (Ld. Rayni. 1028)

502
Moore t. Daiell (4 Hag. 346) 969

V. De la Torre (1 Phil. 375)

972

V. Hackett (2 Lee, 147) 968

V. Moore (1 Phil. 406) 939

V. Payne (2 Lee, 595) 907

Moorsom v. Moorsom (3 Hag. 96)
332. 340. 342. 658. 660. W6.

669
More y. More (2 Atk. 158) 137.

513

Moresby, re (1 Hag.378) 932, 934

Morgan y. Cardigan, Archd. (Salk.

166) 219. 222. 857

y, Curtis (3 Man. & Ry.

389) 175. 180. 187

y. Hopkms (2 Phil. 582)

55. 657. 658
Morris y. Dayies (3 Car. & P. 215)

V. Webber (F.Moore, 225)

12
Morrison y. Arnold (19 Ves. 671)

927

LIST OF CASES CITED

Page

Morrison ▼. Tomonr (18 Ves.

183 - - 926

Morse v. Morse (2 Hag. 608) 386.

671

Mortimer v. Mortimer (2 Hag.

Con. 810) 173. 330. 338. 346.

348
Morton ▼. Hopkins (Sid. 407) 718
Morwan v. Thompson (3 Hag.
239) - - 909

Moseley v. Warburton (Ld. Raym.
675, 1 Salk. 320) 827

Moss V. Blander (1 Phil. 254)

909. 912
Moysey v. Hillooat (2 Hag. 47)

147. 150. 163
Murphy v. Mason (1 Lee, 349)

929

Myddleton y. Rushout (1 Phill.

244) - 683. 977

Mynn y. Robinson (2 Hag. 179)

906. 929
Mytton V. Mytton (3 Hag.657) 38

Napier, goods of, (1 Phil. 82) 911
Nash V. Nash (1 Hag. Con. 140)

346. 663
Naylor v.Stainsby (2 Lee, 54) 942
Neagle y. Cantillon (2 Lee, 246)

965
Neeld y. Neeld (4 Hag. 263) 36.

343. 664. 671. 825

NeO y. Neil (4 Hag. 263) 39

Newberry y. Goodwin (1 Phil.

282) - 118.259

Newell y. Simpkin (6 Bing. 565)

999

V. Weeks (2 Phil. 224)

262. 948
Newstead, goods of^ (1 Curt. 593)

954
Nicholson y. Squire (16 Yes. 260)

509. 512

Robert, goods of,

(2 Add. 333) - 956

Page

Nightingale y. Marshall (2 B. &

C. 313, 3 Dow. & Ry. 549)

834. 868
Nokes y. Milwaid (2 Add. 390)

410. 664)

Norman y. Danger (3 T. & J.

203) - - 227

Norris y. Hemingway (1 Hag. 4)

62
North y. Barker (3 Phfl. 307)317
Northampton's case (Carth. 118)

215. 217

Northey y. Cock (1 Add. 330)961

Northwaite y. Bennett (2 Cro. &

Mee. 316) • 226

Norwich, Dean and Chapter's case

(3 Rep. 75) 292, 293

O'Brien y. Kniwan (Cro. Jac. 552)

109. 216
O'Byme, re (1 Hag. 316) 964
Offley y. Whitehall (Bunb. 17)748
Oliye y. Ingram (Stra. 1114) 834
Oliyer y. Heathcote (2 Add. 40)

657

y. Hobart (1 Hag. 43)244.

305. 665

■■ ■ -y. Oliver (1 Hag. Con.

361) . - 344

Omychund y. Barker (I Atk. 21)

573
On^ey y. Chambers (Brown, 688)

8.232
Onions y. Tryer (i P. Wms. 345)

932

Orme y. Pemberton (Cro. Car.

589) - 637. 730

Osborne y. Poole (Ld. Raym.

236) . - 757

Osseries', Bp. of, case (Palm. 27)

108
Otway V. Otway (2 Phil. 109) 37.

39.343
Owen y. Griffith (1 Ves. 250)268

y. Owen (4 Hag. 261) 327.

330, 823

BY AUTHORITIES WITHOUT NAMES.

xxxi

Page

Paget Y. Crompton (Cro. £liz.

659) 728. 734. 997

Pain y. Beeston (1 M. & R. 20)

S98

Palmer v. Ezon, Bp. o^ (Sfana.

676) - 162. 437

V. Raffey (2 Add. 144)121

— V. Thorpe (4 Rep. 20) 296
v. Tyon (2 Add. 201) 122

Paiiiam v. Templar (3 Phil. 515)

48. 59. 180. 218. 289. 643

P^uker V. Kemp (2 Bols. 227) 734.

741

V. McWilliam (6 Bing.

683) - - 388
V. Parker (2 Lee, 382)

951
V. Seabrook (Hard. 180)

899
Parman v. Bowyer (Cio. Eliz. 669)

490
PameU v. Parnell (2 Phil. 158)

340
Parochial Schoolmasters of Scot-
land ▼. Eraser (2 Hag. 613)691
Pbrsoos y. MiUer (2 Phil. 194)924
Partington y. Barnes, Rector of,
(2 Lee, 345) 436, 437

Paske y. OUatt (2 Phil. 323) 945
Paasmore y. Passmore (1 Phil. 216)

917. 919. 921
Patten v. Castleman (1 Lee, 387)

424
P^ol y. Nettlefold (2 Add. 237)

977
Pawlet y. Head (2 Lee, 566) 243.

792
Talon y. Knight (1 Barr. 314)

714. 721
Peacock y. Monk (1 Ves. Sen. 127)

919

Pearce y. Clapham, Rector of (3

Hag. 10) 161. 435. 441. 681

Pearson y. Campion (1 Doug. 629)

725
Peat's case (6 Mod. 408) 628

Page
Peddle y. Eyans (I H^g. 684)

703. 948
Peddle y. ToUer (3 Hag. 283)

256. 260. 264. 703
Pederson y. Stoffles (1 Camp. 144)

389
Pelham y. Newton (2 Lee, 46) 921
Pemberton y. Pemberton (18 Yes.
301) . 411.934.941

Perdyal y. Cooke (2 Car. & P.
460) - - 313

Perrin y. Perrin (1 Add. 1) 329.

565. 667
Petrott y. Perrott (14 East. 438)

933

Pertrees y. Tondear (1 Hag. Con.

136) - - 531

Pettifer y. James (Banb. 16) 951

Pettman y. Bridger (1 Phil. 316)

175. 259. 662
Pewy.Cre88well(l Stra. 1012)238
Pewtress y. Haryey (1 B. & Ad.
154) . 264. 755. 756

Phelps y. Lewis (For. 143) 7. 16
Philips y. Bury (2 T. R. 353) 896

y. Salisbury, Bp. of (12 Mod.

321) - - IS

Philipson v. Hayrey (2 Lee, 344)

977
Phillips y. Alcock (2 Lee, 97) 974

V. BigneU (1 Phil. 239)

169. 261. 976. 977. 978

V. Pearce (5 B. & C. 433)

(8 Dow. & Ry. 43) 224

Phillybrown y. RyUnd (8 Mod.

52) - . 872

(Ld. Raym. 1388) 351

(Stra. 624) 872

224. 436
Pickard y. Paiton (1 Sid. 276) 827
Pickering y. Pickering (1 Hag.

480) . - 943.945

Pierce y. Prowse (1 Salk. 165) 992
Pierson y. Atkinson (Freem. 7o)

725
Pierrepoint y. Holbecke (2 Lee,

252) - - 966.976

Piggot y. Salisbury, Earl of (2

Mod. 115) - 564

xxxii

LIST OF CASES CITED.

Page
Pit V. Webley (Cro. Jac. 321) 241
Pitt V. Woodham ( I Hag. 247) 977

V. Pitt (2 Lee, 508) 978

Plunket V. Sharpe (1 Lee, 623)

530. 978

(2 Lee, 35) 530.533.951

Pocock V. Lincoln, Bp. of (8 Bro.

& Bin. 27) - - »

Pohlman v. Untzellman (2 Lee,

319) . - 789

Pollard V. Awker (12 Mod. 260)

713

V. Gerard (Ld. Raym.

703) - - 703.725

V. Wyburn (1 Hag. 725)

563
Poole V. Poole (2 Cro. & Jer. 66)

547
Porter v. Clarke (2 Sim. 520) 630
Porter's case (Cro. Car. 461) 325.

461

Portland v. Bingham (1 Hag. Con.

157) 57. 58. 149. 275

V. Rodgers (2 Vem. 104)

911

Portsmouth v. Portsmouth (3 Ad.

64) - - 86

. (I Hag. 335) 268. 533.

565. 659
Potter V* Chapman (Amb. 98) 8.

112. 118

V. North (1 Saund.346) 177

Pougett V. Tomkyns (3 M, & S.
263 - - 517

(2 Hag. Con. 142) 346

(1 Phil. 599) 522

Pountney, re (4 Hac. 289) 958
Powell V. Milbum (3 Wils. 366)

355. 469

V. Sheen (Cro. Car. 531) 710

Powers V. Shaw (1 Wils. 62) 297

Prankard v. Deacle (1 Hag. 169)

59. 645. 683. 700. 960.

Prentice v. Farrand (1 Lee, 347)

978

V. Prentice (3 Phil. 311)

704

Price V. Clarke (3 Hag. 265) 55.

415. 670

Page
Price V. Davies (Comb. 671) 716

V. Parker (1 Lee, 157) 142

Pride v. Bath, Earl of (Salk. 120)

83
Priestly V. Lamb (6 Ves. 421)

243. 509. 513

V. Hughes (11 East, 1) 544

Prise V. Canterbury, Archbp. of

(Dyer, 78 6.) - 7. 729

Proctor V. Proctor (2 Hag. Con.

292) - - 335. 573

Procurator Greneral v. Daines (3

Hag, 218) . 919. 974

Pye, ex parte (18 Ves. 148) 411

Pynchyn v. Harris (Cro. Jac. 731)

Quarles v. Fayrchild (Cro. Eliz.

653) - - 354

Queen v. Brancaster (7 Ad. & £1.

458) - - 986

V. Fane (4 Leon. 109) 17

V. Hill (1 Salk.) 294) 698

V. Lincoln, Bp. of (Cro. Eliz.

19) - 119.455.487

▼• Middleton (1 Leon. 44)

V. Page (Cro. Eliz. 720) 857

V. Peach (2 Salk. 672^ 628

'■ ▼• St. Mary Lambeth (8 Ad.
& El. 856, 3 N. & P. 416) 218

877

St. Saviours (7 Ad. & Ell,

936) - - 995

Watson (Ld. Raym. 817)

428. 698
Quilter v. Newton (Carth. 157)

229. 230. 720

Radcliffe v. D'Oyley (2 T. R. 630)

310. 315

Radford v. M'Intosh (3 T. R.

635) - - 795

BY AUTHORITIES WITHOUT NAMES.

xxxm

Page

Radnall, Maiy, goods of (2 Add.

222) - - 930

Ramsford v. Taynton (7 Ves.

460) - - 965

Ray ▼. Sherwood (l Cuities, 193)

512. 556. 558

Raymond v. De Watteville (2 Lee,

551) - 705. 916. 978

Read, re (1 Hag. 474) 40

V. Phillips (2 Lee, 122)915

Reav V. CJowcher (1 Hag. 75) 260»

668

(2 Hag. 252) 905. 915

Rebowv. Bickerton (1 Bunb. 81)

753
ReddaU v. Leddiard (3 Phil. 256)

544. 545
RedmOl V. Redmill (3 Phil. 410)

948
Rees V. Rees (3 Phil. 387) 36. 38
Reeves v. Reeves (2 Phil. 125)

265. 329. 566

Reitz» re (3 Hag. 766) 969

Renolds v. Green (2 Buls. 27) 41

Rennel ▼. Lincoln, Bp. of (7 B.

&C, 113) 4. 8,9, 10, 11. 16,

17. 19. 23. 106. 112. 489. 846

(8 Blng. 223) 9, 10. 16,

17, 18. 57. 112
Repington v. Collins (Wills, 170)

▼. Holland (2 Lee, 264)951

Rex V. An Saints, Derby, Inhabi-
tants of (13 East, 143) 227

V. Armagh, Bp. of (Stra. 5 10)

857

V. Bank of England (2 B. &

A. 622) - 629

V. Barker (6 Ad. 8c El. 388)

989. 995
(3 Burr. 1265) 627

— V. Bathwick, Inhabitants of
(2 B. & Ad. 640) 1000

V, Bedford Level, Corporation
of (6 East, 356) - 654

— V. Bettesworth (Stra. 56) 142.

957. 994

— V. Betts (Ld. Raym. 1506)

717

Page
Rex V. Birmingham, Churchwar-
dens of (7 Ad. & EL 258) 879

V. Blake (2 B.& Ad. 139)430

V. Boldero (6 Dow. & Ry.

564) - - 191

V. Bobbing, Inhabitants of

(1 N. & P. 166) - 638

V. Brampton, Inhabitants of

(10 East, 289) - 573

v.Brotherton(StTa. 701)497

V. Canterbury (Cro. Car.

354) - 488. 673

(15 East, 107) 454. 627.

632

— V. Capper (5 Price, 262) 973

— V. Catesby, Inhabitants of
(2 B. & C. 814) 216

— V. Cheshunt, Trustees of (5
B. & Ad. 438) - 629

— V. Chester, Bp. of (1 T. R.
401) - 293. 354

(1 Ld. Raym. 294)1

(2 Salk. 560) - 1 ^ ..^

(3 Salk. 24) - r"^^

(Skinner, 651) - J

(5 Mod. 297) - 27

(1 Wils. 206) 294

— V. Chuter (1 Keble, 418) 220

— V. Clarke (2 Stark. 241) 392

— V. Clear (4 B. & C. 899) 231
(7 Dow. & Ry. 393) 231

— V. Colchester Mayor of (2 T.
R. 259) - 633

— V. Coleridge (2 B. & A. 806)

125, 126. 628

— V. Colley (M. & Mai. 329)

388

— V. Cox (2 Burr. 785) 500

— V. Davie (6 Ad. & El. 374)

14. 621. 683. 637

— V. Davies (9 Dow. & Ry.
234) - - 627

— V. Daubeny (Stra. 1 1 95) 2 1 7

— V. Denbighshire, Magistrates
(15 East, 285) - 628

— V. De Manneville (5 East,
221) - - 103

— V. Derbyshire, Justices of (1
W. Bl. 606) - 627, 628

XXXIV

LIST OF CASES CITED

Page
Rex V, Derbyshire, Justices of
(4 Burr. 1991) 627, 628

V. Dugger (5 B. & A. 791)

428, 429. 431. 698
(1 Dow. & Ry. 460) 698

— V. Ely, Bp. of(l H. Bl. 71)

758

— V. Exeter, Bp. of (2 East,
466) 492. 627. 630

— V. Eyre (Stra. 1066) 428. 698

— V. Fenton (3 Keble, 527) 996

— V. Field (4 T. R. 125) 492.

630. 712. 717

— V. Fowler (1 Salk. 550) 698

— V. Free Fishers of Whitstable
(7 East, 352) - 275

— V. Gaskin (8 T. R. 209) 638

— V, Harris (1 W, Bl. 430, 3
Burr. 1420) 217. 221

— V. Hay (4 Burr. 2295) 994

— V. Hay worth (Bott. 460) 104

— V. Hazell (13 East, 142) 215

— V. Hereford, Bp. of (1 Com.
360) . . 9

— V. Hinckley, Inhabitants of
(12 East, 361) - 215

— V. Hodnct, Inhabitants of (1
T. R. 96) - 544

— V. Ingleton, Inhabitants of
(3 Burr. 1877) - 037

— V. Isley and Wife (5 Ad. &
El. 441) - - 749

— V. Jenkins (3 Dow. & Ry.
41) - . 698

— V. Jotham (3 T. R. 578) 627.

629

— V. Kealing (1 Dow. P. C.
440) - - 757

— V. Keats (Stra. 950) 428
V. Kingsclere, Churchwar-

dens of (2 Lev. 18) 627. 629

— V. Lake (Hard. 364) 737. 746

— V. Landaff, Bp. of (1 Stra.
1006) - 26. 642

— V. Larwood (4 Mod. 274) 228

— V. Lee (Show. 251) 62

— V. Lincoln, Bp. of (Cro. Eliz.
119) . - 11

Page

Rex V. Litchfield (5 Nev. & Man.

42) - 628

V. London, Bp. of (13 East,

426) 495. 627. 630. 723

(1 T. R. 331) 492. 627

(Ld. Raym. 25) 19. 247

(Show. 413) 247

Salk. 559) 634

1 Dow. & Ry. 486) 827
1 Wils. 11) 492.630

— V. London Insurance Com-
pany (5 B. & A. 899) 629

— V. Luffe (8 East, 192) 77

— V. Marsh (5 A. & E. 468)234
(6 Nev. & Man. 668) 234

— V. Mashiter (6 Ad. & El.
153) - - 14

— V. Meath (10 Mod. 308) 27

— V. Menetone (4 East, 577, «)

403
V. Middlesex, Archdeacon of

(3 Ad. & El. 615, 5 Nev. & Man.
494) - 632

— V. Middlesex, Justices of (1
Wils. 125) - 631

— V, Milnrow, Churchwardens
of(5 M. &S. 248) 1000

— V. Monday (Cowp. 539) 879

— v. Morpeth (Stra. 58) 627

— V. Morris (3 East, 213) 438

— v. Neale (4 Nev, & Man.
868) - 627

— v. New College, Oxford (2
Lev. 15) - 629

— v. Nockolds (3 Nev. & Man.
342) - - - 218

— v. Northfield, Inhabitants of
(Doug. 659) - 510

— V. Norwich (Cro. Jac. 385)

854, 855, 856

, Bp, of (Stra.

153) - 294

(Str. 159) 627

— V. Nottingham Waterworks
(1 N. & P. 494) 632

— V. Osbouvne (4 East, 327)620

— V. Oxford, Bp. of (7 East,
345) - 492. 627. 629

BY AUTHORITIES WITHOUT NAMES.

xxxv

Page
Rex V. Paytoa (7 T. R. 153)

428. 430, 698

V. Pecke (I Keble, 574) 233

V. Peterborough, Bp. of (3

B- & C. 47) 282, 283

y. Piget (3 Lev. 206) 24

V. Rees (Garth. 393) 220

V. Reve (2 Buls. 344) 104

V. Reyoell (6 East, 315) 230

' V. Rice (1 Ld. Raym. 138)

61. 215. 217

(Comb. 417) 226

V, Rippon (2 Salk. 433) 221

V. Rochester, Dean of (3 B.

& Ad. 95) 294. 465
V. RaSbrd, Inhabitants of

(Stra. 512) - 631

-> V. St. Bartholomew, Inhabi-
Unts of (2 B. & Ad. 506) 631.

866

— V. St. John Delpike (2 B. &
Ad. 226) - 555

— V. St. Luke (2 Nev. & Man.
964) - . 879

— V. St. Martin's (3 B. & Ad.
907) - 631. 866

— V. St. Michel's Rochester (4
M. & S. 324) - 629

— V. St, Pancras (6 Ad. & El.
321) - 884. 889

(1 Ad. & EI. 80, 1 N. &

P. 514) - 622. 627

V. St. Saviour's (1 Ad. & El.
380) - - 873

(10 Rep. 66) 225

— V. Salop, Justices of (3 B. &
Ad. 910) - 631

— V. Sandford (1 N. & P. 328)

622. 627

— V. Shepherd (4 T.R. 81) 759

— V. Sillifant (4 Ad. & El.
354) 1000, 1001, 1005

— V. Simpson (Stra. 609) 220

— V. Somersetshire, Justices of
(Stra. 992) - 631

— V. Sparkes (3 Mod. 79) 765

— V. Sparrow (Stra. 1123) 631

— V. Stafford (3 T. R. 646) 14.

Page
Rex V. Staffordshire, Justices of

(4 Ad. & El. 842) 1001

V. Stewart (3 East, 213) 438

V. Stogursey, Inhabitants of

(1 B. & Ad. 194) 517
V. Stoke Damarcll (1 N. &

P. 56) - - 633

(5 Ad. &E1. 584) 627.

629. 633. 834. 835

— V. Suffolk, Magistrates of
(15 East, 539) 628

— V. Taunton (Cowp. 413)834

— V. Thame, Guardians of
(Stra. 115) - 834

— V. Thetford, Churchwardens
of (5 T. R. 364) 994, 995

— V. Tibshelf, Inhabitants of
(1 B. & Ad. 194) 517

— V. Tracy (6 Mod. 179) 1003

— V. Varlow (Cowp. 248) 620

— V. Wallis (5 T. R. 378) 103

— V. Ward (Stra. 897) 627

— V. Warrington (Show. 329)

— V. Wavell (Dong. 116) 872

— V. White (Ld. Raym. 1379)

219

— V. Williams (8 B. & C. 681)

221. 627, 628

— V. Wilson (5 Dow. & Ry.
603) - 632. 994

— V, Winchester, Bishop of
(7 East, 573) 217. 872

— V. Wix, Inhabitants of (2 B.
& Ad. 197) 218.982. 994

— V. Woodman (4 B. & A. 507)

880

— V. Worcestershire (3 Dow. &
Ry. 298) - 631

Bp. of (4 M. & S. 415)

631
(Vaugh. 57) 26. 29

— V.York, Archbp. of(l Ad.
& El. 394) - 24

(Cro. Eliz. 240) 34

(3 Lev. 12. 16) 23, 24

V. Yonge (5 M. & S. 119)

64 1. 970

— V. Younger (5 T. R. 49) 500

XXX VI

LIST OF CASBS CITED

Page
Reynell v. Long (Carth. 315) 27
Reynolds v. Thnipp(l Curt. 668)

915. 936
V. White (2 Lee, 214)

916. 917
■ V. Blake (Ld. Raym.

200) 5, 6. 26. 857» 858. 860
Reynoldson v. London, Bishop of

(3 Lev. 436) . 26

Rich V. Bushnell (4 Hag. 261)

827. 330. 823

V. Cockill (9 Ves. 369) 908.

909
Richards v. Brown (Doug. 116) 23
— — V. Hodges (2 Sairnd. 85)

104

V. Maccelsfield (7 Simon,

257) - 13

Richardson v. Dowdale, (6 Rep.

48) . ' 23

V. Lang (3 Hag, 249)

935

■ V, Richardson (1 Hag. 6)

332. 654. 668

Rickards v. Mumford (2 Phil. 23)

932. 953

Ricketts v. Bodenham (4 A. & £1.

433) 269. 1001

Riddlesden v. Wogan (Cro. Eliz.

858) - 549

Rigaut v. Gali^nd (7 Mod. 80)

718

Riesby v. Wentworth (Cro. Eliz.

642) - 728. 734

Rioboodo V. Franci8co(2 Add. 461)

956
Ritchie v. Rees (1 Add. 144) 979
Rix V. Rix (3 Hag. 75) 327

RoberU* case (Cro. Jac. 269) 728

730. 734

V. Cadd(Bunb. 247) 712

V. Herbert (1 Sid. 97) 297

V. Pain (3 Mod. 67) 716

V. Roberts (2 Lee, 399)977

■ V. Rogers (3 Hagg. 548)

935
■ V. Williams (12 East, 33)

741

Page
Robins v. Wolseley (1 Lee, 616)

657

(2 Lee, 421) 408. 917

Robinson, re(l Hag. 643) 102. 947
(3 Phil. 511) 682

V. Chamberiayne(2 Lee,

129) - 977

V. Godsalve (1 Raym.

123 - 43. 6a

Robinson ▼. Jago (Banb. 130) 16

■ V. Robinson (2 Lee, 593)

37
Robson V. Rocke (2 Add. 101)

264. 666
Rodd V. Lewis (2 I^, 176) 977
Rogers v. Browning (1 Add. 30)

921

V. Rolled (1 Bro. P. C.

117) - 466

V. Rogers (3 Hag. 57)

124. 340. 342. 665
Rollfe V. Budder (Bunb. 187) 909
Rolls, in the goods of (2 Add. 316)

922
Rone's case (Popham, 133) 721
Rookesby 's case (Cro. Eliz .119)23
Roos V. Moulsdale (1 Add. 135)

907. 913
Roper V. Roper (3 Phil. 97) 666.

668
Rosher v. Vicar (3 Add. 14) 436.

440
Ross, re (1 Hag. 471) 907

V. Chester (1 Hag. 227) 907

V. Ewer (3 Atk. 161) 909.

940

Rowe V. Brenton (3 Man. 8c Rv-

334) - 173

Rowth V. Chester (Moor, 861) 758

Rnding v. Smith (2 Hag.Con. 371 )

328. 330. 671
Ramsey v. Tiszard (1 Lee» 537)

264
Rutherford v. Mauk (4 Hag. 214)

927
Ryan v, Ryan (1 Phil. 332) 325.

950. 951
Rymes v. Clarkson (1 PhU. 22)

915. 922

BY AUTHORITIES WITHOUT NAMES.

xxxvii

Page
Sacheveral v. Frogate (1 Vent. 148)

688

Saer t. Bland (4 Leon. 24) 150

St. Bartholomew's Chmchwarden's

case (3 Salk. 87) 494

St. David's, Bp. of, ▼. Lucy (12

Mod. 2S9) 746. 640

(Carth. 484) 114. 137

(12 Mod. 237) 316

(Ld. Raym. 447) 118.

539. 759. 840

(1 Salk. 136)108. 113.

137

St. George's West t. St. Margaret

(Salk. 123) - 78

St. John's College v. Todington

(1 Bur. 198 - 758

Salisbnry,Bp.ofv.Phillips(lRayni.

587) 13.15.27

(Carthew. 505) 12

(Holt, 52) 13

Salmon ▼. Cromwell (3 Phil. 220)

392
■ V, Hays (4 Hag. 382) 916.

964
Sampson y. Sampson (4 Hag. 285)

332
Sandford v.Yaughan (1 Phil. 128)

920
Sandys, ex parte (1 N. & M. 591)

629
Sankey v. Lilley (1 Curt. 897) 918
Saph V. Atkinson (1 Ad. 213) 881.

389. 704. 927

Satterthwaite v. Satterthwaite (3

Phil. 1) - 947

Saunders v. Davies (1 Add. 291)

62. 805

Saunderson v. Claggett (1 P Wms.

661) - 899

Savage t. Blyth (2 Hag. Snp. 152)

950. 957. 958
Savel V. Wood (1 Leon. 94) 722
Savile ▼. Thornton (Cro. Jac. 650)

24. 28
Sawyer ▼. Loggin (U Mod. 200)

749

Seammell v. Wilkinson (2 East

552) - 746. 909

Page

Seammell v. Wilkinson (8 East,

202) - 757

Scarth v. London, Bp. of (I Hag.

625) - 969. 973

Schultes v. Hodgson (1 Ad. 109)

49. 52. 657. 661. 738

Soott ▼. Rhodes (1 Phil. 12) 411

Sorimshirev. Scrimshire (2 Hag.

Con. 395) 888. 391. 899. 424.

573
Scraby v. Fordham (1 Add. 74)

983. 944
Seager v. Bowles (1 Add. 541 ) 163.

666
Searle's case (Cro. Jac. 430) 715

V. Long(lMod. 248, 2 Mod.

264) . 25

V. Price (2 Hag. Con. 187)

36. 381. 554
Seele's case (Cro. Car. 557) 221
Sedley ▼. Arbonin (3 Esp.173) 400
Sergeaunt v. Sergeannt (1 Curt. 3)

381.-386
Seton ▼. Norton (3 Phil. 147) 136.

563
Sewell ▼. Hemming (2 Lee, 150)

993
Seymour v. Bennet (2 Atk. 481)

18. 19.
Shadbolt v. Wangh (3 Hag. 570)

923.980

Shaftesbury's case(l Mod.l57)617

— Earl V. Digby (2 Mod.

99) - 410

Sharpe v. Hansard (3 Hag. 885)

435
Shaw V. Cutteris (Cro. Ella. 850)

910

V. Hislop (4 Dow. & Ry.

240) - 226

V. Pritchard(10B.&C.241)

479
Sheafe ▼. Rowe (2 Lee, 413) 256
Sheffield v. Canterbury (2 Show.
146) - 754

Sheldon v. Brett (Winch. 63) 846
Sherock v. Boucher (1 Lee, 125)

723. 758
Sherrard v. Parborough(Amb.l65)

7. 16

XXZVlll

LIST OF CASES CITED

Page
Sherrard v. Sherraid (2 Phil, 251)

943

Sherwood v. Sanderson (19 Ves.

287) - 906

Shingler v. Pemberton (4 Hag.

856) . - 919

Shipm&n v. Redman (Palm. 296)

729. 757

Shirebame v. Hitch (1 Bro. P. C.

110) - 26

Shires v. Glascock (1 Salk. 688)

927

Shirley v. Underbill (F. Moore,

894) - 5

Shirt V. Carr (3 Bro. P. C. 173)

454
Short V. Smith (4 East, 419) 933
Shotter v Friend (Carth. 143) 737.

738

(Show. 161) 693.

734. 748. 750

(2 Salk. 547) 712.

734. 738
Sidney v. Sidney (3 P. Wms. 275)

Sikes V. Snaith (2 Phil. 351) 918

Sidy Hamet Benamor Beggia's

case (1 Add. 340) 969

Sinclair v. Sinclair (I Hag. Con.

294 - 578

Skeffington v. White (2 Hag. Sup.

1 49) - 950. 959

Slader v. Smallbrook (1 Lev. 138)

716
Slanning v. Style (3 P. Wms. 334j

910
Sitter ▼. Smalebrook (Sid. 217)

716.718
Slowman's case (2Keble,) 730 165.

168
Slatter v. Freston (Stra. 52) 218
Smallwood v. Coventry, Bishop of
(1 Cro. Eliz, 141) - 61
' V. Litchfield^ Bp. of (1

Leon. 205) - - 24

Smart v. Prujean (6 Ves. 561)

920
Smith V. Blake (1 Hag. 83) 659
v. Croa8(2 Lee, 557)913

Page

Smith V. Cunningham ( 1 Add.

454) - - 933. 936

v. Evans (1 Wils. 813) 925

V. French (2 Atk. 242) 91 1

— V. Hammon (6 Mod. 145)

970

V. Huson (1 Phil. 306) 544

y. Keates (4 Hag. 275) 99 U

992
— ▼• Lovegrove (2 Lee, 162)

924
V. Plass (Ld. Raym. 508)

397
v. Poyndreil (Cro. Car. 97)

752

V. Shelburn (Cro. Eliz. 686)

15, 847
V. Smith (3 Hag. 75?) 967,

968

(2 Phil. 235) 36,

37, 38. 345

V. Sparrow (4 Bing. 84)

498, 499

V. Wallis (1 Salk. 58) 714

V. Watkins (1 Hag. Con.

467) - - 298

Wood (2 Salk. 692) 297

1^^ 1^

Smithett v. Blythe (1 B. & Ad.

509) . . 9

Smyth, ex parte (Tyr. & Gr. 222)

788

V. Smyth (2 Ad. 254) 36

(4 Hag, 72) 50

(4 Hag. 509)

40. 55. 345

Snaith v. Peterborough (10 Rep.

135) - - 15. 23

Snape v. Webb (2 Lee, 411.) 955.

964
Snelling v. Norton (5 Rep. 83)

948
Snow V. Beverly (4 Rep. 124 b.)

906
Snowden v. Herring (1 Bunb. 289)

231,282

Soames v. Rawlings (Tyr. 8c Gr.

46) • 768

Solendahl v. Hampe (1 Lee, 102)

977

BY AUTHORITIES WITHOUT NAMES.

XXXIX

Page

SoiHeux V. Soillenx (1 Hag. Cod.

37S) - 828,329.331.836

SonthweTl, Chapter of, v. Lincoln,

Bishop of (I Mod. 204) 292

Sparrow, re (1 Hag. 479) 947

Spenceley v. De Willmott (7 East,

109) . - 397

Specot*s case (3 Leon. 198) 458

V. Exeter, Bp. of (5 Rep.

57) - 30. 306. 458

Spooner v. Brewster (3 Bing. 1 36)

163. 236. 438
Sprott V. Powell (3 Bing. 478)

226. 232. 868
Stafford's case (1 Leon. Ill) 760
Stamp V. Clayton (11 Rep. 46)

310
Stankey ▼. Berton (Cro. Jac. 234)

226. 728. 734
Stanley v. Berne (I Hag. 221)

961.964

• (8 Hag. 378) 234. 919

Starr t. Elliot (Freem. 299) 749
Starky.v. Wallington Churchwar-
dens (2 Salk. 547) 222
Stames v. Marten (1 Curt. 294)

929
Statford v. Neale (Stra. 483) 757
Stayte v. Farquharson (3 Ad. 282)

565
Steadman, Martha (2 Hag. 59)

959. 965

V. Powell (1 Add. 58)

530. 550. 908
Stephens v. Clark (F. Moore, 89)

V. Totty (Cro. Eli3. 908)

324

Stephenson v. Case (Cro. Eliz.

843) - - 719

V. Langston (2 Hag.

Con. 379) - 218. 233

V. Walker (4 Esp. 50)

392
Steven v. Bagwell (15 Ves. 156)

909
Stocks V. Booth (1 T. R. 430) 173.

175
Stokes V. Bate (5 B. & C. 491) 968.

973

Page
Stokes v. Sykes (Latch. 191) 137.

455
Stone y. Evans (2 Atk. 87) 920

V. Farey (1 East 555) 432

Stonehouse v. Evelyn (3 P. Wms.

254) - - 926

Stotey v. Storey (8 Hag. 378) 332.

658
Stote v. Tyndall (2 Lee, 406) 953
Stoughton V. Reynolds (Stra.
1045) - - 218.875

(Fort. 158) 874. 875

(Ca. temp. Hard. 274)

874
Strachy v. Francis (2 Atk. 216)

236. 317

Stransham v. Cullington (Cro.

Eliz. 228) . 722. 724

Strattona v. Ford (2 Lee, 216)

262. 961
Stretch v. Pynn (1 Lee, 30) 950.

951
Stride v. Cooper (1 Phil. 334) 260.

411. 936
Stury v. Stury (2 RoUe, 291) 724
Sullivan v. Hayden (1 Lee, 12)

260

V, Sullivan (2 Add. 299)

342

(2 Hag. Con. 238) 102.

517. 525. 545. 657

(3 Phil. 45) 102. 520

Suter V. Christie (2 Add. 150) 701
Sutton's case (Cro. Car. 65) 302.

723

V. Dowse (1 Leon. 10) 724

V. Drax (2 Phfl. 323) 260.

.912
V. Moody (6 Mod. 376)

827

V. Smith (1 Lee, 207) 961

Swallow V. Emberson (1 N. &

Man. 591) - - 629

Swetman v. Archer (8 Mod. 338)

730
Swift V. Swift (4 Hag. 139) 408.

657. 823. 919
Syduam v. M^y (3 Bnls. 261) 297
Symes v. Symes (2 Bur. 813) 749

LIST OF CASES CITED

Page
Tagart v. Hooper (Curteis, 289)

921.934
Talbot ▼. Andrew (1 Hag. 697)

954

V. Talbot (1 Hag. 705) 937.

939
Tappenden v. Walsh (1 Phil. 352)

909
Tarrant v. Haxby (1 Burr. 367)

638. 640. 641

V. Mawr (1 Stra. 576) 297.

300. 759

Taskmaker ▼. Edmonton (1 Com.

345, Stra. 406) - 502

TattersaU v. Knight (1 Phil. 232)

169. 357. 436
Tawney's case (Ld. Raym. 1009)

232. 719. 1003

(1 Salk. 531) 1003

Taylor v. Diplock (2 Phil. 261)

657. 938. 958. 964
Taylor r. Newton (1 Lee, 15) 977

V. Taylor (1 Lee, 571) 961

(2 Lee, 274) 275. 951

i2 Lee, 172) 256

lannay (3 Bos. & P.
26; . - 962

Telford ▼. Morison (2 Add. 321)

672. 979

Tessimond v. Yardly (5 B. & Ad.

458) . 259. 264. 756

Tewkesbury, Bailiffs of, v. Diston

6 East. 437) - ' 177

Theakston v. Marson (4 Hag. 290)

258. 261.915. 917.922

Thetford V. Thetford (1 Leon. 204)

7
Thomas v. Baker (1 Lee, 341) 957

V. Morris (1 Add. 470) 170

re (1 Hag. 695) 947

Thornton, goods of, (3 Add. 273)

944

Thorold v. Thorold (1 Phil. 1 ) 919

Thrale v. London, Bp. of (1 H.

Bl. 402) 12. 23. 27. 29

Page
Throckmerton v. Tracy (Plowd.
150) . - 9

Thrower's case (I Vent. 209) 238
Thurtell v. Beaumont (1 Bing.
339) • - 403

Thymie y. Stanhope (1 Add. 52)

916. 932
Tillard v. Shebbear (2 Wils. 366)

469
Timbrell v. Rice (l Lee, 471)

977

Timmings ▼. Timmings (3 Hag.

76) 330. 332. 337. 340. 342

Tite V. Woreester, Bishop of (Ld.

Raym. 95) - 739

Tocker v. Ayre (3 Phil. 539) 300

Todd V. Winchelsea (1 M. & Mai.

12) . . 926

Tomkins v. Ladbroke (2 Vesey,

Sen. 591) • 919

Tongue v. Allan (I Curt. 38) 515

Townsend v. Thorp ( Ld. Raym.

1508) - 688. 746

Trafford v. Trafford (2 Lev. 128)

714. 719
Travers v. Miller (3 Add. 226)

921

Trehome v. St. Thomas's Hospital,

Governors of (1 Lee, 126) 228.

390
Tree v. Quin (2 Phil. 14) 512
Trevelyan v. Trevelyan (1 Phil.
149) . - 919. 948

Trimlestown v. Trimlestown (3
Hag. 243) 261. 974. 979

Troward v. Cailland (6 T. R. 439)

Trowbridge v. Weston (5 Mod.

325) - . 228

Trower r. Cox (1 Add. 219) 260.

261
Tucker v. Westgarlh (2 Add. 352)

260. 953
Tufton V. Temple (Vaugh. 1) 23.

26, 27
Tomer v. Felton (2 Phil. 92) 543

V. Giraud (3 Phil. 534)

180. 666

BY AUTHORITIES WITHOUT NAMES.

xli

Page

Turner t. Meyers (1 Hag. Con.

414) - 389.550

■ ■ T. Palmer (Cio. Car. 74)

Turton v. Tuiton (3 Hag. 338)

831. 333. 335. 340. 342. 703

Tyrell v. Jenner (6 Bing. 283) 25

Uxquhart v. Fricker (3 Ad. 60)

262, 263. 265
Ualicke v. Bawden (2 Add. 125)

939

Vallaoce v. Yallance (1 Hag. 693)

963
Yanacre v. Spleen (Car. 33) 711
Yanhagen, re (1 Hag. 478) 947
Yaugban v. Evans (8 Mod. 374)

102
Yattx V. Yallans (4 B. & Ad. 525)

800

(1 N. & Man. 307) 800

Yavasor's case (2 Leon. 222) 5
Yerelst V. Yerelest (2 Phil. 145)

392. 398

Yemon v. Yemon (2 P. Wms.

593) - - 102

Yfllareal v. Mellish (2 Swans. 537)

103

Wagner ▼. Mears (2 Hag. 524)

268
Waite ▼. Bishop (5 Tyr. 101) 827

V. Stoke (Cro. Jac. 496)

502

Wakefield v. Wakefield (1 Hag.

Con. 394) • 517.519

Walker v. Stephenson (3 Esp.

284) - 392

Page
Walker v. Carlesi (2 Lee, 560)

960

■ ' V. Hammersley (3 Lev.

116, Skin. 90) . 847

V. Walker (2 Phil. 153)

37. 333. 338. 340
Wallcott ▼. Ochterlony (Curt. 580)

932
Walmsley v. Booth (2 Atk. 26)

137
Walpole V. Oxford (3 Yes. 402)

913.921

Walter v. Gunner (1 Hag. Con.

314) - 169. 181. 436

— V. Montague (Curt. 253)

236. 239. 435
Walton V. Rider (1 Lee, 18) 483.

530
Walwyn v. Awberry (2 Mod. 257)

166. 830
Ware v. Johnson (2 Lee, 103)

295. 297
Wargent v. Hollings (4 Hag. 245)

49. 918

Waring t. Griffith (2 Kenyon, 183,

1 Burrow, 440) - 127

■ V. Waring (2 Hag. Con.

153) - - 343

Warner v. Barratt (Hetley, 87)

736

■ V. Suckerman (3 Buls.

120) . 709

Warner's case (Cro. Jac. 532) 217.

225
Warren ▼. Windle (3 East, 211)

440

Warrender v. Warrender (2 CI. 8c

Fin, 488) 573. 577. 579

Warter v. Yorke (19 Yes. 451)

513
Warwick ▼. Bmee (4 M. & S. 140)

403

V. Greville (1 Phil. 123)

949. 952

Waterfield ▼. Chichester (2 Mod.

118) - . 746

V. Cook (Cro. Jac. 535)

739
d

xlii

LIST OF CASES CITED

Page
Waters v. Howlett (3 Hag. 7IK>)

262. 412. 966
Watkins v. Whmfidd (2 Phil. 1)

833
Watney v. Lambert (4 Hag. 84)

662. 687. 996

Watson T. Canterbury, Abp. of

(Dyer, 241) - 80

V. Thorpe (I Phil. 269)

62. 305. 807. 700
Watts, in the goods of (Curt. 594)

903
Webb y. Needham (I Add. 494)

950, 951

V. Webb (1 Hag. 849) 532

659
Welby V. Herbert (2 Lev. 168) 615

(3 Keb. 606) 732

Welcome v. Lake (Sid. 281) 226

233
Welde V. Welde (2 Lee, 580) 564

688

Wenmouth ▼. Collins (Ld. Raym.

850) - - 866

West V. Turner (1 N. & P. 612)

795
V. Waiby (8 Phil, 374) 968.

957

Westbeech v. Kennedy (1 Yes. &

B. 362) - - 926

Westcote v. Harding (1 Lev. 96)

691, 692

Westfaling v. Westfaling (3 Atk.

459) - - 8

Westmeath v. Westmeath (2 Hag.

Sup. 133) 57. 258. 845. 694.

828. 919

[2 Add. 380) 394

3 Knapp, P. C. 42) 38

Westminster (Abbot of) v. Clerke

(Dyer, 29 a) - 13

Weston's case (Dyer, 348) 464

Wetdrill V. Wright (2 Phil. 243)

43. 953. 957

Wheeler v. Anderson (3 Hag. 574)

886. 412. 901. 906. 912

Whish ▼. Hesse (3 Hag. 659) 664.

887
Whistler y. Singleton (1 Rolle, 62)

755

Page
White y. Driter (1 Phil. 84) 901.

960
Whitfield y. Hayes (12 Yes. 492)

103
WickwidL y. Powell (4 Hag. 828)

258. 261. 929. 984
Wilkins V. Waiiams (2 PhU. 100)

953

Wilkinson y. Adam (1 Yes. & B.

445) - • 920

V. Allott (Cowp. 428)

793

v. Gk>rdoa (2 Add. 171)

892. 912. 950

V. Moss (2 Lee, 259) 961

— — y. Richardson (I Keb.

906) - 58

William y. Brown (1 Curt. 55)

275
Williams, ex parte (4 B. & C. 313)

118. 124.749

y. Bott (1 Hag. Con. 1)

681

y. Kyerett(15East,590)

628

y. Goodyer (2 Add. 463)

120

V. Goude (1 Hag. 577)

263. 966

■ y. Yaughan (1 W. BL

28) - 217

— — y. Williams (1 Hag. Con.

299) 327. 828. 830

re (3 Hag. 217) 951

Willion y. Berkley (Plowd. 244)

Wilmot, Sir Robt. in the goods of

(Curt 1) - 948

Wilson y. Brockley (1 PhU. 132)

108. 520. 565. 979
^— • y. Dennison (Amb. 84)

620. 631
— — y. Greayes (1 Burr. 240)

118. 119. 120. 123

y. McMath (3 B. & A.

241) . 866. 872

(3 PhU. 67)

163. 238. 465

y. Smyth (1 B. & Ad. 801 )

259

BY AUTHORITIES WITHOUT NAMES.

xliii

Page I
Wilion ▼. Van Mfldert (2 Boa. 8e
P. 394) - 858

—— v. Wflsoii (2 Hag. Con.
203) - 48

Winchester's case (6 Rep. 23) fK)d
Windsor ▼. Fletcher (5 Rep. 102)

1^. 23

Winsor v. PraU (2 Brod. & Bing.

650) - / 926. 933

Winston v. Brown (2 Roll. 455)

759
Wise ▼. Creek (2 Lev. 186) 713

V. Johnson (1 Lee, 913) 921

▼. Metcalf (10 B. & C. 299)

308
Withers v. Iseham (Dyer, 70 b.) 5
Wood V. Hill (Comb. 324) 717
▼. Medley (1 Hag. 645) 915

V. Wood (1 Pha. 357) 923.

929

Woodcock T. Gibbon (6 Dow. &

Ry. 524) - 224

V. Gibson (4 B. & C.

462) 215. 220. 224. 227

Woodley v. Exeter, Bp. of (Cro.

Jac. 691) . 11

Woolley V. Green (3 Phil. 314)

955. 979

WooUocombe v. Ouldridge (3 Add.

8) 175, 176. 189. 441

Worts V. Clyston (Cro. Jac. 350)

712. 725
Wi%ht T. Elgood (2 Hag. 598)

664. ese

▼. Flamank (6 Taunt. 52)

793

> T. Lamb (5 Taunt 807)

803

Page
Wdght V. Morley (11 Ves. 11;

902. 908

V. Smythies(10£ast,409)

316

▼. Tatham (7 Ad. & EL

389) - 381

Wrighton v. Brown (3 Lev. 212)

113
Wyllie V. Mott (1 Hag. 28) 180.

257. 334. 416. 657
Wyndowe v. Carlisle, Bp. of,

(11 Moore, 269) 31

Wynn v. Davies (1 Curt. 69) 509.

513. 665
Wynne v. Moore (5 Taunt. 757)

806

Wyville v. Exeter, Bp, of (1 Price,

292) - - 15

JL .

Yates V. Alexander (2 RoUe, 298)

726
York, Arehbp. of v. Willock

(Dyer, 327 b.) 66. 488

Young v. Brown (1 Hag. 556) 261.

909. 927. 961
Young V. Munhy (4 M. & S. 183)

315
Younge v. Skelton (3 Hag. 780)

963. 965, 966. 979

Zecharias v. Collis (3 PhU. 176)

411

ERRATA.

Page.
59, — 6 from the top, after "Episcopi" insert *< and."
83, — 29 firom the top, dele " found."
102, ^ 6 from the bottom, dele " on"
147, — 2 from the top, dele "that."

— 4 from the top, for ** are called and considered as priyate chqiels,** read
*' is called and considered a private chapel.**
154, — 11 from the top, for ** were originally matters,*' read "was originally a

matter."

163, — 4 from the bottom, for " npon " read " of."
166, — 2 from the top, for •* repairs,** read " repair.**

— 20 from the top, for " cnnrch," read " chancel.*'

— 5 from the bottom, for ** church,*' read " chancel.*'
249, — 12 from the top, for " inferior," read " inferior court.'*
310, ^ 15 from the top, for " he,** read *' it"

383. — 15 form the top,** dele " is.*'

387, — 13 from the bottom, dele " 2 ; '* and insert " and " in its place.

395, — 1 at the top, for ** exception,'* read "exceptions.**

— 5 from the top, after " The,** add " court.*'

— 7 from the top, for " the court," read "it."

48.% — 6 from the bottom, for " law lapse,** read " law of lapse. " .

585, «— 21 from the bottom, for " tree contract," read " pre-contract.**

587, — 25 from the top, for " considered clearly to be understood," read " was so

understood.**
592, — 19 from the top, dele " that."

— 20 from the top, read " Lord Stowell in " for " in Lord Stowell."
604, ' — 24 from the bottom, for " temporary cases," read " temporary cures."
620, — 6 from the top, for " valiat," read " vaUai,"

742, — 17 from the top, read " if it" for " it if.**
937, — 4 from the top, for " has," read " have.*'
982, — 17 from the top, for " 19," read "7."

— 23 from the top, dele "."insert";" and dele cu)ital"T" in the word «< the."

991, — 11 from the top, for " poor rate," read "church rate."

992, ^ 1 9 from the top, insert ** and ** before <' having."

PRACTICAL ARRANGEMENT

ECCLESIASTICAL LAW

Who admissible.

How admitted.

Oaths.

Stamp on Admission.

By a constitution of Archbishop Peckkam, 9 Ed, 1, 122\, it who ad-
was ordained that none should oe permitted to discharge the missibU to
duties of an Advocate, unless be bad first attended the adminis- ^*
tration of the Canon and Civil law, with due diligence for three
years at the least. Gibg. 103S. And it is also required by
the usage of the courts of civil law in England, to take the
degree of doctor of civil law in one of the English universities.
AyL Parer. 54.

But though a person so qualified is admissible, the court
will not grant a mandamus to compel the admission of a person
having taken the requisite degrees if it be refused. R. v. Arch-
bU/iop of Canterbury, 8 East, 2\S. The having taken deacon's
orders seems a aufficient ground to refuse admission. lb.

So also, according to the rules of the courts of civil law in jjow ad-
England, no person can be admitted as a member of the college mitt«d.
of doctors of law, incorporated by charter in 1768, without
having first taken the degree of doctor of laws in one of the
English universities.

By the present practice of those courts, a candidate
for admission as an advocate is required to deliver into the
office of the vicar-general of the province of Canterbury, a
certificate of his having taken the degree of doctor of laws,
signed by the registrar of the University to which he belongs.
A petition praying that in consideration of such qualification
the candidate may be admitted an advocate is then presented

2 aiibocatn

^^•A^' ^^ ^^^ archbishop, who issues his Jiai for the admission of the
"^ ' appHcant, directed to his vicar-general, who thereupon causes
a commission or rescript to be prepared, addressed to the dean
of the arches, empowering and requiring him to admit the
candidate as an advocate of that court. Ihe petition and Jiat
are then returned to the vicar-general, and the rescript, which
orders the dean of the arches to admit the candidate as an
advocate is then made out under the seal of the vicar-general
and delivered to the registrar of the province on the day ap-
pointed for the admission, which is always one of the four
regular sessions in each term of the arches court. The candi-
date is introduced by the two senior advocates, and presented to
the dean of the arches, who directs the archbishop s rescript to
be read, and the oaths to be administered, which being done,
he is admitted into the number of advocates according to the
tenor of the archbishop's rescript. The candidate is afterwards
admitted in a similar manner in the court of admiralty.
8 East, 213.

To the fiat a proviso is added, " that the person to be admitted
shall not practise for one whole year from the date of his ad-
mission ;'* in order that by attending during that interval, he
may acquire a competent knowledge of the forms of the pro-
ceedings of the courts.
Oaths. Every person acting as an advocate in any court of England,

Wales, or Berwick upon Tweed, is to take the oaths of allegiance
and abjuration, and the assurances in one of the courts of
chancery, king's bench, common pleas, or exchequer, or at the
quarter sessions of the place where he resides. 13 & 14 fV. 8,
e. 6, s. 2, 3 ; 1 Geo. 1, st 2, c. IS, s. 2, and 9 Geo. 2, c. 26,
s. 3. So also the oath of supremacy, by 1 fV. §; M. sU 1, c. 8,
s. 3; but see 10 Geo. 4, c. 7, with respect to advocates being
Roman Catholics.

He is also required by a constitution of Otho, 1273; S&Hen. 3,
to take an oath before the diocesan in whose jurisdiction he was
either born or lives, that he will defend his client by law and
reason, and not by denying or delaying justice to the adverse
party.

By Canon 130, no proctor is to entertain any cause whatever,
and keep and retain the same two court-days; or by Canon 181,
conclude the same without the counsel and advice of an advo-
cate; nor by Canon 131, shall any judge admit any libel or
other matter without the advice of an advocate admitted to
practise in the same courts, or without his subscription.

And by the 96th Canon of those of 1603, 1 Jac. I, no inhibi-
tion shall be granted out of the archbishop's court at the instance
of any party, unless it be subscribed by an advocate practising
in the said court ; and vide Herbert v. Herbert, 2 Phill. 437.

The practitioners in the ecclesiastical courts, generally of the Prcceden-
degree of doctors of canon and civil law, have precedence of ^^'
all barristers; serjeants-at-law, king's counsel and Serjeants
excepted. The exception at least as to seijeants-at-law is
denied.

By the 55 Geo,3,c, 184, tched.^part 1, every admission stamp on
in any ecclesiastical or admiralty court is charged with 50/. adminion.
stamp duty.

^tibo^DSon.

Origin and nature of, and of the right to generally.

1. Appendant.

2. In gross.

Presentative. CollatiTe. Donative.

May be held.

In fee-simple, tail, for life or years, by the curtesy in dower, &c.
Is descendible.
Is assets.
May be devised.
Conveyances of.

Restraints on alienation.

Persons holding in spiritual rights.
Turn vacant.
Mortmain.
Rights of presentation, how exercised.

Coparceners, joint tenants, and tenants in common.

Trustees and purchasers.

Tenants by the curtesy, and in dower.

Infants, guardians, lunatics, mortgagees, cogpiizees of statute,

assignees of bankrupt.
Aliens, papists.
Patron dying after vacancy.
Presentative.

Executor of patron, whether lay or spiritual.
Options.

Heir, patron also incumbent.
Donative.
Heir.
Collative.

The king.
Prerogative presentations.

Presentations are revocable.
Church become litigious.
Jure patronatus.

Proceedings in.

B 2

4 aiiboliis^om

Disturbance of right of patronage.
Quare impedit, the only remedy.
Nature of writ.

Who may have.
Against whom it lies.
Process in.

Who to be named in.
Declaration in.
When filed.
Form of.

May be amended.
Pleas.

In abatement.
To the action.
Traverse.
Replication.
Issue.
Judgment.
Damages.
Costs.
Evidence.
Limitation of actions.
Writ to the bishop.
Writ of quare non admisit.
Action of debt for mesne profits.

Origin and AdVOWSON is a right (called by Godolphin a kind of re-
nature of. versionary right) to present or nominate a fit person to fulfil
the duties and receive the profits of a spiritual benefice, when
it becomes void. SulUv. Led. viii. GodoL Ab. 205; Gibs.
795.

In the infancy of Christianity the church nominated to all
ecclesiastical benefices, subsequently however, lords of manors
having erected churches and endowed them with lands, reserved
to themselves and successors a right and power to confer them on
such as were qualified for thesame ; in imitation of royal founders
who had erected cathedrals, abbies, priories, churches, &c., Co.
Lit. 17 6, 1 19 6 ; 6 Godol. Ab. 208 ; the bishops on their part
(for the encouragement of such pious undertakings,) were content
to let them have the nomination to churches built and endowed
by them ; with reservation however, to themselves of an entire
right to judge of the fitness of the persons nominated. Thus,
what was at first permitted, became, in process of time, the law of
the church. Co. Litt. 17 6; Gibs. 796; 3 Cruise, 3; Rennell
V. Bishop of Lincoln, SBing. 353 ; 7 jB, ^ C. 153.

He in whom the right of presentation rested was called
advocatus ecclesiee, hence the right of presentation obtained the
name of advocatio or advowson. Gibs. 797 ; 2 Bl. Com. 21 ;

abbotosEom 5

Godol. Ab. 208 ; Bract, lib. 4, 240 ; Fkta, lib. 5,c.U; Briii. Oiigia an
c. 92 ; Co. Lift. 174. Every patron being bound to defend the °'^'^ "^
rights of the church and their clerks from oppression and
violence, ibid.

One may have the right of presenting, and another of Rights of
nominating, which rights, though sometimes confounded, are present-
distinct. Presentation is the offering a clerk to the bishop, "ominatuur
Nomination is the offering a clerk to the person who has the to, dictinc-
right of presentation. Such rights may exist in different per- ^oo ^
sons at the same time. Thus, one seised of an advowson may ^^^'^
grant to A. and his heirs, that whenever the church becomes
vacant, he will present such a person as A., or his heirs shall
nominate. He who has the right of nomination, is, to most
purposes, considered as the patron of the church. 2 Ab. Eq. 518 ;
Plowd. 529. Thus also where the legal estate in an advow-
son is in trustees, they have the right of presentation ; though
the right of nomination is in the cestui que trust. S Cruise, 4.

Advowsons are of two kinds, appendant or in gross. Co. Appendant

Liit. 1 20. or in grow.

When at the first creation of a manor, lands were given to Advowion
erect a church thereon, for the use of the tenants and inhabi- appendant,
tants of the manor, the advowson thereof became appendant
to the manor, was reputed to be parcel thereof, and passed by a to a manor.
grant of the manor as incident thereto, but it is to the demesnes
which are of perpetual subsistence, that it is appendant, and
not to the rents and services, which are subject to extinguish-
ment. Co. Litt, 122 a.; Dyer, 70 6; 1 Leon, 207; 2 do. 222;
Gibs. 797 ; Wats. c.7.

As a grant of an entire manor will carry an advowson ap-
pendant to it ; so if the grant of one or two acres of a manor
be expressly accompanied by a grant of the advowson, in the
same clause of the deed, the advowson will become appen-
dant to such acre or acres. 3 Cruise, 5 ; Fin. Ab. Adv.
397 ; fVats. c. 7. The advowson of a vicarage may be ap- vicarage to
pendant to a manor, Moore, 894; 1 Ld. Raym. 200, or to a a rectory.
parsonage, as being derived and endowed out of the same,
and the usage of presenting time out of mind will be suffi-
cient evidence of the appendancy. Wats. c. 7 ; 1 Jac. Sf
li adk. 159.

It b said, that an advowson may be appendant to an earldom
or other honor, but this it is conceived can only be where there
are demesnes attached. A church in one county may be ap-
pendant to a manor in another, Dyer, 350. Advowsons may
also be appendant for a part or for a turn ; two advowsons may
be appendant to one manor or one advowson to two manors, or
several to the same manor though extending into several

!atrl)otDc(on«

In gross.

How
Mvered.

Appendant, parishes. Dod. on Advow. 27; I Roll. Ab. 230. But an
\ advowson cannot be appendant to an incorporeal hereditament,
being itself incorporeal. Co. Litt. 1^1 6. If an advowson be
appendant to the manor of D.| of which the manor of S. is
holden, and the manor of S. is made parcel of the manor of D.,
by way of escheat, the advowson continues appendant only to
the manor of D. Co. Lift. \22 a. Com. Dig. Adv. B.

Where an advowson belongs to a person who possesses no
corporeal estate to which it is appendant it is said to be an
advowson in gross. And if an advowson appendant has been
once separated from the manor, by legal conveyance, it becomes
for ever in gross, that is, annexed to the person of its owner,
and not to iiis manor or lands. 1 Leon. 26. If the manor be
granted in fee and the advowson excepted ; or if the advowson
be granted separately from the manor, or if it be presented to
as in gross, the appendancy is destroyed. Gibs. 797. An
usurpation on the king makes not his advowson disappendant,
secvs in the case of a subject. Hob. 140. If parceners of a manor
make partition and except the advowson, it is severed from the
manor, and becomes in gross ; but if it be not excepted, it des-
cends in coparcenary, as appendant, and to each coparcener in
turn, it is appendant to the part which each has. Co. LitL 122 a.
In short, if an advowson be granted alone, without the convey-
ance of the corporeal hereditament to which it is annexed, or
any part of it, it forthwith becomes in gross.

An advowson once permanently and unconditionally severed
can never again become appendant ; but this can only be where
the whole estate in the thing severed be conveyed away and no
reversion left ; not where the severance is temporary, and the ap-
pendancy merely suspended, Reynoldson v. Blake, 1 Ld. Raym.
198 ; Hob. 140. Thus if an advowson be excepted in a lease
of the manor for life at the expiration of the lease it becomes
again appendant, 3 Cruise^ 6 ; 5 Rep. Mb. So also if the advow-
son be granted to one for life and another enfeoffed of the manor
in fee ; there the reversion of the advowson passes to the feoffee,
and at the expiration of the grant for life, becomes again appen-
dant, lb. ; 1 BurtCs E. L.8; sed vid. Hob. 168. If the advowson
be allotted to one of two co-parceners, and the manor to the
other, it becomes in gross ; but if the first die without issue,
and without aliening the advowson, and it descends to the
other holding the manor it again becomes appendant, 6 Rep.
64 a. ; Co. Lilt. 363 a. ; 1 Ld. Raym. 198. If the demesnes
are allotted to one co-parcener, and the services to the other,
the manor is destroyed, and the advowson becomes in gross ; but
if one die without issue, so that the demesnes eventually descend
to the other whilst holding the services, the manor becomes again
entire and the advowson appendant, because this was a sever-

How re-an
nexed.

tnce by act of law. Retfnoldit v. Blake, 8 Salt. 25, 40 ; 1 ^''>"**'
Ld. Raym. 198; 6 Rep. 64; I Leon. 304. If tenant in tail Howre-«a-
aliene some part of the manor with the advowson, and the Mxtd.
alienee grant the advowson to a stranger; or if a common
person (this rule not applying to the crown), hath an ad-
vowson appendant, and a stranger present (a liter of collation)
his clerk who is in by six months ; in both cases the advowson is
severed and becomes in gross ; but if in the first case the tenant
in tail, and in the second the rightful patron recover, the append-
ancy returns. Co. Lilt. 363 6. If the manor be mortgaged in fee
excepting the advowson, and the condition be performed, that
is, if the money be paid at the day the appendancy returns,
and so of all estates upon condition ; and if paid after the
day, still it is sufficiently appendant by reputation to pass in
a grant or other conveyance of the manor. 1 BurtCs E. L. ;
Skin,G5\ ; 3 Salk, S4 ; 1 Ld, Raym. S94. Sometimes the same
advowson may be at one time appendant and at another in gross ;
as where the owner of the manor accepts a fine of the advowson
with a grant and render back of every second turn, the advow-
son is in gross for the turn of the grantee, and appendant for
the turn of the grantor. Dyer, 78 &., 259 a \ 3 Cruise, 6. But
if a man levy a fine of an advowson and accept a grant and
render, the appendancy is gone for ever, lb. ; I Ld, Raym. 197 ;

1 RoU. 232. So it is said if two co-parceners make partition
without noticing the advowson, at every other turn it is still
appendant, but if it had been expressly excepted, it would then
be wholly in gross. Co. Litt. 122 a ; 3 Cruise, 5.

If one of three joint tenants of a manor release all his right in
an advowson appendant to the manor to the others, the third
part is held by the releasees in gross. Dod, on Adv. 60 ; Com.
Dig. Adv. B.

If an advowson appendant, and one in gross be united, the
advowson will be appendant for one turn and in gross for the
other. Dyer^ 259 b. ; Com. Dig. Adv. B.

But though a severance be complete in fact, yet if it be
effected by a wrongful act, it is not complete in law. Thus if
there be an usurpation upon a common person by a presentation
to a church appendant, it only becomes in gross till recovery.
Com. Dig. Adv. B. ; Hob. 140.

A man may be tenant in fee-simple of an advowson, as well Titl« to.

as of a piece of land, in which case he and his heirs have a per- z ~r

petual ri^ht of presentation. Co. Liit, 379 a ; 3 Cruise, 8 ; f^^
GodoL Ab. 209. Or it may be held in trust, and the trustee
present by direction of the cestui que trust. 7 / ro. P. C. 522 ;

2 f'es. Jun. 477 ; Ambl. 165: Forrest^ 143. But an advowson
does not pass by livery within view of the church without deed,
there being an incumbent. Cary^ 52.

aUbolDsiom

Tide to.
In tail, &c.

De»cendi<
ble.

Possess 10
fratrit.

Is assets.

Options.

Patron dy-
ing after
vacancy.

May be
devised.

So being an hercilitament annexed to land^ an advowson may
be entailed within the statute de donis ; or it may be limited fur
life or years in possession, remainder, or reversion, 3 Cruise^ 8 ;
4 Bing. 290 ; and an advowson in gross, as well as an advowson
lies in tenure, vid, post, 9, and when conveyed or settled as an
estate of inheritance, is subject to dower and curtesy. Cro,
Eliz. 359.

Advowsons in gross are descendible as well as advowsons
appendant, but it is conceived with this distinction, that an
advowson appendant, being an accessory only, folio ws the descent
of its principal ; but in the case of an advowson in gross unless
the eider brother present, and so became actually seised, the
descent would be on the brother of the half-blood, who would
be heir to his father, in preference to the sister of the whole
blood, but otherwi^)e if the elder had presented. 1 Roll.
Ab. &ZS.

An advowson in fee-simple in gross descending on the heir is
assets in the hands of the heir for ])ayment of debts. Co. LitL
37 1 b. ; 3 Bro. P. C. 536 ; 1 P. Wms. 401 ; 3 AiL 46f.

So also the right of next presentation, or next avoidance, is
assets in the hands of an executor, 7 B.^C. 150, 193 ; and if the
church be full, is of value and would be saleable by law. lb. So if
one grant the next two presentations of a church to A. these are
chattels, and if A. die his executors shall have them, not the heir.
Bro. Chattels, pi. 20 ; IB. % C. 188. If A. grant the next
presentation to a church to one and his heirs, on lease for
years to him and his heirs, the executor shall have this and not
the heir, for the heir shall not have chattels. Bro. Est. pi. 51 ;
7 B. S^ C. 188; for notwithstanding the word "heirs," it is
but a chattel, and where the thing is but a chattel, the word
'^ heirs," cannot make it an inheritance. Bro. Chattels, pL 20 ;
1 B.^C. 188.

So also the option of the archbishop which is founded on a
grant made to the archbishop, goes to the personal representa-
tives of the archbishop, and not to his successor. Ambler^ 98,
101 ; 7 5. §• C. 167 ; 3 Bing. 240.

Where the patron of the advowson or owner of the next
presentation dies after vacancy, the next presentation is con-
sidered as fallen fruit; if the advowson he held by estate of
inheritance, it is disannexed from the inheritance, and if not
expressly disposed of by will or otherwise, goes to the personal
representative, and this as well in the case of an ecclesiastical
corporation sole as of a natural person. 7 £. ^ C 113.

The inheritance of an advowson or the right of presenting on
the next or any future avoidance, or any number of future avoid-
ances, mav be devised. Hawkins v. Choppell, 1 Alk. 622 ; 1 B.
^ C. 518;" 3 Cro. Eliz. 569; Co. Litt. 249 a ; Cro. Eliz. 164;

aiiboinsEom 9

Hob. 323. So the option of the archbishop may be devised. Waybede-

AmbL 91 ; 3 Bing. 240; 7 B. f C. 167. But an advowson in '"^'

gross wiU not pass under a devise of lands only, although it is

said that it will pass under the words ^* tenements and heredita-

ments,'' fVestfaUng v. Westfalingy 3 Alk. 460; and in a late case By what

it was expressly decided that it would pass under the word *^o'^

" tenements," alone. Gully v. Bishop of Exeter^ 4 Bitig, 290.

So also under the word ''hereditaments'* alone, Dyer^ S2S\

3 Brad, % Bing, 33; Co. Litt. 6 a.; and, although the older

cases are conflicting on the point, yet it seems now settled that

an advowson in gross, as well as an advowson appendant, lies

in tenure. 3 Brod, ^ Bing, ib. All the authorities agree that

an advowson appendant lies in tenure ; for though there can be

no services of an advowson, yet it is the manor which is the

tenement, and not the advowson appendant to it. lb, Co, Litt,

85 o. ; 2 Bl, Com, 16, 17. But a devise of an advowson merely,

without the addition of words of inheritance, will not pass more

than an estate for life. Pocock v. Bishop of London, 3 Brod.

% Bing. 27 ; nor will the words " perpetual" advowson carry the

devise further, or make it enure beyond an estate for life. lb,

1 Price, 353; 1 B, Sf Ad. 518; nor will an advowson pass in a

grant from the crown without special words. Hob. 127, and

tid, St. John V. Bishop of Winchester, 2 W. Bl. 930.

•An advowson appendant may be conveyed by any mode
which will pass the manor of which it is a member. Hob. 127 ;
1 Leon, 208. And without the words " with the appurtenances."
lb. Co. Litt. 307 a.

An advowson in gross, being an incorporeal hereditament, Convey-
does not pass by livery, but may be granted by deed, or a *°ce of.
common recovery suffered of it. 2 Wils, 116; Co, Litt. 332 a,
335 b. So also the next, or any number of future presentations
may be granted or conveyed, Co. Litt, 249 a; Plowd, 150;
Cro. EUz. 164 ; Hob. 322. But a deniisj of a manor, cum
pertinentiis, for years, will not pass an advowson to a lessee;
for a spiritual benefice cannot be granted for years or at will.
Com, Dig. Ado, C. 1. And it seems that a grant of an advow-
son, except the next presentation, though made during a
vacancy, is good. 2 Taunt. 69. The grant of a manor, with
all advowsons, &c. thereunto attached, does not include an
advowson once severed, though it was appendant to the manor
three hundred years since. 1 Com, Rep. 360.

Where the grantee of the next avoidance is evicted by a
higher title, as by statute, he loses his right to present; or
where the grantor makes a second grant of the same presenta-
tion, such second grant will be ino])crative. Co, Litt. 378 b.
But where a man granted the third presentation, his wife being

10 SRibotttsEom

CoDvey- entitled to it as part of ber dower, the grantee will have the
*°^^ ^ ' next presentation after the wife, because the wife's title arose
from an act of law, which shall not operate to the prejudice of
the grantee. Co. LUL378 b \ 3 Cruise^ 10. But if after grant
of the three next avoidances successive, the grantor present,
the grantee may present on the subsequent avoidances* Co. Liti.
249 a; I Burns E. L. 12, n. (2) A grantor with a limited
interest in a manor, cannot aliene for a longer time than his
interest continues. 1 Roll. Abr. 843; Hob. 45; 8 Rep. 144;
1 Bro. P. C. 106. If there be a grant of next avoidance to
two, one cannot release to the other whilst the church is void.
Cro. Elix. 174, 600; 3 Burr. 1606; 1 Leon, 167. An avoid-
ance being part of an advowson, which is incorporeal, must be
conveyed by deed. Dyer, 26 a. As to alienations by corpo-
rations, vid. 5 ^ 6 >F. 4, c. 76, *. 189 ; 6 ^ 7 W. 4, c. 77, s. 26 ;
1 ^2 yici. c. 31 ; post, lii. " Church Commission.*'
Restniau a bis power of aliening advowsons and avoidances is how-
on aliens- ever, to be understood with this limitation.
*""'• That it extends not to ecclesiastical persons of any kind

By persons who are seised in right of their churches, nor to masters and
holding fellows of coUegcs, nor to guardians of hospitals, seised in right
titlesf*"^^ of their houses, all these being restrained; the bishops, by
1 EUm, c. 19, and the rest by 13 Eliz. c. 10, from making any
grants, but of things corporeal of which an annual profit or
rent may be had. Cro. Eliz. 410. And therefore, such grants,
however confirmed, are void against the successor, though good
against the grantors themselves. Gibs. 797 ; 3 Bing. 2^ ; Cro.
EUx. 207, 690; 7 5. * C. 174.
Ofavacaat There is also another restraint which the law, through
^^^' dread of simony, imposes on the alienation of advowsons and

next presentations ; which is this, that the right to present
to a turn actually void, can under no circumstances be aliened
by a common person. The death of an incumbent and
consequent vacancy of a living do not prevent the patron from
conveying away the inheritance of the advowson, nor from
granting or assigning any future presentation or presentations,
but the right of presenting to the then vacant benefice, which
by the death of the incumbent is reduced into the possession of
the patron, cannot be sold or disposed of. It has been said, that
the turn itself being a mere spiritual thing annexed to the per-
son of the patron is not grantable, and that it is a thing in power
and authority, in action and effect, the execution of the advow-
son and not the advowson itself. Gibs. 797. In the Bishop of
Lincoln v. Wolfersian, 3 Burr. 1514, Lord Mansfield and
WUmot, J. disclaim this fictitious reason why a grant of a
fallen presentation is not good, and state that the true reasons

are public utility and the better to guard against simony, Rettrtinu
but a benefice voidable only may be sold. 6Nev. ^ Man. 686, Jon'***"*'
vide " Avoidance.*' — '-

It is said, however, that a grant of a next avoidance during Of a vacant
vacancy may be good, though it will not aiFect the turn then ^"'°'
actually vacant, but may ut res magis valeai quam pereatf
operate on the avoidance next after the church is filled. Jenk,
236, pL 1 ; And. 15. So the grant of the advowson during
vacancy is good, for as the vacant turn is disannexed from the
advowson, the grant does not operate on it. Dyer, 129 b;
Maorej 89. If a next avoidance be granted to A. and B., A.
may release to B. before avoidance; Cro. Eliz. 600; but after
avoidance such release is void. Moore, 467.

But if a man being both seised of the advowson and incumbent
of the church, devise the next presentation to his executor, it is
good, though the devise does not take effect till the avoidance
happens. Cro. Jac, 371 ; Com. Dig. Adv. C S; S Lev. itl.

The only distinction between a church which is full and one
that is void, is, that in the one case it is not siroontacal to sell
it, and the other it is, T B. ^ C. 151.

But these consequences do not attach to grants by the crown, Grmouby
for the grant of a void turn by the crown, if by express words, **>« crown.
is good. Hob. ] 40; Cro. Eliz. 173; 2 Taunt. 69. But by
the general grant by the crown of a manor, to which an advow-
son is appendant, a void turn does not pass. Cro. Jac. 171 ; 3
Lean. 196 ; Dyer, 300 a. By his prerogative the king has
the presentation upon the promotion of the incumbent to a
bishoprick. Cro. Jac. 691, vide nost ^^ Prerogative presen-
tationsJ* In the case of a right of presentation in the crown,
obtained by lapse if the patron present, the king may, notwith-
standing, present during the life of that presentee, but if he die
the king's title is lost. Cro. Jac. 216; Cro. Eliz. 44. But if
the church again becomes void by the act of such presentee,
it would be otherwise. Cro. Eliz. 119. A grant of a rectory
by the crown containing an exception of all churches and vicar-
ages, a perpetual curacy passes, not being within the exception,
1 H. Bl. 416.

By IS Ann, st. 2, c. IS, the clergy are prohibited from, ciergymeii.
directly or indirectly, either in their own name or in that of any
other person, taking, procuring, or accepting the next avoidance
of a presentation to any benefice, with cure of souls, dignity,
prebend, or living ecclesiastical, for any promise, agreement,
grant, bond, covenant, or other assurance, or for any sum of
money, reward, gift, profit or benefit whatsoever.

A devise of an advowson to a college is good by way of cha- Mortmain,
ritable use, and that not merely in equity by way of appoint-

^bolDstoin

Right of
presenta-
tion how
exercised.

Coparcen*
era.

ment to uses, but also at law ; for the stat. 43 Elix, c. 4, was,
pro ianto, a repeal of the exception in the stat. 35 H. 8, c. 5,
and therefore a devise to a college in either of the universities
is good, and will convey to them a legal title.

Having seen in the above cases how a person, who has the
sole and undivided interest in an advowson, can convey, assign,
or otherwise aliene the whole, or any part, share, or turn of it ;
the next inquiry will be into the relative rights of presentation
where parties are jointly interested in an advowson. Thus, in
the case of coparceners or co-heiresses, if an advowson descends
in coparcenary, the first presentation of mere right belongs to
the eldest sister. Tkrale t?. Bishop of London, 1 H, BL 41 S»
The second turn goes to the second sister, and so on succes-
sively to the rest, or their representatives, according to their
seniority, for the subsequent turns. Co. Litt. 166 6, 186 6.
It is intimated by some, that the right of the eldest sister
results from the disagreement to concur in her present-
ment by the other coparceners; Co. Litt, 166; lb. 186 b;
2 Inst, 356 ; 1 H, BL 402 ; the disagreement amounting to a
constructive partition of the advowson : but the principle of law
is founded rather on their non-agreement than on their disagree-
ment, and in a right so circumstanced it is a legal presumption
that they cannot agree, for the concurrence of the others in the
presentment of the eldest sister would only operate to their own
prejudice, the eldest, therefore, has the first turn pleno jure,
and the others in succession. 1 H* BL 412,418; 2 Roll.
Ab. 34^. The alienee of the eldest sister in turn is always
preferred before the younger sister. 1 Fes. 340. The right
goes to the issue or assignee of a coparcener, whether by con-
veyance or by act of law, as tenant by the curtesy. fViUes,
G62; lb.; 2 Inst. 350; Co. Lilt. 167 6; Moor. 225; Cro.
Eliz. 19. If there be a lapse or usurpation it only affects the

f particular turn. Bro. Qu. Imp. pL 118; 1 3£</. \,st.\,c. 5, s. 5.
f any of the coparceners be disturbed by the others or their
assigns, quare impedit will lie against them. 1 //. BL 418.
And now by stat. 7 Ann, c. 18, s. 2, it is enacted, " that if co-
•* parceners or joint tenants, or tenants in common, be seised of
" any estate of inheritance in thead vowson of a church or vicarage,
or other ecclesiastical promotion, and a partition is or shall be
made to present by turns, that thereupon every one shall be
" taken and adjudged to be seised of his or her separate part of
" the advowson, to present in his or her turn. As if there be two,
" and they make such partition, each shall be said to be seised,
*' the one of the one moiety to present in the first turn, the other
*' of the other moiety to present in the second turn. In like man-
" ner if there be three, four, or more, every one shall be said to

•• be seised of his or her part, that is separately, and to present R>?*^t»f
" in his or her turn." P^^j^^

If there be four co-partners of anadvowson, and the first daugh- exerciaed.

ter presents to the first avoidance, and the second to the second, jz

and on the third avoidance a stranger usurp on the third daughter ersf*'*^""
and present by usurpation, and such presentee be instituted,
inducted, and die, the fourth shall not lose her turn by the
third sufiering a stranger to present by usurpation, but shall pre*
sent at her turn. Bro, Ab, Qu. Imp. pL 118, recognised in
Barker v.Lamaa:, WHles,664; laJSlAlS; 7 Sim. 7 57. But if
A. and B. have a right to present by turns, and A. whose turn
it was let the living lapse to the bishop, who collated a parson
to it, and upon his death B« presented, held that he had a good
right, for that A., by letting the living lapse to the bishop, had
lost his turn, but that should not prejudice B. Bro. Ab. Pre-
sentaiionM, 26; WiUeM, 664; 1 //. Bl. 418. But if when A.
and B* coparceners do not agree, C, a stranger, implead A.
only by quare impedit on a vacancy, and recover, it is a bar to
a quare impedit^ brought by B. against C. for that turn,
though not for the next turn. WiUes, 659 ; 1 //. Bl. 418.

Though coparceners may make composition to present by Pirtitioii.
turns, this being no more than the law appoints, the inheritance
is not divided. Co. LiU. 1 8 a.

In case of coparceners, they being privies in blood, the par-
tition may be by parol, but between tenants in common it must
be by deed. Dyer, S9 ; Wats. c. 8 ; Bishop of Salisbury v.
PkiUips, Lord Raym. 537.

The cases of joint tenants and tenants in common is somewhat joint ten-
different from that of coparceners ; because, as an advowson is ^^^ ^^,
an entire thing unless they agree in presentation none can be ^^^^^^ "*
made, and a lapse will be incurred. Co. LiU. 186 6; 2 Atk.
482; 1 Fes.4lSgil5. But if one present, this shall not put
the other out of possession, because of the unity of title, con-
sequently, if the joint tenant or tenant in common, who pre-
sented die, this presentment of his shall serve for a title in a
suit by die survivor. Co. Litt. 186 A, 197 b, 243 a; 2 Inst.
365. So also it seems that a recovery against one joint tenant
or tenant in common will be a bar for that presentation to all.
2 Roll. Ab. 872, pi. I; 1 H. BL 417. But joint tenants may
agree to present in turn, which will amount to a partition, and
each of the parties may maintain quare impedit against a stran-
ger, it cannot make two advowsons, but it may create distinct
rights. 1 Ld. Raym. 535; Carth. 505 ; 12 Mod. 321 ; Hok, 52.
An agreement between joint tenants that they should be
tenants in common, and that each should present, amounts to a
severance and release. 1 Salt, 43. If one tenant in common

common.

SRibototfoit.

Right of
presenu*
tion how
exerciied.

Joint ten-
•nU and
tenants in
common.

TrattMi.

Devitas to
1 Vict.
€.26, 8.30.

PurchaieiT,

release, it will enure to the benefit of the other. 1 H, BL
417.

Where there are many patrons, and they cannot agree hi
their presentment, the ordinary is not bound to admit any of
their clerks, and after the six months, if they have not then
agreed he may present. 1 Bum's E. L. 14. And it is said that
where divers present, the bishop may choose which he will.
lb. 14. Where an advowson is held in common, and the rota
of presentation is not expressly settled, the first peaceable pre-
sentations are good evidence of the agreement between the
parties. S Bla, Rep. 774.

Wliere the trust is to present such fit person as the inhabi-
tants and parishioners, or the majority of the principal of them
should elect, the right is in all above twenty-one, paying the
church and poor rates. 10 Fet, 3S5; 14 Ves. 13. And where
hy neglect the number of trustees to present to a living was not
filled up at the time of an avoidance, the Court of Chancery
would not by injunction prevent the effect of a presentation
under the legal title of heir of surviving trustee, but will take
care to fill the trust in future; 5 Ves* 828, and will fix a
meeting to fill up places of trustees deceased. 1 Ves. 415;
7 Bro. P. a 522 ; and vide R. v. Mashiter, 1 Nev. ^ P. S14 ;
6Ad.^EU. 153; R. y. Davie, 1 Nev. ^ P. 328; 6Ad.^EU.S7*.

Am trustees can take nothing for their own benefit, a general
devise to trustees of '' all manors, advowsons, &c.," and out of
the profits, ^c, to pay the cestui que trust an annuity for life,
does not carry with it a right to present to a living, that not
being a thing out of which a profit can be made. Sherard v.
Lord Harborough, AmbL 165 ; Kansey v. Langham, Forest,
143. But an absolute devise to trustees carries away the
nomination from the heir, and it makes no difference that
the devisor was incumbent as well as owner. 1 Atk. 622. If
trustees have the right of presentation only upon the nomination
of others, they are, in the case of a donative, to judge of the
fitness of the person nominated, as a bishop does, and may ab-
solutely reject on the ground of his being illiterate, but if rejected
on the ground of immorality, that might be tried by a jury on
a return of the mandamus to the trustees to admit. 3 T. R. 646.

By express exception in the 30th section of the 1 Vict. c. 26,
s. 30, the late act for amending the law with regard to wills, a
devise to trustees or executors, in case of presentation to a
church may still pass a chattel interest.

Where a party has contracted with another, since deceased,
for the purchase of an advowson, but has taken no steps to en-
force the contract during the lifetime of vendor, and for a con-
siderable time after death, on the ground of objections to the

tide, it was held, that he was not entitled to present to a vacancy ^^^^ ®'
occurring in the mean time, though be may insist on having the S^h^,/
contract completed. 1 Price, 292. eierciied.

There is a well-known distinction between adocatio medi^

taUs ecclesia and medietas adcoc€Uionis ; the former is where mfd^umtiu
there are two independent patrons, and two several incumbents
in one church, each of the patrons having a right to present to
a moiety of the advowson ; the other is where several persons
have each in turn a right to present to the entire advowson.

2 Inst. 361; Godol. Ab. 206; Co. LUi. 18 a.; Cro. EUm.
6b6 ; 4 Rep. 75, 686 ; 10 Rep. 135. But coparceners, as well
as others not privies in blood may, if they choose, agree to
present together, or in any other mode, and such agreement is
binding. 1 Ld. Raum. 535; 1 Salk. 43 ; \ZEd.\, West c. 5,
«. 5. But if the eldest sister and another coparcener present
together, and the others each in their own names, the ordinary
is not bound to receive any of their clerks, not even of the elder
sister, unless she present alone in her own name. 1 Bum*s E. L.
15; 1 Ves. 414. If there be an agreement between the parties
altering the alternate right, it should be so stated on the plead-
ings, the court cannot presume it. 8 B. ^ P. 452* And if
there has been an usurpation, it seems that the one usurped
on may not present out of his turn by way of retaliation.

3 B» ^ P. 453. The clerk of a coparcener being once complete
incumbent and deprived the turn is served. But if the next
present, and is deprived also, and the first restored, the turn is
not served, because the restoring the first is a recontinuing
his incumbency on the foot of the former presentation, who also
dying incumbent will be the last presentee. 6 Rep. 102.

It is said, that if a man seised of an advowson, whether Tenant by
appendant or in gross, hath issue a daughter, who is married ^^^ cunwj.
and hath issue, and dyeth seised ; and the daughter, before the
church became void, dieth also, whereby she bad but a seisin
in law, yet tbe husband shall be tenant by the curtesy, because
he could by no other means attain to any other seisin. Com lift*,
29 a.; But. 4r Harg. Nates, 263; Bro. Ab. Ten. per Cwr.
pi. 2* But where the advowson is appendant, if the wife die
before entry into the manor to which it is appendant, the
husband shall not become tenant by the curtesy, because she
had never seisin of the principal. Co. lAtt. 29 a, ib. It is said
also by Perkins^ sect. 468, that although an advowson become
void during the coverture, and the wife die after the six months
past, before any presentment by the husband, so that the
ordinary presents by lapse to that avoidance, yet the husband
shall present to the next avoidance as tenant by the curtesy :
3 Cruise, I0,l\ ised wde Co. Litt. But. 4r Harg. 263.

Jf it be an advowson in gross, the heir shall have two Tenant in

dower.

SbboUisiom

Right of
presenta-
tion how
exercised.

Tenant in
dower.

Infants.

Lunatic.

Mortgagee.

Sutttte
merchant.

BankrapC

presentments, and the dowager the third, although the hus-
band in his lifetime may have granted away the third turn;
or if a manor with an advowson appendant descend to an heir,
and he assign a third part of the manor with the appurtenances
for dower, she is thereby endowed of the third part of the
advowson, and shall have the third turn. Co. Litt. 34 6.

An infant of any age may either present or nominate; the
guardian being supposed to find a fit person, and the bishop to
confirm his choice ; and the reason that the guardian cannot
present is, that he can take nothing for the presentation for
which he can account to the heir. 8 Inst. 156; 2 InsL 89 a. ;
3 Atk. 710; 3 Burr. 1514; 1 B. is C. 150; 3 Bin^. 255;
FonbL on Equity^ 84 a. Still it is said that equity would inter-
pose if a presentation were obtained from an infant without the
concurrence of his guardian. 3 Cruise^ 31.

Neither a lunatic nor his committee can present, but
usually the chancellor presents to one of the family. Wood.
Led. 409.

Though in the case of a mortgage in fee, the legal right of
presentation is vested in the mortgagee, yet a court of equity
it seems will compel the ordinary to accept the clerk of the
mortgagor any time before foreclosure, for the mortgagee can
make no profit by presenting to the church, as the law will not
presume any pecuniary advantage to be made of a presentation,
to sink or lessen his debt. 2 Vern. 401 ; Str. 403 ; AmbL 165 ;
3 Atk. 559. And the same principle applies, though the mort-
gagor be in possession of the manor to which the. advowson is
appendant. 2 P. Wms, 404 ; 2 Fern. 549. But qu€ere whether
it applies to an advowson in gross, where the mortgagee could
have no other satisfaction than for providing for a child, &c. on
a vacancy. lb. 3 Atk. 559 ; Dick. 662. But it seems that a
mortgagee of an advowson appendant may pray a sale. Bunb.
130; 1 Bro. P. C. 81 ; Forrest. 145. If he does not he must
accept the mortgagor's nominee. 3 Atk. 559 ; Prec. in Chan. 7 1 .
But if there be an express agreement that the mortgagee shall
present, it may be otherwise. 2 P. Wms. 404; Mos. 16.

Where a manor with an advowson appendant is extended on
a statute merchant, and there is a vacancy during the cognisee*s
estate, it has been said that he may present. Owen, 4d. But
it is presumed that now by analogy to the case of a mortgagor
the cognizor would be allowed to present. 3 Cruise, 28.

If a bankrupt be entitled to an advowson or a right of next
presentation, it may be sold under the commission, but if at
the time of sale the church be vacant, the bankrupt is entitled
to present. 3 Cruise, 28 ; Whitmarsh, B. L. 80. By 6 Geo, 4,
e. 16, «. 77, it is enacted, that all powers vested in any bankrupt,
which he might legally execute for his own benefit, (except the

right of nomination to any vacant ecclesiastical benefice) may be ^^^ of
executed by the assignees for the creditors, in the same way ^^how
that he might have done. exercised.

An alien is disabled from presenting to a church, and there-

fore if an alien purchase an advowson, and the church become ^^°'
void, the king shall present. Wats. 106 ; 3 Cruise^ 31.

By the statute 3 Jac. I, c. 5, it is enacted, that all papist Papisu.
recusants shall be disabled to present to any benefice, or to
grant any avoidance of a benefice, and the presentation is given
to the universities of Oxford and Cambridge; vide also 1 W.S^M.
sess. I, c. 26. In Coitington v. Fletcher^ 2 Atk. 155, it appeared
that the plaintifi^ whilst a papist, had assigned an advowson to
the defendant for ninety-nine years ; but afterwards conformed,
and brought his bill for re-assignment of the term, suggesting
he had only assigned it in trust for himself, and to avoid the
penalties of the above statutes; and it was held that the
plmntifif having conformed before avoidance, nothing was
vested in the universities, and that the 12 Atme^ st. S, c. 14,
which was relied on, did not make the whole trust void, but
only the turn on an avoidance, which by the previous statutes
had vested in the universities.

Although whilst the church is full, or even voidable, if not ac- During ya-
tually vacant an advowson or next presentation may be con- *^*?^y •*•"
veyed or assigned as any other property, yet a different rule titled.
prevails if the church is vacant, at least as to the void turn. So, if
one be seised of a presentative advowson, and the church becomes
void, the void turn is a chattel disannexed from the inherit-
ance, and if the patron die before he presents, the avoidance
goes not to the heir but to the executor. Fitx. Present. 34 6,
SSp; Co.Liti.S88a; 4! Lean, 109; RenneU v. Bishop of
Lincoln, 3 Bing. 234 ; 7 £. * C. 1 17 ; Alston v. Atlay, 6 Nev.
% Man. 686 ; 2 WiU. 150 ; Gibs. 797. And although not sale-
able as a subject of profit, it is not less a chattel, or the less
belongs to the executor. So where the wife is seised and
dies leaving the church void, the right to present goes to the
husband as administrator of the wife, altnough there having
been no issue, he is not tenant by the curtesy. lb. Or
although the advowson or manor to which it is appendant were
only assigned to her in dower. 7 fi. ^ C. 131.

So where the husband is tenant by the curtesy, and the
church becomes void during his Ufe, and he dies during the
vacancy, the turn does not go to the heir of the wife, but to
the husband's executors. And so is the law in most cases
where the interest determines after the church is void, and
before presentment. Per Finch, 38, jB. 3, 36 ; Bro. Presenter-
tion, 18 ; 21 J^. 6, 56 6; 3 Bing.2S4f.

This rule has been extended to the case of a prebend;

^tibotDfiiom

Kigbt of
presenta-
tion how
exercised.

During va-
cancy exe<
cutor en-
tilled.

Donative.

CoUative.

it having been held that where a prebendary having the advow-
son of a rectory in riglit of his prebend dies, whilst the cbarch
is vacant, his personal representative has the right of presen-
tation. Rennell v. Bishop of Lincoln, 7 £. ^ C. 113. It
had been previously decided in the Common Pleas, 3 Bing. 223,
Gaselee, J., diss., that the right did not pass to the personal
representative, on the ground that it was a personal trust
vested in the politic person of the prebendary as a sole cor-
porator, and not in him as a natural person. In the king*s
bench, by writ of error, three judges held. Lord Tenter-
den, diss,, that in the case of a presentative benefice, a vacancy
separates from the inheritance the right of presentation, that
that right is a chattel interest, that it vests in the prebendary,
not in his corporate, but in his individual capacity, and that
consequently it must take the direction and be subject to all
the incidents of an ordinary chattel. 7 B. ^ C. 190. The
decision of the king's bench has been since confirmed by the
house of lords by six judges to one, diss. Lord LyndhursL 1 Clk.
^ Fin. 527. So also if a vicarage happen to be void, and before
the parson present he is made a bishop, yet he shall present
to this turn, because it is a chattel vested in him. 7 B. S^ C.
149, 184; Fitz.N. B. 34 ; sed vid. 7B.S^C. 196. So in the case
of options, the option is transmissible to the personal re-
presentative of the archbishop. Ambl. 98 ; 3 Bing. 240 ; 7 B»
% C. 167.

But where one seised in fee of an advowson, who is also parson
of the church, die ; his heir, and not his executor, shall present,
for though the advowson does not descend to the heir till after
the death of the ancestor, and by his death the church is
become void, so that the avoidance may be said to be severed
from the advowson, before it descend to the heir and vest in
the executor, yet both the avoidance and descent to the heir
happening at the same instant, the title of the heir shall be
preferred as elder. 3 Lev. 47 ; 7 B. % C. 147.

Where a donative becomes vacant in the lifetime of the
owner of the advowson, who dies before it is filled up, the
presentation belongs to the heir and not to the executor.
Repington v. Ihe Governors of Tamworth School, 2 WiU. 150.
The reason assigned for the distinction is, that ** the nature of
a donative is such that the whole vests in the patron and his
heirs, who may take the profits during vacancy, and therefore
the executor has nothing to do with it, 7 B.S^C. 161 ,* sed vide^
what is said of the above case, by Holroyd^ J., ib» 175, and by
Bay leu J,, ib. 188.

In the cases of advowsons collative, neither the successor in
the see, nor the executor of the bishop, shall have the pre-
sentation, but the king. 2 Rol. Abr. 345. Co. LiiL 90 a.

aMotoisom 19

888 a, and Bro. Abr. Present. 34. Where the avoidance I^g^tof
is of a benefice belonging to the bishop, who dies before Son^how
he makes coDatioDy the king shall haveit by reason of the tem- exercised.
poralities, and not the executors of the bishop ; Co. Lit. 90 a ; 7 J5.
% C 162, SOI ; and| indeed, even if the bishop make a collation,
and before induction, or installation, dies, and the king seizes
the temporalities, he shall have the presentment, because that
the church is not full against the king, till the parson be
installed or inducted. Fitx. N. B. 34.

In case of an incumbent being made a bishop, and the living be-
coming vacant, the king is entitled ; Moor. 399, pi. 522 ; 1 Ld.
Raym, 25 ; by virtue of his prerogative.

These prerogative presentations appear to be as old as Prerogative
Edward 2d, and were exercised under Henry 8th, and Elizabeth ; ^^^^'
the law respecting them was doubted in the time of Car. 2,
and since, but was finally settled in favour of the crown in
the reign of William. It is not a right of patronage in the
king, nor a right of eviction, for it ejects nobody, nor an
usurpation, for it is a rightful act. But it is a contingent
casual right, arising upon a particular event, namely, the in-
cumbent's becoming a bishop. Calland v. Troward^ 2 H. BL
383; 6 r. JR. 439; 8 Bro. P. C. 778; 2 W. BL 770; and
therefore the original owner of the advowson may present on
the death or resignation of the king's grantee, ib. ; for it only
suspends or postpones the turn of the patron and of all the
patrons, if more than one, and does not take away the right of
any one, and leave the rest entire. 2 W. BL 770. But where
the king has an interest in the presentation, and the prerogative
happens at the same time, the interest shall be preferred, as if
the king be seised of an advowson, and make the incumbent a
bishop, he shall present as patron, that being a title precedent
to that of prerogative. 1 Ld, Raym. 26.

By the common law a presentation is revocable, as it vests A presenta-
no right in any one, not even in the clerk presented ; for if the ^^,^1^
clerk had a right, the law would give him a remedy to recover it
when invaded, but there is no species of action at common law,
open or competent to a clerk to recover a presentation when
obstructed, but to the patron only. Rogers v. HoUed, 2 W.
JBA1639.

If two patrons present by several titles, the church is said to cburch ti.

become litigious, the bishop not knowing whose presentee to ^&^'

admit: but if two persons holding by a joint title present different
clerks, the church does not become litigious, for the bishop may
admit which he pleases ; or if they do not agree within the six
months the bishop may collate. Co. Litt. 186 b; 2 Atk. 482.
Nor is a church become litigious unless a second clerk be pre-
sented; therefore, if a bishop refuse a clerk, no other being

c 2

^botssttm*

Church li-
tigious.

Caveat,

Effect of.

Jui patroti'
atus.

Notice of.

Judge.

Jury.

How 8um>
mooed.

Swearing
of the jury.

presented, he becomes a disturber ; and though another should
afterwards present, whereby the church does become litigious^
yet that will not excuse the bishop from being a disturber, if the
first patron be found to have the better title^ nor can he have
the benefit of a lapse, though no action be brought against him,
which makes it not safe for the bishop to refuse him that comes
first, but rather to suspend his admission and institution. 1 Burns
E. L. 23.

In case the patron fear that the bishop will admit another
clerk, he may enter a caveat against admitting the clerk of any
other, which though it will not operate to invalidate a subsequent
admission ; GodoL Ab. 280 ; yet it is a notice to the ordinary,
and a caution to him in equity and prudence not to admit hastily.
Burns E. L. 23, 24.

Supposing the bishop entertain doubts he may, at the suit of
one or both parties, or, as it seems, by his own motion, decree,
or process, dejure patronatus^ which is in the nature of an
inquest of office, to inquire by a mixed jury of ecclesiastics and
laymen, touching the said advowson or right of patronage ac-
cording to the laws and customs of the church. Godol* Ab*
206 ; 1 Burns E. L. 24.

Upon the awarding this process a public notice is affixed to
the door of the church in time of divine service, calling on
all persons having or pretending to have any interest or right
of presenting to the vacant church to appear at a day and place
appointed to shew their right ; and a monition is decreed by
the bishop against the patrons presenting and the clerks pre*
sented, to be present at the time and place fixed. Clarke^ iii.
98; Com. Dig. Eglise, K, 1 ; Wats. c. 21.

The bishop may, in his own person, sit as judge, or as is
usual, may issue his commission to his chancellor, or to some
other person skilled in the canon and ecclesiastical laws. He is
also to summon a jury by way of citation, consisting of six clerks,
and six laymen living near the void church, or of as many more
as he pleases, always preserving the proportions equal. lb. If
any of the jury who have been duly summoned, do not appear,
they may be punished, the clergy by sequestration, and the lay-
men by excommunication. Clarke, tit. 100. But if six of each
sort appear, it will be sufficient, J6., and if others cited do not
appear, the proceedings are to go on notwithstanding, and in
pcenam contumacies of them that do not appear. lb.

If a competent number appear, they are sworn alternately,
first, a clerk, and then a layman, " faithfully to inquire of the
articles," which articles are five.

1. Whether the church be void, and how it became so.

2. Who presented at the last and two preceding avoidances.

3. Whether those presenting, presented in their own right.

4. In whom is the inheritance of the advowson, and who •^»" patron^
ought to present on a void turn. ^^"*'

5. Whether any of the clerks presented be known, or sus-
pected to be guilty of any crime incapacitating him to be ad-
mitted to the said benefice, as heresy, simony, perjury, adultery,
drunkenness, or the like. lb. 99.

The jury it seems, are not bound to find their verdict at the
time ; for the judge may assign them a longer time to consider
the matter, and assign also a place where they shall give their
verdict. lb. 100.

If the jury cannot agree, or refuse to give any verdict, or if
they find a special verdict ; or, if both patrons have a jus pa--
ironaius, and each have a verdict, the bishop may refuse both,
and it seems that he may award a second process. Gibs. 779 ;
and indeed the bishop is never obliged to award a process of
jus patronatus, or having awarded it, is he obliged to adopt the
verdict, but he risks great inconveniences by not doing so.
1 Burn*s E. L. 27 , and if the bishop admits the clerk for whose
title the verdict is found, he shall never after be made a dis-
turber. 1 Bum's E. L. 28.

Though a verdict be found in a jus patronatus^ the patron
must again request the bishop to admit his clerk, otherwise if
the church lapse after the six months the bishop may present.
Deg. p. 1 , c. 3 ; I Burn's E. L. 27.

Furthermore it seems that a church may again become liti-
gious, if, after verdict given upon a jus patronaius, another
clerk is presented by a patron whose title was not discussed in
the proceedings, before admission is requested by him for
whom the verdict is found. In this case a fresh process of
jus patroncUus may be awarded ; but this should not be done
if the presentation be made after request upon the verdict
given. 1 Bum's E.L.«1.

But no dean or other prelate (except bishops) shall make in-
quisiiion concerning the matter of presentation of any person
to an ecclesiastical benefice but in a full chapter of the place,
having first cited him who hath possession of the church, in
such reasonable time as he may have opportunity to advise with
his counsel and prepare for his defence, and all contrary pro-
ceedings are void ; and the dean or prelate making such clan-
destine inquest shall make satisfaction in damages, and the am-
bitious aggressor shall be excluded from such benefice for ever,
and from taking any other for three years. lAnd. 217.

Usurpation is an absolute ouster or dispossession of the .
patron, and happens when a stranger that has no right pre- ance°of'pa-
scnteth a clerk, and he is thereupon admitted and instituted, tronage.

In which case of usurpation the patron lost by the common

law not only his turn of presenting, pro hdc vice, but also the

22 ^botDsttim

Disturb- absolute and perpetual inheritance of the advowson, so that he
troMge.^^' could not present again upon the next avoidance, unless in the

meantime he recovered his right in a real action, viz, a writ of

right of advowson. By the common law the demandant in this
writ was required to allege a presentation by himself or his an-
cestors, a purchaser therefore, unless he had actually presented,
had no seisin whereon to found a writ of right. 2 Inst. 257. But
the Stat* Westtn. 2d., IS Edw. I, c. 5, in substance provided,
that if a possessory action be brought within six months after
the avoidance the patron shall (notwithstanding such usurpation
and intrusion), recover back that very presentation which gives
back to him the seisin of the advowson. Yet still if the true
patron neglected to bring his action within six months, the
seisin was gained by the usurper, and the patron to recover it
was obliged to resort to a writ of right. To remedy which it
was further enacted by 7 AnnCf c. 18, that no usurpation shall
displace the estate or interest of the true patron or turn it into
a mere right. And the true patron may present on the next
avoidance, as if no such usurpation had happened. So that the
title by usurpation is much narrowed, and the law stands upon
this reasonable foundation : That if a stranger usurp the pre-
sentation, and the owner does not pursue his right within six
months he shall lose that turn without remedy ; but that turn only,
for usurpation since the above statute of Anne, gains no right to
the usurper beyond the vacancy usurped ; it cannot indeed be
remedied after six months are past, but during those six months
it is only a species of disturbance. 3 BL Com, 244.

For disturbance of patronage there were three remedies : a
writ of right of advowson, and two inferior possessory actions,
an assise of darrein presentment, and a writ of quare impedit.
In which latter the patron is plaintiff and not his clerk, for the
law supposes the injury to be offered to him only by obstruct-
ing or refusing the admission of his nominee, and not to the
clerk who hath no right till institution, and of course can
suffer no injury.

The two former proceedings having fallen into disuse, have
been by a late statute entirely taken away, for now by 3 ^ 4
Wm. 4, e. 27, s. 36, it is enacted, amongst other things, *' that
" no writ of right of advowson, nor of darrein presentment,
'' and no other action, real or mixed, except a quare impedit,
" and no plaint in the nature of any writ or action should be
" brought after the 31st day of December 1834.'* So that the
only remedy now allowed by law is the proceeding by quare
impedit. .

Qt(or« tm« Quare impedit is a writ which lies by him who has the ad-
T^dit. vowsonofa church, and is disturbed in his presentation to it«

Com^ Dig, Q. Imp. D. ; 2 Inst, 356,

Where the title is to a vicarage only, there is a special writ, ^«f""« »»-
ad prtesentandum ad vicariam for the writ ad prasentandum ad ^'*'
ecclesiam intends a right to the parsonage. Cro. Car. 74 ;
Cro* EU». 163; LitU Rep, 50. The writ may be amended.
Cro. Car. 74; Cro. Elix. 119; Dougl. 116; Hob. 118.
In general it is sufficient for the count to be special, and
the writ may be general. Cro. Elix. S41, 10. As to the forms
of the writ in the cases of a '' medietas advocationis i* and of an
** advocatio medietatiSf'* vid. Co. Litt. 17a; 10 Rep. 1S6 ; 5 Rep.
10^ ; Cro. EUx. 687. If the plaintiff have only the nomination or
collation still the writ shall say prasentare, and the count shall be
special, if it be nomiitar^, it abates. Brouml. ]&9; /or precedents
{^pleadings in Qu.Imp. see 2 Wits. S31 ; 3 Lev. \2\ Faugh. 1 ;
1 H. Bl. 376; Hob. 315; Cro. Car. 104, 173; 7 B. ^ C. 113;
5 Binff. 316; 4 £.^ C. 555.

By Stat. Westm. 2, c, 6, 13 Ed. 1, if a stranger usurp upon Wbomay
an infant claiming by descent, or on tenant for life by the cur- *»*^*'
tesy, in dower, in tail, or upon tenant for years by demise of
the ancestor, the heir shall not be put to his writ of right, but
on the next avoidance may present, or if he be disturbed may
bring quare impedit ; 2 Inst. 359 ; 6 Rep. 48 b ; Bull. N. P.
Qu. Imp.; in which he must lay the last presentation in his
ancestor, and pass over the usurpation, for by the statute that
is to be counted as none for this purpose, but if one usurp on
an infant heir, who comes of age, if the heir remove not the in-
cumbent by suit, within six months, he is out of the statute. Hob.
HiO ; Fitx. Q. Imp. 67 ; Bull. N. P. Q. Imp. And an infant
may have this remedy, though his ancestor purchased and
never presented. Com. Dig. Qu. Imp. D. ; S Inst. 359. But
if an infant purchased and the usurpation be on him, he is not
within the statute, and though a Jeme coverte is generally
within the statute, for usurpation during coverture she is not if
the advowson were purchased by her. Com. Dig. ib. ; 2 Inst.
359, 360 ; Jon, 49. So if the usurpation be upon a bishop, or
other ecclesiastical person, his successor shall not have a quare
impedit i for the statute only aids usurpation during vacation, or
when the ancestor could not have a remedy at the time of the
usurpation. Com. Dig. ib. ; Fitz. N. B. 34; 6 Rep. 450 a. One
coparcener may have this suit against another upon an agree-
ment to present by turns, if the agreement be confirmed. 2
Mad, 97 ; 2 Inst. 365; Bro. Q. Imp. 139. So also a wife after
the death of her husband, disturbed in presenting in her right.
Mai. Q. Imp. 150. If a right of presentation be in one, and of
nomination in another, quare impedit will lie by the person
having the nomination against the person having the right to
present if he obstruct the nominee. 3 T, R. 646 ; Rast. 506 b.
And they may join if a stranger presents, Dyer^ 48 a, or hav.e

SCbbotDcfoit*

Who may
have.

Quan «m- several writs, lb., and generally several having the same title
P'"^^^' may join. Com. Dig. Pleader, 3 /. S. Quare impedit may

be brought by the king in right of his crown, or on a title by
lapse. Com Dig. ib. An executor or administrator may have
this writ upon avoidance in the lifetime of the deceased. Cam.
Dig. ib.', Cro. Eliz. 141 ; 1 Leon. 205. If a grant of nextavoid-
ance be to two and one releases, the releasee may also have it.

Com. Dig. ih. , v i ■

If the delay arises from the bishop alone then he only is
named in the writ ; if another presentation be set up, then the
usurping clerk and his patron are also to be named ; but the
action may be brought against the patron and clerk, or clerk
only, but it is advisable to name bishop, patron, and clerk, for
if the bishop be omitted, and the action be not determined within
the six months, the bishop takes by lapse, not being bound by
the suit; but if he be named, he is bound, and the metropolitan
and king likewise. Cro. Jac. 93; Hob.^X ; Co. Litt. 34* a. If
the patron be omitted, the omission may be pleaded in abatement,
his title being generally the question to be tried. Hob. 316 ; Cro.
Jac. 651 ; 7 Rep. 25. If the clerk be omitted and has received
institution before action brought, the present turn cannot be re-
covered, for no judgment can be had against the clerk. 3 BL
Com. 247 ; Co. Litt. 344 a. Where however the patron's title is
not questioned, as in the case of simony of an incumbent, or where
the incumbent is collated by lapse, it is not necessary to include
the patron. 3 Lev. 16, 206 ; 1 Leon. 45 ; 7 Rep. 26 a. As to
what parties are to be named and under what circumstances, vid.
Elvis V. Archbishop of York, Hob. 320 ; but generally it may
be said that it is not advisable to name more than are actually
necessary to be named ; nor more disturbers than are Hkely to
have reasonable titles. Ib.

Immediately on the suing out a quare impedit, the course to
stop the bishop or strangers from presenting pendente brevi, is
to sue a prohibitory writ of ne admiitas. Fits. N. B. 37 ;
Cro. Jac. 93, which forbids the bishop to admit any clerk till
the action be determined. And if the bishop does admit,
pending the suit, the plaintiff having obtained judgment in the
quare impedit, may remove the clerk by scire facias, 2 Sid. 94,
even though the patron's right may have been found in a jure
patronatus, and shall also have a special action against the
bishoD, called a quare incumbravit, to recover the presentation
and also satisfaction in damages. Fitx. N. B.4S; Cro. Jac. 93.
But if the bishop admitted the clerk before the ne admittas
issued, no quare incumbravit lies. Though the common pleas
is generally the proper court to commence proceedings in quare

Where may impedit, yet the king may proceed in any court. Plowd. 244 :

be brought. 1 Ad. tf EU. 394.

Proceed-
iDga in.

The process in quare impedii is by summons, attachment, and ^u^^ tin-
distress. 8 Inst. 824 ; 6 Bing. 283. By the common law this was dis- ^'^'
tress infinite; but now by Stat, of Marlbridge^ 52 Hen.S, c. 12, Proceed*
changed to " the great distress," and the proceedings directed iog* ii^*
as follows. *' In a plea of quare impedii^ if the disturber comes
not at the first day that he is summoned, nor cast no essoin^
then he shall be attached at another day ; at which day if he
come not, nor cast no essoin^ then he shall be distrained by the
great distress ; and, if he come not then, by his default a writ
shall go to the bishop of the same place, that the claim of the
disturber for that time shall not be prejudicial to the plaintiff.**

The summons is to be served on the defendant, or at the church Proc«M.
door. 1 BroumL 158; 2 Mod. 264; Com. Dig. Pleader ^3 1. 1 ; serriceof.
Vin^ Abr. Summons^ A. 3 ; Anders. 278. But it the defendant be
not actually summoned, there shall not be judgment upon de-
fault at the distress. Com. Dig. lb. ; 1 Mod. 248 ; therefore
in a late case, where the defendant was a lunatic^ and in
confinement, and where there was no church upon the Kving,
the plaintiff proceeded by summons, to which nihil was returned,
then by attachment which recited that the defendant had been
summoned; and then by distringas , under which the sheriff was
ordered to levy 40s. ; on notice given to the attorney of the
committee of the defendant, that judgment would be entered
up, and a writ of inquiry issue ; such judgment was set aside as
irregular. 6 Bing, 283.

If there are two defendants, and one does not appear upon
the first distress the plaintiff shall have judgment and a writ
to the bishop, though the other defendant appear, who perhaps
may have a writ to the bishop also. 2 Inst. 124, 125. If all
the defendants make default there shall be judgment against all.
Com. Dig. Pleader, 3 /. 1 ; Lilly. Abr. Q. Imp.

In quare impedit, there ought only to be fifteen to twenty-one
days before the return, by st. 52 Hen. 3, c. 12. If a longer day be
given by consent, such consent should appear of record. 2 Inst.
124. The summons should be tested the day it issues, that there
may be no prejudice in respect of lapse. Com. Dig. lb*

The rules of Hilary Term, 2 W. 4, do not apply to real Declan-
actions; still a declaration in quare impedit must be delivered ^^^ ^^«n
within twelve months of the return of the writ; and the ^***°**^*
twelvemonth is to be calculated from twelve months of the
return day, and not twelve months from the time of appearance,
the time given to put in, and perfect bail, being merely matter of
indulgence. Therefore in a case in which the writ was return-
able on the 8th of May 1834, but the declaration not delivered
till the 10th of January 1835, and the defendant's appeared on
the 11th of January 1835, the declaration was set aside as too
late. Barnes v. Jackson, 1 Bing. N. C. 545. In this case the writ

26 a)iboh)£(om

Quar$im- uras against three, with regard to one, the incumbent, the
^^*^' sheriff returned ni/til, and an alias quare impedit issued against

Declara- him, returnable on the 15th April 1834, as to him it was held
tion. the plaintiff was in time to declare, and the proceedings went

on. lb. 549.
Form of. Quore impedit being a possessory action, the plaintiff must

shew an actual seisin by presentation, by himself, or by some
person through whom he claims. Vaughan, 8 ; S Lev. 4S6 ;
Hob. 102; 1 Bro. P. C. 110; 1 Daw | Clarke, 256. There
may be cases where that is impossible, as in the case of an
advowson newly created, and there it seems not requisite.
Bull. N. P. Q. Imp. ; 3 Wils. 323. So, if the last presenta-
tion be not known, it seems to be sufficient to revert to the heir
of the founder, or in cases of chapels of ease, the incumbent.
^ B. & C. 555; 1 Ld. Raym. 201. A vendee claiming
through his vendor is sufficient. 2 Inst. 356. So if a grant
of the next avoidance be shewn, and an allegation of a pre-
sentment by a grantee, it is sufficient for one claiming under
the grantor, for he presented in right of the grantor. 5 Rep.
97; Cro. Eliz. 518; the grantee of the next avoidance must
show that it is so in his declaration. Dyer, 129 b; Com.
Dig. Pleader, 3 L. 5, there should be an allegation of a pre-
sentation by some person under whom the plaintiff claims.
1 Bro. P« C. 110. Where an advowson descends in co-
parcenary among four, it would be impossible that the per-
son cl&iming the second or third turn should show a pre-
sentation by himself at the first turn, all that is necessary is to
show seisin and presentation by the ancestor under whom all
claim. \0 B. ^ C. 604. Where an act of parliament unites
three churches, and gives the first turn to the patron of the
church, of the highest value, without noticing the others, and
it appears on the face of the declaration that a certain order of

Eresentation has taken place, under the act of parliament, which
as been acquiesced in, it is sufficient. 3 Wils. 323 ; 3 Lev.
436; 1 Ld. Raym. 192.

The not setting out a presentation will be aided by verdict.
Strange, 1006. The king must allege a title as well as a com-
mon person. lb. Vaugh. 57 ; but if it be a prerogative title he
need not show any other, for he is a stranger to it. Lutw. 1093.
The last presentment ought regularly to be mentioned, and
therefore if a bishop presents upon lapse, the patron in quare
impedit upon the said avoidance should notice it. 3 Leon. 18.
' But if there be usurpation on the king, the grantee need not
notice that. Hob. 140.

The plaintiff should allege a disturbance before the writ.
Hob. 199 ; LiU. Abr. Q. Imp. ; a plaintiff must set out his title
at length, and must recover by the strength of his own title^ and

SKrtotosHm. 27

not by the defendant's weakness. Vaugh. 7, 8 ; \ H. BL 409 ; Q^/^ ti«.
The defendant should also show a title, for he as well as the ^'^'
plaintiff is actor, and if the plaintiff fail in proof of his title, the Declan-
defendant may be called on to prove his in order to obtain ^^^
judgment. It is said also that the plaintiff can state but one Fonnof.
title. Cam, Dig. Action, G. ; an entire title must be shewn
in the declaration. 4f B. §• C. 555. If the plaintiff claims to
present against common right, he must show its commence-
ment ; if he allege presentation by prescription, composition, or
otherwise, it must be shewn how. Dyer, 259, 299 ; 3 Leofu
163; 1 SaUc. 43; 3 2}. & P. 452; if there are several plain tiffb,
and they vary in title, the writ abates. Com, Dig. Pleader,
SI. 4.

The grantee of the next avoidance must shew that it is so;
Com. Dig. ib. ; but presentation by grantee of the next avoidance
is sufficient to support title of the heirs of grantor. Cro.EUx. 518.
In all cases the plaintiff must shew a title in himself before the
avoidance, therefore, if it be stated that the voidance, was by
the acceptance of plurality, or other act at a day before the
grant of the next avoidance by which the plaintiff claims it will
be bad. Com. Dig, ib. ; Dyer, 129 6.

If a declaration states that an incumbent accepted another
benefice with cure of souls, it shews a sufficient avoidance,
for it is not necessary to state that the benefice held by
the incumbent was above the value of 8/. For of such cause
for avoidance the patron might take notice if he would, and
might present without any deprivation. Apperley v. Bishop of
Hereford, 9 Bing. 681 ; S M. S; S. 102; Huiton v. Cove, 1 B.
^ Ad. 538 ; AUton v. Atlay, 6 N. Sf M. 686. Upon pleading
a presentment the party must show that the church was vacant
at the time of such presentment. Com. Dig. 3 1.5; 10 Mod.
308 ; and if it be a common person he must add that the clerk
was thereon instituted and inducted. Com. Dig. Ib- ; BendL

{il. 297; Dow ^ Clark, 257. It is not necessary to al-
ege the exact time when the party was seised of the ad*
vowson. 1 Ld. Raym. 298; 1 SalL 40; 2 Salk. 560; 5 Mod.
297 ; Skin. 651. Nor need a cestui que trust make profert
of the grant to his trustees, for it does not belong to him but
to the grantees, nor has he a remedy in law to get possession of
it. Carth. 315.

It should be shewn whether the advowson is appendant or in
gross* Faugh. 7^8; Com. Dig. Pleader, 3 /. 4. So where
die plaintiff shews a right to present by turn, it ought to be
shewn how the right commenced by prescription, composition,
or otherwise. Com. Dig. ib. ; Semb. Dyer, 259 b. 299 b. But
a composition by parceners need not be shewn, for that may be
without deed. 1 Salk. 43 ; Com. Dig. ibid, ; Dyer, 299 fr«

SCbbofDfliom

Quart tm-
pedit.

Declara-
tion in
may be
ameDded.

Pleas io.

Plenarty.

By ordi-
nary.

TraTerM.

In case of a quare impedit by the crown the declaration may
be amended, although tne proceedings were upon a simoniacal
contract, and therefore penal. King t. Archbishop of York,
I Ad, ^ Ell. 394. The original declaration contained only one
count, and the contract was there stated to have been made be-
tween A. B. & C, and the consideration to have been the grant-
ing a lease of lands, parcel of the rectory, at an inadequate rent ;
the amendment allowed was the addition of four counts,
stating the contract to have been made between A. and B.
only, and the consideration to have been the giving up part
of the profits of the benefice, and executing a resignation bond.
Ibid., and vid. Gully v. Bishop of Exeter, 4 Bing. 535;
10 2?. ^C, 60S.

Defendants may either plead in abatement or to the action.
An ordinary cannot plead in abatement, or cast an essoin with-
out making himself a disturber. Hob. 200. An incumbent
may plead in abatement that the patron is not named in the
writ who ought to be, Cro, Jac. 651 ; 7 Rep. 25 b; Hob. 316.
But a bishop cannot so plead that the patron is not named.
Hob. 317. Another quare impedit for the same avoidance
may be pleaded. Hob. 137.

By the common law, plenarty before the writ for any time
was a good plea, but by Stat, of Westm. 3, c. 5, it must be
plenarty for six months ; generally plenarty is no plea against
the king, S Inst. 361, nor plenarty upon a collation by a bishop
by wrong, though the collation was after a lapse. Com. Dig.
ib. 3 /• 8. If the defendant plead plenarty he must show of
whose presentment. Plenarty will not be intended if not

E leaded. Com. Dig. ib. The ordinary, unless he has collated
y lapse, cannot counterplead the plaintiff's title, 9Binff.6S\ ;
7 Rep. 26; Hob. 318. To shew that he is not a disturber the
bishop may disclaim, that is, plead that he claims nothing but
as ordinary. Com. Dig. 3 1. 9 ; Hob. 198, 320; lOJ?. ^C.589.
Subscribing the articles need not be averred in a plea nor
in a decleration. Str, 837.

If a defendant traverse the title alleged by the plaintiff in
his count, the traverse must be not only of such matter as is
consistent with the defendant's title, but which also destroys
the plaintiff's title if found against him, Vaugh. 8; Com.
Diq. Pleader, 3 I. 9.

A defendant therefore ought not to traverse the seisin of an
advowson, Vaugh. 12. So if there be an allegation of a seisin
of the advowson, as appendant, and a presentment, without
saying that the presentation to it as appendant, there can be no
traverse of the appendancy ; but if the plaintiff alleges seisin
as appendant, and a presentment to it as appendant, the de-
fendant may traverse the appendancy or the presentment, for

one or the other destroys the plaintiff's title. Faugh. 61 ; J^*""* **•
1 Leon. 154; Com. Dig, ib. If the plaintiff alleges seisin in ^'^'
gross, and the defendant claims as appendant, he ought to Pl«u io*
traverse its being in gross, Keil. 51 b; Com. Dig. ib. Where
the plaintiff's title was traced for two hundred years, and the
defendant's claim arose on the alleged invalidity of a deed of
167^, the court would not allow him to traverse all the allega-
tions in the declaration, or to plead more pleas than were ne*
cessary to contest the deed. 5 Bing. 42; Cro. Car* 565;
10 B. f C\ 584.

If tne defendant in his plea shew a title subsequent to the
plaintiff's, he need not traverse it, for he confesses and avoids.
Com. Dig. ib. If a traverse be taken where there is a full con-
fession and avoidance, it makes the plea double. Cro. Car. 61.
Wherever a traverse is immaterial, the other party may pass it
by, and put in issue a more material part. 1 H. Bl. 416.

If a plea be bad on the face of it, it leaves the plaintiff's Replica-
title unanswered. 1 H. Bl. 410. If the plaintiff reply to the ^^'
defendant's title, it is not sufficient to destroy the defendant's
title without establishing his own title. Faugh. 60. And if a
plaintiff has shewn a general title by his declaration, which is
met by the plea, he must in his replication set out a more par-
ticular title. 1 H. Bl. 410.

It seems that either the plaintiff or defendant may make up Iuim.
the issue, both parties being considered actors.

The bishop and clerk may disclaim, save only, the one as Proceed-
ordinary to admit and institute, the other that he is in exprcgsen- ings io.
taiione, and there is then judgment against them with stay of ex-
ecution. Com. Dig. Pleader, 3 L 9. But though the bishop dis-
claim, it seems he may join in a writ of error. Cro. Eliz. 65. If
the right be found for the plaintiff on the trial, three further
points are to be inquired into.

1st. If the church be full, and if full on whose presentation,
for if by defendant, the clerk may be removed.

2nd* The value of the living, in order to assess damages.

3rd. In case of plenarty upon an usurpation, whether six
calendar months have passed between the avoidance and the
bringing the action ; for then it would not be within the statute
which permits an usurpation to be devested by quare impedit
brought infra tempus semestre, that is within six months.

If it be found that the plaintiff has the right, and has com-
menced his action in due time, then he shall have judgment to
recover his presentation, and if the church be full, to remove
the clerk in possession; unless as we have seen above, the
church were filled by the ordinary pendente lite^ by reason of
his not being made a party to the suit, then the patron shall
lose his presentation, but may recover two years' value of

SRifiolDdon*

Proceed-
ingsin.

Qiiart tm. jj^^ church in satisfaction for the turn lost by the disturbance

^ ^ ' of the defendant, or in case of insolvency, the defendant shall

be imprisoned two years. Stat, Westm* 2; 13 Ed. 1.

If the church remains still void at the end of the suit, then
whichever party succeeds shall have a writ to the bishop, ad
Judgment odmittendum clericum, Fitz, N* B. 38, to direct him to admit
his clerk, and if the bishop refuse, then a writ of quare non
admisit, Fitz, N, B. 47, and recover compensation in damages.
3 Bl. Com. 248, 250 ; Com. Dig. Pleader, 3 I. 9.

If the plaintiff be nonsuited, it is peremptory, and the de-
fendant shall have a writ to the bishop. Com. Dig, Pleader,
3 /. 1 1. So also if there be a discontinuance. 7 Rep. 276. So
also shall the plaintiff, if the patron and incumbent confess the
action. lb. If there be judgment by default or upon demurrer,
there shall be a writ of inquiry to ascertain the points above.
Dyer, 241. If the patron die pendente brevi, and judgment be

g'ven against him, the whole is erroneous. Cro, Eliz. 325.
ut upon a surmise that the bishop died after the last con-
tinuance, judgment may be entered against the other defendant
only. Cro. Car, 380.

By Stat. Westm, 2, c, 30; 12 Ed, 2, c. 4; 14 Ed. 3, c. 16,
the justices of assize may give judgment immediately, and
award a writ to the bishop in order to prevent a lapse. 2 Inst,
4^4; 3 Buls, 176; yet if they do not, upon the return of the
postea judgment may be given by the court to which the return
is made. Bull. "N. P. Q, Imp. ; Com. Dig. ib, ; Dyer, 76 b,
135 a, 260 a ; Hob. 327. And error may be to the judges of
assize. Hob, SlXI ; Dyer, 77 a. If a judgment be given for
damages by stat. Westm, 2, c. 5 ; 5 Rep. 58 a, execution shall
be by^. fa. or elegit, but not by ca. sa. Com. Dig. ib.

By the common law, and before the 13 Ed. \, st. \, c. 5, the
plaintiff in quare impedit was not entitled to damages. 2 Inst.
361. That statute, by s. 3, enacted that damages should be
awarded, to wit, if the six months pass by the disturbance of
any, so that the bishop do confer to the church, and the very
patron loseth his presentation for that time, damages shall be
awarded for two years* value of the church. And if the six
months be not passed, but the presentment be deraigned within
the said time, then the damages shall be awarded to the half
year*8 value of the church ; and if the disturber be not able to
pay damages, he shall in the first case be imprisoned two years,
and it) the latter six months. This statute, it will be noticed,
gives a remedy in cases where the church was full by institution,
the right to damages in such cases accruing by the statute ; if the
church was not fufl, then the quare impedit would be at common
law, in which case there would be no damages. HoU v. Hartand,
Skin- 25. In the report of the same case, 3 Lev. 59, it is said,

Damages.

9liboh)s(dn. 3 1

that if the plaintiff hath a verdict, and the church is found vacant, ^'^''^ '"**
the patron may have the fruits of his presentation, and so not be ^''"'
entitled to damages, in which case a retnittitur de damnis is Damages.
entered. Sfd vide Vin. Abr* Presentation^ B. a2l ; 1 Lutw.
901 ; 1 Burns E. L. tit. Advowson ; 2 Inst. S62; Str. 931.

Where patron and incumbent plead the same plea, and the
patron die^and the plaintiff is nonsuited the incumbent shall have
damages. Bro. Ab. Quare Impedit ; 22 Hen, 6, c. 24. And
where patron and incumbent plead the same plea, and recover
in the action, then both shall recover damages if the incumbent
was admitted. lb. ; 22 Hen. 6, e. 25.

Where patron loses his presentation hdc vice^ he shall
recover damages to the value of two years, but if he loses it not,
then for only half a year. 2 Inst. 362 ; Com. Dig. Damages^
A. 3.

On a quare impedit the six months are understood to be six Six months.
calendar months. 2 Inst. 360 ; 3 Burr. 1456.

It was decided in Thrale v. Tlie Bishop of London^ 1 H. BL Costs.
376, that a defendant obtainingjudgment on demurrer in quare
impedit was not entitled to costs, and in Wyndowe v. 2'he
Bishop of Carlisle^ 3 Bing. 404 ; 1 1 .B. Moore ^ 269, the court
held, that where the defendant obtained judgment, as in case
of a non-suit> costs could not be allowed. But if the defendant
bring a writ of error, and judgment be affirmed, and the
writ discontinued, the plaintiff shall recover costs and damages
for the wrongful delay. 3 Hen. 7, c. 10 ; Bull. N. P. 123.

But now by the recent act of the 4fSf 5 Wm. 4« c. 39, it is 4&5W.4,
enacted, that in all actions of quare impedit brought hereafter ^.39.
in England, Wales, or Irelancf, where a verdict shall pass for Full costs.
the plaintiff, in addition to the damages, he shall also have
judgment to recover his full costs against the defendant therein,
to be assessed and levied ; and wherein any such action the
plaintiff shall discontinue or be non-suited, or a verdict shall be
had against him, that then the defendant shall have judgment
to recover his full costs and charges against the plaintiff, to be
assessed and levied in manner aforesaid.

It is further provided, that no judgment for costs shall be No cosu
had against any archbishop, bishop, or other ecclesiastical *^^l?V
patron or incumbent, if the judge who shall try the cause, or if or^ishop ^^
there shall be no trial by a jury, the court in which judgment probable
shall be given shall certify that such archbishop, &c. had ^^Y^ ^^^
probable cause for defending such action ; but in no case where
the defence to any such action shall be grounded upon a pre-
sentation or presentations, collation or collations, previously
made to any benefice, shall such presentations, &c., be deemed
probable cause for defending such action.

9libob)9(om

Quart tm- In order to preserve the titles of patrons, it is the duty of the
^ '^' registrar of every ordinary to keep a register of presentations

Evidence, and collations, in order that the titles of patrons may not suffer
in times to come, by the want of proper evidence upon whose
presentation it was that institution was given, and if the patron
suspect that the registrar is negligent in keeping them, he may
have a certiorari to the bishop to certify them into chancery.
Gibs. til. 34, c. 8, in notis ; 2 Inst. 358.

These are public books, and if a person claim a right of
patronage of a living, he has a right to inspect them, although
the bishop be the adverse claimant, and if the bishop refuse to
allow inspection the court of K. B. will grant a mandamus to
compel him. R. v. The Bishop of Ely, 8^. Sf C. 182.

A grant from the crown of an advowson, (excepted in a former
grant under general words,) will be presumed after a possession
evidenced by title deeds for one hundred and thirty-three years,
and three presentations. Gibson v. Clarke, 1 Jac. Sf W. 159.

An answer in chancery touching an advowson, filed by a
person who though once seised of the advowson, had conveyed
It away twenty years before it was filed, was held not be admis-
sible in evidence against a party claiming through him. Gully
V. Bishop of Exeter y 5 Bing. 171.

Where a bishop has omitted to present on lapse, and has
allowed the question to be tried between other parties, a person
through whom the defendant claimed, and who would, in fact,
have been the person entitled to present if the defendant had
succeeded, is an incompetent witness on such trial though not
a party to the record ; for though a living come to a bishop by
lapse, he cannot refuse to institute if a presentation be made
to him before he has taken advantage of the lapse. Gully v.
Bishop of Exeter t 5 Bing. 171.

None of the Statutes of Limitation applied to the reme-
dies for disturbance of church patronage, and it is said
by Sir W. Blackstone, 3 Comm. 250, " to be upon very good
'* reason, because it may very easily happen that the title to an
** advowson, may not come in question, nor have an opportunity
'* of being tried for sixty years, which is the longest period of
" limitation allowed by the statute of Hen. 8. But though *'
adds the learned commentator, " a limitation is highly impro-
'' per, with respect only to the length of time ; yet, as the title
** of advowsons, is for want of some limitation rendered more
'' precarious than that of any other hereditament, it might not,
" perhaps, be amiss if a limitation were established with regard
to the number of avoidances; or rather if a limitation were
compounded of the length of time and the number of avoid-
ances together, for instance, if no seisin were admitted to be

Witnesi —
compe-
tency of.

Limitation
of action.

^bob)9(om 33

" aReged in any of these writs of patronage after sixty years and Q"«*"« »*»-
" three avoidances past." In accordance with the above sug- ^ *^'

gestion, provisions have been made by the 30, 31, 32, 33d, and Limitatioa
34M sections of the 3 & 4 Will. 4, c. 27, entitled " An Act for ©faction.
the Limitation of Actions and Suits relating to Real Property y
and for simplifying the Remedies for trying the Rights thereto y*
for the limitation of proceedings by quare impedit.

Sec. 30. " And be it further enacted. That after the said thirty- 4 w. 4,
first day of December, one thousand eight hundred and thirty- ^' ^^*
three, no person shall bring any quare impedit or other action
or any suit to enforce a right to present to or bestow any
churchy vicarage, or other ecclesiastical benefice, as the patron
thereof, after the expiration of such period as hereinafter is
mentioned ; (that is to say,) the period during which three
clerks in succession shall have held the same, all of whom shall
have obtained possession thereof, adversely to the right of
presentation or gift of such person, or of some person through
whom he claims, if the times of such incumbrances taken
together shall amount to the full period of sixty years ; and if
the times of such incumbrances shall not together amount to the
full period of sixty years, then after the expiration of such
further time as with the times of such incumbrances will make
up the full period of sixty years."

Sec. 31. '' Provided always, and be it further enacted. That
when on the avoidance, after a clerk shall have obtained posses-
sion of an ecclesiatical benefice adversely to the right of presenta-
tion or gift of the patron thereof, a clerk shall be presented or col-
lated thereto by his majesty or the ordinary by reason of a lapse,
such last mentioned clerk shall be deemed to have obtained
possession adversely to the right of presentation or gift of such
patron as aforesaid ; but when a clerk shall have been presented
by his majesty upon the avoidance of a benefice in conseauence
of the incumbent thereof having been made a bishop, the in-
cumbency of such clerk shall, for the purposes of this act, be
deemed a continuation of the incumbency of the clerk so made
a bishop."

Sec. 32. ** And be it further enacted, that in the construction
of this act every person claiming a right to present to or bestow
any ecclesiastical benefice, as patron thereof, by virtue of any
estate, interest, or right which the owner of an estate tail in
the advowson might have barred, shall be deemed to be a person
claiming through the person entitled to such estate tail, and the
right to bring any quare impedit, action, or suit shall be limited
accordingly.'

Sec. SS. ''Provided always, and be it further enacted, that
after the said thirty-first day of December, one thousand ei^ht
hundred and thirty-three, no person shall bring atiy quare tm^

^boUisEon*

Quare im-
pedit.

Statutes of
limitation.

4 W. 4,
C.37.

Writ to the
bishop.

Quart non
admitit.

pedii, or other action, or any suit to enforce a right to present
to or bestow any ecclesiastical benefice^ as the patron thereof,
after the expiration of one hundred years from the time at which
a clerk shall have obtained possession of such benefice adversely
to the right of presentation or gift of such person, or of some
person through whom he claims, or of some person entitled to
some preceding estate or interest, or undivided share, or alter-
nate right of presentation or gift, held or derived under the
same title, unless a clerk shall subsequently have obtained pos-
session of such benefice *on the presentation or gift of the person
so claiming, or of some person through whom he claims, or of
some other person entitled in respect of an estate, share, or
right held or derived under the same title.'*

Sec. 34. "And be it further enacted, That at the determina-
tion of the period limited by this act to any person for making an
entry or distress, or bringing any writ of quare impedit^ or other
action or suit, the right and title of such person to the land, rent,
or advowson for the recovery whereof such entry, distress,
action, or suit respectively, might have been made or brought
within such period, shall be extinguished."

The writ ad admittendum clericum may be directed to the
same bishop who is defendant, or if he be patron to the metro-
politan. Dyer, 353 b ; 3 Btdst. 177. And if the metropolitan
be joined in the writ, it makes no difference. 3 BuUt^ ib. Or
if he be absent, or there be no bishop, to the guardian of the
spiritualities. Dyer, 77 a, 350 a.

If the archbishop of Canterbury be plaintiff, it shall be
directed to the archbishop of York and vice versa. Shower,
329; Cro, Eliz. 241. This writ to the bishop shall never be
granted where the writ has abated for want of form, nor unless
a title has been made by the party requiring it. 1 SaUc. 559 ;
Fitx. N. B.38', 7 Rep. 276. If the incumbent of whom the
church is full is not party to the writ, he shall never be removed.
Co.Litt. 344; Com. Dig. Pleader; 3 /. 12.

If the ordinary does nothing upon the first writ, there shall
be an alias pluries directed to the bishop, which may be return-
able, and upon this an attachment. Fitz. N. £• 38 c ; Reg,
42 a, 80 ; Dyer, 254 b, 350 a. The bishop may it seems return
quod non est idonea persona* Dyer, 254 b.

But if the bishop refuse, the party may have, as stated above,
a writ of quare non admisit, which may be sued in the county
where the refusal was ; out of C. B. where the recovery was,
or in B. R. though the recovery was in C. B., or out of Chan-
cery, either in term time or in vacation. Com. Dig* Pleader,
3 /• 12. But the plaintiff shall not have his clerk admitted
upon a quare non admisit, for it is only to recover damages.
Com. Dig. ib.

^tmonp. 35

In the late case of Halton v. Cove, 1 B. ^ Adol 538, it Mesne pro-
appeared that the defendant being incumbent of a living, with Jl

cure of souls, valued at less than £8 in the king's books, ac- Action of
cepted another benefice, without having a dispensation to hold oQ*^\J*°^*g
both, whereby the first became void dejure, but he continued c. ii.^' *
in possession. The patron presented another clerk, and after-
wards brought quare impedit and recovered against the
defendant, upon which the plaintiff^ was instituted and inducted,
who brought an action founded on the S8 Hen, 8, c. 11, «. 3,
which gives the profits of every benefice during vacation to the
next incumbent. It was held that the plaintiiF could not recover
the profits, either from the time of his being presented or from
the suing out the quare impedit^ the vacation intended by that
statute being a vacation in fact. Vide " Avoidance,^ " Plurality'^

^Umonp*

General principles on which granted.
Allegation of faculties.
Of the usual proportion.
Separate income of wife.
Application for when to be made.

Alteration of drcumstances.
Application for reduction,
for increase.
From what time due.
Costs.

Arrears of alimony,
Enforcing.

Writ of ne exeat regno.
Executors of deceased wife.

By the principle of the law of England, the whole property
of married persons is supposed to vest in the husband ; where
therefore the wife is under the necessity of living apart, the
ecclesiastical court will decree a fitting proportion of ner hus-
band's income to be paid to her.

This provision is called Alimony, and is allowed during the
pendency of a suit between them, as well to provide the wife
with the means to obtain justice as for her ordinary subsistence.
When there has been a sentence of divorce, on the ground of
the adultery or cruelty of the husband, it is then called perma-
nent alimony, and is continued during the period of their se-
paration.

D 2

36 giftnonp.

Genermi fjig ecclesiastical court exercises an equitable discretion in

on°wI!idi' it Settling the amount of alimony, varying in some degree with
i« granted, the position of the parties ; thus, where the wife is proceeded

against by the husband for adultery, though the court cannot

assume her to be guilty of the offence till it is proved, still that
is a sort of charge which ought to make her content to live in
decent retirement, and on that account a comparatively small
allotment of alimony is in such a case given during the -pen-
dency of the suit ; but a different principle will, it seems, be
adopted where the wife brings the suit, and is the complainant,
and where there is no complaint against her. S Phitl. 390 ;
1 Hag. 23, 526, 530 ; 2 Hag. Con. 190 ; 2 PhilL 152.

No provision as alimony can be made for a wife until the fact
of marriage is either proved against the husband or admitted
by him. 2 Add. 254. But marriage once established, the
husband is liable to pay for maintenance pendente Hie, and costs
of suit, whether the cause be for adultery, the object of which
is divorce, or in cases of impotency, and other cases of nullity.
1 Lee, 209, and such rule is adhered to although fraud in pro-
curing the marriage is expressly charged on the wife by the libel;
and although costs are prayed, and may be ultimately awarded
against the wife. 3 Add. 63. But there is no instance of
awarding permanent alimony to the second wife in a cause of
nullity by reason of a former marriage. 1 Lee, 621. Facts of
minor importance to the direct object of a suit for separation
by the wife by reason of cruelty, are still pleadable, for the
reason that they not only tend to illustrate otner facts, but may
influence the amount of permanent alimony should the suit be
successful. 4 Hag. 266.
Allegation Upon an application for alimony the court requires on the
of faculties, part of the husband a statement both of his casual and certain
income, to be set forth in a plea called the " allegation of
faculties,*' and requires his personal answer on oath, which
the wife may insist on, even if the husband be in India ; the
answer of the attorney being held insufficient: and in the
meantime the court will allot the wife a sum of money on account
of alimony, and direct a monition to issue against the attorney
for the payment, in a case where he long conducted the cause
on his own authority and exhibited no proxy. Fraxer v. Fraxer,
E. T. 1819; Poynter, 248.

The personal answer of the husband having been given on
oath, the court determines upon such answer, taking into con-
sideration all the circumstances of the case, what shall be the
amount of the alimony pendente Ute, to enable the wife to
carry on the suit, or what the amount of permanent alimony, in
case the suit has been brought to a conclusion. It is usual for
the wife to accept the answer of the husband, particularly when

SHimon^ 37

reformed by order of the court, but she is in no manner com- Allegation
pelled to acquiesce in his valuation, and it is open to her to ° ^^" ^^^'
dispute his answer, and to examine witnesses on it, if she thinks
proper ; such a right however, ought not to be exercised wan-
tonly, but with caution and tenderness. It is hardly ever ne-
cessary, especially in cases of considerable property, to enter
into an inquisitorial scrutiny of its exact value, it is to be taken
upon a fair general estimate. Brisco v. Brisco, 2 Hag. Con.
199, and vid. 9, Lee, 264.

Nor is a statement of the amount of capital or an exposure of
the particulars of partnership concerns required. 3 Hag. 472.
It will be decreed notwithstanding an assignment of the
husband's property with a view to defeat it. 2 Hag. 5. In
granting alimony a careful regard is to be had to the husband's
means, and the difference between existing property and an in-
come derived from personal exertion. 1 Hag. 527, 352. Station
in life and the wife's fortune, or the fact that she brought
no fortune, are equally to be considered. 1 Hag. 351. The
admission of a husband as to faculties is to be taken strongly
against him. 2 Lee, 593.

Alimony pending a suit is always less than that which is
assigned after proofof the delinquency of the husband, one- fifth
of the net income being the usual proportion. 1 Hag. 526. The
nature of the suit, the charge made, and the answers given in,
are to be considered in granting alimony pendente lite. And al-
though the part which the wife takes in the suit, does not affect
her claim to alimony pending the proceedings, yet it is a cir-
cumstance of importance as regulating the quantum, especially
if It should be supposed that she adheres to an adulterous con-
nection, for it can hardly be doubted but that in such a case the
amount would be no more than with some regard to her situa-
tion, and the fortune she brought, would be absolutely necessary
for a maintenance. Poynter, 251. In one case, which was an oftheusual
application for temporary alimony, the husband having £ 1 500 proportion.
per annum, and the wife a separate income of «£300 per annum,
the court added ^200 ; afterwards both cruelty and adultery
having been proved against the husband, one-half of the whole
income was allotted as permanent alimony. 2 Phill. 152, 156.
This principle of a moiety by way of permanent alimony, has
been adhered to in other cases, especially where the wife has
brought a fortune, and the conduct of the husband has been
vicious and profligate. 2 Phill. 44. In one case where the
joint income was £5500 per annum, the court deducted for the
expense of educating children, and allotted «£2000, or about a
moiety of the remainder to the wife. 2 PhilL 1 10. In another
indeed, £250, or only one-third, the wife taking charge of an only
child. I Hag. 582. In another case, the income being £12,000

aiimonp*

Separate
income of
the wife.

Application
for, when
to be noade.

per annum, and the husband an earl, one^bird was allowed as
permanent alimony, and in reply to an observation that the
wife had brought a large fortune^ it was answered that she had
got rank in return, and that the husband had the dignity of
the peerage to support. 2 Phill. 4e3, 236, and cid. I Hag^ 526 ;

2 liag. Con. 201. But in two cases of tradesmen, whose in-
comes were stated at £300 per annum each ; £80 in one case
and £75 in the other, was allowed as permanent alimony. 2
Phill. 44, 45. In another, £185 out of £527, or nearly two-
fifths. 2 Add. 4. Upon a general principle, after separation,
by misconduct of the husband, the wife is entitled to be alimented
as if living with him as his wife. 2 Hag, 7 ; 1 Hag. 530.

The independency of a wife may, in some cases, relieve a
husband from the charge of alimony pending proceedings;
but cannot, except perhaps where there has been gross miscon-
duct on her part, tend to his entire exoneration ; for if a wife
being promoter establishes her case, or has been vexatiously

Proceeded against, the insufficiency of the means of the hus-
and is no reason why he should not pay alimony, and also costs,
when his own conduct has made him liable. 2 Hag. Con. 214.
In calculating a wife's separate income the salary as lady of the
bed-chamber being subject to great expenses, was held to have
been properly omitted, aliter of a royal grant of a pension to her,
which by 2 ^ 3 ^. 4, c. 116, was made secure by law and
was not fluctuating. 3 Knapp P. C. If the husband violates
the marriage contract, it mignt be eauitable perhaps, that he
should lose the whole benefit of it, and give up the whole of hia
wife's property, at all events it would be unjust to deprive her
of any considerable portion of the property she brought, in order
to support the husoand in public scandal and enable him to
continue his adulterous connection and to provide for the issue
which are the fruits of it. 2 PAUL 40 ; lb. 109 ; 3 PhiU. 391 j

3 Haa. 322, 657.

If the question of alimony be fixed by the local ordinary, the
court above will not on slight grounds disturb the sentence.
2 Add. 1; 2P/iftf. 41.

It is desirable that, '' the allegation of faculties " should
be given in at an early period, and that the question of alimony
should be disposed of in the first stage of the proceedings to
prevent the husband from being unnecessarily harassed with
demands for the wife's debts. Brisco v. Briscoe 2 Hag. Con.
199. For until there is a constat of the husband's faculties the
court, it seems is, in point of form incompetent to make any allot-
ment to the wife ; thus where a libel, after having been reformed,
was admitted on the court day immediately preceding the long
vacation, the court recommended that in efiect the wife should
be alimented according to the husband's means, during the long

ai(mon^ 39

vacation, intimating that it would take this into account when, Application
in the progress of the suit, alimony pendente lite came to be ^^^le.

regularly allotted, if its recommendation was not complied with.

Smyth V. Smyth, 2 Add. 25i.

Nor ought the court to act before the husband's answers are
giyea in, thus, where in a suit by a husband in a local court
for a divorce for adultery, an allegation of faculties was admitted ;
but before the husband's answers were given in, or any wit-
nesses examined thereon, the judge, without any proof of the
husband's estate, settled an alimony of twenty shillings a-week
on the wife, and the husband appealed, the court pronounced
for the grievance. Butler v. Butler, 1 Lee, 38. Where the
allegation of faculties had been given in by the wife, she being
the defendant, in which she admitted a separate income, and it
was proposed to read an affidavit of the husband as to his in-
come, in contradiction to the allegation, the court refused to
allow it to be read, and admitted the allegation and condemned
the husband to pay costs, but decreed nothing as to alimony
till the proofs were before the court. 2 Lee, 2&if.

If the circumstances of the husband should alter, if he is Alteratioa
lapstu Jacultatibus, it is competent to him, if done without de- of circum-
lay, to apply to have the allowance reduced, if his means are •^*'*^®*'
diminished. 2 PhiU. i 10 ; 8 PhilL 391 . Or to the wife to ap«
ply for additional income if they are improved. 3 Hag. 329 ;
3 Add, 276, But unsuccessful speculations by the husband,
whereby hia means are diminished, seem to furnish no ground
for reducing the allowance. 4 Hag. ^3.

Where both parties have long abstained from applying to
the court, the one for a reduction, the other to enforce regular
payment, the court will. not reduce the amount on account of
the wife's debts incurred by reason of the non-payment of the
alimony; nor will it reduce it on account of waiver by the
wife, the additional expenses to the husband by the advanced
ages of children, the failure from mismanagement of her trustees
of a portion of funds set apart for alimony, or a slight addition to
her means aliunde. 3 Hag. 322 ; 3 PhiU. 391.

Alimony is due from the return and not from the issue of the From what
citation^ though considerably prior to the return unless possibly ^^^ ^^^'
under special circumstances. 2 Add. 253; 3 PhiU. 391. But
it ought to be paid before the hearing. 1 Lee, 392, ** Appeal."

On appeal the alimony runs from the date of the sentence
appealed from, and not from the mere return of the inhibition.
lb. 261 ; 1 PhiU. £10; 3 PhUl. 2ff7; I Hag. 528. If sums
have been advanced, 1 Hag. 23, or debts paid by the husband
since the alimony became due, the amount may be deducted
from the sum decreed ; lb. 353 ; but the payment of such debts
seem to afford no reason for any permanent alteration in the
amount. 8 Hag. 322.

aifmonp.

Costs.

Arrears.

Writ of iM
9xeat regno.

Besides alimony pending suit, the wife is also entitled to pay-
ment of costs necessarily incurred either in the promotion of
the suit, if proceeding against her husband, or in her defence
when proceeded against. 3 PhilL 98. And where she has no
separate property, she has a right to have her costs taxed de
die in diem. 3 PhilL 262; 1 Hag. 168, 475, 787; 2 Hag. i33;
4 Hag. 511. But although it is the general rule that the hus-
band sliould pay costs on whichever side the suit was brought,
it is only on the presumption that the husband had every thing
and the wife nothing, when the contrary appeared both law and
presumption were ousted, and the general rule will be entirely
or partially abandoned. 2 Hag. Con. 203 ; 2 Add. 276.

If the wife is aggrieved by the nonpayment of the sum al-
lotted for alimony, she should make her application to the eccle-
siastical court in a reasonable time, otherwise the court will
infer she has made some more beneficial arrangement. As a
general rule, therefore, the court is not inclined to enforce
long arrears. Alimony is allotted for the maintenance
of the wife from year to year, and unless the husband is
absent from this country, or some particular reasons are set
forth, it would be productive of great injustice and incon-
venience if after a lapse of many years, the court should enforce
payment, beyond one year prior to the conviction. Wilson v.
Wilson, 3 Hag. 329 n. Nor where both parties have long ab-
stained from applying to the court, the one for a reduction of
alimony, and the other to enforce regular payment, will the
court enforce arrears nor inquire as to the sums paid by the
husband for his wife's debts incurred by reason of non-payment
of alimony. Ibid. 322.

In order to prevent a wife being defeated of her remedy by
a husband going abroad without the jurisdiction, the court of
chancery will grant a writ of ne exeat regno, but this writ can .
only be obtained upon an affidavit that he is going abroad, or on
some declaration of his that he is going ; it is not sufficient to
swear that another person said so. Oldham v. Oldham, 7 VesAl 0.
Nor will the writ be granted till the wife has absolutely obtained a
decree for alimony, it is not enough that she has obtained a decree
for separation in tlie ecclesiastical court. Shafioe v. Shajtoe,
7 Ves. 171. And as the writ is considered in the nature of
equitable bail, it cannot be obtained except under circumstances
that would entitle a party to bail at law, and consequently the
pourt will not in any case mark the writ fur more than is ac-
tually due for the arrears and the costs, for neither courts of
law nor equity are entitled to judge whether a woman is entitled
to alimony or not, or what she will ever get. Haffey v. Haffey,
14 Ves. 261 ; and vid. 7 f'es. 171, 173.

With regard to the arrears of alimony due at the death of
the wife, it seems that the ecclesiastical court has the power to

decree them on the application of a wife's executors, but at all ^nt of ns
events if that court has not the power, a court of equity will ^^' ^^^'"';
interfere and decree their payment ; thus, where a bill by the
executor of a married woman was filed for an account and pay-
ment of arrears of alimony due at her death, under a decree of
the ecclesiastical court, and demurred to by the defendant,
the Vice Chancellor said, that he had taken opinions, which
though they were not very satisfactory, yet the better opinion was
that the ecclesiastical court would allow the wife's executors to
enforce payment of the arrears of alimony against the husband.
If that were so, a bill in a court of equity for the same purpose
was unnecessary, but added, that as it was not absolutely clear
that the ecclesiastical court would in such a case decree an ac-
count and payment of arrears, he was not justified in allowing the
demurrer which had been put in. Stones v. Cooke, 7 Sim. 22.

9akfSfition vide ^leaning.

^ItttiLQt.

ALTERAGE comprehends not only the offerings made upon
the altar, but also all the profit which accrues to the priest,
by reason of the altar, obventio altaru. Burns E. L., tiL
Atterage.

When the alterage in part or in the whole was allotted to
the vicar or chaplain, it meant only the customary and voluntary
offerings at the altar for some divine ofiice or service of the
priest, and not any share of the standing tithes, whether judicial
or mixt, ib. And in the case of Franklyn and the Master and
Brethren of St. Cross, 1721, it was decreed that where altara-
gium is mentioned in old endowments, and supported by usage,
it will extend to small tithes, but not otherwise. Bunb.ld'j
2 Bulst. 27; Spelm. Gloss. 28 : Cro. Eliz. 578; Hetl. 135.

^nsttDer vide ^leaUmg^
^arftor vide ^rocnfd^

Saccwnve
stages of.
24 Hen. 8,
c. 12.

SUtatedoes
not apply
to deans and
chapters.

Appeal

Successive stages of.

Judicial committee of privy council.

Who may appeal.

Right how waived.
Against what parties appeal may be had.
Two-fold,

1 . From definitive sentences.

2. From grievances and causes of correction.

What are appealable grievances.
When and within what time appeal to be made.
How made.

Stamps.
Profert of.

Not sealed.
Effect of, on the cause.
InMbition,

To be signed by an advocate.

In case of grievances, &c., to state acts complained of.
How far court below tied up by it.
Relaxation of.
AttetUats.

State of the cause when remitted to the court below.
Practice in

New evidence when admissible.
Who to begin.
Costs.

SY the 24 Hen. 8, c. 12, it is directed that from thenceforth
all appeals to Rome shall be discontinued, and that in future
appeals shall be :

If the cause be commenced in the court of the archdeacon or
his commissary then to the bishop diocesan of the said see, s, 5.

If the cause be commenced before the bishop, or his com-
missary, then within fifteen days of judgment or sentence, to the
archbishop of the province, there to be finally decided without
appeal, s. 6.

If the cause be commenced before the archdeacon of any
archbishop or his commissary, then within fifteen days of
judgment to the court of arches, or audience of the said arch-
bishop ; and from the said court of arches within fifteen days of
the judgment, to the archbishop of the said province, there to be
finally determined, s. 7.

If the cause be commenced before the archbishop then the
same shall by him be definitively determined without any other
appeal whatever, s. 8.

This statute however does not apply to peculiar junsdictions,
nor does it regulate appeals from deans and chapters, for a

9pptaL 43

dean and chapter are of a higher rank than an archdeacon; even Successive
archdeacons may, it seems, have their peculiar jurisdictions, s^gesoj^
and in that case they would not he bound by the above statute. Nor to pe-
which applies to the ordinary cases of archdeacons presiding in ^^!^'. J^*
jurisdictions where they are subject to the superior jurisdiction
of the bishop, and not to cases of peculiars. Parham v. Templar ^
3 PhUL 24& ; Gibs. 1025 ; Skin. 589.

If the archdeacon have not a peculiar then he and the Bishopsand
bishop have a concurrent jurisdiction, and the party may com- archdca-
mence his suit either in the archdeacon's or bishop's court, and ^Q^urrent
if he commence in the bishop's no prohibition shall be granted, jurisdic-
forifit should, then no cause could originate in the bishop's <><>»•
court, which would be confined to appeals. 1 Ld. Raym. 123.

So if a bishop appoint a commissary for the more remote
parts of his diocese, the appeal from his judgment does not lie
to the diocesan court but to the metropolitan court. 3 Inst. 338 ;
3 PhiU. 244 ; 2 Add. 405: Gibs. 1036

Of peculiars there seem to be three kinds : PeculLan .

1st. Those subject to the bishop.

2dly. Those subject to the archbishop only.

3dly. Those subject to neither.

With regard to the first they being still subject to the First,
bishop's control and visitation, the right of appeal and of
visitation seeming almost necessarily to go together, there the
appeal is to the diocesan. Skin. 589; 3 PhiU. 246; 2 Hag. 257.

With regard to the second, they being only subjected to, second,
and visited by the archbishop, the appeal is direct to him,
though locally situated within a bishop's diocese. lb.

The third are called royal peculiars, these being exempt Third,
both from the bishop and archbishop, were formerly immediately
subordinate to the see of Rome, but by the stat. of 25 Hen. 8,
c. 19, were placed immediately under the prown, and all appeals
from them lay directly to the king in chancery, which by com-
mission ^ent to the delegates. 2 PhiU. 246, 255 ; 1 ^Idd. 499.
But by the S & 3 Wm. 4, c. 92, such appeal is transferred to
the judicial committee of the privy council, post, 45.

We have seen above, that the court of a dean and chapter
is not subordinate to the diocesan court, and not being so, the
appeal from it lies direct to the archbishop. S PhiU. 242, 255.
So if it happen that the judge of the diocesan and subordinate
courts are the same person, the appeal may be permitted to be
per saUum to the metropolitan, but the reason must appear by
the formal instruments in the cause. Beare and Biles v. Jacob,
S Hag. 251. In which case these two points amongst others
were decided ; 1st. That the court of the sub-dean of Sarum
did not exercise a peculiar and exempt jurisdiction, but a mere
subordinate jurisdiction to the diocesan, and that, consequently,

44 9)))ieaL

Saccusive the appeal did not lie to the metropolitan, but to the diocesan
sugeBo. QQ^fi^ But 2dly. That the sab-dean, and the chancellor of
the diocese, who is the judge of the consistorial or diocesan court,
being the same person, the court of arches directed an absolute
appearance on the appeal; but by special minute, 2 Hag. 522^
entering the special grounds upon which the appeal was, under
the particular circumstances, allowed to be immediate to the
court of arches, so that the proceedings might not be drawn
into a precedent, to the injury of the jurisdictiction of the
diocesan court.
Judicial In pursuance of the recommendation of the ecclesiastical

committee commissioners, in their special report of the 5th January 1831,
councif."''^ and also in their general report of the 16th February 1882.
2&3W. 4, The 25 Hen, 8, c, 19, by which the court of delegates was
C.92. formed as a court of ultimate appeal in ecclesiasticsl causes, in

lieu of the ancient form of appeal to Rome, so far as it re-
lated to that court, was repealed from February 1833, by the
2 8c S Wm. 4, c. 92, and the jurisdiction of that court
transferred from that time to the privy council, which is to
exercise all the powers of the court of delegates, s. 3, and
no commission of review thereafter to be granted, s, 8. By
s. 4, it is provided, that this act shall not extend to appeals
then pending, or which, before the first day of February 1833,
may be pending by virtue of the repealed acts, or affect the
right of his majesty to grant any commission of review before
that time.

The 1st section of this act transferrins the powers of the
court of delegates to the new court, called the judicial committee
of the privy council, is in the following words, by which it
seems that the object of the act was to substitute one court in
the place of the other. (1)

(1) The court of delegates was constituted for each separate case, by
commission under the great seal, to certain persons delegated thereby
to hear and determine the particular cause. In ordinary cases, the
delegates were three puisne judges, one from each court of common
law, and three or more civilians ; but in special cases, a fuller com*
mission was sometimes issued, consisting of spiritual and temporal peers,
judges of the common law, and civilians, usually three of eadi de-
scription. Vide 4 IfuL 339.

In case of the court being equally divided, or no common law judge
forming part of the majority, a commission of adjuncts issued, appoint-
ing additional judges of the same description.

The decision of the court of delegates was final, no further appeal lying
as matter of right ; hot a petition might have been presented to the king
in council, for a commission of renew. 4 Inst, 340. This petition was
referred to the lord chancellor, who, after hearing counsel on both sides,
advised the kingthereon. But a commission^of review was rarely granted.

9)i{}eaL 45

Sec. 3. ''And be it further enacted, That from and after the said Ju(i>cial
first day of February, one thousand eight hundred and thirty- of the pri^y
three, it shall be lawful to and for every person who might couDcii.

heretofore, by virtue of either of the said recited acts, have

appealed or made suit to the king's majesty, in his high court c. 92,
of chancery, to appeal or make suit to his heirs or successors
in council, within such time, in such manner, and subject to
such rules, orders, and regulations for the due and more con*
venieut proceeding, as shall seem meet and necessary, and upon
such security, if any, as his majesty, his heirs and successors,
shall from time to time, by order in council direct : and that
the king's majesty, his heirs and successors, in council, shall
thereupon have power to proceed to hear and determine every
appeal and suit so to be made by virtue of this act, and to make
all such judgments, orders, and decrees in the matter of such
appeal or suit as might heretofore have been made by his ma-
jesty's commissioners appointed by virtue of either of the here-
inbefore recited acts, if this act had not been passed ; and that
every such judgment, order, and decree so to be made by the
king's majesty, his heirs and successors, shall have such and
the like force and effect in all respects whatsoever, as the same
respectively would have had if made and pronounced by the
high court of delegates : and that every such judgment,
order, and decree shall be final and definitive, and that no
commission shall hereafter be granted or authorized, to re-
view any judgment or decree to be made by virtue of this
act."

Though the jurisdiction was transferred by the above act,
the constitution of the new court was not framed till the 3 & 4
W. 4, c. 41, nor indeed had it received its name till the passing
of the latter act, which enacts, by

Sec. 1. '' That the president for the time being of his majesty's Who to be
privy council, the lord high chancellor of Great Britain for the time ra«mb«r8of.
beiDg,and such of the members of his majesty's privy council as shall
from time to time hold and of the offices following, that is to say :
lord keeper or first lord commissioner of the great seal of Great
Britain, lord chief justice or judge of the court of king's bench,
master of the rolls, vice chancellor of England, lord chief jus-
tice or judge of the court of common pleas, lord chief baron or
baron of the court of exchequer, judge of the prerogative court
of the lord archbishop of Canterbury, judge of the high court
of admiralty, and chief judge of the court in bankruptcy, and
also all persons members of his majesty's privy council, who
shall have been president thereof, or held the ofiice of lord
chancellor of Great Britain, or shall have held any of the other
offices hereinbefore mentioned, shall form a committee of his ma-
jesty's said privy council, and shall be styled "The judicial com-

^thl

Judicial
committee
of the privy
council.

3&4 W.4.
c. 41.

No matter
beard un-
lew four
members
present.

No order,
uoleas ma-
jority.

King may
summon
other mem-
bers.

In case of
judge sum-
moned his
absence
provided
for.

Power to
eiamine
witnesses
vivd voctf.

mittee of the privy council :** Provided nevertheless, that it shall
be lawful fof his majesty, from time to time, as and when he
shall think fit, by his sign manual, to appoint any two other
persons, being privy councillors, to be members of the said
committee.'*

Sec. 5. '' And be it further enacted, that no matter shall be
heard, nor shall any order, report, or recommendation be made by
the said judicial committee, in pursuance of this act, unless in the
presence of at least four members of the said committee : and
that no report or recommendation shall be made to his majesty,
unless a majority of the members of such judicial committee,
present at the hearing, shall concur in such report or recom*
mendation: provided always, that nothing herein contained
shall prevent his majesty, if he shall think fit, from summoning
any other of the members of his said privy council to attend the
meetings of the said committee."

Since the passing the above act, it has been thought advise-
able for some of the puisne judges to be sworn into the privy
council, and in order to provide for the discharge of their ordi-
nary duties in case they are summoned to attend the judicial
committee: it is further provided, by s, 6, that **m case the king
directs the attendance of any judge, a member of the committee,
the other judges of the court to which he belongs are to make
arrangements with regard to the business of the court.''

Power also is given to this court to examine witnesses by
word of mouth, either before or after their examination, on de-
positions, a power which at one time it seems the judges of the
ecclesiastical courts conceived they did not possess, such a mode
of taking evidence having been treated in the case of Jones v.
Garnold, 2 Lee, 568, as an appealable grievance.

Sec. 7. '* And be it enacted. That it shall be lawful for the said
judicial committee, in any matter which shall be referred to
such committee, to examine witnesses by word of mouth, (and
either before or after examination by deposition,) or to direct
that the depositions of any witness shall be taken in writing by
the registrar of the said privy council, to be appointed by his
majesty as hereinafter mentioned, or by such other person or
persons, and in such manner, order, and course as his majesty
in council or the said judicial committee shall appoint and
direct ; and that the said registrar, and such other person or
persons so to be appointed shall have the same powers as are
now possessed by an examiner oT the high court of chancery or
of any court ecclesiastical."

Power is also given to bear additional evidence not heard in
the previous stages of the case, to direct a rehearing of the
whole, or any part of the case, with directions as to the repeating
or admission of evidence^ or to direct any feigned issue or
issues.

Sec. 8. "And be it enacted, That in any matter which shall ^^,f/„**^**J^
come before the said judicial committee it shall be lawful for the of "he'pnvy
said committee to direct that such witnesses shall be examined or cuuncti.
re-examined, and as to such facts as to the said committee shall
seem fit, notwithstanding any such witness may not have been ^.41. ' '
examined, or no evidence may have been given on any such j^ ^^j^p
facts in a previous stage of the matter ; and it shall also be rehearing
lawful for his majesty in council, on the recommendation of the T'*** ^^^*
said committee, upon any appeal, to remit the matter which evidence"
shall be subject of such appeal to the court from the decision of to direct'
which such appeal shall have been made, and at the same time ^^k^^ »-
to direct that such court shall rehear such matter, in such *^^'
form, and either generally or upon certain points only, and upon
such rehearing, take such additional evidence though before
rejected, or reject such evidence before admitted, as his majesty
in council shall direct ; and further, on any such remitting or
otherwise, it shall be lawful for his majesty in council to direct
that one or more feigned issue or issues shall be tried in any
court in any of his majesty's dominions abroad, for any purpose
for which such issue or issues shall to his majesty in council
seem proper."

Sec. 9. " Witnesses to be examined on oath, and to be liable to Witoesses.
punishment for neijury/'

The four following sections make provision for the trials of
feigned issues : — 1st. That they may be at bar or nisi prius,
at the assizes, or in London or Middlesex sittings, or by a
special or common jury. 2nd. That the depositions of wit-
nesses, who have died or are incapable to give oral testimony
may be received in evidence, and such documents received and
admissions made as the committee shall direct. 3dly. To make
such orders as to parties and others being examined as the
court of chancery is used to make on the trial of issues. 4thly.
To direct one or more new trials of any issue either generally or
upon particular points and that in case of death or incapacity of
any witness parol evidence of his testimony may be received.

Sec. 10. ** And be it enacted, That it shall be lawful for the said issues tried
judicial committee to direct one or more feigned issue or issues atbaromUi
to be tried in any court of common law, and either at bar, be- ^j^'^or *
fore a judge of assize, or at the sittings for the trial of issues in sittings, by
London or Middlesex, and either by a special or common jury, ^ •pe«i&l or
in like manner and for the same purpose as is now done by the f^^^^^
high court of chancery.

Sec. 11. "And be itenacted. That itshall be in the discretionof ^.rbif^^
the said judicial committee to direct that, on the trial of any such ceived, and
issue, the depositions already taken of any witness who shall documents
have died, or who shall be incapable to give oral testimony, ^^Qs^aT**'
shall be received in evidence, and further, that such deeds, committee

shall direct.

^tal*

Judicial
committee
of the privy
council.

3&4 W.4,

C.41.
Orders as to
parties, 6cc.
being ex-
amined.

New trials
generally
or on parti-
cular
points;
death or
incapacity,
parol evid-
ence of tes-
timony.

Costs.

Orders and
decrees of
to be en-
rolled.

References
to a regis-
trar as to a
master in
chancery.

Registrar.

Power to
summon
witnesses
and to bring
documents.

evidences, and writings, shall be produced, and that such
facts shall be admitted, as to the said committee shall seem
fit.

Sec. 12. '^Andbe it enacted, Thatit shall be lawful for the said
judicial committee to make such and the like orders respecting the
admission of persons, whether parties or others, to be examined
as witnesses upon the trial of any such issues as aforesaid, as the
lord high chancellor or the court of chancery has been used
to make respecting the admission of witnesses upon the trial
of issues, directed by the lord chancellor or the court of
chancery.

Sec. 13. "And be it enacted. That it shall be lawful for the said
judicial committee to direct one or more new trial or new trials of
any issue, either in case any witness examined at a former trial
of the same issue shall have died, or have through bodily or
mental disease or infirmity, become incapable to repeat his
testimony, it shall be lawful for the said committee to direct
that parol evidence of the testimony of such witness shall be
received.

Sec. 15. ** Costs to be in the discretion of the committee.

Sec. 16. ''And be it further enacted, That the orders or decrees
of his majesty in council, made in pursuance of any recommenda-
tion of the said judicial committee, in any matter of appeal from
the judgment or order of any court or judge, shall be enrolled for
safe custody, in such manner, and the same may be inspected,
and copies thereof taken under such regulations, as his majesty
in council shall direct.

Sec. 17. " And be it further enacted, That it shall be lawful for
the said committee to refer any matters to be examined and re-
ported on to the aforesaid registrar, or to such other person or per-
sons, as shall be appointed by his majesty in council, or by the said
judical committee, in the same manner and for the like purposes
as matters are referred by the court of chancery to a master of
the said court ; and that for the purposes of this act, the said
registrar and the said person or persons so to be appointed,
shall have the same powers and authorities as are now possessed
by a master in chancery.

Sec. 18. "Registrar to be appointed by the crown.

Sec. 19. "And be it further enacted. That it shall be lawful for
the president for the time being, of the said privy council, to re-
quire the attendance of any witnesses, and the production of
any deeds, evidences, or writings, by writ to be issued by such
president, in such, and the same form, or as nearly as may be,
as that in which a writ of subpoena ad testificandum or of sub-
poena duces tecum is now issued by his majesty's court of king's
bench at Westminster ; and that every person disobeying any
such writ so to be issued by the said president, shall be con-

3pptal^ 49

sidered as in contempt of the said judicial committee, and shall Jq^>c»1

also be liable to sach and the same penalties and consequences of UiTpri^

as if such writ bad issued out of the said court of king's bench, coundU
and may be sued for such penalties in the said court.*'

Who may

" And be it further enacted, That all appeals to his majesty appeal,
in council, shall be made within such times respectively within
which the same may now be made, where sucn time shall be
fixed by any law or usage, and where no such law or usage
shall exist, then within such time as shall be ordered by hiff
majesty in council, with power to alter Auch usage."

The right of appeal is considered as a sacred right, and
highly to be favoured under all systems of jurisprudence. An
appeal may be prosecuted in formd pauperis^ in Bland v.
Lamft, 2 J, §' W. 40S, a pauper was admitted as appellant in
the court of chancery, and in Taylor v. Morse^ 3 Hag. 179,
Morse was admitted as a pauper respondent in the court of
appeal, on which occasion the court said, that it would look
at his faculties at the time of the application, and not at what
he may have been possessed of at a former time. So also in
Grindall v. Grindall, 4 Hag. 1 .

Where a party denies the jurisdiction^ he would not be al-
lowed to appeal from any step taken, he never having appeared
in the principal cause. 2 PhiL 447.

But though the right to appeal belongs to all parties in a Ri^ht how
cause, almost without exception, still it is a right and an ad* waived,
vantage which a party may waive, and therefore it has been
decided that if a party does acts in furtherance of a sentence, he
thereby bars his right of appealing, as such acts amount to a de-
sertion of his appeal. Lloyd and Clarke v. Pooler 3 Hag. 482*
But a protest against an appeal, on the ground that a party (by
bringing in an exceptive allegation, subject as alleged to a con-
dition that the question as to the admission should be reserved
to the hearing of the cause), had perempted his right to appeal,
was overruled. 4 Hag. 246.

The praying a judge to rescind an order, perempts any after
appeal from that order. 2 Add. ftlQ. So also where a de-
fendant had acquiesced in the admission of articles, by com-
plying with the assignation of the court, in giving a negative
issue subsequent to admission. 1 Add. 109.

An appeal was promoted by J. C., churchwarden of the parish Against
of Walsall, by reason that the judge below had refused to grant a whom an
monition against T. M. and jf. J., the churchwardens residing JJ'^cku*^
in the foreign of Walsall, to show cause why they should not
join-in making an equal rate for the repairs of the church ;
the parties cited, (under protest) alleged that they never had
been cited to appear, and never had appeared, nor were in any
way privy or cognizant of the proceedings in the cause in the

Against
whom an
appeal may
be made.

Of two

sorts.

What are

appealable

grievances.

first instance, from the decree in which this pretended appeal
was prosecuted, and accordingly that the decree could not have
been made at their instance, as in the inhibition and citation
was alleged. Sir J. NichoU in giving judgment observed, that
though they now objected that they were not parties to the
suit below, nor to the decree complained of; yet that a pro-
ceeding against them had commenced, and a monition refused,
and that though it would be then premature to decide whether
these churchwardens could be compelled to join to make a rate
for the whole parish, yet they could not, by refusing to appear,
prevent the decision of that question. CotteriU and Mace v.
Jamesy 3 Hag. 745.
Appeals are two-fold.

1. From definitive sentences.

2. From grievances and causes of correction.

The grievances here intended, are interlocutory matters, as
judgments, decrees, and the like, occurring in the course of the
cause previously to the definitive sentence, of which Canset
saySf pi. 5fC. 1,«. I. ''To enumerate all the grievances which
" may be inflicted according to the circumstances of the matters

or things in contest, and out of which may arise causes of

appeal, is not within the bounds of any man's knowledge or
"foresight to particularize;** and vide Conset, pL 5, e. 8, «. I.
An appeal from a grievance is to be considered stricti juris.
4 Hag. 74.

The refusal of a citation in a libel of heresy, is a grievance
and good ground of appeal. 1 Com. Rep. 190; Cribs. 1007;
2 LeVf 317 ; 3 Hag. 744. So it seems would be the refiisal of
letters of request, which the dean of the arches is bound to
recevre ex dkbitojustituB. 2 Lev. 317. So also it. has been
decided that the grant of an inhibition to an administratrix
not to intermeddle with a deceased person's effects without
proof or suggestion that the party had embezzled any; the
party being the widow, and entitled to a moiety of the estate
under an intestacy. ^ Lev. 5s^. Refusal of a prayer to
rescind an order is a matter so discretionary, that it
seems not to be an appealable grievance. S Add. 281.
Nor the refusal of a judge to permit witnesses to be examined
who are actually present in court on the day assigned to
propound all facts, and who are sworn to be necessary witnesses*
2 Add. 282 ; Ought. Hi. 1 16.

It may become a question whether the matter appealed
against amounts to a definitive sentence or a grievance. One
Southwell having prayed a faculty, the grant was opposed by
Dearie^ a parishioner, who gave in an allegation, setting forth his
interest and objections ; the court rejected this allegation, and
granted the faculty ; Dearie appealed from both, the re-

jecting bis aUegaiion and the grant of the faculty, on which What are
Southwell prayed that Dearie might be assigned a term pro- gSevancefc

batory on his libel of appeal, and that the cause might proceed

as on appeal from a definitive sentence ; whereas Dearie in-
sisted that bis appeal was from a grievance only in rejecting his
allegation, and uiat the faculty granted ceased as an act done
after appeal, and therefore he did not want a term probatory ;
for a grievance is to be heard ex iUdem actis. Sir G.
Lee held the rejecting the allegation was a final inter-
locutory decree, having the efiTect of a definitive sentence,
for it was pronouncing against Dearie* s interest to oppose, after
which he could have no relief in the court below ; besides, the
appeal was also for granting the faculty, which was the final
and conclusive act of the court as to this cause ; and judgment
was given that the appeal was from a definitive sentence.
Dearie was assigned to take a term probatory, and the cause to
be called on as on an appeal from a sentence. Dearie v. South'
well, 2 Lee, 119. All the several acts done on one court day
make up but one decree, at least so as to warrant the appel-
lant including the whole, whether of an appealable nature
or not, in the production of the appeal. 2 Add. 284.

No appeal from a sentence lies till final sentence be actually
given, when therefore a cause had been set down only in the
prerogative court for sentence on the second assignation, held
that it was not competent to either party to interpose an appeal;
whatever is done after the cause is concluded, and until final
judgment is pronounced, is to be deemed part of the hearing and
as one continuous act. Barry v. Bulten, 1 Moore P. C. 96,

Ten days from the delivery of sentence or order complained within
of as a grievance is the period for an appeal assigned by what time.
the canon law, and fifteen days by the 24* Hen. 8, c. 12, s» 7.
In SehuUes v. Hodgson, the return-day of the citation was the
31st of October, on which day the defendant did not appear,
and was pronounced contumacious; on the 22d November ne ap-
peared voluntarily, and having taken the usual oath, &c, was
absolved from his contumacy ; the articles were then brought
m and admitted inslanter, notwithstanding the dissent of the
defendant's proctor, and the defendant was monished to appear
immediately, whereupon the articles being first read over, the
defendant gave in person a negative issue, and the proctor for the
promovent was assigned a term probatory till the next court day,
the I9th of December ; the judge then on the petition of the pro-
movent s proctor decreed the defendant to take the usual oath for
his personal answers, when his proctor for the first time protested
a grievance, with intent to appeal, which appeal was entered
accordingly. The grievances complained of were: I st, the admis-
sion to proof fit^toff/er of the articles, notwithstanding the dissent

E 2

((

52 appeal.

Within of tlic defendant's proctor, on the S2d November ; andSdly,

what time, ^j^^ order or decree of court for the defendant's personal

answers, upon oath, of the I9th. The court, Sir J. NichoU,

said, '* with respect to the first alleged grievance, that of the

** 22d November, it was observable that this appeal was only en-

" tered on the ^4th December, clearly after the fifteen days

allowed by the statute. No appeal was even protested of till the

I9th of December, and the protest is then only of appeal from

steps taken by the court on that day, and not of appeal from

*' admission of articles on the court day preceding, namely, the

" 22d of November." 1 Add. 107.

One day in- It would seem that the fifteen days must be taken according

elusive, one to the rule of the common law, as one exclusive and the other

Bivr"^"" inclusive. S T. R, 623 ; 3 East, 407 ; Reg. Gen. East T.

1832 ; 15 Ves. 243. Thus, where there was a decree for costs on

the 8th of April, and the appeal entered on the 21st, it is spoken

of by the court as the last day but one in which it could be

entered. 3 Hag. 481. By 3 ^ 4 Wm. 4, c. 41, #. 20, regula-

ting the practice of the judicial committee of the privy council,

the time fixed for appealing by law and usage is continued.

Ante^ 49.

Where the sentence was not appealed firom in proper
time, the order to carry it into execution cannot be appealed
from. 1 Lee^ 538.
g By 55 Geo. 3, c. 184, every appeal from the court of arches,

or the prerogative courts of York and Canterbury, was directed
to be on a 15/. stamp ; that act is now repealed by 5 Geo. 4,
c. 41, and such stamp, therefore, in such cases of appeals is un-
necessary. In appeals from the diocesan and inferior courts no
stamp was ever necessary. 4 Hag^ 74.
Protocol of ^"^ ^^ ^ Geo. 4, c. 41, applies only to removing stamps
appeal. from judicial acts ; but a protocol of appeal is a notarial and
extra judicial act, and still requires a 5s. stamp. 55 Geo. S,
c. 1 84, sched. pari 1 ; 4 Hag. 75.
Not sealed. In the case of Smyth v. Smyth^ 4 Hag. 76, it was objected
before the delegates, that the appeal to that court though signed,
was not sealed with a private or official seal, and therefore was
a nullity ; but the court affirmed the sentence of the court be-
low, whereas it is conceived if they had considered such objec-
tion valid, they would have dismissed the appeal.
Inhibitioo. Pending the appeal, it is usual, at the instance of the appel-
lant, for the superior court to grant an inhibition to stay the
execution of the sentence in the inferior court until the appeal
shall be determined.
Signature By Can. 96, no inhibition is to be granted out of any court
of an advo- belonging to the archbishop, at the instance of any party, unless
^^^^' it be subscribed by an advocate practising in the said court.

^tal. 53

i PAUL 4S7. So in cases of inhibitions by the bishop or his luhibitions
chancellor against the archdeacon, or any other person exer- crUonot*'
cising ecclesiastical jurisdiction. If there be no advocate prac- tiit: judge
tiaing in the court, then the subscription of a proctor practising Q^^ aUays
there will be sufficient ; that though the signature of an advo- i^^°^*^ -
cate may not be called for in ordinary cases, the express direc-
tion of a canon cannot be repealed by disuse. 2 PhilL 413,
though usually a matter of course, yet under particular circum*
stances it may be right and proper for the judge to consider
and decide judicially, whether he shall decree an inhibition ;
in the particular case an inhibition was refused. Herbert v. Her-
bert, ibid. For though the right of appeal is sacred, the court
must take care that it neither injures the jurisdiction nor the
suitor. Ibid* 444.

Before the granting any inhibition, in an appeal against inter- Appeals
locutory decrees or in any causes of correction, it is provided by ^^*^™ p" j^*
Canon 97, that the appeal itself, or a copy of it (avouched by causes of
oath to be just and true,) be exhibited to the judge or his surro- correction.
gate, whereby he may be informied both of the quality of the
crime and of the cause of the grievance. 2 PhilL 444.

" Cvery appellant, or his proctor shall, before the obtaining
any inhibition, exhibit to the judge or his surrogate, a written
and true copy of those acts wherewith he complaineth himself
to be aggrieved, and from which he appealeth ; or shall take a
corporal oath, that he has performed his diligence to obtain the
same, and could not obtain it from the registrar in the country,
tendering him his fee. And if any judge or registrar shall either
procure or permit any inhibition to be sealed, contrary to this
form and limitation, he may be suspended from his office for three
months ; and if any proctor or other person, by his appoint-
ment, shall offend in the said premises, he may be removed from
his office for a whole year.*'

In appeals from grievances the hands of the court are not tied
up till the service of the inhibition, 2 Hag. Sup. 139 n.; 1 Add.
21 ; and, what or whether any intermediate steps shall be
taken, depends upon the particular circumstances of each case,
the judge of the inferior court exercising a sound discretion.
1 Add. 2\. But in a divorce cause it is irregular to continue
proceedings in the court below to enforce payment of alimony,
which formed part of the original sentence, after an inhibition
has been duly served on the judge, registrar and adverse proctor.
1 Hag. 24. There seems no distinction whether all the acts
be done on the day the appeal is asserted, or on some subse-
quent day, the court, therefore, having overruled the objections
to an allegation ; on the following court day a4mitted the allega-
tion, notwithstanding an appeal had in the interim been as-
serted. Middleion v. Middleton, 2 Hag. Sup. 139, in notis.
How far an agreement and dismissal may amount to a formal

iapiieaU

Effect of on
the cause.

lahibition.

The relaxa-
tion of.

Attentati,

When re-
mitted to
the court
below.

relaxation of the inhibition, vid* Smyth r. Smyth, 4 Hagi 513.
But, generally, it seems that an inhibition does not remain in
force so as to prevent the inferior court from proceeding on the
same facts, and also on additional ones in a subsequent suit, the
original suit having been dismissed in the appeal court by con-
sent. 4 Hag. 72. Till the inhibition has been returned, the
court above has nothing whereon to act, 1 Hag, 24 ; therefore
steps taken by the judge d quo on the same day, but after an
appeal entered, and . subsequent thereto, but prior to service
of the inhibition, and even if subsequent to the service of the
inhibition, the appellant not being founded in his first appeal,
held not to be attentats. I Jdd. 22.

If an inhibition disclose an appealable grievance, and a party
appear under protest, without at the same time shewing some-
thing on the face of the protest which takes away the other
party's right to appeal, the court will overrule such protest, and
direct an absolute appearance. 2 Add. 276. Where by the
minute of court, it appeared that the cause in which the inhibi-
tion had been served was then agreed, and the cause in other
words dismissed, it is tantamount to a formal relaxation of the
inhibition, the agreement and dismissal extinguished the suit ;
the suit therefore, and every thing which had taken place under
it was at an end by the agreement and dismissal. 4 Hag. 513.

When acts are done in supposed prejudice of the appeal,
they are called in the language of the civil and canon law
*' Attentats,'^ the general definition of which word seems to
be " anything whatsoever wrongfully done or attempted in the
** suit by the judge & quo pending an appeal." 1 Add. 21, in
notd, vide also Conset,pt. 5, c. I,«. 3, />• 208, who after dis-
cussing the nature of these '* attempts,** adds, ** That if the
** party appealing will proceed in this business about the
*' attempts, he is not compelled to prosecute or proceed in his

cause of appeal until the attempts be discussed and retracted ;

at least that ought to be first requested, lest he seem to recede
^* from them. Yet the party appealing ought to take care that
'' his appeal be not deferred wuilst he is prosecuting his cause
" of attempts, which inconvenience he may easily remedy,
" having liberty to proceed in both togetherJ'' And in a note,
1 Add. 24, it is said that '* it was thrown out by the judge that
" the regular course of procuring the revocation of ** attentats'^
" was by a separate proceeding, civil or criminal, as against the
** judge d quOf and that it was not to be done by charging the
^* supposed attentats" accumulatively in a mere ordinary libel of
'' appeal.

An appeal is a judicial right whereby the former sentence is
for a while extinguished. Ayl. Par. 71. The sentence ap-
pealed from, if affirmed, remains the sentence of the court

bdow, and not of the appellate court ; the cause is remitted to ^^^^ ^^
the court below, and it is by the authority of that court that ^° ^<^*"«
the execution of the sentence is to be enforced, and it remains When re-
valid from the day when it was originally pronounced in the ™*^^ ^^
CQirt below. 1 Add. 316. And, therefore, a court of appeal below.
caanot enforce payment of costs incurred in the court below.
3 PhUl. 38. An appeal suspends the sentence but the suit
stiL continues. 1 PAilL 208. And the cause stands on the
same footing in the court below as it would have done if there
had been no appeal. 1 Lee, 659; 4 Hag. 511, 515. And as
said by Sir J. NichoU in Bumell v. Jenkins, 2 Phill. 400,
the court of appeal must endeavour to put parties in the
situation they would have been in if the court below had done
right;** and in the case of an appeal from a grievance there
seems to be no objection to the putting parties on terms of
arrangement for the future trial of the cause. Thus in
Stephens v. Webb, I Lee^ 262, an appeal was pronounced for,
on an understanding that the cause snould be retained, and the
adverse proctor should declare in acts of court that he admitted
certain points.

In appeals from definitive sentences, it is lawful both for the New facta
party appealing and the party appellate to allege things not ^^en adu*^'
alleged before the judge irom whom it is appealed, and to miasible.

prove things not proved, so as the publication of the evidence

produced in the first instance hinder not. But it is otherwise
in the case of grievances which ought to be proved by the pro-
ceedings and the act of the judge from whom it is appealed ;
unless the grievances upon which it is appealed are omitted and
left out of these proceedings so transmitted, or that the judge
from whom it is appealed, or his registrar, hath refused to enter
these grievances innis acts, which the party appealing supposed
himself grieved upon. Conset,pi. 5, c. 5, s. 3.

The rule on this subject, as Laid down by Oughton, tit. 318,
s» I, ia, that though the court, even in an appeal from a
definitive sentence, may admit an allegation, vet that it ought to
be cautious, and not allow anything to be pleaded which could
have been pleaded below, and which directly contradicts the
plea on which witnesses have been examined in the court below,
and therefore, where the facts stated are not alleged to be
noviter ad notitiam preventa, the plea was rejected. Fletcher y.
Le Breton, 3 Hag. 365.

At the same time it seems that although the court will
observe this rule as exactly as it can, yet that in causes from
country courts, where they are often awkwardly conducted, the
court above cannot always rigidly abide by the rule consistently
with justice. Per Sir W. Wynne, Price v. Clark and Pugh,
3 Hag. 265, in notis; and vide 2 PhiU. 394, 400, 583.

SbmtaL

New facta
on appeal,
when ad-
missible.

Who to
begin.

Costs.

In cases of
grievance.

Definitive
sentences.

In the case of grievances, the rule seems to be stricliy
adhered to, that the cause of appeal should appear on the face
of the inhibition itself. Can. 97 ; Cantet^ 3,pL 5, c. 5, s. 3. And
though Conset makes an exception as to omissions supra 55, yet
in the case of Fanshaw y. Verdon^ 1 Lee^ 628, Sir G. I^e heU
clearly that the affidavit of a party to bring in papers not in tie
registrar's return, and to contradict such return, could not be
received ; that the process and the registrar's return were Jie
proper evidence of what had been exhibited, and Aat an ap|»eal
upon a grievance must be heard upon the evidence before the
courts below.

By 3 ^ 4 fF. 4, c. 41, ^. 8, the judicial committee maT hear
what new evidence they like, and no distinction seems to be made
between appeals from definitive sentences and grierances.
Ante^ 47,

In an appeal for refusing to hear a petition, the appellant,
who originally prayed to be heard, begins* 4 Hag* 47.

In appeals from grievances, the superior court cannot give
costs incurred in the court below. In BriscoY.Brisco^ I Pkitt. 38,
which was an appeal from the rejection of articles in an exceptive
allegation ; application was made to enforce the payment of costs
incurred in the court below. Per cur, ; " Is there any instance

of this, this is only an appeal from a grievance, I doubt

whether the court can take any such step : it is the fault of

the party allowing the exceptive allegation to be given in
** before the expenses are paid. The case may stand over for
** precedents, but as it now strikes me, the court would not be
" warranted in acceding to this application, particularly before
** the process has been brought into this court.** Vide S Hag.
Supp. 133.

In appeals from definitive sentences, costs generally form part
of the decree ; costs in cases before the judicial committee of
the privy council, are in discretion of the court by 3 ^ 4 FT. 4,
c. 4], s, 15, and vide ante, 48.

»€

^propriationief.

Appropriation, in contradistinction to impropriation, means
the annexing a benefice to the proper and perpetual use of
some spiritual corporation, either sole or aggregate, being the
patron of a hving which is bound to provide for the service of
the church, and thereby becomes perpetual incumbent, the
whole appropriation being only an allowance for the spiritual
patrons to retain the tithes and glebe in their own hands without

Qtpptaprintiomi. 57

preBenting any clerk, they themselves undertaking to provide
for the service of the church. 1 BL Cam. 384; Plowd. 406. (a)
Appropriations are an abuse which took their rise in the
darker ages. The term appropriation^ as applicable to this
species of interest when in spiritual hands, was borrowed from
the form of the grant " in praprios tuus^^ and appears peculiar,
or principally confined, to England. 1 Hag. Con. 163. The
term impropriation is applied when it is in lay hands, as being
improperly so. lb. ,* SpeL TytheSy c, 29, p. 137. Since the
dissolution of monasteries, the terms are used synonimously.
1 EUz. e. 9 ; I P. if M. c. 4*; 29 Car. S, c. 8. Appropriation
was authorized to be made with different privileges in two

{a) In the early periods of the church, the bishop and his clergy
lived together at the cathedral church, and all tithes and oblations were
broi^ht into a common fund, for the support of the bishop, his pres-
byters and deacons, for the repair and ornament of the church, and for
other works of piety and charity.

While this state of things continued, the ceremoniab of religion,
especially at the solemn seasons of devotion, were performed only in
these single choirs to which the people of each whole diocese or parochia
resorted, still the bishop was wont to send forth preachers, who when
they returned to their homes, that is, to the episcopal residence, gave
the bishop a due account of their labours and success. But as the
demand for spiritual instruction increased, certain churches were allotted,
some by lay patrons (in cases where they had had the patronage given
them as a compensation for having built and endowed churches, which
was the foundation of lay patronage) and some by the bishops, to the
prebendal body at laige ; again, some were allotted to one particular
part of the body, or to the individual member ; all of these sent out
priests to do the duty, paying them certain sums for doing so, but
retaining to themselves the profits ; or allowing those sent out to
receive the profits, resenring a certain rent to themselves ; and thus
these churches became prebendalf and the supply of the duty was left to
the a^;regate corporation, if the perpetual advowson was in the whole
coounonity of the dean and chapter, or to that sole corporation, or
single canon, or prebendary who was to have his prebend or exhibition
fi:om it.

In process of time these representative curates, who were to account
for their profits, and only to receive a small pecuniary stipend for their
services, were so ill paid, that the bishops obliged the members of their
churches who had such advowsons to retain fit and able capeUans^
vicars, or curates, (for these titles all meant the same office) with a
competent salary ; but this provision proving insufficient afterwards
compelled the chapters or canons in whom the perpetual advowsons
were vested, to make presentation to perpetual vicars to be endowed
and instituted, and have no more dependance upon their spiritual
patron than rectors had upon their lay patrons. Vide stat. 15 /{. 2, and
i H. 4, e. 12; Kennet sii Impropriations; Deg^e^ 161 ; 3 Bing. 253.

58 aptiropriattond^

forms; the one plenojure^ sive atroquejure, tarn in spiritualibuSf
quam in temporalibus, where the interests in the benefice, both
spiritual and temporal were annexed to some religious house ;
and the other, non uiroque jure, though plena Jure^ as it is
described, in temporaUbuSf where temporal interests only were
conveyed, such as the tithes or patronage of the benefice, but
the cure of souls resided in an endowed perpetual vicar.
1 Hag. Con. 164.

In England it was ordained by the constitution otOthobon, that
all religious houses which possessed churches in proprias usus,
should present vicars with competent endowment to the dio-
cesan for institution within the space of six months, and if they
failed to do so, the bishop was empowered to fill the vacancy, and
the 15 jR. S, c. 6, and the 4 Hen. 4, e. 12, require that vicarages
should be regularly endowed, thus the vicarage became a
benefice with cure of souls, and the monks held impropriation
in some sort as a lay fee, lb. 165 ; 1 Vem. 42. But the
umones ad mensam for the sustentation of the monks being
presumed to be in uiroque jure, notwithstanding the statute of
appropriations, and not affected by the canon ** de supplendd
negligeniidi' was the foundation of that peculiar kind of appro-
priation without a vicarage endowed, which is the origin of
stipendiary curates, in which the impropriator is bound to
provide divine service, but he may do it by curate not instituted,
but only licensed by the bishop; and might reckon himself
under no obligation to present a vicar to the bishop for institu-
tion, but might provide for the service of the church as the
monks did, by a licensed curate. lb. 166 ; Kennei on Impro-
priations.

At the dissolution of monasteries, the appropriations belong-
ing to the religious houses, (beins one-third of all the parishes
in the kingdom) would at common Uw have been disappropriated,
bad not a clause been inserted in the statutes 27 Hen. 8, c. 28 ;
81 Hen. 8, c. 13, to give them to the king. 2 Inst. 584. And
from thence has sprung up all the lay impropriations and
secular parsonages which have been from time to time granted
out by tne crown. 1 BL Com. 384.

An appropriation may be severed and the church become
disappropriate two ways. 1st, If the patron or appropriator
present a clerk, who is intituted and inducted to the parsonage,
for such incumbent is to all intents and purposes complete
parson, and the appropriation being once severed can never be
re-united, unless by a repetition of the same solemnities. Co.
Litt. 46 ; 7 Rep. 13 ; 1 Keb. 906. And when the clerk so presented
is distinct from the vicar, the rectory thus vested in him becomes
a sinecure, because he Iuu9 no cure of souls, having a vicar
under him to whom that cure is committed. Also if the

corporation be dissolved to which the benefice is annexed, the
parsonage becomes disappropriate at common law. 1 BL Com*
386 n.

Is be who (according to the canon law) hath obtained a
dignity in a cathedral church to have a priority among deacons,
and is sometimes called oculus episcopi, is the officer of the
bishop for all ecclesiastical matters within the diocese, excepting
only such as bv law are specially prohibited. GodoL Ab* 60;
1 Hag. 188. It would seem that an archdeacon is inferior in
rank to a dean, the latter being archi presbyter , the former
arehi aUaconus. S Phill. S40. The canon law distinguishes
of archdeacons; there being an archdeacon general who
hath not any archdeaconry distinctly limited, but generally
supplies the place of bishop as his vicar, and therefore doth
represent the bishop ; and also another archdeacon who hath a
distinct limitation of his archdeaconry, and hath a peculiar
jurisdiction, for which, where it is by custom, he may prescribe*
GodoL Ab, 65. Of common right it seems that archdeacons
have no power to usurp to themselves greater matters, but only
to report the same to the bishops. Beyond this, all the righta
that any archdeacon enjovs, of what kind soever they may be,
subsist by grants from tne bishops, either made voluntarily to
enable archdeacons to visit with greater authority and effect;
or of necessity, as claimed and insisted on by archdeacons upon
the foot of long usage and custom. But whatever might have
been the motive for these concessions on the part of the bishops,
it seems that the powers enjoyed by archdeacons beyond that
which they claim of common right, accrued to them by express
grant or composition, it being hard to imagine how deans and
chapters, archdeacons or any other persons should be allowed
to prescribe against a bishop for any branches of episcopal
jurisdiction, and much more for an exemption from it* Gibs^
969; (a) Degge, P. C. 231, 235.

(fl) When William the Conqueror deprived the county courts of
their ecclesiastical jurisdiction, prohibiting the bishops to sit as judges^
the clergy to attend as suitors, and the causes of the church to be tried
in them, he appointed distinct courts to be held in every diocese for the

60 arcftliearom

The different dioceses are divided into several archdeaconries^
being more or less in a diocese according to the extent of it, and
in all amounting to sixtt/. Co. Litt, 94 ; 5 Rep. Archdeacon-
ries are again divided into deaneries, which also are divided
into parishes, towns, and hamlets. Of these archdeaconries,
some are by prescription, some by law, and some by covenant,
which difference hath this operation in law, that the jurisdiction
of an archdeaconry by prescription or de jure is peculiar and
exclusive of the jurisdiction of the bishop. 3 PhilL 241.
Insomuch that a prohibition lies for such archdeacon against
the bishop if he intermeddle judicially with any matters or
things within such archdeaconries. 1 Ld. Raytn. 123; Cro,
Car. 115. The archdeaconry of Richmond is by prescription.
Y. B. 8 H. 6, c, S. Otherwise it is where the archdeaconry is
only by contract or covenant made between the bishop and arch-
deacon ; for in that case if the bishop so intermeddle within the
jurisdiction of such archdeacon or hold plea within the same, he
can have an action of covenant against the bishop, but no
prohibition lies. GodoL Ab. 61. But in ordinary cases the
bishop and archdeacon have a concurrent jurisdiction, and the
party may commence his suit either in the archdeacon's court
or the bishops, and if he commence in the bi8hop*8 court, no
prohibition shall be granted ; for if it should, it would confine
the bishop's court to determine nothing but appeals, and render
it incompetent to have causes commenced there. 4 Inst 3S9 ;
1 Ld. Raym. 123. And therefore it seems that there is no
irregularity on the death of an archdeacon to invoke a cause
to the episcopal court, and proceed with it there, especiaUy if
the usage of the diocese warrants it. 1 Hag. 188.

By the canon law, a man cannot be an archdeacon under the
age of twenty-five, and by the council of Trent, he ought to be
a licentiate in law or divinity. They are called the chief of
the deacons, in whom there is an ecclesiastical dignity inherent

cogniKance of ecclesiastical causes ; this was the origin of what we now
call the consistorial court of the bishop, who by degrees assigned to
particular persons such share of episcopal jurisdiction as he thought fit,
to be exercised archidiaconally within the districts by him appointed ;
this assignment of power to be exercised within limited districts, put an
end to the genend vicarial character of archdeacons throughout the
whole diocese, and made way for those officers who are known by the
names of vicar-general, official, and chancellor to the bishop ; and who are
vested with a delegated power to exercise in the place of the bishop all
such jurisdiction as has not been granted away to others, or that he has
not in the commission reserved to himself. Gibi, 970, " Chancelkr^**

Qbctb^mtm. 61

jure c&mmum. This dignity may be held without any duties
being attached to it* GodoL Ab. 64.

Archdeaconries are commonly given by bishops who do
therefore prefer to the same by collation. But if an arch*
deaconry be in the gift of a layman, the patron presents to the
bishop in like manner as to any other beneficci and then the
dean and chapter induct him, that is, after some ceremonies

|)l^ce him in a stall in the cathedral church to which he be-
ongeth, whereby he is said to have a place in the choir, Wats,
c. 15; in respect of this locum in choroy a quare impedit doth
lie for an archdeaconry. Cro. Eliz, 141 ; GodoL Ab. 62, 66.
By 13 & 14 Car. 2, c. 4, they are to read the common prayer
and declare their assent thereto, and subscribe the same before
the ordinary, but they are not obliged by the \Sth Elix*
to subscribe and read the thirty-nine articles. But they
are to take oaths at the sessions as persons qualifying for
offices. In general the archdeacon's jurisdiction is founded on
immemorial custom in subordination to the bishops, and he is
to be regulated as to his dignity, office, and power, according
to the law, usage, and custom of his own church and diocese.
1 sua. 238; GodoL ^6. 64; 1 Hag. 1, 189; Cro. EUz. 663.

For some purposes an archdeacon is a ministerial officer, as
for instance, he cannot refuse to administer the oath of office to
churchwardens, 1 Ld. Raym. 138, vide ** Churchwardens.**
Court of, vide " Appeal'*

By the late act to regulate pluralities, 1^2 VicL c. 106, an
archdeaconry is, by s. 124, comprehended under the term
" Cathedral Preferment ;** as to the regulations made by that
statute relative to archdeacons, vide^ ** Plurality ;** with regard
to new archdeaconries, vide " Ecclesiastical Commission^**

^xtitfi.

Curia de arcubus is the court held at Bow church, (which
church was so called from the steeple having been raised with
stone pillars archwise) ; and the dean of the court of peculiars,
(from this called the dean of the arches), used to hold his
courts in this church. It was also the place where the
official principal of the archbishop of Canterbury held his
court : and because these two courts were held in the same
place, and the dean of the arches was usually substituted
in the absence of the official, while the offices remained in two
persons: and the offices themselves having been united, in
many instances, in the same person, as they now remaini a

9b:tbt^

t€

wrong notion hath obtained that it is the dean of the arches

who hath jurisdiction throughout the province of Canterbury ;

whereas the jurisdiction of the dean of the arches^ as such, is

strictly limited to the peculiars of the archbishop. BurtCs E,

L. Hi. ** Arches i' 1 Hag. AS. So completely do these two

offices seem to have been identified, that in R. v. Lee and

others, 1 Show. 251 ; speaking of the power of the dean of

the arches^ Holt, C. J., says, " what the dean of the arches

does, the archbishop does ; as what the chancellor does the

bishop does,*' and Dolhen, «/., says, " the dean of the arches

'' is the very archbishop, and it is one and t/ie same jurisdiction.**

Official The court of the official principal, is called the arches court

priDcipal. of Canterbury, and it is of very ancient origin, having subsisted

long before the time of Hen. 2.

The official principal of the archbishop has extraordinary
jurisdiction in all ecclesiastical causes, except that which belongs
to the prerogative court, also all manner of appeals from
bishops, or their chancellors or commissioners, aeans and
chapters, archdeacons, &c., are directed hither; he has or-
dinary jurisdiction throughout the whole province of Canterbury
in case of appeals, so that upon any appeal made he, without
any further examination, sends out his citation to the appellee,
and his inhibition to the judge from whom the appeal was
made. 4 Inst. 387. But he cannot cite any person out of the
diocese of another, except upon appeal. 2 Lee, 287 ; 23 Hen. 8,
e. 9* But by force of that statute entertains suits on letters of
request from inferiorjurisdiction within the province. 2Lee,2\2\
1 Hag. 4; 2 Add. 186, 404.

Dean of the arches as judge of the peculiars, includes within
his district thirteen parishes in London, and the deaneries of
Croydon, in Surrey, and Shoreham, in Kent. 1 PhiU. 201 ;
1 Hag. 48 ; as to the power of the dean of the arches to deprive,
eide " Deprivation.**

It seems that he alone of all the ecclesiastical judges has
power to deprive ; 1 PhiU. 377 ; without the bishop being pre-
sent. 1 Hag. 48, App. ; 1 Add. 391.
Letters of The jurisdiction of the official principal of the archbishop sitting
request. jn the court of arches, was entirely settled by statute 33 Hen, 8,
c. 9. He is empowered to take original cognizance, by virtue
of letters of request, of such causes as the civil and canon law
allowed the inferior judge to devolve to the superior, which
are those which are called arduous causes, of which matrimonial
causes were always termed the chief. The statute vested the
power of devolving in the judge of the inferior jurisdiction. 3
LeCy 316. He has appellate jurisdiction from each of the diocesan
and most of the peculiar courts within the province. He further
has original jurisdiction on subtraction of legacy given by wills

Dean of the
Arches.

art(dMf* 63

proved in the prerogative court of Canterbury, 1 Haa. 535, 537 ;
3 Hag. 161, note; 1 Hag. 4. note. This court, as also the court
of peculiars, the admiralty court and the prerogative court is
usually held in the hall belonging to the college of civilians at
Doctors' Commons. Bum's E. L. tiV^ Archest

To be subscribed by

Deacons

Priests.

All admitted to benefices.

Heads of coll^^.

Lecturers.

Chatioellors, commissaries, &c.
When to be read.
Impugned, cause of deprivation.

JLlIE thirty-nine articles (a) were almost entirely founded Whenpub-
upon a body of articles compiled and published in the reign of 1"^^-
king Edward 6; they were established by authority, in l^GS^
and eventually confirmed in 1571. The last paragraph of the
confirmation, is as follows :

That if any public reader in either of our universities, or any
bead or master of a college, or any other person respectively
*'in either of them, shall affix any sense to any article, or shall
*' publicly read, determine, or hold any pubuc disputation, or
suffer any such to be held either way, in either the universities
or colleges respectively : or if any divine in the universities
''shall preach or print any thing, either way, other than is
" already established in convocation with our royal assent, he
'' or they the offenders, shall be liable to our displeasure and
'' the churches* censure, in our commission ecclesiastical, as
'' well as any other ; and we will see there shall be due ex*
'' ecution upon them."

By 13 Elix. c. 12, s. 5, none shall be admitted to the order To be sub-

of deacon unless he shall first subscribe to the said articles. ^ud^ ^^

3y sec. 6. ** None shall be made minister, or permitted to prfj"**"**

(a) These articles are not the works of a dark age, but tbe pro-
daetion of men eminent for tbeir erudition and attachment to tbe
purity of true religion. Per Lord SUnoeU, 1 Hag. Can. 426.

QMtUa,

Admitted to
benefices.

Heads of
colleges.

By lectu-
rers.

Curates,
shoolmas-
ters, chan-
cellors, and
officials.

When to be
read.

preach, or administer the sacraments, unless he first bring ta
the bishop of that diocese, from men known to the bishop to
be of sound religion, a testimonial of his professing the doctrine
expressed in the said articles, nor unless he be able to render to
the ordinary, on account of his faith in Latin according to them^
or have special gift or ability to be a preacher, nor unless he
shall first subscribe them.**

By sec. 3. " No person shall be admitted to any benefice with
cure, which applies to perpetual curacies and chapels aug-
mented, unless he subscribe the said articles in the presence of
the ordinary ; and by ^. 7, all admissions contrary to the act,
and all dispensations or qualifications to the contrary, are de-
clared to be void in law ; and by Canon 36, no person shall be
received into the ministry ; nor by institution or collation, ad-
mitted to any ecclesiastical living, nor suffered to preach, to
catechise, or be a lecturer or reader in divinity, in either
university, or in any cathedral or collegiate church, city, or
market town, parish church or chapel, or in any other place
unless he subscribe an article whereby he acknowledgeth that all
the thirty-nine articles ' are agreeable to the word of God/ **
With regard to this statute of Elizabeth, it was said by Lord
Stowell *' to be the idlest of all conceits to call this an obsolete
act, it is in daily use, viridi observantidJ"* 1 Hag. Con. 4^.

By 13 Sf H Car. 2, c. 4, s. 17, every governor or head of
any college or hall in either of the universities, or of the colleges
of Westminster, Winchester, or Eton, shall within one month next
after his election, or collation, and admission, openly and publicly
in the church, chapel, or other public place oi the same college,
or hall, and in the presence of the fellows and scholars of the
same, or of the greater part of them then resident, subscribe the
thirty-nine articks, and declare his unfeigned assent and con-
sent unto, and approbation thereof; on pain of suspension from
profits, &c. for six months, and if he shall not, at or before the
end of six months next after such suspension subscribe unto
the said articles, and declare his consent thereto, such govern-
ment or headship shall be ipso facto void.

By sec. 19. *^ No person shall be received or allowed to preach
as a lecturer, unless he shall in the presence of the archbishop,
or other who licenses him, read the thirty-nine articles, with
declaration of his unfeigned assent to the same.'*

By Canon 77, no man shall be admitted schoolmaster, and
by Canon 1^, none shall be admitted chancellor, commissary,
or official, except before he enter to execute such oflSce, he shall
subscribe the tnirty-nine articles ; and in the latter cases the
subscription is to be recorded by a registrar then present.

By 13 Ettas, c. 12, s. 3, every person to be admitted to a
benefice with cure, except that within two months after his in-:

duction (or by 2S Geo, S, c. 38, at the same time that he shall
read the morning and evening prayer, and declare his assent
thereto), he publicly read the articles in the church whereof he
shall have cure, in the time of common prayer therOi with de-
claration of his unfeigned assent thereto, shall upon such de-
fault be ipso facto immediately deprived. Cro. Eliz. 680.

As to the thirty-sixth article, with regard to the ordination of
priests and deacons, and consecration of bishops and arch-
bishops, vid. 13 & 14 Car. 3, c- 4, ss. SO, 31.

By s. 2, 13 Eliz. c. IS. If any person ecclesiastical,
or who shall have any ecclesiastical living, shall advisedly
maintain or affirm any doctrine directly contrary or repug-
nant to any of such articles, and being convened before the
bishop or ordinary, and shall persist therein, or not revoke his
error, or afker such revocation, eftsoons affirm such untrue doc-
trine, he shall be deprived of his ecclesiastical promotions.
And vid» a late case where a clergyman was deprived for im-
pugning the doctrines of the Trinity, the divinity of our Saviour,
and the Atonement. 1 Hag, Con. 424. (a)

(a) Of the articles of the Established Church, Lord StoweU has ex-
pressed his opinion as follows : " The purpose for which these articles
"were designed is stated to be 'the avoiding the diversities of
" ' opinions, and the establishing consent touching religion.' It is
*' quite repugnant therefore to this intention, and to all rational inter-
" pretation to contend, that the construction of them should be left to
*' the private persuasion of individuals, and that every one should be at
** liberty to preach doctrines contrary to those which the wisdom of the
** state, aided and instructed by the wisdom of the church, has adopted.
" It is essential to the nature of every establishment, and necessary for
the preservation of the interests of the laity, as well as of the clergy,
that the preaching diversity of opinions, shall not be fed out of the
appointments of the established church, since the church itself would
otherwise be overwhelmed with the variety of opinion which must
in the g^at mass of human character arise out of the infirmity of our
common nature. For this purpose it has been deemed expedient to
** the best interests of Christianity that there should be an appointed
Liturgy, to which the offices of public worship should conform, and as
to preaching, that it should be according to those doctrines, which
the state has adopted as the rational exposition of the Christian fiiith.
'' It is said that Scripture alone is sufficient, but what would be the
** condition of the church if every weak, imprudent, and fanciful per-
" son might preach whatever doctrine he thinks proper to maintain ? As
" the law now is, every one goes to his parochial church with a cer-
tainty of not having any of his solemn opinions offended. If any
person dissents, a remedy is provided by the mild and wise spirit of
** toleration which has prevailed in modern times." 1 Hag, Con, 428, 9.

««

66 laiiotbanre*

Avoidance as opposed to plenarty is where there is a
want of a lawful incumbent to a benefice, during which va-
cancy the church is quasi viduata. GodoL Ab. 42*
Avoidance may be occasioned many ways.

Death. 1. By death. Of the avoidance occasioned by the death of

the clerk, the patron must take notice at his peril. 2 Leon. 4G ;
Dyer, S21 b ; 6 Rep. &Z. But perhaps the six months are
only to be reckoned for the purpose of lapse, from the time
the patron could reasonably be supposed to have notice of the
incumbent*s death. Wats, c.\\ 2 Roll. Ab. 363.

Resigna- 2. By resignation. This not being valid, unless made into

^^^' the hands of the ordinary, and accepted by him, should regu-

larly be notified by him to the patron. Gibs. 972.

Cession. 3. By cession or acceptance of a benefice incompatible. If

the second benefice be of the value of £8 per annum in the
king*8 books, or above, the acceptance of a second benefice va-
cates the first by 2\ Hefi. 8, c. 13, «• 9 ; if under £8, it is void
by the Canon. The distinction between benefices void and
voidable, seems to be at an end by the \ ii 2 Vict. c. 106, s, 2,
vid. *' Plurality.^'' By «. 11, institution into the second benefice
ipso facto avoids the first.

At common law the acceptance of a second benefice did not
make the fii*st void. By the council of Lateral), however, which
is introduced into the general law of England, the first living
became voidable, and the parson might be deprived by sentence,
or the patron might present another clerk, and thereby deter-
mine the former incumbency ; but until deprivation by sentence
or presentation of another clerk by the patron, the church
continued full. Where therefore an incumbent accepted a
second benefice, under the value of £8 per annum ; the first
was not absolutely void, but only voidable, at the option of
the patron; and upon this principle, it has been held, that
the sale of an advowson after the incumbent had accepted a
second benefice under £8 per annum, was notsimoniacal, although
it passed an immediate right of presentation. Alston v. Atlay,
6 Nef>. ^Man. 686; ^Rep. 75; 1 B. % Adol. 536.

Where the second benefice was above <£8 per annum, and
consequently within the stat. 2\ Hen. 8, c. 13, s. 9, the
first became absolutely void and vacant. Wolferstan v.
Bishop of Lincoln,2 Wils. 175, S Burr. 1505; 1 W. Bl. 400.
The vacancy was complete by institution into the second benefice,
without any declaratory sentence, and whether the patron pre-

aboOiaiu^ 67

sented or not. if Rep. 79; Moore, 448; Hob. 157. But for the Cesgion.
purpose of lapse the time would not run against the patron till
induction, unless notice were given to him. 3 Burr. 1505; S
Wils. 175.

4. By consecration. If an incumbent be consecrated a bishop Coniecn-
without a dispensation to bold the benefice in commendam^ it ^°^'
becomes void, and the right of presentation belongs to the

crown by its prerogative.

It seems that in Ireland no person can take any benefice or
dignity till he has resigned all his preferments in England. So
that the king gains no presentation by promoting a clerk to a
benefice in Ireland. Burn's E. L. " Avoidance.*'

5. By deprivation ; which species of avoidance being occa- Depma-
sioned by the judicial act of a court of ecclesiastical jurisdiction^ ^^°*
must be notified to the patron. Gibs. 79S.

If die party deprived appeal, the church is not void so long
as the appeal dependeth, and if the sentence of deprivation
be reversed, the clerk is perfect incumbent without any new
institution. IVats. c. 6; Dyer, 240 b ; 9 Rep. 18.

6. By act of law. As when the incumbent has been guilty By act of
of simony, not subscribing the thirty-nine articles or declara- ^*^'
tion, not reading the thirty-nine articles or common prayer;

or maintaining any doctrine contrary to the articles; ante
"Articles," 1 Hag. Cow. 424; or by 1 & 2 Vict. c. 106, s. 50,
if a benefice be sequestered for one year, or twice in two years,
for disobedience of an order to reside.

Baptism.

Public,

Private and lay.

Of children of dissenters and papists.
Of adults.
Of baptismal fees.

Provisions for adding name of baptism to registry of birth, by
6 4* 7 fP. 4, c. 86, and 1 Viet. c. 22.

By the Rubric, curates are directed to admonish the people,
that they defer not the baptism of their children longer than
the first or second Sunday next after their birth, or other
holiday falling between ; unless upon reasonable cause, to be
approved by the curate. As to baptisms in new churches
under the Church Building Acts, vid. 58 G. 3, c. 45, ss. 27, 28,
29; 59 G.S,c. 1S4,«.6; 1^2 W. 4, c. 38, s. 14.

F 2

When.

68 ISaptt£(m.

P°^^*^* At first baptism was administered publicly , as occasion served^

Where. "^y rivers; afterwards, a baptistery was directed to' be built,
having a basin in it large enough to hold the person to be
baptized, the water in which was to be continued for seven
days only. Afterwards, when immersion came to be disused,
fonts were set up at the entrance of the churches. 1 StiU-
ing fleet's £. C. 146; 1 Burn's E. L. 109.

And, therefore, by Can, 81, it is provided, that there shall be
a font of stone in every church and chapel where baptism is to be
ministered, the same to be set in the ancient usual places, in
which only font the minister shall baptize publicly. It is di-
rected by the Rubric, that the people are to be admonished,
that it is most convenient that baptism shall not be administered
but upon Sundays and other holidays, when the most number
of people come together. Nevertheless, if necessity so require,
children may be baptized on any other day. Originally, bap-
tism was administered but twice in the year, namely, Easter and
Whitsuntide. 1 Burn's E. L. 109 ; 3 PhiU. 279.
Ministers By Can, 68. No member shall refuse or delay to christen any

may not child according to the form of the book of common prayer,
refude bap- ^^iax is brought to the church to him, if on Sundays and
holidays, to be christened (convenient warning being given him
thereof before). And if he shall refuse so to do, he shall be
suspended by the bishop of the diocese from his ministry, by
the space of three montns.
Notice The Rubric provides that when there are children to be

baptized, the parents shall give knowledge thereof overnight, or
in the morning before the beginning of morning prayer, to the
curate.
Godfathers, And that there shall be for every male child to be baptized
&c. two godfathers and one godmother ; and for every female, one

godfather and two godmothers. Can. 29, 1603. No parent
shall be urged to be present, nor be admitted to answer as
godfather for his own child, nor any godfather or godmother
shall be suffered to make any other answer or speech, than by
the book of common prayer is prescribed in that behalf.
Neither shall any person be admitted godfather or godmother
to any child at any christening or confirmation, before the said
person so undertaKing, hath received the holy communion.

The Rubric again directs that the godfathers and godmothers
and the children, must be ready at the font, either imme-
diately after the last lesson at morning prayer, or immediately
after the last lesson at evening prayer, as the curate shall
appoint.

And the priest coming to the font, which is then to be filled
with pure water, shall perform the office of public baptism.
Names. The ministers shall take care not to permit wanton names.

which being pronounced do sound to lasciviousness, to be given ^"^^'^*
to children baptized, especially of the female sex ; and if other-
wise it be done^ the same shall be changed by the bishop at
confirmation. Peccham^ 9 Ed. \, 1281. Which being so
changed at confirmation. Lord Coke says, shall be deemed
the lawful name. Co. Litt. S a. ; 2 RolL Abu 135, a. But,
as now the bishop does not pronounce the name of the child at
confirmation, it seems he cannot alter it.

The priest taking the child into his hands, shall say to the
godfathers and godmothers, name this child : And then naming
it after them, (ifthey shall certify him that the child may well
endure it,) he shall dip it in the water discreetly and warily,
saying, N. I baptize thee in the name of the Father, and of the
Son, and of the Holy Ghost. Rubric.

But if they certify that the child is weak, it shall suffice to
pour water upon it. Id.

Then the minister shall sign the child with the sign of the
cross ; the true explication of which, and reasons for retaining
this ceremony, are set forth in the 20th Can. of the Canons of
1603. 1 Jac. 1.

By the Rubric^ curates are directed often to warn the people. Private.
that without great necessity, they procure not their children to
be baptized in their houses. By Can, 69, if any minister, being
duly, without collusion, informed of the weakness and danger
of death of any infant unbaptized in his parish, and thereupon
being desired to go to the place where the said infant remaineth,
to baptize the same, shall either wilfully refuse so to do, or of
purpose, or of gross negligence, shall so defer the time, as
when be might conveniently have resorted to the place, and have
baptized the said infant, it dieth through such his default un-
baptized ; the said minister shall be suspended for three months,
and before his restitution shall acknowledge his fault, and pro-
mise before his ordinary, that he will not wittingly incur the
like again : Provided, that where there is a curate, or a sub-
stitute, this constitution shall not extend to the parson or vicar
himself, but to the curate or substitute present.

Women, when their time of child-bearing is near, shall have Lay bap-
water ready for baptizing the child in case of necessity. ***™*
Lindw. 63.

For cases of necessity, the priests on Sundays shall frequently
instruct their parishioners in the form of baptism ; which form
shall be thus, I crysten the in the name of the Fader ^ and of
the Sone^ and of the Holy Goste. Lindw. 244.

It is specially provided by the Rubric^ as has been stated
above, that the curates of every parish shall often warn the
peoplci that without great cause and necessity they procure nut

Baptis(m^

Private or
lay.

OfDiaaent-
•ra.

their children to be baptized at home in their houses. Rubric,
2 ^ 5 Ed. 6, 1548; Bennett v. Boraker, 3 Hag. 46. The
vaUdity of lay baptism has been lately much considered,
it seems to admit no doubt that by the law of the English
churchy as well deduced from the general canon law, as
from its own particular constitutions, that down to the time
of the Reformation lay baptism was allowed and practised. It
was regular and even prescribed in cases of necessity ; it was so
complete and valid that it was by no means to be repeated.
Peccham, 7£rf. 1, 1279; 3 Phill. 276, 279. It also appears
that in order to ascertain its validity no inquiry was necessary
to be made into the existing urgency under which it was
administered, but only into what was declared to be the es-
sence, whether it had been administered by water, and in the form
of the invocation ; for if those forms were used, baptism by a lay-
man was complete and valid. Subsequently to the Reformation by
a MSS. copy of the articles made in convocation in 1575, it
appears that respecting lay baptism, it was resolved, that it was
only to be administered by a lawful minister or other deacon,
but as said by Sir J. Nicholl in his able and elaborate judgment
in the case of Kemp v. Wickes, 3 Phill. 286. " The obvious
" construction of this alteration was, that in the regular and
ordinary and decent administration of private baptism, it be-
came the duty of the lawful minister to perform the office, but
that it was not intended to invalidate the old law existing
" in this case previously to the Reformation, and to render all
other baptism, except that by a lawful minister, absolutely null
and void, but that baptism performed by a layman, and even
" without necessity, though altogether irregular, and though
*' the parties might be punished for violating the injunctions of
" the Hubric, was not invalid, nor could tiieparty be re-baptized."
According to the canon law it is also clear that though regular
baptism was by a bishop or priest, yet that if it were adminis-
tered by a laic, a heretic, a schismatic, or even by a pagan,
it was a valid baptism, and so valid that it was not to be
repeated. Ibid. 279.

By the above case, it is established that the baptism of Dis-
senters is completely valid, indeed the validity of their bap-
tism seems to have been recognised by 25 Geo. 3, c, 75, which
extended the duty imposed by 23 Geo. 3, c. 67, upon registers
of baptisms by the established church to the registers of baptisms
of Protestant dissenters ; both are now repealed, but the second
clearly recognises the validity of baptism by Protestant dissenters.
Upon this subject Sir J. A^icAo// remarks in the above case of
Kemp V. Wickes, 3 Phill. 360, " by the Toleration Act an impor-
" tant change was worked in the situation of Dissenters, and

Sa)itts(m. 71

^* baptisms now by dissenting ministersy stand on very difierent P'^^a^nters.
" grounds from those by mere laymen. Protestant dissenters
'" being now allowed the exercise of their religion, being no
longer liable to pains and penalties, their ministers lawfully
exercising their functions, the rites of that body being allowed
by law ; it can no longer be considered that any acts and rites
performed by them, are such as the law cannot^ in the due
" acbninistration of it, take any notice whatever of, or that
*^ baptism performed by them, when attended with what our
" own church admits to be the essentials of baptism, is still to
" ke looked on as a mere nullity."

Agaiuj ** the same practice has prevailed with respect to Catholics.
** Catholic converts, they have never been re-baptized, and
though they have been baptized by persons episcopally or-
dained and persons whom we consider to be so far ministers,
being Catholic ministers, as not to require that they be re-or-
'* dained, yet they have not been baptized according to the form
'' given in the common prayer of the established church, and the
" Rubric is as precise in requiring that the office shall be ad-
ministered in that particular form, as it is that it shall be ad-
ministered by a regular minister. Yet Catholic converts have
never been re-baptized if they choose to become ministers of
the church of England." pp. ^S, 294.
It is enjoined by the Rubric that when any such persons as are Of adulu.
of riper years are to be baptized, timely notice shall be given to
the bishop or whom he shall appoint for that purpose, a week
before at the least, by the parent or some other discreet persons ;
that so due care may be taken for their examination, whether
they be sufficiently instructed in the principles of the Christian
religion : and that they may be exhorted to prepare themselves
with prayers and fasting for the receiving this holy sacrament.
And if they shall be found fit, then the godfathers and god-
mothers (the people being assembled upon the Sunday or holiday
appointed) shall be ready to present them at the font, immedi-
ately after the second lesson, either at morning or evening prayer,
as the curate in his discretion shall think fit. And it is expe-
dient that every person thus baptized should be confirmed by
the bishop, so soon after his baptism as conveniently may be ;
that so he may be admitted to the holy communion.

No sacrament of the church is to be denied to any one, upon Fee oo.
the account of any sum of money : because, if anything hath
been accustomed to be given by the pious devotion of the faithful,
we will that justice be done thereupon to the churches by the
ordinary of the place afterwards. 1 Bum*s E. L. 1 16, Langton,
If any thing hath been accustomed to be given for so long a
time as will create a prescription, although at first given volun-

it
tt

u
tt

it
it

€t
t€

72 SAptidnu

^^^^ tarily, it may be demanded. For they who have paid so long,
are presumed at first to have bound themselves voluntarily
thereunto. Lind, 279.

Burdeaux v. Lancaster, 1 Soli. 3S2, the plaintiff had his chlU
baptized at the Savoy, the defendant beins vicar of St. Martir'a,
in which parish it is, together with the clerk, libelled against Wta
for a fee of two and sixpence due to the minister, and one shiBng
for the clerk. A prohibition was moved for ; and it was urged,
that this was a fee due by the Canon. By HoU, C. J. '' Nothing
'^ can be due of common right ; and how can a Canon take money
'' out of laymens' pockets? Lindwood says, it is simony to tale
'' any thing for christening or burying, unless it be a fee due by
custom ; but then a custom fur any person to take a fee for
christening a child, when he doth not christen him, is not gcod.
If you have a right to christen, you should libel for that ri^ht,
but you ought not to have money for christening, when yot do
" not." HoU, 317 ; 12 Mod. 171 ; Hob, 175 ; 1 Salk. 334.
6& 7 W. 4, When there is any right to fees it is not affected by the 6^7
c. 86. ' W. 4, c. 86, for by *. 49, it is provided, ** That nothing thei^ein
contained shall affect the registration of baptism and burials
as now by law established, or the right of any officiating
minister to receive the fees now usually paid for the perform-
ance or registration of any baptism, burial, or marriage."

By the above exception that " nothing therein contained shall
affect the registration of *' baptisms and burials, as now by law
establbhed." The old law is generally retained so that whatever a
parishioner, or an incumbent, or curate, had respectively a right
to insist on, with regard to the registration of baptisms, before the
passing of the above act, may equally be insisted on by either now.
As to the mode of registering births directed by that act, vide
tiU " RegUtration.'^
Name of Jt |g ^q enacted, by s. 24, that the name civen in baptism may
J*2^to ^ added to the registration. " If any child born in England,
Kgbterof whose birth shall have been registered, shall within six calendar
birth. months, next after it shall have been so registered, have any

^ ^86 Tit' ^*oi^ given to it in baptism, the parent or guardian of such
' ' child or other person procuring such name to be given, may
within seven days after such baptism, procure and deliver to
the registrar or superintendant registrar in whose custody the
register of the birth of such child may then happen to be, a
certificate according to the form of schedule G., to this act
annexed, signed by the minister who sliall have performed the
rite of baptism, which certificate such minister is hereby re-
quired to deliver hnmediately after the baptism, whenever the
I<M Jo same shall be then demanded, on payment of the fee of one
shilling, which he shall be therefore entitled to receive, and

minifter.

Baptifitttu 73

the said registrar or aaperintendant registrar upon the receipt R^gi^^rof*
of such certificate, and on payment of the fee of one shilling Ngneof
which he shall be therefore entitled to receive, shall, without btptum
any erasure of the original entry, forthwith register therein that *^^ ^
the child was baptized by such a name, and the registrar, (or binh!^ ^
by the amending act, 1 Viet. c. 22^ s.S,*' the registrar or su-
perintendant registrar, as the case may be,'^ shall thereupon
certify upon the said certificate, the additional entry so made,
and shall forthwith send the said certificate through the post-
oflSce to the registrar-general."

The form given in schedule 6. is as follows : " J. G. E.
vicar of B., in the county of K., do hereby certify that I have
this day baptized by the name of Thomas, a male child, pro-
duced to me by W. G., as the son of W. G. and R, G., (the
names of the father and mother,) and declared by the said W«
G., to have been born at M. in the county of M., on the 7th
day of April, 1837.-

Witness my hand, this 1st day of August, 1887.

W. G. Vicar, (a)

For this certificate the minister, is entitled to a fee of one Fee to

shilling. regwttar.

It must then be ascertained whether the register book in
which the birth was entered, is still in the possession of the
district registrar, or has been handed over to the superinten-
dant registrar; when this is known, it is required to deliver the
certificate to the district registrar or superintendant, which ever
has the actual possession of the register of the birth of the child,
and he will, upon payment of a fee of one shilling, fill up the last
column of the register of birth, with the name given to the child
in baptism ; but the certificate must be delivered within seven
days after baptism, and the child must be baptized within
six months of the registration of its birth. The district or su-
perintendant registrar will then fill up the last column of the
register book from the certificate delivered to him from the
minister, and will forward such certificate to the registrar-
general, having written his own certificate of the entry in the
register book in his possession, on the minister's certificate;
the following form for this additional certificate by the re-

(a) It is understood that the registrar-general has supplied books to
the parochial clergy, containing various forms for this certificate given
in schedule O., directing them also, that having filled up the blank form
of the certificate, they are to cut it out of the book, and deliver it ac-
cording to the direction at the foot of that certificate, leaving on the left
hand side of the book a margin, wherein they may, if they think proper,
insert the name and date to be kept for their own future reference.

74 Jtesftarli.

^^^^*^^' gistrar or superintendant, has been circulated by tlie registrar
Name of general.

J^"^» I — ;— hereby certify that the entry of the baptismal name of

Witness my hand, this day of 18

Registrar or

Superintendant registrar as the case may
be. 1 Vict. c. 22, s. 2.
It has been properly suggested that dissenters who do not use
infant baptism, as well as the society of quakers and jews, should
observe, that if the name be not given when the birth is re-
gistered, (or within the time Umited by the act for the re-
gistration of the birth), it can only be added to the register
upon a certificate of baptism, which must be administered
within six months from the registration of birth ; consequently,
all those denominations who do not use infant baptism, and
those who delay baptism for more than six months from the
birth, have no means whatever of adding the name of the child
to the original entry in the register. Bum on the Registration
Acts, p. 1.

Bastarti*

Bastardy.

1. General.

2. Special.

Bastards, Who are by the common law.

1. Those born before the marriage of their parents.

2. Issue of void marriages.

3. Of voidable marriages if set aside.

4. Bom after a legal marriage.

Parents divorced.
Impotenoy of the father.
Non access.

Cases upon that question.
Childrea of widows marrying again.
Period of gestation.
Writ de venire inspiciendo.
Bastard, Name of.

Property of.
Infant, custody of.

In Germany and with us, who derive much from the Germans,
bastardy was always a circumstance of ignominy. But in Spain,

BaflStarH. 75

Italy and Frunce^ia) bastards were in many respects on an
equal footing with legitimate children. Aguesseau, torn, 7, 881 ;
Co. LitU £43 a. noie^ 176. When the northern tribes colonized
the southern parts of Europe, they seem, in this respecti to
have adopted the habits of the countries they colonised, and not
to have adhered to their own: William the Conqueror, for
instance, describing himself, " coffnamento basiardus,* does not
appear to have considered that the circumstance attached any
ignominy to him ; formerly bastards were not allowed to bear
the arms of their father, but their bearing was crossed with a
bar from the left to the right, and this is still the case with the
natural sons of the king.

It has been said that the English law of Intimacy is founded
on the maxim of the civil law, that "paier eii quern nuptim de^
monttranty^ that however is only the language of the Digest, to
express a principle which derives its origin from the very first in-
stitution of marriage. So far indeed from our ancestors shewing
any inclination to adopt the principles of the civil or canon law
into their law of Intimacy, we know that when the bishops at
Merton " instanted the lords, that they would consent that all such

as were born afore matrimony should be legitimate, as well as

they that were born within matrimony, as to the succession of in-
** heritance, forasmuch as the church accepted such as legitimate,
" that all the earls and barons answered that they with one voice
^' would not change the laws of the realm which they have hitherto
*' used and accustomed.*' 20 Hen. 3, c. 9 ; 1 Inst.2\4. In the
saoie manner it appears from the reports of the cases in the
Year Books and early abridgments, that the distinction between
the common law and canon law, or law of the church, was never
lost sight of by the lawyers and Judges of that day, but constantly
pointed to with national, or at least professional pride.

Besides, this distinction was constantly kept alive by the General oi
different modes of trial in cases of general and special bastardy. 'P^^'* '
General bastardy was an issue depending on the fact or legality
of the marriage of the parents, and was tried before the bishop of
the diocese upon a king's writ, transmitting such issue for trial to
the ecclesiastical court. GodoL Ab, 589 ; 1 RolL Ab, 361 ; 2 H. BL
154. But special bastardy, which depended on matters of fact,

(a) And yet Millot records an instance where Robert of France, who
came to the throne in 996, and died in 1031, having given the abbey
of Thuri to his brother, the monks refused to receive him, because he
was the bastard of Hugh Capet, he was also opposed by the people, and
it was five years before he could surmount this feeling, which, the his-
torian remarks, as being more extraordinary, as bastards had then till
lately succeeded to the throne of France, and the bastard son of Lothair
had lately been made archbishop of Rheims. Millot Hist, de France^
1 torn. 230.

76 Baitarli*

General or unconnected with the existence or validity of the marriage, was
*S?^ — tried by a jury. 1 RoU. Ab.96\ 2 Inst. 99 ; Co. Litt. 245, a,
note 181. Before the statute of Merton, 20 Hen. 3, c. 9, the
party pleaded not general bastardy, but that he was bom out
of espousals; and the bishop ought to certify whether he was
born before espousals or not, and according to that certificate
to proceed to judgment according to the law of the land ; but
the prelates there answered that they could not to this writ
answer ; and therefore ever since, special bastardy, vis. wiiether
the person was bom before espousals, or after, hath been tried
in the king's courts, and general bastardy in the court chris-
tian. 2 Inst. 98 ; 1 Burns E. L. 128. And therefore if ge-
neral bastardy be pleaded in disability of the plaintiff, (as if it
be alleged that his parents were never accoupled in lawful
matrimony), the same shall be tried by the certificate of the
bishop, whether it be in a real or personal action ; but if the
marriage be confessed, and it be only pleaded that the
plaintiff was born at such a place before the marriage was
solemniased, and so bastard, this is a special bastardy, and shall
be tried by a jury. Bum's E. L. ibid. In a case in the
Year Book^ S9 Ed. S, Belknap^ Serjt. in argument, thus
states the law as understood at that time. " If one be born be-
fore marriage, and afterwards his father marry his mother, by
the law of the holy church he is mulier ; and by the law of
" this land it is ordained by statute 20 Hen. 3, that it shall be
" tried here without being sent to court christian ; and when he
** is born within espousals, although he was begotten by another,
** the law of this land will adjudge him mulier^ but by the
law of the holy church he is a bastard. Therefore, when
this court hath cognisance by the plea of the facts that he
was bom within espousals it ought to try the cause, and to
adjudge it according to the law of the land."
General bastardy may still be tried in the spiritual court.
Reeves^ Hist. C. L. 85, 201. See this question very fully
discussed in Ilderton v. Ilderton, 2 H. Bl. 145, and the nume*
rous authorities cited in that case.

But general bastardy may be tried by a jury when it is not
directly in issue ; 2 H. Bl. 145 ; or if it be alleged in a dead
person, or stranger in the action, or in an infant plaintiff or
defendant, or if pleaded in abatement, or as a justification
for slandering plaintiff with name of bastard. Com. Dig. tit.
" Bastard;' D. 2 ; Hob, 1 79.

Special bastardy is always tried by a jury. Com. Dig. ib.

With regard to ffeneral bastardy ; the question ought first

to be moved in the king's temporal courts, and thereupon issue

ought to be joined ; it ought then to be transmitted by the

king's writ to the ecclesiastical court to be examined and tried ;

tt
it
i€
€i

iSitftarli^ 77

GodoL Ab. 489 ; and if the ecclesiastical court undertake the ^^^^ «'
examination without express direction of the temporal court, 'P^^'* •
prohibition lies. 1 Roll. Ab. 361 ; Godol. Ab» 489.

The certificate must be under the seal of the ordinary, and
not under that of the commissary only, for the command is to
the bishop himself to certify. 1 Roll. Ab* 362. If a man be
certified a bastard, this binds perpetually ; but if a man be
certified mulier, no man is estopped to bastardiase him, for though
he may be a mutter by the spiritual law, yet he may be a bastard
by our law, and therefore any man, notwithstanding the certifi*
cate, may plead the issue of special bastardy. /6.

1 . By the common law a child is considered illegitimate if By th«
bom before the marriage of its parents. By the canon and J®™°»®«^

civil laws, children born before marriage are capable of being — '■

legitimated by the subsequent marriage of their parents, and Borabefort
such is still the law of Scotland. I)oe dem. Biriwhuile v. "*"**8«-
Vardell, 2 CI. * Fin. 571 ; 5 jB. * C. 438 ; 8 D. ^ R. 185;

and vide also 2 Myl. Sf K.513; 6 Bligh, P. C. 479. The same
doctrine prevails also with various modifications in France,
Germany, and Holland ; and it is a remarkable fact, that in
eleven of the United States, vix. Vermont, Maryland, Vir-
ginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky,
Missouri, Indiana, and Ohio, the rule of the civil law pre*
vails in opposition to the common law. 2 Rents Comm. on
American Law, 208.

But though the birth takes jplace so soon after marriage as
to show that the conception must have been ante-nuptial, yet
the legitimacy will not be affected, marriage being by the
common law the criterion of legitimacy. By the civil law if a
man married a woman with child, it raised the presumption
that it was his own ; our law adopts the rule, and considers him
as acknowledging by a solemn act that the child is his. 8 East,
193: lRoll.Ab.359.

2. If a child be born of a marriage void in law, vide lit. Bom of
" Marriage;' it is illegitimate. ^^^ "*'-

3. So if born of a marriage voidable when the marriage is Bo^' of
avoided ; but in such case if the marriage be not avoided by the Toidable
sentence of a court of competent jurisdiction during the lives of °>*f^H^
both the parents, it cannot be impeached afterwards, and con-
sequently the legitimacy of the children of such marriage cannot

be questioned. 1 Roll. Ab. 359 ; 2 PhUi. 16.

4. If the child be born after marriage and during coverture,
and the marriage be valid, then arises the question upon what
grounds a child so born can be bastardized. The general
principle of the old law was like that of the civil law, pater est
quern nuptia dtmonslrant, and consequently that a man could
not be a bastard who was bom after espousals, unless it were

Bas(tarli»

Parents
divorced.

Impotency
of rather.

ro^niaw' ^^^ Special matter, which special matter seems to have been
!_ divided into three heads : —

1 . Separation by sentence of divorce.

2. Impuberty or impotency, whether constitutional or induced
by injury or disease.

3. That the husband was absent out of the realm during the
period of gestation, or according to the language of the old
law, " extra quatuor maria.*'

1 . If a child is born after a legal divorce a mensd et tharo, it is
taken to be a bastard, for a due obedience to the sentence will
be presumed till the contrary is shown. 1 Salk. \2S;2P. Wms.
275, It may be questionable how far this principle is to extend,
where the child is born recently after the separation : in cases
of voluntary separation, the reason does not apply at all.

2. With regard to the impotency of the father, Lord Ellen^
borough said in /£. v. Luffe^ 8 Easty 193 : *' This conclusion
** may be drawn from all the cases, that where there is natural
** impossibility that the husband could be the father of the
'* child, whether arising from his being under the age of
" puberty, or from his labouring under disability occasioned by
" natural infirmity, these are grounds upon which the child's
" illegitimacy may be founded." 1 SaUc. 123; 3 P. Wms.275.

Nonaccess. Where the child is bom after marriage, the marriage legal,
and the husband not impotent, the law has undergone much
alteration, for the doctrine that in such a case a husband must
be shown to have been " extra quatuor maria,^' in order to
prove non-access, is now altogether exploded ; at the same time
it seems agreed that the evidence by which non-access is to be
shown must amount to clear and decided proof. But it does not
seem necessary to show the physical impossibility of access, if
from the whole circumstances of the case the court is satisfied
that sexual intercourse did not take place between the parties.

In the Banbury case, Nicolas on Adult, Bast, 460 ; Gardner
case^ App. 437, Lord Redesdale said, " I admit the law pre-
" sumed the child of the wife of A. bom when A. might have
" had sexual intercourse with her, or in due time after to be
the legitimate child of A. But this was merely considered
as a ground of presumption which might be met by opposing
circumstances;*' which opinion is cited and adopted by
Lord Lyndhurst, in his judgment in the case of Morris
V. Davis, Feb, 1830, reported in Nicolas on Adults Bast.
287 ; and by Alderson, B., in Cope v. Cope, post, 96. With
unfeigned deference for these high authorities, this proposition
seems to expand the law very widely, and to introduce a
dangerous uncertainty into the most important relation of
society. For admitting that the old doctrine of '' extra quatuor
" maria," was absurd, and justly exploded, and further, that it

is no longer necessary to show absolute and physical impos- Nonaccts^
sibility of personal access, if sufficient grounds for the moral
certainty of such personal non-access can be shewn. Still
it seems generally to have been considered, that if personal
access was not disproved, sexual intercourse would be inferred ;
but if personal access, as thus contra-distinguished from
sexual intercourse could be inferred, A/ortiori, if such personal
access were proved or admitted, sexual intercourse would
be presumed, and that such presumption from personal
access was not an ordinary presumption *' which might be met
by opposing circumstances," but was an inference which the
law itself drew, establishing as a rule that if personal access
took place, sexual intercourse would be presumed, however
improbable it may have been that it did in fact take place ;
unless indeed it was shewn, that it was physically impossible
that it could take place.

Besides, as asked by Lord Eldouy when commenting in Head
▼. Headf 1 Turn, 8^ Russ. 14*1^ pout, 94, on the resolutions of the
judges in the Banbury ctMe, ''What is satisfactory evidence that
'* there has not been sexual intercourse where there has been
'* personal access ? Is it to be proved from the circumstances of
'' the particular occasion that there was no opportunity for sexual
'' intercourse ; or by the evidence of persons present that it did
" not take place ? Or are you to go into all the evidence as to
" the conduct of the parties prior and subsequent to the interview
" in order to satisfy yourself of what took place when the inter-
** view was had V He proceeds, ** Whenever it is necessary to
" decide that question, great care must be taken, regard being
" had to this, that the evidence is to be received under a law
" which respects and protects legitimacy, and does not admit
'' any alteration of the status et conditio of parties, except on
" the most clear and satisfactory evidence.' If the first of tlie
above alternatives were adopted, namely, that from the circum-
stances under which the interview was had, there was no
opportunity for intercourse; or by the evidence of parties
present, that it could not in fact take place, then a strict and
plain rule is adopted, and the impossibility of intercourse being
shown, notwithstanding personal access may have been proved,
a jury would have sure ground to proceed on, and would not be
called on to speculate on probabilities. But neither Lord
Lyndhurst in Morris v. DavieSf posi^ 94, nor AldersoUf B., in
Cope V. Cope, I M, §• Rob, S75, post, 96j both of which cases
were decided since the above observations of Lord Eldon, have
so limited the rule, Alderson, B., telling the jury, '' But
" thirdly, even where the husband is shown to have had these
'' opportunities of access, and was not impotent, still this pre-
'' sumptional8o(ofsexual intercourse) may be rebutted; as where
" the wife is living in open and notorious adultery, and the

€4
€t
C<
it
€t

a
it

80 Basitarlr^

Nun access. " husband on one single occasion is shown to hare had access to
" her, and then at a time and under circumstances rendering it
'' extremely improbable that he availed himself of the oppor-
** tunity, those facts might perhaps be urged as a reasonable
ground for concluding that sexual intercourse did not take
place. The case of Morris v. Davies was decided on that
principle ; the lord chief baron, {qy. lord chancellor) coming
to the conclusion that the open adultery of the wife, and her
concealing the birth from the hushand, and other circum-
stances, led to the inference that no intercourse had taken
place between the husband and the wife.*' Such a doctrine
however, with submission^ seems reversing the order of proof,
and raising such a presumption of illegitimacy from the general
facts of the case that the mere evidence of personal access
cannot get rid of, unless the proof goes further and shows the
probability of intercourse. Besides, what is to prevent such a
principle from extending to the case of a wife living under the
protection of her husband; and from withdrawing the veil
which the law has thrown over the habits of domestic life ; if in
order to disprove paternity, a jury may be allowed to speculate
on what takes place at a single interview, why may they not
speculate on what takes place whilst the parties inhabit the
same house, a sufficient ground being first laid by proving a
total estrangement from nuptial intercourse and loose and

Erofligate conduct on the part of the wife ; if actual paternity
e the real object of inquiry, cases have arisen in which it might
be as satisfactorily disproved, where man and wife are living
under the same roof as where they are living apart. But the
question in all these cases seems to be, not whetner A. is the actual
son of B. according to the order and course of nature, but
whether he is the 'legitimate*' son of B., the son according to
law, that is, bom under such circumstances as the law appoints
to constitute legitimacy. This suggestion, however, is made with
doubt and diffidence, as it seems to be opposed to the last opinion
of the judges in the Banbury case. It is for the law to say what
those circumstances are to be ; any rule would be better than
no rule at all ; be the law ever so astute, and such investigations
as inauisitorial as possible, there will still be spurious heirs, for
actual paternity can never be ascertained ; why therefore may
not the broad and intelligible principle as recognized by Lord
EUenborough in /2. v. Luffe^ 8 East, \9S,postf 88, and viile
Routledge v. Carruthers, post^ 86, " the impossibility of the hus-
*^ band being the father of the child'* still be adhered to. Can the
husband complain ? If he continues to harbour an adulterous
wife, the law denies him any inquiry into the paternity of
children bom during cohabitation ; so if he marry a woman
pregnant, the law tells him he has adopted the child ; what
peculiar claim then can he have if he condescend to visit an

a p]Y>fligate and separated wife, not even taking tlie precaution Nonaccew,
Co protect himself by evidence to guard such an interview from
any taint or suspicion. Pasiy 86. Nor can the next heir complain ;
for he being the creature of the law without moral or natural
right, must take the benefit conferred by the law subject to
such contingencies as the law may choose to attach to it.

But the law on this point is by no means -firmly and satisfac-
torily settled, as the cases which follow shew, for assuming
that the opinions of the judges in the case of the Banbury
peerage contain the rule of law; although, as said by Lord Eldan^
post 93, " they are not to be considered as judicial decisions," still
from the nature of those opinions given on supposed cases, there
is great difficulty in applying them practically. Lord Lyndhurat
indeed, in the case of Morris v. Davis, said that the opinions
of the judges in the Banbury case contained '* no new law," and
Sir J. Leach, in Head v. Head, post, 93, said " the ancient
" policy ofthe law of England remains unaltered." If that be 80»
then the ])rinciples of Uie law must be searched for in those
cases which have succeeded Pendrell v. PendreU, posi, 83, that
being the case in which it was agreed by the court and counsel
that the ancient, and confessedly absurd doctrine of the *' quatuor
maria,^^ should not take place. Most of the subsequent cases
are given in chronological order, with the important portions
of the judgments.

It has been said that Lord Coke, when he stated '' that if the
husband were within the four seas, the legitimacy of the son
could not be disputed, made the law and did not declare it."
Lord Redesdale^s speech on the Banbury case, Nicolas*s Adult.
Bast. 461 ; Gardner case, 437 » But it appears by tlie
Year Books, 4S Edw. 3, pi. 5, p. 19, 20; 7 Hen. 4, pi. 13, p. 9;
1 1 Hen. 4, pi. 30, p. 14; 18 Hen. 6, pi. 3, p. 32, 34; 19 Hen. 6,
pL S8« p. 17, and the case of Done and Egerton v. Hinton and
Siariie, RolL Ab. 358, all decided before Lord Coke published
the first Institute, that whether the law were absurd or no, he
did not make it. The cases of Foxcroft and Radwell have been
added to the above series; those cases having been cited by high
authorities to show that even at an early period '^ the pre-
sumption of real issue was always open to discussion, centuries
before Pendrell v. Pendrell had exploded the doctrine of the
extra quatuor maria.** It is humbly attempted to show that
those cases do not apply.

Foxcroffs is the earliest case of legitimacy reported in the Foxcroft's
books, 10 F^dw. 1 ; 1 liolL Ab. 359, which case has been much ^^^^
cited; but it seems that the point of that case could not
turn, as has been supposed, on the husband's having begotten
or not begotten the child, but solely upon the invalidity of the

82 BafiStarto.

Non access, marriage of the p«irents. The case was this, R. A., being ill
Foxcroft's '" '''®^» ^^^ married privately to A. not in any church or chapel,
case. and without celebration of mass, " le dit A. adonque pregnant

" del dit R. et puis deins 12 semains puis le manage le
'' dit A. fuit deliver de un fitz, et adjudge un bastard." Sir
Harris Nicolas^ AdulL BcuL 30, 557, reads the words
'^ pregnant del dit R.,'* "pregnantly the said R.," and cites
the case of del Helthy 34 Ed. 1 ; AdulL Bast 567, from the
Harleian MSS. 21 17, foL 339, to prove that such a marriage,
not being in facie ecclesia^ was then invalid by the common
law, f id, '* Marriage,'* post. It seems indeed that the words
'* del dit R." can have no meaning at all, unless they have the
meaning thus ascribed to them, and that the particularity with
which the omission of religious observances is noticed seems to
indicate that the insufficiency of the marriage ceremony was
the real point in the case. The translation of this case in Fin.
Abr. East. B. 18, accords with that given by Sir H. Nicolas,
it being ** the said A. being then big by the said R." There
is indeed no other R. but the husband mentioned.

Besides, it seems to have escaped observation, that as the
woman was with child when married, no inquiry could have
been had with reference to its paternity; it being a settled rule
of law now, and certainly was at the period when Fojccroffs case
was decided, that if a child were born in wedlock, though but a
day after the marriage of its parents, such child is deemed
legitimate. Indeed Lord EUenborough himself, in the very
case of JR. v. Lvffe, in %vhich he cites Foxcroffs C€$se as an
instance, that at an early period our law permitted evidence to
be given to repel the legal presumption that the husband was
the father, although he was not beyond the four seas during the
gestation, alludes to this very principle, saying, *' With respect
*' to the case where the parents have married so recently before
'' the birth of the child, that it could not have been begotten
** in wedlock, it stands on its own peculiar ground. The mar-
riage of the parties is the criterion adopted by the law in
cases of ante-nuptial generation, for ascertaining the actual
"parentage of the child. For this purpose it will not inquire
" when gestation began, looking only to the recognition of it by
*' the husband, in the subsequent act of marriage." Now
FoxcToffs was this very case, and therefore upon the authority
of the noble lord himself, the inquiry in that case could not
have had reference to the question of access and paternity, and
the decision must have been limited to the irregularity and in-
validity of the marriage. The view taken of Foxcrofts case
by Lord Ellenborough is also adopted by Lord Eldon, in his
speech on the Banbury peerage case, but neither seem to have
looked at the case as translated in Viner^s Abridgment^ or to

have taken into consideration the fact that the woman was Nonaccw^
with child when the marriage was had.

The next case in point of time which is said to bear on Radwdt's
this subject is that of Radwett, 18 Ed. 1 ; Co. Liit. 123 b, <^*
Hargrove's note, 190; Hale's MSS. ib. f 1 BoU. Ab. Sfi6, in
which the jury found that the child was bom eleven days
after the lawful time allowed by the custom of England for
parturition, and could not therefore be held to be the son
of tlie deceased husband ; this however was the case of a post-
humous child, and the question turned on the period of gesta-
tion ; in such a case the heir would have been entitled to a writ
de venire inspidendo, to have ascertained whether the widow
was with child at her husband's death; or if a question had
arisen between him and her, an issue might have been had on
the fact of her pregnancy, but no issue could have been had
as to the paternity of the child, as appears by a case in the
Year Boot, 4& Ed. 3, pL 9, p. 11, where the question arose
upon a right of dower, the tenant pleaded ^' that the demandant
'' kept the charter of the land from him, who was the brother
" and heir of the baron ;" the replication was, ** that she was
" then pregnant of one who would be the heir, and issue was
^'tendered that she was not with child by her husband on the
** day of his dying." But Thorpe, C. J., said, ** you cannot have
** such an issue to bastardize the child," therefore issue was
taken generally whether she was with child on the day of the
decease of her husband.

PemdrM v. PendreU, 2 Sira. 9S5, is, as stated above, the Pendrell ▼.
earKest of the series of cases bearing upon this question, it Pendrell.
being the first in which the old dictum found relative to the
" qsuUmor maria,** was exploded. Upon an issue to try whether
the plaintiff was heir-at-law of one Thomas Pendrell, it was
admitted that the plaintiff's father and mother were married,
and cohabited together for some months ; that they parted, she
staying in London, and he going into Staffordshire ; that at the
end of three years the plaintiff was born, and there being some
doubt upon the evidence, whether the husband had not been
in London within the last year, it %vas sent to be tried. The

Elaintiff rested at first upon the presumption of law in favour of
^gitimacy, which was encountered by strong evidence of non-
access ; and it was agreed by court and counsel, on the trial at
Guildhall before Lord Chief Justice Raymond, that the old
doctrine of being within the four seas, was not to take place,
but the jury were at liberty to consider of the point of access,
which thev did, and found against the plaintiff. The Chief
Justice allowed the defendant to prove the mother to be a
woman of ill fame. Salk. 120 ; Cro. Jac. 541. But he would
not allow the mother's declarations to be given in evidence till

a 2

2as(tar)i.

NoQ access.

Peadrell v.
Pendreil.

Lomax v.
Holmden.

Do€ dem.
Goodright
V. Saol.

((

she bad been called and denied them upon the cro8s-examitia««
tion. This is the report of the case in Strange's ReporU* The
jury without going from the bar found that the plaintiff was a
bastard, and the chief justice commended their verdict.

Sir William Wynne^ in Smyth v. Chamberlayne^ post 85, said»
that *' the king's advocate produced a fuller note of the evi«
" dence in Pendrellv, Pendrell, hy which it appeared that some
of the witnesses swore that they saw the husband in London,
and that the wife herself swore, on being examined, that
her husband had actually lain in bed with her several times
*' about the time of the pregnancy, but it clearly appears
^* that those witnesses were utterly discredited, for it is stated
** that there was evidence given to the court, that the husband
** was a man subject to fits, that he was constantly watched on
*^ that account, that he had never been absent from his house in
'' Staffordshire more than a night at a time, and it was impossible
** that he should have had access to his wife."

In Butter's N, P. cited by counsel in the Gardner casCf 968,
a note is given of this case, stating that the chief justice told
the jury, that the old maxim of presumption " extra quatuor
'' maria" was exploded; that the evidence was the same in this,
as in all other cases ; that probable evidence was sufScient, and
that it was not necessary to prove access between the parties
to have been impossible.

In the next case, Lomax v. Holmden, Rep. temp. Hardw,
140, which occurred in Michaelmas term, 6 Geo, 2; it was held
also, that the husband's absence from the realm was not the
only evidence by which that presumption of access could be
rebutted. In ejectment, the question on a trial at bar was,
whether the lessor was son and heir of Caleb Lomax, Ssq.
deceased. The mother's marriage being fully proved, and evi-
dence given of the husband's being frequently in London, where
the mother lived, so that access must be presumed, the defen-
dants were admitted to give evidence of his inability, from a bad
habit of body. But their evidence not going to an impossibility,
but an improbability onlv, that was not thought sufficient, and
there was a verdict for the plaintiff*.

In Goodright dem. Thomson v. Saul, 4 T. R. 356, the hus-
band, whose name was Kilburn, lived with his wife some time at
Norwich without having children ; he then lef); Norwich, and
was supposed to have gone to London ; the wife then lived
with a man named Hales publicly as his wife at Norwich, and
had one son, born during the time she and Hales Hved together,
called Joseph, who was always considered in the family as a
bastard, and always went by the name of Hales, as did his des-
cendants. The wife's father called his daughter Elizabeth
Hales in his will, though she was buried by her husband's
name. Asharst, J., told the jury that it was not absolutely

iSattUrli. 85

neceMary to prove the husband out of the realm, in order to N<m>cc«i>.
bastardise the issue, yet it was incumbent to prove that the hus* Doedem
band could not by any probability have had access to his wife, Goodright
at the time, which he conceived had not been shewn. The jury ^* ^^^'
found that Josepli Hales was the legitimate son of the husband
Kilbum. On application for a new trial the same learned judge
said, there ought to be a new trial, that be had laid too much
stress on the necessity of proving non-access, when the husband
was within the realm, by witnesses who could prove him resident
at a distance from his wife ; and that there was no direct evidence
of access, was very clear. On this case it is to be observed,
diat the marriage took place in 1715, the trial in 1790, so
that it would have been almost impossible to prove non-access
in the ordinary way, and the case was thrown back upon the other
circumstances which certainly were very strong.

Smyth v. Chamberlaffne, Arches 1772; Gardner case, 353, smytbT.
Nicolas on AduU. Bast, 147 John Newport was the son of Chamber-
Ann Smyth, wife of Ralph Smyth, and was bom whilst his ^^^*
mother (being separated from her husband) was living with
LfCnrd B. as his mistress; he was bred up and educated by
that nobleman as his son, inherited a large fortune from
hit reputed father, and assumed the name of Newport,
nnder an act of parliament. Ralph Smyth had been separated
from his wife some years before the birth of Newport, and
they continued to live apart ever after, he living obscurely
in Holbom; she in an expensive establishment at the west
end of London and Hammersmith; they had had interviews
respecting an annuity, but none within a considerable time
of Newport's birth; of Newport, Ralph Smyth was never
known to take the slightest notice, and he sank into a mental
disorder, to whkh two brothers of Lord B. had fallen victims,
and he was placed by the court of chancery under the care of
members of Lord B.*s family ; Ralph Smyth allowing the court to
act,asif no doubtexisted as to his illegitimacy. Sir W» WynnesdkA^
in giving lodgment, ** the law of England as now settled, I take
'' to be this, that if such proof can be given of whatever kind as
'' shall satisfy legally the mind of the court, that the husband
** bad no access to the wife at the the time when the child must
** have been begotten, the child is a bastard ; but if the husband
** and wife were so circumstanced, that access between them
** must be presumed, as if they lived in the same town or place,
{sed. vid. Bury v. PAilpot, post 97), " and it cannot be proved
** by persons who watched ttiem never to have come together, or
*^ direct evidence can be had, that they had access to each
'' other; in such a case I take the child to be legitimate, notwith-
*' standing any circumstantial evidence that may be given to the
*' contrary.** Having gone through the evidence, the learned
judge thus speaks of the statements of the husband and wife.

8ti

2as(tiirtr.

Smyth V.

Chamber-

layne.

Routledge
V. Carru-
then.

€t

t(
it
a

Konacoesa. tending to shew the illegitimacy of the child. " This disavowal
by the father and mother, was not, I conceive, such as by law
they were allowed to make ; Lord Mansfield says, the law of
England is clear that the declaration of a father and mother can-
'' not be admitted to bastardize the son bom after marriage ; and
this is a rule, notwithstanding what has been said of it, which
in my opinion is entitled to the utmost deference, not only from
the authority which belongs to every thing delivered by that
great judge, but from its conformity with the earlier decisions,
and its tendency to preserve order, and to prevent confusion
in the descent of property and the administration of justice.
' It is a rule not only oi the law of England, but of the 47th
title. It may, at first sight, appear oppressive to the husband,
'' but we should recollect that a husband, who is injured by his
" wife, may obtain a separation from her, and thereby escape all
danger of a spurious progeny. If a husband connives at his
wife living with another person, he exposes himself to the
" consequences of such baseness, and access must be presumed
*^ in the absence of proof to the contrary. This is not the only
" case of a similar nature in which the law rejects evidence op-
** posed to a presumption, though such evidence shall amount
** altogether to full proof. If a woman big with child by A. be
married to B., it is clear that the latter becomes the legal father.
Let no one reproach the law, the rules it has laid down have
been wisely framed for the security of families, for the proteo-
*' tion of marriages, and for the general extension of public con-
" venience. It is an evil inseparable from human institutions
if, in particular circumstances and to particular persons, they
may operate to mischief." .... '' Upon the whole I am of
opinion, that from the proofs in the cause the mother of the
" deceased must be presumed to have had access to her husband
at the time she became pregnant of the deceased, and con-
sequently must be considered to have been legitimate and
" not a bastard."

Routledge v. Carruihers, 1806 ; Gardner case^ 343 ; 4 Doir.
P.C, 395 ; Nicolas Adult Bast, 155. Mr. Carruthers married a
Miss M. ; nine years after the marriage she was discovered in an
adulterous intercourse with several individuals of a very low rank.
Mr. C. was often obliged to be abroad on business, and in the be-
ginning of the month of August, 1740, left his home, and did not
return to it till the following November, during which time he
and his wife continued always apart. It was on Mr. Carruthers'
return to his house in November, that he received the intimation
of his wife's infidelity and its consequences, as he discovered
that she was now for the first time pregnant, a separation
took place and proceedings were instituted for a divorce ; but
before it could be obtained, the wife was delivered of a daugh-
ter on the S8th May, 1741. The child was put out to nurse

a
it
it

a
it

ISafiCtarli. 87

by Mr. C, and called Robson, and it was upon its legitimacy Nod acccw.
that the question arose in the court of session, in Scotland* Roatledge
The lord president Blair , (the other judges declaring or ac- ▼. Cami-
quiescing in the same principles in their respective judgments) ^®""
having stated the case, ohserved, ^4t being proved that this child
*' is the child of Mrs. Carruthers, the proof stops, as it must in
every case, for it cannot go further. It is proved that during
marriage she was delivered of this child, and in place of pur-
suing further, the pursuer refers to the legal maxim, which I
** say is the foundation of every man's birth and status; his
birth is a fact which may be proved by witnesses, but the con-
ception is a fact which never can be proved, and he there-
*' fore stands in the same situation as every other person pos-
** sessing the legal character of legitimacv. He proves that he
" is born of this lady, and having proved this the law takes him
under its protection, and says * pater est quern nuptice demons
strant.^ It refers to a plain and sensible maxim, which is the
** comer stone, the very foundation on which rests the whole
" fabric of human society. It is said this lady was not correct,
** but does that take away the legal presumption ? is a man to
'* stand trial for his mother's delinquencies ? Lord Stair ^ that
** oracle of the law of Scotland, says, that the presumption holds
" in everycase, unless you can prove the impossibility of connec-
^' tion. Though he seems to ridicule the idea that prevailed
** on the other side the Tweed, that there must be an entire
separation between the parties, and that the sea must be be-
tween, them." The daughter was pronounced legitimate-
On appeal to the house of Lords, the judgment was affirmed by
Lord Eldon, who directed the cause to be remitted on other
points, but concurred with the court below, that the legitimacy
of the daughter " stante tnatrimonio'^ must be presumed.

B. yf. Luffe, 8 East, 193, 1807, the wife of a mariner, was R.v.Luflc.
delivered of a male child on the 13th July, 1806. The husband
had been beyond seas, and she did not have access to him
from the 9th April 1804, till the 29th June 1806— fifteen days
before the child was born. Lord Ellenborough, said " from all the
*' authorities, I think the conclusion may be drawn, that circum-
" stances which shew a natural impossibility that the husband
could be the father of the child, whether arising from his being
under the age of puberty, from his labouring under some natural
infirmity, or from the length of time elapsed since his death, are
grounds on which the illegitimacy of the child may be founded ;
and therefore, if we may resort to all such impediments, arising
from the natural causes adverted to, we may adopt other
causes equally potent and conducive to show the absolute
'' physical impossibility of the husband being the father; I
" will not say the improbabiUty of his being such, for on the

II
II

u
ti
II
II

88 Sasftarli.

Naaacceai, « gr<nutd of improbability , however strohg^ I will not venture to
" proceed.*'

Le Blancy J., in concluding his judgmcDt, said, ^' Where it
" can be demonstrated to be absolutely impossible in the course
** of nature that the husband could be the father of the child,
** it does not break in upon the current of authorities, to say
** that the issue is illegitimate. If it do not appear but that he
** might have been the father, the presumption of law still holds
** in favour of legitimacy."

Boughton Boughton V. Boug/iton, Middlesex Sittings^ K, B. 1807 ;

V. Bough. Nicolas on Adult. Bast. 178, 603; Gardner case, 470; Bough-

^^' ton y. Sandilands, 3 Taunt. 342. Salome Kay left her hus-

band in 1774, and became mistress to Sir £• Boughton, and
continued to live under his protection and at bis expense, and
ceased to hold intercourse with her husband or to bear his
name, but resumed that of Davis her maiden name; in March
1778 she was delivered of a daughter, who was baptised and
registered by the name of ^ Eliza, daughter of William and
** Salome Davis," William Davis the broUier of the mother was
a servant of Sir £• B. Sir £. B* brought up and educated Eliza
as his child, and by his will devise4 considerable estates to her
and her issue, by the description of his '^ daughter Eliza,"

Erovided she married with the consent of guardians, and her
usband took the name of Boughton. Guardians having been
appointed by the court of chancery, she was mariied with their
consent by license. Doubts were afterwards entertained on the
legality of this marriage, on the ground that Miss Davis could
not be an illegitimate child. Kay, the husband of the mother,
having been alive at her birth, and therefore her legal father,
and the only person qualified to consent to her marriage. The
court of chancery directed an issue on the validity of the mar*
riage, the only question in which was, the legitimacy of Miss
Davis, the jury found her legitimate, and it would seem the
parties acquiesced in the verdict. The circumstances of adop-
tion by Sir E. B. were strong, but no account seems to have
been given of the husband, nor of the opportunities he had
to communicate with his wife notwithstanding the separation.
Before any other case arose upon this subject the Banbury
pe«nig6^ P^^ogc cose was heard on a petition presented in 1806, and the
caie. following opinions of the judges were given in 1811, reported

at the end of the case of Head v. Head, 1 Sim. ^ Stu. ISO.

The questions put to the judges by the house of Lords and
the answers thereto were as follow: —

Ist. " Whether the presumption of legitimacy, arising
from the birth of a child during wedlock, the husband
and wife not being proved to be impotent, and having op-
portunities of access to each other during the period in

Matutti, 89

which a child could be begotten and born in the coarse of Konaccen.
nature, can be rebutted by any circumstances inducing a r~r
contrary presumption. pAras7

The lord chief justice of the common pleas stated that it was cave.
the unanhnous opinion of the judges,

" That the presumption of legitimacy arising from the
birth of a child during wedlock, the husband and wife not
being proved to be impotent, and having opportunities of
access to each other during the period in which a child
could be begotten and bom in the course of nature, maybe
rebutted by circumstances inducing a contrary presumption
and gave his reasons.

2nd. '< Whether the fact of the birth of a child from a
woman united to a man by lawful wedlock, be always, or be
not always, by the law of England, primd facie evidence
that such a child is legitimate : and whether in every case
hi which there is /irfi»dyacitf evidence of any right existing
in any person, the onus probandi be always, or be not at
ways, upon the person or party calling such right in ques-
tion. Whether such primd facie evidence of legitimacy
may always, or may not always, be lawfully I'ebutted by
satttfiictory evidence that such access did not take place
between the husband and wife, as by the laws of nature is
necessary, in order for the man to be, in fact, the father of
the child ; whether the physical fact of impotency, or of
noiwurcess, or of non-generating access, (as the case may
be,) may always be lawfully proved, and can only be lawfully
proved, by means of such legal evidence as is strictly ad-
missible in every other case in which it is necessary, by the
laws of England, that a physical fact be proved."
The lord chief justice of the common pleas delivered the
unanimous opinion of the judges upon this question as
follows : —

'' That the &ct of the birth of a child from a woman
united to a man, by lawful wedlock, is, generally, by the
law of England, primd facie evidence that such child is
legitimate.

" That in every case in which there is primd facie
evidence of any right existing in any person, the onus pro-
bandi is always upon the person or party calling such
right in question."

" That such primd facie evidence of legitimacy may
always be lawfully rebutted by satisfactory evidence that
such access did not take place between the husband and
the wife, as by the laws of nature is necessary, in order for
the man to be, in fact, the father of the child.

case.

90 2aa(tar]i.

Non access. « That the physical fact of impotency, or of non-access,

Baobury ^^ of non-generating accessi as the case may be, may

peerage always be lawfully proved by means of such legal

evidence as is strictly admissible in every other case in
which it is necessary, by the law of England, that a physical
fact be proved.

3rd. ** Whether evidence may be received and acted
upon to bastardize a child born in wedlock, after proof
given of such access of the husband and wife, by which,
according to the laws of nature, he might be the father of
such child, the husband not being impotent, except such
proof as goes to negative the fact of generating access.

4th. '' Whether such proof must not be regulated by
the same principles as are applicable to the legal establish-
ment of any other fact.''
In answer to the said questions, the lord chief justice of the
common pleas delivered the unanimous opinion of the jadges
on the same, as follows : —

^* That, after proof given of such access of the husband
and wife, by which, according to the laws of nature, he
might be the father of a child, (by which we understand
proof of sexual intercourse between them), no evidence
can be received, except it tend to felsify the proof that such
intercourse had taken place.

" That such proof must be regulated by the same prin-
ciples as are applicable to the establishment of any other
fact.

" 5th. " Whether evidence may be received, and acted
upon to bastardize a child bom in wedlock, after proof
given of such access of the husband and wife, by which,
according to the laws of nature, he might be the father of
such child, the husband not being impotent, except such
proof as ffoes to negative the fact of generating access.

6th. ''Whether such proof must not be regulated by
the same principles as are applicable to the legal establish-
ment of any other fact."
In answer to the said questions, the lord chief justice of the
common pleas delivered the unanimous opinion of the judges
on the same, as follows : —

** That proof given of such access of the husband and
wife, by which, according to the laws of nature, he might
be the father of a child, (by which we understand proof
of sexual intercourses between them,) no evidence can be
received, except it tend to falsify the proof that such in-
tercourse had taken place.

" Such proof must be regulated by the same principles
as are applicable to the establishment of any other fact.

7th. " Whether, in every case where a child is born in A^K™**
lawful wedlock, sexual intercourse is not, by law, pre- ^ ^'
sumed to have taken place after marriage; between the Banbwy
husband and wife, (the husband not being proved to be ^^^
separated from her by sentence of divorce), until the con-
trary is proved by evidence sufficient to establish the fact
of such non*access, as negatives such presumption of
sexual intercourse frithin the period, when, according to
the laws of nature, he might be the father of such child.

8th. ^' Whether the legitimacy of a child born in lawful
wedlock, (the husband not being proved to be separated
from his wife, by sentence of divorce,) can be legally
resisted by the proof of any other facts or circumstances
than such as are sufficient to establish the fact of non-
access, during the period within which the husband, by
the laws of nature, might be the father of such child ; and
whether any other question but such non-access can legally
be left to a jury upon anv trial, in courts of law, to repel
the presumption of the legitimacy of a child so circum-
stanced."
The lord chief justice of the common pleas delivered the
unanimous opinion of the judges upon the same, as follows: —

'' That in every case where a child is bom in lawful
wedlock, (the husband not being separated from his wife
by a sentence of divorce,) sexual intercourse is presumed
to have taken place between the husband and wife, until
that presumption is encountered by such evidence aa
proves, to the satisfaction of those who are to decide the
question, that such sexual intercourse did not take place
at any time, when, by such intercourse, the husband could,
according to the laws of nature, be the father of such
child.

'' That the presumption of the legitimacy of a child born
in lawful wedlock, (the husband not beinff separated from
bis wife by a sentence of divorce,) can only be legally re-
sisted by evidence of such facts or circumstances as are
sufficient to prove, to the satbfaction of those who are to
decide the question, that no sexual intercourse did take

Elace between the husband and wife, at any time, when,
y such intercourse, the husband could, by the laws of
nature, be the father of such child. Where the legitimacy
of a child, in such a case, is disputed, on the ground that
the husband was not the father of such child, the question
to be left to the jury is, whether the husband was the father
of such child, and the evidence to prove that he was not
the father, must be of such facts and circumstances as are
sufficient to prove^ to the satisfaction of a jury, that no
sexual intercourse took place between the husband and

3Ba0tarli.

Nod aocMs.

Banburjr

peerage

case.

Hetdv.
Head, be-
fore vice-
chancellor.

wife at any time, when, by such intercoursei the husband
could, by the laws of nature, be the father of such child.

" The non-existence of sexual intercourse is generally
expressed by the words ' non-access/ of the husband to
the wife, and we understand those expressions, as applied to
the present question, as meaning tlie same thing ; because,
in one sense of the word * access,' the husband may be
said to have access to his wife as being in the same place
or the same house ; and yet, under such circumstances, as
instead of proving, tend to disprove, that any sexual inter-
course took place between them."
As to the principles upon which questions of this kind are
submitted to the judges by the house by Lords, and the degree
of authority and weight to be attached to them, vide the fol-
lowing case of Head v. Head.

The first case that occurred after the answers of the judges
to the questions put to them in the Banbury peerage case^ ia
that of Head y. Head, I Sim. ^ Siu. 150. The fact^ were
shortly these ; William and Elizabeth Head were married in
1795, and in consequence of the drunken habits of the husband,
separated in 1797. The wife went to reside with her uncle,
Thomas Randall, whose son, James Randall, lived in the
house. William Head was in the habit of visiting hi^i wife
whilst she resided here, and the last interview between them
was in July or August 1798, when they were alone in the
kitchen for some time. Elizabeth Head became pregnant, and
left her uncle*s on the 7th May 1799. The plaintiff* was born
and was baptised by the name of James, the son of William
and Elizabeth Head. WilUam Head died in 1800, and in 1806
Elizabeth Head married James Randall ; after the marriage of
the mother, the plaintiff was sent to school by the name of
James Randall, and he subsequently used and was known
by that name, but there was no evidence of any familiarity
having passed between James Randall and Elizabeth Head,
up to the time of her leaving the house of Thomas Randall.
The vice-chancellor. Sir J. Leach, directed an issue upon the

Juestion of the legitimacv of the plaintiff, James Head, or
Landall. It was tried berore Burrough, J., who laid down the
law to the jury in the language of Lord EUenborough in R. v.
Luffe, that where a child is born of a married woman, the hus-
band is presumed to be the father, unless physical impossibility
of his having begotten it be shewn.
The jury found for the legitimacy.

A motion for a new trial was moved for on the ground of a
misdirection ; but it was ordered to stand over till an authentic
copy of the opinions of the judges in the Banburv peerage case
could be obtained. Afterwards the vice-chancellor refuused a

€t
€€

€1

new triel, on tlie ground that he was satisfied wkh the verdict, Nod—c<m>
but admitted that the rule laid down by the judge from iR. v. n^g^ ^,
Lffffcy could not be reconciled with the opinions of all the Head. be»
judges in the Banintry cfuse, and made the following general '<>re vie*
obserTations : " The ancient policy of the law of £ngland re- ^ " ®'*
" mains unaltered : a child born of a married woman is to be
'^ presumed to be the child of the husband, unless there is evi-
'* dence which excludes all doubt that the husband could not be the
^* lather. But in modern times the rule of evidence has varied ;
'' formerly it wasconsidered that all doubt could not be excluded,
" unless the husband were extra quatuor maria. But as it is ob-
vious that all doubt may be excluded from other circumstances,
although the husband be within the four seas, the modem practice
permits the introduction of every species of legal evidence tend-
ing to the same conclusion. But still the evidence must be of a
nature to exclude all doubt, and when the judges in the Ban--
" bury case spoke of satisfactory evidence on this subject, they
"must be understood to have meant such evidence as would be
" satisfactory, having regard to the special nature of the sub-
ject* It is to be deduced as a corollary from the opinions of
the judges in that case, that whenever a husband and wile
" are proved to have been together at a time when, in the
"order of nature, the husband might have been the father of
" the child afterborn, if sexual intercourse did then take place,
*" it was to be presumed primd facie that it did, and that it was
" incumbent on those who disputed the legitimacy, to disprove
" tbe fact of intercourse having taken place by evidence of cir*
** cumslances which afford irresistible presumption that it could
" not take place, and not mere evidence of circumstances which
** might afford a mere balance of probabilities.'*

Against this refusal of a new trial the other party appealed to Head t.
the chancellor* 1 Turn. ^ Russ» 139. After some observations Head, lie-
on tbe case of R. v. Lttffe, Lord Eldon said : " The case of the ^^^^^^
Banbury peerage was decided after great consideration. But cellor/°"
it is well known that the questions proposed to the judges by the
house of Lords, though made to approximate so nearly to the
" questions to be determined as to enable the house to form a
judgment on the case actually before it, cannot be the very
questions which the house is called on to decide. The answers
given by the judges, therefore, although entitled to the greatest
respect as being their opinions, communicated to the highest
tribunal in the kingdom are not to be considered as judicial
decisions ; but in that case of the Banbury peerage I take
** them to have laid down so as to give it all the weiglit which
" will necessarily travel along with their opinion, although not
" a judicial decision ; that where access, according to the laws
"of nature, by which they mean, as I understand them, sexual
intercourse has taken place between the husband and his

ti
it
a

iUi0tar)v«

Head V.
Head, be*
fore lord
cliaocellor.

Morris v.
Davis.

€t

NonacceCT. « ^jfe^ the chiM mu8t be taken to be the child of the hus-
" bandy unless on the contrary it be proved that it cannot
'' be the child of that person. Having stated that rule they go
on to apply themselves to the rule of law where there is per-
sonal access, as contradistinguished from sexual intercourse ;
on that subject I understand them to have said that
'' where there is personal access under such circumstances, that
** there might be sexual intercourse, the law raises the pre-
" sumption that there has been actually sexual intercourse, and
'* that that presumption must stand till it is repelled satisfac-
" torily by evidence that there was not such sexual intercourse.
" What is satisfactory evidence that there was not such sexual
** intercouse is a question which may be put in two points of
** view. First, is it meant that it must be proved from circum-
** stances which took place at the time that personal access,
" which might or might not give an opportunity of sexual inter-
** course, was had i or by the evidence of persons present that
sexual intercourse did not take place ? or secondly, that yoa
are to go into all the evidence of the conduct of the parties
prior to the interview in which personal access was had ; and
'* their conduct after their interview, in order to satisfy yourself
by the evidence of circumstances, both previous and subse-
quent to the interview, what did or did not pass when that in-
** terview was had ? Whenever it is necessary to decide that
*' question great care must be taken, regard being had to this,
" that the evidence is to be received under a law which respects
and protects legitimacy, and does not admit any alteration of
the status et conditio of any person except upon the most
** clear and satisfactory evidence. It does not appear to me to
'' be necessary now to ascertain what is the actual rule of law
** on the subject ; upon my recollection of the Banbury ease, it
'^ was the opinion of the judges, that where personal access is
'* established, sexual intercourse is to be presumed, and that that
** presumption must stand till done away with by clear and satis-
** factory evidence ; whether that evidence apply directly to the
period at which personal access was proved, or whether it
may be called satisfactory if it apply not to that period, but
to antecedent or subsequent periods, in one way or other the
'^ rule must be established/' (a)

Morris v.DavieSf Nicolas on Adult, Bast, followed shortly after*
In 1778, Mr. Morris married Miss Gwynne; in 1781 she had a
daughter, who afterwards married Mr. Davis, and was a de-
fendant in the cause. In consequence of an apparent fondness
for a servant named William Austin, Mr. Morris parted from
his wife in 1788, and retired to an estate called Argoed, where

€t

it
tt

'tt

(a) But see the speech of Lord Eldon in the Banbury case; Gard^
ner case^ 490.

Badtarli^ 95

be lived in seclusioii tiil his death. Imtnedwlely on the lepa- ^o"
ration, Mrs. Morris settled at Llanfair, where she lived in Mom t.
ahnost open adultery with William Austin, and in 1793 was Datis.
deliverea of a son, who was taken secretly by Austin to his
own family, who were in low circumstances. The baptism of
the child was registered as '* Evan Williams, a base-bom child."
Austin's family brought him up under the name of Austin,
treating him as the child of their son, by whom all the expenses
of maintenance and education were borne. Austin went
abroad, where he died, having left all his property to Evan
Williams ; before he went he gave his portrait to Mrs. Morris,
which was proved to bear a striking resemblance to Evan Wil-
liams. Argoed, where Morris lived, was fifteen miles from Llan-
fair, the birth of the child was carefully concealed from him ; on
reports of the birth being circulated, he went to Llanfair, and
saw Mrs. Morris, who, on being charged with the fact, empha-
tically denied it. It seemed that Mr. Morris believed the de-
nial, and considered that there was no child but his daughter
Mrs. Davis, who on his death in 1811, took possession of the
estates. Evan Williams, who went by the name of Austin,
claimed the estates, and an issue was directed to ascertain his
legitimacy. The first trial was had at Shrewsbury Spring
Assizes, 1827. It was proved that Mr. Morris occasionally went
from Argoed to Llanfair ; that he sometimes visited Mrs. Morris,
and that there were opportunities for sexual intercourse; one
witness, Mary Evans, said they met at the house at Garthlwyd,
in the spring of 1792, and passed the night there ; the verdict was
for the legitimacy of Austin. 4^ new trial was granted, which
took place at the Shrewsbury Summer Assizes, 1827, before
Vaughan, B., and is reported 3 €• ^ P. 215. The jury
gave no credit to Mary Evans, but two fresh witnesses, Arthur
and Williams, were called, who stated that Mr. and Mrs.
Morris, in 1792 dined together at the house of Mr. Morris's
brother, and in the same year, in what part of the year was not
stated, Mr. Morris dined and slept in Mrs. Morris's house.
The jury however did not think access proved, and found against
the legitimacy.

The judge told the chancellor that if he had been on the
jury, he should have found a different verdict, and the case
went to a third trial, which took place at Gloucester Summer
Assizes, 1828, before Gctselee^ J., and is reported SC.S^ PAS!1\
neither Mary Evans nor Arthur nor Williams was called, nor
did the plaintiff give additional evidence. The jury were shut
ujp all night, and applied to be discharged, stating that eleven
had agreed on a verdict to establish the legitimacy, thinking
that sexual intercourse had taken place; the judge, whose
opinion on legal grounds seemed strongly to incline towards the
legitimacy, eventually discharged the jury, saying that perhaps the

Batttarlr*

Non access.

Mprris T.
Daris.

Cop« V.
Cope.

opinions of the eleven might be as satisfactory to the chancellor
as a formal verdict. The Chancellor, however, the matter being
left to him to save the expense of another trial, decided against
the legitimacy. His judgment was upon the facts, but he seems
to have taken the dictum of Lord Redesdale^ ante, 80, to be the
law, and applied it to the circumstances of the case.

The first jury found that Austin was legitimate, the second
that he wafi illegitimate against the opinion of the judge who
tried the cause; the third were eleven to one in favour of
legitimacy, and the judge seems so much to have coincided
with the majority, as to tell them that the opinion of the eleven
might be as satisfactory as a formal verdict; and then the
Chancellor, one of the most eminent men that ever sat upon
the woolsack, but who had not witnessed the course of the
trials, or the demeanour of the witnesses, pronounced against
the legitimacy, both the judges who had presided at the two
last trials, and who had seen the witnesses, being in favour of
it* Upon the question of paternity, no doubt the Chancel-
lor was right; but the case seems to prove the dangerous
uncertainty of the law of legitimacy, and the impossibility
of having consistency of decision, without sometning like
fixed principles to govern, or at least to guide, the opinions
of those who have to decide upon cases of this description.

In Cope V. CopCf 1 Moo, ^ Rob, £69, tried before AUerson,
B., at York, 1833, the learned baron adopted the law as
stated by Lord Redesdale^ and acted upon by Lord LynA^
hursi in Morris v. Davis, pix. that although a husband
may have opportunities of intercourse with his wife, yet,
that it is not to be taken as a conclusion of law, that he
availed himself of them, but it is a presumption which may be
rebutted by circumstances ; the case itself was an issue to try
the legitimacy of Willis Cope, the sixth child of K. and Elizabeth
Cope, the legitimacy of the five elder children being undisputed.
R. Cope, the husband, being a day labourer, went to work, for
some years before the birth of Willis Cope, at a considerable
distance from the village where he lived, but during all that
time, and up to the child's birth, and for some time after, was
in the habit of, from time to time, returning to the village where
his wife lived, he used to return once in every month or six
weeks, and usually remained from Saturday till Sunday evening,
or Monday morning; he had sent his wife money, and there
was no evidence of any quarrel; on the other side it was
proved that John \MIIis lived near the wife, that he was fre*
quently brought there at night drunk, and remained there till
next morning, that he was in the habit of giving money to the
wife about the time of the birth of Willis Cope, and for some time
after that he had endeavoured to apprentice Willis Cope, who
when young, had spoken of him as his father ; the baptismal re-

€4
44

<«

gi^ter of Willis Cope, which was admitted in evidencei was as Non-accc>»
feUows : " 1794, Dec. 7, — Willis, illegitimate son of Elizabeth ^ ^^
Cope.** Cope.

The learned jadge told the jury; Ist. ** That if a child be
*' bom after marriage of the mother and during the husband^s
life, that child in point of law is to be presumed to be legiti*
mate, but that presumption may be rebutted by evidence***
£dly. ** The presumption of the child's legitimacy in the case
put is rebutted if it be shown that the husband had not ac-
cess to his wife within such a period of time before the birth
** of the child as admits of his having been the father ; but if
** he had opportunities of access (by which is meant opportu-
'* nities of having sexual intercourse with his wife) it is to be
** presumed that he availed himself of those opportunities, un*
'' less he be shewn to be impotent*^'

Sdly. " But even where the husband is shown to have had
" these opportunities of access, and was not impotent, still this
** presumption also of sexual intercourse may be rebutted, as
** where the wife is living in open and notorious adultery, and the
** husband on one occasion only had opportunity of access to
** her, and then at a time, and under circumstances, rendering
** it extremely improbable that he availed himself of those op-
" portunties ; those facts might perhaps be urged as a reason^
** able ground for concluding that sexual intercourse did not
take place : and the case of Morris v. Davis was decided
on that principle — I^rd Lyndhurst coming to the conclusion
'' that the open adultery of the wife, and her concealing the
** Urtfa from the husband, and other circumstances led to the
** inference that no intercourse had taken place**'

His lordship however cautioned the jury to be very care-
ful in examining the evidence, and to have such cogent proofs
before them as to leave no doubt that the husband did not avail
himself of the opportunity of intercourse. *^ And if once you
" are satisfied that the husband had such intercourse, the pre-
** sumption of legitimacy is not to be rebutted by its being shown
** that other men also had intercourse with the woman : the law will
** not, under such circumstances, allow a balance of evidence as
" to who is most likely to be the father." The jury found for the
legitimacy.

In the case of Bury v. Philpoi, 2 Mylne 6^ K. 349, 1884, ^uryti.
Sir John Leachy M. R. said, *' Access is such access as affords ^^
" an opportunity of intercourse ; and where the fact of such ac«
" cess between husband and wife within a period capable of rais-
'* ing the legal inference as to the legitimacy of an after-born
'* child is not disputed, probabilities can have no weight, and a
'* case ought never to be sent to a jury. There is nothing against
'' this evidence of access, except evidence of the adulterous inter-

Basttarli*

Noa-accett <<

Bury V.
Philpot.

Period of
gestation.

Widows

marryiog

again.

course of the wife with Hughes, which does not efiect the l^al
" inference, forif it were proved that she slept everynight with her
" paramour from the period of her separation with her husband,
" it must still declare the children lecitimate. The interest of
** the public depends upon a strict adherence to the rule of law/*

Where a woman marries so soon after the death of the first
husband that it is uncertain which is the father, it is also a
question of fact for the jury. A. married a lewd woman, but
tnev did not cohabit, she is moreover suspected of incontinency
witn B. A. died, and within three weeks B. marries the
widow ; two hundred and eighty-one days and sixteen hours
after his death she gave birth to a son: agreed, that
though it was possible the son may have been begotten
after his death, yet, beine a question of &ct, it was to be tried
by a jury, who found the boy to be the son of A. Hale's
MSS.i Winch. 71 ; Cro. Jac. 685.

It has been said that when a woman marries again and baa
a child within nine months, so that it might have been the child
of either husband, the child may choose its father, Co. LitU 8 a^
but Brooke in his Abridgment questions this doctrine, and says
that it must be determined by the circumstances of the case.
Bro. Ab. ''Bastardy;' pi 18; Bract. Lib. 5\ Palm. 10.
To avoid such questions the Saxon law provided, Sit omms
vidua sine warito duodecim mensibus, et $i maritaperii, perdai
dotum. Co. Lilt. 8 a. Thus it is said in a case in the Year Boots,
*' That the child wherewith the mother is visibly big when she
** taketh a second husband, shall be deputed the child of the for-
'* mer husband, though born after marriage with the second ;
*' otherwise, if after marriage, she were so privily with child as
'' that it could not be discerned.** 21 Ed. 3, 89.

It has frequentlv become a question how long gestation may be
protracted. Lord Coie, Co. Litt. \2S b, says, ''that the time
" appointed by law is nine months, or forty weeks, but she may
'' be delivered before that time/* Mr. Hargrave, in note 190 ob
this passage, states, *' That in that case it was considered that an
" access of forty weeks created a presumption against the
" legitimacy of the issue, but it is not conclusive. The maxim of
" the civil law, which is also adopted by Bracton, is, that it was
" requisite that the child should not be born till the seventh
" month after marriaee. Dig. I, 5. 12. This rule was founded
*' on the opinion of Hippocrates, who fixes the shortest time of
" gestation at six months and two days, or one hundred and
'' eighty-two complete days. Huber prtelect. ad. Pand. lib. 1,
" tit. 6. The longest time was fixed at ten months. Post decern
" menses mortis, natus non admitteturad legitimam hereditatem.
" Paulus. Dif^. 38, 16, 3. Sonde, an approved reporter
" of decisions m the court of Friezeland, discusses this question

Saiettarli^ 99

** at lai^e, and gives an instance of a child being decided to be ^eno^ o^
''legitimate which was born three hundred and thirty-three g^^U"°°'
'' days, or eleven solar months and three days after the death
*' of the father, who had been confined to his bed a fortnight
" before he died. The mother was a woman of excellent cha-
** racter ; but the judges hesitated, and recommended a com-
'^ promise, which not taking effect, the child was adjudged
" heir. Dec. Lib. 4, tit. 8, def, 10. It is there said, that
" the ill state of the husband's health might be a cause
why the child was not born within the ordinary time. This
must be allowed to be a singular case ; but the claim of the
'* Countess of Gloucester, after a year and seven months, is more
''so; as also the dictum of Rolfe, 1 H. 6, S a, that a woman
** may be ensient seven years, though his opinion in other res-
pects is sensible. The learned editor above referred to put
the following questions to the late Dr. Hunter : — What is the
" usual period for a woman's going with child ? What is the
" earliest time for a child's being born alive ? — and, what the
''latest? who answered them in the following manner:-—
** Ist. The usual period is nine calendar months; but there is
" very commonly a difference of one, two, or three weeks.
'' 9nu. A child may be bom alive at any time from three
" months ; but we see none bom with powers of coming to
" manhood, or of being reared, before seven calendar months,
" or near that time : at six months it cannot be. 3rd. I have
» known a woman bear a living child in a perfectly natural way
^ fourteen days later than nine calendar months ; and believe
" two women to have been delivered of a child alive, in a na-
" tund way, above ten calendar months from the hour of con-
" ception." 1 Bum's E. L. 121, note (o).

It seems to be now admitted that the ordinary period of

festation is two hundred and eighty days, or forty weeks,
low much longer it may possibly be protracted does not
appear to be decided. That it may exceed that period all
seem to agree, but to what extent is at present uncertain and
unsettled. The law of England does not affix any precise
term. Therefore the circumstance that the birth has taken
place beyond two hundred and eighty days is not a legal
bar in questions of legitimacy. The ultimum tempus pariendi
seems left both by science and by the law of England to
be determined upon the circumstances of each particular case.
By the law of Scotland a child bora after the tenth month is

(a) Fid. on the subject of protracted gestation the cases of Stewart
V, M*Keanf d. Facult. of Decis. ; 132 Deds. ; Gardner case, 337 ;
BerareTs case. Cans.. Celebr. 6 vol. 94 ; Gardner case, 372 ; and the
cases of Marie C0quot and Francois Lecourt, Gardner case, 495, 498.

* H 2

100 ItodtarDi.

^^^®^ acccninted a bastard, which, being calculated by the rule of the
^ civil law, vix» by solar months of thirty days, would be three

hundred days. Erslrine, Inst. App. Note. The Cade Napoleon
does not ao so far as to say that after three hundred days the
child shall be accounted a bastard, but enacts *' that a husband
" may disavow a child on proof that during the time which has
'* elapsed from the three hundreth to the one hundred and
^' eightieth he was, either by absence or the effect of some
*' accident, under a physical inability of cohabitation ;" Bk. 1 ,
312; and, again, " the legitimacy of a child born three hundred
" days after dissolution of marriage may be contested ;*' ib, 315 ;
it appears from the best authorities that ten complete months
is the longest period allowed by the civil law. Oothofred, c, ^,
59. In Alsop V. Bowtrell a child born forty weeks and ten
days after the death of the father, and under circumstances
which might have postponed labour, was held to be legitimate.
Lord H(iie remarking, quia partus potest protrahi decern dies
' ex accidente. Co. Litt, 1236; Cro. Jac, 51-1. In Foster v.
Cook the legitimacy of a child born forty-three weeks all but one
day after the possibility of access was held to be legitimate.
3 Bro. C. C. 347. This, however, was said by Lord Eldon,
in the report of the Gardner case, 286, to be a case of little
importance. If a man in sound health were to die suddenly,
and his widow not be confined till even more than three hundred
days after, as it seems that it is by no means physically impos-
sible that gestation may have been so long protracted, or even
longer, and if the conduct of the wife afforded no ground of
suspicion, it would be hard to say that such a child was not
legitimate, until the uniform opinion of scientific men shall affix
a period to the possible length of gestation. The mere circum-
stance of a child being born some time after the usual period of
gestation has expired could not, standing alone, decide the
question ; but, where there are circumstances in the case leading
to a strong suspicion that the husband was not the father, the
additional fact of gestation protracted beyond the ordinary pe-
riod would be strongly confirmatory, and indeed almost conclu-
sive of the illegitimacy. It must be remembered that forty
weeks is the rule, an extension beyond that period the excep-
tion; and, though, where the woman is of general unimpeached
character, and no circumstance appears in the case to excite
suspicion, the legal presumption in favour of legitimacy will
sustain the excepted case up to the bounds of physical possibi-
lity, yet, where the general character of the woman destroys the
legal presumption in favour of legitimacy, or where her conduct
in the particular case raises a contrary suspicion, then the im-
probabiUty that the child could be the husband's, from the
birth being out of the ordinary course of nature, so far from

SatftarH. loi

being counteracted and rebutted by the other facts in the Period of
case, is supported and confirmed by them. In the Gardner ^^^^'^°'
case. Captain Gardneri the husband, parted from his wife
and left England on the 30th of January, 1802, and did not
return to England till the 10th of July. Mrs. Gardner was
brought to bed on the 8th Dec. being a period of three hundred
and eleven days, or forty-four weeks and three days. Many
medical men, of high character and great experience, were
called as witnesses on both sides, and they certainly differed in
opinion as to the possibility of gestation being so long protracted ;
but it was proved that, at the time when conception would have
taken place according to ordinary calculations, Mrs. G. was
intriguing with a Mr. J., that the birth was clandestine, that the
child was christened by his name, that he was brought up and
educated by him, and never saw Capt. G. The child was una-
nimously pronounced illegitimate by the House of Lords.

About the period of the establishment of the courts at West- Writde
minster, the writ de ventre inspiciendo was framed, by which v«°*'« ">•
the sheriff was commanded that, in the presence of twelve •P*"*"***"
knights and so many women, he should cause examination to
be made whether the woman was with child or not ; and if with
child, then about what time it would be born, and that he cer-
tify the same to the justices of assize, or at Westminster, under
his seal and under the seals of two of the men present. 1 Bum^s
E. L. H4f. The earliest record of this writ is in the 4 Hen. 3,
and the terms of it exactly agree with those in subsequent
writs. Nicolas on Adult. Bast, There are two cases in Croie^s
Reports in which the whole proceedings are stated. Lady Wil-
loHghb}fs case^ Cro. Eliz- 566 ; and Theakers case^ Cro. Jac.
685. 1 BurtCs E. Zr. 125. The writ for the heir, if a woman,
soon after the death of her husband, feigned herself with child
by her first husband ; and the proceedings under it are also
stated by Lord Coke* Co, Litt. 8 b. In the matter of Martha
Brown, ex parte Wallop^ Eyre and Ashurst, lords commission-
ers, ordered the writ to issue against a married woman (whose
husband had been nearly ten years abroad), on the application
of a devisee in a will, there being a limitation in the will that, if
she had a male child within forty weeks after testator's decease, it
should take before the devisee ; but the writ was ordered to be in
the office fourteen days, and, if within that time she chose to
submit to an examination by two midwives, to be appointed by
the petitioner, to inspect and examine by such examination
as they should think necessary, whether she were pregnant,
then the writ not to go till further orders, otherwise to issue.
4 Bro. C. a 90 ; Com. Dig. " Bastard;' C. ; 1 Bum's E. L.
125.

In order to guard against supposititious births, the next heir,

102

ISasftarls.

Writde

ventre in-
spiciendo.

Name of.

Property
of.

though only in taiK 2 P. fVms. 59S ; or devisee, whether for
life, or ui tail, or in fee ; whether his interest be immediate or
contingent ; 4 Bro. C. C. 90 ; or even in a case of interest in
personalty ; Mas. 391 ; may have as of common right a writ
de ventre inspiciendo to examine whether the widow be with
child or not ; and, if she be, to keep her under proper restraint
till she be deUvered ; but there is no necessity that the writ
should be executed in its original strictness. 2 P. Wnu. 593,
An heir apparent cannot have this writ during the life of his
ancestor. 6 Fes. 2G0.

The writ is applied for by petition to the chancellor. 1
Cox, 291.

A bastard has no name by birth, being nuUius filius, and,
therefore, can have no name of reputation at his birth ; Co.
Litt. 36 ; 1 P. Wms. 539 ; but he may acquire a name by repu-
tation ; and it is a well-known practice, which obtains in most
instances, to give them the name of the mother, whose children
they certainly are. 2 Hag. Con. 253 ; 1 PAUL 143 ; 3 PAitt.
46. In the case of a devise to two sons, it appeared they were
illegitimate, it was held that, though strictly they were not sons,
yet, if they have acquired that name by reputation, in common
parlance they are to be considered as such, and in case of
a devise, what amounts to a designaiio persona is sufficient. 1
^/*.410.

But an illegitimate child cannot take a share under a devise to
children generally, though the will was strong in his favour by
implication ; 5 Fes* 530 ; so also where there are no legitimate
children ; 6 Fes. 43 ; but, if the issue of a bastard purchase
land and die married without issue, though the land cannot
descend to any heir ex parte patemd^ yet to the heir ex parte
maternd it may ; for the heirs on the part of the mother make
not any conveyance by the bastard* Fin. Ab. ** Bast.*' o« 6.

If a bastard die intestate, without wife or issue, the lung is
entitled to the personalty ; and the ordinary of course grants
administration to the patentse, or grantee of the crown. 1 Hag.
643 ; 3 P. Wms. 33. But it will be granted to a creditor, if
notice be served on the king's proctor, and no appearance by
him to oppose, especially where the debt is large and the pro-
perty small. Therefore, where a husband, a bastard, was
drowned, together with his wife and child, administration was
granted to a creditor ; the king's proctor having been cited, but
not the representatives of the wife, on the presumption of law
being that the husband survived ; 1 Hag. 92 ; Dongl. 543 ;
but the crown usually allows administration to go to the rela-
tions, reserving a small portion. 1 Wood, 398.

If the natural parents of a child born out of wedlock after-
wards intermarry, that is, if the birth as w^U as the conceptbn

abtftariu 103

18 antenuptial, the child is rendered legitimate by both the civil Property

and canon law ; and herein tfaey difier most materially from the Zs.

English law, which, though not so strict as to reauire that the
ehiid shall be begotiem, yet makes it an indispensable condition of
legitimacy that it shall be bom after wedlock ; 1 SL Comm, 456 ;
GodoL Ab, 479; Co. LitL S14 b; and 245 a. in notisf and,
therefore, a child bom in Scotland before the marriage of his
parents cannot inherit lands in England, although he was legi*
thnate in Scotland and his parents domiciled there. Doe dew.
Birtwhisile v. VardiU, 8 D. ^ R. 185. In the House of Lords,
however, 2 CI. ^^ F, 571, Lord Brougham^ C. dissented, Lords
Lyndhurst and £>^iiiiiaii doubted, and all expressed a wish fur a
fresh ailment. Monro t. Sandies, 6 Bligh, 479 ; Anstruiher
V. Adair, 2 M. ^ K. 51S, ante 77.

If a man hath a son by a woman before marriage, and after-
wards marries the same woman and hath issue a second son
after marriage, the first of these is termed a bastard eigne, and
the second muiier puisne. In this case it is said that, if, upon
the death of the fiither, the basiardeignS enters, and the muUer
allows him uninterrupted possession during his life, and there
is a descent to his issue, the muiier is excluded from the inhe-
ritance. So, if the bastard die seised, his widow is endowed,
tliough the muUer was an infant, or feme covert. Co. Liit.
244; I Roll. Ab. 6^4; Z BL Comm. 457; Coin. Dig. ''Bas-
tard;' F.

But a bastard may be made legitimate and capable of inhe-
riting by the ti*anscendent power of parliament ; 4 Inst. S6 ; as
was done in the case of John of Gaunt's ill^timate children by
a siai. of Ric. 2 ; 1 Bl. Comm. 459 ; on the other hand, in the
cases of Lady Parr and Lady Burgh their issue was bastardised
by act of parliament. 84 Hen. 8 ; Gardner case, 472, note (a).

The father of a legitimate child is entitled to its custody, infftote,
though within the age of nurture, if the court of K. B. sees no ^^*^^y ^^'
ground to impute to him any motive injurious to its health and
liberty ; 5 East, 221 ; subject, however, to the court of chan-
cery, which exercises the iurisdiction of the king as parens
patrisBf 2 Hwansi. 537 ; which latter court will restrain a fiither
from removing bis child ; or will reftise the care of it to a mo-
ther who has withdrawn herself from her husband ; 10 Ves. 52;
and has appointed a guardian and a proper allowance for the
maintenance of infiemts ill treated by their father. 12 Ves. 492.
With regard, however, to illegitimate children, if a mother be
disturbed in the possession of her child by the force or fraud of
the father, the courts of law will interfere by habeas corpus to
restore the child to its mother ; 5 T. R. 378 ; so, when not in
custody of the father himself, but put with a friend of his,
thoiiiH) not probable that it would be brought up so advan-

104 lSas(tart(.

I**^^' tageously by the mother as the father ;! N. R. 148 ; but, when
^"** ^ ' the putative father obtains the custody of the child /airly, it
seems doubtful whether the court will take it away from him.
5 East, 224, Whether, after a baHard is past the age of nur-
ture, that is, seven years old, any father can claim its custody
from the mother appears not to be decided. 4 Taunt. 4d7 ;
7 East, 579. The following is a summary sketch of the state
of the law on this point : —

" On all general principles it is clear that the only father
** whom the law of this country has armed with the patema
*' potestas is the father quern nuptice demonstrant. He only is
the guardian of his child, and he only may delegate that trust
to another at his death. The only cases in which the natural
parent is acknowledged are cases to his disadvantage, in cases
" of civil concern or by way of restriction in such as are of a
'' moral nature. He is compelled by later statutes to maintain
*' his child for the relief of the parish, to ease it of the charge
'' to which it is primarily liable ; because, before these statutes
*' the parish alone was bound to maintain it. It is laid down in
'' 2 Bulstr. S44, and Bott. 460, that, before the stat. 18 of £/f-
*' zabeth, c. 3, the parish where the child was bom must main-
'^ tain it till it gained a settlement. The custody of the child,
** therefore, must have been at that time in the hands of the
^' parish. He was ^filius popuK* and there was no ground
'' upon which the possession of the child could have been as-
^^ sumed by the father. Even since the enactment of that sta-
" tute it continued for some time a matter of no inconsiderable
** doubt whether the parent had a right to take the child out
^* of the possession of the parish. Bott. 460; 2 Sound. 83.
'* Though this may now be settled, still he can appoint no
*\ guardian, and I presume that he cannot legally take the child
'^ out of the custody of the mother, in which it is deposited by
** nature at its birth ; though I speak with all necessary caution
'' on a point belonging to the learning of another profession.
'^ All this is sufficient to show that he has the principal burden
** of maintenance, with a very small degree, if any, of parental
*' authority." Per Lord StoweU\ Homer v. Horner^ 1 Hag.
Co».351,35«.

finiefict vide {nnimliettt
Bigamp vide iltarriage.

105

Bid|)Ops{.

Archbishops.

Of Canterbury.
Of York.
Bishops.

Election of.
Consecration of.
Residence.

Attendance in parliament.
Privileges as peers.
In time of vacation.

Care of Spiritualties.
Temporalties.
Waste.
Archbishops.

Metropolitan p power of.
Suffiragan bishops.
Co-adjutors.

A BISHOP presided over a single city with a diocese ; a metro*
poBtaii, commonly called archbishop, over a province containing
several cities and dioceses. Every man which is to be ordained
or consecrated bishop shall be full thirty years of age, 1 Burn's
£. X. 194; 3^4^ Ed. 6, c. 10; 5 8f 6 Ed. 6, c. 1 ; 8 EUx.
c. 1 ; 13 ^ 14 Car. 2, s. 4.

Anciently there were three archbishopricks in three distinct Archbi-
provinces, the third being of Caerlon in Wales, but in the time '^'^P^'
of Hen, 1 both that see and all Wales became subject to the
archbishop of Canterbury* The ecclesiastical state of England
and Wales is now divided into two provinces only, or archbi-
shopricks, Canterbury and York. Each archbishop hath within
his province bishops of several dioceses.

In the province of Canterbury are the ancient bishopricks of
Rochester, London, Winchester, Norwich, Lincoln, Ely, Chi-
chester, Salisbury, Exeter, Bath and Wells, Worcester, Co-
Tentry and Litchfield, Hereford, Landaff, St. David*8, Bangor,
and St. Asaph ; and four founded by king Hen. 8, erected out
of the ruins of dissolved monasteries, viz. Gloucester, Bristol,
now one see under the title of Gloucester and Bristol, Peter-
borough, and Oxford. The archbishop of York has four under
him, viz. the bishop of the county palatine of Chester, erected
by king Hen. 8, the county palatine of Durham, Carlisle, the
isle of man, and Ripon by 6 J* 7 W. c. 77 ; vid. alterations lately
made in the sees in title " Ecclesiastical Commission.'* But a
greater number this archbishop anciently had which time hath
taken from him. Co. Lift. 94 a.

Every diocese is divided into archdeaconries; and every

106

3Btf(|)Op0.

Archbi-
ihopt.

Arcbbtthop
of danler-
bnry.

archdeaconry into deaneries ; and deaneries into parisbest towns,
and hamlets* Ante ** Archdeacon;^ past '* Ecclesiastical Com--
missianJ"

The division into parishes seems to have been made by de-
grees, as churches were built and endowed by lords of manors
and others, for the use of their tenants or other inhabitants
within a particular district; which, doubtless, is the reason why
there are some places at this day which are eztra-parochiaL

For manv centuries after Christ every bishop was incumbent
of his whole diocese, received all the profits, which were but
offerings of devotion, out of which he paid the salaries of such
as officiated under him. Godol. Ab. 23\ 7 B. A C. 152. Af-
terwards, when churches became founded and endowed, he
sent out his clergy to reside and officiate in those churches ;
reserving nevertheless to himself a certain number in his cathe-
dral to counsel and assist him, now called deans and prebenda-
ries, or canons. Fid. ante ** Appropriation.'*

The archbishop of Canterbury is styled primate and metro-
politan of all England, though there is another archiepiscopal
province within the realm ; partly because he was invested with
a legantine authority throughout both the provinces ; and partly
because he has still the power, which the popes usurped, and
which by act of parliament was taken from them, of granting
faculties and dispensations in both the provinces aJike* I
Bum's E. L. 196. Further, he anciently had primacy not only
over all England but Ireland, and it was from him that the Irish
bishops received consecration ; for Ireland had no other areh«
bishop till the year 1 15S, and the archbishop of Canterbury was
anciently styled '' orbis Britannici ponti/ex" GodoL Ab. 90.

At general councils abroad the archbishop of Canterbury bad
the precedency of all other archbishops. QodoL Ab. HI.

At home he has the privilege to crown the kings of England*
lb. Godol. Ab. 13.

He is said to be inthroned, when be b vested in the aroh-
bishoprick; whereas bishops are said to be installed. lb.
Godol. Ab. 21 ; 1 Bum's E. L. 196.

He hath prelates to be his officers. Thus, the bishop of
London is his provincial dean, the bishop of Winchester bis
chancellor, the bishop of Lincoln anciently was his vice-chan-
cellor, the bishop of Satisbury his precentor, the bishop of
Worcester his chaplain, and the bishop of Rochester (when
time was) carried the cross before him. GodoL Ab. 14. He
may retain and qualify eight chapliuns, which is more by two
than any duke is allowed to do by statute. Ib.^l.

In speaking and writing to him, as well as to the archbishop
of York, is given to him the title of grace and most reverend
father in God, 1 Burn's E. L. 197.

iSutfrtqitf. 107

They write th^nselves^ by divine providence ; whereas bishops ^^h.
only use, by divine permission. Godol. Ab. 18. ^^'

The first archbishop of York that we read of was PauUnus^ Arch-
who by pope Oreaory's appointment was made archbishop there ^^P ^^
about the year of our Lord 622. GodoL Ab. 14. ^*''*'-

The archbishop of York hath the privilege to crown the
queen consort and to be her perpetual ctiaplain.

He also, in like manner as the archbishop of Canterbury, is
said to be intbroned, when he is vested in the archbishoprick.
Godol. Ab. 21.

He also may retain and qualify eight chaplains, but a bishop
can only qualifv six. GodoL Ab. 21.

The archbishop of Canterbury is the first peer of the realm, Arch-
and hath precedency, not only before all tlie other clergy, but bishop of
also (next and immediately after the blood royal) before all the ^^°^^^'
nobility of the realm and ail the great officers of state. GodoL
Ab. 18.

The archbishop of York hath the precedency over all dukes,
not being of the blood royal ; as also before all the great ofB*
cers of state, except the lord chancellor. GodoL Ab. 14.

And every other bishop, in respect of his barony, hath place
of all the barons of the realm, under the degree of viscount.
Godol. Abr. IS.

The archbishop of Canterbury hath the precedency of all the
other clergy ; next to him the archbishop of York, and then the
bishops of London, Durham, and Winchester, and then all the
other bishops after the seniority of their consecration ; but if any
be a privy counsellor, he takes place next after the bishop of
Durham. Co, Litt. 94; 1 Ought. 486; GodoL Abr. 18.

By the 25 Ed. 3, sL 8, c. 2, it is made a manner of treason,
where a man secular or religious slayeth his pr^te, to whom he
owelh faith and obedience.

But this was petit treason at the common law, being com-
mitted only against the subject. 3 Ifist. 20.

Although it is clear, that in the early ages of Christianity all Bkhopt.
bishops were elected by the laity as well as clergy ; AyL Parer.
128. Yet Lord Cote establishes the right of donation in
the kings of this realm, upon the principle of foundation and
property ; for that all the bishopricks, in England, were of the
king s foundation, and thereupon accrued to him the right of
patronage. Co. Litt. 1 S4, 344.

So also the bishopricks in Wales were founded by the princes
of Wales; and the principality of Wales was holden of the
king of England as of his crown, and when the principality of
Wales for treason and rebellion was forfeited, the patronage
of the bishopricks there became annexed to the crown of England.
Co. Litt. 97.

108 2t!(&0ptf.

Bishops. In Ireland^ the bishopricks are still donative by letters pa-

' tent without a congi delire. 1 Salk. 186; Palm. fFl ; Cro. Joe,

552', Godot. Ab. 24f.
Election. When a bishop dies or is translated, the dean and chapter

certify the king thereof in chancery, and pray leave of the king
to make election. GodoL Ab. S9.

And it is enacted by the 25 H, 8, r. SO, s, 4, that at every
avoidance of any archbishoprick or bishoprick, the king may
grant to the dean and chapter a license under the great seal, as
of old time hath been accustomed, to proceed to election of an
archbishop or bishop.

Which license is called in French congi d'eiire, that is, leave
to choose. Terms de la ley.

And with the license, a letter missive, containing the name
of the person which they shall elect and choose. 25 H. 8,
c. 20, 8. 4.

By virtue of which license, the dean and chapter shall with all
speed, in due form, elect and choose the said person named in
the letters missive, and none other. 25 H. 8, c. 20, s. 4. Not*
withstanding the repeal of the 1 Ed. 6, the election of bishops
is, as that statute emphatically expresses it, mere shadow, colour
and pretence, for by 25 H. 8, if they do not elect the person
recommended by the king's letters missive, which accompanies
\\\^ congi d^elire, they incur the penalties of k praemunire ; and
by sec. 4 of that statute, if they delay their election above twelve
days next after such license or letters missive to them detivered,
the king shall nominate and present, by letters patent under the
great seal, such person as he shall think convenient, to be in-
vested and consecrated in like manner as if he had been elected
by the dean and chapter.

After election, tnere must be the consent of the party
elected, in order to which, the proctor, constituted by the dean
and chapter, exhibits to him the instrument of election, and
prayeth his assent to the same; which assent is to be given by
an instrument in form, in the presence of a notary public.
Gibs.\\0.

And by s. 5, if the said dean and chapter do elect within twelve
days, as aforesaid, then they shall make certification thereof to
the king under their common seal ; after which certification, the

{>erson so elected shall be reputed and taken by the name of
ord elect of the said dignity and office that he shall be elected to.
And by s. 7, if the dean and chapter, after such license shall
be delivered to them, proceed not to election, and signify the
same according to the tenor of this act, within twenty days next
after such license shall come to their hands ; or if any of them,
admit or do any other thing contrary to the act, then every such
dean and particular person of the chapter so offending, and

3((fi^l)ilC(. 109

every of their aiders^ counsellors, and aliettors, shall incur a Bisbopc
pnemunire. ^

As to the form of consecration the ceremonies and oaths neces- Consecrm-
sary to be taken, 1 Bum's E.L.20S; Bumelfs Hist, of Re/or- *»«»•
maifonj IgS, 124; Gibs. Cod. 110, 117 ; Godol. Ab. 25, 26, 27.

When a bishop is translated, the former see is not void by
the election to the new one, until the election is confirmed by
the archbishop ; for though he is elected, yet it may happen
that the king shall not consent, or the archbishop may not con-
firm ; and it is not reasonable that the bishop should lose his
former presentment, till he bath obtained a new one. And so it
is in case of creation ; he is not completely bishop till consecra-
tion. S SaU, 72; Palm. 470, 475. Upon a translation no
consecration is necessary, that being completed before. Gibs.
Cod. Ill; GodoL Ab. 29.

Fmally, by the 1 G. 1, si. 2, c. 13, and 9 G. 2, c. 26, he
shall within six months after his admission, take the oaths of
allegiance, supremacy, and abjuration, in one of the courts at
Westminster, or at the quarter sessions of the peace.

By 26 G. 3, c. 84, confirmed by 69 G. 3, c. 60, *. 6, the archbi-
shops of Canterbury and York may consecrate subjects of other
countries, out of his majesty's dominions to be bishops, without
the king's license for an election, and without requiring them
to take the usual oaths, but not without ascertaining the fit*
ness of the person to be consecrated. But no person so conse-
crated, shall be thereby enabled to exercise his office within
his majesty's dominions.

Upon promotion of any person to a bishoprick, the king hath
a right to present to such benefices or dignities as the person
was possessed of before such promotion. But the king cannot
present to a donative, the incumbent of which is made a bishop.
Co. Pari. 104; 1 Burns E. L. 212, n. 7.

In Ireland, a man shall not be promoted to a bishoprick, until
he hath resigned all his preferments in England ; by which re-
signation it seems that the king's presentation in such cases, is
defeated. 1 Burns E. L. 212.

Bishops shall be personally resident to take care of the flock Rendence
committed to their charge, and for the comfort of the ^^'
churches espoused to them ; especially on solemn days in
Lent and Advent, unless their absence is required by their su-
periors, or for other just cause. Athon. 128. At the Conquest, Attendance
the possessions of the bishops were converted into baronies, '^^ Parlia-
and for a long time after they sat in parliament as barons by ^^^^
tenure : at present their title to sit in parliament seems to be
rather founded on usage. Vid. Hargraves note Co. Lift. 97 a.
By the stat. of the 25 H. 8, c. 20, a bishop on his election
shaU be reputed and taken as lord elected. And by di-

€1

1 10 limop^

Attendanc* yers Other statutesi bishops are called peers of the land. 4

meS!^*' /«*/. 1.

The bishops, whilst inhabiting their London houses, are
considered as residing in their dioceses, but this privilege is
personal and not local, and does not attach to the property
passing out of the bishops' hands. 1 Hag. Con. SO; 13
Geo. S, c. 43 ; and vid. 33 Hen. 8, e. 31. With regard, there-
fore, to Ely chapel, formerly part of Ely episcopal house,
when it ceased to be the residence of the bishop, became part
of the diocese of London. Upon this question Lord Stowett
Residence, said, " I conceive by the ancient law, that bishops should be
" empowered to act in their London houses as in their dioceses,
" and for that purpose their residences in London were con-
'^sidered as part of their dioceses. We collect this from
'' what is said by Bishop Gibson, 132 »., and from the statute
'' 83 Hen. 8, c. 31, relating to the bishoprick of Chester, where
*' it is provided, that he shall be held resident in the diocese of
** Chester, and have jurisdiction at Weston in the diocese of
Lichfield and Coventry, during his abode there, as other
bishops have in the houses belongina to their sees wheresoever
*' they be. This act refers to a rule which was going into
"desuetude. In the statute of 31 Hen. 8, relative to the
" exchange of houses between the bishops of Carlisle and
" Rochester, and Lord RusseU, there is a clause providing that
'' they should have the same authority in their new houses at
*^ Lambeth and Chiswick as they had exercised in their old
" houses. And Gibson says, at the time when he wrote there
'' were none left but Lambeth and Croydon belonging to the
'^ archbishop, Winchester palace, now removed from Southwark
'' to Chelsea, (and now to St. James's Square), and Eh house
'' in Holbom. The same privilege has not been attached to new
*^ houses, and is not annexed to the present Ely house, though
*' a visitatorial jurisdiction is allowed in it by statute 12 Geo.
**S, c. 43. I see no reason to limit the authority allowed,
" whether voluntary or contentious ; though it is certain in the
*^ old canon law it is laid down as a rule, that one bishop could
" not exercise authority in another diocese. The reason of the
** rule was to protect the bishop from the penalties of non-
residence^ and to provide for the necessities of his diocese by
enabling him to perform the duties of it when called away by
public business." Barton y. WeUs, I Hag. Con. 1^5.
The bishops are to sit in parliament, on the right side of
the parliament chamber, in this order : — ^First, the Archbishop
of Canterbury ; next to him, on the same form, the Archbishop
of York ; then the Bishop of London ; then the Bishop of
Durham ; then the Bishop of Winchester ; then all the other
bishops after their ancientes. 31 //. 8, c. 10, s. 3.

Mitbo^ 111

If one 18 a privy Gouncillor^ be takes place after the bishop Atteik^ace
of Durham. Co. Li «. 94. '^^^^"•■

As to the general right of the bishops to sit in parliament,

vid. 1 Bum's E.L. 218; 4^ Inst. 1 ; 2 Inst. 585, 586, 587 ; Gibs.
Cod. 127 ; Seld. ''Tit of Honour;' 575.

In criminal cases, the lords spiritual usually withdraw and
make their proxies. 3 Inst. 31 ; Gibs. Cod. 125, Foster's Crown
Law, 247.

The lords spiritual enjoy the legal privileges, (trial by PnvUegw.
peers excepted, if they have not that also) that the temporal
barons enjoy. Co. Litt. 31 a.; 3 Inst. 30; Gibs. Cod. 133,
Tr. per pais. 10.

Prelates are included by name in the statutes which give
the actions de secondalis magnatum. 2R.2yC. 5; 12 R.!, c.ll.

None but the king's court of record, as the court of
comnaon pleas, the king's bench, justices of gaol delivery, and
the like, can write to the bishop to certify bastardy, loyalty of
matrimony, and the like ecclesiastical matter ; for it is a rule in
law that none but the king can write to the bishop to certify,
and therefore no inferior court, as London, Norwich, York or
any other incorporation ; but in those cases the plea must be
removed into the court of common pleas, and the court must
write to the bishop and then remand the record. 2 Inst. 99 ;
Co. Zf//. 134, 245 a. ; I Roll. Abr. 361 ; 2Lev.250; ffoi. 179,
ante 7&

By the canon law, the dean and chapter are guardians Bbboprick*
of the spiritualities during vacancy of the see. 2 Inst. 15; |||^*q^

Wood, b.l,e. 8; Godol. Ab. 99. But now, generally, here in L.

England, the archbishop is guardian of the spiritualities of any spiritaali-
see within his province, by prescription or composition ; whereby ^*
allepbcopal rights, and all ecclesiastical jurisdiction are enjoyed
and exercised by him or his commissioners for that time.
Godot. Ab. 39, 42 ; Ayl. Parer^. 125.

When an archiepiscopal see is vacant, the dean and chapter
is of common right guardian of the spiritualities. Godol.
Abrid. 41.

By the 25 H. 8, c. 21, s. 16, when the see of the archbishop
of Canterbury is void, the guardian of the spiritualities shall
grant fieiculties, licences, and dispensations (throughout both
provinces) as the archbishop might have done.

The guardian of the spiritualities has all manner of jurisdic-
tion of the courts, has the power of granting licences to marry,
probate of wills, and administration of intestates' estates during
such vacancy ; and also of granting admissions and institutions :
but he cannot, as such, consecrate or ordain, or present to va-
cant benefices, or confirm a lease. GodoL Ab. 21, 39.

112 ^iifbopfi^

BithoprickB The guardian shall have the perquisites that happen by the ex-
vacatioD. ecution of such power, until the new-elected bishop may by law

execute the same. Watts, c. 40.

Spiritoali- After election and confirmation (and not before), the bishop
^^ is fully invested with a right to exercise all spiritual jurisdiction;

and the power of the guardian of the spiritualities ceaseth.
Gibs.lH.
Temporali- The Custody of the temporalities of every archbishoprick
^^ and bishoprick within the realm, and of such abbies and prio-

ries as were of the king's foundation, after the same became
void, belonged to the king. Co. Litt, 90 a, ; Fitz. N. B. SS;
2 Roll. Ab. 33 ; 7 B. ^ C. 1 13 ; 3 Bing. 236. Therefore,
if a bishop have an advowson, and the church become void, and
the bishop die, the king shall present by his prerogative, t A.
Options. onie "Advowson" But in the case of options, which is a convey-
ance to the archbishop by every newly-made bishop, of one
such benefice belonging to the see, as the archbishop shall
name, if the archbishop die whilst the bishop continues in
his see, such option goes to the executor of the archbishop, or
to his administrators if he die intestate. S Bing, 9AO ;
7 £. ^ C. 167; AmU. 98, ante ''Adtowson."

If the crown restore the temporalities to the successor witli-
out filling up the vacancy, the right to fill it up remains with
the crown. 7 B. ^ C. 186.

By the statute of the 17 Ed. 2, st. 1, c. 14, the king shall
have escheats of lands of the freeholders of archbishops and
bishops, when such tenants be attainted for felony in time of
vacation, whilst their temporalities were in the king*s hands to
give at his pleasure, saving to such prelates the service that
thereto is due and accustomed accordingly, the temporalities
beinff in Queen Elizabeth's hands, a copyhold escheated ;
which was granted by the queen, and it was held to be good.
Cro. El. 754.

The I Ed. 3, st. 2, c. 2 provides. Because king Edward,
father to the king that now is, caused to be seized into his hands
the temporalities of divers bishops, with all their goods and
chattels, without any cause, and the same held by a long sea-
son, and continually thereof took the profits, the king wills and
granteth, that from henceforth it shall not be done. And by
the 14 Ed. 3, st. 4, c. 3, the king's power is restrained. " We
" nor our heirs shall not take the temporalities of archbishops,
** bishops, or other people of holy church, without a true and
just cause, according to the law and judgment thereupon
given." Vid. also 14 Ed, 3, st. 4 ; e. 4 ^ 5.
By the 25 Ed. 3, st. 3, c. 6. Because the temporalties of
archbishops and bbhops have been oftentimes taken into the

li
it

^mO»1i* 113

king's hands for contempts done to him upon writs of auare non .Bbhoprickf
admisii^ and likewise for divers other causesi whereot the pre- va^on.
lates have prayed the king that no such taking shall from

henceforth be made. The justices who shall give judgment Temporali*
against any prelate in such case, shall receive for the contempt ^^
a reasonable fine at the time of the judgment) or after the
judgment, when the party will offer himseli as a remedy to the
sncccsssor in case of waste.

It is provided by 58 ^. 3| c. SI, that if abbots, priors, or Wuts.
other prelates of the church have sued their right, and be pre-
vented with death before judgment given therein, their succes-
sors shall have their actions to demand the goods of their
church ; and the successors shall have actions for such things
as vrere lately withdrawn by violence from the church, before
the death of their predecessors, though their said predecessors
did not pursue their right during their lives. And if any in-
trude into the lands or tenements of such religious persons in
the time of vacation, of which lands their predecessors died
seised, as in the right of their church, the successors shall have
a writ to recover their seisin ; and damages shall be awarded
them, as in assise of navel disseisin is wont to be«

1. The archbishop hath two concurrent jurisdictions, one as Metropoli-
ordinary, or bishop within his own diocese, the other as super- tanpowerof
intendent throughout his whole province of all ecclesiastical ^'<^^^"^<>P*
matters, to correct and supply the defects of other bishops who
are his suflragans. The archbishop is ordinary of the whole
province, yet he may not, as metropolitan, exercise his jurisdic-
tion over the subjects of his suffragan bishops, except in certain
cases specially allowed by law. GodoL Ab* 19. But his ec«
clesiastical acts within his prorince, though done within the
jurisdiction of one of his bishops or other ecclesiastical person, '
are only voidable, and not absolutely void, as the granting ad-
ministration when there are not bona notabiliaf3 Lev. 212;
5 Co. 30 a.; Com. Dig. tit "Administration,'' or instituting to an
advowson within a peculiar in his province. He may hold a
court where he pleases within his province, and officiate in per-
son as judge, 1 Salk. 134 ; 1 Lord Raym. 447, 539, or by his
vicar-general. The will of a party who died in Scotland, and
all whose property within the province of Canterbury was
within the diocese of London, (some of it in the funds,) having
been proved in the consistory court of London, and the de-
puty-registrar of that court having appeared under protest to a
monition to transmit such will ; the court of prerogative will
not overrule such protest ; holding a prerogative probate un->
necessary, as the archbishops and bishops of London have a
concurrent jurisdiction in such cases ; it will however, in aid of

114 MffyOj^.

Metropolis justice^ grant an additional probate, if lequired, limited to the
Lf"aror" property in the funds. Scarth v. Buhop of LomUm, 1 Hag. 625.
bishops. If the archbishop visit his inferior bishop, and inhibit a biabop

during visitation ; and the bishop hath a title to coUale to a

benefice within his diocese by reason of lapse, yet the bishop
cannot institute ; but the clerk ought to be presented to the
archbishop, and the archbishop is to institute him, by reason,
that during the inhibition, the bishop's power of jurisdiction is
suspended. GodoL Ab. 19. 1 Bum's E. L.23i

Concerning the deposing or depriving of a bishop, there is
some confusion in the books; but infect they are distinct thinga.
Deposition implies the taking away, or putting a bishop from
the office itself, or degrading him from, the order of bishop ;
deprivation only takes from him the exercise thereof in such a
particular diocese, leaving him still bishop as much as he was
before, and only vacates his promotion* 1 Bum's E. L.2SI*
The consecration of a bishop is character incktibilis, and though
suspended or deprived he still continues bishop* GodoL Ab. 49.
Gibson says, that the archbishop has a right to deprive a
suffragan bishop, and refers to the case of Lucy v* the BUhop of
St. Davids. Lucy promoted a suit, ex qffieio^ before archbishop
TenniBon, in a court held at Lambeth before the archlnshop him*
self in person, (who called to his assistance six other bishops), for
simony and other oflfencea, and the bishop of St.Ihivid'smored
the court of king's bench for a prohibition : a probibitioD being
denied, the archbishop went on, and many acandaloos things
were proved against the bishop, to the satisfaction of the court.
But, when they were going to give judgment, the bishop,
though he had waived the privil^e of his peerage, and had
gone on submitting to the authority of his judge, yet, . then re-
sumed his privilege. No regard, however, was had to this plea,
since it was not oflFered in the first instance; and the arohbisbop
pronounced a sentence of deprivation Car^A* 486; Ld* Rasfm.
541 ; 1 Salk. 135.

Upon this, the bishop apj^aled to 4he delegates, and. per-
ceivim that they were of opinion to afiirm the sentence, he
moved again for another prohilNkicm to be granted to the conn
missioners' delegate, to stay their proceedings in the appeal
from the sentence of the ardibishop upon a siMMstimi* 1st*
Thai by the canon law, the archbishop alone oouTd not deprive
a bishop, ^dly. That the delegates refused to admit his al«
legations.

As to the first, HoUf C. J., and the vest held, lliat an arch-
bishop hath power over his suffragan bishops, and may deprive
them ; that though there may be a co«ordination amongst the
bishops, jure dwino^ yet there is a subordination, jure ee^

elesiastico qnd Immandf not of necessity from the nature of Metropoli.
their offices, but for convenience: for what other purpose ^°^h*'
hav« archMshops been institoted by ecclesiastical constitutions 7 bishops.

indeed, tfie same superiority, whicn gives him power to pass ec-

clesiafitieal censures upon the bishops, will give him power to
deprive, it beinff only a different degree of punishment for dif^
ferent degree of offences.

But HoU said, that though he was ftilly satisfied that the
archbishop hath such jurisdiction, yet he would not make that
the ground of denying a prohibition in this case: The matter of
the suggestion being, that the archbishop is restrained by the canon
law, from proceeding without the assistance of others : but whether
he be so or not, is matter proper for the conusance of the dele*
gates upon the appeal, but is no ground to prohibit them from
proceeding; and it b without precedent to grant a prohibition
to the eccksiastica) court, because they proceed there contrary
to the canons.

Then it was moved, that the court would grant a mandamus
to the ddegates, to admit the bishop's allegations \ and it was
eompared to the cases where they grant mandamus's to compel
the granting of probates of wills or letters of administration*
But by Holtt the king's bench cannot grant a mandamus to
them, to compel them to proceed according to their law :
Indeed a mandamus is grantable to compel probate of wills, be-
cause it concerns temporal right; and to compel the granting
of letters of administration, because the statute directs to whom
they sbaD be granted* But in the present case a mandamus
was not granted.

A prohibition was denied, and they ordered that the sug«
gestion be entered on record, that they might ent^r their
reasons of denial* Ld. Raym. 589,

The bishop petitioned to have a writ of error, which pe<^
tition was raferred to the attorney general ; who certified that
a writ of error would lie, upon which the whole record was brought
by tbe chief justice into parliament, and afterwards, upon
hearing of his opinion, the lords of parliament were of opinion,
that a writ of error would not lie in this case.

And Lord Raymond says, that HoU told him, if the lords
had been of opinion, that a prohibition ought to have been
granted, yet he never would have granted it. Ld, Ratfrn. S45.

In \9SkS, the bishop of Clogher was deprived for enormous
and scandalous offences.

Formerly, many bishops had suffragans, who were consecrated Suffragans.
as other bishops were. These, in the absence of the bishops
upon embasnes, or other business, did supply their places in
matten of orders, but not of jurisdiction. They were anciently

I S

SuffragaoB. called chorepiscopi^ or bishops of the country, by way of dis-
tinction from the proper bishops of the city or see. They were
also called subsidiary bishops, or bishops suffragan, {from
suffragarif to help or assist); and were consecrated by the
archbishop of the province, to execute such power and au-
thority, and to receive such profits, as were limited in their
commissions by the bishops or diocesans whose suffragans they
were. Godol. Ab. 30 ; 1 Bum's E. L, 246.

Suffragans have been now disused for many years. I Burns
E. L. 24b.
Co-adiu' ^o i^ ^^3 ^" ancient custom, that when a bishop grew very

ton. aged, or otherwise unfit to discharge the episcopal office, a

co-adjutor was taken by him or given to him ; at first, in order
to succeed him, but in latter times only to be an asristant daring
life ; in matters chiefly of jurisdiction, as in collating to bene-
fices, granting institutions, dispensations, and the like ; and in
this case it was not necessary, that such co-adjutor should be
episcopally ordained, for the duties merely episcopal, were dis-
charged by the suffragan, thus, the two objects of episcopal
care, orders and jurisdiction, were answered by the co-adjutor
and suffragan. 1 Bum*s E. L. 249.

Brawling, by 5 4* 6 Ed. 6.

At common law.

Of the witnesses necessary.
Smiting by 5 ^J- 6 Ed. 6.

Maliciously striking with weapons, or drawing weapons with
intent to strike, &c., by 5 ^ 6 Ed. 6.

Of the place.

Limitation of suits.

Prohibition.

Articles, form of.

Neitherprovocation nor self-defence an absolute justification.

Punishment.

Letters of request.

Who may be promoter in suit for.

J. HE sanctity of places dedicated to the solemn offices of
public worship, has always been, protected from violati<»i| and
from time immemorial the courts christian established id thia
country have been permitted to take cognizance not only of

BralDlmff anJIi ^mttms. 1 17

actual breaches of the peace, but of the use of violent and Brawimg
abusive words tending to induce persons to commit a breach of s^^^*" g'^d
of it. There was a time when disturbances in the church and 6, s. i.
church-yard were of frequent occurrence, and sometimes car- "
ried to great extremities, for the suppression of which the legis-
lature was induced to pass an act in the 5 & 6 of Ed. 6, which
still remains unrepealed, (a)

It is said by Hawkins, that many disturbances occurring in
sacred places are yisited with punishment, which, if they
happened elsewhere, would not be punishable at all as mere
quarrelsome words ; and some acts are criminal which would
even be commendable if done in another place, as arrests by
virtue of legal process. 1 Hawk. P. C, c. 63, *. 28.

By the 5 ^6 Ed. 6, c. 4, s. 1. It is enacted, ''That if any
person shall by words only, quarrel, chide, or brawl in any
church, or church-yard, it shall be lawful for the ordinary of the
place, where the same shall be done and proved by two lawful
witnesses, to suspend any person so offending, if he be a layman,
from the entrance of the church, and if he be a clerk, from the
ministration of his office for so long as the said ordinary shall
think meet according to the fault.** This statute was passed to
repress the disturbances that in the early ages of the Reformation
were too apt to arise between the professors of different religions;
it has since been applied further, to repress quarrels and offences
violating the sacredness of holy places. The statute was in-
tended to repress all interruption and disturbance even by
words only, of the congregation met for public worship. 2 Add.
139. But the act did not create the offence, as it subsisted by
the common law before the statute was enacted, there being
no doubt but that the general ecclesiastical law protects the
sanctity of public wor^ip, and that the ecclesiastical court
has a right to interfere to correct or punish any act of dis-
turbance. (6) A party therefore may proceed either upon

(a) The ecclesiastical law commissioners by their general report,
JO. 63, recommend that the above statute should be altogether repealed,

iff) In the year 1415, which was previous to the statute, the wives
of Lord Strange and Sir John Trussel, contending for " presidency " of
place in the church of St. Dunstan's in the East, their husbands vrith
all their retinue engaged in the quarrel, and within the body of the
church some were killed and many wounded ; for which profane riot
several of the delinquents were committed, and the church suspended
firom the celebration of any divine oiHce. By process in court christian
Lord Strange and his la^y were adjudged to be the criminal parties,
and be was adjudged to walk b^eheaded with a wax taper lighted in
his bandy and his lady barefooted, from the church of St. Paul to that

11^ JSratDlttqr tMli itaii

b M f r

Bfawiiag. |{|^ statute or upon the ancient law : for wherever a statute leates
At common ^" oflfence as it found it| and only introduces additional punish-
law. nient, a party may proceed on ei(lier« Huickins v« Dumford, 1

Hag. Con. 182; S Do. 138; 1 PkiU. 283 ; 1 Add. 148; 1 Hag.
15 ; Weymouth v. CoUin$, Ld. Raym. 860 ; 1 Bmr. 240 ; 4 JS.
onhewiu 4f.C.SI5. If the proceedings be under the statute that re*
quires that the offence shall be proved by two lawful witnesses;
but by the ancient ecclesiastioal law, one wUneM ^ the fact,
and one to the eircuntstances, are sufficient, and would be so
still in a proceeding for brawling at common law» according to
the ordinary rule of evidence in the ecclesiastical courts of this
country. But as the statute requires two witnesses to the fiust,
the court cannot hold that such words of a statute would be
satisfied die same way, as if the proceeding were at common
law. I Hag. Con. 182.

The words of the statute are '* auarrel> chide, or brawl," atid
it has been held, that words spoken by a clergyman during
divine s^rice by way of admonition of a passionate tenor, though
expressed without any tone of passion, were within the statute,
and the clergyman was suspended for afortnight* Cox v* Goodday^
2 Hag. Con. 138. So also the omitting parts of the first lesson,
and the reflecting in the midst of the service, on those who que»«
tioned his right to do 80> is within the statute, and punished
with suspension for a fortnight and costs* Newbury v. Goodaim,
1 PhiU. 282. The publishing of a notice by a private parishioner
during divine service, and of his own authority calling a veatry
in the middle of the year, for the purpose of choosing new
churchwardens, is mim& facie within the statute. Dqwev.
Williams^ 2 Add. 130. So also a formal notice gir¥en to a
clergyman just about to ascend the pulpit, that another gentle-
man who had been elected to the situation of lecturer, by a nuyo^
rity of the parishioners, but to whose election the rector bad not
consented, was in attendance and ready to preach, was held to
be a brawling ; tumult and disorder having followed ; and which
was considered by the court to have been tiie actual, if not the
designed cause of the delivery of this notice. Clinton v. Hatch"
Ofrdf I Add, 96. With regard to what may constitute the of-«
fence, there is a discretion in the court which would induce it
to consider time and place; that might be chiding and brawl-
ing in a church whicn might not be so in the vestry ; the vestry
is a place for parish business, and the court would not interpose
further than might be necessary to preserve order and decorum.

of St. Dunstsn, which being re-hallowed, the lady, with her own hands
filled all the church vessels with water, and gave to the altar an oma*
meat wortfi 10/1, and he one worth 5/. ff^en. Par. AnOq. 560,

SralDlftiir n^ ^taiittng^ ii9

i Hag. Cam. 185. Therefore it has been held that in a vestry Bnwiing.
meetmg tor cIyiI parposes^ as a full Utitude of discasston must
be allowed, mere coarse expressions do not constitute brawUng.
2Hag* 566. But even there, parties must not press their opinions
in an indecorous and irreverent -manner. S Hagm S9d.

The words of the statute constituting the offence of '* smiting** Smitiog.
are as ftdlows:-^'^ If any person shall imite or lay violent hands

upon another, in any church or churchyard, then, ip90 facto Sj ^ ^ \
eiery pen»n%o otfendm;. ri>.ii be (kem^d exUZaiAc^X^ ^2''
and be excluded from the fellowship and company of Christ's
congregation*** ^ 4* 6 Ed, 6^ c. 4, s. %. Nothing short of
an actual blow is sufficient to establish the offisnoe of smiting, for
a threatening posture, though an assault at common law,
even without a blow, is not, in the ecclesiastical courts, held
to be a '* smiting," within this statute. Jenkins v. Barreii^
1 Hag* 14.

In cases of bniwhng the court has a diseretion to say whether,
under all the dreomstances of the case, the charge is suflictently
established ; but in oases of smiting, if an act be proved the court
is bound to proceed to sentence; ^ Hag. o66. The evi-
dence of the smiting ought to be conclusive, for as it is a crimi-
nal matter the defendant is entitled to the tenefit of any doubt.
In a case, thmefore, in which the delegates did not consider the
evidence of smiting conclusive, they reversed two concurrent
sentences, of the consistory court and the court of arches.
Scales V. Hoite, 3 Hag. 371.

See the Saxon and Welsh law. GodoL Ab. 138.

In proceeding upon this sectbn the ordinary may use a con*
viction at common law, for independently of the statute, this
offence of smiting is still indictable at common law $ but a pre-
vious conviction is not necessary. Hob. ^1 ; 1 iBurr. S43. So
that a man may be convicted in the temporal courts, and pu*
Dished in the spiritual. Ibid.

There is a further clause to repress with more severe punish-
ment the smiting with weapons.

By sect. 3. ** If any person shall maliciously strike any person Maliciously
with any weapon, in any church or church-yard ; or shall draw ^^^^
any weapon in any church or church-yard, to the intent to strike, pons.

and with the saane weapon; he shall, on conviction by verdict of

twdve men, and by his own confession, or by ttoo lauful wii* ^ ^„^ ^^
nesecMj at the assises or sessions, be adjudged to have one of s.2. ' '
his ears cut off, and if he have no ears, he shall be burned in
the cheek with a hot iron, having the letter F, whereby he
may be known and taken for a fraymaker and fighter; and
be^es, he shall be and stand ipso faeto excommunicated as
is afor^aid.**

It is not enough to say, in an indictment on this section, that
the defendant struck, but it must be averred that he did it ma-

120

drafDUimr Anil inaiHus*

Malicioasiy
striking
with wea-
pons.

By5&6
£d. 6, c. 4,
s 3.

Place.

Cathedrals.

Limitation
of suit.

Prohibi-
tion.

Articles,
fonns of.

liciously. Noy. 171. So also the drawing the dagger or other
weapon must be laid in the indictment, with intent to strike, or
it will be bad. Cro. Eliz. 231 .

If a man take up a stone in the church^yard, and offer to
throw it at another, or having a hatehet or axe in bis hand, and
offers to strike, it is not within the statute, for these ave not wea-
pons which can properly be said to be drawn, as a sword or dagger.
Wais, c. S*.

In order to constitute the offences of " quarrelling, chiding
or brawling,*' in the first section of the statute of 5 4r 6 Ed, 6,
c,4, orthe offence of "smiting,'* generally in the second, or *' with,
weapons " in the third, it is necessary that the act complained
of should have taken place either in the church or diurch-yard.
In the case of fViUiams v. Goodt/er, 2 Add, 463, a question was
raised whether brawling in a room of a public-house, then and
ordinarily used as a vestry-room, and which was built partly in
and partly out of the church-^yard, was within the statute; but
the point was not decided. But where brawling and smiting in
a vestry, attended by only four or five persons, took place in a
room situate within the churchy-yard, and used as a vestry-room,
it was held that though of a very slight ecclesiastical character,
yet it was within the statute ratione loci^ 3 Hag, 169.

In Detheok's case, who struck another in St. Paurscathedral**
yard, the court were clearly of opinion that cathedrals at
well as other churches, were within the meaning of the statute,
Cro. EUx. 224f ; 1 Leon, 248.

By 27 G. 3, r. 44, it is enacted, that no suit shall be brought
in any ecclesiastical court for striking or brawling in any church
or ohttroh«yard, after the expiration of eight calendar months
from the time when such offence shall have been committedL

No prohibition lies to the ecclesiastical court in proceedings
upon the 1st and 2ud sections of the statute; upon the third,
if that court proceed to trial or to punishment without a pre^
vious conviction in a temporal court, a transmission of the sen^
tence and a declaration, it seems that a prohibition would lie*
I Burr. 244,

But if the ecclesiastical court were to proceed for damages on
either clause, the court of K. B. would prohibit, for the proceed-*
ings in the ecclesiastical courts are /»'o salute ammw, ^' we pro-
^' ceed to punish, they to amend/' Per Lord Mansfield, ibid^

The proceeding under the statute being of a criminal nature,^
I Hag, Con* 1, great strictness is observed in a statement of the
offence, and therefore in a suit for brawling under the statute
the words of brawling must be set forth in the articles. 1 Hixg*
14; e Add, 140; and vid. also 1 Hag. Con. ISSf 1 Lee, £66,
Nor can a charge of ** smiting," be supported under the ffeneral
words '* other enormous ecclesiastical offences." Ibid, Indeed
in the proseiHitipn of criminal suits in the spiritual coufts, it is 4

general principle that the artidefi must be so specific as toafibrd Articles^
a fair opportunity for defence. Ibid. 4S. And in aQ cases of ^™*^'
office, tne whole transaction should be fairly and candidly stated
at once, in order that the judge might have an opportunity of
conaidering whether it was a fit case in which to allow his office
to be promoted. S Hag. 174. SeA vid. 3 Hag. 856. It is
always laid as a matter of form that the words gave scandal^
if the words are of such a nature as to give scandal, the
proof of impression on other persons around is immaterial.
The only question is, whether they amount to an offence under
the statute. 1 Hag. Con. 18S. It is not necessary that wit-
nesses should depose that the defendant chided, brawled, and
qoarreUed, it is enough to show words of brawling used by him.
1 Lee, 266.

In framing the articles, it is prudent not to colour them beyond
the amount of proof, it having been said by the court when such
a course had been adopted, " these facts show that the articles
are drawn in an exaggerated spirit, and that circumstance may
not only affect the costs, but the degree of punishment." 3 Hag.
172. In debating the admissibility of articles in a suit for
brawling, the question is whether they contain a substantive
charge of brawling and riot in a sacred place. The court can-
not usten to a suggestion that they do not truly detail the cir-
cumstances. 8 Has. SS6; supra j 8 Hag. 174.

As the object of the statute, as well as of the general law, is ProToca-
to protect the sanctity of sacred places and their appurte- ^g° ^Z}^^
nances set apart, for the worship of the Supreme Being and
for the repose of the dead, in which nothing but religious awe
and christian good-will between men should prevail, and to pre-
vent them from being converted with impunity into scenes of
boman passion and malice, of disturbance and violence ; the
sacredness of the place being the object of this protecting law; it
is no pari of the inquiry, where more than one person is implicated
in the transaction, which of the two persons so implicated is
roost to blame, or which of whem began the quarreL Pabfierv.
Rqffey,2Add. 144; \Hag. Con. 182; 2Lee,5U. Theobjectof
the statute b not to protect individuals from personal oflence; but
to protect the church and church-yard from profiination, and to
preserve order and decency in the meetings which may be held
within them. Austen v. Dagger y 3 Pkil. 120 ; 2 Hag. 730 ;
3DO.S56.

In this, as well as in other criminal suits, a defensive plea, ^^^^^^ <>'
tending to show the promoter's motives to be malicious or vindic« P'^""®^^''-
tive, is admissible, as bearing on the credit of his witnesses, and
on costs ; but it must be specified and confined to his conduct
with reference to the defendant, and the presumption will
always be, that the proceedings are adopted upon honest motives,
unless there be strong proof to the contrary. 3 Hag* 362 \

122

Motivet of
promoter.

Self-de-
fence.

Puoish-
neot for
brawling.

CoromoQ
law.

Statute.

Punish-
inent for
smiting.

/6. 17. Nor is it any defence in a proceeding under die statute^
to show that the promoter was the aggressor* Huet v« Dash^

It is said, that if one be assaulted in the church or chorch-
yard^ he may not beat the other or draw a weapon there in his
own defence, for it is a sanctified place, and he may be punished
for it by die.aixiire statute. Oo. Jac* 867; 1 HmiA^ ]89.

But chnrohwardens may use force to repress disturbance, may
take a man's hat o% or turn an obstinate distarber oat of church ;
but it must be a strong case indeed, to justify an inversion of
this order of tilings for the constables to rake a churchwarden
or sidesman into custody. % Add. 9fy\ ; Hawkn ibid.

By sec. 1 of 5 4r 6 Ed, 6, c. 4, it is enacted that it shall be
lawful unto the ordinary, where the offence of InrawKng, Ac.
shall be done, to suspend every person so ofiending ; if be be
a layman from the entrance of the churchy and if a clerk, from
the ministration of his ofBce; for so long as the ordinary shall
think meet according to his £iult.

By the ancient ecclesiastieal law, the judge might for this of-
fence impose censures, or might admonish, or in case a minister
was the offi^nding party, he might even sequester his benefice,
far Ld^ Stawell, 1 Hag. Con. 18S.

The statute leaves nothing to the discretion of the judge, but
the duration of the suspension ab ingressu ecelesue. Huet v.
Dash,. 2 Lee, 511. In Palmer v. Roffey, % Add. 149,
Sir J. NiehoU said, " the act of parliament directs as
''a: punishment, that the offender, if a layman, shall be
'* suspended, ab ingreesu eccteeim, at the discretion of the
'* erdinwy* In these days this mode of punishment may nor,
*' in all cases,, be very appropriate; but in obedience to the
'* statute, I shall suspend t»e party ab ingressu eeeteHte for
** one month." But it is not obligatory on the court to pass
this sentence in all cases. In one case, where only pa#t of the
charge was proved, the oourt considered it unnecessary to sen*
tence to suspension, but contented itself with an adiaotrition to
ibe defendant to refrain from sudi conduct in future, and con-
demned him in the payment of thirty pounds,fiowiii0 expenearmm.
Jarman v. Bagster, 3 Hogg. S60.

By the 2nd section of the above statute, '* If any person shall
smite or lay any violent hands upon another in any ehitreh or
church^yard, then ipso facto every person so oflfending shad be
deemed excommunicate, and be excluded from the followship
and company of Christ's congregation.*'

In the case >of brawling, &c., the court, as has been seen
above, has a discretion as to the degree of punishment given
to it by the statute ; but in the case of smiting, the words are
imperative. The penalty for the ofienOe of smiting in a sacred
place is fixed and certain, vis., that the person so ofiending

shall be de^tned eaccoawmBimtQ, &C.9 and. the court has no Pttimb-
power to aHer or vary iw This was the state of the law till the year j^^/^*^

1813» when an act was passed, 53 Geo. 3, c. 127, -which in —

some degree effeeted an aiteraitOiB bydhanging the punidinient
annexed to die penalty of exoommunication. And which, though k
does not relieve the ceiirt firou the neoesatty of pronouncinff such a
sentence yet the person excommunicated: incttratno dvU peoaU
tiea^ exeept such imprisonment aa the court, in the exercise of
its discretion, may .choose to direct, not exceeding six incoiths*
Haile y. Sealet, 2 Hag. 69jn; 3 H(^. 17&

In apportioning punishment^ the court always considers thb
place where the act wi» committed. In Lee v. Moithews^
3 Hag. 176^ Sir J. NichoU said, «* Here die transaction did
" not take |Jace in the church, nor yet in that .part of the chordi-
" yard appropriated to relisious piurposes-^the Christian bu-
rial of die dead, but in die vestry-room fvii^re the temporal
concerns of the parish are transacted: and it is merely
** ratiane loci, because the building stands on conaecrated
'^ ground within the precincts of die church-yard, diat it becomes
** an ecclesiastical ofience at alL The place is of inferior
*^ sanctity, and the offence, therefore, of a comparatively slight
** ecclesiastical character, for with an assault on the individual
'' the ecclesiastical court has nothing to do," — smiting, as well as
brawling being proved, the punishment was suspension ab t»-

fre^Mu eeciema for a week for the latter, and twenty-four
ours' imprisonment for the former.
Under the 53 G. 3, e. 187, #• 3, the court must certify the
sentence to the court of chancery. 8 Hag. 567, in noid. And
there must always be a declaratory sentence in the spiritual
court, for no process can issue without a sigmficapU from die
spiritual judge; and vUL under the old law, BUson v. Chapman^
COS. temp* Hardwicke, 190,

For this third offence of smiting with weapons, the act Punish.
inflicts a double punishment-*-one temporal, the other spiritual ; "^°5 ^^^. .
the temporal punishment the loss of an ear, or the marking on tviKiiMns^^^
the dieek (a) ; qfter caneiciion in a temporal court, the spiritual
punishment enacted by the statute is that ''every such
'* person be, and stand ipso facto excommunicated as afore-
" said." 1 Burr* £44. As to excommunication, tnd. supra*
53 G. 3, e. 127.

In the case of Dawev. WilUams^ S Atld. 140, it was sug* uttenof
gested npon the authority of some ancient diciat Hob. 186, that request.
upon the true construction of the statute of citations, 23 Hen. 8,

(a) ** This is a sentence which we are persuaded would never be
executed, and therefore such an enactment ought not to remain on the
statute book .7 Per Ecclesiastical Commissioners' Gen, Rep. ^^,

124

Bratoltns anil ^mttms*

Letter! of
request.

Who may
promote.

Costs.

c. 9, a suit for brawling cannot be brought in the court of
arches by letters of request, but the objection was over^ruled ;
but a prohibition being prayed, Abbott, C. J., in discharging
the rule nwt , said, " Taking this offence to have been created
by the 5^6 Edw. 6, c. 4, I should think that the authority
hereby given to the ordinary is to be exercised in the same
''manner as any other authority given to that officer, now one
" mode of exercising his authority is by letters of request to the
'' archbishop or his substitute. But Lord HoU appears to have
** been of opinion that the offence of brawling was not created by
''this statute, and I think that his opinion was correct. If that
" be so, all difficulty is removed, and there can be no doubt that
" the court of arches may derive jurisdiction by letters of re-
" quest; " the rule was discharged with costs. Ex parte Williams,
A^B.% a Sid ; vid. also 1 Hag. 16.

The statute 5^6 Ed, 6, not having directed who should
prosecute, any party whatsoever may promote articles* ^ Lee,
514. But in a case where the promoter, a private individual,
was proceeding vindictively, and had in the articles exaggerated
the smiting, and suppressed his own brawling expressions which
provoked the smiting, the court directed the matter to stand
over for private arrangement. 3 Hagg. 69.

The ecclesiastical courts are not disinclined to admit suits of
this kind, 1 Hag. Con. S; for it is as necessary now, as when
the law was made, to prevent the profanation of sacred places,
and to repress such conduct at meetings where party and passion
ought to find no place. Austen v. Dugger, 3 Phill. 125. As
to costs in, vid. tit. ** Costs.**

125

Burial.

tn charch-yard«

Church or chancel,

Yaulu and other prescriptive rights.
Fees for.
Mode of,

Iron coffins.

Woollen shrouds •
Of excommunicated persons*
Of suicides.

Of unhaptised persons.
Of dissenters of all denominations*
Of persons dying in debt.
Of bodies of persons cast on shore.

by shipwreck or otherwise.
Ministers refusing borial, how punished.

The most ancient modes of disposing of the remains of the Origin of*
dead, were by burial or burning, of which the former appears to
be the more ancient. The practice of sepulture also varied with
respect to the places where performed ; in ancient times caves
seem to have been in high request; then gardens or other
private demesnes of proprietors; inclosed spaces out of the
walls of towns, or by the vides of roads ; and finally in Christian
countries churches and church-yards. In this country, the
practice of burying in churches is said to be anterior to that
of burying in what are now called church-yards, but such a mode
of burial was reserved for persons of pre-eminent sanctity of life ;
men of less memorable merit were buried in enclosed places not
connected with the sacred edifices. About the year 750, a prac-
tice was introduced from Rome by Cuthbert, archbishop of
Canterbury, carefully to inclose spaces of ground adjoining
churches, which, when solemnly consecrated, were appropriated
to the burials of those who had been entitled to attend divine
service in those churches ; hence arises the right which seems
to be acknowledged, that every parishioner, entitled to Christian
burial has, of being buried in his own church-yard. Com. Dig*
Cemetery B., Gibs. ^58 a; S PhiU. 349; 2 B.Sf A. S06; WiUes,
536 ; ST.R. 364; 6 Taunt. 281 ; 1 Hag. Con. S08.

13a SoriaL

In church- gy |{|^ cuBtom of England every person, except those here-
^'' ' after noticed, may at this day be buried in the church-yard

of the pariah where he dies without paying any thing for break-
ing the soil; Degge, 146; WiUes, 596; 1 Hag. Can. 208;
ftB.% A.6m\ 6 Taunt. 911 \ 1 Salk. 332-384; though a fee
may be due by custom ; JViUes, 636 ; 1 Sali» 88S. But there
is no custom for a parishioner to bury his dead relations in a
church-yard as near their ancestors as possible ; 2 Wils. 28 ;
nor will a mandamus be granted to bury a corpse in a vault
or any particular part of a church-yard* 1 £• 4* -^d. 122*
It is said that a person may not be buried in the chnrch^vard
of another parish than that wherein he died, at least without
the consent of the parishioners or the churchwardensi whose
parochial right of burial is invaded thereby, and perhaps also
of the incumbent, whose soil is broken* The chttrchwardena
of Harrow on the Hill; 1 Bum's E. L. 258; who were ad-
monished by the ecclesiastical judge for permitting strangeni
to be buried in their church-yard* But churchwardens have
no absolute right to give permission, though perhaps they may
do so by custom ; but where such a privUege exists it should
be exercised sparingly* 6 Taunt, 211 \ 1 Hag* Con* 17.

The right tnat a person has to be buried wnere he dies, must
be limited to those who are parishioners at the time. The
canon law principle was, *^ ubi decimas persohebai pitms,
*' sepeliatur mortuusJ' A stranger and foreigner therefore
can have no absolute riffht to burial in the parish where
he dies, except such right as arises out of necessity; and,
supposing a wealthy person to die accidentally in the parish
adjoining to that where he usually resided, he can have no com-
mon-law right to burial in such second parish from the mere
accident of dying there* 6 Taunt. 277 ; 1 Marsh. 589.

But, although a parishioner has a right to burial in the
churchyard, he cannot insist on being buried in any part of the
church or chancel except by kave of the incumbent {a) GodoL
Ab* 13& In some foreign canons it is said, without consent of
bishop amd incumbents in others, without consent of bishop m-
incumbent; but our oommon law hath given this privilege lo
the parson only, to the exclusion of the bishop', as appears by

>H . * .11. — « I II t n

(a) The ecclesiasticid commissioners, in their general report, p. 72,
oonstdetf that the practice of btirial in tlie church is in many re^pecta
iajurkms^ in some InstaAces by weakening the &bric of the church, and
in others by its tendency to aflbot the lives or hedth of the inhabitants ;
and they are of opinion that the pcaeiioi fl^dnU be diseonfSiraed so fhr
as the same can be effeetod without tieachiii^ on >vesttd rights. Fid^
56 €tes* 3,.c. 45, «« 80*

SttriaL 127

tbe reaohition in tlie case of FraneU v. Ley^ Oo. e/oe. 967 ; tn cirareh-
that " neither the ordinary himself nor the charchwardens can ^^'
"grant licence to bury in the diurchi but the parson only ; the
" soil and freehold of the church beinc in him only." The reason
given in the case, however^ seems hasdly satUfisu^tory ; for it
would apply equally to the church-yard, the soil and freehold
of which is also in tbe parson, and where it is confeased that
the parishioners have a common^law right of burial. The real
reason seems to be that the practice of burying in churches
prevailed generally before the use of church^yards, but after-
wards was restrained and limited by the church ; one of the
early canons, which seems to have been made before Edward
the Confessor, the title of which is, " de non sepeUendo in
*' eoelenUf' restricted tbe privilege in future to priests or holy
men who, by the merits of their past lives, desetved such a
peculiar favour. Ken. Par. Ani, 592 ; 1 Bum's E. L. 256.
Sir Simon Degae says that anciently none were admitted to be
buried in the church but priests. Degge^ 146. The parson is
the person therefore wbo^ in his generM capacity of incumbent,
is appointed by the law to judge of the fitness or unfitness of the
person to have the privilege of being buried in the church.
Gib. 453; S B* &s C..S95. But tliere may be a prescription to
have separate burial in a particular vault of a parish church, as
belonging to an ancient messuage. Com. Dig. Cemeterv^ B.
Cro. Jac. 604; 8 B* ^ C. ib. The rector of >a parish has
not any right to grant away vaults in the eburob, which can
only be done by a faculty* He has, it is true, the fi^ebold of
tbe church, but only for pubKc purposes. Therefi)ffe he can
only grant leave fop the particular buriid about to take place,
and not any general right to bury in a particular place. 8 B.
% C. S95; vid. post "FmeuUif.''

A man may prescribe es tenant of an ancient messuage to
have separate burial in a vauk in the church, aisle, or choir, and,
if disturbed, may have an action on the cascb Cro. Jac. 604 ;
Gibs. Cod. 453.

In declaring o» a prescription for a right of sepulture in a
chancel against a mere wrong-doer, the plaintiff need not set
forth the conditions imposed by an ^sinal grant, and,, that, they
have been complied with, it is enou^ to state that the right
has been infringed, i Lord Ken. 183; 1 Burr. 440.

No ancient or modem constitution or canon fixed or pretended Feei for.
to fix any fee for sepulture or the burial office. Indeed the
canons could not fix any fee. Besides, it was considered that
consecrated grounds were amongst tbe re9 sacra f and that,
therefore, money payments fbr them were acts of simoniacal
complexion. But, to answer the charges which great in-
crease of population brings upon parishes, it has been of latet

128 SttrtaL

^— ^' years not considered unreasonable that the aetual nse should
contribute, when called for. But parishes are not left to frame
their own scale of charges, their tables of fees must have
the sanction of the ordinary, 8 PhilL 860 ; 2 Hag. Con. 855 ;
WUles 539, »; 12 Salk. SS2; 2 Lutw. 1030. At all times a
fee may hare been due by custom and prescription ; WiUe^, 536;
but this of itself shows that none is due of common right ; for
in every case where a licence is necessary, as where appKcatton
is made to the rector for leave to buiy in the church, the person
giving the licence may stand on his own price. 1 Salk, 334 ; 1 Hag.
Can. 211, The churchwardens may by custom also have a fee
for burying in the church, being chargeable for repairing the
floor. Wats. 39.

If a custom to charge a certain fee be denied, it is triable
only at common law. 1 Salk. 334.

By usage about London, the churchwardens take the money
for burying in the church or church-yard, and the parson has
nothing except for burying in the chancel. 2 Shower^ 184 ;
6 Tauni. 277 ; 1 Marsh. 589 ; 8 Keble^ 504; 1 Fentris, 374.

Sir Simon Degge says that the accustomed fee to the parson
for breaking the soil in the church-yard is 3^. Ad, and for
breaking the floor in the chancel is 6«. Srf. P, C. 146«

These customary fees have been recognised by the 9 Ann,
c. 1 1, ^. SI, and 3 G. 2, c. 19, s. S, fVilles, 359 n. In a case
where an agreement existed between successive vicars and
churchwardens that the fees for the burial ground taken of
strangers should be equally divided, and a new vicar refused to
accede to such arrangement, and prevailed on the collector to pay
over the whole to him; it was held that the churchwardens were
entitled to racover a moiety from the vicar in an action for
money had and received. Litilewoodv^ Williams^ 1 Marsh,
589 ; 6 l^aunt 277, But such action is not maintainable, to
recover burial dues from a churchwarden which he had paid
over to the treasurer of the trustees of a chapel previously to
the commencement of the action ; Horsfall v. Handley, 2 B.
Moore, 5; 8 Taunt, 136; as to the right of the incumbent
in respect of his conunon-iaw rights in the church and church-
yard. Fid, 2 Hag. Con. 864 ; 8 PhiU, 365.
6 & 7 \v. 4, Whatever fee on burials an incumbent was entitled to demand
c. S6, ». 49. previously to the passing of the 6 ^ 7 W. 4, c. 86, he may still
insist on, there being an express provision, by s. 4d, that
nothing therein contained shall affect the right of any officiating
minister to receive the fees now usually paid fer the performance
or registration of any baptism, burial, or marriage.
Mode of The mode of burial generally is a matter purely of ecclesias-

bHrUL li^ni cognizance ; 2 B, ^ A. 206 ; and, therefore, the common-
law courts will not compel a clergyman to bury in a particular

mode. iZ. 3 PiiU. 337, in iM/i?. If a mode of burial be Mode of
adopted calculated to bring an additional cliarge upon a parish, ^""^'
an additional compensi^tion may be insisted upon, and the eccle- ^f «tJLi rof.
siastical court will sanction a table of fees upon such a principle ^"'^
of increased charge; 3 Phill* 361; 2 Hag* 3S3; there-
fore, « table of fees in the parish of St. Andrew, Holborn,
requiring an additional fee of •£! 10 for a parishioner, and «£20
for a non-parishioner, buried in a coffin of any description of
metal, was affirmed and signed by lord Stowell. 3 Phill. 367. (a)

Formerly, for the encouragement of the woollen manufacture, ^Voniiea
the use of shrouds of woollen was enforced by 30 Car. 2, ^ b2 '^ '''"''*'
Car. 2; but those acts were repealed by 54 G. 3, c. 108.

By Canon 68, no minister shall refuse or delay to bury any Per«ont iMt
corpse that is brought into the church or churchyard (come- «'»tnicd to.
nient warning having been given him thereof before) in such Kxcommu*
manner and form as is prescribed in the book of Common "'c^^c^-
Prayer, except the party deceased were denounced excommu-
nicated majari ejtcommunicaiione fur some grievous and noto-
rious crime and no man able to testify hU repentance.

But, both before and since the Reformation, where evidence
appeared to the bishop of such person a repentance, commissions
have been granted, not only to bury persons who died exoom-
inunicate, but in some cases to absolve them, in order to
Christian burial 3 PhiU. 2&5 ; sed vid. 53 G. 3, c. 127.

Persons having laid violent handa upon themselves are ex* SuiciJe«.
cepted by the Rubric^ for they are supposed to have renounced
Christianity, and uncbristianized themselves. 3 Phill, 27ii.

With regard to them, it is. now provided by 4 Geo. 4, c. 52,
that the coroner or other officer shall give direction for the
private interment of the remains of a person felo de se, with-
out any stake being driven through the body of such person, in
the churchyard or other burial-ground of the parish or place
in which the remains of such person might, by the laws or cus-
tom of England, be interred. If tlie verdict oi felo de se had
not been found against such person, such interment to be made
within twenty-four hours from the finding of tbe inquisition,
and to take place between the hours of nine and twelve at
night.

(a) In this country the use of oofilns is extremely ancieat* Uiough pro-
bably it was not general. Funerals were formerly coffined and ancoffined,
and were charged accordingly. Some invohcrat or coverings, indeed have
been deemed necessary in idl civilized and Christian countries; but chests,
or trunks, containing tbe bodies, descending with them to the grave
and remaining there till their own decay, cannot plead either the same
necessity nor the same general use. 2 Hag. Con. 34 1 , S47 ; 3 Phill. 346.

130

Bttrtal*

PeiSOQS Dot
entitled.

Suicides.

Unbaptized

Distentera

In debt.

Persons
ship-
wrecked.

Church-
wardens
and over-
seers to
cause bo-
dies cast on
<(ea-shore to
be buried.

But by «• 2 it b enacted, that nothing therein shall authorize
the performing any of the rites of Christian burial, or alter the
laws or usages relating to the burial of such persons, except so
far as it relates to the interment of such remains in such
diurchyard or burial-ground.

By unbaptized, is meant a person not baptized at all, that i^,
not initiated into the Christian church by any form which can be
recognised as a leffal and valid initiation. It is immaterial
therefore whether tne person to be buried has been baptized
according to the form of the church of England or not, or whether
he has been baptized by a layman or a clergyman, provided the es-
sence of baptism according to what has usually been received
among Christians as such has taken place, ante **Baptism, 70/*

3 PAill, ^71« The church of England does not refuse the office
of burial to persons who are not conforming members of this
church : the Canon, indeed, says, that the parish minister is to
christen any child, and bury any corpse; and hence it has been
suggested that those only are entitled to burial who have been
first christened according to the form of the church, but there
is no such rule. It is the duty of the minister to bury all Chris-
tian persons dying within the parish. As to popish recusants in-
deed, they were required to be buried in the church or church-
yard, or a penalty was incurred by their representatives.
S Jac. e. 5 ; 1 Barn's E. L. 271 a; 3 PhiU. 295.

An opinion seems formerly to have existed, that the body of
a dead person might be hindered from burial by a debtor of the
deceased; Such a notion is said to have been founded on a mis-
apprehension of the law of the twelve tables.

Lord Ellenboraugk, speaking of the case, 1 Lev. 161,
where a woman who feared the dead body of her son would be
arrested for debt, was holden liable on a promise to pay in con-
sideration of forbearance said, ** It is impossible to contend that
** this last forbearance could be a good consideration for an iw-
'' sumpsit f to seize a dead body under any pretence would be
** contra bonos mores, and an extortion on the relatives : such an

act is revolting to humanity, and illegal, and therefore any

promise extorted by the fear of it could never be valid in law.**

4 East, 460.

With regard to persons shipwrecked, the st. 48 Geo* 3, c. 75,
enacts.

By sec. L *' That the churchwardens and overseers of the
poor in any parish in England in which any dead human body
is cast on shore, from the sea, by wreck or otherwise, shw,
upon notice thereof given to them, cause such body to be in-
terred, so that the expences thereof do not exceed the sum
allowed by such parish for the burial of persons buried at the
expence of the parish ; but if such body is cast on shore in any

Burial 131

extra parochial place where there are no churchwardens, &c., l'«'^»s
SQch notice shall be given to the constable or headborouj;h wre^c\ed.

thereoi^ who shall proceed as before directed in case of church-
wardens, &c,''

By sec. 2* " The minister, clerk, and sexton shall peribrm Minister,
the duties customary in other funerals, receiving the Uke fees ^^*- ^^ P^''
as in cases of burials at the expence of the parish.*^ o m u .

By sec* 3, " Every person who shall find any such body l*er»ons
on the shore, and within six hours after give notice thereof juch"bodic8
to such churchwardens, &c., or leave the same at their usual to give in*
abode, shall be entitled to five shillings for his trouble ; but no formation
greater sum shall be given for one notice, though there may be f " ^^ ^*
more bodies than one.*' tiiiilings.

By sec. 4. ''AH persons finding such bodies, neglecting
to give or leave such notice, shall forfeit five pounds."

Hy sec. 5. '' Ail charges attending the execution of this
act shall be paid by the churchwardens, overseers, constable,
or headborough for the time being of such parish or place."

By sec. 6. " One justice for the county or place in which .'ji'*iiccs to
such bodies are buried shall, by writing under his hand, direct chargeB.
the treasurer of the county to pay to such churchwardens,
constable, &c. such sum for his expences about the execution
of this act as he may deem reasonable, after the same have
been verified on oath ; and such treasurer shall pay the same,
and be allowed it in his accounts."

By sec. 7. *' Every churchwarden, &c., neglecting to re- Pamh ofll.
move such bodies for twelve hours after notice given or left ceraoeg.
in writing at his abode, or to perform the other duties hereby ^^ *"^'
required of them, shall forfeit for each offence five pounds."

By sec* 8. '* All penalties incurred under this act, if not
paid on conviction, shall be levied by distress and sale of the
offender's goods by warrant, under the hand and seal of any
justice."

By sec. 12* " All penalties attendant thereon, incurred
by this act, shall be paid by the person incurring the same ;
and the parish or place wherein such person ought to have
acted in his duties under this act shall be exempted there-
from."

By sec* 13. '' The lords of manors throughout England
shall pay to the churchwardens, constables, &c. of such pa-
rishes or places, such sums as they were accustomed to pay for
placing any such bodies into the ground in the state in which
they were found ; such sums to go in part discharge of the ex-
pences incurred under this act, and credit to be given for the
same by such churchwardens, &c. in their accounts with the
county."

K 2

132 JSuctaL

Penons Strictly, no tomb nor monument can he erected withovl A

---. — — By Canon 68, as has been stated above, anie 129, it is directed
Miniiteri |||||^ ^^ minister shall refuse or delay to bury any corpse that is
foM b«rkj! brought to the churchyard, convenient warning being given
him thereof, as prescribed by the Book of Common Prayer;
and if he shall refuse to do so (except as under) he shall be
suspended by the bishop of the diocese from his ministry by
the space of three months , or an information would be granted
by the court of K. B. WiUes, 5S8 n.

It seems also that in such a case the court of K. jB. would
grant a mandamus. R. v. Coleridge, 2 B. ^ A. 806.
Abbott, C. t/., says, '* If a clergyman refuse to bury the body of
*' a dead person brought for interment, in the usual way, then
'^ I am by no means prepared to say that this court would not
" grant a mandamus to compel him."

The onlv exceptions to this general rule are excommunicated
persons, who are denied Christian burial by the Caiioit,and un-
oaptized persons, and suicides, who are excluded by the Ru-
bric. 3 PhiU. 273 ; ante 129.
Registry The general provisions respecting the registering deaths, intro-

or death, duced by the 6 and 7 W. 4, c. 86,amended by the 1st. Vict. c. 22,
^. 4^c"86^ do not properly belong to this title, and will be found under title
1. 37/ * ' ^' Registration'^ Such of the provisions, however, of the for-
mer act as particularly apply to burials, it will be necessary to
notice. By s. 40 of the former act, it is expressly enacted,
that ** nothing therein contained shall affect the registration
*' of baptisms or burials as now by law established.'* So that
the parochial clergy may, and it is conceived ought, to continue
their system of registry precisely in the same mode as they
were used to do before the above act. But that act, by s. 27,
requires that every person buryins or performing any fimeral
or religious service for the burial of any dead body, shall receive
a certificate from the registrar, or in cases of inquest from the
coroner, and if they bury without either of such certificates,
and do not within seven days give notice thereof to the re>
gistrar, are made to forfeit not less than ten pounds. The
section is as follows : —

''That every registrar, immediately upon registering any
'' death, or as soon after as he shall be required to do so, uhsHX,
" without fee or reward deliver to the undertaker or other
" person having charge of the ground, a oertificate under his
*^ hand, accortlUng to the form of schedule £. to the act an*
" nexed, that such death has been duly registered, and such
'' certificate shall be delivered by such undertaker or other
^* person to the minister or officiating person, who shall be re-

Burial 133

quired to bury or perform any religious service for the burial Certi6catt
of the dead body ; and if any dead body shall be buried for ^f 2Sj^
** which no such certificate shall haye been so delivered, the by 6 and 7
'' person who shall bury or perform any funeral or religious ser- i^^^'«* ««•
^ vice for the burial, shall forthwith give notice thereof to the ''
*^ registrar. Provided always, that the coroneri upon holding Coroner.
'* any inquest, may order the body to be buried if he shall think
** fit before registry of the death, and shall in such case give a cer*
** tificate of his order in writing under his hand, according to
'* the form of schedule F. to such undertaker or other per-
'' son having charge of the said funeral, which shall be de-
** livered as aforesaid ; and every person who shall bury or per-
** form any funeral or any religious service for the burial of any
*' dead body for which no cer^cate shall have been duly made
** and delivered as aforesaid, either by the registrar or the coro-
'' ner, and who shall not, within seven days^ give notice thereof
** to the registrar, shall forfeit and pay any sum not exceeding
'* ten pounds for every such ofifence.**
The above form of certificate given in schedule E. is in the Ccrti6cat«

following form:— ofrep«rar.

^ I, John Cox, registrar of births and deaths, in the dis-
trict of Mary-le-^bone, North, in the county of Middlesex,
do hereby certify that the death of Henry Hastings was duly
registered by me, on the seventh day of March, 18S6. Witness
my hand this eighth day of March, 1836.

" John Cox, Registrar/*

The above order of the coroner is also eiven in the following Order of
form m schedule F. : —

''I, James Smith, coroner for the county of Dorset, do
hereby order the burial of the body now shown to the inquest
jury as the body of John Jones, Witness my hand this
eighth day of March, I8S6.

^^ James Smith, Coroner."

There is no prescribed form for the notice to be given to the Notice by
registrar by the minister or other person performing the funeral ^^"fjl^r-'
service in case he buries a body without a certificate from the gon offici-
registrar, or order from the coroner; but the following form, it AtiDgatthe
is conceived, would be sufficient :— ^''°«^-

** I hereby give you notice, that I have this day buried a dead
body, described to me as the body of John Jones, of No. S5,
Street, in the parish of St. Pancras* Witness my band,
this day of

** James Smith, Rector, Vicar, or Curate of the said parish.*'

•

ft is to observed, however, that it is not absolutely required
that such last notice should be in writing, though, doubtless it
would be more safe that it should be a written notice.

134

Canon %.ab). (a)

History of. Jx IS Said by Spelman that the decrees and canons of the
church of Rome were adopted, as they then existed, by the
clergy and people of England so early as the year G05, soon
after the establishment of Christianity in this country, he also
affirms that there were ecclesiastical councils in England and
Canons passed therein before the Conqnest.

About the middle of the twelfth century, said by Godalfikin
to have been in the year 1^30, a system of laws, under the in-
fluence of successive popes, began to be compiled and promul*
gated at different periods. This system has been generally
diffused through Europe, and prevails with more or less autho-
rity in different countries under the title of the Canon Law.

It consists of two principal parts, the decrees and die
decretals.
Thc«ie- About the year 1150, that which is called the decrees, or

creca. decreium, having been first collected by Ivo, bishop of Carnat,

was perfected by Gratian the monk, the confessor of pope Euge-
nius, who allowed them to be read in schools and alleged for law.
This is the most ancient work, as beginning from Constantinethe
Great, the first Christian emperor. RicUey^s View of Civil and
Ecclesiastical Lawy p. 74, ei sqq.
The decre- The dccretals are canonical epistles written by the popes or
^'*- popes and cardinals for the determining some matter of con-

troversy. These were compiled by llaymundus Barcinius,
chaplain to Gregory IX., and published at his command about
the year I^I, to which Boniface VIII. added a sixth book in
1S98. The Clementine constitutions, which appear to be in-
tended as a continuation of the decretals, were compiled by
Clement V. and published by his successor, John XXL, at
Avignon in 1317, who afterwards collected some further consti-
tutions, which were published about the year 1340. Ridley^ ib.
According to Stow and WcUsinghami Simon, a nrnnk of
Walden, first began to read the canon law at Cambridge. 2o
Ed. 1, A.D. 1297.

A seventh book of decretals and a book of institutes wei*e
added by Gregory XII., under whose sanction the Corpus Juris
Canonid, containing all the above several parts, was published
in 1580.

The decrees appear to set out the origin of the canon law,
and the rights, dignities, and degrees of ecclesiastical persons,
with their manner of election, ordination, &c. 3 Mosheims
E. H. %1 ; Rep. EccL Com. p. 10 ; Pre/, to Burn's E. L.

(a) A most elaborate history of the canon law, will be found in the
historical IrUroduciion to Ayliffe's Parergon, Vid, 2 Inst. 699, 652,

Cjinon Itab^ 135

The decretak CQDtain the law to be used in the ecclesiastical
courts.

To this body of canonical law of foreign origin must be added Constltu-
the constitutions passed in this country by the pope's legates, tions^
Otho and Otbobon, and the prelates of England assembled
in national councils in 1237 and 1269, and also the constitutions
iramed in provincial synods under the authority of successive
archbishops of Canterbury, from Stephen Langton in 1222 to
archbishop Cfaichely in 1414.

The 41 St chapter of GodolphMs Abridgment contains a mi-
nute chronological history of the various councils held at dif-
ferent places in the Christian world , from the earliest periods
of the Christian era to the council of Trent in 1546.

These English constitutions have been illustrated by the canonUw
writings of English canonists, but principally by Lyndwood, only parti-
who lived in the reigns of Henry V. and Henry VL, and ^^^q^^^b"
who 18 said by Godo^hin to have been dean of the arches in coantryr
the time of Henry VI.

In England the authority of the canon law, especially since
the Reformation, has been much limited, and that part of it
only is generally binding which has been sanctioned and adopted
by usage or recognised by statute.

During the progress of the Reformation, various attempts
seem to have been made to consolidate and confirm the canon
law. It was recited by 25 Hen. 8, c. 19, that the clergy be-
sought the king ^' that the constitutions and canons should be
committed to the examination and judgment of his highness
and of thirty-two of his majesty's subjects, whereof sixteen were
to be of the clergy ; and that such constitutions and canons as
shall be thought and determined by the said two-and-thirty
persons, or the more part of them, worthy to be abrogated and
annujled shall be abolished and made of no value accordinglv ;
and such other of the same constitutions and canons as by tne
said two-and-thirtv, or the more part of them, shall be approved
to stand with the laws of God and consonant to the laws of this
realm shall stand in their full strength and power, the king's
most royal assent being first had and obtained to the same."

This power of appointment was extended by the 27 Hen. 8,
c. 15, beyond the then session of parliament.

And by 35 Hen. 8, c. 16, the said power was continued to
the king during life.

It is worthy of remark that by the same statute it was enacted
that, ** until such time as the king and the said two*and-thirty
persons have accomplished the effects and contents before re-
hearsed, such canons, constitutions, ordinances, synodal or pro-
vincial, or other ecclesiastical laws or jurisdictions spiritual as
be yet accustomed and used here in the church of England

136

CaiMn E«li«

Canon tnw
only partr-
al I V adopt-
ed in this
country.

which necess&riiy and conveniently are requisite to be pu£ in
use and execution for the time, not being repugnant^ con-*
trarienty or derogatory to the laws or statutes of the realm,
nor to the prerogatires of the regal crown of the same, shall
be occupied, exercised, and put in use for the time witfatn
this realm.**

By which statute it seems clear that at that period no canon
or constitution of the church was considered to be generally
binding, unless, by general adoption and usage, it bad become
part of the ecclesiastical common law of this land.

The provisions and objects of the above statutes were not
carried into effect in that king's reign.

In the reign of king Edward 6, this matter was again set
on foot; and by the S ^ 4 Ed. 6, c. 11, that kmg directed
a commission to thirty-two persons, and afterwards appointed a
sub-committee of eight, to prepare the work and make it reedy
for the rest, that it might be dispatched with the more ex|iedi-
tion. By these a work was produced after the manner of the
Roman decretals and called " Reformatio Le^mm Ecelenas-
ticarumy^ which is spoken of by lord Stowell^ m HtUchingM ▼.
Lovelafid, 1 Hag. Con. 179, ** as a work of great authority in
'* determining the practice of the times, whatever may be its
" correctness in matters of law/'

In the reign of Mary all the above acts were repealed ; but
in the first year of the reign of Elizabeth the 25 Hen. 8, above
cited, was revived and extended to the queen's heirs and succes-
sors, but no steps were taken to carry its purposes into execution.

Much of the canon law has, however, been virtually adopted
into our system, and has during many centuries been accommo-
dated by our own lawyers to the local habits and customs of the
country, and these laws may be stated to be, as described in the
preamble to the 25 Hen. 8, c. 21, ** laws which the people have
taken at their own free liberty, by their own consent, to be used
among them, and not as the laws of any foreign prince, poten-
tate, or prelate.*' Gibs. Intr. to Cod. xxvii. ; 2 Atk. 673 ;
Palm. 458 ; Vaugh. 2\ ; S PhiU. \62\ 1 Hag. Con. 464.

Lord Hale^ speaking on the same subject, says, " All the

strength that either the papal or imperial laws have obtained

in this kingdom is only because they have been received and
'* admitted either by the consent of parliament, and so are part
" of the statute laws ; or else by immemorial usage and custom
" in some particular cases and courts, and no otherwise ; and,
'' therefore, so far as such laws are received and allowed of

here so far they obtain and no farther ; and the authority and

force they have here is not founded on or derived from them-
** selves, for so they bind no more with us than our laws bind
" in Rome or Italy. But their authority is founded merely on

<«

€fmn laU}4 137

M
«l

their l^ng admitleil ami received by us, which alone gives ^^^^^^ '^?^

tbein their attthoritative essence and qualifies Uieir obligation." l\J^^o^i
HUi. Com. Law, 27, ami vid. 9 Insi. 652, 658. ed id this '

Such, therefore, of the Canons as have been used and accus* country.
tomed, and thereby, as it were, incorporated with the common
law, appear to have received a further statutable recognition
by Ae preamble of the 25 Hen. 8, which, according to the opi-
nion or lord Hardwiciej in Middleton v. Croft, Sira. 1060;
ft Atk. 650; '' is the foundation of the ecclesiastical power, and

the principle upon which the Canons are binding on the laity,

and opon which the common-law courts notice them as the
" ecclesiastical law of this kingdom. " Com, Dig. Canon, C ;
Gadol. Ab. 585; Carth. 485; Kel 181 ; Latch. 191 ; 2 Insi.
689,647,658; 12/J^/?. 72; 2X^.222.

In Norton v. Seton, S PhiU. 162, the authorities of th^
canon law being pressed upon the court. Sir J. Nicholl said,
** If the canon law is to govern this case, the text referred to

does not come up to the point, and even if it did, something

more would be to be shown, namely, that it has been received
** as the law of this country ; " and again, in the same case.
^* But even if the canon law were direct upon this point, is it
** according to the law of England ? " Again, it has been said that
the older Canons, even though receivable, are not to be considered
as carrying with them their Jirst avthority, per Lord Stowett,
Burgess Y. Burgess, 1 Hag. Con. 393. In many cases, however,
they will be found to be only declaratory of the common law.

Under the head of Canon Law, are to be reckoned the Canont of
constitutions and canons made in the convocation of the pro- ^^^-
vince of Canterbury in the year 1603, and ratified by the
kinff for himself, his heirs, and successors. With regard
to the authority of these Canons, it has bee^n said, that though
the Canons of 1640 have been questioned, no doubt ever
existed about those of 160tt, 1 Salk. 134.

As to the general power of the convocation to make laws with
the royal assent and approbation, it was decided in the case of
Middleion y. Crofts, 2 Atk. 605; Stra. 1056; that not having
been ratified by parliament, they do not proprio vigore bind
the laity, for '' No new law can be made to bind the whole Not bind-
'people of this land, but by the king, with the advice in^ontbo
' and consent of both houses of parliament, and by their ^^^^^'

united authority. Neither the king alone, nor the king
" with the concurrence of any particular number or order of
** men, hath this high power. Neither can they bind the laity in
*' Re Ecclesiasticd .- but it seems to be universally admitted that BinUing oo
" all the clergy are bound by these Canons, though confirmed by ^^^ <^lew.
" the king only." 2Atk. 158, 26, 605; 2 Salk. 673; 1 Salk.
134 ; CartA. 485 ; 1 Lev. 4S6. <

€i

138 Catftrtrate^

SL^l^g^? Barrington, atates that '' Selden, in his DUseriaiio ad Fkiam,

'- says, that Robert Grossetiste, Bishop of Lincoloi wrote a treatise

to prove the necessity of introducing the civil law into thb coun-
try; and Sir Edward Coke mentions that de la Pole^ Duke
of Sufiblki attempted the same in the reign of Henry the
Sixthi which occasioned Fortesque to write his treatise De
Laudibus Legum AngUm. Observations on ike Statutes^ p. 44*
It was one of the articles of impeachment against Wolaey^
'quod ipse intendebat finaliter antiquissimas leges penitus
subvertere et hoc regnum Anglian, et ejusdem regni populum
dictis legibus civilibus, et canonicis ubjugare.' *' 2 InsL 62G*

Catj^etiralef.

After the conversion of Constantine the emperor, the other
converts in those days and in the following times, who were
many of them governors and nobles, settled great and large de-
mesne lands on those who converted them, and the first oratories
or places of public worship, are said to have been built up on those
lands ; which first oratories were called cathedr(B, sedes^ cathe-
drals, sees, or seats, from the clergy's constant residence
thereon. GodoL Ab. 347.

The distinction between cathedrals conventual, and collegiate
churches, perhaps may be best understood from the description
given by Lindwood of the several names. Properly speaking,
says he, a chapter is spoken in respect of a catnedral church ;
a convent, in respect of a church of regulars; a college, in
respect of an inferior church, where there are collected to-
gether persons living in common. Gibs. Cod. 172.

Every town which hath a see of a bishop placed in it,
is thereby entitled to the honors of a city. Gibs. Cod. 17 i.

Lord Coke defines a city to be a borough incorporate, which
bath, or hath had a bishop; and though the bishoprick be
dissolved, yet the city remaineth. Co. Lilt. 109. But this
extendeth not to the cathedral churches in Wales ; divers of
which are established in small villages*

Besides the proper revenues of cathedral churches to be ap-
plied towards the repair thereof, there are divers forfeitures by
several Canons of archbishop Stratford, to be disposed of to the
same purpose ; to wit, for the unfaithful execution of wills; for

Catf)t)irate. 139

extorting undue fees for tlie probate of wills ; for undue com- BJndjn^ on
muUtion of penance, and half the forfeitures for excessiTe fees ^||^^^>-
at the admission of a curate.

Every see or cathedral (as such) is exempt from arcliidiaconal
jurisdiction. Thus a bishop's see having been newly erected
within the limits of a certain archdeaconryi it was represented
that the archdeacon had presumed to exercise his jurisdiction
over the bishop there consecrated, and the church: and
Gregory the Ninth decreed thereupon that this should no more
be done; but that the bishop should be exempt from the archi-
diaconal jurisdiction, which decretal epistle became part of the
body of the canon law. Gibs. Cod. 171.

As to the methods of proceeding in elections in cathedrals,
they depend in a great measure upon the local statutes and cus-
toms of each cathedral and collegiate body, and therefore can-
not be brought under the rules which the ancient canon law
hath laid down. The cathedral is the family church of the
whole diocese. Gibs* Cod. 171.

In honor of the cathedral cburchi and in token of subjection Cathedrati-
to the see, every parochial minister pays, or used to pay, an an- *•*"••
nual pension called Cathedraticum,

In all cathedral churches the communion shall be adminis- ^^o\j com.
tered on principal feast days. Can. 4. muoion.

Cathedrals or churches collegiate and conventual were Vbitatiooof
always visitable by the bishop of the diocese if no special ex-*
emption was made by the founder.

The visitation of cathedrals belongs to the archbishop, and
to the king when the archbishoprick is vacant.

The see of the bishop is entitled to the ornaments of the Bishoo't
chapel at his death, as appears bv the case of Corvin v. Pytn^ cha|)eL
12 Rep. 186; and was aeclared in the Bishop of Carlisl^s
case, 21 Ed. 3; tid. also Gibs. Cod. 171, for although other
chattels belong to the executors of the deceased bishop, and
shall not go in succession, yet the ornaments of the chapel of
the preceding bishop are merely in succession: and so also in or-
dinary cases things erected in the church for the honor of the
dead person shall go to his heir, as heir looms, as in manner of
an inheritance.

By the late act 1 & 3 Vict. e. 106, to abridge holding benefices Cathedral
in plurality, it is provided by s. 2, that no spiritual person, P^'e'erii.eut.
holding cathedral preferment, and also any benefice, shall take ^ ^^ ^'*^*'
any other cathedral preferment or any other benefice ; nor hola-
ing any cathedral preferment, shall he take preferment in any
other cathedral or collegiate church with a proviso in favor
of archdeacons.

The definition of cathedral preferment is given by s. 124^
** Every deanery, archdeanery, prebend, canonry, office of

140

Catfte^ralfif.

Cathedral
prafermeot.

New
cathidrali.

minor canon, priest^ vicar, or vicar-choral having any prebend
or endowment belonging thereto, or belonging to any body
corporate, consisting of persons holding any such office, and
also every precentorship, treasurership, sub-deaconry, chancel-
lorship, and every other dignity in any cathedral or collegiate
church ; and any mastership, wardenship, or fellowship in any
collegiate church."

Concerning the cathedral churches of the new foundation,
it is enacted by the 31 Hen. 8, c. 9, that the king shall have
power to declare and nominate, by letters patent or other
writings under the great seal, such number of bishops, such
number of cities (sees for bishops), cathedral churches and dio-
ceses, by metes and bounds, as shall appertain ; and (out of
the revenues of the dissolved monasteries) to endow them with
such possessions, after such manner and condition as he shall
thinic necessary and convenient.

And it appears, by a scheme for new cathedrals and bishop-
ricks, under the hand of king Henry 8, that his design
was to erect many more (pursuant to the powers given by this
act) than were erected. 1 Burnet^ Hist, ttef* S62.

By the charters of foundation of the new cathedral and col-
legiate churches erected by the said king, it is ordered that
they should be ruled and governed by statutes, to be specified
by certain indentures then after to be made by him : which
statutes were accordingly made and delivered to the said
churches, but not indented. Whereupon the act of the 1 Mary,
se98. 3, c. 9, asserting the said statutes to be therefore void,
gave power to the said queen to ordain such statutes and ordi-
nances for the same as should seem good unto her ; but she
died before much was done. Afterwards the same power was

fpven to queen Elizabeth, by the 1 EUz. c. 22, during her
ife; who gave power to the ecclesiastical commissioners to pre-
pare new statutes for the same : which, accordingly were pre-
pared and finished in the month of July 1572, ready for the
royal confirmation ; but this (for what reason, or by what acci-
dent appears not) was never obtained. 1 Burn^s E. L. 286.
Gibs. Cod. 281.

But by the 6 Ann, e. 21, in order to settle the disputes which
had arisen concerning the validity of such statutes, it is enacted
that in all cathedral and collegiate churches, founded by king
Henry the Eighth, such statutes as have been usually received
and practised in the government of the same respectively, since
the restoration of kinff Charles the Second, and to the ob-
servance thereof, the deans and prebendaries, and other mem-
bers of the said churches from the said time, have used to be
sworn at their instalments or admissions, shall be good and
▼alid, and be taken and adjudged to be the sUtutes of the said

churches respectively; nevertheless, so far forth only as the Newcathc-
san)e» or any of them, are in no manner repugnant to, or "*'
inconsistent with, the constitution of the church of England as
the same is now by law established, or the laws of the land.
Which act, together with the cases that have happened there*
upon, falls in more properly under another title.

In 1 8S5 a commission was appointed by the crown "to con- ^*LZ^'**
sider the state of the ecclesiastical duties and revenues, so far
as tbey relate to episcopal dioceses, revenues, and patronage ;**
and the act 6 ^ 7 FT. 4, c. 77, was passed for the purpose of
carrying those reports into effect, and for such purpose incor-
porated certain persons, to be called '' The ecclesiastical com-
missioners for England,** and recited the various recommenda-
tions which the commissioners had made in their several reports.
Fid. post " Ecclesiastical Commission.'^

The 26th article of such recital contains the recommendation jB^Ulj^n,
of the church commissioners that " two new sees be erected in jf^^ g^ J^
the province of York, one at Manchester and one at Ripon. Ripon.

The 28th states what is recommended to be the contents of Diocese,
the diocese of Ripon.

The 31st, that it is recommended "that the bishops of SamepriW-
the newly-created sees be made bodies corporate, and be in- o^er**
vested with all the same rights and privileges as are now pos- bishopt.
sessed by the other bishops of England and Wales, and that
they be made subject to the metropolitan jurisdiction of the
archbishop of York."

The 3^d, that it is recommended "that the collegiate Colle«ate
churches of Manchester and Ripon be made cathedrals, and ^™ t^^e
that the chapters thereof be made the chapters of the respective a cathedral.
sees of Manchester and Ripon, and be invested with all the
rights and powers of other cathedral chapters, and that the Cathedial
members of these and of all other cathedral churches in England <^^*P^^-
be styled deans and canons/*

The act then, by s. 10, directs these ecclesiastical commis* Ordert in
sioners to lay schemes before the king in council for carrying JJJI'JIj^L-
such recommendations into effect; by j. 12 enables the king in zetted to
council to make orders for ratifying such schemes into eff*ect ; ^^^' '^«<^t
and by ##• 13 ^ 14 enacts, that when any such order in council ^ ^^'
shall be gazetted and registered, it bliall have the full force and
effect of a law.

By an order in council (the 4th), made under the autho- Fint order
rity of such act, dated the 5th October 1836, gazetted « council,
the 7th, and registered at York on tlie 8th, at Ripon on
the Ilth, and at Chester on the 13th of the same month.
The collegiate church of Ripon was constituted a cathedral Chorch
church and the seat of a bishop within the province of York. JhSral*'

142

Cabeat.

New*

Dean and
prebenda-
ries dean
and chap-
ters.

Bishop.

Episcopal
seat.

2d order in
council.
Episcopal
residence.

The dean and prebendaries to be styled dean and canons, and
to be the dean and chapter, subject to such future orders and
regulations as may be made by competent authority.

The person who should be duly elected by the said dean and
chapter to be bishop thereof, to be invested with the same rights
and privileges as the bishops of England and Wales, and to be
subject to the metropolitan jurisdiction of the archbishop of
York.

The said bishop of Ripon to be a body corporate, and the
said collegiate church to be his cathedral, with the privilege's
of an episcopal seat ; and the said bishop to exercise the like
jurisdiction in it, as other bishops of England and Wales in
their respective cathedrals, with power to the bishop and dean
and chapter to do all such acts, either jointly or separately, as
other bishops and deans and chapters may do in the province
of York.

And, by another such order in council, dated the lUh De-
cember 1837, and gazetted the Sd January 1838, provision is
made for an episcopal residence and demesne for the see of
Ripon.

At common
law.

Cabeat.

A CAVEAT is of such Validity by the canon law that, if an insti-
tutiun, administration, or the like, be granted pending such
caveat, the same is void. AyL Purer. 145, 6; 1 Lev, 157;
OtceHf 50.

But not so by the common law. For by the common law an
admission, institution, probate, administration, or the like, con-
trary to a caveat entered, shall stand good ; in the eye of which
law the caveai is said to be only a caution for the information
of the court ; but that it doth not preserve the right untouched,
so as to anull all subsequent proceedings, because it doth not
come from any superior ; nor hath it ever been determined that
a bishop became a disturber, by giving institution without re-

fard to a caveat. On the contrary, it was said by Coke Sf
^oderidgCf in the case o{ Hutchins ^ Glover ^ that they have
nothing to do with a caveat in the common law. Gibs. Ti% \
2 Bac. AL 40i; AyL Parer. 145, 6; 2 Strange, 857-966.

Thus by the canon law an institution after a caveat entered
is void, but by the common law it is otherwise.

Cl)anceUord» Set. hs

In the ecclesiastical court, however, a caveat will be respected, l° th* ?^-
if entered in proper time and at a proper period of the cause, l^^*^

Thus, in Herbert v. Herbert, 2 PhilL 430 ; a caveat having

been entered in vacation against an inhibition, issuing on an
appeal from an alleged grievance, with a statement of the
grounds upon which it was submitted the inhibition ought not
to issue, the court directed that, under the special circumstances
of the case, the issue of the inhibition should be suspended and
the matter generally should stand over till the first day of term,
when it would hear advocates on the question whether it should
or should not issue, and eventually, although in modem times
an inhibition has issued almost as a matter of course, decided
to refuse the inhibition ; eid. 1 Add. 23, in notd.

But after sentence of the prerogative court against a will
and administration decreed, which sentence and decree had
been affirmed by the delegates, the court will not allow the
sentence to be stayed by the entry of a caveat, especially when
it has been long delayed. Dew v. Clark, 1 Hag.SlL

Nor is the mere entry of a caveat sufficient to found jurisdic*
tion. 2 Lee, 534.

Cfiantellotjet, ^t.

1. The word chancellor is not mentioned in the commission,
and but rarely in our ancient records, but seemeth to have
grown into use in imitation of the like title in the state ; inas-
much as the proper office of a chancellor, as such, was to be
keeper of the seals of the archbishop or bishop, as appears from
divers entries in the registry of the archbishops of Canterbury.
Gibs. Cod. 1027.

2. This office (as it is now understood) includeth in it two
other offices, which are distinguished in the commission by the
titles oi official principal and vicar^general.

The vicar-general was an officer occasionally constituted,
M'hen the bishop was called out of the diocese, by foreign em-
bassies, or attendances in parliament, or other affairs, whether
public or private; and, being the representative of the bishop
ibr that time, his commission contained in it all that power and
jurisdiction which still rested in the bishop, notwithstanding the

144

C^anceOorK, Sett

Cliancel'
lor.

Vicar-gt-
Mral.

Comroit-

•ary.

appointment of an official, that is, the whole adoiintstration,
except the hearing of causes in the consistory coart* Gibs*
Inirod. 23.

But Godolphin, on the authority of Dr. Bidiey^ in his View
of the Civil and Ecclesiastical Law^ says that chancellors of
nioceses are nigh of as great antiquity as bishops themselvesi and
are such necessary officers to bishops that every bishop must
of necessity have a chancellor ; and that, if any bishop should
seem so complete within himself as not to need a chancellor,
yet the archbishop of the province, in case of refusal, may put
a chancellor on him, in that the law presumes the government
of a whole diocese a matter of more weight than can be well
sustained by one person alone ; and that, although the nomina-
tion of the chancellor is in the bishop, yet his authority is de-
rived from law. For which reason the law understands him as
an ordinary as well as the bishop ; and it seems probable that,
when princes had granted to ecclesiastical persons their causes
and their consistories, that the multiplicity and variety of eccle-
siastical causes introduced the use and office of chancellor^ as a
judge experienced in the laws. GodoL Ab. 8^.

The chancellor is not confined to any limits of jurisdiction.
Whatever place is within the bishop's jurisdiction is within his,
as representing the bishop; and whatever matters or causes
ecclesiastical are triable in the consistorial court, he, as judge of
that court, is to try them.

The vicar-general is the representative of the bishop, and in
later times has proceeded only in matters of voluntary jurisdic-
tion, as in the granting of licenses, where there is nothing of
litigation or contention between the parties. But it is said
Alton in Const. Othon de Instil. Vicar, that he has also a
criminal jurisdiction, a power to inquire into crimes and punish
them ; but it does not appear in the authorities cited, how this in*
quisition is to be pursued, whether in a forensic form, or, as the
bishop himself would exercise it, in bis own hall of audience, or
more privately. It has been, however, said by lord Stowell,
that " the description given of the official principal does ahnoat
*' exclusively give him the cognizances of such offisnces (quar*
'* relling, brawling, or smiting, under 5^6 Ed. 6, c. 4.) in the
*' consistory court, as vicar-general I am sure he could not
" exercise it.** Per lord Stowell in Thorpe v. Mansell, I Hag.
Con. 4, in notis.

S. A commissary is he that is limited by the bishop to some
certain place of the diocese to assist him ; and, in most cases,
hath the authority of official principal, and vicar-general
within his limits. Terms of the law, tit. " Commissary;'^
4 Inst. 33S.

€f)nnnliorti, in^ i45

4* What k said of commissaries may be also applied to the ^^^^^

ofScials of such archdeacons as have a concurrent jurisdiction ^^

with their bishop. Gibs, Tract, 1 14.

6. By Canon 1S7, no man shall be admitted a chancellor^ Age of
oommissatyy or official to exercise any ecclesiastical jurisdiction^ i!^i!^ &c.
except he be of the full age of six-and-twenty years at the
least, and one that is learned in the civil and ecclesias-
tical laws ; and is at least a master of arts, or bachelor of law,
and 18 reasonably well practised in the course thereof, as like-
wiae well effected and zealously bent to religion, touching
whose life and manners no evil example is had : and except be-
fore he enters into or executes any such office, he shall take the
oath of the king's supremacy in the presence of the bishop,
or in the open court; and. shall subscnbe to the thirty-nine ar-
ticles, and shall also swear that he will, to the utmost of his
understanding, deal uprightly and justly in his office, without
respect of favour or reward : the said oaths and subscription to
be recorded by a register then present.

A chancellor must also take the oaths at the sessions, as other
persons qualifying for offices.

In a case where an objection was taken that Dr. Sutton, Office of.
chancellor of Gloucester, being a divine, and not brought up
in the science of the civil or canon laws, took upon him the of-
fice of chancellor, contrary to the canons and constitutions of
the church ; and a prohibition was prayed, suggesting that he had
a freehold in the chancellorship: the court would not grant
the prohibition because it belonged to the spiritual courts to
examine the abilities of spiritual officers. 1 Bum's E, L, 290,
SuUcn^s case. Gibs. Cod. 1028.

But when Dr. Jones, chancellor of Landaff, was libelled
against for ignorance, prohibition was obtained upon this
ground of freehold ; and the court deemed Sutton' case to be
law. 1 Burn's E. L. 890; 4 Mod. 31.

Dr. StUlingfleet, speaking of the power of chancellors, says,
" There is a difference in law and reason, between an ordinary
** power depending upon an ancient prescription and composition,
as it is in several deans and chapters within their precincts,
and an ordinary power in a substitute, as a chancellor or vicar-
general. For although such an officer hath the same court as a
bishop, so that the legal acts of court are the bishop's acts, by
whose authority he sits there, so that no appeal lies from the
bishop's officer to the bishop himself, but to the superior ; and
'' although a commissary be allowed to have the power of the
" ordinary in testamentary causes, which were not originally of
** ecclesiastical jurisdiction, yet in acts which are of voluntary ju-
** risdiction, the case is otherwise: for the bishop, by appointing
" a chancellor does not divest himself of his own ordinary power,

it
tt
it

146

Ct)amfUi)r0, ^r.

Offices or.

Grantiog
lireDMft.

" but he may delegate some parts of it by commission to others,
which goes no farther than is expressed in it. 1 Still. 330 ;
Gibs. Cod. 1027. And bishop Gf6tfoit says, under the appel-
lation of delegated jurisdiction in a large sense may be compre-
hended the jurisdiction of archdeacons, who exercise such
branches of episcopal power in subordination to bishops as have
been anciently assigned to them, especially the holding visita-
tions, and of deans, and deans and chapters, and prebendaries
who exercise episcopal jurisdiction of all kinds independent of
the bishops, though no jurisdiction could accrue to them other-
wise than by grant from the bishops, or by the arbitrary and
overruling power of the popes. Both of these, however, origin-
ally delegated, have long obtained the style of ordinary juris-
*' diction, as belonging of course, and without any express com-
'* mission to the several officers above mentioned." Gibs.
Inirod. 22, ante 59.

But the power which we call delegated, is that of chancellors,
commissaries and officials, which they exercise by express com-
mission from the respective ordinaries to whose stations or
offices such powers are annexed. Ibid.

In the case of Smith v. Lovegrovet 2 Lee, 170, it was said by
the court, that " the power to grant licences to lecturers cannot
*' now be legally delegated to chancellors, for by the act of
" uniformity 13 4r 14 Car. 2, c. 4, s. 10, it is enacted, that lec-
" turers shall be licensed by the archbishop of the province
" or bishop of the diocese, or in case the see be void, by the
*' guardian of the spiritualities under his seal, and shall in the
" presence of the same archbishop, or bishop, or guardian of the
'' spiritualities, read the thirty-nine articles, &c. Now, when an
'' act of parliament has appointed certain persons to do a certain
^* act, no other person can do it, and this is lunreeable to the
** desire of the bishops long before, as appears from archbishop
** Abbot's injunctions, and the 11th Canon, 1640."

147

C!)apel.

Chapels generally.

1. Private.

2. Chapels of ease.

Chapels of ease merely.
Chapels of ease and parochial.

3. Free chapels.

4. Proprietary chapels.
Chapdry.

Repairs.

GODOLPHIN, Abr. 145, speaks of three sorts of chapels.

The first as one that which adjoins to the cburch» as parcel l. Pnvtte,
of the samei built by persons of honor for the purpose of family
interment, and are called and considered as private chapels.

The second which is separate from the mother church in a 2. Chapelt
parish of large extent, built for the better ease and convenience of «&m.
of parishioners, living at a distance from the parish church, and
therefore vulgarly called a chapel of ease.

The third wHed a free chapeX according to some opinions, no 3. Free,
other than a chapel, founded within some parochial precinct,
for divine service, by the bounty of some well disposed person
and endowed with maintenance by the founder, and, therefore,
called '^ free ;*' but it seems more probable, that they were of
royal foundation.

To these may be added a fourth description '^ proprietary 4. Proprie-
** chapels,** described by Sir J. NichoU to be " anomalies unknown ^^^'
" to tne constitution and to the ecclesiastical establishments of
'' the church of England." 2 Hag. 46.

The general law with respect to chapels is thus laid down by General
Sir J. NichoU in Bliss v. Woods, S Hag, 509, and recognised ^'^^^'
by Dr. Lushington in Williams v. Broum, I Curt, Bi-. " I con-
'* ceive that by the general law and constitutions of the church
** of England, no person has a right to erect a new public chapel
** forming part of the ecclesiastical establishment of the church

of England, whether as a chapel or otherwise, without the

concurrent consent of incumbent, patron, and ordinary, and
** without a provision for the indemnity or compensation of the
** future incumbent ; perhaps in all cases— certainly if his pecu-
** niary rights and interests are to be any manner affected. The

€1

148 CdaprL

Uwof' ** ^"^^ of souls of every parish or parochial district belonga to^
' " and all its emoluments are, by the original founder and endower^
" set apart for the maintenance of the incumbent and his succes*
** sors, and become vested in the existing incumbent by institution
and induction. The principles on which the consent of all
these parties is required, are obvious. The consent of the ordi-
nary IS necessary, as the general guardian of the interests and
" order of the church, and as the conservator of its constituted
establishment. The patron is a party, because the rights and
value of his patronage may be affected. The incumbent hioiaelf
is still more immediately affected, both in his pastoral duties and
bis pecuniary rights, both of which are committed to him when
instituted and inducted. If chapels can be erected and minia-
^* ters be placed in them at the nomination of others, not only will
it deprive the incumbent of the means of directing the spiritual
instruction of his parishioners which has been entrusted to him,
and which he has solemnly undertaken ; not only will it produce
** schisms and dissensions, and therebv exert an injurious influ-
** ence upon the religious principles of the parish, but it must
'' almost necessarily affect, in some degree the emoluments of
" the bene6ce, as well as the pastoral duties of the incumbent.
" Such I apprehend to be tne general law upon the subject,
^* and the principles on which the law is founded.

" In a question, (as to the right of nomination to such a chapel)

** the law, as I have above stated it, is accurately laid down by

** a decision proceeding from high anthoriQr ; a decision of the

^ more value because not being made in this court, it could not

^ be founded on the prejudices which might be suggested to

** belong to an ecclesiastical lawyer, but proceeding nom a lord

** high chancellor of England — I mean lord Norihmgiat^, in the

'/ case of Dixon v. Kershaw, AmU. 588 ; 2 Eden. 60. That

case is infinitely stronger than the present, supposing the

** church-building act is out of the question. This doctrine has

'' since received the equally high sanction of the deliberate

opinion of the court of king's bench in the case of FamuH>rtk

V. BUhop of Chester, 4tB.is C. 669, qualified merely by the

expression of a doubt, on the part of the chief justicei as to

the necessity of a compensation to future incumbants, where

nothing is taken from the income of the incumbent. Perhaps

the principle on which the compensation is required is, that

the incumbent, patron, and ordinary cannot bind tne successors

to their prejudice, or compromise what was originally, by die

endower, intended to be attached to the incumbent, either as

temporal righte or spiritual obligations. Nor is it very easy to

suppose a case where even the mere erection of a chapel will

not almost necessarily, in some degree, affect the income of

the benefice. Under these authorities it appears clear, that

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««
<c

€t
i<
M
f«
i*

«
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tt
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tt
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C|)apeL 149

•■ by the general law, the consent of tlic patron and incumbent pcncrai
** is necessarily as well as that of the ordinary." See post^ ^^^'
•* Church Building and Endowina,** 2 Phill. 201, 1 Hug. Con.
161, as to how far this principle nas been acted upon since the
7 ^ 8 G. 4, c. 72. Up to that time it was carefully borne in
mind, and though in some of the subsequent acts it seems that it
has not been so rigidly adhered to, still the general principle seems
to be admitted, and to a certain extent governs all the later acts.

Private chapels are those which noblemen and other worthy pHvate.

and religious persons have at their own expence built in or near

their own houses, for them and their families, to perform reli-
gious duties in. These private chapels and their ornaments
are maintained by those to whom they belong, and chaplains

Crovided for them by themselves, with honorable pensions. But
y such an appointment the minister would not gain any freehold
interest, and might be dismissed whenever the party who ap-
pointed him should think fit. ^ B. % C. 578; Degge, P. I,
r. 12.

By the 71st Cdnon^ no minister shall preach or administer the
holy communion in anv private house except, when any unable to

So or very dangerously sick are desirous to be partakers of the
oly sacrament, upon pain of suspension and excommunication.
Provided that houses are here reputed for private houses
wherein are no chapels. And provided also, that no chaplain
preach or administer the communion, but in the chapels of the
said houses, and that they do the same but very seldom, upon
Sundays and holidays ; so that the masters of the said houses
and their femilies, shall resort to their own parish churches, and
there receive the holy communion at the least once every year.
Sometimes these are spoken of as oratories. Lindwood says,
233, 1 Bum's E. L. 296, ''An oratory differs from a church;
** for in a church there is appointed a certain endowment for
'* the minister and others, but an oratory is that which is not
^ built for saying mass nor endowed, but ordained for prayer.
Such oratory any one may build without consent of the
bishop; but without his consent divine service mav not be
performed there, and this licence he shall not grant for divine
service there to be performed upon the greater festivals.*'
Abundance of such licences, both before and since the Refor-
mation, remain in our ecclesiastical records, not only for prayers
and sermons, but in some instances for sacraments also, but the
law is (as Lindwood hath it in his Glossary on the said canon)
that such licences be granted sparingly. And these restrictions
were laid upon private oratories out of a just regard to public
worship, that, while the laws of the church provided for great
infirmities or great distance, such indulgence might not be
abused to an unnecessary neglect of pubUc or parochial com-

fC
«f

150

€ffafitl

ease.

Chapels
of ease
merely.

Chapels
of ease and
parochial.

Private' munion. 1 Bum's E. L. 297, citing Gibs. Cod. 212. And in
8uch oratories a bell might not be put up without the bishop**
authority. BurtCsy ibid. ; Lindw. 233.

See further on the law of private chapels ''Aisles iu Chmrcbes.*'

Chapels of Chapels of ease are of two sorts ;

1. Chapels of ease merely.

2. Chapels of ease and parochial.
A chapel of ease merely is that which is built within the pre-
cinct of a parish church and belongs to the parish church and
the parson of it. 2 Roll. Ab. 340, /. 50, 341, /. 2. It is a
mere oratory for the parishioners in prayers and preaching
(sacraments and burials beinff received and performed at the
mother church), and commonly when the curate is removeable
at the will of the parochial minister. Cribs. 209 ; 1 Bum's E. L.
299; 2 Ha^. 53; 1 Lee, 156.

A parochial chapel is that which hath the parochial rights
of christening and burying, and which does not difier from a
church but in the want of a rectory and endowment. 2 Insi.
363 ; Degge, p. I, c. 12; I Burn's E. L. 299. When by long
use parochial bounds became fixed and settled, many of Ae
parisnes were still so large that some of the remote hamlets
found it to be inconvenient to be so far from the mother church ;
and, therefore, for the relief and ease of such inhabitants, this
new method was practised of building private oratories, or cha-
pels, in any such remote hamlet in which a capellane was some-
times endowed by the lord of the manor or other benefactor, but
generally maintained by a stipend from the parish priest, to
whom all the rights and dues were entirely preserved. Ke$u
Par. An. 587; Godol. Ab. 145; 2 Hag. 50.

In order to authorise the erecting a chapel of ease, the joint
consent of the diocesan, the patron, and incumbent, if the
church were full, were, and are still requisite. Ken. Par. An.
585; 2£c/^it,360; Ambl.SSZi 4^B.Sf C. 568; 2 Hag. 49.

If a chapel have existed from time immemorial, the perform-
ance of baptism, marriage, or burial may amount to presumptive
evidence that there was originally consecration and a composi-
tion ; but, where the origin is since legal memory, it is otherwise.
2 Hag. 50. But its character as chapel is not altered by the
circumstance that it has sacraments and burials. 1 Lee, 155.

So a prescription that the hamlet had found a clerk to do
divine service in a chapel with part of the tithes, and (which
was an usual composition upon the erection of a chapel) paid a
certain sum to the parson for all tithes, was held good. Gibs.
Cod, 209 ; 4 Leon. 24.

If a chapel have parochial rights, as clerk, wardens, &c.
rights of divine service, as baptism, sepulture, &c. and the inha-
bitants have a right to them there, and not elsewhere, and the

CfiaprL 151

cutate has small tithes, and surplus fees, and an augmentation, Chapel of
it ift a perpetual curacy, and the curate is not removeable at ^i*^*^

pleasure. But chapels of ease merely are ad libitum f and have '-

no parochial rights. Therefore, on the union of two parishes,
one is frequently deemed the parish church and the other a
parochial church but not a chapel of ease. 2 Fes. 4S5, 4S7.

With regard to the provisions for building new chapels of
ease under the acts for promoting the building new churches
and chapels, vid. 58 G. S, c. 45, ss. 13, 14, 2\ ; 59 G. 3, c. 103,
ss. 4, 5, 6; 5 6. 4, c. 103, s. 5; I f2 W. 4, c. 31, m. 2, 8,
post ** Churches Building and Endowing"

Another mark of dependence on the mother church is, that
the inhabitants of the village thus accommodated with a chapel
were upoo some festivals to repair to the mother church, as an
expression of duty and obedience to it» not only for the purpose
of joining in divine service there, but, as a further sign of sub-
jeelion, to make their oblations and pav their accustomed dues
at solemn seasons. It was a further honour done to mother
church that all the hamlets and distant villages of a large
parish made one of their annual processions to the parochial
church with flags and streamers and other ensigns of joy and
triumph. Ken. Par. Ant. 595, 6, 7, 8.

The capellane, or curate, of such chapel was to be bound by
an oath of due reverence and obedience to the rector or vicar
of the mother church. Ken. Par, Ant. 599 ; Johns. 205 ;
1 Burns E. L. 303.

The inhabitants of such a chapelry, being a portion carved Repair.
out of the parish, which buries and christens within itselfi may
prescribe to be exempt from repairing the mother church, be-
cause then the chapel shall be intended to be co-eval and not a
later erection ; but nothing short of a prescription seems to be
sufficient, unless, indeed, they can show an exemption upon the
endowment. 2 Roll. Ab.SdOi 1 Salt. 164; Gibs. Cod. 209.

The repairs of a chapel are to be made in the same manner
as the repairs of a church by rates on the landholders within
the chapelry, and are to be enforced by ecclesiastical authority*
Gibs. 209 ; i Bum's E. L. 305. But, if there be land charged bv
prescription to such repairs, then the custom must be observed.
Degge, p. 1, c. 12. In cases of proprietary chapels the repairs
are not a parochial matter, but are to be done out of the funds
of the chapel itself. 2 Inst. 489. In cases of union, where the
church of one parish has become the sole parish church and
the other a mere chapel annexed to it.

The incumbent of the mother church is entitled to nominate Minister,
the minister, unless a contrary right be established by prescrip- ^J^n**JJj
tioD or special agreement. Amb. 528 ; 2 Eden^ 360 \4f B. % C.

l.ri

C^tl.

Chapel of

ease.

Minister,
by whom
DomiDated.

Govern-
ment of.

Church or
chapel,
how tri-
able.

Free cha-
peU.

i£

568; 1 Hag. dm. 168; S Hag. 47; S Hag. 509; tid. aiso
1 P. Wms. 774.

A bishop cannot consecrate a chapel or aotbortae a perscv to
preach in it without the consent of the incumbent. £ PluU. 198.

No person can be authorised to preach publicly in a chapel

to which all the inhabitants of a district have a right to reMit
** without the consent of tlie clergyman to whom the cum of
" souls is given." Per Abbott^ Farnworth ▼. Bishop of Chester^
^B.% C. 668.

The incumbent of the church is entitled to perform the
service in every consecrated building within the parish, ft
Hag. 46.

With regard to the nomination of ministers under the churdi-
building acU, vid. 59 G. 3, e. 134, «. 6; 3 O. 4, e. 72, s. 16;
6 G. 4, c. 103, ss. 6, 7, 8; 1 ^ 2 FF. 4, c. 88, ss. 2,4, 5, 6.

Chapels of ease have like officers for the most part as churches
have, distinguished only in name, 1 Bum's E. L. 306, and are
in like manner visitable by the ordinary. lb.

If there is a question in the court christian whether, church
or parochial chapel, prohibition lies, 2 Roll. Ab. S91, or if it be
pleaded in quare impedii that it is a chapel and no church, it
shall be tried by the country. Wais. c. SSS. But Gibson says,
chapel or no cliapel is to be tried by a spiritual judge ; Gibs.
Cod. 310 ; although, if the question be upon the limits, it shall
be tried upon such an issue in the temporal court. lb. 21S.

If a patron of a parochial chapel present to it by name of a
church, and the presentee has been received upon such a pre»
sentation, it is no longer a chapel but a church, and upon dis*
turbance the patron may have a quare impedii as for a church.
1 Burn*s E. L. 307 ; Wats. e. 23. But a presentation to a
church by the name of a chapel will not make it cease to be a
church. lb.

Those only seem to be considered as free chapels which were
of royal foundation, or founded by subiects by the king's grant
or licence. Wherefore they are usually found upon the manors
and ancient demesnes of the crown, where they were built,
whilst in the king's hands, for the use of himself and his reti-
nue when he came to reside there. Godol. Ab. 146 ; 1 Bum's
E. JLi. 298.

These chapels were, with some exceptions, given to the king
by 1 Ed. 6, c. 14. There have been some, however, founded
by kings or by their licence since this statute. They are not
visited by the ordinary but by the king, through the lord chan*
cellor. GodoL Ab. 145. But the head or members receive
institution from the ordinary.

These free chapels are described in Tatiner's Noiit Monasi.

€§

CIWfirL 153

Pftf. S8; I BnrtCsE. L. 1899, as places of religious worship exempt ^^ «>>»-
from ail ordinary jurisdiction, save only that the incumbents ^*'
were generaDy instituted by the bishop and inducted by the
archdeacon of the place. Most of them were built on the
manors and demesnes of the crown, whilst in the king's
hands, for the use of himself and retinue, when he came to
reside there. And, when the crovm parted with those estates,
the chapels went along with them and retained their freedom ;
but some lords seem to have had free chapels in manors that do
not appear to have been ancient demesne of the crown. Such
are thought to have been built and privileged by grants from
the crown ; and Godolphin says on the same point, Abr. p, 145,
" It is the more probable opinion that those only are free
ehapels which are of the foundation of kings and by them
exempted from the jurisdiction of the ordinary; but the king
may also licence a subject to found such a chapel, and by his
" charter exempt it from the jurisdiction of the ordinary ; in re-
spect of which exemption and from the jurisdiction of the dio-
cesan it appears by the register of writs to be called free;" and
he then instances a case in the register of a writ, JoL 40, 41,
showing that the bishop of Exeter was attached to answer why
he exercised jurisdiction in the royal chapel of St. Burian in
Cornwall. It does not appear, however, by the particular
instance cited that the chapel was called ** Libera,** but
" Regia.**

Proprietary chapels are such as have been built within time of Proprietary
memory. These are usually assessed to the rates, as other build- ^^^^P^*^
ings and dissenting chapek are, unless they are built under the pro-
▼isions of a particular act of parliament, and thereby exempted.

In the case of a chapel which was built by subscription about
the year 1735, the subscribers agreed, out of the pew rents, to
pay the rector of the parish a yearly stipend for performing divine
service ; a licence was obtained from the bisnop to the rector
and his successors, who from time to time performed parochial
duties therein; but there was no proof of consecration nor of any
composition between the patron, incumbent, and ordinary.
Such a chapel was held to be merely proprietary; and the
minister nominated by the rector of the parish and licenced by
the bishop cannot perform parochial duties therein nor distri-
bute the alms collected at the Lord's supper. Moysey v.
Hileaat, 2 Hag. 30. A proprietary chapel can exercise no
parochial rights, and the exercise of such rights would be a
mere usurpation in the eye of the law. Ib» 46.

In cases of proprietary chapels, if the owners cannot let the Clowngor
pews, it seems that there is nothing to prevent them from ^^^i^
shutting the chapel up, even if consecrated, and if not, from
converting it to secular purposes. 2 Hag. 5Q.

154

C&ajpeL

Proprietary
chapeU.

Building
new cha-
peU.

Chapel ry a
benefice.

Chapel ry.

How far ex-
empt from
parochial
church
rates.

With reffard to building chapels by subscription under the
church-building acts, vid. 5 G, 4» c. 103, «. 5 ; I ^ H JV^4f,
c» 38, a. 2, post ** Churches Building and Endowing.'*

By 1 ^ 2 Vici. c. 106, s. 124, the word " benefice*' in that
act is declared to comprehend ** all endowed public chapek,
'' parochial chapelries, and chapelries or districts belonging, or
'' reputed to belong, or annexed, or reported to be annexed, to
'' any church or chapel/'

It would seem that the building of chapels, the attendance on
which was allowed as a discharge from attending at the mother
church, were originally matters of grace and favour, and there-
fore, being for the ease and convenience of particular inhabitants,
ought not to be attended with loss to the mother church, nor
can be reasonably converted into a consideration to discharge
them from repairs of the parish church. Godolphin says it is
against common right that they who have a chapel of ease in
a village should be discharged of repairing the mother church ;
Ab. lEs ; and so Gibsonf Cod* 221, If Uiey have seats in the
mother church to go thither when they please, or receive sacra-
ments or sacramentals, or marry, christen, or bury at it, there
can be no pretence for a discbarge ; nor can any thing support
that plea but that they have time out of mind been discharged,
(which is doubted whether it be of itself a full discharge), or
that in consequence thereof they have paid so much towards
the support of the church, or the wall of the church-yard, or
the keeping a bell, or the like composition, which are clearly a
discharge ; and vid. 2 Roll, Ah. 290 ; but nothing short of a
prescription will be sufficient. If a chapel be three miles from
a parish church, and the inhabitants have used to come to the
chapel to repair it, and there to marry and bury, and have
never within sixty years been charged to the repair of the parish
church, yet it is no cause for prohibition, but they ought to
show in the spiritual court their cause of exemption, if they have
any upon the endowment. 2 RoU, Ab, 290. Where the inhabi-
tants of a chapelry were prosecuted in the spiritual court for
non-payment of rates for the repairs of the parish church, and
the case was, that those of the chapelry never had contributed
but still always buried in the mother church till about Hen, 8,
when the bishop was prevailed on to consecrate them a burial
ground, in consideration of which they agreed to pay towards
the repftir of the mother church, all which appeared in the
libel ; HoU, C, J, held " that those of a chapelry may pre-
" scribe to be exempt from repair of the mother church, as
** where it buries and christens within itself, and has never con-
" tributed to the mother church, for then it shall be intended
" co-eval, and not a later erection in case of those of the cha-
" pelry ; but here it ap|)ears that the chajielry could only be in

** ease and favour of those of the obapelry, for they buried at Chapelry.
"the mother church till Hen. 8/* 1 Salk. 145. How far ex-

Also in the case of Asian Parish ▼• CaHle Bremridge. The empt from
inhabitants of the precinct, called Bremridge, resorted to the l^oc^>sl
chapel therCi which was situated in the parisn of Aston. There ^uT
they married y and christened, and received sacraments and
sacramentalsi and had churchwardens there and a perambula-
tion there of itself; but they buried not there but at Aston,
and the parsonage being appropriate, the vicar found them a
curate at his charge to serve the chapel. The church at Aston
being in decay, the parishioners of Castle Bremridge were taxed
towards the reparation thereof with the rest of the parish of
Aston and obtained a prohibition on a surmise that there was a
chapel parochial, and that they alone had used time out of
mind to repair at their own charge, and by reason thereof had
been discharged of the reparation of the church, yet they con-
fessed they were within the parish and buried there. Now the
prohibition was refused ; for it was apparent to the court that
they were to all purposes part of the parish of Aston, and,
therefore, cfe commumjurCi liable to reparation with the rest;
for, though they had this chapel for their ease, yet they might
resort if they would to the mother church, and the reservation
of burial was a saving of the old right, and no doubt but the
vicar might serve them in person at their chapel as well as his
curate. Hob. 66; as to repairs of churches generally, post 165.

With regard to the repairs of churches and chapels built ^P^'"'
under the church-building acts, it is enacted by 58 G. 3, e. 45, District
s, 70, that the repairs of all the churches and chapels built ^''j'^^Jjff
under the authority of that act shall be made by the districts peb.
to which they respectively belong by rates to be raised within
such districts in like manner as in case of repairs of churches
by parishes, and every such district shall be deemed in law a ^^^ made
distinct parish for that purpose. district

The repairs of all chapels not made district churches shall be cHwchcsor
made by the parish in or for which the chapel shall be built. ^ ^^ *

By «. 71 it is provided that every distnct shall, for twenty orimBal
years from the day on which the district church or chapel shall chv^ch.
be consecrated, remain liable to the repair of the original parish
church, and be deemed part of the original parish for all pur-
poses of such repairs, and the making and levying rates for that
purpose ; and after the twenty years the parish cnurch shall be
repaired by the district of the parish left as belonging to it after
the other divisions of districts are made ; " and each district
** shall for ever thereafter make, raise, levy, collect, and apply
** separate and distinct rates for repairs of the church or
" churches, or chapels of the district, as if a separate parish.*'

156

€fyxct^.

%«••»«• •» *<

Consecration.
Service.
Ornaments.
Repairs.

Of the nave or body.
Of the chanceL

Lay impropriators.
Alterations and improvements.
Taking down.
• Pews.

Right to use in the inhabitants, to disposal of in the ordinary.
Prescriptive right to.
May be transferred.
Or apportioned.
Action for disturbance at common law.

Declaration in.
Suit for perturbation of seat in the eoclesiastieal court.
Right as against the ordinary.
As against an introder.
Arrangement of.

By churchwardens as officers of the ordinary.

Their duties in respect of.
May not be let or sold at common law.
Pews under the acts for building and endowing churches.
In churches built under the authority of 1 & 2 n . 4, c. 38.
Churchwardens maybe called on to justify their proceed-
ings in a rule to shew cause before the ordinary.
Churchwardens have no power independently of the

bishop except by cnstom.
Quaere, of sudi a custom.
Pews.

In the chaneel.
In an aisle.
Faculties for.

To a man and his heirs bad.
So annexing a pew to an estate*
Annexing a pew to a house out of the parish.
Of the evidence necessary to support a prescription.

CWra. \YiTH regard to the general foundation of chufchesj trfrf.
atUct 1, " Jdvow9on,'' and " Appropriation," naie (a). The law

takes no notice of any building as a churchj till it has been con- Comscn.
secrated by the bbhop. Gibs. Cod. 213. ^°'

In the church of England, every bishop is left to his own dis-
cretion, as to the form of consecrating churches and chapels.
It is true there was a form drawn, by authority of convocation,
in the year 1660 occasioned, as aome think, by the offence taken
at bishop Laud's ceremoniousmanner of consecrating St.Kathe-
rine Creed's church in London ; but this form was neither autho-
^ rised nor published. Again,in the year 1712, a form of consecra-
ting churches and chapels, church-vards and places of burial, was
sent down from the bishops to the lower house of convocation on
the 2kid of April, and was altered by the committee of the whole
house, and being reported to the whole house was agreed to with
some alterations. This form never received the royal assent and
therefore was not enjoined to be observed, but notwithstanding,
it is generally used for the purpose ; 1 Bum's E. L. S23, 825 ;
and is the form which is given in some of the Common Prayer
books. The form is fully given in 1 Bum's E. L. S26 et s^q.
as is also a form of consecration of a church-yard, and vfdtf
generally on this subject, Gibs. Cod. 212, 213,

With regard to the service of the church, the general law, ac- Senries.
cording to the form prescribed in the book of Common Prayer,
requires it to be resularly performed erery Sunday in the morn-
ing and evening. If less duty is required, it is to be supposed
that the relaxation has been adopted with die apjurobation of the
diocesan, and has been permitted, owing to the circumstances of
the parish, and as the service is to be performed for the use of
the parishioners, such relaxation may be properly granted in
certain cases ; but if it be so granted, the mmister must strictly
adhere to the terms prescribed, and must not vary them at his
own pleasure, for his own convenience, and on his own authority.
It is the diocesan who is to judge of the degree of relaxation
to be allowed. 2 Hag. 25.

By 58 6. 3, c. 45, s. 65, bishops are empowered to require Third ler-
that a third or additional divine service, being either the mom- V!^
ing or evening service, shall be celebrated " in the churches ^^ 4^^' '
** and chapels existing at the time of the passing this act, or by
" the celeoration of a third or additional service as aforesaid,
** with a third sermon in any church or chapel which may
" be built or provided under the provisions of this act," post
** Churches BmbUng and Endowing.'*

And by 1 ^ 2 fiet. c. 106, s. 80, it is enacted that it shall 1 &3 Vicu
be lawful for the bishop, in his discretion, to order that there ^* ^^
shall be two fall services, each of such services, if the bishop
shall so direct, to include a sermon or lecture on every Sunday
throughout die year, or any part thereof, in the church or chapel
of every or any benefice vrithin his diocese, whatever may be the

158 C|)urd^.

Service of. annual value or popvlation thereof; and also in the church or
chapel of every parish or chapelry, where a benefice is com-
posed of two or more parishes or chapelries, in which there shall
be a church or chapel ; if the annual value of the benefice arismg
from that parish or chapelry shall amount to one hundred and
fifty pounds and the population to four hundred. Provided
that nothing therein contained is to repeal or interfere with the
above provision of the 58 6. S, c. 45.

If irregularities take place in the service of the churehi it is

the duty of the churchwardens to bring the matter before the

court ; 2 Hag. 25; but they have no authority to interfere with

the church service.

Power of Generally speaking, the duties of churchwardens are confined

churchwar- ^q ^Jj^ q^^ ^f ^jjg ecclesiastical property of the parish, over

dens over i_» i_ a.t_ • j« ^« »^ "^ •'p .j^

the service, ^hich they exercise a discretionary power for specific purposes.
In all other respects, it is an office of observation and complaint,
but not of control, with respect to divine worship ; so it is laid
down mAyliffet Parerg. 170, in one of the best dissertations on
the duties oichurch wardens, and in the Canons of 1571. In
these it is observed, that churchwardens are appointed to pro*
vide the furniture of the church, the bread and wine for the holy
sacrament, the surplice, and the books necessary for the per-
formance of divine worship, and such as are directed by law;
but it is the minister who has the use. If, indeed, he errs in this
respect, it is just matter of complaint, which the churchwardens
are obliged to attend to ; but the law would not oblige them to
complain, if they had a power in themselves to redress the
abuse.

In the service, the churchwardens have nothing to do, but to
collect the alms at the offbrtory ; and they may by authority of
the Canon SO, 1603, refuse the admission of'^strange preachers
into the pulpit. But if letters of orders are produced, their
authority ceases. So if the minister introduces any irregularity
into the service, they may complain to the ordinary of bis con-
duct, but thev have no authority of themselves to interfere.
Th^re may be cases where they are bound to interpose ; in
such they may repress, and ought to repress indecent interrup-
tions of the service by others, and are the most proper persons
to repress them, and they desert their duty of they do not. And
if a case could be imagined, in which even a preacher himself
was guilty of any act grossly offensive, either from natural infir-
mity or from disorderly habits, not only might the churchwar-
dens, but even private persons, might interpose to preserve the
decorum of public worship. But such must be a case of instant
and overbearing necessity, that supersedes all ordinary rules.
In cases which fall short of such a pressure, and can await the
remedy of a proper legal complaint, that is the only proper mode

Cfntrcl^^

169

to be parsued by a churchwarden, if private and decent appli-
cation to the minister himself shall have failed in preventing
what he deems the repetition of an irregularity.

Upon the Reformation taking place, it was necessary that an
alteration should take place in the ornaments and general ser-
vice of the churchy accordingly these were settled by authority
of parliament, in the second year of Ed. 6.

By the 1 Eliz. c, 2, s. 25> such ornaments of the church, and
of the ministers thereof, shall be retained and be used as was in
the church of England, by authority of parliament, in the second
year of the reign of king EcL 6, until other order shall be therein
taken by the authority of the queen's majesty, with the advice
of her commissioners appointed and authorized under the great
seal of England for causes ecclesiastical, or of the metropolitan
of this realm.

Pursuant to this clause, the aueen in the third year of her
reign, granted a commission, to reform the disorders of, and add
to the ornaments of churches, by directing the commandments
to be placed at the east end. 1 Burn's E. L, 367, 371 ; Can.
82, And it is further provided by the Rubric^ that such orna-
ments of the church, and of the ministers thereof, at all times
of their ministration, shall be retained and be in use, as were
m this church of England by .authority of parliament in the
second year of the reign of king Ed* 6.

The archdeacon is to take care that the clothes of the altar be
decent and in good order ; that the church have fit books both
for singing and reading, and at least two sacerdotal vestments.

MJmWiUlWm U^»

By the statute of Circumspecie agaiis, 13 Ed. 1, st 4, all in-
terference by temporal courts in these respects is prevented.

And Lord Coke says, ''the law alloweth the ecclesiastical
" court to have conusance in this case, of providing decent orna-
" ments for the celebration of divine service." 2 Inst. 489.

By Canon 82* Whereas we have no doubt, but that in all
churches within the realm of England, convenient and decent
tables are provided and placed for the celebration of the holy com-
munion, we appoint that the same tables shall from time to time be
kept and repaired in sufficient and seemly manner, and covered
in time of divine service with a carpet of silk or other decent
stuff, thou^t meet by the ordinary of the place, (if any question
be made of it,) and with a fair linen cloth at the time of the
ministration, as becometh that table, and so stand, saving when
the said holy communion is to be administered. At such time
the same shall be placed in so good sort within the church or
chancel, a$ thereby the minister may be more conveniently heard
of the communicants in his prayer and ministration, and the

Power of
churchwar
dens over
the service.

Orna-
ments.

No prohi*
bitioQ.

Commu-
nion-table.

160

Ct^urdi.

Orna-

CommQ-
nioo- table*

Palpit

Readiog
desk.

eoiftmunicanto alao more conTenieotly and in more number nay
communicate with the said minister, and all this to be done at
the charge of the parish.

In was decided in a case in the Ut of Ann. that the pa-
rishioners might do all things necessary for the good repair of
the communion-table, and as to the degree of order it b for the
majority of the parishioners to determine. Newton v. Bawldrfff
1 Burtl^s E. L. 368.

The bishops used formerly to preach standing on the steos of
the altar. Afterwards it was found more convenient to nave
pulpits erected for that purpose. AtfL Par. fiU

By Can. 83. The churchwarden or questmen, at the common
charge of the parishioners, in every church shall provide a
comely and decent pulpit, to be set in a convenient place within
the same, by the discretion of the ordinary of the place (if any
question do arise,) and to be there seemly kept for the preaching
of God's word.

By Can. 82. A convenient seat shall be made at the charge
of the parish for the minister to read service in.
Sarplioe. By Can. 58. Every minister saying the public prayers, or
ministering the sacraments or otner rites of the church, is to
wear a decent and comely surplice with deeves, to be provided
at the charge of the parish. And if any question arise touching
the matter, decency, or comeliness thereof, the same shall be
decided by the discretion of the ordinary.

By Can. 81. According to a former constitution, too nnich
neglected in many places, we appoint, that there shall be a font
of stone in every church and chapel, where baptism is to be
ministered, the same to be set in the ancient usual places. In
which only font the minister shall baptize publicly.

By 37 Hen. 8, it was enacted, that money ccAlected for the
poor should be kept in the common coffer or box standing in
the church of every parish.

And by Can. 84*. The churchwardens shall provide and have
within three months after the publishing of these constitutions,
a strong chest, with a hole in tne upper part thereof, to be pro-
vided at the charge of the parish, (if there be none such already
provided,) having three keys, of which one shall remain in the cus-
tody of the churchwarden for the time being ; which chest they
shall set and fasten in the most convenient place, to the intent the
parishioners may put in their alms for their poor neighbours.

The which alms and devotion of the people, the keepers of
the keys shall yearly, quarterly, or oftener, (as need requireth,)
take out of the chest, and distribute the same in the presence
of most of the parish, or of six of the chief of them, to be truly
and faithfully delivered to their most poor and needy neighbours.

FoDt.

Charity
box.

€i)VIXt!b^ I(il

By the Rubric it is directed that a decent basin be provided Omameota.
by the parish to receive the alms for the poor and other of the ^^^ ^.^
people, given at the ministration of the communion. alms at the

This was anciently for the use of the priest ; but at the Re- commu-
Ibrmation it was changed into alms for the poor. Ayliffe^ Par, °^^°*
994. As to the disposition of offertory money in chapelsj vide
ante 15S.

By Canon SO. The churchwardens shall, at the charge of the Bread and
parish, with the advice and direction of the minister, provide a *""• ^^^
sufficient quantity of fine white bread, and of good and wliole- *^°"'"'
some wine, for the service of each communion, which wine is to
be brought to the table in a clean and sweet standing pot or
stoop of pewter, if not of purer metal,

The parishioners shall find the chalice or cup, or more than chaliM.
one if necessary, for the wine. Lindw, 252.

The pariah, at their own charge, shall find bells with ropes ; Bella and
but a bell to ring to church and toll at funerals is all that is ^^^I^*
legally requisite. 3 Hag. 16.

And a bier for the dead. Lindw. 252. Bier.

By Canon 80 it is directed, that if any parishes be yet unfur- Bible.
nished of the Bible of the largest volume, the churchwardens
shall, within convenient time, provide the same at the charge of
the pariah.

By 1 E&M. e. S, #. 19, the book of Common Prayer is directed Book of
to be provided, and by IS ^ 14 Car. 2, e. 4, s. 26, the present ^^
book of Common Prayer shall, at the cost of the parishioners of ^*''
every parish church and chapelry, cathedral church, college, and
hall, be provided before the feast of St. Bartholomew 1662, on
pain of diree pounds a month for so long time as they shall be
unprovided thereof.

By Ca»on 80, if any parishes be yet unfurnished of the Book of
books of Homilies allowed by authority, the churchwardens Homaies.
shall, within convenient time, provide the same at the charge of
the parish.

17. By Canon 70, in every parish church and chapel, shall Regbier.
be provided one parchment book at the charge of the parish,
wherein shall be written the day and year of every christening,
wedding, and burial within the parish ; and for the safe keep-
ing thereof, the churchwardens, at the charge of the parish,
shall provide one sure coffer, with three locks and keys, where-
of one to remun with the minister, and the other two with the
churchwardens severally.

And by the 86 Geo. 2, e. 33, and now by 4 Geo. 4, c. 76,
tbe churchwardens shall provide proper books of vellum, and
good and durable paper ; in which all marriages and banns of
marriages respectively, there published or solemnised, shall

162

tf^urdO*

Ornamenli

•

Table of

prohibited
degrees.

Ten Com-
mand-
ments.

Monn-
ments and
tombttooes,
vid. •' Fa-
euUy for
monu'
mtnttJ*'

Repair of.

Dofaciog of

be registered; to be carefully kept and presenred for public
use. Vid. iii. *' Baptism,'' ante 72, *' Burial^' ante 132.

By Canon 99| the table of degrees of marriages prohibttedi
shall be in erery church, publicly set up at the charge of the
parish.

By Canon 8S, the ten commandnients shall be set at the
charge of the parish, upon the east end of every church and
chapel, where the people may best see and read the same; and
by the same Canon other chosen sentences shall, at the like
charge, be written upon the walls of the said churches and cha-
pels, in places convenient.

All parishioners have a right to be buried in the church^yard
without leave of the incumbent, but the permission of the ordinary
is necessary before any monument can be erected in the chantry,
or tombstone in the church^yard. It is to the care of the ordinary
that the fabric of the church is committed, that it shall not be
injured or deformed by the caprice of individuals. The con-
sent of the inctimbent is also required on such occasions, espe-
cially of the rector for monuments in the chancel. 1 jHaf* Con,
20.5. As to the right of a lay rector to fix tablets in the chancel,
4 Hag. 164.

Concerning the building or erecting of tombs, sepulchres, or
monuments for the deceased in church, chancel, common chapel,
or church-yard in convenient manner , it is lawful, for it is the last
act of charity that can be done for the deceased. 3 Inst. 102.
And Degge says, he conceives that this must be intended by
licence of the bishop, or consent of the parson and church-
wardens, 146; 3 Easty 317; 1 Hctg. Con. 14. But a different
rule exists as to aisles or private chapels beloogiiig to particular
families. Vid.post 188, 189.

A custom for the churchwardens to set np monuments, &c.
in a church without consent of the rector or ordinary is a bad
custom. \ B. ^ A, 608. Nor can the churchward^ra give
leave to erect a gravestone without the leave of the cnrdinary,
except by custom. 1 Hckg. Con* 14; Str. 1080. Nor indeed,
without the consent of the parson also, especially in the church.
I Hag. Con. 2\l ; 3/^^ 317.

But monuments once emoted may be repaired, and although
. necessary to apply to the> churchwardens for leave, they are
bound to grant it. 1 Hag. Con. 14.

If a nobleman, knight, esquire, or other be buried in a church,
and have his coat-armour and pennons, with his lurmsand such other
ensigns of honour as belong to his degree or order, set up in the
church ; or if a gravestone or tomb be made for. a monument for
him, in this case, though the freehold of the chuoch be in the p«^
son, and that these be annexed to the freehold, yet cannot the

^mti)^ 163

parson or any other take them or deface them ; but be is sub- ^^on-
ject to an action to the.heir and his heirs, in the honour of whose "^°'''
ancestor they were set up. Co. LiiL 18 b; S Inst 110; Deftu»os
S RolL Rep» 140; Palm. 46; and an action of trespass willJie <>'•
in such case. Spoonerr. Brewster, S Bing. 1S6 ; 10 B, Moore,
484. But it se^ns that in all cases these erections are under
die control of the ordinary, subject to an appeal to the metro*
poHtan or other, as the case may be ; who may, if he see good
reason, order them to be removed. Sir. SI 5, 1080; S Eiut,
817; 2 Hag. 48; 4 Hag. 164; 1 Add. 541. The defacing
them without his direction would be an ecclesiastical offence.
SPAtff.89.

With regard to the repairs of the body or nave of the Repun.
church, they are to be doiie by the parishioners. Lindwood, of^ —
53, says, *' Custom, or the common law has cast this bur- nare.
" den upon the parishioners, and likewise sometimes upon
" the chancel, as particularly in the city of London, in many
*^ churches there ; and this custom the parishioners may be
<* compelled to observe where such custom is/* (a)
— ' — - — — — — — - — — ■ — — — ■ ■ -

(a) Much controversy has taken place on this subject — one side con-
tenduig, that the repairs of the fiibric of the chuidi were orifj^nally a
charge upon tithes, of which there was a quadripartite division, viz.,
<me portion to the bishop, one to the repair of the church, one to the
poor, and one to the priest ; or tripartite, to repairs, to the clergy, and to
the poor. The other side contending for the great antiquity of church
rates as a specific provision for the repair of diurches. There seems,
however, to be no trace of either of such divisions of tithes accruing from
a parochial endowment. Nor is there any real ground for supposing
that the ecdesuB eensui^ or church-scot, was specifically collected for,
or i^ipUed to, the reparation of the church. Previously to the division
of the kingdom into paxisbes* the whole of the ecclesiastical revenues,
oooaiating not only of tithes, but of church-scot and aims or oblations,
were paid to the bishops M. ante. 67, notcik ; they seem to have been
collections for the general support of the parochktf as the dioceses used
to be called in the early history of the church ; and were not limited
to any particular church, but applicable generally to the support of the
whole paracbia or episcopal district.

It is difficult to extract anything satisfactory on this subject from the
An^o-Saxon laws. The following extracts, however, have been usu-
ally cited in the course of the discussion. In the laws of Eadmund,
who reigned from 940 to 946, it is said, *' To each Christian person,
by his Christianity, we enjoin Decinuu, et ecck^tx censum et nwnmum
deemoeynarium. If any one will not do this, let him be excommu-
nicated." WUkins Leg. AngUh-Sax. 72, 2. Again, " We say also,
** that each bishop sboidd repair the house of Qod of his own, (metauret
** demmm Dei de suo proprw) and let him admonish even the king,
*' (regent etiam eommoneat), that the temples of Qod be properly, mr-

164 tWrfb^

Repafns. Though the minister does not contribute, he has a n\

duty upon him to see the church well and duly repaired, and that

" nished, as to us is very necesaaty^ 72, 5." By the law8> both <^ Eadgar
and of Canute^ it appears that the proportion of tithes which a tfaaae
paid to the church, if there was one m fiedo Mto, depended upon the
circumstance whether there was a burying place there or not, WiXkm^
76, 2 ; 130, 11. In the constitutions of Ethelred^ who began to reign
in 979, we find, *' Concerning tithes, the king and wise men haire de-
'* creed, as is just, that the third part of those tithes which belong to
" the church,*' detur ad compen$ationem ecclesice (according to WiU
iins* translation). A second part to the ministers of God, and tbe tliird
part to tbe poor. fVilkins, It 2. It is not very clear what meaning
uught to be attached to the word " eompenaatio"

These constitutions also contain provisions for peter-pence and charch-
scot, which seem to show that church-scot was not connected with re-
pairs ; but still was something over and above tithes ; and was no more
connected with tithes then, than church rates now are.

In the laws of CawutCt who began to reign in 1017, we find law 62,
*' De viis pMieis reficiendU ;" and the 63rd, which is " Defano refici-
endo," states that all the people ought, by law to contribute to the
repair of the church. *' Jure auxiliari debet; " WUkin^, 143.

Nothing, it seems, can be safely assumed from these discordant provi-
sions. In the first the bishop is directed to repair ; and, no doubt, «s
long as tithes, church-scot, and oblations were paid into his hands be
was to provide for the repairs of all the churches in his district. Bat
even then it seems, with regard to the ornaments of the church, he wtf
to admonish others, not omitting the king if necessary. So also of the
tripartite division, that applies to some superior hand, by yrhom the
division was to be made, and therefore it would seem to apply to the
general fund in the bishop's hands.

During this period, and before the dividon of the country into paro-
chial districts had been generally effected ; and before local endowments
to the several parochial churches had been made, a landowner might
pay tithes to what church or parochia he chose. Seld. Hist, of TUhes,
e. 10, 5. 2 ; Year Books, 7 Ed. 3, 4, 7; 44 Ed. 8, 5, 22 ; 1 EagUm
TUheSf Introd.f subject, amongst other things, to paying a proportion
to his own church if he had a burial-place there, as above alluded to.
But it was the peculiarly important feature in the parochial division,
that landowners appropriated the tithes of their estates to the support
of the churches, which they had founded on them ; and in consideration
of which, the bishop permitted all the contributions from such districts
to be withdrawn from the general fund, in order that they, for the future^
might be annexed to the newly -formed parish. From this period pan>«
chial tithes have their commencement, and assumed quite a different
character from any they had before. Till this period, though the non-
payment was denounced by threats of punishment, civil as well as
spiritual, still tithes were in their essence a pious contribution. These

€f)va[tb* 165

rMca be made to enable Cbe churchwardens to do it Prideaux^ ^t^^tm.
81 ; 8 PhiU. 35.

He that hath the rectory or parsonage, is bound to repair chtncel.
the chanceL Not because tne freehold is in him, for so is the
freehold of the whole church ; but by the custom of England,
which hath allotted the repairs of the chancel to the parson^
and the repairs of the church to the parishioners. Vet so,
that if the custom hath been for the parish, or the -estate of a
particular person to repair the chancel, that custom shall be
good. And if the parson have land in the Tillage not of the
rectory, he ought to contribute to the repairs of the church in
respect thereof. Roll. Rep. 3, SI! ; 2 Keb. 730, 74^.

The tower or spire is part of the church itself, nnd therefore Towtr or
where a spire was destroyed by lightning, and the parish had ■?>»•
repaired the body and roof, but refused to rebuild the spire,
the court issued a monition to repair and re-instate; and it being
suggested that there were insurmountable diflSculties, the court
said, if there were such, reference must be had to the court.
Ld. Maynard v. Brand and Philpoi, S PhiU. 501.

endowments, however, gave them the foundation of property ; and the
real and only question seems to be, did the landowner, making the
endowment, intend that the endowment should be for the support of the
manister only, or for the repair of the church as well as the support of
the minister ? Now, it is to be observed, that none of the Anglo-Saxon
laws ever intimate that the repairs were to he done by the mmisier in
respect of any tithes he received ; for in fact, till an endowment of the
church bad taken place, he received no tithes, but only a stipend. But
at a time when these endowments mast have been general, if not uni-
versal, the laws of Canute say that the duty of repair was to be borne
by the people ; speaking of the duty of repairing churches in the
same general terms as of the repairs of the public roads in the section
immediately preceding. But if the parochial endowment was to include
the repairs of the church as well as the support of the minister, when
did the transfer of the charge take place? Would a Saxon earl or
thane have permitted a clerk of his own presentation, and the object of
his bounty to have grasped the whole tithe, and thrown back on him
and his tenants the duty of providing the ornaments and whatever else
was necessary for the service of the church as well as the repairs ? or
could so important a change have been effected without remonstrance at
the time, nr at least without some historical notice or tradition of it, if
any such change had taken place ? So early as the 25 Ed. 1, the duty
of repairing by the inhabitants is alluded to in the statute, ne rector
prostemat arbores in ecemelerio^ as the common law then.

The charge on the inhabitants is said to be contrary to the canon
Inw, — ^the less likely is it that Saxon earls or Korman barons would
have submitted without resistance, especially at a time when the church
had less power in this o6antry than in any other in Ekirope.

16(> Cburd).

Rq»''^»- Aa to vicars, it seems that the chancel shall be repaired by

the rectors and vicars, or others to whom such repairs be-
lon^eth. Lindw, 253.
Chancel. Thus, where there is both rector and vicar in the same

church, they shall contribute in proportion to their benefice.
Lindw. 253.

In Hubbard v. Beck/ord, 1 Hag. Con. dOT, a question arose,
whether, amongst other things, a sequestrator of a rectory
was to be allowed for repairs of a chancel. Lord SiaweU ob»
served, ** The instrument issued under the authority of the
** bishop, contains a clause of allowance of all necessary
charges; and I do not know on what ground it can be
maintained that the repairs of the church and of the parson-
" age are not necessary. The clergyman is by law eoually re-
** quired to provide for such repairs as well as the performance
'' of Divine Service, and he cannot exonerate himself from one
** of those duties more than from the other." 1^9 Viet,
c. 106, s. 54.

In London, however, there is a general custom for the pa-
rishioners to repair the church aa well as the body of the
church, which custom may also exist ekewhere ; lor although
the rector, whether lay or spiritual, is primd /ode liable, there
is no reason in law why the parishioners may not be bound to
repair by custom.
Impro- In the Bishop of Elu v. Cribbons ei uxr.f 4 Hag. 156, it

priator. appeared that tnere had been originally a suit by the church-
wardens of C. against the bishop as impropriator of a j9or/toff of
the great tithes, to compel him to repair the chancel. Tne bishop,
in his defence, pleaded that he never had repaired the chancel,
and that he had no enioyment of it ; either as to seats, burials,
or monuments, but that the right in respect thereof had al-
ways been exercised by the vicar and churchwardens of the
parish, and that, from time immemorial, the parishioners had,
.Custom for by custom, repaired the chancel. To ti^ this latter defence, a
inhabitants prohibition was obtained, and the issue tried upon the existence
of the custom, which was found for the bishop. And it was
held by the court, Sir J. Nichott, that this finding of the jury
was conclusive of the custom, and that whatever might be the
general law and primd facie presumption in regard of the re-
pairs of a chancel, still they are liable to be controlled by cus^
tom, and there seems no reason why such custom should not
exist.

Questions have often arisen as to the mode of compelling lay
rectors to repair the church. On the one side it is said, that a
sequestration may issue, whilst on the other, such power is de»
nied. 2 Mod. 251 ; 2 Vent. 35. Gibson^ however, says, that
impropriations, before they were lay fees, were liable to seques-
tration, and that nothing passed to the crown at the dissolution

to.

but what tlie religious enjoyed ; and that the general saving in R^P*'"-
the 31 Hen. 8, c. lA^ may be well extended to a saving of chancel.
the right of the ordinary in this particular, which right he un- j^ impra-
dottbtediy had, by the law and practice of the church, which piutors.
said right is not abrogated by any statute whatsoever, (ribs.
Cod. 223; 3Keb.829.

And he adds : 1. That although this power had often been
exercised by the spiritual courts ; yet no instances were shown
of any opposition to it.

S. That in both the cases the judgment was given, not upon
the principal point, but upon errors in the pleadings.

3. That one reason suggested why the ordinary should not
have such jurisdiction to allow, was ab inconveniently because
such allowance would be a step towards eiving ordinaries a
power to augment vicarages, as they might have done, and fre-
quently did before the dissolution. Gibs. 199, vid, Sayer
and Hill v. Dean and CJkcipter of Chrisichurch in Peculiars
1787, a suit for not repairing the chancel, cited in Wilson v.
MeMoih, 3 PhUL 91.

Where there are more impropriators than one (as sometimes
happens,) and the prosecution is carried on by the church-
wardens to compel them to repair, it seems advisable for the
churchwardens to call a vestry, and there (after having made a
rate for the repair of the church and other expenses necessary
in the execution of their oflSce), that the vestry do make an
order for the churchwardens to prosecute the impropriators at
the parish expense. In such prosecution, the court will not
settle the proportion amongst the impropriators, but admonish
all who are made parties to the suit, to repair the chancel under
pain of excommunication. Nor vnll it be necessary to make
every impropriator a party, but only to prove that the parties
prosecuted nave received tithes or other profits belonging to the
rectory suflfeient to repair it; and they must settle the pro-
portion amongst themselves. For it is not a suit against them
for a sum of money, but for a neglect of duty, which is incum-
bent on all of them, though it may be advisable to make as
many of them parties as can be come at with certainty. 1 Burn's
E.L.352.

Repairing the chancel is a discharge from contributing to
the repairs of the church. But the impropriator is rateable to
the repairs of the church for lands not parcel of the par-
sonage, notwithstanding his obligation as parson to repair the
church. 2 Boll. Rep. ^11. When the |dea, therefore, of the
farmer of an impropriation to be exempt from the parish rate
because be repaired the chancel, was refused in the spiritual
court : it probably was because he sought by his plea to exempt

168

CfMnrdi.

Repun*

Of uIm and

particular

p«wt.

How con-
pelled.

8Ute of re-
pair to be
viewed
every three
jeart.

Alterationf,

eolarge-

fluentt.

other land ako from liability to church rates. I JBirraV £%. JL
862; 2 Keb, 733. 742.

If two churches be united, the repairs shall be made aa be-
fore the union. Degge^ 141, vid. tii. *' UnionJ^

The archdeacons and their officials* are enjoined that in the
visitation of churches, they have a diligent regard to the febric
of the church, and especially of the cluuicel,.to see if they want
repair. And if they find any defect of that kind, they shall
limit a certain time under a penalty, within which they shall be
repaired* Also they ahaU inquire by themselves or their oflS*
cials, in the parishes where they visit, if th^e be ought in. things
or persons which want to be corrected ; and if they sbaU find
any such, they shall correct the same either then or in the next
chapter. Limdw. 38.

It frequently happens that in cases of isles and particular pews
individuals have exclusive rights, if so it will be universally true
that such persons are bound to repair, vide pati 189.

The archdeacon may, at his discretion, enjoin a penalty, ota.
that after the limited time shall be expired, Divine Service shall
not be performed in the church, until competent reparation shall
be made. So that the parishioners may be punished by suspen*
sion or interdict of the place. But if there are any particular
persons who are bound to contribute towards the repair, and
although they be able, are not willing, or do neglect the same;
such persons may be compelled by a monition to such contribu*
tion, under pain of excommunication ; that so the church may
not continue for a long time unrepaired, through their deikidit.
Lindw. 53, post '* BaieJ'

But this was before the time that churchwardens had the
special charge of the repairs of the church. And it seemeth
now that the process shall issue against the churchwardens,
and that they may be excommunicated for disobedience. Pay-
ment of a tax for repairing a church, may be compelled by the
spiritual court, but not for buSding. 1 Lord Raym* 1 12.

By Can. 86. Every dean, dean and chapter, archdeacon, and
others, which have authority to hold ecclesbstical visitations,
by composition, law, or prescription, are directed to aunpcy
the churches of his or their jurisdiction, once in every three
years, in his own person, or cause the same to be done*

It is jprovided by the statute of Circumspecie agaiiSf IS Ed, 1,
«/• 4. If prelates do punish, for that the church is uneovei^d,
or not conveniently decked, the spiritual judge shall have power
to take knowledge, notwithstanding the king's prohibition*

Alterations or enlargements in a church, cannot be legaBy
effected, except by means of a fiicultv* If the population of a
parish has so increased that the church is unequal to general

acoomiDodatioii, an exteOBum of the boilding or a more convenieiit Alteniieas,
application of the space within, must be resorted to. And the mentT*

chnrcbwardens should apply for the consent of the ordinary,

Gibs» Cod, 224*; which seems to mean a faculty for the purpose,
the parish being bound and compellable by ecclesiastical can-
sores to provide accommodation for its parishioners, ** for every
msn who settles as a householder has a right to call on the
parish for a convenient seat,*' per Lord StowM, 1 Hag. Con.
194. If, however, upon a citation, the churchwardens were to
retmii that there were no pocanoiesf the court would give such
return, if established, much consideration, as it really may not be
m the power of churchwardens immediately to make additions
to the fabric, or to build chapels. Ibid. 317.

In granting a faculty for either of the above purposes, the
court would consider the expence to the parish, whether the
symmetry and proportions of the church would be violated by
the alteration, (which the ecclesiastical court would be careful
to preserve,) and whether the inside would be rendered dark
and incommodious. I Hag. Con. 195 ; 1 PAill. 28S. So also
the court would pay great attention to the fact that it was against
the wishes of the majority of inhabitants, although by no means
bound by such a circumstance, for the majority may incline to
umieceasary expense against which the court ought to protect
the minority ; or it may object to necessary expense. I Hag*
Con* 189. Neither will the opposition of the incumbent sway
the decision of the court. TaiiersaU v. Knijght, 1 PkiU. SS».
Although it may be entitled to great consideration, out of respect
to his station and influence in the parish. Fuller v. LanCf
2 Add. 429, pott '* PaeuUyr

But although a faculty ought to he applied for in all important
alterations, where the parishioners are to be borthened with ad«
ditional calls ; S Add. S73 ; yet where no private rights are in-
vaded, and where the alteration is intended for seneral accom**
modation, it is hardly to be maintained that every little alteration
of a pew requires a faculty. Therefore, where in a cmminal
9mt by arUclegf against a curate for altering a seat, and to shew
cause why it should not be restored to its former condition ; it was
proved that he had acted in concurrence with one of the church*
wardens, and only to benefit the parish, who did not object to it;
and that the alteration did not disfigure the church ; the court.
Sir J^NiehoUp held^ upon appeal, that a faculty was not neces-
sary, that the curate was not guilty, and gave liim lOOL nomine
expengarum. Parham v. Templar , 3 PUll. 515.

The possession of the church is in the minister and church-
wardensy and no person has aright to enter it when not open for
Divine Service, except by their permission ; the pews already
erected cannot be pulled down without their consent, unless after

170 Ct)urdl)«

cause sbewn^ by a faculty or license firom the ordinary. JwtraU
V. Steele, S PhiU. 170.
Taking Throogti the medium of a faculty the consiBtorial court will

<town. allow a church, being in a great degree of dilapidation, to be
pulled down ; there being no persons compellable by law to re-
store it| and its character as a parochial church having been
destroyed by act of parliament, and the church itself burnt down
at the fire of London ; but since rebuilt by French protestanta.
2 Add. 255.
Faculty. We have seen above that the discretion of the ordinary is not

g^°^ o^- fettered by the opinions of the majority of the parish, though it will

Cay deference to them; therefore where alterations were ordered
y a vestry, and a faculty applied for to confirm them ; it aeema
unimportant whether the vestry was legally constituted, if the
alterations themselves were proper, and such as the ordinary in
his discretion ought to approve.

Thus, in a case whereavestry«roomand gallery had been added
a parish church, by an order of vestry, aim an application made
for a faculty, approving and confirming the work; it was objected
that the vestry giving the order had not been assembled on a
legal notice, none having been affixed on the church door con*
formably to i>8 Geo. 3, c. 69, i. 1, and that the alterations were
unnecessary ; but it was proved that the notice of vestry was
published in the church, that it was held in the usual manner
and continued by adjournment, that the general concurrence of
the parish was evident, that the objection was not taken till long
after, when disputes had arisen upon other subjects, and that
there was a want of increased accommodation. Upon considera-
tion of the case, the court asked the' counsel whether they
could hope to maintain with success, either that a faculty could
not legally be granted, or that it would not be a proper exercise
of the discretion of the ordinary to confirm the erection of these
useful accommodations ih the church of an opulent and populous
parish ; the case coming on on appeal, the counsel eansemied to
a revewal of the sentence of the court below, which had refiised
a faculty, upon an understanding that no costs should be given,
with a view to promote harmony and reconciliation. Tkomas
and Httakes v. Morris^ I Add. 470, vide alio ChUton v. Cherry ^
2 Add. 578. As to building new churches or enlarging existing
ones, vide " Churches Building and Endawif^*^

But \ii through the increase of inhabitants, more pews or
galleries be necessary, it is said to be agreed that the church-
wardens cannot erect them of their own head. Strictly, it
cannot be done without the license of the ordinary And it is
clear, if there be a dispute, whether more pews are neoessary,
or where they shall be placed, the ordinary is sole judge in that
case. But if the incumbent, churchwardens and parishioners

€ibmtb* 171

do ummiinoosiy agree, that more pews are necessary, and that P<^^»-
they shall be made in such a place ; it does not seem that there
is any necesaity for the ordinary's interposition ; for there can
be no need of a judge, where there is no controTersy. Johns*
168 ; Ayl. Par. 484.

Whatever may have been the doubts or difficulties with regard Summary
to the law respecting church pews, it seems now to be settled upon ^' ^^^ ^^^
dear and distinct grounds. The following summary, it is hoped, ^^ °^'
will be found correctly deduced from the authorities that follow :
All pews in a church are primd fcteie at the disposal of
the churchwardens as the parodiial officers of the ordinary,
except the chief seat in the cnancel, which cnstom appropriates
to the rector, whether lay or ecclesiastical, and sometimes to
the Ticar ; for with regard to the other seats in the chancel
it seems the better opinion that their power extends to them
also.

Bat the ordinary has the power, by a faculty, of conferring
an exclusive right to sit in a particular pew, upon the persons
inhabiting a particular house within the parish ; this privilege is
always annexed to the house and not to the person— it cannot
therefore be granted to a man and his heirs, nor, inasmuch as
it is a privilege conferred on inhabitancy, can it be conferred on
a man in respect of a particular estate in the parish. Being
annexed to the house it would, it is conceived, be appurtenant to
the house; it certainly would pass with the house if expressly
transferred ; and it is apportionable amongst the distinct inha-
bitants of the house.

By a faculty, the right to sit in a particular pew in a private
isle, and also as it seems in a public isle or even in the body
of the church, may be annexed to a house out of the parish.
Subject to these private rights it is the dufv of churchwardens
to make all the seats as available as they can, for the ac^
oommodation of the parishioners, having regard in the ar-
rangement to their respective stations and conditions ; to
enable the churchwardens to accomplish this, they may
place or displace at pleasure, taking care not to exercise
such power unnecessarily or capriciously.
If any one feel aggrieved by the conduct of the churchwardens,
be may cite them to shew cause in the ecclesiastical court,
why they have so seated him or omitted to seat him.
If a man be placed in a particular pew by the churchwardens,
or sits there by their acquiescence and is disturbed by
another in the use of it ; he may sue such person in the ec-
clesiastical court in a suit called '' Perturbation of Seat!*
and his possessory right is sufficient to maintain such a suit
against a mere disturber : but such right will not support
a suit for perturbation of seat, against the churchwardens

17*3 €bVttlf>^

P<^' themselves ; for. as he sat there originally by their leaTe, ex-

Summary press or implied, they may revoke such leave, and displace

of th« Uw. him whenever the demand for church accommodation re-

quires them to exercise that power*
If however a man have an exclusive right to sit in a particular
pew, in right of his inhabiting a dwelling bouse, to which it
has been annexed by a faculty ; he may maintain a suit for
perturbation of seat in the ecclesiastical court against even
the churchwardens, and i fortiori against a disturber and
stranger.
So also he may have an action on the case at common law for
disturbing him in the use of the pew, ^ther against the
churchwardens, or against a disturber and stranger.
In order to support such right either in the one court or the
other, be must give in evidence the faculty which annexed
the pew to the house which he inhabits, or else such evi-
dence of user, repairs, or other circumstances as are usually
E roved in support of prescriptive rights ; so as reasonably to
!ad the judge in the ecclesiastical court, or a jury in a court
of law, to the conclusion, that the right, thus immemoriallj
exercised by him and his predecessors, was originally
derived from a faculty.
In the ecclesiastical court such a right has never been presumed
upon mere user alone; and although mere user, if long con-
tinued, has been left to a jury as evidence, upon which
they might, even taken alone, presume a faculty; yet it would
seem that mere user of a pew, from the very mode in which
pews are allotted or occupied, is of so equivocal a character,
that of itself, and without any circumstances to give it the
character of user adverse to the churchwardens, it is hardly
a sufficient ground to presume such grant. Po9t^ \9i>
When first Until after the Reformation, when the gaudy ceremonies
erected. and processions of the Romish religion were abandoned,
it seems that there was no general division of the body
of the church into pews. It has been said indeed, that
before that period, lords of franchises or other eminent persons
had distinct apartments in the church. By distinct apartments
isles or private chapels were probably meant, which might be
presumed to have been appropriated by the founder at the first
building of the church to the exclusive use of himself and the suc-
ceeding owners of his domains, or built since and appropriated in
the same manner; and which privilege would attach to and pass
with the mansion house of the manor; successive lords continuing
to uphold and amend the same. Other lords of manors, in imi-
tation of the greater lords, might 1^ their influence and power as
patrons ; and others by favour of the church or by pitrd^ase
might obtain seats merely to their own use in the body of the

church, on the condition of repairing them ; but such privilege P«^>-
In respect of the body of the church must have been rare. In-
deed Gibson says, Cod. SSI, " The doctrine that a seat in the
nave of the church may be prescribed for as belonging to a
house was heretofore doubted, and sometimes denied and over-
ruled vrith regard to the general right of the ordinary, and the
jurisdiction of spiritual authority; but it seems now to be the
- doctrine received." Vid. S Inst. 202.

It Is now, however, clearly understood that the ordinary has, Control of.
primA faciey the disposing all the seats in the church, that is,
he possesses the power over them till a faculty be proved or
presumed ; whereby some preceding ordinary has granted away
from himself and successors all control over a particular pew ;
and has estopped himself and them from intermeddling with ft
during the continuance of such faculty.

In May v. Crilbert, 9 Bulsir. 151, which was a case for pro-
hibition, Coke^ C. J. said, ** It was in PynCs case in C. B. and
** 8 Hen. 7, fol. IS, that it was decided that the ecclesiastical
" court has jurisdiction and power to dispose of pews and seats
*' in the church ; but, if there be an isle built by a gentleman or
'* by a nobleman, and he hath used it to bury there, and there
'* hath his ensigns of honour, as a gravestone, coat-armour, or
** the like, which belongs not to the parson ; and if he take
" them, the heir may well have an action of distress. But, if
" a nobleman comes to dwell in the country, he is now within
'* the sole order and dispose of the ordinary for his pew and
** seat in the church."

So in Boothby v. Baity, Hob. 69, the court said, '' Though
the church and church-yard be in law the soil and freehold of
the parson, yet the use of the body of the church and the
repair and maintenance of it is common to all the parishioners;
*' and, (or avoiding confusion, the distribution and disposing of
" seats and charges of repair belong to the ordinary, and there-
*' fore no man can challenge a peculiar pew without a special
" reason/'

But there may be an exclusive right to sit in a particular pew Pnicrip-
in thebody of the church, which will exclude the jurisdiction of t»^«"g*>*to.
the ordinary and, consequently the interference of the church-
wardens. This right may be annexed to a messuage, and may May be
be transferred vrith the messuage to another person \ \ T. R. tnatfemd.
4dO ; 8 Man. fRy.9M; S Add. 4S8; S Hag. Con. 319 ; but
a nan can have no individual property in a pew. There is no
such thinff as a right to a pew m a church in gross, or at large.
It IB a right which can only be held as appurtenant to a mes-
suage, and enjoyed and exercised by any person only so long as
he contimies to inhabit such messuage. SB. if A. 360. There

174

Cftttrcf)*

Pews,

Prescrip-
tive right to.

May be ap-
portioned.

Priority of

can be no annexation of such right to the person, much less to
a person and his heirs, nor can it be annexed to lands.

This riffbti it is said, may be held by a faculty or by prescrip-
tion, which, however, it is conceived, means the same thing ;
for every such prescription must suppose a faculty, as it seems
not possible that such a right could have any other legal cobh
mencement The freehold of the church is in the parson, sub-

e' ct to the general use of the inhalntants, for the purposes of
ivine worship ; which use is again subject to the directions of
the ordinary, so that there can be no disposal or grant of any
part of the body of the church without the concurrence of the
ordinary legally expressed, which would in effect amount to the
grant of a faculty. The question in most of the old cases seems
to have arisen upon the rights to a pew in an aisle, not, as it is
apprehended, that that can make any difference where it is a
public aisle» for then it becomes part of the church. The cases
of private aisles, where one person occupies or exercises a con-
trol over the whole, and repairs the whole, will be considered
hereafter.

The right to sit in a particular pew, when created by a
fiu:ulty, may be apportioned. Thus, where a faculty waa

J ranted to a man ana his family, and owner and occupier of a
welling house, and the bouse was afterwards divided ; the oc-
cupier of a part of the site of the dwelling house, though a very
smidl part, has some right, and therefore may maintain an action
against the churchwardens for disturbing him in the enjoyment
of it. Harris v. Drewe, 2 B. Sf Ad. 167. In which caae
LUiledale^ J. said, '* The plaintiff having a right to use the pew,
the churchwardens had no right to interfere as they did, and
were wrong doers. It may certainly happen, in consequence
** of a house having been subdivided, that three or four fiuniliea
** may become entitled to use a pew belonging to the original
*' messuage, and they may require more accommodation, and a
question may arise how many persons are entitled to use the
pew in respect of each of the subdirisions. That is, however,
'* a matter to be sptded among the respective owners. The ririit
*' to enjoy the pew was annexed to the old dwelling house wo-
" aether. The plaintiff lives in a part of that house. He there-
'* fore has some right to enjoy tne pew, and may maintain an
** action in respect of it."

As a seat in a church may be prescribed for, so also a priority
of seat. In the case of Carleian v. Huitau, ATcjy. 78, Palm. 484,
Laich, 116, Carleton claimed the upper place in a seat. Hutton
disturbed him* The archbishop of Vorx sent an inhibitiim to
Carleton till the matter should be determined before him, bat
prescription was surmised, and thereupon prohibition obtained.

becftUBe as well priority of seat as the seat itself ntay be claimed ^^"^
by prescription. Gibs. Cod. S22. Vid. also Siderf. 89.

If a party be disturbed in the enjoyment of a pew to which he Actwn for
claims an exclusive rights he may have at common law an action ^turb-
oo the case, as if the pew were enjoyed as an easement to his ^^^'
dweUiog house. Per Abbott ^ C. i. 5 B. Sf A. S61. An action
of trespass will not lie for entering into a pew, because the
plaintiff cannot have the exclusive possession, that being in the
parson. \ T. R. 4SO\ 6 B. & A. 356. The usual mode of
declaring is ** that the phdntia was possessed of a certain mes-
'' suage, and by reason thereof ought to have for himself and
" Cunily inhabiting the said messuage the use and benefit of a
" certain pew.'* \ T. R. 430; and t^tdf. Morgan v. Curtis, 3
Mm. f Ry. 389 ; 5 T. R. 396. But such action can only be
maintained on proof of a faculty, or by such evidence as fairly
leads to the presumption of a faculty. Possession merely is not
sofficient to support such an action even against a strangefi
much less against the ordinary.

A party may also proceed in the ecclesiastical court in a suit Suitfof p«b
there teehnicJly called <' Perturbation of Seat:' In such a case ^'"^^'''
it seems that a mere possessory right, as against a stranger, is
sufficioit; but such possessory right is only co-extensive in
duration vitli actual possession. If abandoned, it actually ceases
and determines. Siich possessory right seems to be founded
00 proof of the being placed in a particular seat by the church^
wardens, or in long continuance in such seat by their acquiea*
CHice. It is a sort of tenancy at will, good against all the worlds
in a defensive sense, except the churchwardens, as officers of
the ordinary ; but capable of bemg determined by them when-
ever the exigencies or convenience of the parish may require it.
SAdd.8; \ Ph$U.325; 2Add.4&4f.

It is conceived that the above general mode of declaring in Declan-
an action for disturbance, is in all cases sufficient, although ^^^*
a distinction is taken in some of the old cases between
making a title against the ordinary and a title against a wrong
doer. 12 Mod. 238; 1 Lev. 71 ; 2 Lee. 841 ; 3 Lev. 74;
3 T. iL 689. In Kenriek v. Taylor, 1 WUs. 3S6, die court
held that, '* being a possessory action against a stranger
'* and a mere wrong doer, the plaintiff was not obliged to
" prove any repairs done by himself or others whose estate
" he hath ; for it is a rule in law that one in possession need
" not show any title or consideration for such possession against
'* a wrong doer. But it is otherwise where one claims a pew

or an aisle against the ordinary, who undoubtedly has, primd
fade, the disposal of all the seats in the church, and against
** him a title or consideration must be shown in the declaration
*' and proved as to the building or repairing." But in that case
the whole court were clearly of opinion that possession and

«c

176

Pews.

Action for

dbturb-

ance.

Dealan*

tiOD.

laying it to be appurtenant to the house, without laying or
proving that the plaintiff repaired the pew, was sufficient against
a wrong doer. Vid. also 1 Siderf. Sa^ ; vid. 2B.Sf Ad. 168.

In Stocks V. Booth, 1 T. R. 430, Ashurst, J. said, *' In an
''action against a wrong doer, possession may be, perhaps,
" ori/tfiSyacf^, a sufficient title, and it is not necessary to set
" forth so strict a title as in an action against the ordinary.**
But BuUer in the same case says, " It was also said in the case
** in Wilson, Kenrick v. Taylor, supra, that it must be laid as
*' appurtenant to a messuage. But there never existed a case
'' before the present where the plaintiff attempted to make out
*' a title to a pew without laying it as appurtenant to a mea-
*' suage,** and vid. 5 B. Sf A. 356. But, as it can only have
become legally appurtenant by means of a faculty, the proof or
presumption of a /acuity must be as binding on the ordinary as
on a stranger. Besides, shovring repairs would only be evidence
of a prescriptive right and, consequently, of a faculty. In
Pitman v. Bridger, which was a case in the Arches for pertur-
bation of right, 1 PhiU. 3S7, Sir J. NichoU said, '' Mr. Bridger
'' pleads that no pews have been time immemorial annexed to
" his house, Eastry Court. I think, according to the practice
** of these courts, that is sufficient. It must be considered as
'' including the averment that the pew has been used, occu-
'' pied, and repaired from time immemorial." In Woolcombe
V. OuULridge, 3 Add. 6, however, the same learned judge
seemed to think that, in setting up a prescription in the eocle^
siastical court, it was absolutely necessary to allege reparations
from time to time in setting up a prescriptive title, (a)

(a) In Barrow v. Ken, 2 Keb. 342, the court said they conceived a
prescription by the inhabitants of anoUier parish would be ill, unless the
prescription was for an isle or repairs were shown, but that after verdict
these will be intended as necessary evidence. In Buxton v. Baleman,
Siderf. 89, upon conference with the other judges, it was said to be
agreed that in an action on the case a party may entitle himself without
showing reparation, but in a prohibition he ought to allege reparation.
In the report of that casein Sir T. Raymond^ s Reports, 52, Twysden,!.^
in giring judgment, says, *' I have conferred with most of the judges on
" diis case, and they are of opinion that the declaration is good enough
** without an allegation of repairing, (the action was for disturbance of a
" seat in an isle, and the plaintiff declared that he was seised of an
" ancient messuage and of lands, and that he and all those whose estate
" he hath in them have time out of mind used to sit in it) this being an
^* action on the case. But if it had been in a prohibition, then, per-
** haps, it had not been good." In Harvey's case, Co. Entries^ fol. 8,
the prescription was laid as above, but there was also an averment of
repairs, which averment was traversed and issue taken on it, and it aeenu
to have gone to trial, if indeed it were tried, upon that issue alone.

€Wr^. 177

The common farm above, however, whicli states that " the P*^''**

*' plaintiff was possessed of a certain messudge, and by reason Action for

"thereof ought to have for himself, as inhabiting the said mes- distmb-

*' fiuage, the use and benefit of a certain pew/' is the legal mode ^^^^

of statii^ that the right of sitting in the particular pew has ^ecli

iara«

been annexed to snch house by a faculty. Such statement, tion.
therefore, seems to be equally sufficient against the ordinary as
against a stranger ; a faculty being called by Sir J. Nicholl^
ia PUtman v. Bridget, 1 PhiU. 3^4; po&t, 178, ''a right
'* paramount to the ordinary himself/*

It is conceived, also, that by analogy to actions on the case
for disturbance of rights of ways, of common, and the like ;
it is sufficient to show a possessory title in the declaration,
as well in an action brought against the churchwardens or
ordinary ; as in an action brought against a mere intruder, a
stranger, and wrong doer. A similar distinction was supposed
to exist between declaring against the owner of the soil and
against a wrong doer. But in Blockley v. Slater, 1 Lutw, 1 19,
cited in 2 H'ms. Sound. 113, n. 1, such distinction was denied.
That was an action brought for disturbance of a way claimed
by the plaintiff* over the defendant's land, and the declaration
stated *^ that the plaintiff was, and still is, possessed of and in an
ancient messuage, &c. ; by reason whereof he hath and ought to
have a way through and over the defendant's land, and that the
defendant stopped it, &c.*' Upon special demurrer, showing for
cause that it did not appear by the declaration, how the plaintiff
was entitled to the way either by prescription or ^rant ; it was
objected that it was said in the declaration that the defendant
was possessed, and also it appeared by the declaration that the
closes, upon which the way was claimed, were the defendant's
lands, and therefore a title ought to be made to the way, either
hy grant or prescription, though it would have been otherwise if
the action had been against a wrong doer ; but notwithstanding
these ohjieotloTiB the court was of opinion that the declaration
was proper. So also in Bider v. Smith, 8 1\ R> 766, when the
same distinction was taken, that declaring generally on posses-
sion was not sufficient against the owner of the soil, though St
was against a wrong doer. It y/^ answered and resolved
by the whole court that the distinctS5n no longer prevailed, and
that this general mode of declaring had been allowed in both
cases aBke for more than a century past ; and Buller, J. traced
the progress of the different decisions on the subject; Fid. also
1 IVms. Saund. 346, ft. 2 ; 6 East, 438. Indeed till the defen-
dant plead he must be considered as a wrong doer, f^ id. 2 6^3
»^. 4,c.71,«. 5.

Perturbation of seat is a civil proceeding, and is the Perturba-
remedy which the spiritual court gives to a party whenever <>»nofieat.

178 €hnvtb^

Pews. he has been disturbed in the possession and enjoyment of his
Perturba. P®^' whether the disturbance proceed from the churchwardens
tionofseat. or a mere intruder. If a party complain of the churchwardens
for not seating him, he may have another remedy, called by
Lord Stowell a very convenient one, by calling on them to show
A civil suit, cause why they have not done so. Post 18^. If a party bring

this suit against the churchwardens who have removed him and

seated another person, and the court decide that the church-
wardens have acted properly in displacing the plaintiff, they will
dismiss the churchwardens ; but they will not go further and con-
firm the possession of the person whom the churchwardens bate
placed in the pew, as that might be injurious, by taking the
pew more out of the control of the churchwardens. WyUie
V. Molt, 1 Hag. 40.

In Parfiam v. Templar, 3 Phill, 515, the proceeding was in a
criminal form by articles, complaining that the defendant had al-
tered the pew in question. The judge, commenting on the form
of proceeding, said, " Looking at these articles, both as to the
*' heading and the averments, the object seems to be that of a
'' civil suit, to obtain redress and restitution of seat ; and it ought
" undoubtedly to have been proceeded in by a suit for perturba-
** tion of seat."

Although nothing short of a defined and permanent right in a
particular pew by means of a faculty will give any right of action
in a court of law ; yet the mere occupation or possession of a
pew, whether it be founded on express allotment by the church-
wardens, or their permission or tacit acquiescence, is a sufficient
foundation for a suit in the ecclesiastical court for perturbation
of seat against a stranger ; but in proceeding against the church-
wardens, who represent the ordinary, a right superior to
the ordinary himself, that is a faculty, must be shown or
presumed.

In Piiiman v. Bridger, 1 PhilL 324, Sir J. NichoU said, " A
" possessory right is not good against the churchwardens and
'' the ordinary. They may displace and make new arrange-
'' ments, but they ought not without cause to displace persons
^* in possession. If they do, the ordinary would re-instate them.
'* The possession, therefore, will have its weight. The ordi-
'' nary would give preference to a person in possession, caieris
" paribus, over a mere stranger. A possessory right is sufii-
'' cient to maintain a suit against a mere disturber. The fact
'* of possession implies either the actual or virtual authority of
" those having power to place. The disturber must show that
he has been placed there by this authority, or muat justify
his disturbance by showing a paramount right, a right para-
mount to the ordinary himself, namely a faculty, by which the
ordinary has parted with the right ; or, if there be oo proof of

ft
(t
ft
ft

Cfturrt* 179

" a faculty, there may be proof of prescription and such imme- P*^**
" Diorial usage as presumes the grant of a faculty "

With regard to the arrangement and distribution of seats, Arrange-
the sole power rests with the ordinary ; for, as said by Lord ^^^^ ^^'
Coke, ** as the church is a place dedicated and consecrated to
'* the service of God^ and is common to all the inhabitants, it
** therefore belongs to the bishop to order it in such manner
" as the service of God may best be celebrated, and that there
" be no contention in the church. And it is to be presumed
" that the ordinary who hath the care of souls will take care
" in such cases according to right and conveniency, that is
'* to say, to take care that the gentlemen have fit places for
'* them, and the poor people fit places for them also, and the
" ordering thereof is a matter merely spiritual.*' Carven^s case,
12 Rep. 105.

But, though the general right is in the bishop, as ordinary
of the diocese, yet in practice the arrangements are made by
the churchwardens, as the parochial officers of the ordinary for
this and similar purposes ; subject however, always to the con-
trol and revision of the bishop. The vestry have no authority
on the subject, for they are not the representatives of the ordi-
nary, and have no delegated authority from him, and, conse-
quently, the churchwardens are not bound to follow their direc-
tions ; although the opinion of the vestry, as conveying the
wishes and feelings of the body of the parish, ought to be re-
ceived with respect, and is entitled to weight. /^ Add. 4^5.

Upon the general duty of churchwardens Sir J. NickoU
observed, in Fuller v. Lane, 2 Add. 425, 426, ^' The general
'^ duty of churchwardens is to look to the general accommoda-
" tion of the parish, consulting as far as may be that of all its
'^ inhabitants. The parishioners, indeed, have a claim to be
" seated according to their rank and station ; but the church-
** wardens are not, in providing for this, to overlook the claims
*' of all to be seated, if sittings can be afforded them. Accord-
" ingly, they are bound in particular not to accommodate the
" higher classes beyond their real wants, to the exclusion of
" their poorer neighbours, who are equally entitled to accom-
'* niodation, though not to equal accommodation, supposing the
" seats to be not equally convenient." Again, in the same case
he added, *' It also appears that several heads of families, re- Mixing of
" spectable farmers, sit together in one pew, their wives and ^■™>^*«»»
'' families (in one instance to the number of seven) in another
" separate pew. This again suggests that the parish is driven
" to shif^ for want of room. It is a matter of feeling with
** many to perform their religious duties by the sides of their
'' wives and families. It is a matter of practical benefit, so far
" as may be, to indulge this feeling. Parents in that case are

N 2

190

Cfturti}*

Pews.

Arrange-
ment of.

Church-
buiJding
acts.

Pews not
be let or
told.

" more attentive, as setting an example to their children, vbo
*' are likely to be, and undoubtedly in many instances are, bene-
'' fited by that example. As a matter, therefore, both of feel-
** ing and practical advantage, families should be seated toge-
" ther in church where this can be done/' P^ 436. Lord
Stotoell also, in Wright v. the Rector of Homsey^ 1 Hag.
Con, 188, expressed his opinion to the same effect, saying that
the putting individuals of difierent families into the same pews
led to contention and inconvenience. But in a dense population
and insufficient accommodation this must be done. 3 Hag. 734.

If a house has actually had a pew attached to it, it is a fair
ground to place the proprietor of such house in that particular
pew. 3 PhilL 5^4, 2 Add. 438 ; 3 Man. & Ry. 389. But the
churchwardens may remove persons originafiy placed in seats, or
thefr descendants, or those who succeed them in the occupation
of particular houses ; but, if they do so capriciously or without
just ground, the ordinary will control and correct them. 3 Phill
523 ; 3 Hag. 733 ; and by Sir W. Wynne, 3 PhiU. 515, a. The
churchwardens are not to exercise their right to dispose of pews
arbitrarily, and without considering whether there is any legal
or equitable right.

With regard to churches built by the commissioners, (rirf.
these provisions more particularly stated post, " Church Build-
ing and Endowing^'* under the provisions of the 58 G. 3, c. 45,
s. 75,) it is directed that in all such churches a pew, to hold six
persons at least, shall be set apart, in the body or ground floor,
contiguous to or near the pulpit, for the minister for the time
being and his family ; and other seats in some convenient place,
but not among the free seats, for four persons, for the minister's
servants; upon neither of which shall any pew rent be imposed,
and, if the church or chapel is wholly or in part built out of the
rates, then one-fifth of the sittings in the whole church or chapel
shall be set apart for the use of the poor, and marked with the
words, " Free seats." And by *. 76, subscribers, being parish-
ioners, are in such churches, &c. to have a choice of pews, at
the rates fixed by the commissioners, in the order of the amount
of their subscriptions, and, where these are equal, then in the
order of their subscription ; and by 59 G. 3, e. 134, *. 30, pro-
per pews are to be assigned and provided for the use of the
church and chapel wardens of the new churches built under
58 G. 3, c. 45, or that act.

No arrangement nor consent can legalize the selling or
letting pews, except in the cases provided for by act of parlia-
ment. They belong to and are fur the free use of the inhabi-
tants of the parish, and cannot be let or sold even to inhabitants
without a special act of parliament. I Hag. 29. Neither does
it make any difference that the pews are newj erected at consi-

€f)nvtf). 181

(lerable expence, probably with a view to repayment by means P*'"-
of pew rents. If the church be an old church all letting is Xmrng^
illegal. Lord Siowell said on this subject, " These cases all ment of.
" show that, even where the order has been made to defray pews not
" expences, it has always been held to be illegal. It is said that to be lei or
" former cases had been instances of old pews, but that the ^^^'

agreement here is for building new pews. That cannot in-
" fluence the court nor make the act legal. It may be true that
" this is frequently done, particularly in chapels. But they are
" private property. This is an old parish church ; and I an?
"of opinion that neither the parishioners by consent, nor the
** ordinary, nor any power but the legislature can deprive the
" inhabitants of a parish of their general right ; and that such
" acts are contrary to the law of the land." I Hag. Con. 318 ;
and cases in the notey infra 183.

If the churchwardens give cause of complaint in their arrange-
ment of pews and seating of families, the mode of bringing the
matter before the notice of the ordinary and of calling on him
to revise their proceedings, seems to be by citing them in a Complaint
civil suit to shew cause why they should not do what the party against
aggrieved requires them to do, or why they have done what he ^j^"^^**'^'''
complains of ; called by Lord Stowell in the following case a
convenient mode of proceeding ; formerly it seems that it was the
practice, and indeed still is to proceed against the churchwardens
for perturbation, where" a party has been displaced. 1 Hag,
^; 3 PhilL o16. The case is so important on this and other
grounds, that it is given verbatim.

Walter v. Gunner and Driver, 1 Hag. Con. 317. This was a
proceeding against the churchwardens of Teddington, calling on
them to shew cause why they had not seated, or caused to be
seated, the plaintiff and his family in the parish church, according
to bis situation and condition ; he being a principal inhabitant and
parishioner, and having duly applied to them to be so seated.

An appearance was given for the churchwardens under pro-
test, admitting the averment set forth in the citation, " that he
" is a principal inhabitant, and that he had applied to them,"
at the same time alleging, " that this was not sufficient in law to
'* entitle Mr. Walter to cite them in this form ;" and further,
'' that the church was so small, and the number of inhabitants
'' 2io much increased, that many persons were obliged to submit
'' to considerable inconvenience, some in sitting with others,
" some in having no seats ; that many seats were held by custom,
" attached to houses in such a manner, that, though the owners
" did not use them, they were occupied by their tenants ; that
" the churchwardens have not interferred with such customary
" possession ; that the house, which Mr. Walter occupies, was
'' built by a Jew, who never applied for a seat; that in 1796,

182

C^urrl^^

P«Wf.

Amnge-
ment of.

Complaiot
a^ain»t
churcb-
wardent.

'* Mr. Walter applied for a seat, and a vestry was called, at
*• wbicli it was determined that persons should have permission
** to erect pews in a gallery, on payment of five pounds to the
** parish; that this offer had not been accepted; that the
*• plaintiff had refused to pay the church rate, unless he was
'^ seated ; that it was then proposed that a vacant place shouKI
'* be enclosed ; and notice was given to him that a vestry would
** be held for that purpose, but he did not attend : that the
** churchwardens are desirous of accommodating all persons as
** well as they can without disturbing the possession of others ;
" that they had no right to dispossess them, but were ready
** to submit to any order which the court might make upon
" them."

On the other side it was alleged, '^ that, by law and usage,
" all pews, except those held by faculty or other legal title,
** ought to be distributed amongst actual parishioners : that
•* many of the largest were assigned to persons, not living or
*' having lands in the parish ; that others were annexed to
** houses, and let out by the owners to persons not living in the
*^ parish; that it was in the power of the churchwardens, by a
legal exercise of their authority, to seat the complainant ; that
his house was one of the largest in the parish, and though he
had applied in 1796, and the following years, nothing effectual
•* had been done." It was replied, " that the pew held
" by Seton is reputed to be annexed to the house of Mr.
** Retford, and that part of his famaly used to sit there ; and
" the other occupied by Lady Murray, was annexed to another
** house, called Comb-house, which was now a school ; and that
•' the pew being too small for the boys, they were allowed to
'* occupy seats in the gallery at a certain rent ; that the church-
" wardens did not consider themselves to be authorized, by
'' virtue of their office, to disturb the possession of these
" parties."

Sir W. Scott said, " I think the process has issued very pro-
** perly in this case, and that this is a convenient mode of pro-
'' ceeding, by citing the churchwardens, in a civil suit, to stiew
" cause, &c., as in this citation. I do not think that it was
" necessary to allege that any particular pew was vacant, as it
'* would be a sufficient return, on the part of the churchwardens,
" to aver, that they were unable to comply with the request, on
''account that there were no such vacancies. If that return
" was made and duly established, I fear it might be entitled to
'^ much consideration, as in the enlarged population of parishes,
" in the vicinity of this town, it may really not be in the power
'' of the churchwardens, to make immediate additions to the
" fabric, or to build chapels at once for the accommodation of
'^ the inhabitants. The return, in this case, is not of that kind.

ttfUttb. 183

" It consisted of two parts; that notice was given of a vestry, Pews.
" and that an offer was made, that the party might erect a pew, ^
" on a condition which is not strictly legal — ^that he should pay menx^of'
*' the parish for it. It is clearly the law on this subject, that a Compiaiots
" parishioner has a ri^ht to a seat in the church, without such against
" payment ; but I think the return is bad on another ground ; churchwar-
** for, although it might be sufficient, if there was no pew vacant,
" yet if there are existing pews improperly occupied, the mere
" ofier of a permission to erect a pew is not a good return.

** The other part of the return is bad also, since it pleads a
" custom, which is evidently illegal, and cannot be supported ;
" that pews are appurtenant to certain houses, and are let by
" the owners to persons who are not inhabitants of the parish.
'* AD private rights in pews must be held under a faculty, or by
" prescription, which presumes a faculty, and no faculty was
" ever granted to that effect ; for the ordinary must have exer-
** daed his discretion, to depopulate the church of its own proper
'' inhabitants, if he could nave granted such a faculty. The
plea goes on to state ' that the churchwardens have not ven-
tured to disturb such occupiers,' to which it is answered justly
that they have not done their duty, for they ought to have
prevented an occupancy of that kind.
** There is sometning stated also of a custom, that others,
" who have not pews appurtenant, pay a rent for seats, which
" is applied in easement of the parish rate — ^a practice which
" has been constandy reprehended by the ecclesiastical courts,
'' and discouraged as often as it has been set up. Then the
*' return is, I think, insufficient ; and the party has shewn that
" there are pews occupied by persons not living in the parish,
** and that a particular individual has obtained a large portion
** of the church, and let his own pew to a non-resident person.
" There is one pew appurtenant to the house of Mr. Retford,
" who does not live in the parish, and who covenants with his
" tenant, that he shall not occupy it, in order that he may let it
'* out to others. This is clearly illegal. If a pew is rightly ap-
'' purtenant, the occupancy of it must pass with the house ; and
*' the individuals cannot, by contract between themselves, de-
" feat the general right of the parish. It appears that the house
** has been built only eighty years, which it is not sufficient to
** establish a prescriptive right : because it might be presumed
" that evidence of the grant of a faculty was not extinct in that
" time ; but even if there was a prescriptive right, it could not
'' be exercised by transferring it to persons, not inhabitants of
'' the house, or of the parish. Such possession cannot be main-
" tained. There is also another instance, in which the parish
" has given way to the partial convenience of one person, who

184

€ifuvtt>*

Pewp.

Arrange-
ment of.

Complaint
againn
charch-
wardens.

Power of

churchwar-

dens.

((

" holds a house to which a pew may be appurtenant : When,
however, he was indulged with a gallery, the parish ought to
have required him to exchange his own pew for that accom-
** modation. He ought to be required to go back to his own
** proper pew, or give it up to the parish; as it is now used in
" the same improper manner by inhabitants of another parish.

" The court, therefore, is bound to overrule the protest, but
*' I shall not do more, or give any costs against the churchwar-
dens ; for they have been acting under the general sense of
the parish, and it is difficult for such persons to bear up
against it. It is possible that the parties, whose rights are
asserted, may have something more to allege in defence of
them, and they must not be precluded. But I shall overrule
the protest, giving such parties an opportunity to intervene.*'
A person having permission from the churchwardens to sit in
pew temporarily, and in order by keeping possession for a
future tenant, to carry into effect the conditions of sale of a
house, M'ith which the pew had been held, for above a century,
under a faculty then expired ; has not such a possessory right as
enables him to bring a suit for perturbation against even a mere
intruder, the possession being illegal, as tending to confirm the
sale of a pew. Blake v. Osborne, 3 Hag, 796.

But the churchwardens have not any authority to make dis-
tribution of seats independently of the bishop, unless, indeed,
as it is said, there be a custom in the parish to that purpose.
In Langley v. Clarke^ T. Raym. 246, C. B., a prohibition was
prayed on a suggestion, that time out of time there had been a
custom that the churchwardens, with the major part of the
parishioners, may order the seats in the church* North, C. J.
said, *' A prohibition shall not be granted, because the ordinary
'* hath jurisdiction, and the churchwardens cannot jostle out his
'' authority." So in Greater chy v. BeardslUf 2 Lev. 241,
where a prohibition was prayed upon a suggestion that time out
of mind the parishioners at their own charge have built and re-

C aired all the seats of the church, and ratione inde, the seats
ave time out of mind been disposed of by the churchwar-
dens, but now that the bishop took upon him to dispose of them.
Jones, J. " Of common right, the ordinary hath the disposal of
'* all the seats in the church, and of common right the ps-
'* rishioners oughtto repair them ; then what have the parishioners
'* done here to oust the ordinary of his jurisdiction? they have
'< only said that they have repaired the seats of the parish at the
*' parish charge, which is no more than their duty, for which they
** have the easement of sitting in them according to the disposal
'* of the ordinary ; whereupon the prohibition was denied by the
♦* whole court,"

So in another case shortly stated in 1 Salk. 161, a prohibition ^^^^'

was prayed to a suit in the spiritual court, where the pa- Powerof

risbioners prescribed to dispose of the pews exclusive of the or- church-

dinary. Sed. per Cur. That cannot be ; the ordinary's not ^'^''*'^"'* *>y

• • 1 1 ' 1 -.!_ • p I-' • ^ custom.

acting might be because there was no occasion tor bis inter-
meddling; but that cannot vest the right in them, who are
only a corporation capable of goods but not of inheritance.
Iresgrare v. Churchwardens of Shrewsbury.

With regard to the right of churchwardens by custom,
Gibson says, *' So a custom time out of mind of disposing of seats
'' by the churchwardens and major part of the parish, or by
'* twelve, or any particular number of parishioners, is a good
" custom ; and if the ordinary interpose, a prohibition will be
" granted/' Cod. 226. But be cites no authority. Degge
states it thus : — " The churchwardens, with the approbation of
'^ the parson^ may by custom dispose of the common seats,
" huiU €U the charge of the parish^ and place the parishioners
** therein according to their degrees and qualities ; but no such
" custom can exclude the bishop from a temporary disposition
'' of such seate. ' p.\AA\ and cites 2 Roll. Rep. 288 ; Hob. G9 ;
Foph. 140.

The case in Hobarts Reports is upon a prescriptive right to
a particular pew. The case reported in 2 Roll. Rep. is the same
as that in Popham, somewhat differently reported. In both a cus-
tom is stated for the churchwardens to dispose of the seats. In
Popham it is stated generally; in Rolle on the ground of repairing
the seats ; which by the cases above, seems to be no good founda-
tion for such a custom ; but in both reports, the case appears to
have gone off* on the same point, viz. that the ordinary, in dispos-
sessing the grantee of the churchwardens, had granted the seat to
anotber person and his heirs ; which, in both cases is stated to be, as
it certainly is, aninvalid grant. Post^ 189; Brabin Y.Tradumt2
Roll. Rep.288; Poph. 140. There seems, therefore, to be no autho*
rity , except that of Gibson^ (no doubt a very high authority, espe-
cially when stating a principle contrary to his own views) for saying
that churchwardens can, by a custom, which seems to be bad in
law, oust the ordinary of his jurisdiction in the distribution of
seats. It is difficult to conceive a legal origin for such a custom —
it could hardly commence by grant from the bishop, for as
it is a ]K>wer and duty lodged with him to exercise for the benc^fit
of the public, he could not divest himself and successors of it.
Nor could it grow by mere user ; for a subordinate officer can-
not, it is imagined, gain an adverse and independent right against
his superior by the mere exercise and discharge of his subordi-
nate duties. The ordinary could hardly lose his right by not
])ersonally interfering when the duties were performed without
objection by his proper officers; and as said in the case in

186 €f)urtt)^

^^'^' 1 Salkeld, 161, supra 185, " The ordinary's not acting might

" be because there was no occasion for his intermeddling.'*

In chancel. It seems not clearly settled whether the power and jurisdic-
tion of the ordinary extends to the chancel. Gibson, indeed,
Cod. 226, says, " Seats in the chancel are in the dbpoaition of
the ordinary in like manner as those in the body of the church ;
which need only be mentioned indeed, because there can
be no real ground for exempting them from the power of the
ordinary, since the freehold of the church is as much in the
parson as the freehold of the chancel : " intimating no doubt
on the law. And BuUer J., in Griffith v. Mathews, 3 T. IL
298, speaks of a faculty being granted to erect the pew in
the case l)efore the court, which pew was in a chancel;
and, therefore, in so saying, there seemed to be no objec-
tion in his mind on the ground of the seat being in the
chancel; but the learned judge was speaking on uke effect
of the evidence and without reference to this question. On the
other hand. Lord Coke says, Brownlowy.Goldsborough,Iiep*4:
** For the body of the church, the ordinary is to place and dia-
" place. In the chancel, the freehold is in the parson, and is
" parcel of his glebe." From which mode of expression it
would seem that he thought the chancel was held by the rector
as his exclusive pro)>erty, inalienable indeed from the rectory,
by the saving clause in the 32 Hen. 8, c. 13, «. 4; Gibs,
Cod. 224: but still held by him as his glebe, subject to no other
rights. And Watson, c. 39, though he considers that the law
ought to be otherwise, yet admits that it seems now settled to
the contrary. But Sir Simon Degge says, p. 144, The seats
in the chancel are properly in the dispose of the rector or
parson ; but it should seem that a parishioner may prescribe
for a seat there.

In Clifford v. Weeks, 1 JB. ^ Ad. 498, a question arose
whether a grant of a part of a chancel by a lay impropriator
was good, and the court held clearly that it was not. The
question as to the power of the ordinary over the chancel was
raised in the case ; but the court decided on the ground that
the lay impropriator could not alien a part of the chancel in
the unconditional mode attempted. In alluding to the power
of the ordinary. Lord Ellenborough said, '^ Is it not the duty
** of the rector to retain such a power over the chancel, as to
*' enable him to see that it is to be applied to the purpose for
** which it was originally built ? *' But if that power existed
*' in the ordinary, it would remain in full force, notwithstanding
" the alienation by the rector." Bayley, J., however, expresses a

Rector en- decisive Opinion on the question, for he said, '* The general

**Tincipal " ^"'® '** ****^ ^^^ rector is entitled to the principal pew in the
pnncipai ^^ chancel ; but that the ordinary may grant permission to other

f«

€f>nrtf). 1^7

'* persons to have pews there. If this grant, however, were ^*^^^
" good, it would take the chancel entirely out of the jurisdiction in chancel.
*' of the ordinary,"

Abbot, J. declined entering into the question, whether the
rector or ordinary had the paramount right.

IIolroffd,J. said, " the rector has the freehold in the chancel in

the same way that he has the freehold in the church and

church-yard, and vid. & B. % A. 361 •

It seem, however, to be now generally considered that the
jurisdiction of the ordinary extends to the chancel as well as to
the other parts of the church. The circumstance that the free-
bold is in the rector would equally be an objection to the power
of the ordinary over the other parts, for the freehold of the
whole is in the rector. Neither does the circumstance of
his being bound to repair affect the question, for he is bound to
repair the chancel of common right, as the parishioners are bound
of common right to repair the nave of the church ; but that, as
we have seen above, gives them no right to dispose of seats in
the nave, nor in any way oust the jurisdiction of the ordinary. In
the case of Morgan v. Curtis^ 8 Man. and Ry, 389, the question
arose directly upon the right to a pew in the chancel, and it
seems not to have been made a question either on the bench or
at the bar ; but that a faculty may have been presumed to have
been granted for this pew, being in the chancel, as if it had been
in the body of the church. The learned judge at the trial put
the question to the jury, that they might presume that a faculty
existed, but added, " It would require strong evidence to in-
*' duce a belief that the bishop would grant a faculty to erect
'' a seat in a chancel belonging to a lay or clerical rector." At
the same time it is to be observed, that it would not have been
to the interest of the party applying for a new trial to have ques-
tioned that part of the direction of the learned judge on the trial.

In a late case in the ecclesiastical court. Rich v. BushneU^ Vanibt or
4 Hag. 164, it was held that the lay rector is not entitled as (abietH in.
of right to make a vault, or affix tablets in the chancel without
leave of the ordinary ; nor is he entitled to a faculty for such
purposes, without laying before the ordinary the particulars
in to satisfy him that the tablets or vaults will not inter-
rupt the parishioners in the use and enjoyment of the chancel.
In giving judgment, Sir J. McAo// observed, " Though the free-
*' hold of the chancel may be in the rector, lay or spiritual, as
" by a sort of legal fiction the freehold of the church is in the
*' incumbent ; and though the burthen of repairing the chancel
may rest on such rector, yet the use of it belongs to the
'' parishioners, for the decent and convenient celebration of the
holy communion, and the solemnization of marriage : and by

((

188 €l)iirtt).

^^* '* the Rubric, that portion of the communion service which

In chancel. " fon^s a part of the morning service is directed to be read
'* from the communion table, which is appointed to stand in the
*^ body of the church, or in the chancel. If, indeed, the
'^ churchwardens and inhabitants have no right nor interest in
** the question, why are they cited ? "
In Ulei. With regard to an isle in a church, the principle of law

seems to be different. For an isle is frequently distinguished
as belonging either wholly, or in part, to private families or
individuals, or rather to particular estates within the parish ;
the owners of which, it is presumed, originally erected the
isle for the accommodation of their household, which their
successors in the estate claim as appurtenant to the ancient
mansion or dwelling-house. But in order to complete this ex-
clusive right, it is necessary, not only that it should have existed
immemorially, but that the owners of the mansion, in respect
of which it is claimed, should from time to time have borne
the expense of repairing that which they claim, as having
been set up by their predecessors. 3 Inst, 202 ; 2 Inst, 489.

In Buxton v. Bateman^ Siderf, 88, it was said by the court, " that
'' if the seat were not in the body of the church, it would not be-
*' long to the ordinary, and that an isle in a church may be par-
'* eel of my house ; or in case I am founder, may be allotted to
" me in lieu of donation and for sepulture, &c," This case is
reported also 1 Lev, 71. The above opinion of the court is
not given, but merely it is said, " some would make a difference
'' in a seat in a church and an isle, for an isle may be on his own
" soil." Vid, also 3 Lev, 74. In Francis v. Ley, Cro, Jac, 3G6,
it was resolved by the court that, " If a man and his ancestors
*' only have used time whereof, &c., to repair an isle in a church
'' and to sit there with his family to hear Divine Service, and to
" bury there, this makes the isle proper and peculiar to his
house ; and he cannot be displaced nor interrupted by the
parson, churchwarden, or ordinary himself: but the constant
'^ sitting and burying there without using to repair it, doth not
" gain any peculiar property or pre-eminence therein. And if
'* the isle hath been used to be repaired at the charge of all
'' the parish in common, the ordinary may, from time to time
" appoint whom he pleaseth to sit there, notwithstanding any
" usage to the contrary."

In May v. Gilbert, 2 Bulstr,, Coke J., cited a case called
HaWs case, 9 Ed, 4, fol, 14, which he said was this: " Where
'' a man did build an entire isle to a church, and was at
*' continual charge to repair it, if he be disturbed in the
" use of it, he shall, for this disturbance, have his remedy at
''common law, and so it hath been adjudged:" vid, also

CI)urrft^ 189

-D«gy^, P. C. 144; Gibs. Cod. 22\. This doctrine seems to Pew,
bave been recognised by Sir J. Nicholl, in a modern case, Fuller jq jgies.
▼. Lane, 2 Add. 433: speaking of the accommodation in a par-
ticular church, he said, *' The parish church of L., appears to

to be an old collegiate church, with three chancels, as they

are called, or more properly isles. The number of pews in
" these isles is twenty-three ; but the isles themselves, and the
" pews in them, are the mere private property of three several
'' parishioners, who keep them in repair ; and the sittings in
'' these i2>les are not open in any sense to the general accommo-
" dation of the parisnioners."

The legal consequence of a seat or seats so situated being
private property, seems to be that they may be held by persons
not resident in the parish. 2 Add. 427. Or they may be pre-
scribed for as annexed to a house situated out of the parish.
Forrest, 14.

A faculty to a man and his heirs has always been considered Faculties
a void faculty, and was so held in Brabin and TradunCs case.

Poph. I40 ; 2 RoU. Rep. 288; I B. ^ A. 498; 5 T. R. 298, To a man
because it professes to give the right whether a man be resident J°** ****
or not. Gibs. Cod. 221 ; 1 Hag. 321 ; 2 Add. 427 \ 5 B. % C. ^^'^'
18. So pews cannot be annexed by a faculty to land, but must Annexed to
be appropriated to a house, for it is in respect of inhabitancy of '° «8tate.
the particular house, that the pew is to be used ; Gibs. Cod.
222; 3 Add. 6; 5 £. ^ C 18; and, therefore, the owner of an
estate cannot prevent his tenant from using the pew attached to
the house which he occupies, for the right to the pew is insepa-
rable froui the inhabitancy of the house. 3 Add. 6; 1 Hag.
315.

Whether a man can prescribe for an exclusive right to a pew Annexed to
in respect of a house situated without the parish, has been ahou«eout
much doubted and disputed ; it seems to be admitted on the p^^^^.
authority of Dams v. Wit^ Forrest, 14, that if the pew be in an
isle, and not in the bo<Iy of the church, such prescription may
be good ; but it is said there is a distinction between a seat in an
isle and one in the nave or body of the church.

In the case of Lousley v. Hey ward, 1 Y. ^ J. 583, however,
such distinction was denied.

At the trial, at Gloucester, before Lawrence, J., the right to
the pew was claimed by the plaintiff, on the ground of reparation
and enjoyment for a considerable length of time. The pew was
situated in the body of the church, and the house in respect of
which the plaintiff was entitled, was, as defendant contended,
not within the parish. A verdict was found for the plaintiff;
and at the trial, Mr. Justice Lawrence, in answer to an obser-
vation made, that a prescription might, under such circumstances,

190 Cfturrft^

^•^*' be good for a pew in the isle, but not in the body of the church,

AnneieU to Said, he saw no substantial distinction.

a house A motion was made to set aside the verdict, on the ground of

^ariah ^^^ ^^'® distinction ; and also, that the right, either by prescription or
faculty, could only be appurtenant to a messuage in the parish.
Macdonaldy C. B., in giving judgment, said: — "The only
question which the court has to decide is, whether there
can in law be a prescription for a person living out of the
'' parish to have a pew in the nave of the church. There is in
** the present case, an uninterrupted enjoyment ; and although
" the origin of the right to the pew cannot be traced, it is un-
'^ doubtedly ancient, notwithstanding there is nothing to shew
*' upon what circumstance it was at first assumed or grounded.
" And in the absence of all evidence against the right; the
*^ question is, whether, upon the mere principles of law, the
'* court can say, that, notwithstanding the enjoyment of the
'* right in fact, it could never have had a legal origin.

*' To defeat the claim of the plaintiff*, it must be shewn that
" the creation or assumption of the right was absolutely, and of
^' necessity, void in origine ; and unless the prescription is of
'' itself rotten and bad, from some legal vice, there is nothing
" else to afiect it. But as to the legal possibility or impossi-
'' bility of the thing, a very short inquiry is sufficient. It ap-
'* pears from iS'e/c/era, 112, that in early times, by the pope's
" license, churches were founded or built by lords of manors, or
" other lay founders ; and that parishes were not then reduced
'' to the exact circuits and boundaries by which they are now
'' known, and particularly for ecclesiastical purposes ; that when
" churches were first built, a certain district was allotted, over
" which the officiating minister was to superintend. This was
" a kind of division, not a parish, in the sense in which we now
*' understand it. The boundaries of parishes were settled long
" after the foundation of churches; and those ecclesiastical dis-
" tricts, formerly belonging to churches at their first institution,
" have been since much varied, and in many cases abridged and
" narrowed, when new churches were built. How then, can
'' we now say that the owners of the house or the estate in
'' respect of which this pew is claimed, did not build or endow
'* the church, or some part of it; or that this house, though
" now not within the parish, according to its present boun-
'* daries, was not formerly within the ecclesiastical limits of
" the church ? Very probably it was so. But without going
" farther, it might have been so, and that is sufficient; for we
" are now only upon the question, whether a person can, for a
" house out of the parish, prescribe for a pew in the body of
" the church ; or whether the prescription must of necessitv

'* be bad in law. The history of churches shews the contrary. Pewg.
'* The distinction between a proscription in a house out of the Annexed to
*' parish for a pew in an isle, but not in the body of the church , ^ hooM.
"is merely made a doubt or question in some of the books; ^"[iJll*'^
" but there is no case in support of it ; and there is no distinc-
'* tion in the reason of the thing itself."

A case might be supposed where a man has extensive estates
in a parish, in respect of which he contributes largely to the
church rates; on the principle, as he is told, that though living
out of the parish he may frequent the church ; and if he have his
house in an extra-parochial place adjoining, where there is no
church ; a very probable presumption of the grant of a faculty
to annex a pew to such house, would, it is conceived, be esta-
blished.

In the case of Barrow v. Ken, 2 Keb, 843. The court
conceived a prescription for a seat by the inhabitant of another
pari:sh ill, unless he prescribed for a seat in an isle, or shewed
that he was used to repair ; but after verdict, these are intended
and are necessary evidence. In the short report of the judgment
in the case in Forrest's Keports, it would appear that though the
court forbore to decide the case till it was ascertained that the
seat was in an isle ; yet there was no expression of opinion in the
course ofthe argument, that the prescription would be bad, if ap-
plied to a seat in the nave, it not being clear during the argument
whether the seat was in the nave ; or in an isle. In Byerley v.
Wituhu, 5B.^C.2\; 1 D.S^ R. 561, Bay ley, J. says, " I am
'* of opinion that extra-parochials cannot claim a pew in the
** body of a church, otherwise than by prescription, if they
" could do so by prescription."

In the courts of common law, mere occupation or user, or as Evidence to
is it sometimes called possession, if long continued, has been >«pport
considered sufficient for a jury to presume a faculty. K^"^"

In the case o{ Rogers v. Brooks, 1 1\ R. 431, «., thirty-six
years exclusive possession ; a lock having been put upon the
door, which was kept locked, and the seat having been lined
and matted, was held sufficient evidence on which the jury
might presume a faculty. In Griffith v. Mathews, 6 T. R.
297, thirty years mere pr)y>session, (the seat had been built
and enclosed during that time, having been an open seat
before,) was left to the jury to consider whether, under all
the circumstances of the case, this pew so erected was ap-
purtenant to the plaintiff's messuage; the jury found for
the defendant, and the court refused a new trial. BuUer, J.,
said, "If it bad not appeared when and at '' whose expense
" this pew was built, or that it had not been a pew before
" 1758, possession from that time would have been sufficient
** evidence to have warranted the jury in presuming that a

192 Ctmrrif).

^'^^'' " faculty had been granted to the plaintiff's ancestor to build

Kridence " ^^^^ V^^ i" ^^^ chancel, but those circumstances were proved,

to support ** and they destroyed the presumption/'

pr««cnp. In Morgan v. Curtis, 3 Man. 4r J?y. 389, which was an action

on the case for a disturbance of the plaintiff by the defendant the
lay rector. It was proved that the pew was built in the chancel
in 1773, (the trial took place in 1828,) by the late Lord H.
Previously to its erection, the site on which it was built had
been occupied by two old open seats, and a box in which was
kept the communion plate, and an old stool outside the seats ;
it was proved that Collins, of whom Lord H. bought his house,
had sat on these seats, but that strangers had sat there also.
The conveyance from Lord H. to the plaintiff was not produced,
but Lord H. said, being called as a witness, he had not sold the
pew. The jury found for the defendant.

On an application for a new trial, Baylet/y J., said*, ** Pews
** generally go with the house, but mere occupation alone is not
" sufficient to force a jury to find the right. Lapse of time was
** a circumstance which they might consider, and which might
'' be fairly pressed upon them. But the plaintiff here has all
" his title deeds, and if upon searching them any mention of
" this right had been found, the jury might have formed their
** conclusion accordingly. It is no uncommon thing to introduce
'' the specification of a pew into title deeds, and it is done with
'• two objects, to have a sort of warranty from the vendor, and
'' to possess documentary evidence of the right. If that had
" been required in the present instance. Lord H. might perhaps
" have said, ' I will not put it into the conveyance, because it is not
'' mentioned in the older deeds.' The distinction between this
^' case BX\A Rogers v. Brookes, supra 191, is this, that there the
" plaintiff was put into possession by the clergyman and parish
'' officers when the church was rebuilt, and he locked the pew
" up, and the court do not say that forty years were sufficient,
** but they look upon the locking up as evidence of a pre-ex-
" isting right. The jury there came to a conclusion in favour of
" the right, and perhaps if the jury had come to the same con-
'* elusion in this case, we might have not interfered with their
*' finding. Perhaps if I had been on the jury, I should have
" come to the same conclusion that they did, I should not have
" presumed a faculty. There was no search to see whether a
" faculty could be traced, or whether there was any defect in
" the records. So, if there had been a grant from the lay rector
'' the presumption is, that the grant would have been forth-
'' coming. In the absence of such evidence I should not have
" presumed a faculty."

The ecclesiastical court seems less inclined to raise a pre-
sumption of right from mere user. In Walker v. Gunner c '-'

Cfturcft. 193

Drtary, tupra^ Lord Stawell says, '' Mere presumption is not Pews.
" Bufncient without some evidence on which a faculty may rea-

" sonably be presumed. The strongest evidence of that kind is support m^

" the building and repairing time out of mind, for mere repair- tcriptioii.

" "^ /<"" thirty or forty years wiU not exclude the ordinary.

" In this case the person was offered a particular space, and if

" he had built on it, that would have been sufficient to have

" superseded the authority of the ordinary. The possession

" must; be ancient and going beyond memory, and though on

" this subject, I do not mean the high legal memory, yet it

** must be larger than appears in this case. It is alleged that

" the house has been built eighty years ; but it is not said that

'* the seat was built and sustained by the owner of the house, the

" time of sixty years has been held not sufficient against the ordi-

" nary."

Mere user, seems hardly a sufficient foundation to sup-
port a prescriptive right, unless some resistance to the authority
of the churchwardens be shewn connected with it, so as to give
it the character of adverse user ; a regular allotment by or
tacit permission of the churchwardens to a party to use a parti-
cular seat, seems to constitute a sort of tenancy at will or
tenancy bv sufferance to be determined when they see fit.

Generally, however, the repairing the seat is considered as
the only decisive fact leading to the presumption of a prescrip-
tive right ; but then it must be substantial repairs, sucii as may
be considered as having been done in ease of the parish ; there-
fore, putting cushions and lining for the comfort merely of tliose
who frequent the pew cannot be considered repairs. SPhil.
331.

194

Building.

Commn-
sion.

Duration

of.

Object of.

CJurtj) Butltrittfl, ^e*

The acts for building and for promoting the building of chiirches»
form a distinct system ; it has been, therefore, considered that it
would be desirable to give an abstracted digest of the most important
points which they contain; to do this shortly, at the sameUme distinctly,
is a matter of considerable difficulty.

1 . Of the building, enlarging, endowing.

2. Of the divisions into separate parishes, district parishes, and

consolidated chapelries, &c.

3. Of the nomination to, and patronage of, the new and of the old

churches.

4. Of the stipends of the ministers.

5. Of the division of tithes, glebe, fees, dues, &c.
0. Of the sites of churches and chitichyards.

7* Of churchyards and cemeteries.

8. Of pews and pew rents.

9. Of table of fees.

10. Remission of duties, &c.

By 58 Geo. 8, c. 46, si. 8, 9 ; and 59 Geo. 8, c. 134, e. 3 ; the
crown was empowered to appoint commissioners to examine into
the state of the parishes in England and Wales, and to ascer-
tain the most effectual means of church accommodation.

The commissioners were made a body corporate by 59 Geo. S^
c. 134, s. 3 ; by the name of '* His Majesty s Commissioners for
Building New Churches,*^ such commission to continue in force
for ten years.

By 7 ^ d Geo. 4, c. 72, s. 1, the commission was continued for
another ten years, from the 20th July, 1828 ; and by 1 ^2 Fid.
c. 75, extended for ten years longer.

The 58 Geo. 3, c. 45, recitinff^ that population had greatly
increased, more particularly in the metropolis and its vicinity,
and that the churches and chapels there existing and in many
great and populous parishes, and extra-parochiai places, were
inadequate to the accommodation of the inhabitants, and that it
was necessary that additional churches and chapels should be
erected in such places, and that a certain number of free-sittings
should be made therein ; granted a sum of one million.
Subsequently an additional sum of five hundred thousand
pounds was, by the 5 Geo. 4, c. 103, appropriated to the ob-
jects and purposes contemplated in the recital of the 58 Geo. 3^
c. 45.

By the provisions of the 58 Geo. S, c. 45, and the 59 Geo. S,
e. 134, the buildings contemplated could only be done through

€fmtb ^niDiins, &c. 195

the agency of the commissioners, and their powers to advance BuUdiag.
any sums of money, were limited to the cases provided for in Commi*.
those acts. But the 5 Geo. 4, c, 103, and subsequently, the ««"«"•
I Sf 2 W. 4f, e. 38, gave powers to persons willing to build
churches, wholly or in part by subscription, to do so without the
concurrence of the commissioners ; if the consent of the bishop,
and where necessary, of the incumbent and patron also, were
procured.

By the 58 Geo. 3, c. 4S, s. 13, the commissioners were limited ° 45^*^' '
to cases of parishes where the population was four thousand,
and one-fourth only accommodated, or where one thousand per-
sons were resident four miles from any church or chapel ; but
the 59 Geo* 3, e. 134, s. 5, extended these provisions. .

By s. 14, 58 Geo. 3, c. 45, Where parishes are disposed to ^c?*ii2rt-
raise by rates or subscriptions, such proportions of the sums iDg to build
required to build churches or chapels, as shall be fixed, ^7 r^^*
or deemed by the commissioners to be a proper proportion.
They may grant the remaining sum necessary to build such
churches or chapels ; and advance and lend any part of the pro-
portion to be raised by rates, (a)

By #. 75. It is provided that before the consecration of any
church or chapel built wholly or in part by rates, one-fifth of
the whole of the sittings shall be set apart as " free seats ** for
the use of the poor.

By #. 8 1 . They may build or aid in building additional chapeU ^l^^
in any parish or extra-parochial place, not divided into dis- churches.
tinct parisbes, but only into ecclesiastical districts, to be served
by curates nominated by the incumbent. gg q^^ 3

By 59 Geo. 8, c. 134, s. 4. They have a discretionary power c. 134.
to make grants for defraying the whole charge of building Discretion-
churches or chapels, under the provisions of 58 Geo. 3, c. 45, ^ power,
or 59 Geo. 3, c. 134, in all cases in which they shall see fit to
do so.

(a) By 58 Geo. 3, c. 41, «. 60, it was provided, that no application
should be made to build or enlarge any church or chapel either wholly
or in part by rates ; unless the majority of inhabitants in vestry, and
four^fiiths in number and two-thhds in value shall consent thereto
in writing. With regard to the provisions of the subsequent act
5 Geo, 4, c. 103, M. 5, 6, post 196, there seems to be no such limitation ;
the 59 Geo. 3, c. 134, s. 24, alters the above provision of the
58 Geo, 3, c. 41, and enacts that no offer to build or enlarge any church
or chapel shall be acted upon, nor shall any new burial ground be pur-
chased ; if one-third part in value, to be ascertained by an average of the
poor late for three years, of proprietors of houses, land, freehold or
copyhold, held by leases for years, of which fifteen years are unexpired
or determinaible on life or lives, shall dissent therefrom.

196

€Wvtb Suaninff, &c.

Building.

59 Geo. 3,
c. 134.
Not limited
to popula-
tion.

Kcclesiaa-
tical cha-
pelries.

Rebuild-
ing.

6G.4,
c. 103.

6G. 4,
c. 103

By sub-
•cription,
or partly by
•ubaoription
and partly
by rate?.

Conientof

biabop

alone.

Fre«iMitB.

By s. 5. The commissioners may make grants or loans, or grants
andloans to divisions of parishes in need of further church accom-
modationj though the population of such division may not amount
to four thousand) and although, in the whole parish there maybe
accommodation for more than one-/ourth of the inhabitants.

By «. 6. They may, with the consent necessary by 58 Geo.S,
c, 45, 8, 1 6, in case of district parishes, unite and consolidate the
contiguous extremities of parishes and extra-parochial places,
into a separate ecclesiastical district for all ecclesiastical purposes,
and make grants or loans for or towards building a chapel or
chapels, for the use of the inhabitants of such district.

By «. 11. The churchwardens of any pari^ may, with
consent of vestry, ordinary, patron, incumbent, and lay impro-
priator, if there be one, pull down, and rebuild on the same or
some convenient site ; one-half of the additional sittings te be free
seats, and subject to the consents as in sect, S4; ante 195, n.

The demand for church accommodation, however, being far
beyond what the means of the commissioners could supply, the
5 G. 4, e. 103, gave an additional grant of £500,000 to the
commissioners, and at the same time additional facilities for the
building of churches and chapels by subscription ; without the
control, and consequently without the assistance of the com-
missioners.

The 5 Geo, 4, c. 103, by «. 5 & 6 provides that, whenever any
twelve or more substantial householders shall certify tit writing to
the bishop of the diocese that there is not accommodation for
more than one-fourth of the inhabitants of the parish, &c.for their
attendance at the service of the established church ; and that
they by themselves, or with others, are desirous of raising by
private subscription, or to subscribe one-half, the parishioners
raising the remainder by rates, or raising on the credit of the
rates, such sum as may be necessary for building or purchasing
a church or chapel, or any building to be used as a church or
chapel ; and to provide out of the pew rents a competent stipend
for the minister and clerk ; the expenses incident on divine ser-
vice ; and for the maintenance of the said church or chapel ; and
that the bishop shall be satisfied of these particulars, he may con-
sent to the building such church or chapel according to such
plan and upon such site as he may approve.

By 8, 10, it is provided, that every such application to the
bishop shall offer to set apart such a proportion otfree seats as
is required by the former acts ; in cases where money has been
advanced by the commissioners ; and also to offer to provide out
of the pew rents competent sums for a salary for a minister, for
expences incident on the service and the maintenance of die
chapel.

Sec. 1 1 provides for notices to jiatron and incumbent, and that

the bishop shall not signify his consent to any application within Building.
three months of the time when such notices were given. Vid. NoticTio"

pott I ^ ^ W, 4, C. 38. patron and

The 7*8 G. 4, c. 72 gave a power to any persons, with the incumbent.
consent ot the commissioners, to build and enaow a chapel and
to nominate the incumbent. This act was repealed by 1 ^ S
W. 4, c. S89 and vid. observations of Sir John^fcAoffon the
former act. 3 Hag. 522.

By I ^ 2 >r. 4, c. 88, s. 2, a further power is impliedly given 1 & 2 w. 4.
of butldmg and endowing a church or chapel, by givmg the vvf^houiM.
right of nominating the minister to such church or chapel, sisunce or
if built upon certain conditions, post, 202, which condi- cootrol of
tions must be strictly and carefully complied with. Williams ^°™°**'^

sionart.

V. Brown, I Curt. 5S; and vid. Bliss v. U aods, 3 Hag.
466. The provisions in this section have been further extended
and amended by 1 ^ 2 Vici. c. 107, s. \.

It is provided, however, by 1 ^ 2 >F. 4, c. 38, s. 2, that no
church built for the accommodation of three hundred persons
living upwards of two miles from the parish church or chapel
shall be built within two miles of such church or chapel.

By this act a preference to enlarging rather than building is Preference
given under certain circumstances specified. By s. 8, where f® «nlarg-
tbere is a population of one thousand within two miles of an *°^'
exbting church, and any person or persons will give bond or
other sufficient security to the bishop or commissioners within
two years to enlarge the existing church, so that more than
one-third of the parishioners may be accommodated ; such per-
sons shall be preferred to persons proposing to build and endow
any new chapel; provided that plans for the enlargement be sent
fo the bishop or commissioners before they are commenced and
a certificate of their due execution on the completion.

So also by «. 7 a preference is given to the patron, under the Preference
same limitations as in the above section, if he chooses to build and ^^ patron.
endow a church or chapel in the parish of which he is patron ;
instead of the person or persons applying to do so. Post 205. Division of

The next object of these acts appears to have been, the divi- parishes ;
sion of the larger parishes, and the union and consolidation of ^-^^i^^'
isolated portions of parishes, distant extremities of parishes, and ir^^u.

extra-parochial places ; and to throw around every new church

or chapel, and in some cases, existing chapels of ease, a distinct
and independent ecclesiastical district ; which object has been
further followed up by the provisions of the late act, 1 Sf2 Hci.
c. 106, which is an act to abridge holding benefices in plurality
and to provide for the resiilence of the clergy, s. 15 to *. 27
inclusive.

By 58 Gr, 3, c. 45, s. 16, varied and extended by 1 ^ 2 Fid,
c. 107, s. 12, the commissioners, having obtained the consent of

198

Cburtft iSutUims, &c.

Dirifiioii of
parishes ;
eccle-
siasticftl
districts.

68 G. 3.
c. 45.
Division of
ptrishes.

Consolida-
tion of parts
of parishes.

District
parishes.

Boundaries.

6G. 4,
c 103.
District
church with
consent of
majority of
subscribers.

1&2VV.4,
0.38.
District to
be assigned.

the bishop of the diocese and of the patron under their respect-
ive hands and seals» may represent to his majesty in council that
it is expedient to divide any parish into two or more distinct
parishes for all ecclesiastical purposes ; (or divide off parts of
parishes, or make any extra-parochial place a distinct parish,
1^2 VicU c. 107, s. J 2,) and state in such representation the
respective proportions of glebe, tithes, ecclesiastical fees and
dues to remain and accrue to each of such divisions ; and, if his
majesty shall in council order such division to be made, such
order to be valid in law to effect such division ; provided that no
such division shall completely take effect till after the next avoid-
ance of the benefice.

Sec. 19. Every such separate parish to be deemed a rectory,
vicarage, donative or perpetual curacy, according to the nature
of the church of the parish divided.

Sec, 2 1 • The commissioners may, with consent of bishop alone,
represent that it is expedient to divide populous parishes or
extra-parochial places into ecclesiastical districts; though they
may not deem it expedient to divide them into complete sepa-
rate parishes ; and if by order in council such division be di-
rected, such division shall be valid in law.

Sec. 22. Descriptions of the boundaries of sudi divided
parishes and ecclesiastical districts to be enrolled in the court of
chancery and registered in the registry of the diocese.

Sec. 23. Boundaries may be altered by order in council within
five years of their enrolment.

Sec. 24f. The churches and chapels respectively assigned to
such districts shall be the parish churches of such districts for all
parochial purposes.

Where churches or chapels have been built under the provi-
sions of the 5 G. 4, c. 103, it is provided by s. 16 that the com-
missioners may, with the consent of the majority of the sub-
scribers entitled to elect trustees, (that is, subscribers of sums
of not less than £50 each) make any such church or chapel
a district church or chapel under the provisions of the previous
acts and that act; and by «. 17 at the expiration of forty years
such churches • or chapels shall become district churches or
chapelsi without such consent, if the king in council shall have
made a division of the parish or extra-parochial place as
above.

The provisions of the I Sf2 W.4f, c. 38, seen to contemplate,
in all cases, to assign districts, unless special circumstances
appear to the contrary.

By 9. 10, the commissioners with consent of the bishop may
assign districts in all such cases as come before them.

Or the bishop alone in all such cases as are previously men-
tioned in that act.

The bishop with the consent of the patron and incumbent in ^>r"*o° <'*
ail other cases in which additional churches or chapels have been ^1^.^'
buflty shall, with all convenient speed, assign a particular district uasucai dia-
to every such church or chapel, except where from special cir- ^^^^
eamstances they shall not deem it advisable to assign districts* i&2W 4

If such district be created, it is to be under the immediate c. 38.
care of the minister licensed to serve the church or chapel, so
far only as regards the visitation of the sick and other pastoral
purposes, but to no other purposes whatever.

l^ovided that the commissioners, with consent of the bishop
in cases before them, or the bishop alone in other cases, may
determine whether baptisms, &c. are to be solemnised there ;
the order in writing directing what oflSces are to be performed
there, is to be registered.

See. 11. Where a district extends into more parishes than
one, notices are to be sent to all patrons and incumbents.

See. IfL District assigned to be a perpetual curacy, and be
considered in law a benefice presentadve ; and the incumbent and
all persons presenting or appointing to be 6ula|ect to ail ecclesias-
tical laws xnd jurisdictions.

By 1^2 Vict. e. 107, s. 10, where a church or chapel has i & 2 Vict.
been or shall be built by subscription, and endowed ; and subse- ^ \^^'
quently augmented by queen Anne's bounty ; and where the subscriptioQ
patronage shall have been acquired under any of the acts for and aug-
regulating the distribution of such bounty; the commissioners, ^®°^^™^y
with consent of bishop, patron, and incumbent, may make the district
same a distinct parish ; and the patronage of the same shall not chapel.
be affected diereby.

By 1 ^ 2 VicL c. 107, 9. 16, there is a provision for the sub- SnbttitutioD
stitation of any district church or chapel for the parish church. ^[^^^0,
The commissioners may, by an instrument under their common chapel for
seal, with the consent in writing of the bishop, patron, and also former pt-
of the vestry or persons possessing the power of vestry, substi- ?"**^**'""^^*
tttte a district church or chapel for die parish church ; with a
transfer of all rights, emoluments, and enaowments ; such instru-
ment of substitution and endowment to be enrolled in chancery ;
the former parish chnrch becoming a district church or chapel ;
provided that no such substitution shall take effect till after
the first avoidance, except by consent in writing of the actual
incumbent, (a)

■ -.1. ■■.■■-.■■■■» ■■ — 111 I ,

(a) This section speaks of persons possesnng the power of vestry. It
would be difficult to say, without reference to former acts, what the
powers of a vestry, either by common law or by statute, could be for
such a purpose ; but still more difllcult to say who those persons are
who possess the powers of vestry for such a purpose.

200

€ifmtb iSuiQittiff, &c.

Division of
parishes ;
eccle-
siastical
istricts.

]&2W.4,
c. 38.
Chtpel of
ease made
parish
church.

Nature of
security for
eudow-
ment.

Nomina-
tion
patronag^e.

58 G. 3,
c. 46.
Curates Do-
minated by
incumbent.

After, in.
cumbency
to belong to
patron.

If built by
rates to
incumbent.

69 G. 3.
c. 134.
Consoli-
dated
chapelry.

Patronage
in the seve-
ral patrons.

By \ Sf 2 W.^, c. 88, s. 23, (extended by 1 # 2 yiei. c. 107,
s. 7,) it 18 provided that the bishop may, with the oonsent of the
patron and incumbent, (the consents of the ktter are not required
to be in writing) by writing under his hand and seal declare that a
chapel of ease, at a considerable distance from the pariah
churchy having chapelries, townships, or districts belonging to
or supposed to belong thereto, ii endowed with a provision
secured upon land, money in the funds, tithes, or other heredi-
taments as shall in the opinion of the bishop ensure a competent
stipend to the minister, shall from thenceforth be a separate and
distinct parish for all spiritual purposes. By 1 ^ S Viet. c. 107,
s. 7, these provisions are extended to such churches or chapels
as were consecrated either before or after the passing such act.
Also by «• 4 of such last act the commissioners may aceept
by way of endowment such sums as they consider satisfactory,
whether the same be secured on land, money charged on land,
or vested in the funds, or on houses tenements, or other beredL-
taments ; but this extension of the discretion of the commis-
sioners with regard to the nature of the security does not appear
to apply to the case of endowing a chapel of ease actually built,
under 1^2 Vict. c. 107; but to be limited to the endowments of
churches and chapels to which they are empowered to declare
the right of nomination.

The next general head is the mode in which the nomination
or patronage is provided for in the above cases*

With regard to churches and chapels baik or purchased
under the powers of the 58 6. 3, c. 45 ; «. 18 of that act
enacts that, during the incumbency of the existing incumbent,
every new church built or purchased, and intended to be
the parish church of a district parish shall remain a chapel
of ease, and shall be served by a curate nominated by such
incumbent and be licensed by the bishop.

At the end of the incumbency, it is provided by ss. 67 ^ 68
that the nomination and appointment of the spiritual person to
serve all such district churches and chapels shall belong to the
patron of the church; provided that in any case in which any
chapel shall be built wholly or in part by rates the first and sub^-
sequent nominations shall be in the incumbent.

Where parts of parishes have been united into a consolidated
chapelry, and a chapel or chapels built under the provisions of
the 59 G. 3, c. 134, s. 6, it is provided that such chapelry shall
be under the superintendence of a spiritual person appointed to
serve in any such chapel; and the right of presentation and ap-
pointment of such spiritual person shall belong to such persons,
and be exercised in such manner, as may be agreed on by the
several patrons of the churches or chapels of such parishes or

€tnirtb 2uiRiin{r» &c. 201

extcft-parochial places reflpecttvely, with the approbation of the Nomina-

0Olinii88ioiier& j^tronage.

By 59 G. 3, c. 134, s. 13, it is provided, that the right of ll L.

pieflentation of the incumbentSy or of spiritual persons to senre ^ G. 3,
the dnirches of parishes created by tne complete division of c^^i^piete
parishes under 68 6. 3, c. 45, shall belong to the patron of the divbion.
oriffiiial parish ; and the exercise of such right of presentation P^troa of
shul coDittience on the death or other avoidance of the existing ^^^'^"^
ineiiBbent, except where the division shall have been made, or mioatc.
the cmmpjaaiopers shall have declared their intentions to divide
during the avoidance, and then their rigbtis to begin from conse-
cration of the church*

By 3 O. 4, c. 72, s, 16, where the commissioners shall build, 3 G. 4,
or aid in building any new church or chapel in any parish or c. 72.
{dace in which the patronage shall not belong to any corpora- ^^^ ^f
tion, trustees of a public or charitable institution, or to any diocate.
private person; the commissioners, by instrument under seal, may
dedare the patronage to be in the bishop of the diocese, or u
in any peculiar, of the diocese in which the peculiar is locally
situate.

The effect of these provisions seems to be this, Distinct

Where a parish is divided into distinct and separate parishes^ parishes.
the new church is to be a chapel of ease, to be served by a
curate nominated by the incumbent during his incumbency.
When that ceases, the incumbent of each church is to be nomi-
nated by the patron of the original parish. 58 G. 3, c. 45, ^. 18 ;
59 G. 3, e. 134, 9. 13.

So where diere is no complete separation and only district Distnct
parishea are created, the nominations are to be made by the p«riihei.
patron of the original parish. 58 G. 3, e. 134, #. 67.

In eoDsolidated chapelries by the patrons of the several pa-
out of which the parts consolidated are taken. 59 G. 3,
c. 134, «. 6; auto goo

Where the church or chapel is built wholly or in part out of
rates, the nomination belongs to incumbent of the parish. 59 G.3,
c. 134, s. 68.

As afurther inducement to building churches or chapels by sub- 5 q. 4^
acription, under the provisions of 5 Geo. 4, c. 1 03, m* 6, 7 ^ 8, c 103.
amie 196; those sections provide for the election of trustees by y^^^^^f^
aubacribers of sums of not less than fifty pounds each i s.\2^ t^o first
enacts that the trustees shall nominate for the ^100 first turns, or for turns, or
any uumber of turns which may occur within forty years : and if ^^^y ^^"*
the trustees should die, or there should be no election of trus-
tees, then the nomination to be by the incumbent of the parish ;
and after the two first terras or forty years, the right of nomi-
nation ia to be absolute in the incumbent; but in case any

202

€hiuctii JBttffiimff* &c.

Nonaiaa^

tioo

pttrooag«.

Built by
rates.

If made
district
church «

1 & 2 Vict.
c. 107. s.
17.

SnbstitutioD
of chapel.

Patron of
parish
church to
preseDt.

1&2W.4.
c. 38, 8. 2.

Person
building
and endow-
inp; to no-
minate to.

Endow-
ments.

Repaint.

Free sittings

Bishop to

declare

right.

such chapel should be made a district church, then the ootni*
nation to be in patron of the parish church.

By section 13, 5 Geo. 4, e. 103, in any case where any such
church or chapel shall be built, or purchased in part by raies
raised in the parish, then the first and subsequent nominations
shall be in the incumbent of the parish ; except as before, where
made a district church, and then to vest in the patron of the
parish church.

By this act the hasty provisions of the 7 4r 8 Geo. 4 were re*
pealed. 3 Hag. 502.

By I & 2 yict c. 107, #. 16, a church or chapel in a pariah
may be substituted for the parish church, and the pariah chturcfa
become a district church or a chapel of ease. And by #. 17« the
incumbent of such parish next succeeding after such substitu-
tion and transfer, shall be rector, vicar, or perpetual curate, as
the case may be; and the person or persons who, for the
time being would have had the right of presenting to the
former parish church, in case such transfer had not been made ;
shall tlienceforth, in lieu thereof, when any vacancy oocura,
have the right of presenting to the church so made the parish
church, as they would have had in respect of the old parish
church.

By 1 ^ 2 ^. 4, c. 38, s. 2, in any parish, or extra-parochial place
in which there shall be a population of two thousand persona ;
and where the existing churches and chapels do not afford accom-
modation for more than one-third ; or where three hundred per-
sons live upwards of two miles from any existing church or char-
pel, and within one mile of the site of any church or chapel pro-
posed to be erected. Any person or persons declaring his. or their
intention of building a church or chapel, or purchasing a building
fit for the same ; and of providing £ 1 ,000 by way of endawmeni for
such church or chapel, to be secured on lands or money in the
funds, in addition to the pew-rents and profits arising from such
church or chapel, (by 1 4r S Fid. e. 107, s. S, anie £00, £40
per annum secured on houses, lands, tithes, rent-charges, &e. to
be equivalent to £1,000.), and of providing a fund for repairs,
0Jsr., one sum to be secured as above, equal in amount to five
per cent on the original cost of erecting and fitting up, &&,
and also a further sum of £5 per cent, on such original eoal,
to be secured on the pew-rents, shall declare his intention to
appropriate one-third at least of the sittings to be for ever/ree
sittings, (or as amended by I & 2 Fid. e.. 107, s. I, let at
such low rents as the bishop shall from time to time declare.)
The bishop may, by writing under hand and seal, declare that
the right of nominating to such church or chapel, when all these
conditions are performed, shall be in such person or persons

eJjvatO) BttiOims^ &c. 203

80 bnilding and endowing, his heirs or assigns, or in such trus- N<K&n*-
tees, being members of the estabhshed church, as he shall ap- ^i^q^^.

point. Provisions in cases of failure of trustees ; and that at no

time the patronage shall vest in more than five persons, except in * ^^ ^' ^'
cases of coparcenary and other cases happening by operation ^'
of law.

By «. 8, previous to the bishop declaring the right of nomina-
tion, he is to have a certificate of an architect, attested by two
householders, that the existing churches or chapels do not afford
accommodation for one-third of the inhabitants ; and by three
householders, that there are three hundred persons living two
miles and more from the parish church, and less than one mile
from the purposed site.

As to the strictness with which all these precedent conditions
are required to be performed and proved, vid. Brown v.
Williams, I Curt. 5S.

By s. 5, general power is given to the commissioners, penon
with consent of the bishop, to declare and vest the right of building
nomination of a church or chapel in the person or persons ^^ endow-
building and endowing the same, if built under the provi- '°^'
sions contained in the subsequent sections.

By #. 5, in all cases not therein before provided forj Endow.
where a person shall have already endowed, with the sane- ment.
tioD of the commissioners, or shall declare his intention of
endowing to their satisfaction, any church or chapel built or
intended to be built, [or by 1 ^ 2 Vict, c 107, 9. 5, any build-
ing purchased and fit to be consecrated as a church or chapel,]
with a permanent provision in land, or money charged on land,
or in the funds, exclusive of and in addition to the pew rents.
(Or hy ] Sf 2 Vict, c. 107, s. 4, such sum as they may consi-
der satisfactory, whether the same be secured on land or money,
chafed on land or in the funds, or on houses, tenements, &c.»
or any or either of such securities wholly or jointly.) Ante SOO.

And also a sufficient fund for repairs. lUpain.

The commissioners, with consent of the bishop of the diocese,
{such consent not being required to be under hand and seal^ or
even in writing)^ may declare the right of nomination to be for
ever thereafter in the person building and endowing, his heirs
and assigns ; or in such persons, ecclesiastical person, or body
corporate, as he shall appuint ; or.

If bailt by subscription, then in such persons, their heirs, and Built by
assigns, or in such ecclesiastical person or body corporate, and JJJ^'^^"^
his and their successors, as the major part of such subscribers
shall at time of the application nominate ; provided the patronage
shall at no time vest in more than five persons, except where
the commissioners shall have already sanctioned a larger num-

204

Cftttiti) liniQiingf, &c.

NoiDma«

tion

jgUronage^

1 &3W.
4, c. 38.
t. 5 & 6.

PCftOD

building
■od endow,
ing.

Statoroent
by.

Objection
by patron.

ber of trustees^ or where such number shall be occasioned by
operation of law. (a)

Before^ however, the commissioners can declare the right in
any casei certain conditions must be entered into and complied
with ; which are therefore in the nature of conditions precedent
to their declaring such right of nomination.

By s, 69 it is required in the first instance that, application
in writing shall be made to the commissioners, setting ibrth
three points:

1. The population of the parish in which the new church or
chapel is proposed to be.

2. The accommodation in the churches or chapels built, or
intended to be built

8. The population of the district for which such church or
chapel is intended to provide.

Copies of which application are to be sent to the patron and
incumbent respectively, in order to afford them an opportu-
nity of laying before the commissioners any statement relative
thereto.

Nor shall the commissioners declare, or signify their in-
tention of declaring such right of nomination until after three
calendar months from sending copies of such declaration to the
patron or incumbent ; unless before the passing of the act they
have already expressed their satisfaction with the endowments,
and a church or chapel has been built, or be then building in
pursuance thereof.

In case the patron of the parish church chooses to object,
an opportunity is given him as above ; if he chooses to become
the builder and endower, a preference is given him over any
one else making the application, by a subsequent section, 7,
It would seem at first sight as if that section, giving such pre-
ference, applied only to cases arising upon the second section
of the above act, viz,, those where the bishop alone declares the
right of patronage ; but the words must, it is presumed, in-
clude all cases, where a party proposes to obtain the fiiture
patronage by building and endowing a new church or chapel.

In order therefore, to give the patron an opportunity to come
forward and claim the preference,

It is provided by «. 7 ; that in addition to the above applica-
tion in writing, and in which the party intending to build is re-
quired by section 6, to specify the particulars above-mentioned,

(a) None of the trustees in this section are required to be memben
of the Churcli of England, as in sect. 2, supra.

€ffnctt) SuiQjing^ &c. 205

copies of which application are directed to be sent by the com- Nomioa-
missioners to the patron. paronaee

That the party himself must cause to be served on the pa- ^ ^^ 2 w!
tron and incumbent another notice in writing, which is required, 4,c.38.
not only to specify the three matters required to be stated in j^*?S"
the written application to the commissioners, but also ^^ J^w.

4. The number of persons intended to be accommodated in iog.

the proposed church or chapel. P»«ier«nce

5. The amount of money intended to be laid out in building, to patron,
or purchasing thereof,

if the patron, within two months after such notice, bind
himself in sufficient securities to the commissioners, or bishop
respectively, within two years thereafter, to build or pur*
chase, and completely finish and endow an additional church
or chapel to the satisfaction of the bishop ; and that he will
comply with all the conditions above specified : in such case
the patron shall be preferred to any other person proposing to
build.

By #. 19, the common seal of the commissioners shall be instrament
affixed to every nomination which shall come before them, ofnomiDa-
which b to be registered in the registry of diocese ; and s. 19 ^^'
declares the validity of all former deeds.

No declaration of the right to nominate shall take effect till
the church or chapel has been consecrated.

By I & 2 Vict. c. 107, «• 11, after an instrument of nomina- 1 & 2 Vict.
tion has been executed by the commissioners or bishop, as the <^- 1^7.
case may require, and registered, it shall not be necessary,
after three years from execution and registry, to prove any
facts contained in it ; but it shall be taken as conclusive.

By I ^ 2 W, 4f, c. 38, s. 2S, as shown above, ante 200, i &2W.4,
if a person be willing to endow an existing chapel of ease, <^* ^S-
it may, with consent of the bishop, patron, and incumbent,
be separated from the mother church, and made a dis-
tinct parish. And it is provided by section 34, that in such
a case the patron, with the consent of the incumbent, may
agree with the bishop as to the future right of nomina-
tion ; such agreement being in writing, and signed and sealed
by all three. And if the incumbent refuse his consent to the
separation and agreement, then the declaration of separation and
agreement for nomination are not to take effect till after the next
avoidance. The declaration of separation and deed of agree-
ment to be registered in the registry of the diocese.

With regara to givine up rights of patronage by corporations,
vid. 59 Geo. 8, c. 134, s. 15; 3 Geo. 4, e. 72; s. 15; 1^2
Het. c. 107, 9. 15.

By 58 Geo. 3, c. 45, s. 63, the commissioners are empowered Stipendi.
to fix the amount of the rents of the pews to be let, and the

206 thvirtb SttOtitng, &c.

Stipenck. produce of such rents is to form a fund, out of which proTi*
^^^3 sion shall be made for the spiritual person appointed to serve
c. 45. ' the church or chapel, and a clerk.

Assigned And by s, 64, the commissioners are empowered to asstan

out of pew. a proper stipend, with the consent of the bishop, out of Itbe
rents. pew-rents, regard being had to the extent and population of

the district; and the procuring a residence in such district, and
to all other circumstances. If the bishop and commissioners
do not agree as to the amount, it is to be settled by the
archbishop.

By ss. 65 & 66, in case of the bishop requiring a third
service, the stipend of the curate performing it is to be pro-
Tided by pew-rents, or subscription ; but in no case, except
when raised entirely by subscription, to exceed eighty pounds
per annum.
Assignment By s. 7^, every deed, &c. for securing a provision to the
roMe/^c ^P^i'itual pcrson serving any church or chapel under this act,
shall be enrolled in chancery, and registered in the registry of
the diocese*

No express direction had been given by the former sections
as to the mode of securing the minister's salary, except infe-
rentially from the use of the word ** assign," in the 64th
section.
69 Geo. 3, The 59 Geo. 3, c. 1S4, s. 6, which provides for the consoli-
^ ^^^' datioD into a district chapelry of contiguous parts and extremi-
datedTcha- ' ^^ ^^ parishes; directs that the pew rents in such chapel shall
pelriep. be fixed, and salaries to the minister and clerk assigned there-
upon in such manner as is directed by 58 Geo. 3, e. 45* And
^^. ^^ all fees and offerings within such chapelry, according to such table
offenngi. ^f f^^^ ^^ ^^ Commissioners shall make with the approbation

of the bishop, may be demanded and sued for " by the spiritual

'' person having cure of souls therein, and by the clerk and

" sexton of such chapelries, in like manner as if every such

** chapelry were a separate and distinct parish." By 1 & 2

Vici. e. 107, s. 14, the act of S & 3 FT. 4, c. 45, extending the

powers of S9 Car. 2, enabling rectors and vicars to annex a por^

tion of tithes to chapels parochial, is extended to consolidated

chapelries under this act.

^**ts°to be ^^^' ^^' Every assignment of stipend to any minister or

registered, clerk ufider the provision of the said recited act, 58 Geo. 3, c. 45,

and this act, shall be registered in the registry of the diocese ;

but the former act required enrolment as well as registering.

iQff.f does this, in the case of assignments under 59 G. 3, c. 134,

dispense with the enrolment required by s. 12 of the former act ?]

^ .^ By s, 26. A general power is given to the commissioners

sioners mty In the case of any church or chapel, 6t«t/l, acquired, or appro-

assign pew. printed under, either the provisions of the 58 Geo. 3, e. 45, or

€fmvtb 2mlding» &c. 207

under the S9 Geo. 3, c. 134| to direct that the pew-rents sliall be Stipends.
assigned to the parish or district, and the churchwardens of such

parish, &c.» shall thereupon be required to pay the stipend , Hsh. °
which may, from time to time, be assigned under the provisions 590.3.
of that act, (the 59 Geo. 3, c. 134,) to the minister or clerk, c 134.'
Provided always, that the parish shall not in any such case be
answerable to such minister or clerk for any greater sum iti each
year than the amount of the rent of the pews, which shall have
been actually let during the preceding year in any such church
or chapel.

It is feared that a difficulty may arise from the mode of Difficulty
framing the above section* The commissioners may assign inioaB-
the pew-rents of any church built, &Cm under the provisions ^|f^°§^
of 58 Geo, 3, c, 45, but having made such assignment of pew-
rents, they are directed to make an assignment of a stipend, under
the provisions of the 59 Geo* 3^ c. 134 ; but there appears no
express power of assigning a stipend under such act, except the
implied power in sec, 6, supra 806, but that applies specifically
to the mmisters of chapels of consolidated chapelries.

With regard to churches and chapels built by subscription, 5 Geo. 4,
under the provisions of the 5 Geo, 4, e, 103, it is required by s, 5, c. loa.
that the subscribers certify to the bishop in their original appli- Boilt by
cation that they are willing to providci out of the pew-rents, a 'y^'<^"P'
competent stipend for the minister and clerk ; and it is provided,
by «• 15, amongst other things that the trustees may sell the vaults
for burial ; and on paying such dues as he is entitled to, to the
incumbent $ the parish may lay out the remainder in the public
funds, and apply the dividends to the minister's stipend.

There are no similar provisions in cases of churches built and i &3 W.4,
endowed by subscription, by consent of the bishop I ^ 2 W, 4f, ^ 7; '
c* 38, s, 2, and under the authority of the commissioners by eodowlMl.
ss» 5, 6 ; the endowment seems to be the only security in either
case.

In cases of substitution for the parish church, hy I Sf 2 Viot, 1 h 2 Vict
c. 107, ss, 16, 17, it is enacted by s, 18, that the commissioners ^' j^.»'-^®'
may make such provision for the minister and clerk of the re* ^j^^ for^M-
speetive churches as to them may seem expedient. ridi church.

By 58 Geo, 3, c. 45, s, 16, when a parish is about to be Tithes,
divided under that section, into two or more distinct parishes sj^ ^<^
with the consent of the bishop and the patron ; the commis- "***

sioDefS are to state in their representation to the king in council, pi visions
" the relative and respective proportions of glebe, tithes, |.°^|2^^*
" nioduaes> or other endowments, and the estimated amount of HsbM/*
" the value or produce of fees, oblations, oiferincs, or other ec-
"clesiastical duea or profits," accruing within each such proper^
ticms, and the king in council may, by order, render such divi«
sion, valid in law, and the commissioners may apportion the per-

208

Cburcf) Suittiins^ &c.

Tithes,
glebe, fees
and dues.

Existing in-
canibent.

How reco-
venble.

District
pirithes.

ConpenM-
tion tor loM
of ofierings.

Consoli-
dated cha-
S tries by
Geo. 3,
c. 134.

1&2W.4,
c. 38.

inanent charges in respect thereof or affecting the same, by
59 Geo. 8, c. 134, *. 9.

By 59 Geo. 3, c. 134, s. 8, such divisions are not to be go-
Yemed by local situation ; nor to take place till death or other
avoidance of the existing incumbent ; when so divided, such
tithes, &c. may be recovered by the incumbents of the churches
of each of such divisions, as they were recoverable by the incum-
bent of the original parish.

By 59 Geo. 3, c. 134, s. 18, all apportionments as above, and
of all permanent charges are to be registered in the registry of
the diocese.

Sec. SI, contemplates cases where it may not be expedient to
divide into complete, distinct, and separate parishes ; but only
into ** ecclesiastical districts," and #• 24, enacts, that such ec-
clesiastical dbtricts shall be called '' district parishes ;** and
s. 30, enacts, that such division into ** district parishes only,''
shall not in any manner affect the tithes, glebe, endowmentSy&c.
which shall continue to belong to the incumbent of the original
parish church ; but still as such incumbent may incur loss of
voluntary fees, offerings, &c., the commissioners may by s. 32,
make him compensation, by inquiry into his receipts, for the
three years preceding.

By 3 Geo. 4, c. 72, s. IS, the commissioners, with consent of
the bishop, may direct all or any proportion of fees, in the case
of district parishes, to continue or remain with the incumbent of
the original parish; but such order may be annulled within five
years ; both the original order and any order of alteration to be
registered in the registry of the diocese.

The 59 Geo. 3, e. 134, s, 6, which provides for the conso-
lidation of contiguous parts of parishes into '' consolidated
chapelries,*' also provides that the fees and offerings, according
to a table of fees made by the commissioners with the appro-
bation of the bishop, are to be taken by the spiritual person
having cure of souls therein, and compensation is directed as
above to the incumbents of contiguous parishes or extra-paro-
chial places.

Where a church or chapel has been built under the prorisions
of the 1 & S W. 4, c. 38, and a district assigned to it under
9. 10, there is a power by s. 1 4, for the commissioners or
bishop respectively, to determine whether baptisms, christenings,
or burials, shall be performed in them, but it is provided that ail
fees, &c. in respect thereof, shall go to the incumbent and clerk
of the parish, except such portion of such fees, &c. as the com-
missioners, with the consent of the bishop, patron, and incum-
bent shall assign over under their common seal; such assignment
to be registered in the registry of the diocese.

Cfturrft BuiKimff, &c. 209

By 58 Geo, 3, c. 4-5, «. 33, the comtiiissiotiers are empowered Si»4!f.
to accept from persons, willing to give the same, any buildings commi*.~
fit to be converted into churches or chapels. sionemmty

Any lands or tenements, proper for sites for building churches, accept sites
&c., not exceeding in quantity in any one place what ^°^^^°"««««
niay be sufficient for building a church or chapel, and ^q'q 3 ^^
providing a churchyard with proper access. 45. ' '

And also a house and garden with ten acres of land fur
house of residence, (now limited to five acres, 1^2 F^ict.
c. 1S7, s. 9.)
When such site is conveyed, and the church built thereon, it
shall become thereafter devoted to ecclesiastical purposes
only, in order t > be consecrated. Upon consecration of the
church, the house and land shall be the hou^e of residence
and glebe ; and vest in the incumbent fur the time being as
such, and cideS Geo, 4, c, 72, s, 1.
By 8. 34, The commissioners of woods and forests, with the Who nay
consent of the first lord and other lords of the treasury^ or any 6^*"' *»*<*•
three of them

His Majesty by grant signed by the chancellor of the

Duchy of Lancaster.
The duke of Cornwall by grant signed by the chancellor of
the Duchy of Cornwall, (extended on accession of her
Majesty by 1 ^ 2 Vict. c. 107, s, 8.)
Any body politic, collegiate, and corporation aggregate or

sole.
May sell any such building site, m ith or without cemeteries ;
or any such house or garden for residence.
Sec. 35. Bodies politic, collegiate, corporations aggregate or
sole, tenants for life, in tail, husbands, guardians, trustees,
committees, executors and administrators, may grant land
for sites, &c., (limited to five acres of land for a house of resi-
dence by 1 * 2 Vict. c. 107, s. 9.)

Sec. tS8. Lords of manors may convey parts of commons and
wastes; compensation to commoners to be paid to the church-
wardens of parishes to be applied as directed by the vestry ; and
vid. S Geo. 4, c. 72, s. 1, extending these powers to grant sites
to the officers of the ordnance and barrack departments, and to
hospitals, schools, and other public institutions.

Sees. 39 to 51 inclusive, provide for compulsory purchases Compul-
by commissioners. These compulsory powers may, by sec. 52, 'P'^ P'°^*"
be brought into operation, to enable a parish or extra-parochial p /.
place, to build or enlarge a church or chapel without the assist- luMing
ance of the commissioners, when, by reason of the inability of without as-
the persons interested in the ground required for a site, the parish *•***"»<:« of
cannot obtain a good title without the assistance of the compulsory tioaen mty

p act, &c.

210

Cburri) ButUimff, &c.

Sit6s.

58 G. 3, c.

45.

To be fur-
nished by
parishes,

If they do
not the
coiximis-
siftners
may.

May ad-
vance
money for
sites.

Rates lo be
charged
with expen-
se's and ad-
vances.

5G. 4,r.
103, fiite,
&c. in
whom to
vest.

1&2W.4,
c. 38, pro-
visions for
titles of
sites and for
ejectment.

Lands not
wanted may
be sold.

Unconse-
crated lands
10 vc«t in
the crown.

powers of sale ; the same powers are given with regard to pur-
chase of cemeteries by 3 Geo, 4, c, 72, ss. 8, 29, 32,

By sec* 35. Tlie commissioners, having fixed upon a parish or
extra-parochial place as being one in which it is necessary to
have a church built, may give notice to the churchwardens of
their intention to build, and of the ground necessary for the site
thereof, and for making a proper access thereto, and may re-
quire the parish or extra-parochial place to furnbh such site, and
the churchwardens are to summon a vestry, and take such mea-
sures as shall be necessary for the purpose, and to treat for a site
and approach ; but not to conclude any bargain without the ap-
probation of the commissioners ; and by s. 55, if the parish does
not provide a site, the commissioners may purchase, and charge
the expense of such purchase upon the rates of the parish.

Sec, 5i. Commissioners may advance money for purchase of
sites, and assign periods for payment by instalments within ten
years ; extended by the more general powers of the 59 Geo. 3,
c. 134, s. 22, by which commissioners are enabled to purchase
sites either with or without cemeteries, without requiring or de-
manding repayment or security for the repayment of the money
so granted.

Sec. 56. All sums of money expended or advanced to pur-
chase sites are to be charged on the rates of the parish, and tiie
churchwardens arc to make such rates as may be necessary to
repay the expenses and advances within the periods specified by
the commissioners.

tty 5 Geo. 4, c. 103, s. 14, any church or chapel built under
that act, and the ground on which it is built, shall vest in
such persons and their successors for ever, as are named in the
deed of consecration.

By sec. I Sf2 W. 4, c. 38, s. 17, it is provided, that after the
expiration of five years, from the transfer or conveyance of any
messuages, lands, &c., as a site for any church or chapel, or any
church or chapelyard or cemetery under the provisions of tluit
acit they shall be and remain absolutely vested in the persons
to whom they are conveyed; provided that if recovered in
ejectment, they shall within two months after any judgment in
ejectment, tender the costs, and such sum of money as the jury
shall find to have been their value. And hy s. 18, a jury, who
shall try any such ejectment, or under a writ of inquiry, if there
has been a judgment by default, are to ascertain such value,
which is to be indorsed on the postea.

By 58 Geo. 3, c. 4*5, s. 51, lands purchased and not wanted
may be resold by the commissioners.

By 59 Geo. 3, c. 134, s, 34, If any lands, &c., whether ac-
quired by the commissioners by gift or otherwise, remain

€fmtt> SutTtitng, &c. 211

unconsecffttetl, at the end of ten years ; they shall vest in the Church-
crown and be applied to such purposes as the king in council cemeteries.
shall direct.

By 68 Geo. 3, e. 4*5, s. 33, the commissioners, as appears above, ^^ ^' ^» ^*
may accept lands for churchyards as well as ibr sites of churches.

And by sec. 34, certain persons and public bodies named
Iberein may grant land for churchyards as well as for sites of
churches.

The 3 Geo. 4, c. 72, extending such powers to other public
oflScers and institutions enables them also to grant land for
churchyards or for cemeteries. But the 35th and subsequent
sections of the 58 Geo. 3, c, 45, which provide for compulsory
sales, do not apply to churchyards, nor does the 52d sect of that
act, svprUf 209, apply.

Tbis, if it were an omission, was remedied by 59 Geo. 3, ^^^••^'
c. 134, M. 36 ^ 37, which extended the 68 Geo. 3, c. 45, ""' *^*-
«• 36, supra, and the compulsory powers of the subsequent
sections, to the cases of churchyards ; the powers to purchase
therefore under that act, are the same in the one case as in the
other*

In tbe 6 Geo. 4, c. 103, which enables persons to build or 5 G. 4, c.
pmnchase churches or chapels, by subscription, there is no direct i^^*
provision for a churchyard or cemetery, the 14th sect, which
provides for the vesting of the site, speaks of the '' church,
*'' cbapel, the land, ground, and site, whereon the same shall be
'' built, and the cemetery thereto belonging, if any ^^^ no previous
mention having been made of any cemetery. But sect. 15 en-
ables the trustees to ** sell and dispose of the vaults or burial

places under any such church or chapel, and of the vaults or

burial grounds in the cemetery or yard of the church or chapel,
** if there shall be any cemetery or burial ground thereto." It
seems, therefore, optional to the subscribers under that act to
procure a burial ground or not.

By 59 Geo. 3, c. 134, s. 38, it is provided that any land taken To be ««-
as burial ground, shall, as soon as it conveniently can, be con- *^"^'
secrated. .

By «• ' 39^ the commissioners are to fence, &c., existing
churchyards, and also stop up paths passing through them ;
post ** Churchyards ;*' which power seems to extend to enable
them to stop up a footpath, passing over ground purchased and
dedicated to the purposes of a churchyard, as soon as by con-
secration It becmnes one.

With regard to churches, &c., erected under that act, it is Distance of
provided that no grave is to be made within twenty feet of the Rravearom
external walls ; (vaults entirely arched over with brick or stone, ^^''''
and to which the only entrance is from without, excepted,) under
a penalty of 60/.

212 €f)mtt) iJmHimff, &c.

Vewn. Qy ^])^ common law, no pew in a parish church can be sold or

.May be let. '^^ ante, 180, but the demand for church accommodation, ami
the consequent building of new churches and chapels has intro-
duced a new system under the sanction of the legislature in the
new churches and chapels, built under the authority of the
above acts. By 58 Geo. 3, c, 45, s. 77, it is enacted, that
all the pews and seats in every chapel, built under the authority
of that act, (except free seat^;, and by sec, 75, the minister's seat
and his servants* seat,) shall be charged and chargeable with
the rents set opposite the numbers marked on each of such
pews or seats, as numbered in a schedule to be signed by the
commissioners, and annexed to the deed of consecration, and
these sums shall be paid by the occupiers of such pews to the
churchwardens in two half-yearly payments. By 59 Geo. 3,
c. 134«, s. 82, these pews cannot be let or sold to any but
parishioners, and by see. 79, 58 6. 3, c. 45, it is further pro-
vided, that in case the rent of any pew shall be unpaid for three
months, next after the same became due, and notice in writing
thereof given to the owner or occupier ; the churchwardens
H^^ may enter upon, and hold the pew or let the same to any

of pew. other person, till the rent in arrear and all costs, and charges
rcDtn. occasioned by the non-payment shall be paid ; or sell the pew by

public auction to the best bidder, and out of the money pay
the rent in arrear, rendering the overplus, if there be any aftei
all costs and charges are paid, to the said owner or occupier; or
the churchwardens may bring an action of debt or on the case
for use or occupation in the name of the churchwardens of the
church or chapel, (describing the same,) and no action or suit
shall abate by death, removal or going out of office of any
churchwarden. Butthis provision seems to be rendered unim-
portant, by the 59 Geo. 3, c. 134, s. 3^, which requires all pew-
rents to be payable in advance ; still by 5 Geo. 4, e. 103,
s. 18, all the above provisions for recovery of pew-rents are ex-
tended to that act.

By s. 78. By Consent in writing of incumbent, patron and
bishop, the churchwardens may alter the yearly pew-rents, and
in such case a new schedule of pew*rents shall be deposited with
the deed of consecration ; and vid. 59 Geo. 3, c. 184, s. 31.

By 59 Geo. 3, c. 134, s. 33, any subscriber to any church
or chapel may be discharged from payment of pew-rents, either
M'holly or for a limited time, in proportion to the amount of his
subscription, and may be allowed to assign the remainder of his
term to any other parishioner. Doubts having existed whether
this power extended to discharging persons who had subscribed
towards purchasing sites for churches and chapels ; the I §S
W. 4, c. 38, by s.'kx, confirms all such discharges already made
and recognizes the power of such discharges in future*

€4

€hva:tt> 9SttiOimg» &c. 213

By 1 ^ 2 FT. 4, c. 88, #. 4, it is provided with regard to the P^^*-
churches and chapels built under that act, that the pews shall May be let.
be let by the church or chapel wardens, or &y some person ap-
painted by the trustees^ or by the person building and endowing
the same, according to a scale to be fixed on by the trustees or
such person building, &c., to be approved by the bishop ; and
be varied from time to time with the consent of the bishop.

There is also a provision at the end of the section enabling, j ^ pe,*on«
or rather directing the persons entrusted with the letting the i ot !n«iabi-
pewsy to let for any term not exceeding one year, to inhabitants <**"^-
of adjoining parishes in which there shall not be sufficient
church accommodation, *' all such pews as shall not be taken

at the rent respectively fixed on within fourteen days of the

commencement of the ensuing year ; at the expiration of the

year and also of every succeeding year, in which any such pews

shall be rented by inhabitants of any adjoining parishes, such
'' pews shall be inserted in the list of vacant pews, to be taken in

preference by the inhabitants of the parish or place to which

the church or chapel shall belong/*

For the general law of church pews, vid. ante 171, with re-
gard to the question how far a pew can be annexed to a house
not within the parish, ante^ 189.

By 59 Geo, 3, c. 134, #.11, the commissioners are empowered, \e^,^^
with the consent of the bishop, and of the vestry or select vestry,
or by persons exercising the powers of vestry in any parish,
extra-parochial place, or district, chapelry, or parochial chapelry
in which a church or chapel shall have been built under the
provisions of that act, or the 58 Geo, 3, c. 45; to fix a table of
fees for such parish, &c., and such fees so fixed may be de-
manded or sued for by the spiritual person, or clerk, or sexton,
to whom the same shall be assigned as any ancient legal fees
may be sued for or recovered.

By some of the foregoing acts certain facilities and assistance Remission
are provided for effecting the objects of the commissioners. ^* duties.

By 59 Geo, 3, e. 134, s. 20, the commissioners of woods and
forests, with the consent of the first lord and other lords of the
treasury, or any three of them in writing; or for his majesty, or
duke of Cornwall, (extended to her maiesty by 1 ^ g Vict. c. 107, ^l^^^,_
s, 8,} or by any grant signed by the chancellor of the Duchy of ries, foresti
Lancaster, or any body corporate, collegiate, corporation ag- and wMtet.
gregate« or sole, to give and grant any stone, slate, timber, or
any materials from any quarries, forests, or wastes for building House for
any church, and any house or appurtenances for the residence residence.
of any spiritual person who may serve any church or chapel
built under this act.

By s, 21. The commissioners of customs and excise of Eng-
land, Scotland and Ireland, respectively, with consent of the first
lord or any three of the lords of the treasury, (note difference

Table of.

214 €f)va:tt) ISufSbinSf &c.

Rcmtmion bctwccn this and the former section,) to remit allor any proportion
o^^ u es, ^f ^1^^ duties upon the aforesaid materials bond fide used in any

such church or chapel, or order the same to be drawn back and

repaid.

By s. 35, The commissioners of stamps, subject to regula-
tions and restrictions made by the first lord of the treasury or
the lords of the treasury, or any three of them, may allow the
full amount of stamp duties ** on any deeds, bonds, contracts,
*' agreements, or instruments, made in relation to the purchasing
'* or providing any sites or building any churches, or purchasing
" or providing any materials for any such building.**

When chosen.
By whom chosen.

By canon.

By custom.

Custom only triable at common law.

Quo warranto to try right not grantable.
Mode of election.
Who liable to be chosen.

Exemptions.
Must be sworn.
Ordinary cannot refuse to swear them.

Form of oath.
Mandamus to ordinary to swear in.
How far a corpoxation

Cannot take lands.

Provisions of the 59 G. 3, c. 102.

May take lands by custom.
Agreements by how far binding on the parish.
Actions by and against.

Actions, &c. by not to abate by death of one, may plead
general issue by statute 59 G. 3, c. 13, s. 17-
Duties.

Presentments by.

May not interfere with service of the church.

Care of church during vacancy.
Must account on going out of office.

Re-imbursing of.
May be discharged or dismissed.
Powers of in proprietary chapels in the parish.
Churchwardens under the church-building acts.

58 G. 3, c. 45, & 59 G. 3, c. 134.

1 & 2 W. 4, c. 38.

XHE time for choosing churchwardens is in the Easter week,

€f)ntth\xiuttitnsi. 215

yearly, according to the 90ih Canon, 1603, which directs When
** churchwardens to be chosen by the joint consent of the ^*'*^°'
*' minister and the parishioners, if it may be ; but, if they cannot
'^ agree upon such a choice, then the minister shall choose one
" and the parishioners another* Without such joint or several
" choice none shall take upon them to be churchwardens.*'

It seems that a custom in a parish that there shall be only One
one churchwarden may be good, notwithstanding tlie words of ^**|""^"
the Canon, which speaks of churchwardens in the plural num- ^^^* ^"'
ber; 12 East, 361 ; 13 East, 142; 2 J5. ^ C. 817; ^ B. % C.
4(>3; and this may well be, for, as such a custom must have
existed before the Canon, it could not be destroyed or varied by
it. But a custom that there be no churchwarden is bad.

In the case of Anthony v. Seager, 1 Hag. Con, 10, Lord Ki^htof
StoweU said, '' The proper and regular mode is for the church- tiioosing.
" wardens to return two persons to succeed them ; but this is
" not exclusive of other methods, and, though customary, is
" not indispensably necessary, provided the court has satisfac-
'* tory information of the election in any other way.''

Since the date of the above Canon, the question as to the Right by
common-law right of choosing churchwardens has frequently Canoo.
been agitated in courts of law. In GodoL Ab. 162, and in
Nay, 139, it is said that the Canon is to be intended where the
parson had nomination of the churchwarden before the making
of the Canon, which would impfy that by common law the par-
son has not the right of choosing one of the churchwardens,
but that such nomination can only be established on the ground ContmoD-
of custom ; and so were the opinions of Sir M. Hale and Lord '^^ "^'''*
HoU. Carth. 118; Hardres, 378; 1 Lord Raym. 138. In
Hubbard v. Prentice, Str. 1246, the plaintiff insisted that the
right was in the parishioners at large as to both churchwardens,
and, therefore, that it was upon the defendant to show a custom
or right in the parson to name one ; the defendant, on the con-
trary, insisted that of common right it was in the parson and
parishioners to choose both, and of this opinion was Lee, J.,
who said that, though there were some dicta to the contrary,
yet they had never been regarded. The plaintiff on this went
on to prove a custom to choose both by the parishioners, but
failed in it : it appearing that, though the parson generally left
it to the parishioners, yet he had sometimes interfered ; and in
Catten v. Berwick, Str. 145, before the delegates, it was held
that, where the custom could not be acted upon, which is in
effect the same as if there had been no custom at all, that the

Jarish must resort to the Canon,- and vid. Degge, 152.
n tlie case of Slocombe v. St. John, Cor* Park, Croydon,
Sum. Ass. 1829, cited in Steers Par. Law, 85, which was an

216

€hntttMar'ttttvi.

Right of
choosing.

Comition-
law right.

In new
parishes

((

issue to ascertain whether the right of election was in the parish-
ioners to the exclusion of the minister, the above authorities
having been cited^ Park, J. held, " that in general the minister
** and the parishioners are to choose two churchwardens ; and,

if they do not concur, then the minister is to choose one and

the parishioners the other ; and, though the evidence ests-
*' blished that generally for upwards of two hundred years the
" minister and parishioners concurred, and though there was no
** evidence that the minister had ever separately appointed one,
** still this was not enough to support a supposed custom in
" exclusion of the minister, such long concurrence not being
** sufficient to control the general right." This case is not
satisfactorily reported ; but the effect of it is to support the
generally received opinion, that the Canon in this case, as in
many others, was not opposed to the common law, but in affirm-
ance and declaratory of it, and consequently that, where there
is no custom to govern the mode of election, the Canon points
out what is the common-law right of election ; 2 Roll. Ab. 287 ;
It is stated in Prideaux's book on the Duties of Church^
wardens, 63, that in newly-erected parishes, where there can be
no custom, the Canon is to prevail ; and vid. Co. Lit, IIS.

This view seems to have been sanctioned and adopted
by the legislature ; for by 9 Ann, c. 22, it is provided, that in all
the newly-erected parishes in I^ondon, (the general local custom
in London parishes being for the parishioners to choose both
churchwardens) and where the statute has not provided to the
contrary, the Canon is to take effi^ct. So also by the 58 G. 3,
c. 45, which is an " act for building and promoting the building
*^ of additional churches in populous parishes," it is provided
by s. 73, that '' two fit persons shall be appointed to act as
churchwardens, one by the incumbent, and the other by the
inhabitant householders in the district."

In the Report of the Commissioners on the Jurisdiction of
Ecclesiastical Courts, p. 118, it is said, that " in practice, though
'* perhaps not strictly in accordance with the original intention,
" the minister generally nominates one and the parishioners the
*' other.*' No opinion is expressed as to the law on this point,
but the report proceeds, ** The parishioners may have the right
** by immemorial custom of electing both."
By custom. Indeed it has been decided that by custom they may be
chosen by the parishioners without the parson ; 2 RolL S34^
c. 15 ; Cro. Jac. 5b2 ; and vid. 2 Roll, Ab, 287 ; or by a select
vestry, or by a particular number of parishioners. Hardres, 879;
1 Mod, 181 ; Peahens Cas. 156. But an order by the eccle-
siastical court that a select vestry shall elect does not exclude
the other parishioners* Lanes Rep, 2\*

CI)utd!)h)arlienfi(« 217

So also in some few instances the lord of a manor pre- R»g^»tof
scribes by custom to appoint one. GodoL Ab. 153 ; 2 Inst. (io3 ; ''^'"''""°-
1 H. BL 28 ; Rep. Com. 1 18.

In the olil London parishes there is generally a custom for In London.
the parishioners to choose both churchwardens. Gibs. 2\\ ;
Prid. Q2\ Lord Raym. 138; Cro. Jac. 532; Cro. Car. 551.

Where the incumbent has the right to nominate one church* By curate,
warden, it seems that a curate stands in his place and may make ^^^^"'
the presentment; 2 Stra. 1246; but where the incumbent is
under sentence of deprivation the right to choose both, results
to the parishioners. Carth. \ 18.

Where the right is admitted to be in the parishioners, it is to
be exercised in vestry, and the parson cannot intermeddle in
the election; 2 Stra. 1045; unless, however, there be an
express custom to exclude the parson, he would, it is appre-
hended, have the same right as any other member of the vestry.

If a custom be alleged and denied, the question is at once Custom
withdrawn from the spiritual courts ; for that is an issue which ^^"^ *™**'
they have no power to try. Cro. Car. 552 ; 2 Roll. Ab. 287 ;
Sir T. Raym. 440.

The customary right to elect churchwardens as well as the
fact of election, has been frequently tried in a feigned issue con-
sented to by the parties after a rule for a prohibition has been
argued ; 7 B. ^ C. 7G5 ; so after peremptory mandamus awarded
to swear in both sets of churchwardens, each mandamus has
been then suspended in order to swear in the successful party at
the trial. 1 Blackst. 430; 3 Burn. 1423; 7 East, 578. The
right to elect has also been tried in an action of prohibition.
Cro. Car. 652 ; Cro. Jac. 532 ; Noy, 139; Hardr. 379. But an
information in the nature of a quo warranto will not be granted
to try the validity of a churchwarden's election, for it is not an
usurpation on the crown. 2 Str, 1196; 4 7". ii.361. Although
the parishioners neglect to choose, the ordinary has no power
to appoint. 1 Str. 52.

The patrons of a church have no right to controvert the
election, unless it can be shown that the parish has no right to
elect, and that the churchwardens are exempt from the jurisdic-
tion of the ordinary. 1 Lee, 126.

The mode of election is according to the rules adopted in simi- '^^f of
lar cases ; ^rst by a show of hands, and if this be not acquiesced ^^^"^'
in, then by a recourse to a poll ; Anthony v. Seager, 1 Hag.
Con. 10 ; where the original notice for convening a meeting to
elect churchwardens stated that such meeting would be held in
the church, and if a poll were demanded, would be adjourned
to a specified place, it was held that the chairman might make
such adjournment, though against the sense of the majority ;
but where business at a meeting is in progress, the meeting and
not the chairman has the power to adjourn. R. v. Archdeacon

218

€f)virttfixartittfa.

Mode of
election.

OmiiiMOO to
choose.

Who liable
to bo
chosen.

of Chester, 1 Ad. % Ell. 342; 3 Nev. ^ Maim. 342; ib. 346 «.;
2 Sir. \0i5.

As to the mode of election, vid. Rex v. Bishop of Winchester, 7
Easty 573 ; A B.S^C. 449. If there be a custom to conclude the
poll for the election at a reasonable time, the voters must tender
their votes within it. 7 Etut, 573. Closing the vestry-doors to
exclude voters is illegal, but unless some one was excluded, a
mandamus will not be granted. 3 Nev. ^ P. 416.

Not only the legality of the election but of the votes given at
it may be decided at common law. Burr. 14S0.

In a late case an objection was made to the election, by reason
that a show of hands was not resorted to when demanded, and
that a poll was taken though not demanded, but objected to ; but
it was answered that, as the right to vote in this parish was under
the 58 G. 3, c. 69, and, therefore, as the number of votes de-
})ended upon property, the show of hands would not decide any
thing, although such a mode of election may be convenient.
R. V. Rector of Birmingham, 7 Ad. Sf Ell. 2S9.

If the minister and parish neglect to nominate or elect
churchwardens, they may be compelled to do so by a man*
damns; Stra. 52 i 2 B. % Adol. 197; although earlier
authorities seemed to throw a doubt on the power of the
court to grant the writ in such a case. 2 Stra. 186. In
such a case the ecclesiastical court cannot interfere, for church*
wardens are a corporation at common law and different from
questmen, who were the creatures of the Reformation and came
in by the Canon law. S Stra. 52. So also where it is contended
that one of two churchwardens has been improperly elected, the
court of queen's bench will grant a mandamus to proceed to a
new election ; for, if the election is really void, there ought to
be another, and if it be not void still there may be circumstances
which may render it fit that the parties should make a return,
and show how it is maintainable ; nor will the objection of ple-
narty de facto prevail where the election is clearly void, and
there is no other clear and certain remedy. R. v. Rector of
Birmingham, 7 Ad. % EU. 259.

All parishioners, it seems, are liable to serve the office of
churchwarden. In Brook v. Owen, 1718, SPhiU.5\7, innotis,
the question was, who was bound to serve the office of church-
warden ? and it was held that a partner in trade lodging in
another parish was bound to serve in the parish where his house
of trade was. A person may be a parishioner without uihabiting
a house, for he may occupy a farm. Vid. also Stephenson v.
Langton, and 1 Hag. Coft. 379, in which case a non-resident
partner in a house of trade was held not exempt, (a)

{a) In R. V. Poynder, 1 B. ^ C. 178, it was held that a

C{)urrt)h)arlirn0« 219

Altliough it is said that parishioners may choose whom they ^^*»<* '*'****«
think fit, and though it has been often held that the spiritual c^,own.

court cannot in any case control or examine into the propriety '- —

of the election ; I SalA. 166; 1 Stra.609; Lord Raym. 1379;
yet, if a person obviously unfit should be returned, the court
would do well to reject such a person. 1 Hag. Con. 10. At
the same time, it is the duty of the ordinary not to take slight
objections. lb.

Peers of the realm, by reason of their dignitVy 1 Bum's E. L. £,.
398; clergymen, ib.; persons elected to parliament, f&. ; and empiious.
attorney's clerks in the several courts of law, are all considered
exempt; 2 Roll. Ab. S7^, 368; Godol Ab. 164. Physicians and
surgeons in the city of London and the suburbs are exempted
by 5 Hen. 8, c. 6, and 32 Hen. c. 40 ; and the freemen of the
Corporation of Surgeons in London, by 18 Geo. S, c. 15; Roman
Catholic ministers conforming according to stat. 31 Geo. 3, e. 32,
9. 8 ; preachers, or teachers in holy orders, or pretended holy
orders who are ministers, preachers, or teachers of a congregation
and duly qualified by 1 W. 3, c. 18. And if any person dis-
senting from the church of England, and being appointed church-
warden, shall scruple to take upon him such office in regard of
the oaths or other matter or thing, he shall and may appoint a
deputy, provided that such deputy be approved by such person
as he himself would have been approved. lb. ^ 52 G. 3, c. 155.

By s» 7, every person using the art of an apothecary
within the citv of London, and seven mUes thereof, and being
free of the dompany of Apothecaries for so long as he shall
use and exercise his said art. And all persons who shall use
the said art within the realm, and have served the art as ap-
prentices for seven years under 5 EUt. c. 4 ; 6^7 FF. 3,
e. 4; 1 Ann, c. 11 ; 10 Ann. c. 14.

Serjeants, corporals, drummers, and private men of militia,
from the time of their enrolment to their discharge, bv 42 Geo.
3, c. 90, s. 174. Commissioners, assistant commissioners, or
officers of customs, or persons employed in collection or ma-
nagement of accounts for revenue of customs, clerks, or per-
sons acting under them, whilst acting or employed as such,
9 Geo. 4, c* 76, s. 2 ; excepting those (and some others, whom
if elected by a parish, the ordinary would be bound to reject
when returned to him, such as aliens, Jews, Papists, children

non-resident partner occupying a dwelling-house or yard, none
of the partners residing in the house, which was occupied by a clerk,
was held to be a householder within 43 £Uz» and bound to serve the
office of overseer ; as to the general meaning of the word parishioner,
see Atty. Oen. v. Foster, 10 Ves, 333.

220

CI)urc|)tuartitns(.

Who Hable
to be
chosen.

Ex-
emptions.

Old

church-
wardens.

Must be
sworn.

Ordinary
cannot re-
fttseto
■wear them.

under ten years of age, or persons convicted of felony, I Hag,
Con, 10), all persons are eligible, and must serve in the said of-
fice when legally chosen into it. Nor if a person be in other
respects eligible, will ordinary infirmities be admitted as ex.*
cuse for not serving the oflSce : thus deafness seems to liave
been considered an insufficient cause of refusal. 3 PAUL 165.

By 10 * 1 1 fT. 3, c. 23, limited by 58 Geo. 3, e. 70, *. 2, all
persons who have prosecuted a felon to conviction, are exempt.
Where the person first elected churchwarden had, on payment
of a fine, been excused ; another elected in his place at the
same vestry meeting is bound to serve, unless some exemption
be shown. Birnie v. Wetter and another^ 3 Hag, 474.

It is said that it is improper that old churchwardens should
be continued : this msry depend on the discretion of the parish ;
the ecclesiastical court has no authority to interfere. Per Lord
Siowett, 1 Hag. Con. 13; Gibs. Cod. 242.

At the next visitation which shall be held, either by the
bishop or archdeacon, or other ordinany, the newly-elected
churchwardens must appear in order to be sworn in to their
said office ; for till they are sworn, they can do no legal act as
churchwardens. And although they served the office the
former year, and were then sworn, yet if they be again chosen,
they must be sworn in again ; for they are chosen but for one
year, and sworn but for one year. Prideaux, 68; Gibs. 215,
and vid. 1 Vent, 267. And by the 118th Canon, the office of
the former churchwardens shall be reputed to continue till their
successors are sworn. 4 J?. 4r C 462.

Any person elected to be churchwarden and refusing to take
the oath prescribed by law, may be excommunicated, and no
prohibition lies. Gibs. 216. Or the diocesan court may
direct the persons elected to take the oath of office before the
proper ordinary. 3 Phill. 166.

The archdeacon or other ordinary acts ministerially only in
swearing in churchwardens, Salk. 330; Str.609; for the pa-
rish, whose officers they are, are the judges of the qualifications
of the persons elected. 1 Lord Raym. 1379-138; 1 Salt.
166; Carth. 393; 5 Mod. 325. An action on the case will
lie against the ecclesiastical judge for refusing to swear in
churchwardens elected by the parishioners under an alleged
custom, enabling them to elect both. Lutw. 1010; Keble, 418.
Nor can an archdeacon refuse, on the ground that it is cus-
tomary to swear in at the first visitation after the election.
And if there were such a custom, it should be returned to the
mandamus. lb. Where two sets appear, each bearing a
colorable title, both must be sworn. 5 Nev. ^ Mann. 494;
SAdd. ^ EI/.G15.

No fee can be demanded for administering the oath, except ^lu"' be
by custom. 1 Salk. 330. "'"""■

It seems that the ordinary ought to take care not to give No fee ex.
efiect to an election void in itself, although it is his duty not to ^^P' ^'3^
take slight objections. I Hag. Con. 11.

Yoa shall swear truly and faithfully to execute the office of Form of

a churchwarden within your parish, and according to the best oath.
" of your skill and knowledge, present such things and persons
" as to you are presentable by the laws ecclesiastical of this
" realm."

If the ordinary refuse to admit and swear in a churchwarden, How com-
the court of king's bench will grant a Mandamus to compel him. pelled to
Com. Dig., Mandamus A ; Cro. Car. 557; Gibs. 216. And '^^""•
as the rule to swear in confers no title, it is absolute in the first
instance. 3 Ad. ^ Ell 614-617; 2 Chit. Rep. 25i.

It is not a good return to a mandamus, that there are writs Mandamw
pending in the ecclesiastical court by one set of churchwardens ^^^"^ ^-
against another, each contending to be duly elected. 3 Burr.
1420 ; 1 Bla. Rep. 430 ; 5 Nev. % Mann. 494 ; 3 Ad. ^ Ell. 615;
or that a suit is pending in the ecclesiastical court concerning
the custom to elect, for that court cannot try the custom ; Sir
T. Raym. 440; 1 Ventr, 267; or that the bishop inhibited
the archdeacon. Str. 609 ; Lord Raym. 1379. But a return
tea mandamus to swear one duly elected, that he was not duly
elected, is good. 2 Salk. 433, and Lord Rdvm. 188-1379-
1405; Sir. 1088; 8 B. ^ C. 681. But it would be a bad re-
turn to a mandamus to swear in one who is chosen church-
warden, that he is not duly chosen because evasive and out of
the writ ; 2 Salk. 433 ; or of any officer that he is removable
without cause, unless this is warranted by custom or charter.
Sir T. Raym. 188; 1 VetUr. 77; 1 Sid. 461. The ecclesiasti-
cal officer may deny any material allegation in the writ. He
cannot, it is true, exercise any judicial authority, hut he may
inquire whether the party was duly elected; otherwise he
would be bound to admit any person who presented himself,
though be might in fact know that he was not duly elected.
R. V. Williams, 8 £. ^ C. 681 ; 1 Hag. Con. 10. The party
applying for a mandamus states the foundation of his right in
the writ, and the ecclesiastical officer may deny it. SB.^C. (iSl.

Churchwardens are a corporation for the purpose of taking How far a
or purchasing chattels in succession for the use of the pa- ^o''po'^*'op
rishioners; Pfideaux, 132; 1 Vent. 89; and therefore they may
bring trespass or other possessory action during their year of
office ; for though the property is in the parishioners, either
as purchasers or as donees, the custody and right of possession
is in the churchwardens. Str. 852 \ 2 H. BL 559; 2 Bing.
iV. C. 402. Such action by churchwardc'ns lies, it seems, even

222

€burti)\onvtinisi*

How far a
corporation

To bring
actions.

Cannot die*
pose of
goods of
parish.

Only to
tiike chat-
tels.

Cannot
take lanilft.

against a parishioner or the parson, and will lie as well for
goods taken in the time of their predecessors as in their own time.
Cro. Eliz. 145-179; 1 Leon. 177 ; sed. vid. Dalison, 105. A
suit by the parson in the spiritual court, &c., de bams ecclesiie,
will be prohibited. 1 RoU. Ab. 393; 2 Salk. 547. They
have a property in the organ, bells, bell-ropes, books, vest-
ments, and ornaments of the church ; but they have not viriuie
officii custody of the title deeds of the advowson, though kept
in a chest in the church. 4 T. R, 351.

But as they are a corporation for the benefit, and not for
the prejudice of the parish, I RoU. 393, they cannot dispose of
any of the church goods without the consent of the majority of
the parishioners, legally declared in vestry, and the licence of
the ordinary. Prideaua:, 135; Ayl. Parer. 171. Of course one
churchwarden, singly, cannot dispose of parish goods. Cro,
Jac. 234. The parishioners are the proper owners, the church-
wardens being only entrusted with dieir custodv for the use of
the parishioners; but the parishioners can have no action
for the goods disposed of, either to recover them agiunst the
receivers, or the churchwardens for disposing of them ; for al-
though the goods belong to the parishioners m common, yet not
they, but the churchwardens are the corporation in whom they
are vested for their use. Prideaux^ 136; 2 RolL Rep. 73; 1
SaUe. 166; Vin. Ab. '' Churchwardens^*' A ; and the panshioners
cannot complain, for it is at their peril to choose and trust
whom they think fit. Vin. Ab. ib.

As on the one hand, the parson of the church is a corpora-
tion for the taking of land for the use and benefit of the church,
and not capable of taking goods or personalty in that behalf;
so the churchwardens are a corporation to take money or goods,
or other personal estate for the use of the church, but are not
enabled to take lands. 2 P. Wms. 126; Vin. Ab. '* Church^
wardens.^* Strictly speaking, however, it seems that church-
wardens cannot be considered a corporation ; for although the
churchwardens are a name to sue by, in personal actions, the
property is that of the parishioners ; and in all actions, &c., by
churchwardens, it must be laid, ad damnum parochianormn^
per Macclesfieldf C. ; Hn. Ab. ib.

Churchwardens thus being, for certain purposes, a corpora-
tion for the goods of the parish, but not being so for land, a
feoffment or devise of lands to churchwardens, or to the pa-
rishioners is bad ; nor can the churchwardens prescribe to have
lands to them and their successors. 1 RoU. Ab. 393 ; Co. Litt. 3 a. ;
Godot. Ab. Keilw. 32 a. Nor would a lease of them, of lands,
though made with the consent of the vicar, the majority of the
aldermen and burgesses of a borough, and of other inhabitant:^
of a parish, pass any interest in lands. Doe detn. Hobs. v.

Cf)urt()toarIi(it0. 223

Cockell, 6 Nev. if M. 179; 4 Ad. * EU. 478, ib. 295. Before the ^[^^"Jj'^^^^
59 Geo. 3, c. 12, there was usually a feofTment in trust, in order ^"'^P^^'^^'*^"
to preserve the lands to the use intended, which was from time Cannot
to Ume renewed as the old trustees died off by putting new ones ^''elands.
in their stead. Vid. 10 B.§^ C. 885. But this cannot be done
by a mere election by the survivors. To do it legally, the sur-
viving trustees must transfer the whole right and trust to them.
But because this would be a divesting of themselves, if the
trustees are not willing so to do, or else if it should appear in-
convenient for the parish to be deprived of the stewardship of
those who have been long used and experienced in it, the
best course that can be taken in such a case is, that the old
trustees do, by deed convey their right and trust into the hands
of one single person* who shall immediately, by another deed,
convey it again io them, in conjunction with as many other old
trustees as shall be thought fit to be added to them, still pre-
serving the lands to the use of the original donation : and care
should be taken to have this done before the trustees are re-
duced to one : for if the surviving trustee should die before the
trust be legally transferred to others, the lands will descend to his
heir, and it may cost the parish a chancery suit again to revive
the trust. Prideaux, 139 ; 10 A ^ C. 885 ; 4 Ad. ^ EU. 280.
The inconveniences felt from this gave rise to an act, the 59 rrovisionn
Geo. 3, c. 12, s. 17, by which it is provided, " That all build- o( 59 Geo.
** ings, lands, and hereditaments purchased, hired, or taken on ^' ^' ^^^*
*' lease by the churchwardens and overseers of the poor of any
'^ parish for the purpose of being converted into workhouses,
" or for cultivation by paupers, shall be conveyed, demised, and
" assured to the churchwardens and overseers of the poor of
" every such parish respectively and their successors in trust
*' for the said parish ; and chat such churchwardens and over-
'* seers of the poor and their successors, shall and may accept,
" take, and hold, in the nature of a body corporate, for and
" on behalf of the parish, all such buildings, lands, and here-
" ditaments ; and also all other buildings, lands, and heredita^
" ments belonging to such parish, and in all actions, suits, in-
" dictments, and other proceedings, for or in relation to any
such buildings, lands, and hereditaments, or the rent thereof,
or for or in relation to any other buildings, lands, or here-
" ditaments, belonging to suchparishyOr the rent t/iereof; and
" in all actions, proceedings upon or in relation to any bouncf to
" be given for the faithful execution of the office of assistant
" overseer, it shall be sufficient to name the churchwardens and
'' overseers of the poor for the time being, describing them as
'' the churchwardens and overseers of the poor of the parish for
" which they shall act, and naming such parish : and no action
" or suit, indictment, or other proceeding shall cease, abate, or

22 1 Cl)urrbU)arlirns(.

bond *** °^ " ^^ discontinued, quashed, defeated, or impeded by the death
' " of the churchwardens and overseers named in such proceeding,
" or the deaths or death of any of themi or by their removal, or
" the removal of any of them from, or the expiration of their
'' respective offices.*' But, as this act vests property in them,
conjointly with the overseers, a lease by churchwardens only is
bad, nor will payment of rent to them by their lessee recognise
a title in them which they have not by law. 5 B. ^ C. 453 ;
8D.^R.i3; and vid. GD.S^R. 5'M; 4^ B. Sf C. 462.

In Jackson v. Hiley, 10 JB. ^* C. 885, it was decided that all
the property of a parish, by the operation of 59 G. 3, c, 12,
s. 17, vests in churchwardens by the operation of that statute,
not merely when the profits thereof are applicable to the relief
of the poor, but when they are applicable to those purposes
for which church rates are levied, and although such buildings
and lands, &c. had originally vested in trustees for the benefit
of the parish; for, though the primary object of that statute
was the better and more effectual execution and amendment of
the laws for the relief of the poor, yet the 17th section goes
much farther, and there is nothing in the act of parliament to
prevent property held by trustees for the benefit of a parish,
vesting in the churchwardens and trustees, and it would be
inconvenient if it were so.

In the case of Doe dem, Higgs and others the Church-
wardens of St, Mary Reading, 4 Ad. & EIL ^74, which was
an action of ejectment on the demise of the churchwardens and
overseers, laid after the passing of stat, 59 G. 3, c. 12, the
lessors of the plaintiff proved that the defendant, since the
statute and for many years before, had paid rent to the
churchwardens for the time being, and that the late church-
wardens and overseers (who came into office afler the statute
passed) had given him notice to quit. Defendants produced
a lease for years, by T« K. and J. K., therein described as
churchwardens of the parish, to W. £•, made before the
statute, in consideration of the surrender of a former lease;
and also a lease for a term of years, yet unexpired, made
before the statute, by J. M. and N. C., described as church-
wardens of the parish church, to W. E.'s personal repre-
sentatives, through whom defendant claimed, in consideration
of the surrender of the lease first mentioned. In the last-men-
tioned lease the premises were described as '* belonging to the
'' parish church,' and the rent was reserved payable to '' the said
^' churchwardens and their successors."

It was held that the property appeared to be parish property ;
that the leases passed no legal interest ; which property, since
the statute, was in the churchwardens and overseers in succes-
sion, who were entitled to treat the defendant as tenant from

€ftmttfiiacrtitmi^ 225

year to year, and to recover the premises upon giving notice to ^♦a^* ^

quit. G.3^,c.l2,

Again, in the case of Doe dem. Hobbs v. Cotkell, 4 Ad. ^ Ell. '
478, in ejectment by churchwardens and overseers, on demises
laid after statute 59 6.3, c. \2, it appeared that the defendants,
before and since the statute, had paid rent to the successive
churchwardens, and that the churchwardens and overseers
(appointed since the statute) had given a proper notice to quit.
Defendants produced a lease, made before the statute, for fifty-
nine years, to parties under whom they claimed, purporting to '
be made with the consent of the vicar, the majority of the aider-
men and burgesses of the borough of R., and of others the
inhabitants of the parish, whose names were subscribed to a
memorandum on the back of the lease expressing such consent.
The churchwardens were the demising parties, and the rent
was made payable to them and their successors for the time
being. The premises were described as belonging to the parish
church.

It was held that, notwithstanding the consent, the premises
must be taken to have been parish property, and that the lease
passed no legal interest in the term, and the present church-
wardens and overseers might treat the lessees as tenants from
year to year.

It was also held that a parishioner liable to poor rates was
at common law a competent witness for the plaintiff in such
action, no evidence being given that the premises were of any
annual value beyond that at which they were demised.

By a previous statute, 9 G. 1, c. 7, churchwifrdens, with 9G. i,c.7.
the consent of a majority of the vestry, are enabled to purchase
houses to lodge and employ the poor.

But, although churchwardens are not a corporation for taking 1° Londoa
lands, except so far as they are made so by the statutes above j^^Jg^^®
noticed, yet they may be so by custom, as in London, where the
churchwardens with the minister make a corporation for holding
lands as well as goods. Cro. Jac. 532; Gibs. 215 ; Prideaux,
141. So also they may be constituted by charter a corporation
for such purposes, as at St. Saviour's Southwark, and at Wal-
lingford. Leme, R. 2\ \ 10 Rep. (i6; Prideaux, 135.

They may also, it seems, enter into agreements, if they are May enter
reasonable, and the parishioners assent thereto. Thus, where into agree-
it was agreed by the churchwardens and vestry that the ringing ™«"^»
of a bell at five o'clock in the morning should be discontinued,
by reason that it disturbed a sick lady, her husband agreeing,
in consideration of such discontinuance, to build a cupola to the
church and erect a clock and new bell, which having been done
and the bell silenced for two years, a new order of vestry was
obtained for again ringing the bell, but on application to Lord

226 €bvxttfixisrtim^.

ActioMby. Chancellor Macclesfield, 2 P. Wms. 268, an injunction was
obtained during the lives of husband and wife, it appearing that
the majority of the parish were willing to abide by the agree-
ment and protested against the new order.

The property of the goods of the parishioners being vested in
the churchwardens, as a corporation for the benefit of the
parish, it follows that they must sue jointly, for the act of the
one without the other has no force in law : and if one release,
such release is void. So, if churchwardens sue jointly in the
spiritual court for a levy towards the reparation of the church,
and have sentence to recover and costs, and one releases and
the other be sued for the costs, it was held that, as one church-
warden solely cannot release nor give away the goods of a
church, costs are in the same nature, which the one without the
other cannot discharge; Cro. Jac. 234* ; Yeh. 17S ; Noy, 129;
2 BrownL 215; and it is specially provided by 59 G. S, c. 12,
Actions do jr. 17, that no action or suit, indictment, or other proceeding
b^dMtbof ®^*" cease, abate, or be discontinued, &c., by the death of
^ * the churchwardens and overseers named in such proceeding,

or of any of them, or by the removal of any of them on the
expiration of their respective offices.

One churchwarden cannot pledge the credit of the others
without Hheir knowledge for repairs, but the individual giving
the order becomes personally liable. 2C. Sf M. S16; 3 Bing.
481. Nor need his co-churchwarden be joined in point of
form. 4Z). ^/J. 241.

If the damages for which they sue were done in their own
time, they may then lay the action in damnum parochianorvm,
or in damnum ipsorum ; for the parishioners have the damage
because the goods are theirs, and the churchwardens because
they, being trustees for the parishioners, must answer and ac-
count for them. Cro. Eli«. 145, 179; 1 Lean. \Tl. But, if
the damages were done in the time of their predecessors, or the
action be against their predecessors, the damages must be laid
in damnum parochianorum only, and if it were laid in damnum
ipsorum the action would be void. Cro. Elix. 179 ; Comb. 417;
1 Ventr, 89. If injury be done to property in custody of the
churchwardens, they may seek remedy either in the spiritual or
common-law courts ; but, if the suit be for the restitution of a
thing, as a bell taken away, it may be sued for in the spiritual
court, but if damages be sought for the takinff it, or for any
injury done to it, such can be recovered only m the temporal
courts. 2 Inst. 402 ; 1 Sid. 281 ; 1 RoU. 57.
What nay Although churchwardens cannot commence a suit in their
JjJ^n- own names in the spiritual court for a church rate after their
office has expired, yet if commenced, before they may proceed
in it afterwards e^c necessitate rei ; 2 Stra. 852 ; and successors

€hmtb\our\Hm^ 227

in the office may maintain trespass, &c. for goods taken in the Actions by.
time of their predecessors. Cro. Etiz. 146, 179. So they may what may
maintain trespass for goods or other possessory action against be ma^in-
any who wrongfully take the bells, books, or other property of tained.
the church* 1 Roll. 57. So formerly they might have had an
appeal of robbery.

So it is said they may have an action against any one who
defiioea a monument, GodoL 279, sed q. if the parishioners can
have any such property in a monument as to entitle the church-
wardens to maintain trespass.

By the general words of the 59 G. 3, e. 12,«. 17, churchwardens Must sue id
and overseers are enabled to bring actions. In the case of ^^^i^^'^^
Doe dem. the Cliurchwardens of Llandysilio v. Roe^ 1 Tyrwh.
Sf GraHm 1084, it was held, however, that, although they are
enabled to sue in respect of parish matters in their characters
as churchwardens, they must sue in their own names, describing
themselves as churchwardens and overseers of the parish for
which they act ; for no property vests in them, unless the pro-
per number was annually elected, so that it was material for the
defendants to have information whether they are in a capacity to
sue or not. 13 Etui, 143 ; 4 J3. ^ C. 462.

By 7 Jae. 1, e. 5; 21 Jctc. 1, c. 12, it is provided that, if an Ac««>m
action be brought against any churchwardens, or persons called "g'""^^-
sworn men executing the office of churchwardens, for any thing May plead
done by virtue of their office, they may plead the general issue, general
and give the special matter in evidence ; and if a verdict is given ^^^'
for them, or the plaintiff shall be nonsuit or discontinue, they Double
shall have double costs. It has been held that they are excluded costs in.
the benefit of this statute wliyen acting in ecclesiastical matters,
and only entitled to itwhei} acting in temporal matters, as where
an action was brought for a presentment upon common fame
for ineontinency, upon not guilty pleaded it was found for the
churchwardens, but. upon the above ground they were denied
their double costs. Cro. Car. 285; GodoL Ab. 161. But
Prideaux strondy denies the principle of this decision. A
<^arct»warden taking a distress for a poor-rate under a warrant of
magistrates is entitled to the benefit of the statute, 7 7*. R. 270.
But these statutes do not extend to actions against them for
non-feasance, 3 East^ 92^ nor where there was judfi^ment, as in
case of a non-suit in an action brought against tnem for the
price of goods sold and delivered to them for the use of the
poor. SM.^S. 13K

But where churchwardens are entitled to double costs under
these statutes, it was held that the certificate of the judge need
not be granted at the trial, but might be given by the judge
who tried the cause after an interval of four years. 3 Y. ^

Jervis,30S*

228

C()urt{rtDar&traf*

DatieB of.

General Iv.

To present
all eccle-
siastical
offences.

Neglect to
present.

Present

thoM who

absent

themselves

from

church.

To observe
behaviour
at church.

Churchwardens are officers of the parish in ecclesiastical
affairs as constables are in civil ; and the main branches of their
duties are, 1 st, to present all matters happening in the parish
Contrary to the ecclesiastical laws; and, 2dly, to keep in repair
the church and to guard the various things belonging to the
church, and to provide such things as may be necessary for the
decent service of it. 1 Hag. Con. 170. Thus they have been
called ^' Wardens of the goodes, workis, and ornamentis
'* of the church." Their duties originally seem to have
been limited to the care of the ecclesiastical property of the
parish; 1 Hag. Con. 173; 1 BL Com. 394; Wood Imi. 87;
but they are to be considered, at least in a certain degree, as
guardians of the moral character and public decency of their
parish. Griffith v. Reedf I Hag. Con. SOS; I Lee^ 129;
1 Hag. Con. 173.

Twice in every year they are directed by the I l&h ^ 1 17M
CanonSf at the visitations of the bishop, archdeacon, or other
ordinary, to make their presentments according to certain ar-
ticles given to them. AyliffCj Parer. 170 ; Prideauje, 3 ; Gibi,
on Visit, 59.

In case the churchwardens omit to present any of those par-
ticulars of which there is a common fame in the parish, they
may be forced to do it by the ordinary at his visitation, and if
they refuse so to do, may be proceeded against as wilful breakers
of their oath, and in the interim be barred the communion by
the minister of the parish. Prideaux^ 4; Canons^ 26, 117;
Gibs, on Visit. 59, 60 ; 1 Bum's E. L. 409. But they must be
advised to have a care that they do not turn the groundless
calumnies and base slanders which wicked and malicious per-
sons are too often apt to raise against their neighbours into
formal accusations against them, but take heed that they present
no other ill fame of any one but such only, as there is that just
ground for as may make it credited and believed by honest and
good men. Prideaux, 6; 1 Hag. Con. 174.

By certain old statutes, the churchwardens were to present
such as do not come to church. Can. 90; 6 Ed. 6, c. I, '• 2;
1 Eliz. c. 2, s. 14; 3 Jac. 1, c. 1, s.2; Cro. Elix. 750. Nor
does the \ W. 8f M. e. 18, the toleration act, supersede this
part of their office ; 4 Mod. 274 ; 1 5 East^ 284 ; except inas-
much as it excepts all dissenters who have qualified themselves
accordirg to the 13th and 15th sections of the act of toleration,
and frequent any assembly or meeting jMroperly registered and
allowed.

Churchwardens are further bound to present not only those
who neglect to attend at church, but also to see and take care
that all that resort thereto do in time of divine service and ser-
mon behave themselves orderly, soberly, and reverently, kneeling

€bva[ttftB&rtitnti. '2-^^

al the prayers, standing at the belief, and sitting or standing i heir

quietly and attentirely at the reading of the Scriptures and the ^^^;

preaching of God's word, Camm 18, 111 ; that none walk, talk,
or make any noise in the church, to disturb the duty which is
there performing; ib.f that none sit there with their hats on,
or in any other indecent or irreverent manner ; 1 Eliz. c. 2,
$. 14; Canon 28; 1 Lev. 196; 1 Sid. 196; 2 Keb. 124; and
may justify taking off a man*s hat in church; 1 Sound. 1, 14 ;
that none contend or quarrel about place, or upon any other
occasion make any broil or brawling there ; 5 ^ 6 Ed. 6, e. 4 ;
that DO idle person abide in the church porch or churchyard
during divine service or sermon, but that they either come in
or depart, Canon 19 ; or any other disturbance there, or inde-
cent behaviour be there permitted, but that every thing be kept
in peace and quiet, and due order, and all behave themselves
with that decency, reverence, and devotion which is suitable to
the duty they are then upon. Canon 18; 1 Hag. Con. 174;

1 Mod. 168; 1 Hawk. 139. But they cannot interfere in the Cannot in-
administration of divine service, their duty being one of obser- ^[y^icVof
vation and complaint only. 1 Hag. Con. 170, ante 158. church.

The churchwardens are likewise to take care that no stranger Not toal-
be admitted to preach in their church, of whom they are not ^^^J?^*'
satisfied that he is in orders and licensed to preach by the preachers
bishop of the diocese. Canons 28, 48, 50, A. D. 1603; Bac.
Abr. tii. *^ Churchwardens, D.*" 1 Hag. Con. 170, but on pre*
sen ting letters of orders, their duty ceases. They are also to To present
present all neglect or irregularity in the clergyman ; his non* irregularity
residence, or misconduct, Canons 14, 21, 41, 45, 47, 59, 62,66, ^f""^'^"^-
67, 68, 69, 75, 122; 21 Hen. 8, c. 13; Benett v. Bonaker,

2 Hag. 25. Moreover they are to take care that the church To keep
with all its chapels, isles, and parts be wholly kept for those church,
sacred uses to which it is consecrated, and therefore, that no ^^'' ^ ^^°'
temporal or profane usage be permitted or allowed therein or in

the churchyard belonging thereto. Canon 88; 13 Ed. 1, c. ^^
S.6; 7^8 Geo. 4, c. 27 ; Carth. 151. They are to provide a to provide
large Bible, Common Prayer-book, a font, communion-table, elements for
and on sacrament days bread and wine for the holy communion, qJ^q^^"^'"^*
at the charge of the parish ; and formerly by some canons,
to observe who they are that absent themselves from it, and
present them at the next visitation. Rubric^ 13 ^ 14 Car. 2,
c. 4, ss. 1, 2 ; 1 Hag. Con. 170 ; 2 Ibid. 141.

It is their duty furthermore, on behalf of the parish, to take To keep
care that the body of the church be kept in repair, and that the ^^^l^^ ***
churchyard be cleared from all rubbish, thorns, &c., and every and '
thing eke that may annoy the parishioners when they come into church-
it, or be a hindrance to them in burying their dead, and that no ^^^*

230

Cf)urd!)toarliens(.

Their
duties.

Care of
church-
yard.

Arranging
pews.

Interfe-
rence with
service.

sinks or gutters, or the like, be made through it Canon 85 ;
2 /wrf. 489, 653 ; Carth. 151.

That the churchyard be well fenced, unless by immeinorial
custom those who have lands adjoining the churchyard, be
bound to repair the fence. Godot. Ab, c. 13, #. 15; 6 Eant^
315 ; S Roll. Abr. 287. They have also the keys of the belfry
and are to take care that the bells are not rung without proper
cause. Canon 88. They are also to see that the churchways,
church, and the gates and stiles leading thereto, be well kept
and repaired, so that the parishioners may at all times resort to
the church ; that the said ways be broad enough not only for the
passage of single persons, but also for the carrying a corpse,
that the same may be buried ; and the stiles so to be made
that persons of all ages may well be able to get over them ; if
these ways be to be repaired by others by prescription, they
are by due course of law to compel them to be so repaired.
PrfV^awx, 36; 2 RoU. Abr. 265, 217; 1 Curt. 259-, vid. post
" Churchyard.''

In a case where the spire of a church had been destroyed by
lightning, a monition issued against the churchwardens to re-
pair and re-instate it. 3 PhiU. 501 ; 4 Hag. 83.

Churchwardens, as officers of the ordinary for that purpose,
are to arrange the distribution of seats in the church, consulting
as far as may be the convenience of all the inhabitants ; they are
indeed generally to seat persons according to their rank and
station, but not to accommodate the higher classes beyond their
real wants to the exclusion of their poorer neighbours. 2 Addams^
426 ; the churchwardens are not bound to look either to the
vestry or the incumbent, in the discharge of this duty, though
the opinions of both ought to have weight with them. /6fd;
ante, 171-179.

The consent of churchwardens must be had for bury-*
ing a person in a parish difierent from that in which he died.
Ante, 126.

But, as noticed above, they have no authority in the adminis-
tration of the service, or to obstruct and prohibit the form of
singing, for even if the minister introduces any irregularity, they
cannot interfere, their duty is to complain to the ordinary of his
conduct, not but what if anything like grossly offensive conduct
arising from natural infirmity or irregular habits were to arise,
they might be justified in interfering; indeed, so it seems would
any private person, per Lord Stowell, 1 JHag. Con. 174; for
they desert their duty if they do not repress all indecency.
2 Hag. Con. 141. They have only the custody of the
church under the minister ; if he refuse access to the church
on fitting occasions, complaint must be made to higher autho-
rity. 3 Hag. 1 73.

C{>nrd>tauir)ini0^

231

During the vacancy, wbelher by death or otherwise, church-
wardens have the care of the benefice, and having taken out a
sequeatration from the spiritual court, they are to manage all
the profits, as well as the ezpences of the benefice for him that
shall next succeed ; plough and sow the glebe, take in crop,
repair houses and fences, &c., and also take care that the
church is duly served with a curate approved by the bishop
and pay him out of the profits, and if the successor feel ag-
grieved, he may appeal to the bishop, 1 Bum'z /• P. 64l.
But they cannot prevent a minister, who has been appointed
under a sequestration firom officiating in the church. Prout v.
Crcmwelly 1 Lee^ 36. But although the churchwardens are the
proper officers for this business, and are bound to perform it, if
required, yet the ordinary mav entrust it to others, who are
wilting to engage in it. 3 Bum 9 E. L. 340.

Where the living is sequestered for the debt of the incumbent,
eidetU. " Sequesiraiian,'*

By Canon 89, all churchwardens at the end of their year^ or
within a month after at the most, shall before the minister and
parishioners, give up a full account of such money as they have
received, and also what particularly they have bestowed in re-
parations and otherwise for the use of the church ; and last of all,
on going out of their ofiice, they shall truly deliver up to the
parishioners whatsoever money or other things of right belong-
ing to the church or parish, which remaineth in their hands ;
that it may be delivered over by them to the next churchwar-
dens by bUl indented. The spiritual court may compel church-
wardens to deliver in their account, but cannot decide on the pro-
priety of charges. Therefore, if they take any step after the ac-
counts are delivered, a prohibition will be granted, for it is beyond
their jurisdiction. 3 T. jR. 3 ; Bunb. 289 ; Str. 1 133, 974. By
custom they may be accountable to a select vestry, Gibs. Cod.
24&\ and they may be compelled to permit an inspection of their
accounts. 4 B. & C. 899 ; 1 D. & R. 393.

It seems that if churchwardens nave laid out parish money
imprudently and improvidently, yet if it be trulv and honestly
laid out, they must be re^imbursed again, and the parishioners
can have no remedy herein, unless some fraud or deceit be
proved against them, because the parish have made them their
trustees. 3 HcLg. 477. But if thev be going on in an expen-
sive way the parishioners may complain to the ordinary in order
to check them and to procure a removal of them from their
office. Gibs. 196; Prideaux, 151. But if a churchwarden
lay out the parish money, where he has no authority by his
office so to do, and where the consent of the parish or license of
the ordinary or both ought to be first had, the parish may re-
fuse to allow it in his accounts. Prideaux, ib.

Care of

charch
during va*
cancy.

Sequestra-
tioD of
church.

Caaei of.
Accounts.

232

CJ^ttrc^ioarDettfir.

Re-imbur-
sing of.

Acconnte. As soon as they have accounted and their account is allowed
by the minister and major part of the inhabitants present, it
shall not afterwards be in the power of any to make them ac-
count again unless some fraud in their accounts be afterwards
discovered. Gibs, 196; Wood's Inst. b. 1, c. 7, nor can the
spiritual court afterwards obUge them to account on oath.
Bunb, 2b9, The allowance of the account may be, and indeed
usually is, by its being signed by those present at the vestry held
for auditing their accounts. Barlow, 105; 1 Bum's J, P, 644. If
the custom of the parish is for a certain number of persons to have
the government thereof, and the account is given to them, the cus-
tom is good and the account given to such is a good account. Ibid,
If their receipts fall short of their disbursements the succeeding
churchwardens may pay them the balance and place it to their
account. 1 Roll. Ah. \2\ ; Fin. Abr. '' Churchwardens.^' But
in general preceding churchwardens cannot be re-imbursed by
a rate made wholly or partially for that purpose. 5 Ves. 547 ;
5 Mad. 64 ; IS East, &56 ; 2Lord Raym. 1009; Andrews, 1 1 \
Cas. temp. Hardw. 381.

If the churchwardens defer to make or collect a rate till
they are out of office, then are they deprived of all legal power
to do either. Stra. 35S; Prideaux, 106. No rate can be
made by churchwardens to re-imburse their predecessors.
5 Maddocks, 4; Andrews, 11. Their course is to raise money
by a rate after having well surveyed and computed the repairs,
or wliatever other legal purpose they have in contemplation ;
thus the burthen will fall on those on whom it ought, ws.,
the existing inhabitants, Prideavx, ib. ; 12 East, 558 ; 2 Ld.
Raym. 1012; 4 Hag. 82. In a case where twenty parish-
ioners signed an order in vestry to authorize the churchwardens
to new roof the church tower, and one of whom paid the workmen,
during the progress of the work ; a rate for re-imbursing their
payments being made the next year; was quashed as ille-
gal, and the churchwarden who made the payments recovered
from his fellow churchwarden a moiety of the sums paid, but
the parishioners, who had signed the order, were held to be not
responsible in their individual characters ; 1 Bingh* 201 ;
8 B. Moore, 20, sed vid. Finer' s Abr. " Churchwardens,'' C,
find 6 D. 8f R. 122 ; nor liable in an action for contribution by
the churchwarden giving the order, 2 Bing. 361 ; 9 B. Moore,
688 ; 3 Bing. 478 ; Nor can either the court of chancery, nor
the spiritual court compel a church-rate to re«-imburse them.
5 Fesey, 547 ; 5 Maddock, 4 ; 2 Fern. 262.
Proofofdif- The oath of the churchwardens is generally held suffi-
bunements, (jjent with regard to all items in their accounts under forty
shillings, unless they are suspected to be unfair; but the
payment of larger sums should be verified by receipts and

€ffwttfiBhttietta. 233

vouchers, and if required, witnesses should also be produced. Accounts.
Prid. 93, "

If they refuse to account upon going out of their office, they
may be presented at the next visitation by the new churchwar-
dens; or any of the parish that are interested, may by process,
call them to account before the ordinary ; or the succeeding
churchwardens may have an action against them for the church
goods, or for any damage done to the parish contrary to their
tmst. Prid. 136; 1 RoU.Jb.l2l; 1 Feni. 189; 1 Sid. 281.
But the spiritual court can only compel the churchwar-
dens to deliver in their accounts, and cannot decide on the pro-
priety of the charges ; and therefore if they take any step after
the accounts are delivered a prohibition will be granted.
8 T. R. 8.

If vexatious proceedings be adopted towards a churchwarden
respecting his accounts, the court will give him his costs. Lewis
V. James f 1 LeSt 6\2.

So also churchwardens may be cited before the ordinary, to
give a further account of the church goods, although their ac-
counts have been allowed in vestry, and they may be compelled
to make good deficiencies out of their own pockets. Godb.
279; Prid. 94; 2 Roll. Rep. 71. But justices of the peace
have no jurisdiction over churchwardens in respect of church
accounts. 1 Keb. 574.

Churchwardens tie faclo, may maintain an action against a De facto
former churchwarden for money received to the use of the may main-
parish, though the validity of the election of the plaintiffs to ^'^ action.
the office may be doubtful, and though they be not the imme-
diate successors of the defendant. 2 H. Bl. 559.

The same principle holds good in the case of church-
wardens elected for a township, where there was a separate rate
made. 2B.^ C.2H\ \ vid, also James and Stanley v. Keeling ^
3 Hag. 483; Rex v. WAitchurh, 7 B. Sf C. 573, and vid. Nev.
^ AT. 668.

As soon as a churchwarden ceases to inhabit the parish, his May be
place must be supplied. 1 Hag. Con. 383. Churchwardens dismissed.
guilty of wasting the goods of the church may be discharged
by the parishioners, and others chosen before the time for
which they were elected expires. Com. Dig. Eglise, F. 2.
Whether that time be one year or two. Prid. 70. Which
power seems to have been insisted on in a late case. Dawe v.
tVUBams, 2Addams, 133 ; 13 Rep. 70 ; Lamb. Off. Ch. s. 3.

The usual mode of removal is by complaint to the ordinary.
Ptid.l\.

They may also be proceeded against in the ecclesiastical Orpro«
court, for neglect of duty, 1 Sid. 281, or by indictment if they ceeded
take money corrupti colore officii, lb. 307 ; but they cannot be *g**'^*'

234 Cbntttfixaartimi.

Pow«nof. gued by their succesaors for any thing done honeatlyy ratione
officii. GodoL Abr. ^9.

Although the parish stands in different counties, yet the au-
thority of the churchwardens is the same in every part of it, as
if it had all stood in the same county ; for being officers in ec-
clesiastical affairs they are only bound to notice toe ecclesiastical
divisions of the kingdom ; although it is different with regard to
constables and civfl officers who are to look to the civU divi-
sions only. Prideaux, 131 ; vid. also 2B. §^C.27l; 3 Hag.
413; Shaw P. L. 86. And though separately chosen by dis-
tinct tithingSy each represents the whole parish. 6 Nev. ^ M.
668; 5Ad.^ElL4S8.
loproprie- Their duties and powers include private and proprietary
ury cha- chapels; thus where alms were collected at the communion of a
^ *' proprietary chapel, as offertory money, were held to be at the

disposal of the rector and churchwardens of the parish and not
of the minister or proprietors of the chapel. Moysey v. HU"
coatf 2 Hag. 56.
Underacts With regard to the choice of churchwardens under the acts
^^^" d^'°^ for building and endowing churches, diffisrent provisions apply
Tng ^° ^^' ^ ^^^ different classes of churches and chapels; viz. those built
churches, under the provisions of the 58 Geo. 3, c. 4*5, and 59 Geo* 3, c.
134; and those under the provisions of the 1 ^ S H^. 4, c. 38.

58 G. 3, With regard to the first it was originally provided by 58 Geo. 3,
C.4S. ' c. 45, c. 73, that churchwardens should be appointed, one by

the incumbent and the other by the inhabitant householders
entitled to vote in the election of churchwardens residing in the
district, to which the church or chapel belongs; and if an extra*
parochial place, then by persons who would have been entitled

59 G. 3 ^^ yote^ if it had been a parish; but the 59 Geo» 3, c. 134, by
c. 134. ' «• 30, enacts, ** that in every district, parish, or division of any

parish or district, chapelry, or consolidated chapelry, in
which any church or chapel shall be built^ acquired, or ap-
propriated under the provisions of this act or the said recited
act," (the 58 Geo, 3, c. 45,) in which there shall not be a dis-
tinct vestry belonging to such district or division; a select vestry,
consisting of so many persons as shall be directed by the com-
missioners in that behalf, shall be appointed by the said com-
missioners, with the advice of the, bishop of the diocese, out of
the substantial inhabitants of the district, or division, or db-
trict chapelry, or consolidated chapelry, for the care and manage-
ment of the concerns of the church or chapel, and all matters
and things relating thereto; and such select vestry shall annually
elect and appoint the churchwarden or chapelwarden to be
named on the part of the parish or chapelry, and shall elect new
members of the vestry as vacancies may arise.

By 58 Geo. 3, c. 45, *. 74, it is, however, provided, that the

€fimtbtoittimi^ 235

churchwardens of every parish in which any additional chapel Acu for
shall be built under the provisions of that act, without being ^^^l^
made a separate division, or a separate or dbtinct parish, the dowinv
churchwardens are empowered and required to do all things as charches.
the churchwardens appobited utider the 73d section are em-
powered to do.

With regard to churches and chapels built under the pro- 1&2W.4,
visions of the 1 * 2 W^. 4, c. 38, it is provided by s. 16: That <^-38-
two fit persons shall be appointed as churchwardens for every
church or chapel built or appropriated under the provisions of
that act, and shall be chosen, one by the incumbent for the
time being, and the other by the renters of pews ; and their
duties are specified as follows :

To collect pew-rents, out of which to make an annual re-
servation for repairs.
To pay salaries of clerk, beadles, and other expenses incident
to the performance of divine service, and to pay the residue
to the minister in part of his stipend.
To do all things necessary concerning the repairs, manage-
ment, good order, and decency of behaviour in the con-
gregation ; they are to continue in office till others are
chosen in their stead, and be also empowered to bring
actions for recovery of pew-rents, in the names of the
** churchwardens of the church or chapel of
This last act contains a power by s. 23, to separate an CbapeUof
existing chapel of ease from a parish, with a district attached f^^^^!
to it, and to constitute it into a separate parish and independent ent pa-
parish church, f^^iite ante, SOO. And in such case it is provided fishes.
by ^. 25, that two fit persons, out of the inhabitants of
the new parish so constituted, being members of t/te esta-
blished church, shall be chosen at the usual time to act
as churchwardens, one by the minister, one by the persons
** exercising the powers of vestry in the said new parish." Vide
ante ; such churchwardens to do all things pertaining to the
office of churchwardens as to ecclesiastical matters, in like
manner as though the same had been of old time a separate
and distinct parish ; these ^churchwardens are therefore in-
vested with common law, power, and authority, and no more.

236

CJutejbparti*

XHE freehold of the churchyard is in the minister, whether
he be rector or vicar. Cro, Jac. 307 ; Hoh* 69 ; 1 Cutt. £60.
And as the parishioners have the use of the body of the church
to hear divine service in, so they have the churchyard for the
burial of their dead, and consequently they are chargeable with
the repairs of both. 2 Inst. 635; 3 PhUL 841. But the
parson has no right to remove a tombstone in the churchyard
the property of which remains in the person who erected it.
3 Bins. 139. Although the freehold of the churchyard is in
the mmister, and therefore the feed and trees growing in it,
yet the general care of the repairing and amending when ne*
cessary belongs to the churchwardens, in the same manner
that the care of the fabric of the church devolves upon them ;
and they are the sole judges of what is needful to be done
therein, as being invested with the authority of the ordinary
for that purpose; however it is advisable that they do not
enter on any great or chargeable repairs without taking the
advice of the parishioners, who are to bear the charges of
them. Pridleaux, 41 ; 1 Vent. 367. But it is of public im-
portance that these duties should be carefully regarded. 1
Hw* Con. 20.

With regard to the trees in a churchyard, Lord Hardmcke
said, '' a rector may cut timber down for the repairs of the
*' parsonage or chancel, but not for any common purpose, and
\* this he may do by 35 Ed. 1,'* md.post " Dilapidations:' If
it is the custom of the county he may cut underwood, but if he
grubs it up, it is waste. He may cut timber for repairing pews
that belong to the rectory, and he is also entitled to botes
for repairing the buildings of the parsonage. 2 Atk. 207.
Repairaof. The parishioners are to repair the fence of the churchyard
at their own charge. Lind. 253 ; 2 Inst. 489. The court will
grant a faculty to alter the churchyard, by laying flat and
upright head and foot stones, if it be for the convenience of the
parish^ Sharpe v. Hansard and another, 3 Has. 335. And
if the churchyard be not decently enclosed, the church (which
is God 8 house,) cannot, and therefore this the parishioners
ought to do by custom, known and approved: and the conusance
thereof belongeth to the ecclesiastical court. 2 Inst. 489.
Nevertheless, if the owners of lands adjoining to the church-

Cf)tird[)parll« 237

yard have used, time out of mind to repair so much of the fence Church-
as adjoins their ground, such custom is a good custom, and ^^

the churchwardens may have an action for the same. 2 Roll. Repain of.
Abr. 287 ; Gibs. 194. Ante 230.

By Can. 85, the churchwardens or questmen are to take
care that the churchyards be well and sufficiently repaired,
fenced, and maintained with walls, rails, or pales, as have been
in each place accustomed, at their charges, unto whom by law
the same appertaineth. 1 Curt. 860. Nevertheless, if the
churchwardens sue a person in the court christian, suggesting
by their libel that he and all they whose estate, he hath
in certain land next adjoining to the churchyard, have used
time oat of mind to repair all the fences of the churchvard,
which are next adjoining to the said land, a prohibition wul lie,
for this ought to be tried at the common law, being a prescrip-
tion to charge a temporal inheritance. 2 RolL Abr. S87;
] Curt.2&\.

If in the same church there be both rector and vicar, it may Trees in.
be doubted to which of them the trees or grass of the church-
yard belong. But it seems they shall belong to the rector,
unless in the endowment of the vicarage it shall be otherwise
assigned. Lindw. 267, Lord C. J. RoUe seems to think that
they belong to him who is bound to repair; which opinion
agrees well with what is said in the stat. 36 Ed. 1, s. S, namely,
that the parson shall not cut them down but when the chancel
wants reparation. 2 Roll. Ab. 337 ; Gibs. 207, 208.

By 35 Ed. IfS. 2f entitled, " Statutum ne rector prosternat
arbores in casmeteno^ recites, Because we do understand that
controversies do oftimes grow between parsons of churches and
their parishioners touching trees growing in the churchyard,
both of them pretending that they do belong unto themselves,
we have thought it good rather to decide this controversy by
writing than by statute. (Lord Coke calls this law a treatise
only declaratory of the common law.) Forasmuch as a church-
yard that is dedicated is the soil of a church, and whatsoever is
planted belongeth to the soil, it must needs follow that those
trees which be growing in the churchyard are to be reckoned
amongst the goods of the church, the which laymen have no
authority to dispose. And yet, seeing those trees shall be often
planted to defend the force of the wind from hurting the church,
we do prohibit the parsons of the church that they do not pre-
same to fell thera down unadvisedly, but when the chancel of
the church doth want necessary reparation^ neither shall thev
be converted to any other use, except the bodv of the church
doth need like repair, in which the parsons of their charity shall
do well to relieve the parishioners with bestowing upon them

238

€bw:tbl^vti*

Church-
yard.

Nuiaaiice.

Fairs in.
Door into.

Church
way.

the same trees, which we will not command to be done, but we
will commend it when it is done.

Committing a nuisance in a churchyard is an ecclesiastical
offence, and pulling down a tombstone and erecting another is
a nuisance. . Burton and another v. Callcot, cited 3 Phill, 90 ;
Maidman ▼• Malpas, ib.

By 13 Ed. \f s* 2, c. 6, it is enacted that no fairs nor markets
shall be held in churchyards.

No one can make a private door into the churchyard without
consent of the minister, whose freehold it is, and a faculty
also from the bishop. 1 Bum*s E. L. ; Cade v. NetDtAam^
3 PhilL 90. Boundary of churchyard, involving a question
of freehold, cannot be decided in the spiritual court. /&.
Str. 1013; ib. 1026, Lord Raym. 212.

The right to a church way may be claimed and maintained in
the spiritual court; for a way leading to the church termi-
nating at the churchyard, is not a highway, because it does not
belong to all the subjects of the realm, but to the inhabitants of
a particular house, hamlet, village, or parish, each of which may
maintain an action at law for a nuisance therein ; but if it were a
public way the private would be merged in the public injury,
and then the remedy would be by indictment. Bac. Abr.
*^ Highway f** A. ^ March. 46; 2 RoU. Abr. 2S7. An indictment
for stopping a church way, alleging it to be '^ via pedestris ad
ecclesiam de Whitby ^ was held good ; for it was taken to be a
footway common to all and not merely to the parishioners, and
that the church was only the terminus ad quem^ 1 Ventr. 208 ;
Styles, 108. Upon a suggestion that the way is a common
highway a prohibition will be granted to the spiritual court, and
if the suggestion is true the right is triable at common law only.
2 Roll. Ab. 287. So, also, if the churchwardens of a church
sue for a way to a church that they claim to belong to all the
parishioners by prescription, a prohibition shall be granted, for
this is temporal. lb. In Walter v. Montagu and Lamprell,
the court said, ** Individuals or the public may by prescription
" have a right of way, and parishioners have a right of way in
*' order to attend divine worship, vestries, and for going to the
'^church on other .fit occasions." 1 Curt. 260. But neither
the rector nor cfaurehwardens can make a new path without a
faculty. lb.; 3 Phill. 90* A churchyard, being consecrated
ground, is under the jurisdiction* of the ecclesiastical court,
whose duty it is to protect it against any unauthorised or illegal
invasion.

By the 89th section of the 590. 3, c. 134*, one of the acts for
the building additional churches,' it is enacted that the commis-
sioners, if they think fit^ may alter, repair, pull down, and rebuild,

or order or direct to be altered, repaired, pulled down, and ^^^^ ^
rebuilt ''the walk or fences of any existing churchyard or churcl.
burial ground of any parish or chapelry, or to fence off with v&rd may
walls or otherwise any additional or new burial ground to be ^ stopped

set out or provided for by virtue of this act; and also to stop up ^L

and discontinue, or alter, or vary, or order to be stoppled up,
discontinued, or altered, or varied, any entrance or gate leading
into any churchyard or burial ground, and the paths, footways,
and passages, into, through, and over the same as to them may
appear unnecessary, or as they shall think fit to alter and vary ;
provided the same be done with the consent of any two justices
of die peace of the county, city, &c and on notice being given
In the manner and form as prescribed by the 55 G, 3, c. 68.
Against such order, however, there seems to be no appeal.

Cttation vide 9roctfi»«

CUrjjp^

Privileges of.
Correction of.
Disabilities of.
Punishment for trading, &c.

Under the appellation clerks, in a large sense of the word^
were reckoned all ecclesiastics in what dignity soever they
were placed, provided they were chosen for the ministry of the
church. According to the Canon law, there were two descrip-
tion of Christians, laicks and clerks. Ayliffe Parer. 185 ; Bid-
leys View, 34.

Both the civil and Canon law have appointed certain ages
proper for the assumption of the several noly orders* By the
civil law, no one was to be ordained presbyter till he was thirty-
five years of age, though by a later Novel it was sufficient if he
was above thirty ; and no one by this law could be ordained
deacon or sub-oeacon under the age of twenty-five, nor a lec-
turer or reader under eighteen years of age. What were the
age prescribed by the ancient Canom, Nation shows in his
Deeretwn^ But, touching thb matter, we have a fresher
Canon in the ClementineM, which requires a sub-deacon to be
only eighteen years of age ; a deacon twenty, and a presbyter

240 Clergp*

Priyileges twenty-five years of age before ordination. To which time the

3: council of Trent has added somewhat, requiring a sub-deacon

to be twenty-two, a deacon to be twenty-three years of age ;
and as to a presbyter, this council adheres to the constitution of
Pope Clement aforesaid. And it is enough for them to have
arrived at these respective years, though they have not com-
pleted the same. Ayliffcy ibid.

The word ^'clergy," in its present ordinary acceptation, compre-
hends all persons in holy orders and in ecclesiasiical offices ; vts.,
archbishops, bishops, deans and chapters, archdeacons, rural
deans, parsons (either rectors or vicars), and curates ; to which
may be added parish clerks, who formerly were, and yet some-
times are, in holy orders. Co. Litt. 96 a ; ^ Inst. 1^1-^58.

By the Papal Canon law, the clergy enjoyed the privilege,
that neither in causes civil or ecclesiastical they be convened
before any other than an ecclesiastical judge ; and the same was
conceded to them by the favour of weak princes as Theodo-
sius, Justinian, and Frederick the First. But such privilege,
though strongly contended for under Becket, was never finly
conceded or obtained in this country, though the clergy had great
privileges under our early Norman kings. Ayliffe Parer. 186.
This privilege was, however, boldly insisted on in the provin-
cial synod, held at Merton in 1^8, by Archbishop Boniface ;
and at another held at Lambeth in 1%1. In 1164, the claims
of the clergy were restrained by the constitutions of Clarendon;
by Ed. 1, Stat. Westm. 1275 ; S Inst. 162, and by the statute of
Mortmain, in 1279. Spelm. Condi. 2 vol. 387-340; 25 Ed. 8,
c. 4 & 5; 4 /7. 4, c. 3; 2 Inst. 685; ib. 529. 5 Rep. Introd.

In high treason and some particular felonies, petit larceny,
and mere misdemeanors, the privilege seems never to have
been allowed at all ; and many acts of felony have at various
times been ousted of clergy by act of parliament.

In respect of personal exemptions, very little alteration has
taken place since the Reformation. Indeed, it seems to be a
provision of the common law rather than of ecclesiastical en-
croachment that a clergyman should not be bound to serve in
any temporal office, to the intent that ecclesiastical persons
might the better discharge their duty in celebration of divine
service, and not be entangled with temporal business.

So, although a man holdeth lands and tenements, by reason
whereof he ought to serve in a temporal office, yet if this man
be made an ecclesiastical person within holy orders, he ought
not to be elected to any such office ; and if he be, he may have
the king's writ for his discharge. 2 Inst. 3. And it matters
not that the office may be served by deputy, for a writ of pri-
vilege was granted to the vicar of Dartford to exempt him
from serving the office of expenditor to the commissioners of

CIrrflp. 24 1

sewers, though it was insisted that the ofRce Diight be executed ^'riviiegea
by deputy. -S/r. 1107. ""['

A clergyman is exempted from serving on a jury, 6 G. iy c. 50,
^ 2» and need not appear at a court-leet or view of i'rank>pledge ;
^Itut* 4. Formerly » if a layman was returned on ajury, and before
trial took orders, he was notwithstanding to appear, and be
sworn. 4 Leon. 190. So, by the staL 52 II, 3, c. 10, it is pro-
vided thatneitherarchbishops nor bishops, nor any religious men
nor women shall need to come to the tourns of sheriffs, except
their appearance be specially required tiiereat for some cause.
2 /i9#^. 4-120; DeggCy \23, Nor can ecclesiastical persons be
called upon to serve in war. 2 Insi, 3.

As to executions on their spiritual possessions, vid. '^ Se~

So, where a clergyman was made expenditor by commissioners
of sewers, he had his writ of privilege, for by the ancient law
of this realm Clerici non ponantur in ojficia; 1 Ventr. 105.
And it appears by Ridley^ that it was expressly provided by
the Ninth Collation, that clerks should not be compelled to un-
dergo personal functions and services of the commonwealth.
/ iew of Citil Law, 64. And Degge, 1 20, says, " The laws of
this realm have allowed the clergy in holy orders many
** great privileges ; first, in their persons, they are not com-
pellable to serve in any temporal office as sheriff, constable,
or overseer of the poor. Neither can they be pressed to
** serve in tlie wars ; neither may they be arrested in the church
** or churchyard when they are attendant on Divine wor-
" ship.*^ This privilege from arrest for the purposes of Di-
vine worship extends also, eundo et redeundo as well as marando,
\2 Rep, 100; Degge, 126; now made a misdemeanor in the
party arresting, if he knew that the clergyman was on his way to
perform Divine service. 9 G. 4, e. 31,^.23. But it does not apply
in criminal cases, except during the continuance of Divine service.
Cro. Jac. 321 ; 3 Bum's E. L. \97 ; 29 Car. 2, c. 7, s. 6. Nor
can be be chosen to any temporal office, as bailiff', constable,
or the like, even though his lands were charged with the tenure.
Deffge,l23.{a)

As a clergyman is entitled to certain privileges and immunities Correction
in respect of his clerical character and functions, so, on the °^'
other hand, persons in holy orders are subjected to many dis-
abilities ; and by the ecclesiastical law, liable to be punished
and corrected for loose, immoral, and profane conduct ; for ir-
religious language ; for irregularity in discharge of duty ;
or for preaching and maintaining doctrines contrary to the
articles of the creed which they profess. As to the different

«(

(a) For a minute enumeration of these privileges, vid, Godol, Abr,
193; Degge^ 123.

242

Clergy.

Correction
of.

DniDken-
ness.

Iramorality

Irregular
discharge
of duty.

canonical and ecclesiastical oflences, post " Deprivatumi' and
vid. Gibs. Cod. 183. For such things they may be called
to account by their ecclesiastical superior, by whom they
may, if the charges are proved against them, be punished by
admonition, suspension, degradation, or deprivation, as the case
may require. In the cases of fornication and adultery they
have been repeatedly punished by deprivation. 2 Hag, 664;
GodoL Ab. 807, 811; Ayliffe Purer. 47, 208; Cro. EUx.
789 ; 6 Rep. 18 b ; Hob. 293 ; BroumL 2 : In Rowland
V. JoneSf 2 Lee, 191, Rowland was prosecuted by articles on
the 75th Canon, which provides, that *' no ecclesiastical person
shall at any time, other than for their honest necessities, resort
to any taverns or ale-houses ; neither shall they board or lodge
in any such places. Furthermore, they shall not give them-
selves to any base or servile labour ; or to drinking or riot,
spending their time idly by day or night ; playing at dice, cards,
or tables, or any other unlawful games.*' Constant drunken-
ness was fully proved. He was suspended ab officio for twelve
months. 1 Nev. ^ P. 62.

In Dicks v. Huddersford, 1 Add. 298, a clergyman was sus^
pended ab officio et beneficio for two years, for drunkenness
and profaneness. And in Saunders v. Davies, ib. 299, there
was a like decree for suspension for three years for similar of-
fences, but of grosser and deeper character: in both these
latter decrees it was directed that at the end of each period
there should be a certificate from three clergymen in the vici-
nity, of good behaviour in the interim, prior to the suspension
itself being taken off or relaxed, (a)

In Faweeti v. Head, 2 Lee, 565 ; and in Watson v. Thorp,
1 PMU. 269, there were decrees for suspension ab officio et bene-
ficio, for three years in each case, for immoral conduct and prac-
tices. In Burgoffne v. Free^ 2 Hag. 662, the defendant was
punished by deprivation without previous monition or suspension,
and condemned in costs.

In Newbery v. Goodwin^ 1 Phill. 282, the articles charged
the defendant with irregularities in readfng the Holy Scriptures,
and for quarrelling, brawling, and chiding in the church. An
affirmative issue having been given by the defendant, admitting
the case as charged against him, be was suspended from the
ministration of his office for a fortnight; admonished to refrain
in future from offending again in the manner charged in the
articles, and condemned in costs.

(a) See the history of this branch of ecdesiastical jurildictioii, and
reasons fox a new form of proceeding, and the propositions for a new
form of proceeding in the general Report of the Commissioners to inquire
into the practice and jurisdiction of the ecclesiastical courts, 53-57.

CUrflp^ 243

In Coxr. Goodday, 2 Hag. Con. 138, the oiFence charged Corrcctiou

wa«, that the clergyman, without just cause, publicly, during Di- ^—

vine service, reproved a person in church. He was admonished, j-gcharecof
suspended for a fortnight, and condemned in costs. duty.

In Betmeii v. Boroirer, S Hag. S4, the court held, that to con-
stitule as against a clergyman criminal irregularity or neglect re-
quiring censure and correction^ there must be neglect without
just cause; but it lies on the defendant if the charges are
proved, to show just cause. If there be a doubt, the defendant
being charged criminally, is entitled to the benefit of it.

A clergyman may be punished by the ecclesiastical courts
for publisbing banns of marriage between persons not pa-
rishioners, nor resident in his parish, and for marrying such
persons ; the authority of those courts not being taken away
by the marriage acts, even in cases where the conduct of the
mimsCer may have been such as to render him liable to an indict-
ment and coiiviction of felony. Wynn v. Daviet and Wheeler^

1 C«r/. 69; 2 WUs. 79; W. Jones, 257; 6 Fes. 42L

So an incumbent, by the ecclesiastical Canon law, may be Non-re-
admonished for non-residence ; and if he refuse or neglect to "'^®°^**
TcMe after a monition to do so, he may be punished. 2 Lee,
566; poet, ''Residence"

In Bishop v. Stone, 1 Hag. Con. 424, ante 65, a clergyman was Unsound
punished by deprivation for preaching contrary to the articles of doctrine.
religion as by law established, and refusing to recant his errors.

The Stat, 35 Ed. 1, ne rector prostemat arbores in cteme-- Cutting
terio, does not prohibit the parson from lopping trees in the ^^i^^X
churchyard ; but prohibits him from cutting them dovm except yard.
for the repairs of the church. But if a parson is prosecuted
upon that statute, it must be at common law by indictment.

2 Lee, 376.

It seems that any person may promote a suit of this descrip- ^^y v^^^^n
tion, and exhibit articles against a clergyman for criminal neg- moL^^^
lect or irregularity, or for any ecclesiastical offences. 2 Lee,
515. But the court will admit the defendant, who, when charged Motives of
criminally, is entitled to evei-y latitude of defence, to show promoter.
that the charges made against him, proceeded from vindictive or
malicious motives; for such a course may not only tend to
shake the credit of the promoter's witnesses, but operate ma-
terially on the question of costs. S Hag. 56.

By the 27 G. 3, c. 44, s. 2, entitled an act to prevent frivo- JJ^f'^^yJ*'"!,"
lous and vexatious suits in ecclesiastical courts, it is enacted, 27 g! V ^
that no suit shall be commenced in any ecclesiastical court for c. 44.
fornication or incontinence, after the expiration of eight calen-
dar months from the time when such offence shall have been com-
mitted ; nor shall any such prosecution be carried on at any
time after parties offending shall have lawfully intermarried.

244

CItrffp*

Correction
oi;

Limitation
of suits.

Disabilities
of.

Not to en-
gage in
secular
pursuits.

May not
trade.

But where the proceedings against a clerk are in order to
proceed to deprivation, the time for commencing a suit is not
limited by the slat. 21 G. 3, c. 44, s. 2 ; for though that
statute applies to the clergy as well as to the laity, yet it only
does so, so far as the clergy and laity are on the same footing ;
that is, where the souFs health or reformation of manners is the
sole object of the suit, but that it was not intended to limit the
time of proceeding against a clerk, as such, for deprivation.
Such a suit is not frivolous or vexatious, or within the mischief
or object of the statute. Free v. Burgoyne^ 5 B. ^ A. 400 ;
8D. ^R. 179 ; 2 Add. 414; 1 Hag. 46.

By 41 G. 3, c. 73, they are declared to be incapable to be
elected members of the House of Commons.

By 5 ^ 6 >r. 4, c. 76, s. 28, it is enacted that " no person
being in huly orders, or being the regular minister of a dis-
senting congregation, shall be qualified or elected to be a coun-
cillor of any borough, or an alderman of any borough."

By the third Book of the Decretals, it was provided that
clerks and ptiier ecclesiastical men should not trouble them-
selves about civil matters contrary to their office and profession.
Ridley s View, 82 \ Ayliffe Parer. 186. Various statutes have
been passed at different times with a view to prevent trading,
and buying and selling. The 57 Geo. 3, c. 99, reciting the
statutes 2\ Hen. 8, c. 13; 28 Hen. 8, c. 13; 13 Eliz. c. 20;
14 Eliz. c. 1 1 ; 43 Eliz. c. 9 ; 3 Car. 1, c. 4 ; 43 Geo. 3, c. 84 ;
4-3 Geo. 3, c. 109 ; 112 Anne, stai. 2, c. 12; 36 Geo. 3, c. 83;
38 Geo. 3, e. 149, and that doubts have arisen upon the con-
struction of some of the provisions of these acts, and that it is
necessary that such provisions of the said acts should be
explained and other provisions made ; and that the several laws
relating to spiritual persons holding farms and to buying and
selling, &c., should be consolidated in one act ; Enacts that so
much of the several recited acts passed in the reign of Hen. 8,
and of Elizabeth and of Charles the First, as relates to spiritual
persons holding farms, and to leases of benefices and livings,
and to buying and selling, and all the said several recited acts
passed in the reign of Geo. 3, should be repealed. The 57 Geo. 3,
c. 99, together with the 2\ Hen. 8, c. 13, are now repealed
by 1 ^ 2 Vict. c. 106, which statute by s. ^8, enacts, " that it shall
not be lawful for any spiritual person holding any cathedral pre-
ferment or benefice or any curacy or lectureship, or who
shall be licensed or otherwise allowed to perform the duties
of any ecclesiastical ofiice whatever, to take to farm for occu-
pation by himself, by lease, grant, words, or otherwise, for
term, for life, or years, or at will, any lands exceeding eighty
acres in the whole, for the purpose of cultivating the same,
without permission in writing from the bishop of the diocesci

Citrffp* 245

fpecially given for that purpose under his hand :** every such l>wa^>l"«e»

permission to specify the number of years for which it is given ^J.

not exceeding seven. And every spiritual person taking and May not
occupying above eighty acres of land without permission, shall ^^^'^*^' ^^'
forfeit 40*. per acre for each year he occupies and cultivates
such land contrary to the above provision. By s, 29, no spiri-
tual person as above " shall by himself or by any other for him
or for his use, engage in, or carry on, any trade or dealing for
gain or profit, or deal in any goods, wares, or merchandize,
unless in any case in which such trading or dealing shall have
been or shall be carried on by or on behalf of any number of
partners exceeding the number of six, or in any case in which
any trade or dealing or any share in any trade or dealing shall
have devolved, or shall devolve on any spiritual person, or upon
any other person for him, or to his use, under or by virtue of
any devise, bequest, inheritance, settlement, marriage, bank-
ruptcy, or insolvency, but in none of the foregoing excepted
cases shall it be lawful for such spiritual person to act as a
director or managing partner, or to carry on such trade or
dealing, as aforesaid, in person." In Franklin v. Hall, 3 Mees.
^ W. 259, it was held upon the words of the 3rd sect, of the
repealed statute 57 Geo. 3, e. 99, that the trade of a banker
was within the meaning of the words '' any trade or dealhig for
profit or gain,'* and that a plea, that spiritual persons holding
benefices were partners in the banking company, (the plaintifTs
being indorsers of the bill) and tlie promise laid in the declara-
tion void in law as against the statute, held good. It was con-
tended that the intention of the legislature, was to forbid that
sort of trade only which consists of buying and selling, because
the penalty must be taken to be co-extensive with the offence,
and that there was no penalty except the forfeiture of the goods
bought. But the court said, '' that there was nothing incon-
" sistent or unusual in an act attaching a penalty of the for-
" feiture of the goods, where there are goods to be forfeited,
'' and where there are no goods to be forfeited simply avoiding
" the contract."
This decision led to the passing the 1 Vict. c. 10, for the

fmrpose of legalising contracts by companies, then actually
brmed, or in the course of formation, preliminary to the above
more general prospective enactment of the 1^2 Vict. c. 106,
s. 29 ; the former statute enacted, that no association or corpo-
ration consisting of more than six members or shareholders
already formed, or which may be formed, before the end of the
next session of parliament, (the session of 1838) nor any con-
tract within such time entered into between the partners of
such association for the purposes thereof, nor as between such
association and other persons shall be deemed and taken to be

246 CIrrgfp.

Di>abiiities illegal and void, or to occajsioti any forfeiture whatsoever by

fj reason of any spiritual person being or having been a member.

Trading. partner, shareholder, manager, or director of or otherwise
instructed in the same ; but all such associations, &c. shall
have the same validity, and all such contracts may be enforced,
as if no spiritual person had been a member, &c. of such asso-
ciation, &c. Post, 1 * 2 Vict. c. 106, S.3L

By s. 2, all defendants, having by plea, before the 6th of
February 1838, insisted on such defence, to be allowed their
costs.
Exceptions. Sec* 30, 1^2 Vict. c. 106, contains an exception in favour
of a spiritual person engaged in keeping a school, or engaged in
giving instruction or education for profit or reward ; or in cases
of articles bought bon&Jide to be consumed in his family though
selling what he may not want at an advanced price ; or selling
or disposing of books by means of a bookseller or publisher ;
or being manager, director, partner, or shareholder, in any
benefit or fire or life assurance society ; or buying or selling for
profit articles necessary for the occupation of his debe or
demesne lands, or other lands lawfully held or occupied by him
or selling the produce of mines on his own lands. Neverthe-
less, that no spiritual person shall buy or sell cattle, com, or
other articles in person, in any market, fair, or place of public
sale.
Punish- ^|)j by «. 31, it is enacted, that if any spiritual person shall

trading Ac ^^^® ^^ ^^ ^^ '^"y manner contrary to the provisions of the
act, it shall be lawful for the bishop of the diocese, where such
spiritual person ^* shall hold any cathedral preferment, bene-
fice, curacy, or lectureship, or snail be licensed, or otherwise
perform the duties of any ecclesiastical office whatever," to be
cited before a competent judge, who on proof ** in due course
of law of such trading," to suspend such person for his first
First offence not exceeding one year.

o ence. p^^ ^ second offence, for such time as to the judge shall

Second. n. ' J &

seem nt.

Thiixi. For a third offence, to be deprived " ei officio et beneficio,^

and the patron of his benefice or office, &c., to present or

Depriva- nominate to it as if such person so deprived were actually dead,

^^°* In case of deprivation the bishop is to give notice to the

patron, &c., of the benefice, &c., as is required in the case of a

benefice becoming void by being under sequestration one whole

year, and the benefice is to lapse in the same way as in such

case.

Sospen- III &1I cases of suspension, the bishop is to sequester the pro-

uon. fits of the benefice, &c., and by an order under his hand direct

the application of the profits, after deducting the necessary

expenses of providing for the duties of the benefice, as far as

Comtmtdiam.

247

circumstances will permity towards the same purposes, and in
the same order as is directed with respect to the profits of a
benefice sequestered in case of a non-compliance after monition Seque»-
vith an order requiring a spiritual person to reside on his trauon.
benefice ; save that no part of such profits shall be paid to the
spiritual person so suspended^ nor applied in satisfaction of a
sequestration at the suit of a creditor; '* Provided that no con- contracts
tract shall be deemed void by reason only of the same having not void.
been entered into by a spiritual person trading or dealing
either solely or jointly with any other person or persons con-
trary to the provisions of this act.'* But any such contract may
be enforced Dy or against such spiritual person, either solely or
jointly as if no spiritual person had been party to such contract.

Commentiam.

COMMEND AM is a benefice or ecclesiastical living, which Nature of.
being void is commended to the charge and care of some
sufficient clerk, to be supplied until it may be conveniently pro-
vided with a pastor. GodoL Ab, 230; Hob. 150.

An promotions, except donations, are void on the possessor
being consecrated a bishop ; Cro, Car, 4^ ; Vaugh. 20, 22 ;
11 Hen. 4,f 606 ; but this avoidance may be prevented by dis-
pensation of retainer, granted before possession of the bishop-
rick, which is called a commendam retinere. This the pope
had power to do as claiming a riffht to dispose of all promotions
becoming void ; and the same thing the King may do, either
singly and by himself, or at least by command to the arch-
bishop to exert the power of dispensation vested in him by the
25 Hen. 8, c» 21, as the ordinary method is, Cro. Eliz, 601 ;
this practice is as old as the time of Edward III. Bro. Present*
61. It was exercised by Henry 8, and Elizabeth; ques-
tioned indeed in the reign of Charles 2, but finally deter-
mined in favour of the crown in the reign of William 1. 2 BLR.
773 ; 4 Mod. 202 ; 3 Lev. 277 ; 1 Ld. Raym. 23 ; 1 Show.
113.

This sort of comme$idam is defined by Hobart^ Rep. 143,
to be a faculty of retention and continuation of the same bene-
fice in the same person and state wherein it was, notwithstand-
ing something intervening as a bishoprick or the like, that,
without such faculty, would have avoided it

248 Contfultattom

Nature of. No commendam can be granted without consent of the
patron ; therefore, in granting a commendam retinere, the king,
who is patron by the promotion, signifies his consent by his
mandate to the archbishop to grant dispensation. If the com^
mendam be recipere, it is either to take a promotion in the
bishop's own gift, and so his acceptance is a consent, or in the
gift of some other patron, in which case there must be a posi-
tive consent of the patron mentioned in the dispensation.
2 Burn's JS. Z. 4 ; 1 Roll, Rep. 452; Sir. 1006; Atk. 131.
Indeed if the archbishop commends to a church void, and the
patron does not consent, the commendam is void, though he
consent afterwards ; Hob. 190 ; and it cannot be made in any
general terms but to some certain church then void. Hob. 150.
For the history of commendams and their rise and progress,
see Ayliffes Parer. 191, and also Hob. 140; Vaughan, 18.
Nowabo- ^"^ "^w by 6 ^ 7 IV. 4, c. 77, s. 18, commendams are abo-
lished by lished, for by that section it is enacted, that *' after the
6&7 VV.4. passing of that act, no ecclesiastical dignity, office, or benefice,
shall be holden in commendam by any bishop unless he shall
hold the same at the passing thereof; and that every commen-
dam thereafter granted, whether to retain or to receive, and
whether temporary or perpetual, shall be absolutely void to all
intents and purposes.

Commistsarp vid. Cbamellor.

Cxinmtltattxin.

Nature of. CONSULTATION is a writ whereby a cause having been
formerly removed by prohibition out of the ecclesiastical court
or court christian to the king's court is returned thither again ;
for if the judges of the king's court, comparing the libel with
the suggestion of the party, find the suggestion false or not
proved, and therefore the cause wrongfully called from the
spiritual court; then upon this consultation or deliberation
they decree it to be returned again, whereupon the writ, in this
case obtained, is called a consultation. Tertnes de la L^y»
2* Ed. I.

But it seems that since the statute 1 W. 4, c. 21, the writ of
consultation is unnecessary; that statute by *. 1, enacting that
" it shall not be necessary to file a suggestion on any appHca-

Contumar^. 249

tion for a prohibition, but that the application may be made on ^^ ^°^E*^'
affidavits only ; and that in case a party is directed to declare \" ^4^
in prohibition, the party defendant may demur, or plead such c. 27.
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.
Before this statute, the plea in prohibition usually concluded
with a prayer of judgment, and that a writ of consultation be
granted ; and if the defendant had judgment, it was directed in
the judgment that the defendant should have the writ of con-
sultation directed to the judge of the inferior sought to be pro-
hibited ; all which, it seems, is now unnecessary ; so that a
writ of consultation has become obsolete." Vid " Prohibition.'*

CDtitumacp*

1 HE mode by which the ecclesiastical courts are now era-
powered by Stat. 53 G. 3, c. 137, to enforce their orders or
decrees, (as well final as interlocutory,) and to punish contempts
committed in the face of the court, is, by pronouncing a party
contumacious, and in contempt ; and upon signifying such con-
tempt into chancery, a writ issues, upon which the party may be
imprisoned ; in interlocutory proceedings if nothing is necessary
to be done by the party cited, or where an appearance only is re-
quired, the plaintiff or party citing, may proceed inposnam contU"
macia;, and the cause then goes on ex parte, as if the defendant or
party cited had appeared ; but where some interlocutory act is re-
quired to be done by the party cited, as to exhibit an inventory and
account ; to pay alimony or the like ; the compulsory process is
insisted on to compel performance of the act required. 1 Add, 120,
o04; Ayliffe Parer. 196, enters with great nicety into the different
species of contumacy, and distributes them into various divisions;
and Oughton, tit. 55, in noiis, gives the definition of contumacy,
and states what is legally intended by it ; the general definition,
however, by Ai/lijfe seems sufficient, viz. *^A wilful contempt
" and disobedience to any lawful summons or judicial order.
Parer. 197; Vid. post *' Process."

250

Conbotattom

The word oonYocation^ though in its general meaning it
comprehends anv meeting convened after an orderly manner,
yet in its particular meaning, it is limited to diocesan, provincial,
or national assemblies of the clergy. GodoL Abr. 584. (a)

Every bishop had power in this, as well as other christian
countries, to assemble his clergy in a common council or synod,
to discuss and determme on such matters as related to the
order and government of the churches, these were called
'^Diooesan Synods."

In like manner, the archbishop of each province, after the
kingdom was divided into provinces, called together his suf-
fragan bishops and other prelates, that is to say, abbots and
priors ; and inferior clergy.

When this country received legates from Rome, another,
and more general description of councils was introduced,
namely, of the bishops and prelates of the whole realm. These
were properly national church councils, which were wont to be
held for some special designs, which either the king or pope,
or both had to promote by them. The first calling together
of the inferior clergy, seems to have been by Edward I, to lay
before them his wants, and to ask for a supply of money.
Afterwards, jealous that their power mieht be made to depend
upon temporal authority, if they assembled upon the summons
of the crown, the clergy chose to consider tne king's writ^ no
more than a motive, and not an authority, for their convening,
and if the archbishop in his summons recited the king's writ
they protested against it, because that was laying the authority
on it, for they denied that the crown had any authority to
convene ecclesiastical synods. 2 Bum's E. L. 92; GodoL

AWTm cfO.

From henceforward, instead of making one state of the
knigdom, as the king designed they should, they composed two ec-
cleaastical synods, under the summons of each of the archbishops,
Mfid made canons, by which each respective province was bound
and gave aids and taxes to the kin^. For the archbishop of
Canterbury's clergy, and that of York, assembled each in their
own province ; and the king gratified the archbishops, by suf-
fering this new body of convocation to be formed in the nature of a
parliament. The archbishop sat as king ; his suffragans sat in

(fl) The 41st chapter of GodolpUtCs Abridgment contains a chronolo-
gical history of ** Councils, Synods and Convocations.*'

ContMOtiotk 251

the upper bouse, as his peers ; the deans, archdeacmis, and the History mnd
proctors for the chapters, represented the burghers ; and the ^^*'*
two proctors for the clergy, the knights of the shire ; and so
this body instead of being one of the estates, as the long de-
igned, became an ecclesiastical pi^liament, to make laws, and
to tax the poaseaaions of the church* Oili, Exch. c. 44.

But althongh they thus sat as a parliament, and made laws
for the churchy yet they did not make a part of the parliament
properly so called, hometimes indeed the lords, and some-
times the coniinons, were wont to send to the eouTocation for
some of their body to give them advice in spiritual matters ;
bat still this was only by way of advice ; for the parliament
have always insisted, that their laws, by Aeir own natural
force^ bind the clergy, as the laws, of all christian princes did
in the first ages of the church. GUb. Exch. 60; Bum's E. L.
^ ; Vid. ante " Canam Law.''

Thus, the case stood, when the aei of tubmission^ S5 Hen. 8,
c* 19, was made ; by which it is enacted as followeth : ** the
clergy of this realm of England have not only acknowledged,
that the convocation of the same clergv is, always hath been,
and ought to be assembled only by the king^s writ ; but also sub-
mitiing themselves to the king's majesty, have promised in verbo
factrdotii, that they will never from henceforth presume to
attempt, allege, daim, or put in use, enact, promulge, or
execute any new canons, constitutions, ordinances, provincial
or other, or by whatsoever name they shall be called in the
convocation, unless the king's most royal assent and licence may
to them be had, to make, promulge, and execute the same, and
that his majesty do give his most royal assent and authority in
that behalf;" siU this Act, ante, '' Canon Law."* Burnett
Hist, own Times, 1 Vol. S5, Sd 384; Godol. Abr. 99;
iWrf.586.

It was resolved upon this statute, 1st. That a convocation
<ttnot assemble without the assent of the king. 2nd. That
after their assembly, they cannot confer to constitute any
caaons vrithout a licence of the king. 3rd. When they upon
^^nference conclude any canons, yet they cannot execute any
of their canons, without the royal assent. 4th. That they can-
^^ execute any after the royal assent, but with these four
Citations; that they be not against the prerogative of the
^ng; nor against the common law; nor against any statute
law ; nor against any custom of the realm. All which appeareth
by the said statute : And this, {Coke says,) was but an affirm-*
ance of what was before the said statute ; for it was held before,
that if a canon be against the law of the land, the bishop ought
to obey the commandment of the king, according to the law of
the land. 5 Rep. Inir.; \2 Rep. 72,ante *' Canon LawT Godol.
4br. 686.

252 Conbocattom

History aod By this act, the clergy being restrained from making canons
powers of. ^^ constitutions in their convocations without the king's licence,
the power as to this particular, which was before lodged in the
hands of the metropolitan, is now put into the hands of the
king, who, having by authority of his writ, commanded the
archbishops to summon them for state purposes, (as the tenor
of his writ shews), has it now in his own breast whether he will
let them act as a church svnod or no. Archbishop Wake's
state of the Church ; 2 Burn's E. L. 24. In 1701, the con-
vocation proceeded to censure a book of one Toland, but
on the opinion of Sir Edward Northey^ afterwards attorney
general, they stopped ; he thought the condemning books was a
thing of great consequence, since the doctrine of the church
might be altered by condemning explanations of one sort, and al«
lowing those of another, and since the convocation had no
licence from the king, they would by meddling in that matter,
incur the penalties of the above statute ; so all further debate
on this subject was let fall by the bishops. Burnett Hist* own
TimeSf 3 yoL 314; 4 Gibs. Cod. 427, and md. this point more
fully considered in Whiston^s case, Burnett^ 4 FoL 267.

If any member of the convocation who is a proctor, dies, the
archbishop issued his mandate to the bishop of that diocese to
elect another; and this, by virtue of the power inherent in him,
to summon his suffragan bishops; who, being to obey him in
all things, lawful and honest, and the clergy their bishop in the
like manner, they, by that command make an election to supply
the place of one of their proctors. Gilb. Exch. 58, 59.

In the province of Canterbury there are only two proctors
returned for each diocese ; in those dioceses where there are
several archdeaconries, two are nominated by the clergy of each
archdeaconry; and out of these, two are chosen to serve
as proctors for the whole diocese; but in the province of York,
two proctors are sent to convocation for each archdeaconry,
otherwise the numbers would be so small, as scarce to deserve the
name of a provincial synod. By this means it comes to pass,
that the parochial clergy have as great an interest in convocation
there, as the cathedral clergy ; whereas in the province of
Canterbury, the lower house of convocation consisteth of
twenty-two deans, (taking in Westminster and Windsor),
twenty-fourproctors of the chapters, and fifty-three archdeacons,
in the whole ninety-nine of the cathedral clergy ; and there are
but at the same time forty-four proctors for the parochial clergy.
Johns. 150; Wake, 3*.

Anciently, the lower clergy sat in the same house with the
two bishops ; and in the province of York, the bishops and
other clergy do sit in the same house still. Johns. 149.

But in the province of Canterbury, (as hath been said), they
consist of two houses, the upper house, where the archbishop

Confaocattoit. 253

and bishops sit ; and the lower house where the rest do sit. HiMoryaiia
4 Iiut. 3^^. >^""^^^ "^'

And as there are two houses of convocation, so there are two
prolocutors, one for the bishops of the higher house, chosen by
that house ; another of the lower house, and presented to the
bishops, for their prolocutor. 4 Inst. 323,

Lord CoJke says, a convocation may make constitutions, by
vhich those of the spiritualty shall be bound, for this, that they
all, either by representation or in person, are present ; but
not the temporalty. 12 Rep. 73 ; ante '* Canon Law.*'

In 1663, the convocation gave four subsidies, the last aid that
the spiritualities gave ; it was resolved, hereafter, to tax church
benefices as temporal estates were taxed. So convocations
being no more necessary to the crown, were made of less
regard afterwards, and when they met again it was only for
form. 1 Burnett, 218.

Id the year 1664, by a private agreement between Sheldon
archbishop and the lord chancellor Clarendon, and other the
king s ministers, it was concluded, that the clergy should silently
waive the privilege of taxing their own body, and permit them-
selves to be included in the money bills prepared by the com-
mons. This made convocations unnecessary to the crown, and
inconsiderable in themselves. Burn's E* L. ^82; 2 Warner ^
611,612.

From that time the convocation hath never passed any syno-
dicalact; during the remainder of Charles the Second s reign,
when the oflSce of prolocutor was vacant, by death or promotion,
so many of the lower house came together, as were thought
sufficient to choose a new one, and those members that were
about the town commonly met, during parliament, once a-week,
bad prayers read, and were formally continued till the parlia-
ment was dissolved, and the convocation together with it. In
James the Second's time, the writs issued, as of course, but
the members did not meet. In the year 1689, after the acces-
sion of William and Mary, a convocation was not only called
but began to sit in due form ; but their resolutions came to
nothing. From thence, till the year 1700, they were only called,
but did not meet ; but in that year and e%'er since, at the meet-
ing of the parliament, the convocation of the clergy hath like-
wise been solemnly opened, and the lower clergy have been
permitted to form themselves into a house, and to choose their
prolocutor ; nor have they been finally dismissed, so soon as
that solemnity was over, but continued from time to time, till
the parliament hath broke up or been dissolved. And now it
seems to be agreed, that they are of right to be assembled con-
currently with parliaments, and may act and proceed as pro-
vincial councils, when his majesty in his royal wisdom shall ad-
judge it expedient. Johns. 141, 2, 3.

854 Conbocatton.

Hiftorf and Qf the convocation in 1689, which was summoned with a
V^^^^^' view to bring the dissenters and presbyterians into comprehen-
sion with the church, Bishop Burnett states, that by a special
commission under the great seal, ten bishops and twenty
divines were empowered to meet and prepare such alterations
in the book of Common Prayer and Canons, as might be fit to lay
before convocation ; this was necessary, since by ^5 Hen. 8 they
bound themselves not to atttempt any new Canons without first
obtaining the king's leave. But seeing that the convocation,
notwithstrading the king sent them a message, by the Earl of
Nottingham, assuring them of his constant favour and protec-
tion, were in no humour to enter on business, they were kept
from doing mischief, by prorogations for the course often years.
This was in reality a favour to them, for since the year 166^, the
convocation had continued to sit, but to do no business, so that
they were kept at no small charge in town to do nothing, but
onW to meet and read a Latin litany. Hist, own Times, 1 VoL 36.
In 1701, a dispute arose in the convocation, whether the arch-
bishop had the power of adjourning them, which BumeH states
as follows :— '' The constant method of adjournments had been
** thus : the archbishop signed a schedule by which the upper
*^ house was immediately adjourned; and that being sent down to
the prolocutor he did also adjourn the lower house. The clergy
perceiving that by this means the archbishop could adjourn
them at pleasure, and either hinder or break offtheir debates,
resolved to begin at disputing this power, and they brought a
*' paper to the upper house, in which diey asserted their right
*' of adjourning themselves, and cited some precedents for it ;
** to this the bishop drew a copious answer, in which all pre-
** cedents were examined and answered, and the matter was so
clearly stated, and so fully proved that we hoped we had put
an end to the dispute. The lower house sat for some time
** about the reply to this ; but instead of going on with that,
^* they desire a free conference, and began to affect in all their
'^ proceedings to follow the method of the house of commons ;
** the bishops resolved not to comply with this, which was
** wholly new; they had, upon some occasions, called up the
*' lower house to a conference, in order to tlie explaining some
** things to them, but the clergy had never taken upon them to
'' desire a conference with the bishops before; so they resolved
*^ not to admit of it, and told them tney expected an answer to
^* the paper they had sent them ; the lower house resolved not to
'< comply with this ; but, on the contrary, to take no more notice
of the archbishop's adjournment. They did, indeed, observe
the rule of adjourning themselves to the day which the arch-
bishop had appointed in the schedule, but they did it as their
own act, and they adjourned themselves to intermediate days."
HUt. oum Times, 3 Vol. Slit, and vid. S48, 383, 384.

€€
i€
it

€€
it
€t

CoBborattom 2&5

In 1707, according to Burnett^ the convocation asserted that Hbtorymd
the proroguing them during the session of parliament, was against powers of.
all precedent, and that for one hundred and seventy-three years
no prorogatian had ever been ordered during the session of par-
liament ; but the chancellor and Holt, C. J., upon perusal of the
records, affirmed to the queen that their assertion was false, and
that there were many precedents for such prorogations. HUL
own Times, 4 Vol. 152.

In 17 12, the convocation then sitting seems to have determined
that their prorogation by a royal writ, did not as in the oase of
parUanaent put an end to all matters not finished, but notwith-
standing the prorogation all things continued in the same state, as
they had been left and that the force of the queen's license,
continued notwithstanding the prorogation. Burnett, 4 VtU. 802.

Co)e;t)S.

In discretion of court.
In matrimonial suits.
Divorce.

Restitution of conjugal rights.
Nullity of marriage.

Wife's costs taxed de die en diem.
Suits for pertnrbadon of seats.
For subtraction of rates.
Against clergymen.
For brawling.
For incest.
Interest causes.
Defiunation.

Applications for faculties.
Testamentary causes.

Costs out of the estate.
Executors, personally liable.
Administration, applications for.
Next of kin.
Legatees.
Criminal cases.
Appeals.
Costs separable.
Tasation of.
How enforeed*
Security for.

Far^ suing in formd pauperis.
Giving or refusing costs, an appealable grievance.

Of costs or expenses, Ayliffe says, '' Touching expenses of

256 touts*

Cortfc ** suit, It IS to be observed that these expenses are due on various
** accounts, and for several reasons. For sometimes they are due
** on the account of the gaining a victory in the cause ; sometimes
*' on the score of contumacy, and sometimes on account of some
*' delay in the proceedings ; and again, they are due on account
** of a rash or temerarious citation." Parer. 273.

Oughton in hU notes to tit, 134, divides the right to costs
into four grounds.

1. Dismissal of suit; 2. Contumacy; 3. Delaying the pro-
gress of the suit ; 4. General costs.

1. With regard to the first ground, he says, ''a defendant is
** entitled to costs when a plaintiiF's suit is dismissed, either be-
cause he had no cause of action, or that he had neglected to
prosecute it ;" and vid. 3 PhilL 2650.

2. So a plaintiif is entitled to the costs to which he has been
put, in excommunicating and imprisoning a defendant for his
contumacy in keeping out of the way, and avoiding giving an
appearance to the suit.

3. Again, a party is entitled to his costs when his opponent
by sham and pretended pleadings and allegations, has obtained
a *^ term probatory," and then failing in his proof has wiliiilly
delayed the proceedings ; but the costs o{**Retardati processus'
are not limited to the instance put by Oughton. ViiL 2 Lee^
240, 415 ; 1 Hag. Con, 20 ; Ibid, 506.

4. General costs of the suit, which the unsuccessful party is
condemned to pay to the party who has succeeded in the suit
by a definitive sentence.

Such costs are not merely those which have arisen and are
apparent by the proceedings in court ; but also for the travel-
ling expenses of witnesses and all other necessary charges.

If, however, the unsuccessful party had a just cause of action
or defence, he is not to be condemned in costs. Nay, the suc-
cessful party himself, may, under peculiar circumstances, him-
self be condemned in costs. In Oughton, tit. 208, on the
costs in matrimonial suits, some instances are given, and rfW.
3 Hag. 283.
Ib the dis. It has always been held in the ecclesiastical courts that costs
crctwn ot ni^ {„ jjjg discretion of the court ; not a capricious discretion,
^ ^""^ ' - but founded on a just consideration of all the circumstances of
the case, and adhering to general rules and former precedents ;
those courts, considering that it is their duty, as far as they
can attain those objects, to protect parties in the fair assertion
of their just and legal rights, and to check vexatious litigation.
BurneU v. Jenkins, 2 PhiU. 460 ; Goodall and Gray v. Whit-
more and Fenn, 2 Hag. 374; vid. also 1 Hag. Con. 197. 505;
3 PhiU. 92 ; 1 Ha^, 210, 7^8 ; 3 Hag. 283 ; 2 Add. 309.

Thus in a suit of office, where, however, there was nothing
criminal in the suit, and the suit was defended, for the purpose

COSfte. 257

of trying an important right to which the party defending the indiscre.
suit could hardly be expected to submit without a trial ; though ^i^n of

according to the principles of the court some costs must be given, ^211!li

mere nominal costs were awarded. Barton v. Wells ^ 1 Uag^
Con. 84,

Frequently also in the exercise of its discretion it mitigates
the costs. 1 Hag* 42. Or suggests arrangements with re-
gard to them. 1 Hag. Con. 197; 1 PhilL 232 j 2 Hag. 426 ;
i Hag. 299 ; or gives a fixed sum ** nomine ea^pensarum.' Nomine «-

The discretionary power of the court is exercised over pro- '**"**"'""■•
ceedings, on petition as well as in other cases. Thomas t.
Maud, 1 AfU. f89, 352.

The expression, that costs are in the discretion of the courts
though true as a general principle, must not be understood to
mean that the court may give or withhold costs as it pleases,
but that costs are in the legal discretion of the court adhering
to established rules and precedents. 2 Hag. 375.

In the case of Gates v. Chambers^ 2 Add. 193, in which the
admissibility of a responsive allegation was debated, Sir J.
Nichoil, said " Upon tne whole this allegation appears to be
" strictly admissible. It gives the transaction a character quite
" different to that to be collected from the articles of charge.
" It may at any rate protect the defendant from costs. It may
" also amount to a complete defence, in point of law, not only
" excusing the defendant from costs, but subjecting the pro-
" moter to payment of the whole costs.*'

The shewing, in a criminal case, that the promoter has pro-
ceeded from vhidictive or malicious motives, may bear materially
on the question of costs. 3 Hag. 19.

It seems also that the mode in which a case is conducted with MoJe of
regard to the parties engaged in the suit may have an influence c»)n<l«ciing
on the decision of the court in awarding costs, thus in Constable ^ ^^^*
and Bailjff v. Tufnell and others, 4 Hag. 508, the court said,
" with respect to costs, they have been pressed on account of
** the persevering attacks made on Mr. Bailey and his family ;
" and it is with some reluctance that I feel called on toffive costs ;
" but, if parties will receive information that has no foundation
" in truth, from individuals of bad character, and will act upon
" such information in the conduct of a cause, they must be re*
" sponsible for the consequences. I think it by no means im-
'' probable that Mr. T. (one of the executors of a former will,
a party in the suit,) has been imposed upon by misrepresenta-
tions, but that is no justification of the opposition to this
" will, nor of the groundless charges (which they ought to
** haye known were groundless,) upon which that opposition
" was founded. I am therefore bound, in justice to the other

258 COfiltS.

** parties, to condemn the executors in the former will in the
" costs of this suit." Fid. also 4 Hag. 328, 345, 375.
Matrimo- ^^ matrimonial suits a wife has a right to have her costs
niai roitii. taxed at all times, and the reason is, because there are no other
means of obtaining justice, since the marriage gives all the pro-
perty to the husband. The rule, however, is not universal,
and the exception is where the reason fails, that is, where the
wife has separate property of her own ; for then marriage does
not give all the property to the husband. Beever v. ieever,
3 Phill 262 ; WiUon v. WiUon, 2 Hag. Con. 204 ; 1 Lee,
649; 2 Add. 285; 1 Hag. 787; Oughton, tit. 206, 207, 208.

In the case of Wilson v. Wilson^ 2 Hag. Con. 204, the court
(Lord Stowelli) thus laid down the principle in a case where the
respective incomes of the husband and wife were nearly equals
*' That where a wife has an income correspondent to ner own
'' expenses, and the necessary expenses of the suit,ybr both must
*' appear ; there is no longer any reason that she should be a
*' privileged suitor. It may turn out that on the result of the
*' proceedings, she is still entitled to costs, but by a variety of
'' cases it has been decided that where there is an independent
'' income competent to the support of the wife, and the main-
'* tenance of the suit, the privilege is no longer considered to
" continue."

But unless the separate income of the wife is sufficient, the
husband will still have to pay the costs. 2 Hag. Sup. 133.

It matters not in these cases who is the complainant, the wife
against the husband, or the husband against the wife.
Restitutitn In a suit for the restitution of conjugal rights, where the hus-
uf conjugal band denied the validity of the marriage and sentence was given
"^*"*' against him, he was condemned in costs. 3 PAill. 58.
Nullity of In a case of nullity of marriage by the woman on account of
marriage, jji^ insertion of a false name in the banns, 2 Phill. 257; in a case
of a marriage procured by fraud and circumvention, 1 Hag. 355;
and in a case of an incestuous marriage, in which the proceedings
were prosecuted criminally by the churchwardens, and also
ex parte, the man having refused to appear on the citation,
costs were given. 2 FhiU. 359. Where, however, the woman
brought a suit to set aside her own incestuous marriage costs were
refused, both parties being in pari delicto. 1 PhiU. 201*
De die in It is the duty of a proctor, as well for the security of himself

diem, as of his client, to have the costs of a feme covert taxed de die

in diem.

Thus where a cause for separation by reason of cruelty and
adultery by a wife against her husband, was taken by appeal to
the delegates, an application was made by the wife's proctor for
costs, to be taxed in the courts below, it was objected that the

wife having neglected to procure taxation de die in diem in llie ^^-^^n^^o-
ot^arts below, it could not now be enforced in the court of appeal "'** *"!-!-
and the court rejected the prayer. Westmeath v. JVestmeath, ^' <''«»»
2Ifag.Sitp.}33;lB.^Ad.80l;*Cafnp.70; 5B.^Ad.^58. ^l!!:!:

So also in a case where the wife, in a suit for separation for adul-
tery, died, whereby the suit abated, the court refused to make an
order for payment of the wife*8 costs, they not having been taxed
de fHe in diem^ the court saying, '' The object of the law in per-
'" mitting a de die in diem taxation was to obviate any inconve-
'* nience that might otherwise arise in the progress of the cause
'' from the wife*s want of funds to meet costs ; here the proctor
'^ forbore taxation, the court cannot assist him, he may perhaps
'* have a remedy at common law, and if it is wished the court
*' w3 direct his costs to be taxed in order to ascertain their
" amount.- Ckeal v. Cheat, 1 Hag. 379.

Where a party having asserted a right and failed to establish Suiti for
it, the expence must fall on him and not on the party who was i^rturba.
<ii5;turbed tn his possession and compelled to resort to the pro- **®° ©'**»*•
tection of the law. 1 Philt. 333. Wnere both parties, however,
appear to be in error, the court is not usually disposed to make
an order in respect of costs in favour of either party. 2 Add.
'kH>. Or where a party has not acted vexatiously it will mitigate
the costs. 1 Hag. 42. In exercising their power in the dis-
tribution of seats, as ofBcers of the ordinary, churchwardens
are entitled to protection if they act fairly ; but if unfairly, they
are peculiarly responsible to the court, and where they appealed
against a condemnation in costs in the inferior court; the court of
arches, holding that the judge below had decided rightly, dis-
missed the appeal with costs. 3 Hag. 477.

In cases of subtraction of church rate prosecuted by church- Subtrac-
wardens, it is almost an universal rule to give them their costs, ^'^^'^^^'
nnless they have acted improperly, 2 Hag. 369 ; or there is
strong ground to justify the defendant in his resistance*

2 PUa. S87.

Where proceedings were promoted against a clergyman for Suits
irregularities in the discharge of his duty, and an affirmative *p>°s'
issue was given, whereupon the court suspended him for a fort- ^ ^''tfvnien.
night, costs were given against him. 1 Phill. 286. But where
in a similar case a negative issue was given, and the promoter
failed to prove his charges, costs were given to the clergyman.

3 Hag. 24, ante, 243.

As a general principle, where an offence has been committed, Suiu for
the expense of correcting it is to be borne by the offender ; but *«wiing^
it does not follow that full costs are to be given in all cases ;
they may be mitigated according to the discretion of the court.
Palmer ▼ Tijou, 2 Add. 203, 309; 1 Add. 104; 3 Hag. 174.

178, 179.

260

Cos(t0*

Incest.

Interest
causes.

Defama-
tion.

Faculties,

application

for.

T«»«tainen-
tary causes.

Costs out of
the eiitate
generally.

Executors
personally
liable.

In a case of incest promoted by churchwardens, in which the
defendant refused to appear, and which was consequently pro-
secuted ex parte f the cnurchwardens had their costs* 2 PhiU,
359 ; 1 Hag. Con. 393.

Where the person whose interest has been denied succeeds
in establishing it, his costs follow almost as a matter of course,
without some special grounds of exception. Northey v Coci^
2 Add. 298 ; and vid. 1 Lee, 12 ; 2 Add. 352.

Where the defamatory words are proved, it is usual to give
costs to the complainant ; 1 Hag. Con. 460 ; 2 PkilL 106 ;
2 Hag. 1 ; but where the libel was rejected, by reason that the
words charged, though improper to be used, had not that clear
and precise meaning necessary to make them the subject of a
criminal charge, no costs were given to the defendant. 1 Hag.
Con. 469.

Where, though the majority of a parish desired to have a
faculty to erect a callery, there was a difference of opinion
on the question, the court, desirous to produce quiet in the
parish, granted the faculty, but without costs. I Hag. Con.
197 ; 1 PhiU. 2S2.

An expectation that costs will be paid out of the estate some-
times induces expenses which might well be avoided, and it is
certainly not an application to be resorted to and granted as a
matter of course. 4 Hag. 375. Indeed it is only in modern
times that the court has felt itself authorised to make such an
order at all. 3 PhilL 334.

The general principle which guides the court in the case of
parties propounding papers, or seeking for administration to
allow them their costs out of the estate is, that the party was led
into the contest by the state in which the papers of the deceased
were left. 1 Hag. 75 ; 1 PhiU. 338 ; 4f Hag. 380. For, though
there may be a *^jusla causa Utigandi/' it does not necessaniy
follow that a party is entitled to his costs out of the estate.
2 Hag. 23^. But where there is no ''just cause of litigation*
he will certainly be condemned in costs. 3 PhiU. 22.

It seems to be the general rule, that where a party propounds
a paper " loco executoris' and establishes it, he is entitled to his
costs. 3 Hag. 283. Whether he be executor or only legatee
acting loco executoris. 1 Hag. 610 ; 2 PhiU. 323.

Where an executor had, in the instance of a person of fluc-
tuating capacity, obtained a will prepared by his own agency,
and got it attested by his son, a minor, ^am Jby another who
never saw it till the signature was affixed, and will take upon
himself in suit to prove it and fail, he does it at the peril
of costs, and was condemned to pay them. 1 Hag. 624;
1 Add. 219. So, where an executor swore to a will and took
probate, who must have known there was a later will, 2 Lee, 536 ;

1 Hioff. 556. The executor of a former will has a right to T«tamen-
call on the executor of a later will to propound his will in ^^y ^^^^^
solemn form and has also the ri^ht to interrogate the witnesses; Kxecutore
If he goes farther and pleads what he cannot prove, he will bc» /|^^"*"^
subjected to costs. 8 PhilL 22.

Where an administration had been decreed for a limited pur-
pose, as to substantiate proceedings in chancery, the next or kin
naTing been cited, and due inquiries made for a will which was
produced sometime after by the executors, and the administra-
tion called in'; upon motion it was directed to be re-delivered,
and the executors, who mi^t have had a caterorum probate,
condemned in costs. 2 Mag. 62. Where an executor pro-
potuuls a supposed second will, which is opposed by the exe-
cutors of an admitted genuine previous will, and fails under the
suspicion of forgery, or fraud, or influence, he will be condemned
in the general costs. I Add. 2\9\ 2 Hag. 84, 141, 209, 211 ;
4 Hagr. 345 ; 1 Curt. \25. So it seems upon the general prin<
ciple, if the executor of a codicil makes an experiment for his
own advantage, and sets op a codicil under very extraor-
dinary circumstances, he must not be allowed to do so at the
expense of the other parties interested ; and will therefore be
condemned in costs, though no fraudulent conduct is imputed
to him by the court 1 Curt. 33 ; 4 Hag. 290, 328.

Where also an administration with a will annexed was obtained Appliv a-
after a cateat entered against it had expired, but without notice to I^'JnfJra.^*^'
the adverse party, and whilst the will was in suit in Ireland, the tioo,
forum domicilii; it was revoked as surreptitiously obtained, and
the party condemned in the costs of a petition in support of it.
3 Hag. 243.

Where a bond creditor to a large amount petitioned to be
joined or substituted in letters of administration decreed to a
«mple contract creditor, who was the deceased*s confidential
solicitor, and who had entered into articles with sureties to pay
the debts rateably, and who was approved as such representa-
tive by the executors, who had renounced, and also by the
bond creditor; the petition was rejected with costs. 4f Hag. 398^

Where executors do any act towards the executorship, they Executors
cannot afterwards renounce, and they may be compelled to take renouocing.
probate ; and, having so far intermeddled, if they resist taking it
their resistance subjects them to costs personally, 3 Hag. 776.
So where an executor refuses to produce an inventory which
he is bound in duty to exhibit, it is the practice of the court to
condemn him in costs for his refusal. 1 Phill. 241.

Where a will was made in articulo mortis, the next of kin are Next of kin,
justified in bringing the case before the court, and are therefore
in such a case entitled to their costs out of the estate, though
the will may be established ; 1 Hag. 235 ; for they have the

2&2 Cl}0^

TeMamen- most uildoubted right to 866 that the rights accruing to them
ury cauaea. y^ |^^ ^^ ^^^ defeated but upon sufficient grounds ; 3 AeU. 58 ;
Next of km. and it seeniB to be the ordinary privilege of a next of kin to
call for proof per testes^ and not to be subjected to costs, unless
he proceed to give in an allegation ; 1 Hag* S40 ; S Lee^ 9Z ;
but if next of kin call in probate under circumstances manifestly
vexatious, they would be liable for full costs, it being necessary,
for the sake of example, to deter parties from frivolous opposi-
tion, lb. ; f6. 137 ; 3 Hag. 790 ; 2 Lee, 216. So where tbey
called in probate, being conusant of a former suit in which the
validity of the same will had been contested by other parties,
they were condemned in costs* 2 PkilL 224. In die case of
Evans v. Knight Sf Moore, 1 Add. 254, Sir J. NichoU made the
following observations: — ''Where every just presumption and
** reasonable probability was in favour of the will, as it bad been
" acted upon for many years, and where the parties opposing it
** had every opportunity of satisfying themselves on nie justice
*' of the case before commencing the suit, I think there were no
** sufficient grounds for calling in probate, and that their con-
'* duct in so doing was unjustifiable ; and, as these parties hav«
** chosen to stand upon their extreme legal rights in calling at
so late a period for the proof of this will«—a will made in exact
conformity as well with the deceased^s declared intentions aa
'' with his natural affections and moral duties — I think that they
** (the next of kin) are liable at least to all the costs incurrc^d
** from the time of giving in their allegation. My only doubt
** has been, whether in justice they were not liable to the
** whole costs from the time of calling in probate." And vid.
2 Add. 152, 249. In some cases the court adopts a middle
course. In Hoby v. Hoby, 2 Hag. 162, a next of kin being
justified, from the unfinished state of the testamentary papers
propounded, in putting the executor to proof, he was not called
on to pay costs; but having setup insanity and fiiiled to prove it
was refused his costs out of the estate.

In GrindaU v. Grindall, 4 Hag. 27, which was an appli-
cation by two nephews sole next of kin to the testator to set
aside a will on the grounds of fraud, perjury, and hifluence on
the part of the general legatee. Sir J. NichoU said, that ** with
^' regard to one nephew (Charles) no doubt could exist that
*' he ought to be condemned in costs, occasioned by his long
^* allegation charging incapacity and fraud, and in support of
^' which he has examined forty-three witnesses. The other
'' nephew (John) has thought proper to proceed by a separate
^' proctor, not, as far as I can judge, from suspecting that
'* Charles was acting in collusion with Captain S., the legatee ;
" but he has in great measure adopted the acts of Charles. He
" has even examined witnesses on Charles's allegation. He has

ft
If

€4
U
it
tt

9i
U

CO0t0. 263

gone further. He has added to the expense by exhibiting Teftumen-
** separmte interrogatories to all the witnesses examined on his ^^^^^

brofiher's exceptive allegation. He has also offered additional Neitofkia.

allegations, an allegation before and after publication. He

*' has also persisted to the very last, to the hearuig of the

inae ; anid by putting his papers into the hands of counsel

** {daoed them in the desperate condition of attempting to set

op no other point than that of fraud and perjury again t

daptain S. It would not be justice, therefore, to allow these
** parties, after occasioning this immense expense, to escape
'' without costs. Both brothers had a right to cross-examine

the testamentary witnesses, but for the expense occasioned

aabaequently, each must be condemned in the costs which he

baa reapectively occasioned."

Where next or kin are cited to see proceedings, it seems that Cited to see
they are entitled to costs out of the estate, i Hag. 244. proceed-

Id Fulbeck ▼. AUan9on^ 3 Hag. 547, an unsuccessful attempt *"^*
waa made to set aside a will and codicil on the ground of mono-
flHMJa, in which however it did not appear but that the attempt
waa ooade fairly and bond Jide^ but the proceedings were of
great bulk. The sole next of kin, the promoter of the suit,
asked for costs out of the estate. The executor did not oppose
the application. Sir J. NichoU said, " I am extremely disin-
** dined to allow the costs out of the estate ; but, considering
** the great extent of the property, I shall direct costs on both
" sides out of the estate to form part of the decree. It is under
'^ the Tery particular circumstances in this case that I grant
** them, but I am almost deterred from so doing by the great
** bulk of evidence introduced into this cause."

It is the rule of the court of probate that where a legatee Legatees.
prt^MHinds a paper and establishes it, thereby fulfilling the duty
of die executor and acts loco executoris, he is entitled to have
his expenses paid out of the estate of the deceased. Sutton v.
Drax, 2 PhiU. S23; 1 Hag. 610; S Hag. 280. But a mere
legatee under a former will, acting for bis own sole benefit, not
being executor under it, nor trustee for the benefit of others, is
not so favourably regarded as a next of kin. He may certainly
call for proof per testes of a will by which his interests under a
former will are prejudiced; but, if he interrogates the witnesses
at length (especially if upon suggestions wholly negatived in
their answers, and with nothing in the transaction to justify
sudi a procedure) the court is fully disposed to act upon the
principle that he is liable at least to re-imburse his opponents
for the expenses to which they have been put, through his
means, in proof of the latter will. 3 Add. 60, But where a
legatee brings a suit for a legacy which the executor admits,
but pleads plene administravit, and exhibits an inventory and

204

€o$sibg*

Tent a n en-

Legatees.

Codicils.

Criminal
cases.

account, and the legatee proceeds no further, the executor is
entitled to be dismissed, but the legatee was not ordered to pay
costs. 1 Lee, 537. Legatees are not barred by their having
acted or received legacies under a will. They have still a right
to call for proof per testes, if they suspect a will not to be
genuine ; but here their right stops, and they are clearly liable
to costs occasioned by their pleading an instrument to be a
fabrication and forgery on slight and unjustifiable grouiids.
2 Add. 101.

The rule as to a legatee having his costs out of the estate on
establishing a codicil is not so general as in the case of a will.
S Hag. 283.

In proceedings of a criminal nature the rule seems to be,
that, if neither the charge nor violent suspicion of Che
charge be proved, the party accused shall be dismissed with
costs, vnd cvm suis exjyensis ; but, if public fame or vehement
presumptions are proved, such as may fairly be considered as a
sufficient cause for the interference of the promoter from a sense
of moral duty, then the defendant may be condemned ineosts.
Clark e*s Praxis, tit. 321, 322; Oughton, tit. 146; GriffUhs
V. Reed and others, 1 Hag. 210; but where a charge made
with considerable acrimony was dismissed for want of proofj the
court condemned the promoters in costs. 3 Hag. 56.

With regard to parish officers and others, whose duty it ie to
be on the alert to support public decency and to put themselves
forward to act upon the law, thev are always entitled to the
protection of the court if they act fairly and candidly. 8 Hag. 4SS ;
1 Hag. 208; 2 Hag. 376; 1 Hag. Can. 196, 398J; 2 AM. 203,
309 ; and if there be reasonable ground for their interference
the court will give them their costs. Sed vid. 1 Hag. C(t?#t. 20,
24 ; 3 Hag. 56. In the cases of subtraction of church rate it has
been stated to be a rule almost universal to give churchwardens
their costs if they have acted fairly. 2 Hag. SCO; 2 PAitl. 887.
Where clergymen are proceeded against criminally for immo-
rality or neglect of duty, it seems to be the rule to sentence them
in costs, if the case be made out against them. Anie, 243.
Od appeal. Where the appeal is from a definitive sentence, costs generally
form part of the sentence, which the court may either confirm,
over-rule, or vary, on the general principle, that in the ecclesi-
astical courts costs are a matter of discretion. GrindtM v.
Grindall, 4 Hag. 9.

The common law courts have no power hy I Sffi W.4t, t. 21,
to allow to the successful party in prohibition his costs in the
ecclesiastical court. 5B.^ yl^. 458; andvid. 1 Sir. 154; I B»
^ Ad.. 1 54. Or, as it seems, can the court below allow such costs.

Where a party makes good part of the charges only, but fails
in the remainder, he will not be allowed the costs of those

Parish of-
ficer!.

Probibi-
tioo.

COJfto. 2fi5

char^ges which have failed in proof. Thus in the case of West- nfvKibie^
me<tih v. Westmeaih^ 2 Hag. 132, the court having pronounced ^
sentence that Lady W. had proved her first allegation of cruelty
but not the charge of adultery, condemned Lord W. in the costs
of both courts* except those occasioned by the charges of adul-
tery ; and in the case of Bardin v. Calcot, 1 Hag. Con. 20 ;
and €i(L 2 Phitt. 125* which was a case of office promoted by a
churchwarden for erecting tombs in a parish church without
due permission or authority, Lord Stowell said, *'I do not
" ao^de to the proposition, or think that it is just that, if ninety-
** nine charges are made, and some few or one only proved, the
** party is to be charged with the expenses of the whole pro-
'' needing. Upon the same principle a next of kin or legatee
'' ander a former will has a right to see a will prejudicing his
** interests proved per testes^ and has a right to interrogate the
" wknesses ; but if he unnecessarily puts tne parties to expenses
" to support the will, he will be condemned in the costs of
" such further proceedings." 3 Add. 60; 2 Lee, 32.

The mode of taxation is for the proctor of the party entitled Taxttion.
to costs to bring in his bill, which is referred to the deputy
registrar, who b attended by the proctors on both sides, and
after examination of the bill, item by item, he allows, or disallows,
or modifies the charges, reports the amount to the judge in open
court, and the proctor makes oath that the sum reported has
been necessarily expended by and on behalf of his party. If
either party objects to the report, he prays to be heard on his
petition in objection to the report. If no objection is made, the
judge then taxes the bill at the amount reported, and then
whether the party is liable to costs at all, and to what amount
forms a portion of the suit between the parties. Peddle v. Evans ^
1 Hag. 686; Rep. Ecol. Cam. 19.

When costs have been taxed between party and party, the How en-
payment is enforced by contuuiacyy stgnificacit, and attachment. ^'^^^
Vid. '' Process.''

The course is for the party to obtain a monition from the
court for the payment of the costs. If the costs are not paid
according to the monition, the party will be pronounced in con-
tempt, which being signified to the court of chancery, an attach-
ment issues as a matter of course.

Obedience to a monition for payment of costs must be by
their actual payment, and the compelling it is less a matter of
discretion than it is a matter of right demandable ex debiio
jmsiHia:. I Add. 349.

In taxing costs, the expense of the monition is always added,
and, if the monition is not obeyed in the first instance, the fur-
ther expense seems to fall by a just and necessary consequence

266 CiatSL

How en* upon the party whose refusal or nealect has made it requisite.
'"^ l^idd. 361. .

In a case where the form of the significaviiwas defective^ and
the party attached lor non-payment of ^osts let out of custody*
The court granted a fresh monition, saying, *' The costs heing
*' due and unpaid, the court is bound to enforce payment. T*fae
** court b not functus officio till it has enforced execution of
" its decree, nay, even after the payment of costs, the party
*' attached must have come here for his writ of deliverance.*'
Austen v. Dugger, 1 Add. 310.
Secarityfor. By the 18th rule of the orders of court of Hit. T. 1830, it is
ordered, that *' in all cases, the court may, upon apfdication made
** to it, direct security for costs to be given by either or allof the
" parties.'* It seems that this order applies priDcipally to testa-
mentary causes, but still may be introduced into causes of
another description." Turton y* Turtan, 3 Hag. 846. But
where in a suit for separation for the adultery of the husband,
an application was made to the court to direct him to give se-
curity for costs and alimony, upon a suggestion that he was
about to return to India immediately, the court declined to make
the order ; at all events, unless the application were supported
by affidavit. /6., and vid. Z PIML 204.

Where the court, as a matter of necessity, appointed a
fluardian to a minor, ad litem, it did so only on condition of
his giving a security for costs. 3 Hag. 279.
No distinct But the question of costs is to be decided upon the case, as
i^^^'i^ ^' ^^ appears from the facts proved and pleaded ; and therefore
^^^ ^ it seems that it is not allowable to raise a distinct issue for the
purpose of costs when the case is concluded. In Chapmcm ▼.
Guy, 2 Lee, 32, a daughter put the widow and executrix to
the proof of the will per testes, and administered inter*
rogatories, but did not oppose a sentence being given for
the wilL Sentence having been given, it was moved, on the
part of the executrix, for liberty to read affidavits to show that
the daughter was acting maid fide in opposing the will.
But the court. Sir G. Lee, said, '* the daughter had done
'* nothing more than she was entitled to do so as next of kin ;
*' that this attempt was entirely new ; that the executrix might
have pleaded the circumstance on which the charge of mda
^ fides was founded, but as she had neglected that opportunity
*' she could not now plead after sentence, or exhibit the affida-
" vits; for that would be grafting a new cause upon the suit, and
" would make suits endless : that the ground for giving costs must
" be taken from what appeared in the cause itself, and must not
'' arise from matter subsequent." So in Meek and another r.
Curteis, 1 Hag. XSl, where a bill was opposed by a brother next

CO«t& 267

of kin, who afterwarck deekired he would pToceed no furtber ; on .^<> dirtbct
which a motion was made for costs against the next of kin, on jo^^^.*

tiie grounds pleaded in the fourth article of the allegation pro- '- —

pounding the will ; that the next of kin had endeavoured to
snborn a witness to swear that the testator was of unsound
mind when he executed the will : but no evidence having been

E'ven of it, the court refused to give coats against the next of
n; saying, however, that if the plea had been established by
proof, the party would have been liable to costs. Application
was then made to be heard by act on petition, with affidavits on
this question of costs; but Sir J. NicAoUf after observing
that such A mode was very unsatisfactory, rejected the appli*
cation.

Where a party does not appear, and the proceedings against Party oot
him are consequently tn pcenam^ costs may be given against him ^PP^*""^'^
in a civil, as weU as in a criminal suit. In Blackmore and Thorpe
v. Brkkr, 2 Phill. 859, which was a proceeding on the part of
the churchwardens against the defendant for incest, the whole
of the proceedings were in pcenam. The parties were ad<*
jodaed to the usual p^uince, and condemned to pay the costs
of uie suit. In Foster v. Foster^ 1 Add. 469, which was a
cause for proving a will in solemn form of law by the widow a
legatee, it appeared that the eldest son had torn the will, but
most of the fragments having been collected, the writer of the will
supplied from recollection what could not be found, and made co*
pies of the whole ; and the copies so made were established as
the last will of the deceased. The eldest son made no appear*
ance, and all the proceedings as against him were in pcenam.
The other children, seven in number, were before the court,
consenting that the papers propounded should be pronounced
for. Costs having been prayed against the eldest son. Sir J.
Nicholl said, he felt some difficulty about condemning this party
in costs ; that there could be but one opinion of the gross im-
propriety of his conduct, but he had given no appearance, and
the proceedings against him were merely in paenam: Mand I
" observe no mention either of costs, eo nomine at least ; or of
*' the act of spoliation in the decree ' to see proceedings/ I
'' am not aware of an instance of a party being condemned in
" costs under such circumstances. Blakmore and Thorpe v.
'* Brider^ was a criminal suit'* Afterwards, on a subsequent day,
the learned judge said, ** I think the court is justified in giving
** costs. The * decree* intimated that in the case of his not ap-
** pearing, the court would proceeed through the intermediate
** steps to the final sentence in the cause ' according to law and
** justice ; ' and it does sufficiently appertain to both of these,
'' in my judgment, to condemn in costs of the suit the person
** ^hose gross misconduct has principally occasioned it." Vid. 1
Add. 4«0.

368 CO«tt^

Firtyioing Questions have occasionally arisen in the ecclesiastical courts

itkjonnd "^ - -

pauperis.

"•' as to their power to condemn a pauper in costs. In the case

u
it
€€

of Tilewood v. Cousins and others, 1 Add, 286, the court. Sir
J. Nichottf made the following observations : — ** In the superior
courts, at least of common law, paupers so admitted under
2 Hen. 7, c. 12, are excused from paying costs when plainttfis
by 23 Hen. 8, c. 15; at the same time they are liable under
that statute to suffer whipping or other punishment at the
'* discretion of the judges ; and it is said that paupers, if non-
** suited, had their election to be whipped or pay their costs.
** But I am not aware that this court either is, or indeed ever
was authorized, to order a suitor before it fit formA pauperis
to be punished by whipping, or otherwise, under any circutn-^
'* stances of misconduct. And supposing this court to be at
** liberty, notwithstanding the statute of Hen. 8, to condemn a
** pauper in costs and put him in contempt, &c. for non-payment,
*' I should still be unwilling to do so in the absence of a prece-
** dent." The learned judge finally condemned the party in costs
up to the time of admission as a pauper. In a case not long sub-
sequent, he said, '' I think lam bound, as a check upon mture
** attempts of a similar nature, to accompany this sentence with
** 8 decree for costs though the suitor is in formd pauperis^
" reserving the pauper's liability for costs for consideration if
^ the other party apply for a monition for payment. 1 Add.
** S99. In a subsequent case there was a decree for costs
'* against a pauper, suspending taxation whilst she continued a
^ pauper.- 2 Hag. 524; 4 Hag. 10, 398.
The giving An appeal may lie for giving costs or refusing them ; at the same
or reiiiiiDg time appeals for costs alone are to be discouraged, especially
^^J^j when they are of trifling amount and evidently vexatious ; and
maybe it it seems to be the result of the cases on this subject, both
ground of in the ecclesiastical courts and in courts of equity, that the
*PP*^- question is mixed up with and must be determined by the whole
circumstances, but that such appeals are much to be discouraged.
8 Hag. 481 ; 1 Ves. Sen. 250; I JBro. C. C. 141. In Cooperv.
SeoUt 1 Bro. C. C. 141, 1 Eden 17, the question was, whether
there should be a rehearing for costs only. Lord Keeper
Henley said, " A rehearing for costs only ought not to be en-
'' couraged, because they are merely discretionary, and depend
^ on circumstances ; but thought there might, on particular cir-
cumstances, be such rehearing." 1 Atk. 12 ; 2 Ves. Jun. 3\8.
' Neither can there be as a general rule a reviver for costs alone,
though there may be exceptions to that rule, vid. as to the ex-
ceptions. 1 Bro. C. C. 458, note by Eden; 10 Pes. 572, 2
Merh. lis. In the ecclesiastical courts costs are generally
mixed up with some question of merits, some act decreed to be
done or correction inflicted. In Lloyd and Clarke v. PooUt
3 Hag. 479. Sir J. NichoU said, " Though there are dicta

€tatS. 269

" both ways, and perhaps difTerent rules in different jurisdio Tbe Ming
'' tions, it is rather to be collected that in the ecclesiastical ^^^"""*
'' courts at least such matters are not MrboUv unappealable, and I wroocly
" can by no means go the length of bolding, that under no maybe a
" circumstances can there be an appeal either from giving or ^J^/^
** withholding costs. The costs of the suit are in some cases '

" the only means of enforcing tbe act to be done, or of correct-
** ing the oiFence ; as for instance, the suspension ab hgressu
" ecclesUe would be no correction of a person who had violated
" the sanctity of the place, and disturbed the service/*

How far an attorney may include in his bill, a proctor's* Ofattor-
charges, employed with the consent of the client, vide I Ad* Sr ^^7*
EIL 582.

The separation of the ecclesiastical from the temporal juris*
diction was effected by an ordinance of William the Conqueror,
which is set out, Spebn. v. 2^ p. 14 ; 2 Bum's JS* L. 33. Pre«*
viously to that era the bishop and earl or alderman (and in his History of.
absence the sheriff) sat together in the county court ; as the
lord of the hundred, and tbe ecclesiastical judge of that district
sattogetherin the hundred court. GodoL Ab,^. The ecclesias-
tical divisions during the Saxon period corresponded with the
civil, bishopricks being usually co-extensive with the district
kingdoms, archdeaconries with counties, and deaneries with
tithings. Kin. EccL Syn.; Burn's E. L, 32.

The spiritual court being thus divided from the temporal,
different principles began to prevail in it ; but it was not till
after the discovery of the Pandects at Amalfi in 1 137, and the
introduction of the celebrated Decretum Grotiani in 1151,
which latter professed to be a digest of the whole pontifical Coivofi
law, that the separate establishment of ecclesiastical judicature
gained much strencrth. Tbe publication of the Deeretum, the
grand code of ecclesiastical law, gave order, consistence, and
stability to spiritual government ; the influence of the hierarchy
and the jurisdiction of their courts assisted each other ; the
courts extended the limits of their authority with the aid of the

(a) Tt seems that the ecclesiastical courts are not to be considered as
inferior courts. 4 Ad. ^ EU. 446.

270 Courts i0ttln(ias(titaL

Hirtory of. bishops, and Uie bishops rose in their pretensions with the
sanction of the court. At a very early period a jurisdietion
over marriages and wills was assumed by the ecclesiastical
courts, the former naturally brought with it questions of legi-
timacy and bastardy, and the latter the cognizance of legacies
and the disposal of intestates' eflects; so eariy as the reign of
Hen. 2f i* 7, all pleas upon testaments were properly cognizable
before the ecclesiastical judge. 2 Burns E. L. 31.

During the reign of Hen» 3, several synods were holden,
some by the archbishops, and some by the pope*s legate. The
canons and constitutions made in these assemblies, form still
a part of what may be considered the national Canon law ; from
that time down to the year 144'5, a series of Synods were held
in the province of Canterbury, for the purpose of arranging
and consolidating a system of ecclesiastical polity ; hardly any
thinK however during the same period was done in the province
of York, but in the year 1462, it was decreed by a convocation
of that province, that the effect of the constitutions of the pro-
vince ot Canterbury, which were not repugnant or prejudicial
to those of York, should be admitted there, but not otherwise,
nor in any other manner, and for that purpose should be inserted
and incorporated with their own. Johnson*s Canons, S, 1463; vid.
ante ** Canon Law^' ** Convocation.^' A body oi Canons was thus
collected for the observance of the whole kingdom, all of which from
Lanfranc as far down as 1430 were digested and commented on
by Lyndwood, and in that form presented a valuable depository
of English ecclesiastical law. 4 Reeve's Hist. C. L, \QS.

Subsequently to this, the differences which took place between
Henry the eighth and the pope, eventually led to a denial of
the papal authority, and to tne establishment of a complete
scheme of ecclesiastical jurisdiction in this country, having the
king for its head. / id. 24 Hen. 8, c. 12.
Presint The following sketch of the present condition of the ecclesias-

'*^'^ °^ tical courts in this country is mainly taken from the Report of
the Commissioners to inquire into the iusrisdiction of the
Ecclesiastical Court, p.W, and see vid. Ayliffe Par. 190.

The ordinary ecclesiastical courts are the provincial courts ;
in the province of Canterbury, the court of arches or supreme
court of appeal ; the prerogative or testamentary court, and
the court of peculiars ; in that of York, the prerogative or
testamentary court, and the chancery court.
The diocesan courts are the consisturial courts of eadi diocese,
exercising general jurisdiction, (a)

(a) By this word, consistory, is commonly understood that place or
ecclesiastical court of justice held by the bishop's chancellor or commis-

The courts of one or more commissaries appointed by the PeeMot
bishop in certain dioceses, to exercise general jurisdiction *^*^ ^ '
within prescribed limits.

The courts of one or more archdeacons or their officials,
exercising general or limited jurisdiction, according to the
terms of their patents, or to local custom.

The peculiar courts of various descriptions, royal, archi-
episcopal, episcopal, decanal, sub-decanal, prebendal,
rectorial, vicarial, and there are also some manor courts.

The provincial courts of Canterbury and York are inde-
pendent of each other. The process of one province not
running into the other, but being sent, by a requisition, to
the local authority for execution. The appeal from each
formerly lay to the king, who appointed a commission of
delegates, but by a late act the appeal is now heard before
the judicial committee of the privy council. Ante ** Ap'
peair

The arches court of Canterbury is the first of the three pro-
vincial courts of Canterbury, it exercises appellate juris-
diction over the diocesan, and most of the peculiar courts;
it has also original cognizance of causes by letters of re-
quest ; and in cases of subtraction of legacy given by wills
proved in the prerogative court of Canterbury.

The prerogative court has jurisdiction of all wills and ad-
ministrations of persons having bona notabiliaf or effects of
a certain value in divers jurisdictions within the province.

The court of peculiars takes cognizance of all matters arising
within certain deaneries and parishes, in which the arch-
bishop exercises ordinary jurisdiction, an/e, 62.

The province of Canterbury includes twenty*two dioceses,
amongst them the diocese of Canterbury itself, in which

sary in his cathedral church, or other convenieot place in his diocese,
for the hearing and determining of matters and causes of ecclesiastical
cognizance happening within his diocese. 4 Inst. 338 ; GodoL Ab. 83.

The consistories of archbishops and bishops are said by Lord Coke to
have b^nn in this realm in the reign of William I. ; 4 Inst, 259 ; but
before that period and in the time of the Saxons were joined to and held
with, the handred or county court. Seld* Hist, of Tithes ^ GodoL
Ab. 85.

Lindwood^ in the Provincial ConstituiumSf makes a distinction between
cansistorium and tribunal. Tribunal, says he, is loeus in quo sedet
ardinarius inferior, but consistorium in quo sedet princeps ad judicandum.
Albeit, according to the vulgar acceptation of these woi^s, we refer
tribunal to any place of judicature, but consistorium to that only which is
of ecclesiastical jurisdiction. Godol. ib.

272 Courtst etiUHasitisii*

P««»» the ordinary episcopal jurisdiction is exercised by a com-

state t>f. ««:«««-.,

The province of York includes four dioceses, besides that ot
Sodor and Man, and the archiepiscopal jurisdiction is
exercised therein much in the same manner as in the pro-
vince of Canterbury. Vid. the alterations of dioceses
" Ecclesiastical Commission,^ post. ^ ^

The diocesan courts take cognieance of all matters arising
locally within their respective limits, except only such
as arise within peculiar jurisdictions; it was held in
Pickover's case, Hob. 171, AyUffe Purer. 193, that if a
bishoprick become void, and so jurisdiction devolves to the
metropolitan, such metropolitan must hold his court m the
inferior diocese, for such causes are to be tried before the
inferior ordinary. .

The archdeacons' courts are generally subordinate, with an
appeal to the bishops* court ; in some instances they are co-or-
dinate.

The archdeacons' courts and courts of peculiars, in some cases,
have general ecclesiastical jurisdiction within their limits; in some
they have only a partial jurisdiction j several peculiars have only
voluntary but not contentious jurisdiction, {a)

(fl) The Commissioners to inquire into the practice and junsdsdum of
the ecclesiastieal courts in their general report, p. 21, observe, "we think
" that the whole jurisdiction of these peculiars both eofOentious and ©o/««-
" tary, should be abolished," and then give their reasons for such le-
commendation ; with regard to " manorial courts," they say, p» 26, " that
" all the reasons given for abolishing the testamentary jurisdiction in
"peculiar courts apply with greater force to those jurisdictions."
Again, with regard to the diocesan courts, p. 22, "The diocesan
" courts are exempt from some of the objections which may be urged
" against peculiar jurisdictions, but there are many reasons derived
" from the state of these courts in the present times, and the im-
** portance of some parts of the business arising there, which induce
" us to think that the transference to the provincial courts of the juris-
" diction hitherto exercised by them would be a great improvement in
" the administration of ecclesiastical law," and they then add their res-
sons. Again, p. 23, " Similar considerations apply to the archiadiaconal
^] courts. To remedy these mischiefs, as well as to remove other in-
^^ conveniences, we are unable, after a most careful consideration of the
« ^"™ subject to devise any measure so effectual and so likely to be
., Rf^f ^5^^® ^^ «> much convenience and advantage to the public, «
^^ that of transferring the whole testamentary jurisdiction, and the ex-
4c ^lusive right of granting probates and administrations to the archiepis-
copal couru of the respective provinces.

^y tins measure the uncertainty as to the validity of grants, and

Courttf (CfritsffafittiraL 273

By 6 ^ 7 fV. 4, c. 77, s. 20, vid. " Ecclesiastical Commission:' Present
It is recited that it may be expedient to consider the state and ^^^^
jariscliction of the ecclesiastical courts of England and Wales,
and then proceeds to enact, that nothing in that act nor in any
order in council nnder the authority of the act, either for alter-
ing the limits of proTinces, the boundaries of dioceses or arch-
deaconries, the uniting sees, creating new bishopricks or arch-
deaconries, or appointing registrars, or for any other purpose
whatever, shall, tor one year or to the end of the next session of
parliament, ** in any manner affect or be construed to affect the
" jurisdiction, power, or authority of any or either of the exist-
" ing ecclesiastical courts in England or Wales, or the extent
" or limits thereof; " but that, during the above period, " such
" court shall continue, in all matters whatsoever arising within
*' its present limits, to exercise the same jurisdiction as hereto-
" fore by law allowed." Firf. also s. 21, 22. By 1 Fict c. 71,
s» 1, this act was extended to the Ist of August 1838, or if par-
liament was then sitting, to the end of the then session of par-
liament: the session of 1838 did continue after the 1st o^
August.

By 6 ^ 7 FF. 4, c. 77, s. 25, it is enacted, that in case the
office of judge, registrar, or other officer of any of the ecclesi-
astical courts (except the prerogative court of Canterbury)
should become vacant during such period, the person appointed
thereto should take such office, subject to any alterations to be
made by parliament, and should not acquire any vested interest
in such office, or any title to compensation, if the same should
be abolished.

' the insufficient custody of testamentary documents, will be altogether

* renewed, increased facility will be afforded to the examination of

* wills and administrations, and the discovery of personal representa-
' tiveg, and nearly all the expense and trouble attending the assignment

* of terms will cease to exist. Patronage will be, in some cases,

* abolished, and in others diminished ; but as all patronage is a trust

* for the public, the loss of it will be cheerfully submitted to, when

* arisiiig from improvements materially conducive to the public ad van-
' tage." Again, " When considering the transfer of the jurisdiction,
' our attention has been directed to the existing constitution of the

* arches and prerogative courts of Canterbury. It deserves consi-
' deration whether the arches court should not be united with the pre-
' rogative court ; for many years one judge has presided in both ; and

* we are not aware of any circumstances which would render inexpe-
'* dient their entire union. Similar arrangements will be requisite for
' the provincial court at York."

274

Curate— ftttpentiiarp.

Nomination.
Examination.
License, documents necessary for.

Nomination.

Letters of orders.

Letters testimonial.
1 & 2 Vict. c. 106.
Nomination.

Where the bishop has absolute power to appoint.

Where he has power, on default of a^^intment by incumbent.
License.

Application for.

Revocation of.
Stipend.

Scale of, where incumbent instituted, &c« since July, 1B13.

Discretionary power of bishop to vary.

Duties done interchangeably with incumbent.

Exception, where incumbent instituted before July, 1813.

Differences respecting how settled.

Agreements contrary to the act void.

Payment of.

How enforced.
Incumbent lunatic.
Benefice sequestrated.

Deductions.

Assignment of house and glebe.
Residence of.

How called on to quit the curacy.
Being himself desirous to quit.

How far the 1 & 2 Vict. c. 106 controls, or is controlled by, the
acts for ** building and endowing churches."

CURAT£, in its.ordinary sense, simifies a clerk not instituted
to the cure of souls, but exercising tne spiritual office under the
rector or vicar. 1 H. BL 434'. Of this description of eorate
there are two kinds, the one who acts as •the assbtaat of the
incumbent in the service of the . church ; the other, who k
called perpetual curate, is the derk appointed by the lay
impropriator in parishes where there is no spiritual rector or
vicar.

It 18 the first description which will be treated of more parti-
cularly under this title, and is usually called a stipendiary curate.

€matt—Mi9tntii&r^. 275

Tbe appointment of such a curate to officiate under an incum* Nomina-
bent in his own church must be by such incumbent's nomination of ^'"°'
him to the bishop. 5 Bing. 316 ; 2 M. Sf P. 550, 2 Tyrwh. 700.

The building a chapel may be a meritorious act, and the
incumbent of the parish wrong in refusing to allow it to be con-
secrated ; still the bishop can neither consecrate it, nor authorize
a person to preach in it, without the consent of the incumbent.
Carr v. March, 2 PhiU. 201 ; 1 Hag. Con. 161 ; 3 Hag. 509 ;
1 Curteis, 54; Ambl. 528; 2 Eden, 60; 7 East, S52', * B. Sf
a 569; ante, HI, 148.

By Canon 48, it is directed that ** no curate or minister shall LiceDse.
be admitted to serve in any place without examination and ad-
mission of the bishop of the diocese or ordinary of the place
having episcopal jurisdiction, under his hand and seal; having
respect to the greatness of the cure and meetness of the party.

In order to obtain such license,

1 . He must produce his nomination.

2. He must show himself to be in holy orders ; of deacon at Letters of
least, if to be an assistant curate ; of priest, if to be licensed to ^^^^^

a perpetual curacy, or chapel of ease ; these latter being bene-
fices, and therefore comprehended by the provisions of 13 ^ 14
Car. 2, c. 4,^. 14, which enacts that no person shall be ad-
mitted to any benefice or ecclesiastical promotion, before he
shall be ordained priesf .

But a license is never necessary for a clergyman rendering
occasional assistance, the Canon applying only to curates who
are engaged to take charge of parishes, either altogether or in part,
for a continued time, and who are to be "examined and admitted*'
by the diocesan ; a different construction of the Canon would be
highly inconvenient to the clergy, and might not unfrequently
occasion parishioners to be deprived altogether of the church
service. Gates v. Chambers, 2 Add. 177. Still the 36th and S7th
Canons of 1603 show that a clerk cannot perform any Divine
Service without permission of the bishop of the diocese. There-
fore, where it appeared that a clergyman had no license from
any bishop, or from either university, and where he did not
appear to be a graduate, he was admonished not to do duty
again without a license ; for his orders of deacon and priest put
him in a capacity to be authorised, but do not authorise him.
^ Lee, 172.

Bv a conatitQtion of archbishop Reynold^ no person shall be Letters \%^
admitted to officiate until proof shall first be made of his good ^mo°i&l*
Kfe and learning. Lindw, 47 ; 2 Bum's E. L. 62.

By a constitution of archbishop Arundel no curate shall be
admitted to officiate in any diocese wherein he was not born or
ordained, unless he bring with him letters commendatory of his
diocesan, and also of other bishops in whose diocese he hath

276

Curate— ^tipmbfarp.

License.

Letters tes-
timonials.

Going to

another

diocese.

Subscrip-
tion to ar-
ticles.

Declara-
tion of
conformity.

Oaths.

continued for any considerable time, which letters shall be cau-
tious^ and express with regard to his morals and conversation,
and whether he be defamed for any new opinions contrary to
the catholic faith or good manners ; Lindw* 48 ; 2 Burns
E, L. 62; by Canon 48, if curates remove from one dio-
cese to another, they shall not be by any means admitted to serve,
without testimony in writing of the bishop of the diocese or
ordinary of the place having episcopal jurisdiction, from whence
they came, of their honesty, ability, and conformity to the eccle-
siastical laws of England. 2 Burn*s E. L. 62, It is said
by Mr. Hodgson ''that it is expected that a curate shall remain
'' in the diocese of the bishop by whom he was ordained for
'' two years at the least ; if he should desire to remove into
'' another diocese before the expiration of such term, it is pro-
" per he should apply to the bishop of that diocese, and also to
" the bishop who ordained him for their sanction, stating the
" special circumstances which induce him to apply.*' Instruc-
tions for the Use of Candidates for Holy Orders and the Paro-
chial Clergy, p. 12.

By Canon 37, none who hath been licensed to preach, read»
lecture, or catechise, and shall afterwards come to reside in
another diocese shall be permitted there to preach, read, lecture,
catechise, or administer the sacraments, or execute any other
ecclesiastical functions, by what authority soever he be there-
unto admitted, unless he first consent and subscribe to the
three articles before mentioned (specified in Canon 36 con-
cerning the king's supremacy, the book of Common Prayer, and
the thirty-nine articles of religion) in the presence of the bishop
of the diocese wherein he is to preach, read, lecture, catechise,
or administer the sacraments as aforesaid. 2 Bum^s E. L.
62, 63. Speaking of the present practice, Mr. Hodgson,
in his Instructions f edit. 1838, says, '' Before a license
" to a curate is granted, he is to subscribe the thirty-nine
'' articles and the three articles of the 36th Canon; to declare his
" conformity to the liturgy of the united church of England and
'* Ireland ; and to take the oaths of allegiance, and supremacy,
" and of canonical obedience, which latter is — ' I, E. F., do swear
*' that I * will pay true and canonical obedience to the Lord Bishop
<< < of in all things lawful and honest. So help me God.* *'

Mr. Hodgson, in his Instructions^ p. 13, states that the fol-
lowing papers are to be sent to the bishop by a curate applying
to be licensed : —

1. A nomination, by a non-resident incumbent, in a form
therein given, and at the foot of such nomination tlie following
declaration — " We, the before-named G. H. and E. F., do

" declare to the said Lord Bishop of as follows, namely,

" that I, the said G. H. do declare that I, bond fide, intend to

c«

Curatt — Jl^tipentifarp. 27 7

" pay, and I, the said E. F., do declare that I, bandjidt\ intend License.
" to receive, the whole actual stipend mentioned in the foregoing
" nomination and statement, without any abatement in respect
" of rent, or consideration for the use of the glebe house, gar-
" den, and offices thereby agreed to be assigned, and without
any other deduction or nomination whatsoever.

" Witness our hands, this day of , one thousand

eight hundred and .

Signatures of G. H. and E. F."
There is also in the same useful work given a form of nomi-
nation by an incumbent, being resident*
2. Letters of orders, deacon and priest.
S. Lietters testimonial, to be signed by three beneficed cler-
gymen. A form of such testimonial is also given. It is also
recommended that the clergyman nominating be not a subscriber
to the testimonial. On the receipt of these papers, the bishop,
if he be satisfied with them, will either appoint the clergyman
nominated to attend him to be licensed, or issue a commission
to some neighbouring incumbent. The license will be sent by
the bishop to the registry office, and from thence forwarded to
the churchwardens.

The law respecting curates has undergone considerable alte-
ration by an act of the last session, the I §"2 Vict. c. 106, which, ] & 2 Vict.
reciting amongst other things that it was expedient to make c- ^^^•
further provision for the appointment and support of stipendiary
curates in England, repealed the 57 G. 3, c. 99, '* except such
parts of it as repealed certain acts and parts of acts therein
particularly recited."

By this act the extensive powers of the former act of nomi- Absolute
nating curates, on the neglect of incumbents so to do, and for appoint-
other causes, are re-enacted. It would seem that there are three r|!®°^ ^^
grounds upon which a bishop may of his own authority, and not " "^'
subject to appeal, nominate and license a curate to a parish
within his diocese, or a peculiar belonging to him ; but semb, he
must in all cases summon the incumbent, and give him an op-
portunity of answering.

i. By s. 75, if a spiritual person, who shall not reside on his In what
benefice nine months in each year, (certain specified cases ^^^^'
of non-residence by license are excepted) shall absent
himself from his benefice, for three months altogether, or
to be accounted at several times, without leaving a curate
duly licensed or approved by the bishop to perform his
ecclesiastical duties.

2. Or, shall for a month after the death, resignation, or re-
moval of his curate neglect to notify the same to the bishop.

3. Or, shall for four months afler such death, resignation, or
removal, neglect to nominate to the bishop a proper curate.

278

Curatt -dtipenktiirp.

1 & 2 Vict,
C.106.

Appoiot-

meot

by bishop,

on default

of iDcum-

bent.

Duties in-
adequately
performedi.

Population,

Second
cburcb.

In all the above cases the bishop is authorised absolutely to
appoint a curate, with such a salary as is by the act directed,
and no appeal is given against any such appointment.

The bishop is also empowered to appoint curates on neglect or
omission of the incumbent, he having been legally required so to
do. Quare, whether in proceeding on section 77, the bishop
must summon the party, and give him an opportunity of being
beard ? Capel v. Child, 2 Tyrwh. 700 ; or whether the report
of the commissioners is final ?

Sec. 77. If the bishop has reason to believe that '' the ec-
clesiastical duties of any benefice are inadequately performed^"
he may issue a commission, consisting, of four beneficed clergy-
men within his diocese ; or if the benefice be within his pe-
culiar, but within another diocese, then of four within such
diocese ; one of whom must be the rural dean of the district :
and of a fifth to be appointed by the incumbent inculpated>
also to be of the same diocese, to inquire into the facts of
the case : and if the major part of such comnuasioners shall
report, by writing under their hands, that, in their opinion the
duties of such benefice are inadequately performed, the bishop
^^y* hy writing under his hand, ''specifying the grounds of
soch requisition," require (a) the person holding such benefice,
though residing and performing the duties, to nominate to him
a fit and proper person or persons, with proper stipends, to be
licensed to perform, or assist in performing such duties. And
if such spiritual person shall for three months after such re-
quisition neglect or omit to make such nominadon, the bishop
may appoint and license a curate or curates with a stipend not
exceeding the respective stipends allowed in cases qf non-resu
dence nor, except in the case of negligence, exceeding one-half
of the net annual value of the benefice.

A copy of the requisition, and the evidence on which it is
founded, to be filed in the registry.

The spiritual person may, within one month of the service
on him of the above requisition, appeal to the archbishop.

By s, 78. If the annual value of a benefice, of which the in-
cumbent was not in possession before the 14th August 1838, shall
exceed £500, and the population amount to three thousand ; or
if there be a second church or chapel, with a hamlet or district

(a) It would seem, by reference to the concluding part of this sec-
tion, and also by reference to the provision for an appeal in the
next section, which directs the requisition therein mentioned to be
personally served or lefl at the last or usual place of abode, that as
there is no such alternative in this case, the requisition above should be
personally served.

Cttratr— iWiptitii^arp^ 279

two miles distant from the mother church containing four hundred ^ ^ qq^^^'
persons, the bishop may require the incumbent, though resident ^'
and periforming duty, to nominate a curate to be paid by him. Appoint-
And if no person is nominated within three months after such "^^1^.
re<}nisttion shall have been delivered to the incumbent or left J^ default
ai his last or usual place of abode ^ the bishop may appoint and of incum-
license a curate with a stipend, not exceeding the respective ^^°''
stipends allowed curates by this act, nor in any case exceeding
one-fifth of the net annual value.

An appeal is (a) given to the incumbent, if made within one
month after service on him of the requisition, or the notice of
the appointment of a curate.

By s. 86. When a person has been incumbent of a be- PopaU-
nefice since the gOth of July, 1813, or shall hereafter become <ion2000.
aOf and not be resident on it, the population of which shall ex- Incumbent
ceed two thousand, the bishop may require him to nominate °^*^'^-
two persons to be licensed as curates ; and if such incumbent,
for three months after such reauisition, shall neglect or omit to
make aoeh nomination, the bishop may appoint and license two
curates, or a second curate, and assign to each such curate a
stipend not exceeding together the highest rate of stipend al-
lowed in the case of one such curate, except the incumbent
shall consent to a larger stipend.

The incumbent may, within one month after service upon
him of such requisition, or of notice of any appointment of
two curates or a second curate, appeal to the archbishop, (b)

By «• 99. In case of a benefice sequestrated, except for the Benefice

! providing a bouse of residence, if the incumbent does not per- seques-
orm the duties, the bishop is required to appoint and license ^^^*
a curate or curates thereto, but not more than one where there
is not more than one church, or the population does not ex-
ceed two thousand ; and to assign to him or them a stipend or

(a) The appeal is not given " one month after the requisition was
delivered to him, or left at his dwelling-house ;" therefore* except per-
sonally served, an incumbent has no appeal till a curate is actually ap-
point^, and he has received notice of the appointment. The requisition
in this case is not expressly required to he in writing, although, hy im-
plication, it must be so, as it is required to he " delivered "or ** left ; "
but it need not state or specify the grounds of the requisition as in
the former case ; nor need it be registered ; nor need the incumbent,
should he nominate, state in his nomination the stipend which he pro-
poses to give, as in s, 77.

(6) The provision for appeal implies, that the service must be in
writing ; but it also requires personal service. It would seem that the
grounds need not be stated in the requisition, nor any stipend stated in
the nomination made by the incumbent.

280

Curate— ^tiptnUCarp,

License.

Application
by non-
residents.

By all in-
cumbents.

Fee on
license.

Signing de-
claration.

Curate

actually

employed.

Revocation

Stipends.
Scale of.

stipends not exceeding, for one curate, the highest rate of
stipend ; nor exceeding £100 for more than one.

By «. 81. When an application is made by any person not
duly resident on his benefice for a license for a curate, the
bishop shall require a statement of all the particulars required
to be stated by any person applying for a license for non-re-
sidence.

In all applications for a Ucense for a curate, whether the
incumbent be resident or non-resident, the bishop shall require
a declaration in writing, to be made and subscribed by the in-
cumbent and the curate.

That the one band fide intends to pay.

That the other bond fide intends to receive.

The whole actual stipend mentioned in such statement, without
abatement of rent, or consideration for the use of the
glebe house, and without any other deduction or abatement
whatsoever.

Sec. 8^ enacts, that ten shillings only shall be the fee for
such license, over and above the stamp duty ; and that once
signing the declaration required by the act of uniformity shall
be sufficient, and one certificate of having so signed ; where a
curate is licensed to two curacies.

Sec, 98. A bishop may license any curate actually employed
by any non-resident incumbent without an express nomination
being made to him.

A bishop may revoke summarily, and without further pro-
cess, any curate's license, and remove him for any reasonable
cause ; having first given such curate an opportunity of show-
ing reason to the contrary, such curate being also enabled to ap-
peal to the archbishop within one month after service on him of
such revocation.

Sec. 102. If the archbishop on appeal annul such revoca-
tion, the bishop shall make such order as is required in cases
of license of non-residence being annulled.

A copy of every curate's license or revocation of license is to
be entered in the registry of the diocese ; another copy is to be
sent to the churchwardens or chapelwardens of the parish or
place to which the same relates.

An alphabetical list of licenses and revocations to be kept
open to inspection on payment of a fee of three shillings.

The stipends of the curates of non-resident incumbents, ad-
mitted to benefices since the 20th of July, 1813, are regulated
by s, 85, on the following scale :

In no case shall there be a less stipend than £80, or the an-
nual value, if less than £80.

£100, or the annual value, if less than £100, if the popula-
tion amounts to three hundred.

Curate— *t^tnlifarp* 28 1

iSISO, or the annual value, if less than £1^, if the popula- ^^'P^"^-
tion amounts to five hundred. Scale of.

£135| or the annual value, if less than £135, if the popula-
tion amounts to seven hundred and fifty.
£150, or the annual value, if less than £150, if the popula*
tion amounts to one thousand.
And by s. 86,

£400 annual value, or more, the bishop may assign to a curate
resident ^ and having no other cure, £100, though the
population is not three hundred.
£400 annual value, and population five hundred, the bishop
may increase the stipend of a curate resident, and having
no other cure, by adding £50 to the stipend, in the act
required to be assigned to any such curate.
But by «. 87, the bishop has a discretionary power .with the Power of
consent of the archbishop, signified in writing, in any case bbhop to
vrbere a non-resident incumbent has become incapable of per- ^^^^'
forming the duties, by age, sickness, or other unavoidable
cause, or from other special circumstances. 3 B, ^ C. 56, Great
hardships would arise if the full stipends above specified were
compulsory in every case; but in order to assign a lower stipend,
the special reasons for such lower stipend are to be stated in the
ticense, and in a separate book kept for the purpose, and de-
posited in the diocesan registry.

By s. 88. Provisions are made for incumbents having two locumbeot
benefices, and bond fide residing on each of such benefices ^°^^% ^^^j
daring proportions of the year. If such incumbent shall em- |.h^^Dse-
ploy a curate to do the duty interchangeably with himself, ably.
such curate is to have a stipend, not greater than is allowed for
the larger of the benefices, nor less than that allowed for the
amaller benefice. If the incumbent employs a curate or curates
for the whole year on both such benefices, then the bishop may
assign to each or either, any such stipend less than the amount
specified in the act, as he shall think fit.

By «. 89. Provisions are made for an incumbent serving
any adjoining parish or other place as curate ; and for curates
serving two parishes or places. In each case, if the bishop
think it necessary, or expedient, for obtaining the proper per-
fonnance of ecclesiastical duties, to grant licenses for such pur-
poses, he is empowered to assign a stipend, less by a sum of
£30 than the stipend, which by the act, the bishop is required
to assign in the several cases specified.

By «. 84. Bishops are restrained from appointing any stipend Incumbent
above £75, together with the house of residence and gardens 1°*?^^,
and stables; or a further sum of £15 in lieu of a house of re- -^^^^ ^ ^
sidence, in any case where the spiritual person holding the
same was instituted to it before the 20th of July, 1813.
By 9. 83. Bishops are required to appoint to every curate of

282

Curate— Atijptiibiai:p<

Stipend.

Differences
respecting,
howsettleid.

Agreements
contrary to
provisions
of the act
▼Old.

Payment
of, bow en-
forced.

HecoYtry
of.

a non-resident incumbent such a stipend (except as is excepted)
as is specified by the act.

And in the license of every stipendiary curate, whether the
incumbent be non-resident or resident, to specify the
amount of the stipend.
And to hear and summarily determine any difference which
may arise between the incumbent and the curate touching
the stipend or the payment of it, or the payment of arrears.
And in case of wilful neglect or refiisal, to enforce payment
by monition and sequestration.
By «. 90, all agreements made between incumbents and their
curates in fraud or derogation of the provisions of the act.
AU agreements whereby any curate shaJl undertake or bind
himself to accept a stipend less than that assigned in his
license. S B. ^ C. 48.
To be void to all intents and purposes, and not be pleaded

or given in evidence in any court of law or equity, (o)
The curate or his representatives to be entitled to the fiill
amount of such stipend, notwithstanding the payment and
acceptance of any sum less than that assigned by the
license; or of any receipt, discharge, or acquittance that
may be given for the same.
Payment of so much as shall be proved to be itnpaid shall,
with full costs, as between proctor and client, be enforced
in the bishop's court by monition and sequestration.
Application for such monition, to be made by the curate or
his representatives within twelve months after such curate
shall have quitted the curacy, or have died.
It was considered, even before the passing of the above act, or
the 57 G. 3, c. 99, that the most effectual mode of recovering a
curate's salary was by monition in the ecclesiastical court;
for there, in default of payment, a sequestration might
be served on the benefice ; but if the curate had no license,
he could not sue in that court. Johns* 87 ; 2 Burns E, JL.
68. If he sued for his salary at common law, he must have
proved an agreement between him and the incumbent; and
in such case he might be called on to prove, that he made
the subscriptions and declarations, and otherwise qualified him-
self as the law directs. Johns. 87 ; 2 Bum's E. L. 6& Vid.
also the case of Martyn v. Hind, DougL 137; Cowp. 437.

(a) If ft were necessary to prohibit such an agreement from being
pleaded or given in evidence after it had been previously declared void
to all intents and purpotes, it would seem that such prohibition should
have extended to the ecdesiastiea] courts, in which only, payment of the
stipend can be enforced, by momtion and sequestration. WeH v.
Turner, post, 283.

Cttmte— iU^eniiuirp. 283

But now a proceeding in the ecclesiastical court is the only stipend.
remedy, for by 57 G. 3, e. 99, s. 74, since re-enacted by 1 ^ £ -R^ft^oytrj
Vid. r. 106y «. 109, it is provided that, wherever jurisdiction of.
is given to the bishop or archbishop '' for the enforcing the
due provisions of the act, and for the purposes thereof, and the
due execution of the provisions thereof, aH other and concur-
rent jurisdiction shall wholly cease, and no other jurisdiction in
relation to the provisions of the act shall be used, exercised, or
enfcHtsed, save and except such jurisdiction of the bishop or
archbishop under this act, any thing in any act, or law, or usage,
or custom to the contrary notwithstanding." Under the above
provision in 57 G. 8, c. 106, it was held in West v. Turner^
6 Ad. Sf EIL 614 ; 1 Nev. ^ P. 61S ; that in an action of as-
sumpsit by a curate against a rector for a stipend, a plea
founded on the statute is a bar to the action ; and further, that
saA jAea was prdperly pleaded in bar and not in abatement ;
and that it is sufficient if such plea allege '' that disputes
have arisen and are depending touching the stipend and the
payment thereof, and that the action is brought concerning the
stipend and the pavment thereof, touching which the disputes
have arisen within the meaning of the statute ;" and not further
specifying the subjects in dispute. 3 J3. ^ C 49.

By s, 79. If any stipend is assigned to a curate of a benefice, locumbent
the incumbent of which has been duly found a lunatic, or person ^^^^^'
of unsound mind, the committee of the estate of such lunatic
shall pay such stipend out of the profits of the benefice which
shall come to his hands.

By *. 100. Upon the avoidance of any benefice by death, BeneBce
resignation, or otherwise, the sequestrator appointed by the ^^
bishop shall pay to the curate the stipend appointed by the
bishop out of the profits which shall come to his hands, not
exceeding the respective stipends allowed by the act, and in
proportion to the time of such vacancy ; and by s. 101 it is fur-
ther provided that, if the profits during vacancy shall not be
sufficient, then so much of the stipend as shall remain unpaid
shall be paid by the succeeding incumbent out of the profits of
the benefice ; which payment may be enforced by monition and
seauestration.

By «. 91. Where the stipend amounts to the whole annual Dedactions
value of the benefice, it shall be subject to deduction in respect ^^^^
of all such charges and outgoings which legally affect the value ; ^^
or to any loss or diminution which may lessen the value without
the default or neglect of the incumbent.

And by s. 92* On application of the incumbent, the bishop
may allow him to retain so much money in each year as shall
have been expended during the year in the repair of the
chancel, or house and premises, in respect of which dilapida*

284

Curate— ^t^enlifarp*

Living in
house of
residence.

^.?!l!^^ll_ ^*^**'' might be incurred, so that the money retained does not
exceed one-fourth part of the annual value.

And where the annual value shall not exceed £150, to deduct
so much as shall have been actually expended in such repairs
above the amount of the surplus remaining of such value, after
payment of such stipend, (a) not exceeding one-fourth part of
the stipend.

By s. 93. Where an incumbent, non-resident for four months
in each year, shall require the curate to reside in the house of
residence, the bishop may assign to him

The house, offices, stables, gardens, and appurtenances, or

any parts thereof without payment of rent.
Any glebe land adjacent to the house, not exceeding four
acres, during the curate's service or the incumbent's non-
residence, at a rent to be fixed by the archdeacon, rural dean
and one neighbouring incumbent approved by the bishop.
If possession of the premises so assigned is not given up to
tne curate, the bishop may sequester the benefice till pos-
session is given.
The profits of the sequestration to be applied as in cases of
sequestration for non-residence ; or they or any part of them
may be remitted.
By s. 94. Where, in addition to an assignment of the house,
&c. as above, the stipend assigned is not less than the
whole value (annual value, of course, is meant) of the
benefice;
The curate shall be liable, during the time of his serving
such cure, to the same taxes, and parochial rates, and
assessments, in respect of such house, premises, and ap-
purtenances, as if he had been incumbent.
Provided that, in every other case (b) in which the curate
shall so reside, the bishop may order the incumbent to pay
to the curate any sums which he may have been required
to pay, and actually paid, within one year ending at
Michaelmas next preceding such order, for any such taxes
which shall have become due since the passing the act,
payment to be enforced by monition and sequestration.
Residence. Sec. 75. Where a bishop has appointed and licensed a curate

(a) This is obscurely expressed ; but it is presamed the meaning is,
that where the stipend and repairs together exceed the annual value, the
excess may be deducted from the stipend, if it does not exceed one-
fourth of it.

(Jb) It must be observed by those who have to fix the rent of land
under «. 93, that this power of the bishop to order re-payment of taxes,
&c. does not extend to taxes or rates on land ; nor to any taxes, &c. for
more than one year^ ending at Michaelmas preceding the order.

Ctiratr— d^tnUtarp. 285

iinfler the powers of the 75th sec. which enables him to nominate R«K>eBc«.
curates in certain cases of non-resident incumbentSi it is pro-
vided that in every such Hcense the bishop shall specify whether
the curate is required to reside.
If not so required, then the grounds on which he is permitted

to reside out of the parish or place.
If permitted to live out of the parish, his residence is not to
exceed three miles, except in cases of necessity, which are
also to be specified in the license.
Besides these cases provided for by the 75ih sec, there is
a general provision by sec, 76 that,

In every case where either the incumbent does not reside, or
has not satisfied the bishop of bis full purpose to reside
during four months in the year.
The curate shall be required to reside within the parish or

place.
If no convenient residence can be there procured,
Then within three miles of the church or chapel, except in
cases of necessity, to be specified in the license, together
with the place of residence, (a)
By f . 95. Every curate is to quit his curacy, and by s. 96, the Quitdng
house of residence, if residing in it, upon a benefice becoming ^^^'"^y-
vacant; upon receiving six weeks* notice, given within six months
of the new incumbent's admission, collation, institution, or license.
Every incumbent, whether resident or non-resident, having
obtained permission under the hand of the bishop, may re-
quire any curate to quit his curacy. (And by s. 96, the house
of residence, stables, gardens, and glebe land, having re-
ceived the bishop's permission as above,) upon six months*
notice thereof; and in the case of the house of residence,
stables, gardens, and glebe land, the bishop himself may
alone give notice.
In the case of a continuing non-resident incumbent, the re-
fusal of the bishop to give such permission is final and
absolute.
But in the cases of incumbents resident or wishing to reside.

(a) There is a difference between the provisions of these two sections.

By the 76th see* the bishop can allow the curate to reside out of the
parish only in the case of there being no convenient residence to be pro-
cured within it, and the place of residence is to be specified in the
license.

By the 75th sec. the bishop may at his discretion generally permit the
curate to reside out of the parish, and the place of residence is not
required to be specified in the license. There seems to be no reason for
the distinction. Probably it was not intended.

286

etirate-^t^ptnlffiu^

Quittiiig
curacy.

Being him-
felf desirous
to quit.

Under the
acts for
building
and endow-
ing
churches.

an appeal is given to the archbishop against the refusal of the
bishop to give permission to give notice to quit the curacy,
under s. 95 ; but no appeal against such refusal in the case
of the house, &c. (a)
By 8. 96. If the curate having received notice given by per-
mission of, or notice from, the bishop himself, shall refuse to
deliver up such premises or any or either of them, he is to
forfeit forty shillings for every day of wrongful possession after
service of such notice, (b) How far this provision applies to
curates under the church building acts, past, £87.

With regard to the power of a curate to quit bis curacy, it is
provided by «. 97, that until after three months' notice given to the
mcumbent and to the bishop, no curate shall quit bis curacy,
unless with the consent of the bishop, io be signified by writing
under his hand; upon pain of paying to the incumbent such sum
as may be specified by the bishop, by writing under his hand ;
which sum, nowever, is not to exceed the amount of his stipend
for six months.

The sum directed by the bishop to be thus forfeited, may be
retained out of the stipend, if the same or any part thereof shall
remain unpaid ; and if it cannot be retained out of the stipend,
may be recovered by action of debt.

By the acts for ** Building and Endowing Churches,' certain
provisions are made with regard to curates«

By 5S Oeo* 8, c. 45, s. 18, where a parish is completely
divided into distinct parishes; and by s. 21, and 59 Geo. S, e. 134,
s. 1S> where a parish not being completely divided into distinct
parishes, is divided into ecclesiastical districts ; the new churches
built under the provisions of those acts, are to be chapels of

(a) A case of difficulty may arise upon the construction of these two
sections. A non-resident incumbent desiring to reside, whose house of
residence, with a portion of glebe, is assigned to the curate under #. 98,
may apply to the bishop fbr permission to require the curate to quit the
curacy under s. 95, and the house and glebe under c. 96 ; the bishop re-
fuses permission in both cases ; the archbishop, on appeal under s, 95,
grants permission to give notice to quit the curacy, (the only permis-
sion he can grant). How is the incumbent to obtain possession of the
house and glebe ? It is true, that it is not likely, that a bishop would
withhold permission in such a case, or refuse himself to give the six
months' notice ; but if he does, there appears to be no summary
means of obtaining possession of the house and glebe.

{b) There is no mode less dilatory or expensive than an action of
debt to recover the forty shillings per day for wrongfully holding over.
All forfeitures by spiritual persons not holding benefices to be recovered
by action of debt. s. 117.

Ctiratt— JH^tnliiBrp. 287

ease, served by curates nominated by the incumbent during the
fsondnuance of his incumbencyi ante, 201.

And bv 58 Geo. S, c. 4>5, s. 18| and 59 Geo. 3» c. 1S4| s, 16| Under th«
all chapels to which particular districts are assigned, are to be acts for
served by curates nominated by the incumbent ; and it is ex- ^^'^^^.
pressly provided that all ** such curates " shall be *' subject to all jog

the laws in force relating to stipendiary curates, except as to churches.

tie assigning salaries to such curates,'^ and a mode of pay-
ment of the stipends out of the pew-rents is specially provided
by 58 Geo. 3, c. 45, ss. 63, 64. The salaries of curates under
those acts were not therefore regulated by 57 Geo. 3, c. 99,
ttfUe, 9Xfl. A doubt may arise, therefore, whether these provisions
of the 58 Geo. 3, are repealed by the 1 & S Vict. c. 106; it would
seem that the general words of the later act must control the
provisions of the former and operate to repeal them. It would
seem also that such was the intention of the framers of 1 ^ 2
Vict. e. 106, by the special exception made by s. 80, which
provides '' that nothing in that act shall affect the provisions of
** the 58 Geo. 3, c. 45, s. 65,** which enables a bishop to require
a third service to be performed, and. enabling him to appoint a
curate for that purpose, in de&ult of the incumbent domg so,
andjproviding a mode for the payment of such curate's salary.

With regard, however, to the powers given to new incumbents
by 1 ^ 2 Vict. e. 106, s. 95, ante^ 285, that every curate shall give
up thecureof any benefice whioh shall become vacant upon having
six weeks' notice from the spiritual person admitted, collated, insti-
tuted or licensed to such benefice, if such notice be given within
six months from the time of such admission, &c., they seem, as
far as affects dbtrict churches and district chapelries, to be con-
trolled bv the subsequent provisions of the 1^2 Vict* c. 107,
s. 13 ; which enacts, that the license of the stipendiary curate
appointed to serve the chapel of such chapehy snail not be ren-
dered void by the avoidance of the church of the parish or
district parish in which such chapel is situate, unless the same
be revoked by the bishop under hand and seal ; but such U-
cense shall continue in force notwithstanding such avoidance, any
statute, law, canon, or usage to the contrary notwithstanding.

288

Beans anti Cj^a^tttis*

Origin and nature of the office of dean.
Different kinds of.

1. Deans of chapters.

2. Deans of peculiars.

3. Deans rural.

4. Deans of colleges.

5. Deans honorary.

6. Deans of provinces.

In respect of promotion, there are,

1 . Deans of spiritual promotions.

2. Deans of \bj promotions.

In the form of their appointment deans may be,

1. Elective.

2. Donative.

Deans and chapters.

May be without an episcopal see.

May be an episcopal see without dean.

May be a chapter without episcopal see or dean.

Bishop may have two chapters.

Of canons.

Of prebends.

Of prebendaries, (a)

Dean, xHE institution of deaneries, as also of many other ecclesias-

oiBce of. tieal offices of dignity and power, seems to bear a resemblance
and relation to the method and form of civil government, which
obtained in the early ages of the church throughout the
Western empire. Accordingly, in this kingdom, for the better
preservation of the peace, and more easy administration of
justice, every hundred consisted of ten districts, called tithings,
every tithing of ten furlongs or free pledges, and every free
or frank pledge of ten families. And in every such tithing

(a) Considerable alterations are now in progress in many Chapters,
in consequence of the recommendations of the ecclesiastical com-
missioners, and the provisions of the 5 ^6 Wm. 4, c. 30, and the
6^7 fVm, 4, c. 67. These alterations, as far as they have proceeded
hitherto, will be found under the titie, " Ecclesiastical Commission.**

fieain( anli ClbaptnrsU 289

there was a constable or civil dean appointed for the subordi- Origia of
nate administration of justice ; so in conformity to this secular ^'"'
method, the spiritual governorsi the bishops, divided each dio*
cese into deaneries, decennaries, or tithings, each of which was
a district of two parishes or churches ; and over every such
district they appointed a dean, which, in cities and large towns,
was called, " dean of the city or dean of the town,*' and in
the country was called ''rural dean." Ken. Par. Antiq.
633; 2 Burn s E. L. 80.

The oflSce of dean began very early in the greater monas-
teries, especially among the Benedictines, where the whole
convent was divided into deaneries, in which the dean, or
tenth person presided over the other nine, and submitted
an account of their proceedings to the superior, to whom they
were accountable. In the larger houses, where there were se-*
veral deaneries, the senior dean bad a special pre-eminence.
The institution of cathedral deans may evidently be traced to
tliis source ; for when the bishops dispersed the body of
their clergy to their parochial cures, they reserved a college of
priests or secular canons for their counsel and assistance, and
for the constant celebration of divine offices in the mother,
or cathedral church, where the tenth person had an inspecting
and presiding power, till the senior or principal dean swallowed
up the office of all the inferior, and in subordination to the
bishop, was head or governor of the whole society. Ken. Par.
Antiq. 634; Ayliffe Parer. 206; 2 Bum's E. L.81.

There are many kinds of deans, besides deans of chapters, six kinds.
known to our law ; and it requires more divisions than one to
distinguish them properly.

1. A dean of a chapter, either cathedral or collegiate, is Deans of
he who is constantly styled in ecclesiastical records, " Archi-^ cbapten.
Presbyter;' S PhiU. 243.

2. Deans of peculiars, who have sometimes both jurisdiction Ofpecu-
and cure of souls, as the dean of Battel ; and sometimes ju- ^^"*
risdiction only, as the dean of the Arches, and the deans of
Booking and Croydon. Godol. Abr. 52-54.

3. Rural deans. Ayliffe Parer. 205. Rani.

4. Deans in the colleges of our universities, who are officers coilece.
appointed to enforce discipline.

5. Honorary deans, as the dean of the • chapel royal, so Honorary,
styled on account of the dignity of the person over whose cha-
pel he presides. AvUffe Parer. 205. As to the chapel of St.
George Windsor, there being canons also, it more resembles

a collegiate church.

6. Deans of provinces, or, as they are sometimes called, of pro-
deans of bishops. vinces.

Thus, the bbhop of London is dean of the province of

290

Mnaa atiU C^nptetv,

Naiure of,

office of
deaa.

Of spiritual
promotion.

Of Uy pro-
rootion.

l.ElectiTe.

3. Dona-
tive.

IVithont
cure.

Ought to
visit.

Canterbury; to whom, as sttch, the archbishop aends his man-
date for summoning the bishops of his proyince when a convo-
cation is to be assembled. Co. Litt. 95 a, note 1.

Another division of deans is into deans of spiritual promo-
tions and deans of lay promotions. Of the former kind, are
deans bf peculiars, with cure of souls, deans of the royal cha-
pels, and deans of chapters ; though, as to these last, a con-
trary opinion formerly prevailed. Perhaps, loo, rural deans
may be added to the number.

Of the latter kind, are deans of peculiars without cure of souls,
who therefore may be, and frequently are, persons not in holy
orders.

In respect of the manner of appointasent, deans are eitlier
elective, as deans of chapters of the old foundation, who grew
principally out of the Papal usurpations, though tbey are only
so nominally and in form, the king being the real patron,
3 PAiU. 245 ; 2 Bum's £. L. 81 ; or else donative, as those
deans of chapters of the new foundation, who are appointed
by the king's letters patent, and are installed under his com-
mand to the chapter without resorting to the bishop; either
for admission, or for a mandate of instalment^ if that mode
of promoting still prevails in the new deaneries. Deans of
tlie royal chapters are also donative, the king appointing to
them in the same way; so, too, are many deans of peculiars.

Deaneries are generally without cure of souls ; the exceptions
to the rule have been noticed above. Those that are without
cure of souls, being sinecures, need not, by 13 EUm., subscribe
the thirty-nine articles before the ordinary ; nor read, nor de»
clare their assent to the same, as person^ admtted to benefices
with cure, are required to do by the said statute; 2 Burn's
E. L. 82. But otherwise, the same oaths, subscriptions, and
declarations are required to be taken and made by them as by
other persons qualifying for ecclesiastical offices. £ Bum*s

Em Lm 82.

It is said, that formerly a dean might have been a layman,
Godol Abr. 867; but now, it seems by 13 ^ 14 Car. 2,
a person must have priest's orders to qualify him. Still
there seems no reason why a dean, without cure of souls, may
not be layman ; as in the case of Uie dean of the Arches. Co*
LitL 95 a, note 1.

In the case of deans of chapters, the dean ought to visit his
chapter, and of ancient time the canons made their confession
to the dean; GodoL Abr, 55; and Lmdwood says that the
canons are under the dean as to cure of souls* Ayliffe Ptnrer,
202.

A dean may make a deputy, or subdean ; but he, except
authorised by local statutes, cannot charge the possessions of

BtuM antt €lfsfttn. 291

the church to as to confirm. GodoL Ahr. 65; Noy, 93; I>QtiMor
Palm. 460 ; Latch. 237, 250. **^"-

By Canon 42, every dean shall be resident in his cathedral Residence.
church fourscore and ten days, conjunctim and divisimt in
every year at the least, and then shall continue there in preach-
ing the word of God and keeping good hospitality ; except he
shall be otherwise let with weighty and urgent causes, to be
approved by the bisbop, or in any lawful sort dispensed with.
See as to residence further, I % 2 Vict. c. 106, s. 38, po$t
'* Residence:'

' Farther, by Canon 43, deans are required to preach in their Premchiag.
cathedral or collegiate churches, and also in other churches
of the same diocese where they are resident, and especially in
those places where they or their church receive any yearly rents
or profits, or to substitute such preachers as the bishop shall
think meet, and, if any neglect to do so, he may be punished by
the bishop. Ayliffe Parer. 9QZ.

The office of rural dean seems to have originated with the Rani
Saxons ; but it is said by Lindwood to be of a temporary nature; *^**°*
and, therefore, the seals which they had for the due return of
citations and for the dispatch of such business as they were
employed about, had only the name of the office, and not (as
other seals of jurisdiction) the name of the person also engraved
upon it. 2 Bum*8 E. L. 124; Ayliffe Parer. 206.

Perhaps some of the deans of peculiars may have sprung
originally from rural deans.

It seems that, by the power and prescription of archdeacons
and their officios, it happened that, in the next age before the
Reformation, the jurisdiction of rural dean in this island declined
almost to nothing, and at the Reformation, in the public acts of
our reformers no order was taken for the restoration of this part
of the government of our church. In the Reformatio Legttm
this was provided for, but fell to the ground for want of confir>
mation by the lesislative power ; so that these rural officers in
some deaneries have become extinct, in others have only a
name and shadow left ; nor do we find any express care further
taken for the support of this office, but only in the provincial
synod of convocation held at London, 1571, by which it was
ordained, that ''the archdeacon, when he hath finished his
" visitation, shall signify to the bishop what clergymen he hath
** found in bis deanery so well endowed with learning and judg-
" ment as to be worthy to instruct the people in sermons, and to
" rule and preside over others. Out of these the bishop may
'' choose such as he will have to be rural deans.*' This proves at
least that rural deans were thought fit ministers to assist in
dispensing the laws and discipline of our reformed church, and
impliea that, when they are deputed by the bishop, they may

u 2

892 Mtimt anil Cl^aiitertf.

Rural exert all the power which, by Canon and custom, resided in the
^^°' said office before the Reformation.

The little that remains of this dignity and jurisdiction depends
now on the custom of places and the pleasure of diocesans*
Ken. Par. Ant. 652; GodoL Abr. Ap.7;& Bum's E. L. 125.

In 1711, amongst other things which the convocation was
directed to inquire into was *' how rural deans might be made
'* more effectual." Burnett's Hist, awn Times^ 4 vol. 261v
^^^I£!f!l_ A chapter was instituted to assist the bishop in matters re-
lating to the church, for the better ordering and disposing the
things, and confirming the leases thereof, and anciently, also, to
govern the diocese in time of vacation. Godot* Abr. 56, 58 ;
Aylijfe Parer. 200 ; 3 Rep. 75.

A chapter consists of canons and prebendaries, all subordi-*
nate to the bishop, of whom the dean is the head. Gadoid ib*

There may be a chapter, however, without an episcopal see,
as at Westminster and at Windsor ; but these seem more pro-
perly to be called colleges. 2 Bum's E. L.87\ Wood,b. l,c.3.

So also, there may be an episcopal see and a chapter without
any dean, as in the cathedral churches of Llandaff^ and St.
David's. At both of these the bishop is the head of the chapter;
and in the absence of the bishop, or during the vacancy of the
see, the chantor presides at St. I>avid*s and the archdeacon at
Llandaff: Aylife Parer. 205.

There may also be a chapter without either episcopal see or
dean, as the chapter of tne collegiate church of Southwell*
2 Bum's E. L.87; 1 Mod. 204.

Again, a bishop may have two chapters, and that by union
and consolidation ; as in the bishop of Waterford*s caee^ who
had the see of Lismore and its chapter united to that of Waters
ford; in which case> although the chapter of Lismore only
confirmed the grants of lands belonging to the see of Lismore,
and the chapter of Waterfbrd only confirmed those grants of
lands belongm^ to Waterford, yet because^ since the union of
the two sees, the chapters had confirmed severally, the judges
held such confirmation to be good, because it should b^ intended
that the union was made in this manner ; but otherwise, if a
bishop have two chapters, for then each must confirm hb leases*
12 Rep. 71 a; Godol. Abr. 58 ; Dyer, 262 b.
Canons A canon is an officer of a cathedral, and so also is a preben-

andpreben- clary, SO Called, as Lord Coke says, 8 Rep. 75 A, from prtBbendOf

1 from the assistance he is supposed to render to die bishop; but,

as others say, from the assistance the church affbrdeth him in

meat, drink, and other necessaries. Gibs. 195; 2 Bum^s

E. L. 88 ; Lindw. 144; Dyer, 294 b.

Prebend. A prebend is an endowment in land^ or pension in money,

given to a cathedral or conventual church in pnebemlumf that

MtHM anb Cl^ajptersf. 293

18, for the maintenance of a secular priest, or regular canon. Prebend.
Ken. Par, Ant. Gloss. 3 Rep. 75 b.

Prebends are sometimes donative. At Westminster the king,
wfao is now the patron of most of the great prebends, collates by
patent ; of common right the bishop is the patron. Ayliffe
Barer. 201.

Prebendaries are of two sorts, simple and dignitary. A simple Preben.
prebendary is one who has no cure and hath no more than his ^^^y-
prebend for his support. A dignitary prebendary has a juris-
diction always annexed. Wherefore he is called a dignitary, and
his jurisdiction is gained by prescription. 2 Bum's E. L. 88.

If a bishop be the patron, he collates ; but if a layman, then
be presents to the bishop, who institutes, as in other cases, and
the dean and chapter induct him, by placing the new preben-
dary in a stall in the cathedral church to which they belong.
W^herefore he is said to have a place in the choir. 2 Bum's
E, L. 89; I Anders. 2^\. When the king collates by patent,
the prebendary takes possession without institution or induction.
lb. It has been held that a mandamus will lie to admit to a

Erebend ; Str. 1 082 ; but this case seems not now to be recognised ;
ut a mandamus will be granted to compel an election, to fill a
vacancy. 1 T. R. G52\ 1 T. R. 401.

None can hold two prebends in the same church ; I ^ 2
Viet. c. 106, s. 2 ; vid. post, '* Plurality ;" and if he accepts
the deanery, his prebend is void, or if he be made bishop,
the king will present to his prebend ; 2 Burn's E. L. 89 ;
formerly there was no reason why he should not have two
prebends in difierent churches, but this is now restrained by
1^2 Vict. c. 106, s. 2. A prebend and parochial benefice also
may be held together without dispensation, the former not
having cure of souls attached, for which reason^ also, a preben-
dary, not having any cure of souls, might have been a layman ;
but now, by 18 ^ 14 Car. 2, no layman is capable of being
admitted to any ecclesiastical promotion, except, perhaps, in
particular and excepted cases. Wats. c.\A\2 Bum's E. L. 90.

A prebendary having a distinct estate, and also a vote in the
chapter, is a sole corporator in respect of the first, and a mem-
ber of a corporation aggregate in respect of the latter. 2 Burns
E. L. 90. If his prebend lie in a different county from the
cathedral, guare impedit must be brought in the county where
the cathedral is. 2 Bum's E. L. 90 ; Dy. 194 a.

Although a prebendary must conform to the same observances
as others, when qualifying for ecclesiastical benefices, he need
not subscribe or read the thirty-nine articles under 18 Eliz.
e. 12, that statute only applying to those who have cure of souls.
2 Burns E. L. 90. By Canon 43, prebendaries are bound to
preach in their cathedral, or collegiate churches, but also in

294

Btmi anil Cffopttai^

Preben. other churches in the same diocese, in the same manner as

^^' deans. Fid. ante, ^1.

Institution. A prebend may be annexed to an archdeaconry, and then
induction and institution to the latter constitutes the person so
instituted the prebendary, both in fact and in law. 1 £• ^
AdoL 794 ; 3 B. ^ AdoL 95.

Mandamus, as said above, is to compel an election, in order
to fill a vacancy among the canons residentiary ; I T. R. 65S ;
and a peremptory mandamus, to admit a prebendary to his stall
and voice; 1 Stra, 159; but none lies to restore one deprived
by sentence of a visitor. 1 fVils. 206.

By the 28 Hen. 8, c. 11, f. 3, the profits of a prebend during
vacation are to go to the successor towards the payment of the
first fruits ; but this seems to apply to such possessions as he
has in his separate capacity as a sole corporation. Those that
he has as a member of a corporation aggregate, shall it seems,
be divided amongst the dean and chapter. Godol. Abu 52 ;
Bum's E.L. 91.

Where a prebendary has the advowson of a rectory in right
of his prebend, and dies whilst the church is vacant, his per-
sonal representative has the right of presentation. Rennell v.
the Bishop of Lincoln and others ^ 7 jB. ^ C 1 13 ; 8 Bing^ 490 ;
vid. ante, 18.

Dean and I'he dean and chapter as a body are of common right guar-

cbapter. dians of the spiritualities of the bishopric during vacation;
although the archbishop now usually hath that right by pre-
scription or composition ; but when the archbishopric is vacant
the dean and chapter of the archiepiscopal see are guardians of
the spiritualities throughout the province. Godol. Abr. 55.
A statute made by dean and chapter to bind their successors
and not themselves is void, and is so declared by the Canon law.
\ M. ^ S. 205. A gift or alienation to the chapter, the deanery
being void^is not good; Moor. 52; for it is no perfect corpora*
tion without the dean, as it is without the chapter. Bridgm. ]48.
Besides the authority which deans and chapters have within
their own bodies, they have sometimes an ecclesiastical juris-
diction in several neighbouring parishes and deaneries ; and this
ecclesiastical jurisdiction is executed by their officials. 2 Burns
E. L. 93; Johns. 5^\ Wood, 6. 1, c. 3. A dean and chapter
are of higher rank than an archdeacon. The dean himself is
next to the bishop. He is constantly styled in ecclesiastical re-
cords *' Archi-Presbyier" but an archdeacon ** Archi-diaconus.'*
Indeed in some respects a dean is corordinate with a bishop, and
the dean and chapter in some instances have a control over
him.^ Parham v. Templar, 3 Phill. 24^.

Right to With regard to the conflicting rights of deans on the one

oS^^ hand, and prebendaries on the other, to make appointments to

Starat aiUi Cl^apterd. 295

the choir; or to nominate to preferments belonging to the i^^°a»(i
body; and concerning the negative powers of deans, arising ^ ^^^' —
out of local statutes and charters, cid. the case of Glou- Hightto
cesier and the opinions of Sir R. Raymond and Sir P. York, l^^^^
the attorney and solicitor generals thereon ; and the case referred
to three bishops ; in which the dean of Bristol and the chapter
severally claimed tlie right to appoint the officers of the cathe-
dral ; and a similar case from Gloucester referred to the arch-
bishop of Canterbury, the master of the rolls, and the dean of
the arches; in both which last cases it was decided, that the right
was in the dean and chapter, and, the dean being absent, in
the Tice-dean and chapter. 2 Burn's E. L, 110 — \2,

A cause of defamation (o) is said to be a criminal or a mixed
cause, that is, partly criminal and partly civil ; Conset. 335 ;
Onghtony tit. Sd9; or more accurately perhaps stated by
Oughton, ib. note a, '* causa criminaUs civiliter intentata ; **
1 Add. 125.

Where the words used are clearly defamatory, it is immaterial
whether they are in writing or used orally. 2 Lee, 105.
Oughton says, " A party proved guilty of written defamation
ought to be punisned more severely than the speaker of de-
famatory words only." Tit. 268.
By the civil law, a person had his election, whether he
would prosecute the defamer **ad vindictam publicam*' or
" ad privatum inter esse'* Ridley's View of Civil Law, 216.
But both of these, the person defamed could not have;
having obtained a sentence against the defamer for his recan-
tation in a suit " ad vindictam publicam,** he might possibly
have in lieu thereof a pecuniary recompense by way of commu-

(a) The Commissioners on the jurisdiction and practice of the eccksi-
asHeal courts, in their general report, p. 63, recommend that as the
benefit resulting from the present exercise of the ecclesiastical jurisdic-
tion in cases of defamation, is not commensurate with the evils attendant
upon it ; that the cognizance of such causes should be wholly with«
drawn from the ecdcwiastical courts, and that parties aggrieved should
have their remedy by xesorting to magistrates in petty sessions, who
be allowed a power to fine and imprision.

296

Befantation.

IfVhen cog*
Disable
in the spiri-
tual court.

What
words.

Bawd.

Diunkard,
&c.

tation. The prosecution *'ad wndiciam'' wa6 left to the e(V
clesiastical jurisdiction, and the other to the temporal. Much
in conformity to what the laws of this realm seem to say, vi».^
that where the prosecution is merely for punishing sin and ill
manners, and no money demanded, there the spiritual court
shall take cognizance of the defamation ; but where money ia
demanded in satisfaction of the wrong, there the temporal court
shall have jurisdiction, especially if the defamer undertakes to
justify the matter, or the words do express or imply a crime,
belonging to the cognizance of the common law. Ayliffe
Purer. 214.

By the statute of circumspecie tigatis^ 13 Ed. 1, c. 4, it is
enacted, that in cases of defamation, it hath been granted al-
ready, that it shall be tried in a spiritual court, when money is
not demanded ; but a thing done for punishment of sin, the
spiritual judge shall have power to take knowledge, notwith-
standing the king's prohibition.

By stat. articuli cleri, 9 Ed. 2, c. 4. It is enacted, that in de-
famations, prelates shall correct the king's prohibition notwith-
standing, first enforcing a penance corporal, which, if the offender
will redeem, the prelate may freely receive the money, though
the king's prohibition be showed. He who is defamed, cannot
sue in the spiritual court for damages, but only pro salute
anima of the defamer. 4 jRep. 20.

It is an uncontrovertible principle of the ecclesiasUcal courts,
that only such defamatory words are cognisable therci which
impute an offence which would be punishable there ; neither is it
sufficient that the words impute an ecclesiastical offence, unless
also it be an offence which is not cognisable at common law«
Thus, if the words are " that such a person is a bawd," a suit
lies in the ecclesiastical court ; but if they are that '* such a
person keeps a bawdy-house," they are out of the jurisdiction
of that court, because they may be the subject of an indictment.
Cro. Car. 22Q. For though the latter cannot be charged with-
out charging the other also by inference, it has always been
held a ground of prohibition ; for the courts of common law have
determined that there can be no suit for defamation in the
ecclesiastical court when an action would lie at the common law.
1 Hag. Con. 463, in notts^ vid. '' Prohibition.*'

A suit in the ecclesiastical court may be had for calling a man
a drunkard or usurer ; for though there is a statute inflicting a
penalty fur drunkenness, and also for usury, yet in these cases
there is an express saving of the ecclesiastical jurisdiction ;
but it is different with regard to the words ** he is a common
swearer," there being several statutes inflicting penalties for
^w^aring, but no saving of eccleaiastical jurisdiction. HtsrriM.

Befamattoit 297

▼» BuOer, Arches, 1798; coram Sir W. Wffnne; 1 Hag. When cog*

Ctm. 463, in noiit. ttTs^^iritual

A woman may sue in the spiritual court for defamation, coufl""'

charging her with whoredom ; 1 Ld, Raym* 508 ; or a man, if ;- —

called "whore-master;" 2 Salk. 692: for in such case, no chMtity.
action lies at law, fornication and adultery being subjects of
spiritual, and not temporal censures ; ib. 1004; but to impute
incontinence to a woman in London, may, it seems, be by cus- q^^^^^ ^f
torn cognisable by the temporal courts : so also it is said by London,
custom in South wark; 1 Keb, 418; 1 Sid. 97; and in Bristol, &<*•
I fViU. 62 ; Andrews^ 300. But in order to bring it within
the custom, and give the temporal courts jurisdiction, the charge
must be of incontinence. In London it is not sufficient if the
declaration allege that she resided in London. Robertson v.
PoucU, M. T. 57 Geo. 3 ; 2 Burn's E. L. 134. So, to call a
man a pimp, Ld. Raym. 236, or a wittol, 2 Sallr. 692; Cro. Car. wittoi.
339, which imputes connivance in his wife's adultery, are defama-
tions punishable in the spiritual court, being all imputations of ec-
clesiastical offences. A wife may institute a suit in the spiritual words
court without her husband joining, for words charging adultery, imputingr
because she is liable to do penance ; 1 Roll. Rep. 4^6 ; 3 Bulsir. "<>uit«ry.
261 ; and the husband cannot release the suit, even though
divorced, a mensd et ihoro, without her assent ; for it is to re-
store her credit. Sir. 576; Ld. Raym. 74. But a hus-
band cannot maintain a suit for being called cuckold without
his wife joining, for then she is the person defamed. 2 Lev. 66.
If a man, having lands by descent, be called a bastard, and sue Bastaid.
in the spiritual court, a proliibition will be granted, for the
charge tends to disinherit him. 2 Roll. Abr. 292.

If a clergyman be defamed in any article relating to the dis-' spoken of a
charge of his ministerial functions, it is agreed by the books of clergyman.
common law, to be duly triable in the spiritual courts. 2 Bum's
E. L. 132; Gibs. 1025. But it is presumed, that the charge
to be made must be of such a matter as would subject
him only to ecclesiastical censure and punishment: for if the
prosecution of the suit in the spiritual court would lead to de-
privation, that would be a temporal damage consequent upon
the charge, which would give him a ground of action in the
temporal courts, and therefore a prohibition would in such a
case be granted. 2 Salk. 692 ; Cro. Jac. 472.

With regard to the mode of defamation, it is immaterial
whether it is by writing, or by parol, 2 Lee, 103, or by ges*
tures, caricatures, or the like, Aylijfe Parer. 214.

The rule as to proceedings in the spiritual court in matters of General
defamation as extracted from all the cases, seems to be, that principle.
scandalous words, which impute to any one a crime indictable at
common law, and for which he may suffer corporal punishment.

298 Befuitattotu

When cogi^ or the having a contagious disorder, or corruption in any office
i^sp^tual ^^ ^'"®* » ^^ dishonesty, or incompetency in his trade or profes-
court sion, are actionable in themselves, and therefore cannot be

T ~ — made the subject of a suit in the spiritual court. So, also,

principle, words which although not actionable in themselves, yet if the
speaking them is or may be attended with special damage to
the person of whom they are spoken, he has his remedy by
action, and the spiritual court is therefora ousted of its juris-
diction.

If words for which an action will lie, are coupled with
words which amount to spiritual defamation, and a suit is
instituted in the spiritual court for the whole, a prohibition
lies, for it would be vexatious to proceed in both courts ; 1 Ed*
3, Stat. 2, c* 1 1 1 12 Bep. 43 ; and it is only for the imputation
of matters determinable and punishable in the spiritual court,
and there only, that suits for defamation will lie in that court.

For the purpose of founding a suit in the ecclesiastical
court, it is not necessary that the very word of infamy should be
spoken : there is a variety of cases where circumlocutions of the
same import have been held to be sufficient. 1 Hag, Con. 464,
674. The meaning of the words, however, must be clear and
definite ; not fairly capable of another interpretation. In a case
where it was said of a woman, " what do you live with that fellow
*^ for? " meaning W. S., the husband of complainant ; *' he has
'' a wife in the country that he was married to before he married
''<you ; and she is now living at G. ; and how can you be his wife ?
** and what must you be to live with another woman's husband ? "
Lord Stotceli said, ** If there had been any thing expressed to
*' show that the plaintiff was affected with the knowledge of
'' there being any other person living in the character of a former
** wife, it would amount to a charge of incontinence ; but other-
'' wise, the words will not come within the scope and meaning
" of defamatory words implying incontinence." Smith v. Wat-
kw^; 2PhiU. 106; 1 Hag. Cm. 467.
Words spo- By 1 Ed. 3, «. 2, e. 11, it was recited that, when divers per-
ken in judi- sons, as Well clerks as lay, have been indicted before sheriffs in
€c«d?n«. ^^^ toums, and after inquest procured, delivered to the j ustices ;
after their deliverance, do sue in the spiritual courts against
such indictors surmising against them that have defiuned them to
the great damage of indictors; the king will, that in such case
every man that feeleth himself aggrieved shall have a prohibition
formed in the chancery upon such case.

Although the statute in terms only provides for indictors in
the toarns, yet it extends to all other courts, and to all witnesses,
and to all others who have affiurs in the temporal courts.
l^iS^p. 43^ AffL Parer. 218^ Thua, in a case of prohiln-
tion, where a man sued in the spiritual court for defamation.

StfRmatiott. 299

calling bim a vhoremaAter, and saying he had a bastard, it was Wordii
shown that the party suing in the ecclesiastical court was sen- j^idai'*^
tenoed for this cause and ordered to keep the bastard by the procetd-

sessiona ; and notwithstanding he would examine this again in i°f»-_

the spiritual court. Upon this suggestion the defendant in pro-
hibition demarred. The prohibition was adjudged to stand ;
for, being sentenced to be the reputed father by the justices by
authority of the statute, it cannot now be impeached in the
spiritual court or elsewhere. Cro. Jac. 625 ; and 9%d. 2 RoU,
Rep. 82, post •• Prohibition^

According to Oughton^ tit. S64*, apparently copying from Exceptive
CoH$eL 340, 341, and 143, if a witness is excepted to in an excep- ?",®^°"
tive allegation in the spiritual court, imputing to him spiritual of« cou^t? "
fencesor containing defamatory words cognisable there, and fail
in the proof; such witness may sue the party propounding such
exceptive allegation for defamation in the spiritual court,
Tuks, 265 or 266, contain directions how a witness so defamed
juay proceed in such case. There seems, however, to be no
instance of, nor precedent for such suit.

Before the statute 27 G. 3, e. 44, «. 1, by the practice of the Limitation
ecclesiastical courts, suits for defamation were to be brought o^ s"*^*
within the year. '^ Dqfamationis causa iollitur^ si defamatus
non itisiiiuerit actionem^ infra annum a die prolationis verbo-
rumy Oughton^ tit. 259 a. But if the defamatory words were
uttered during the absence of the plaintiff, he being, perhaps,
out of the kingdom* yet if he institute the cause as soon as he
returns, or at least within a year of his return, his action is not
taken away ; Oughton, tit. 260; Conset, 336 ; but issue must
have been joined within the year ; 1 Hag* Con. 213 ; but now,
by the above statute it is enacted, that *' no suit for defamatory
words shall be brought in any ecclesiastical court, unless the
same shall be commenced within six calendar months from the
time when such words shall have been spoken.*'

The form and mode of proceeding in causes of defamation in
the spiritual courts is given fully in Oughton, tit. 263, 264,
%5,266; Couset.SSli and in A^liffe Parer. 215; and a
mode is suggested in the two former writers by which a
cause of defamation might have been indirectly pursued, not-
withstanding the words of defamation were spoken above a
year from the commencement of the suit, by averring that the
defendant has incurred sentence of excommunication by the
speaking of the defamatory words, and sentence was to be pro-
nounced that the party defaming hath incurred excommunica-
tion ; from which he was not to be absolved till he had done the
penance assigned by the judge. But in such case it is advised
by Clarke in his Praxis not to sue in his own name, but as pro-
moting and imploring the office of the judge. Consst* 339.

800 Be&matiotu

OC the wit* The manner of praying and pronouncing sentence is given by
Ougkton, tit. 268 ; Coruet. SiS.

By the rules of the civil law, two witnesses are required to
prove the commission of any crime, the presumption in favour
of innocence being considered as nearly equal to the oath of
one. The inconvenience attending the rule requiring a certain
number of witnesses, or a defined amount of evidence, to make
full proof, has produced great departures from that rule in many
systems founded on the civil law ; and in the ecclesiastical court
it has been always considered sufficient if there are two wit-
nesses speaking separately to different facts of defamation, (of
the same species) committed at different times ; Crompton v.
Butler^ 1 Hag, Con. 463. Nor, when speaking of the same
fact of defamation, is it necessary that they should speak pre-
cisely to the identical words in the same terms. Allowance
must be made for inaccuracy of recollection. Cole v. Corder^
2 PhiU. 108; 3 PhiU. 539.
Punish- The punishment of defamation is penance, to be enjoined at

Bent. ({|g discretion of the judge ; and afler passing of the sentence

the judge declareth, in the presence of the offender or his

Iiroctor, the manner in which the penance shall be performed,
f the party is present, he is admonished by the judge;
if absent a monition issueth against him under seal, to take out
of the registry of the court a schedule of his penance, and to
perform the same according to the form of the said schedule,
and to make certificate of the due performance thereof, on or
before such court day as shall have been appointed ; and also to
pay the costs taxed within a limited time, on pain of excommu-
nication. 2 Bum's E. Z. 138 ; 2 Hag. 1 ; 1 Oughion, tit. 26H.
Husband We have seen above that a husband cannot release the suit

nuclease commenced by his wife durinff coverture. Str, 576. But he

^ may release the costs and bar his wife; for, since the husband

is liable to the charges of the suit expended by the wife, he
shall have his costs in recompense. Besides, the wife cannot
have a chattel interest to the exclusion of her husband ; but if
the husband die the wife shall have them, for being a thing in
action they do not go to the executors. Lord Raym* 74.
Mutual de« If any person is called to answer in a cause of defamati<Mi| and
fimation. jf ^^ plamtiff hath also defamed the defendant, the defendant
may, in the very same cause re-convene the plaintiff*, that is, he
may give a libel in presence of the plaintiff and his proctor,
though no citation was first taken out against him. But in these
cases of re-convention the parties must proceed together in the
contesting of suit, in desiring one and the same term probatory,
in the production of witnesses, in the conclusion, and in the pro-
nouncing of sentence ; and so on in all things unto the end of
the suit. If defamatory words, mentioned in the libel, are

BtfiMiuitdm. 301

oiutually proredy a mutual compensation is to be made, both as ^"^ ^^

to the penance and the charges ; that is, there ought to be no "*

penance enjoinedy nor any condemnation in charges on either

part. But it is otherwise where two separate causes of defama^

tion are commenced. And note, that in causes of re-conven*

tion, though a compensation may be made between the parties,

yet, seeing defamers are by law to be corrected, the judge may,

if he pleaseth, correct these defamers, ex mero officio^ at his

pleasure. Clarke" % Praxis, Hi. 184 ; Oughton, tit. 8GJ ; Gm-

seL 339.

Degradation is an ecclesiastical punishment whereby a Degimda-
clergyman, either priest or deacon, is deprived of his orders and !'o°'
incapacitated from discharging the duties of his holy function.

By the Canon law, degradation might be accomplished two Sttmmarily,
ways, summarily as by word only. Solemnly as by divest-
ing the party degraded of those ornaments and rites, which
were the ensigns of his order or degree. Gibs. Cod, Solemnly.
1113; GodoL Abr. 309. Anciently, if any among the clergy
had done anything worthy of death or open shame, he was
not directly executed or exposed to death or open shame, but
was first degradedhy the bisnop and his clergy, and so publicly
punished, not as a clerk, but as a lay malefactor. Godot. Abr.
309, AyUffeParer.mr.

Degradations were sometimes distinguished as actual and ver- Verbal.
bal ; the first is when a man is deprived of his orders and is pro-
perly called degradation ; the second or verbal degradation, Actual,
sometimes called a r^a/ degradation, is the depriving a man of his
office and benefice. Post ** Deprivation.** The canonists have
questioned how many bishops ought to be present and assisting at
an actual degradation; and it is said if the person to be degraded
be a bishop, twelve bishops should assist thereat; if only a
presbyter then six are suflfeient; if only a deacon or sub-
deacon three are enough ; and if he be merely a clerk, in the
lesser orders, then his own proper bishop may degrade him.
And it is to be observed, that if such bishops disagree among
themselves in pronouncing sentence, the major part of them shaU
be suflScient, according to the common opinion of the doctors.
Aytiffe Parer. 2m.

302

iBeptibation.

1. Without
sentence.

2. By sen-
tence.

Without
•enteoce.

Called by the canonists by the names of depositioOy degra-
dation! or exauctoration, is nothing else but the removing a
person from some degree, dignity, or order in the church ; and
the depriving him of his ecclesiastical preferments. AyUffe
Parer. 206 ; Degge, 80 ; Godol. Abr. 306.

The canonists, in strictness, make a distinction between
degradation and deposition. For the word degradation is com-
monly used to denote a deprivation and removing a man from
his degree ; but the word deposition, properly signifies a solemn
depriving a man of his clerical orders by the way of sentence ;
and this punishment of degradation, or deposition, is sometimes
inflicted by an ecclesiastical, and sometimes by a lay judge,
according to the civil law ; though only by an ecclesiastical judge
according to the canon law. AyUffe^ tb. ante '' DegracUUian,*'
By 29 Can 2, c. 9, which was an act for taking away the writ * ' De
haretico comburendOf'' a proviso was introduced in the 2d sec-
tion, for the ecclesiastical courts to punish by excommunica-
tion, deprivation, degradation, and other ecclesiastical censures,
not extending to death, in such sort and no other, as they might
have done before the making of the act* Gibs^Cod. 2i&

Where the thing done is in itself actually null, void, and in-
operative in law, as the presentation of a layman to a benefice,
there is no need of a sentence of deprivation.

So also, where a statute declares that upon the doing, or the
omission to do a certain act, the party shall be ipso facto de-
prived.

But where the doing, or the omission to do certain acts are
causes only for deprivation by the ecclesiastical court, then there
must be sentence of deprivation.

By Stat. 13 ^ 14 Car, 2, c. 4, s. 14, it is enacted, that no
person shall be capable of being admitted to any benefice who
18 not admitted a priest ; in this case, supposing that there has
been an admission in fact, of a person not in priest's orders, the
statute declares it to be a nullity; the church is absolutely
vacant ; and any proceeding or sentence for the purpose of de-
privation unnecessary. Before the above act, if a layman were
presented, instituted, and inducted, he was a parson, de faetOy
and could only be deprived by an ecclesiastical sentence. Hob.
140; Cro. Car.^, Cro.EUx.776; Godol. Abr. 308, 3U;
Vin. Abr. " Presentation,'' L. a. b.

Beprtbatioiu 303

The 31 Eliz. e. 6, 8. 10, enacts, that if within seven Simoniacai
years after a corrupt entering into the ministry or receiving j^o^'^
of orders, any person shall accept any benefice or promotion ""^

ecclesiastical, the same shall be void immediately upon his in-
duction, investiture, or installation; and the patron^ shall
present or collate, or dispose of the same as if he were dead.
But generally it should seem that if a bishop admit and institute
a clerk into a living, who is subject to canonical incapacity only,
the church b full cfe /ado till sentence of nullity, or sen-
tence declaratory, as the case requires ; and no lapse incurs.

Woere a statute declares that a party shall be ipso facto Jpuf facto
deprived if he do, or omit to do, any thing required to be <*•?"▼«*•
done by such statute. Degge says, p. 83, *' There may

be a question stated what shall be intended by the words

deprived ipso facto^ whether by those words the church

shall become immediately void by the fact done, or not till con-
" vtction, or a sentence declaratory. The words ipso facto are
*' of late time crept into acts of parliament ; as that for striking
'* with a weapon in a chnrchyarid, the party shall ipso facto be
" excommunicate, and in that case it is made a qutsere by Dyer.
" But in Grovels case, Dyer^ 2, 75 b., it is resolved, that
'' the church in this case shall be void without any sentence de-
" claratory, and that ordinances by acts of parliament need no
" sentence declaratory.'* Vid. GodoL Abr. 388. So, where by
the eoundl of Lateran, it is declared that an incumbent taking
a second benefice, ** eo sit ipso jure privatus, the clerk is de^
*' prived by the law itself, ipso jure f*" without any actual sentence
of deprivation ; and the patron may then freely present a clerk
without any other act done. Alston v. Atlay^ 7 Ad. ^ EU.
306i2Nev.^P.49Z.{a)

Incumbent refusing to use the Book of Common Prayer, or Hefuring to
speaking or preaching anything in derogation thereof, or using ^"^np^^,^
any other rite or ceremony, being thereof twice convicted, shall
ipso facto be deprived; 2^3 Ed. 6, c. 1, and 1 Elix.
c. 2; 5 Rep. 1 ; Poph. 59 ; GodoL Abr. 309.

Any one not reading publicly the thirty-»nine articles of re- NotiwdiDg
ligion, in die church whereof he has cure in the time of com- ^ trticlei.
mon prayer, with declaration of his assent thereto, within two
months after induction, shall be ipso facto immediately de-
prived. 13 EUm. c. le ; Godol. Abr. 307, 31 1 ; Cro. Eliz. 680.
The 23 G. £, c. 29, extends the term beyond two months.

Any one not being admitted to administer the sacraments Adroiniitttr*

l_ ^ . IDgMCim*

/ \ Tk . • » « incnts*

(a) Depnvations ** tpio jure and ipso facto" are said to have been

first introduced by the Synod of London, 1237. Johns. Can. 15.

304 fittiribattom

Bepriva. within one year after induction, if not admitted beforei shall be
Xa^ ipso facto immediately deprived. 13 Eliz. c 12.

^ T — Any person not reading the morning and evening prayer^

CommoQ°^ and declaring his unfeigned assent thereto, according to the
Prayer. prescribed form, within two months after actual possession ; or
in case of impediment, within one month after such impediment
removed, shall ipso facto be deprived. 13 ^ 14 Car. 2, c. 4,
s* 6. Nor subscribing the declaration of conformity to the
Liturgy of the church of England, and not procuring a certi-
ficate under the hand and seal of the ordinary, who is required
to make the same]; and who shall not publicly and openly read
the same, together with the declaration aforesaid, upon some
Lord's-day, within three months then next following, in his pa-
rish church, in the time of divine service ; shall be utterly dis-
abled, and ipso facto deprived. 13 ^ 14 Car, S, c* 4, ^. 8 ;
explained by 1 fV. ^ M. sess, 1, c. 8, «. 1 1.
Depriva- The third class of cases is that which requires the interven-

tion by sen- ({qh of the ecclesiastical court, before which the charge con-
^^°^*' stituting the ground of deprivation must be proved, and where

sentence of deprivation must be passed.
Maintain. Thus, the advisedly maintaining or affirming any doctrine
iog doctrine contrary to the thirty-nine articles, and when convented before
39°article3. ^^ bishop or Commissioners, persisting therein, and being

thereof lawfully convicted.

In the case of the Kings Procurator General v. StonCy 1 Hag,
Con, 424, which was a proceeding under this branch of the sta-
tute, the court, Lord Stowell, having expressed himself satisfied
of both the printing and publishing the objectionable matter,
proceeded, '* Then what is the duty of the court ? It cannot
'* refuse its authority to carry into effect the statutes of the
" land. It might proceed immediately after the persisting in
*' these doctrines which we have heard this day to pronounce
the sentence of the law. But the court is disposed to act
with greater indulgence, and will content itself with admonish-
'' ing the defendant, though not encouraged to expect any effect
from this admonition, to appear the next court day to revoke
his errors, with an intimation that, if he does not obey this
" admonition, the court will feel itself under the necessity of
'' proceeding to inflict the particular penalty which the statute
" directs." On the following court day, the party proceeded
against tendered the following paper : " I, F. S., rector of C«,
" in, &c. do declare that I was not aware that, by preaching my
** sermon before the archdeacon, I was offending against an act
of parliament passed in the reign of Elizabeth; and, farther,
I was persuaded that my solemn engagements with the bishop
at my ordination as priest authorised me to preach as I did,

€€
tt

Brpnbation* 305

" But, as the arcTibishop affirms, that I should preacli only what Mamtain-

" is consistent with the Thirty-nine Articles, I do promise not ["fj^^J^o,,.

" to offend again in like manner. Signed, F. S." Speaking of trary to 39

the concluding sentence of this paper, the court said, " Who articles.

" can say otherwise than that this is a mere promise of future

" silence, but no revocation of past error. It is no revocation^

" and that is the demand of the statute. It might be sufficient,

'* if mere future silence was all that was required ; but it is no

" revocation of the fact. I am, therefore, under the painful

" necessity of considering Mr. S. as having declined to revoke

** his error and to comply with the requisition of the statute ;

" and I must direct the registrar to record that the party has

" not revoked his error." Sentence of deprivation was then

passed by the bishop of London. And vid. Godol, Abr.

,307,312.

In all causes of deprivation, when a person is in actual pos-
session of a benefice, these things must concur : First. The
party must be cited, and admonished to appear. Secondly, A
charge must be given against him by way of libel or articles.
Thirdly. A competent time must be assigned for his proofs and
interrogatories. Fourthly, The person accused shall have the
liberty of counsel, to defend his cause, to except against wit-
nesses, and to bring legal proof against them ; and, Fifthly^
there must be a solemh sentence by the bishop, and hearing the
merits of the cause, and the pleadings on both sides. Ayliffe
Parer. 209.

Incontinency, drunkenness after monition, and gross scandal, Inconti-
are deemed sufficient grounds for deprivation, when proved to "^"^^y*
the satisfaction of the court; 6 Rep. 13 6; Hob, 291; Cro,
EUz. 41 ; Sanders v. Davies, 1 Ad. 296; Free v. Burgoyne^
2 Hag. 6(S2, ante ; in this last case, which was before the de-
legates in 1830, a doubt was suggested by the court whether
deprivation without any antecedent monition or suspension was
the proper punishment for fornication ; but after a reference to
various passages in the Canon law and to reported cases, and
upon a consideration that, if a monition was not necessary to
precede a sentence of deprivation on account of adultery, nor a
sentence of suspension, for any offence ; no reason nor principle
seemed to exist why it should be required in respect to depri*
vationfor aggravated and notorious fornication; more especially
in a case where there was full proof of a series of offences, and
that in consequence the parishioners had for a length of time
almost wholly ceased to attend their parish church. But except
in very aggravated cases suspension seems the more usual punish-
ment. I Ad. 296; 1 Phill. 276 ; 1 Hag. 43, ante.

Disobedience to the orders and constitutions made for the go- DisobedU
vernment of the church, is cause for deprivation. Cro. Jac, 57. ence.

306

Bepriiiatfon.

Conviction
of treason
or felony.

Being
chirged
with crime.

Appeal
from sen-
tence.

So also conviction, of treason, murder, or other felony by a
temporal court; Hob. 121 ; or of perjury, either in a temporal
or ecclesiastical court. 5 Rep. 58 ; Gibs. 106&

So also the being charged with unnatural ofienoes and flyings
from justice. Bishop of Chgher's case^ XdStH,

The causes for deprivation enumerated in Gibs, Cod. 1116,
are: 1* Want of orders. 2. Want of abilities; Hob* 149.
3. Want of age; 5 Rep. 58 a. 4. Simony; 1 Roll. Rep. S35.
5. Infidelity and miscreancy ; 5 Rep. 31 6., 58 a. 6. Incontinence ;
6 Rep. 13 6; Cro. Eliz. 41, 789; Hob. 293. 7. Drunkenness ;
1 Brownl. 70. 8. Murder and manslaughter. 9. Perjury ;
5 Rep. 58 a. 10. Dilapidation ; 3 In^. 204. Vid. also Ayliffe
Parer. SOS. Godotphin^ p. 806, states that the causes of depriva*
tion may be reduced to three general heads : L Want of capa>-
city ; 2. Contempt ; 3. Crime.

It is stated to have been resolved in /S]p«eol*« ectscr^ Rep. 59,
that whatever are sufficient causes to deprive an incumbent are
sufficient to refuse a presentee ; and Godolphin^ Abr. 308, says
that the converse also is true ; viz. that whatever is an impedi*
ment to the admission of a clerk to a benefice is also cause for
deprivation, and vid. Degge^ 3. It is said also that, although
an incumbent be deprivable, yet the patron cannot presentuntil
he be deprived, for till then the church is not void ; GodoL
Abr. 312, 314; but the learned author can only intend this to
apply to cases where a declaratory sentence is necessary, and
not to those where the benefice is ^* ipso jure^^ or *' ipso facto**
void. T Ad. ^EU. S06.

If the party deprived appeal within due time, such is the
nature thereof that it will hold the sentence in suspense, so
that, if it be brought upon deprivation, it voideth the vigour
thereof and revivetb the former dignity ; for such church shall
not be void until the first sentence of deprivation happen to be
afiirmed on appeal. Godol. Abr, 315.

It has been a question with the canonists how many bishops
ought to be present, and assisting, at a degradation. Ayliffe
Parer. 208. JBy the Reformatio Legum, it was ordained that the
proper bishop might deprive without any other bishop, and with
the assistance of two presbyters only ; yet was the process
throughout to be, not before officers only, but before the bishop
himself. Gibs. Cod. 1116.

By Canon 122. Sentence against a minister of deprivation
from his living shall be pronounced by the bishop only, with the
assistance of his chancellor and dean, (if they conveniently may
be had) and some of the prebendaries, if the court be kept near
the cathedral church; or of the archdeacon, if he may be had
conveniently, and two other at least grave ministers and

Bqmbatfoit. 307

preachers, to be called by the bishop when the court is kept in ^^^^
Other places.

AyUffe says that Pope Alexander III. kys it down as a rule
in law, that clerks malung a judicial confession, or convicted by
legal proof, of certain crimes that deserve suspension or depri*
vation, may be suspended from their officeSi removed from their
orders, and deprived of their benefices by their own proper
bishop. This is the greatest punishment that can be inflicted
in the ecclesiastical court, and therefore it is never inflicted but
io cases directed by law, or for some grievous offence which we
caU enormous. Pater ^ S08.

In England no ecclesiastical judge has the power of depri*
vation, except only the dean of the arches. GodoL Abr.
310,311; lPAi«.277.

In the case of Stone v. Bishop, 2 Hag* Con. 4S4, aHte, 65, 305.
Lford Statoelly being then judge of the consistory court of Lcm-
don, introduced the bishop of London into his court, who read and
sigi^ sentence of deprivation, which the judge directed the
r^strar to record; in Sanders v. Davies, 1 Ad. S96, the
judge. Sir J. NichoU, as dean of the arches, seemed to think
that he was bound by the Canon in this respect as much as the
judges of the inferior courts ; but from a note in the case of
Oliver and Tole v. Hobart, 1 Hag. 47, it appears that in two
cases before the delegates, the exercise of this power by the dean
of the arches was recognized. Fid, also 1 Phill. 277. In
Burgoyne v. Free, 2 Hag. 404, this power seems actually to
have been exercised by the dean. rid. form of the sentence
in that case.

iBtlapitratuinjs.

What are, and who liable for.
Amomit of, and how ascertained.
Kemedies and punishments for.

Suit in ecclesiastical court.

Actions on the case at common law.

Deprivation.

Sequestration.

Monition from ordinary to compel reparation.

Provisions of 1 & 2 Vict. c. 106.

Dilapidation, according to Blackstone, a sort of eccle-
siastical waste, is the suffering the edifices of an ecclesiastical

308

IBtlajptDiationsi.

What are,
and who
liable for.

Misculti-
vaiiou.

Fraudulent
convey-
ances to
defeat re-
medies for
dilapida-
tion9.

benefice to go ti) decay, anil neglecting to repair them. It ex-
tends also to the committing, or suffering to be committed any
wilful waste upon the glebe, woods, or otiier inheritance of the
church, yiyliffe Parer. 217 ; GodoL Abr. 173,

Dilapidations are therefore either permissive from neglect ;
or voluntary, occasioned by some wilful act.

By the injunctions of E(L 6, 1547, it is required
that the proprietors, parsons, vicars, and clerks, having
churches, chapels, or mansions, shall, yearly, bestow upon
the same mansions or chancels of their churches, being in de-
cay, the Jifth part of their benefices till they be fully repaired ;
and the same so repaired, shall always keep and maintain in
good estate. GodoL Abr. 176. Consonant to which, is the
13th article of Queen Elizabeths injunctions given to all the
clergy, in 1576. lb.

The revenue of the clergy is given, not only as a provision
for the clergyman, but also for his suitable residence ; and if
by natural decay, which notwithstanding continual repair, must
at last happen, the building, fences, &c. perish, this revenue
forms the only fund out of which the means of replacing them
can arise. 10 JS. ^ C. 313. And as the person is thus bound
to keep in repair, and prevent permissive waste, h fortiori^ he
is not at liberty to do any act of voluntary waste. S RolL
Abr.%\S.

But miscultivation of glebe land does not fall within the
meaning of dilapidations, and an action on the case will not
lie in respect of it. Bird v. Relph, I Nev, ^ Af. 415 ; 4>
B. §• AdoL 826.

By the provincial constitutions of Edmund^ archbishop of
Canterbury, 21 Hen. 3, 1236, a rector or vicar, endowed,
leaving dilapidations his goods are to be taken for restitution
or instalment. Lyndw. 250. And the Canon law is express
and full in all respects as to this implicit sacrilege. Ayliffe
Parer. 217.

The Stat- of the 13 EUz, e. 10, recites, that as divers eccle-
siastical persons, being endowed and possessed of palaces,
houses, and other edifices and buildings belonging to tlieir ec-
clesiastical benefices or livings, have nut only suffered the same,
for want of due reparations, partly to run to great ruin and de-
cay, and in some part utterly to fall down to the ground,
converting the timber, lead, and stones to their own benefit ;
but also have made deeds of gift, &c. of their goods and chat-
tels in their lifetime, to defeat and defraud their successors
of such remedies, &c., as otherwise they might have had
against their executors or administrators, by the laws ecclesi-
astical of this realm : enacts, that if any archbishop, bishop,
dean, archdeacon, provost, treasurer, chaunter, chancellor.

IBtIapaiatfons(. 309

prebendary, or any other having any dignity or oiBce in any Whit are,
cathedra) or collegiate church ; or if any parson, vicar, or other jjabirfw.

incumbent of any ecclesiastical living, whereunto belong any '—

house or houses, or other buildings, which by law or custom he
is bound to keep and maintain in reparation, do make any deed
or gift, or alienation, or other like conveyance of his movable
goods or chattels, to the intent and purpose aforesaid, the suc-
cessors of him that shall make such deed of gift or alienation,
shall and may commence suit, and have such remedy in any ec-
clesiastical court of this realm, competent for the matter against
him or them, to whom such deed of gift or alienation shall be
so made, for the amendment and reparation of so much of the
said dilapidations and decays, or just recompence of the same,
as hath happened by his fact or default ; in such sort as he
might or ought to have had, if he to whom such deed of gift
or alienation shall be so made, were executor or administrator
of him that made such deed or alienation.

Although in this statute nothing is referred to as dilapida* Hedges and
tiuns but decayed or ruinous buildings, yet it is certain that un* fences.
der that name are comprehended hedges, fences, &c. in the like
condition. And it hath been particularly adjudged concerning
wood and timber, that the felling them by any incumbent, other-
wise than for repairs, or for fuel, is dilapidation. Gibs. Cod.
791 ; 4B.^j1.8S0; 2 Bulstr. 279 ; 3 BuUtr. 158 ; 1 Roll.
Rep. 835. In Bird v. Relph, 2 Ad. ^ Ell. 773, the court said,
** There is no doubt that as to the fences of the ancient glebe,
*' the executors of a vicar are liable to the successor for dilapi-
'' dations, that appears from Lffndwood, 254. So also Gibson,
" in his note on 13 Eliz. c. 10, says that, though it only speaks
'* of palaces, mansion-houses, and other edifices and buildings,
** yet it is certain, that under that name are comprehended
" hedges, fences, &c." Cod, 791. And in the form given in
Gibson, on a commission to inquire into the dilapidations of a
bishop, there are enumerated defects, amongst other things, in
the walls and enclosures.

In Bird v. Relph, supra, it was decided, that an allotment of com- Allotment
men made to a vicar under an inclosure act, is to be treated as old of common.
glebe; and by the law and custom of England, therefore, sub-
ject to dilapidations : the executors of a deceased vicar were
therefore held to be liable for dilapidations in the hedges and
fences, the commissioners being bound in the first instance to make
fences, and the allotment having come to the vicar in a fenced
and enclosed state. But it was added, " it does not however,
'* necessarily follow, that if a vicarage be endowed with new
** land, or, as in this case, with an allotment of common, that
" the vicar would be hdund to repair the fences to it ; because,
'* if it came to the vicar without any fences, the vicar, in

310

SflapOiattonst.

What are,
and who
liable for.

Prebenda-
ries* house.

Cutting
wood.

Executors,
&c.

*' most cases at least would not, unless he put up fences himself.
" be bound to fence it> so as to subject his representatives to an
" action for dilapidations. 2 Ad. &! EIL 781.

In Dr. SancTs case, Skin. 12\, an application was made for a
prohibition in a suit in the ecclesiastical court for dilapidations
against a prebendary of Wells: it appeared that there were eight
prebendal houses belonging to that church ; but no bouse in
certain was allotted to each prebend. It was objected that the
house in question was no part of the prebend ; but the court
held, that when the bishop had assigned a housci it became
part of the prebend, and that the prebendary was liable in a
suit for dilapidations.

With regard to voluntary dilapidations, it is clear, that if a
bishop, archdeacon, parson, or the lilce, abates all the wood upon
the land, he shall be a dilapidation, f^in* Abr. **DUapi^
dations^* A,

The archbishop of Dublin was fined three hundred marks
for disafforesting a forest belonging to the archbisboprick.
Ayliffe Purer. 217.

If a bishop cut and sell trees, and does not employ them for
reparations, a prohibition ought to be granted to him ; ib. ; and
the same of a dean and chapter. Knotol v. Harvey ^ 3 Bul$ir.
158. A bishop is only to fell timber for fuel. The woods are
called the dower of the church. Anon. 2 Bulsir. 2179 ; RoiL
Rep. S35, pi. 44; 11 Rep. 49 a; Skin, 121; RadcUffe ▼.
UOyley, 2 T. R. 630.

By Stat. 35 Ed. 1, entitled, Nerectoresprosternaniarbares in
ctBmeterio, (which Degge, 79, says, was only declaratory of the
commr^n law), parsons are forbid to cut down trees in the church-
yard, except for the repair of the chancel ; and a sort of re-
commendation is given to let them be used for the repairs of
the body of the cnurch, in ease of the parishioners: but pro-
ceedings on this statute must be taken by indictment at common
law, and cannot be taken in the spiritual court. 2 LeCf 378.

The executors or representatives of the deceased bishop or
incumbent, &c. are chargeable with dilapidations in the same
way that the person they represented would have been ; the estate
of the person occasioiung or permitting the dilapidations being
chargeable with them in their hands; and although an express
remedy is given against executors by the statute, they were li-
able to answer by the ecclesiastical law befcre, Gibs. Cod. 791 ;
Wentw. 127; Vin. Abr. Dilap. A.; nor is there any distinction
whether the action be brought against the executor of the for-
mer incumbent, or against the former incumbent himselfi who
leaves, for other preferment, that which he previously held.
2 T. R. 630. But the executor of an administrator is not lia-
ble, unless he hath goods of the first intestatei or be administra-
tor de bonis non. 3 Keb. 619.

saapOiationfif. 3i i

Gibson, saySf Cod, 791, " Executors charged with dilapida- what ire,
" tions are bound to make satisfaction for them before payment »Dd who
" of legacies ; and it might be hoped, before the payment of *!!i^l!_^
** any other debts, since the repairing uf dilapidations is, in the
*' strictest sense, a debt to the church ; and it seems hard that
'' private debts should be satisfied out of the spoils of the
** church, and the church itself be denied the common right of
** restitution." But Degge, says, p. 75, *' But there has been
** a further question, whether satisfaction for dilapidations should
** be preferred in payment before debts and legacies? and as the
** oommon law, prefers the payment of debts before damage for
'* dilapidations; so the ecclesiastical law, prefers the damage for
" dilapidations before the payment of legacies.*' On which Gib-
son remarks. Cod, ib^ " That being the course of the common
" law, we must be content." Ayliffe Purer. 217.

A curate appointed by the impropriator, and licensed by Liceiued
tbe archbishop as ordinary, being but a curate at will, was not curates.
an incumbent within the meaning of the MtcU. 13 Elix. c. 10,
nor liable to dilapidations; and accordingly prohibition was
awafded to. stay a suit instituted against him in the spiritual
court. Curaie qf Orpington's case, 3 Keble, 614; Gibs. Cod.
192 ; Price v. Pratt, Bunb. 273. But where curacies or cha-
pels have been augmented by Queen Anne's bounty, they are con-
sidered as benefices, and the holders or their representatives
liable for dilapidations. 1 G. 1 , st. 2, c. 1 0, s. 4, and 29 Car. 2, s. 2.

By 69 G. 3, e. 134, *. 6, which gives power to build chapels ^^-ngnj^
for consdidated districts or chapelries, it is provided, that all curacies.
soch ebapelries shall be deemed benefices, and be subject to Churches,
the jurbdiction of the bishop and archdeacon, within whose dio- ^^J^^'^
cese and archdeaconry the altar of the chapel shall be situate ; church
and to all laws in force concerning presentation and appointment buUdiug
to benefices and churches, and lapse, and all other laws relating ^^^'
to the holding benefices and churches. So also, with regard to
district parishes, by s» 12.

A^n, with regard to churches and chapels built under the
provisions of the 1^2 Wm. 4, c. 38, it is provided by s. 12,
that every such church or chapel to which a particular district
is assigned, shall be deemed a perpetual curacy ; and the spi-
ritual person serving the same, the incumbent thereof; and that
all such incumbents, and all persons presenting or appointing
sneh incumbents, shall respectively be subfect to alljurisdic"
tion$ and laws, ecclesiastical or common, and to all provisions,
regulations, penalties, and forfeitures contained in any acts of

Earliament in force relating thereto, respectively. By the
^ntine constitution of Othobon, all ecclesiastical persons that
are beneficed, are required to repair. Ayliffe Parer. 217. But
these statutes of course only apply to cases where there are houses

312 BiIapt)rat(otis(«

Amount of, or buildings or lands attached ; and i?id. 1 ^ 2 Vict. c. 106;

and how ^ of

— ; ' It is said by Conset^ with reference to a snit in the spiritual

Estimate, eoort for dilapidations, that as soon as the bishop is in-
stalled in his bishoprick, or a rector or vicar inducted,
they may procure workmen, as house-carpenters, bricklayers,
and the like, to view all the buildings which have ikUen,
or those which want repair, and may write down for what
sum every workman may and will re-edify and repair tlie
same; and then the workmen may put their hands to this
paper, that they may remember the same when they come to
be produced as witnesses ; for this inspection being made,
the bishop, rector, or vicar, may commence his action when he
pleases ; p. 363. This is foiuided upon a constitution of arch-
bishop Mepham^ A. D. 13^8, 3 Ed. 3, which in substance di-
rects, that no dilapidations shall be judged, except by creditable
persons on oath ; and that when so judged, they shall be settled
by composition between the parties, or the repairs done, accord*
ing t > the appointment of the diocesan. Gibs. Cod, 790.
Money for By 14 EUx. c. 1 1, «. 18, it is directed that all sums of money
tions bow * * ^ recovered for, or in the name of, dilapidations, by sentence,
applied. Composition, or otherwise, shall, within two years after such re*
ceipt, be truly employed upnn the buildings and reparations, in
respect whereof such money for dilapidations shall be paid : on
pain that every person so receiving and not employing as afore-
said shall forfeit double as much, as shall so by him be received
and not employed, which forfeiture shall be to the use of the
queen's majesty, her heirs and successors. Ayliffe Parer. 218.
Gibson says, "In case of the incumbent's death within two
years, it seemeth, that the same ought to be paid by his
executors to the successors, to be laid out by him, and not by
*' the executors, in the repairs." Cod. 791.
Estimate ^^ ^^® plaintiff has given an estimate, the opposite party may

may be COD- examine another surveyor to contradict the estimate, and prove it
tradicted. ^ be excessive, as was done in the case of the Bishop of Rochester
V. Thomas t Clarke , tit. 1(5; and vid. Conset. 364'. In the case of
North V. Barkery 3 PhiU. 307, which was a suit for dilapida-
tions at St. Cross. The plaintiff's estimate amounted to£58S7,
the defendant's to £3795, which latter sum was tendered and
refused, and the question was, whether the tender was sufficient,
or whether the plaintiff had proved more to be due; the court,
in giving judgment, commenting on the survey, said " it looks
*' like renovating the building, not only in its ancient form, but
" in its pristine beauty ; there has been a relaying of all the old
'* pavement; in some instances it would seem as if things were
" to be added, which were never there bef re, I think this is
'^ going beyond the principle, for although these courts carry

u
ii

saapOrattoiitf. 3i3

" the poinis far as to the incumbents house, they will not go ^"}?|*"^ **'»
" so far as to buildings of this kind," The plaintiff having [^f^^^^

failed to prove more than the tender to be due, the court -

finally pronounced for the tender, and for costs, as a matter of
cxHirse*

So abo in Wise v. Metcalfe, WB.Sf C. 299. The principle nowcaica.
of damages in an action for dilapidations was thus laid down by Uted.
the court :— '' The incumbent is bound to maintain the parson*
** age, if suitable, in point of size and other respects, to the bene-
" fice ; and also the chancel ; and to keep them in good and
'* substantial repair, restoring, and rebuilding, when necessary,
according to the original form, without addition or modern im«
provement ; that is, he is not bound to supply or maintain
anything in the nature of ornament, to which, painting (unless
necessary to preserve exposed timbers to decay,) whitewashing
and papering belong ;'* and vid, 2 Car. 4* Payne, 460.
If the benefice hath been vacant for some time, as for three
or four years ; or if the incumbent hath not sued for sometime
after his induction or installation, nor caused the dilapidations
to be viewed and estimated ; he shall not be entitled to recover
the whole sum estimated for dilapidations, but consideration
shall be had of the time elapsed from the cessation of the last
incumbency, and a proportionable deduction made for the decays
which may reasonably be supposed to have happened during
such intermediate time. Clarke, tit. 126; 1 Ought, 255; Conset,

In cases of fraudulent conveyances, the statute o( Elizabeth, By former
supra, 308, would seem to limit the suit for dilapidations, to those incumbent.
which had arisen in the time of the last incumbent ; but which,
in case his predecessor also left dilapidations, cannot be known
but by a regular survey of the defects at his first taking posses-
sion, that thereby the respective dilapidations of the two prede-
cessors may be distinguished. But in other cases the last in-
cumbent or his executors are chargeable with the whole dilapi-
dations in whose time soever they may have 'accumulated.
Elmeson Dilapidations, 11 ; Gibs. Cod. 791. This may prove
a hardship, particularly where a heavy burthen of dilapidations
is left by an incumbent, who died insolvent, and the successor
enjoys the benefice only for a short time and dies ; it were
much to be wished, says Gibson, ib. " that such incumbents,
** who shall repair, or build where there is great occasion, in
such manner and to such degrees as the patron and ordinary
do approve after a proper survey and inspection made, wei^
** entitled to receive back such portion of the expense as might
** be limited for that purpose, to be paid by the next and succes-
*' sive incumbents, and by such gradual diminutions as the law
** might think fit and proper/' There have been statutes passed

314

Bflii|)Oiation0«

and how as-
certained.

A»<J^^^«^ with this object, particularly 17 G<?o. 3, c. 58, called GiWerTs
««««- ^ci. Post *' Resitknce*^'

And Ayliffe Pater, ^19, says, '' When a parson on induction
finds the buildings in decay, and that his predecessor did not
leave a sufficient personal estate to repair them ; he may have
*' the defects surveyed by workmen, and attested under their
** hands in the presence of two or more credible witnesses;
'' which may be a means to secure himself from that charge,
^' wbicli might otherwise ensue for the fault or neglect of his
'* predecessor.*'

Conaet says, p. 362, " The bishop, rector, or vicar, may sue
against the executors or administrators of the last incum-
bent; yea though the ruins or dilapidations happened not in
their times, but in the times of their predecessors* The rea-
son is, because those executors and administrators have the
*Mike action agamst the executors and administrators of their
** testator's predecessor, and may recover the value of the re-
" pairs against them." " But," he adds, ^* if the executor shews
that he has used diligence to procure the dilapidations from
the representative of the former bishop or incumbent, it would
** seem to be an answer." p. 363.

Degge says, p. 77, suits for dilapidations are most properiy
and naturally to be sued for in the spiritual courts, and if any
prohibition be granted the same ought to be superseded by a
consultation ; but this is intended where the suit is grounded on
the Canon law. Fiix. N. B. 51 /; CaHer, 224 ; Dr. Lauds
eascj Skin. 121. The above ^. 13 EUm. e. 10, gives a remedy
in the ecclesiastical court against the alienee of personalty, and
puts him, in the same situation as if he were tiie executor and
administrator of the dilapidator.

Suits for dilapidations are still brought in the bishops*, or
consistory court, (a) In WMnfieldyr. WaiUns, 2 PAiU.S, Lord
Siowett adntitted a libel against the .sequestrator of a living, as
being liable for dilapidations ; and in Hubbard v. Beekford^ ib.
in notiSf a similar suit was entertained. So in North y. Baker,
» PAUL 307, anie, 312, which was a suit for dilapidations at
St. Cross*

t€

«<

4€

Remedies.

In the ec-
clesiastical
court

(a) The commissioners on the practice, &c. of the ecclesiastical courts,
in their General Report, p. 51, say, " Though suits of this description
** are trafrequent, we think that this branch of jurisdiction ought to be
'* retained, and that it may, when necessary, be beneficially exercised
** by the provincial courts. Some modifications may, however, be
** advantageously introdnced. These proceedings have hitherto been
'* caiiied <m in a criminal form. In lieu of this we are of <^uiion that
" a dvil suit should be instituted/

fiflapOiationst. 315

But the most usual and, as said by BuUer, J.,2 T. R. 684, the '>^«««-

most effectual remedy is by action on the case by the succcssbr, Action on

which action is upon the custom of the realm. Jones v. Hilt, ^* *^*** *'

common

M
ti

3 ier. 268 ; ib. 413? 4 M.^S.183; 2 Ad. ^ EL 772. Uw.

Ic appears from Gibson^ Cod, 791, that the first writer, who
advanced tlie notion of an action on the case in the temporal
courta, was Sir Simon Degge, who, p. 77, states, that there are
multitudes of precedents even in the times of popery, and cites
wry Bumy cases in the margin, and adds, *' By the custom of
England, which is the common law, actions on the case have
been frequently brought, both anciently and of later times,
and damages recovered ; but it was for some time doubted
whether there was any remedy for dilapidations at common
law.** Fin. Ab, '' Dilapidations ;" but the action is now in
comflDonuse; 2 7.12.630; ^M.%S. 183; 2 Ad. % £1112.

In Radcl^ev. D'Oyley, 2 T. ^.630, a distinction was at- Prebcnda-
lempted to be raised, between a prebendary and other ecclestas-
ticai persons, as to the liability in an action on the case for di-
lapidations, it being contended, that the only remedy in such a
case was in the spiritual court; but such distinction was not
admitted, and it was held that a prebendary was clearly liable
at common law. In that case BuUer^ J., said, ** There is no dif-
'* ference whether the proceedings for dilapidations be in the
^ common-law, or spiritual courts, though the remedy in the
filmier is more efleotuaL It is certainly true, that in times
past a considerable doubt was entertained whether this sort of
" action could be maintained, at all, against ecclesiastical per*

nes.

«<

" sons."

So, the successor may have separate actions against the exe- several
cutor of a former incumbent for dilapidations to difierent parts caowt of
of the rectory. Thus, to an action brought for dilapidations in *^*^°'
the chancel and in a pew there, a plea of a former action, brought
for want of reparation to the rectory house, oat-houses, and
cottages belonging to the rectory, and of the gates and hedges
upon the glebe lands, was held to be no answer to the second ac-
ti<xi. LonI EUenborough said, *' If the defendant could make out
'' that an injury caused by dilapidations was one entire identical
*' injury, forming precisely the same cause of action for every
partof it, then ttiere could be but one action. But I have
heard no authority to that effect, nor does it appear to me that
** there is any reason why this should be considered as one
" entire cause of action, compounded of the several injuries sus-
'' tained in the several parts. They are different and inde-
'* pendent injuries in respect of the difierent parts. The injury
'' from the ddapidations of the house is one thing; that from the
" dilapidations of the chancel is another, and the causes are dis-

316

fiilapfiyationsi*

Reacdi— .

Who may
Bue for.

Who may
be sued.

Panuh-
meDt for.

Depriva-
tion.

Sequettra-
tion.

'* tinct. The one tniglit not be consummate when the other
" was. It seems to me, therefore, that the plaintiff may main-
*' tain this action as convenience, * or subsequent discoveries'
" enable him." Young v. Manby, Af M. % S. 187.

To entitle an incumbent to sue for dilapidations at common
law, he must show that he is seised of the tenements, in respect
of which dilapidations are claimed, in right of his benefice.
Therefore, altnough successive rectors had been in possession
of certain tenements during a period of two hundred years, yet if
it be shown by the original grant, that the fee of such tenements
is in other persons, the rector cannot recover. 10 East^ 409.

So also, it must be shown that the defendant is seised of the
tenements, for which the dilapidations are claimed, in respect
of his vicarage. 8 Taunt. 559; 2 B. Moore ^ 612.

Where the statutes of a chapter provided, that the materials
for repair were to be supplied out of the funds belonging to the
church, and the charge for workmanship only to be Ii^me by
the prebendaries ; on a question whether a succeeding preben-
dary should recover against his predecessor the full estimate of
repairs, or the amount of the workmanship only, the court
thought it reasonable that he should recover the amount of the
workmanship only, and held that the church was still bound to
supply the materials. % T. R. 630.

It seems also that by the Canons of the church a spiritual
person may be deposed or deprived by his superior for dilapi-
dations. S List 204f; Degge, 77 ; Ayliffe Parer. 218. If any
ecclesiastical person do, or suffer to be done, any dilapidations,
they may be punished in the ecclesiastical court, and the same
18 a good cause of their deprivation of their ecclesiastical livings
and dignities. Vin. Ab. "Dilapidation,^ A.; Bagg*s case,
11 Rep. 98; 2 Bulstr. 879, ante, 306.

So also, if after admonition the person beneficed neglect to
do the necessary reparation, the bishop, by ecclesiastical cen-
sures and other lawful remedy, and also by sequestration of
the nrofits, may compel repairs to be done. Ayliffe Parer. 218.

The bishop of L. and C. was suspended by his archbishop
for dilapidations, and the profits of the bishoprick sequestered,
and the episcopul palace built out of them. Dr. Wood's case,
cited 12 Mod. 237 ; I in. Ab. " Dilapidations.'*

But in case of dilapidations the whole ought not to be seques-
tered, but to leave a proportion to the parson for his tivehhood.
By the injunctions of Hen. 8, a fifth part was to be given, but
by the Reformatio Legum that was reduced to a seventh, but
by Bancroft raised again to a fiftli. Archbishop Bancroffs
Circular, Gibs. Cod. 791.

The general course is to sequester one-fifth, and if the party

Btlapaiattons;. 3i7

is dissatisfied he may appeal. It was said by Sir J. NickoH^ l^ffaMM,
3 PhilL 309, that in cases where the ecclesiastical court was s^u^str^-
called upon to sequestratCi it seldom lays apart more than tioo.
one-fifth.

If after the dilapidations are repaired the sequestrators refuse Seqoetua*
to deliver up their charge, they may be compelled to do so by ^^
the ecclesiastical judge ; and if they delay giving an account,
the bond and warrant of attorney, which it is usual for the
sequestrators to give as security, are generally given up, to
enable the party aggrieved to sue on them at common law.
WaUans C. L. c. 30.

A sequestrator is bound to repair edifices belonging to the
benefice, and may be compelled to do so by process from the
Bishops courty the repair of the church is as necessary a charge
as the supply of the church itself; but if the sequestration has
been finished and determined, and the accounts have been made
up, tlie ecclesiastical court, it seems, cannot interfere. Whinfield
^.Watkins,2 PhilL \.

If a bishop cut or sell the trees of his bishoprick, or a parson ProhibU
or prebendary commit waste, it is said that a prohibition lies at tion.
common law. 2 Roll. Ab, 813; Ayliffe Parer. S18; Roll.
Rep. 335; 3 BuUir. 158; Vin. Ab, " Dilaptdations:' In injanctioii.
analogy to which Lord Hardwicke, upon affidavit, granted an
injunction out of chancery to stay further waste. 2 Atk. 217.
Such an injunction has been granted at the suit of a patron,
in a common case, and in the case of a bishop, at the suit of the
attorney-general. But the patron cannot pray an account,
for he cannot have any profit from the living. AmU. 176. A
similar injunction has also been granted against the widow of a
rector at the suit of the patroness during the vacancy. 2 Br, C.
C. 552. But in the case o{ Jefferson v. ike Bishop of Durham^
the court of C. P. decided, that it had not power to issue an
original writ of prohibition, to restrain a bishop in the pos-
session of his see, at least at the suit of an uninterested person.
I B.ifP, 105. It is said, that an incumbent may not open new
mines, but may work old ones. AmbL 176.

Non-residence of the clergy and the evils attendant upon it Monition
were not only the subjects of constant censure in ecclesiastical '^o™ ordi-
and canonical councils, but in this country gave rise to many ^^^'
petitions by the commons. In the 2df 8M, and 9ih of Hen» 4,
the commons of England made complaints ; and in the 4ih of
Hen, 6, it was prayed that parsons, and vicars, and others having
cures, and not being resident thereon, should forfeit their bene*
fices. In the 2lsi lien. 8, an act passed to compel residence,
its objects, according to Degge, 67, being threefold : 1. to com-
pel tlie clergy to a performance of their duties ; 2* to avoid
dilapidations ; 3. to maintain hospitality. He adds, " for you

318 fitUqiaiattontf^

Re«wdw«« " shall seldom see a non-resident but he is also a dilapidator,
MoQitioo '' and 'tis no wonder that he who neglects the flock lets the
fromoidi- " shecp-fold go to ruin/'

r& 2 Vict T^^ * .* * T'^'* ^- ^^' '• ^^' provides that, in cases of rec-
c.i06»s.35'. ^^'^ having vicarages endowed, or perpetual curacies, the resi-
dence of the vicar or curate in the rectory house of such bene-
fice shall be deemed a legal residence, and that it be kept in
proper repair to the satis&ction of the bishop of the diocese.

In order to prevent the dilapidation of ecclesiastical buildings,
the ecclesiastical law has given ample powers to bishops to
compel due reparation. This power is usually exercised by the
archdeacon, and is ordained by the provincial constitutions,
whereby archdeacons are directed to visit their dioceses every
year, and oftener if expedient, though they cannot be com*
polled to visit oftener than once in three years, ^yf^ff^
Pater. 97, 217. The same was directed by the Leganiine Con-
MtUuUoM of Othobon, 1268, 62 Hen. 3, which eigoin that
none through covetousness neglect their houses. The Canons
of 160S expressly enjoin the archdeacon's visitation to be once
in three years, for the purpose of surveying the mansion house
of every incumbent, as well as to cause the same, if need require,
to be fitly repaired, and the churchyards maintained with walls,
rails, or pales. Vid. also the statute of ** circumspecte agaiiSf*
IS Ed» 1. So rural deans are to inspect churches, &c. and
houses belonging to the parsons and vicars within their districts,
and to give information of decays and dilapidations to the
ordinary.

If they shall, for the space of two months next after admoni-
tion, neglect the same, the bishop of the diocese may from
thenceforth cause it to be effectually done at the parson's charge,
out of the fruits and profits of his living, taking only so much
and no more as may suffice for such repairs. And the chancels
of churches are to be repaired in like manner, by such as wre
obliged thereunto. AyUffie Pater. 217.

Non-resi- ^^ ^^ ^^^ ^^» \ f^ 2 vict. c. 106, provision is made against
dentin. dilapidations likely to be incurred by the non-residence of the
cumbents. incumbent ; it being provided by «• 41 , that every spiritual per-
son having a house of residence on his benefice, who shall not
reside therein, shall, during such period or periods of non-resi-
dence, whether the same shall be for the wnole or part of any
year, keep such house of residence in good and sufficient repair;
and in every such case it shall be lawful for the bishop to cause
a survey of such house to be made by some competent person,
the cosU of which, in case the house shall be found to be out of
tepait, shall be borne by such spiritual person ; and, if the
surveyor shall report that such house of residence is out of
repair, it shall be lawful for the bishop to issue his monition to

mUaptmtiatisi. 3i9

the incnmbent to put the same in repair according to such sur- Remcdieg.
▼ey and report, a copy of which shall be annexed to the mom--
Hon ; and every sucn non-resident spiritual person who shall ^^^'^^
not keep such house in repair, and who shall not on such moni- naiy.
tion, and within one month after the service of such monition,
show cause to the contrary to the satisfiustion of the bishop, or Non-resi.
put such house in repair within ten months to the satisfaction of dent in-
such bishop, shall be liable to all the penalties (a) for non-resi^ cumbents.
denee imposed by this act^ during the period of such house of
residence remaining out of repair, and until the same shall have
been put in repair.

And by s. 4^, it is made a condition to the obtaining a license
to live in a house, not being the house of residence, that the
latter shall be kept in good and sufficient repair and condition,
to the satisfaction of the bishop on proof; and by s* 54*, in cases
of sequestration, there is an express reservation and provision ^^^^^ ^
for the repair and sustentation of the chancel, house of resi* tioo.
dence, glebe, and demesne lands.

Bispmetatixin.

A DISPENSATION is defined to be a relaxation of the
common law, made and granted by one that has the power of
granting the same.

A aimple license cannot be called a dispensation, since a
simple license is not contrary to law as a dispensation is ; but it
is a matter founded on some law and agreeable thereunto. A
simple license, or a facuhy as it is sometimes called, does not in
reality suspend or toll the obligation of a law, but gives an oper-
ation thereunto, in order to render it effectual according to a
certain mode or method prescribed by law. There are several
laws and statutes which do not simply forbid a thing to be done,

(tf) As the penalties for non-residence imposed by s, 32 are propor-
tioned to the periods of non -residence, it is difficult to say what is meant
by " all the penalties for non-residence.'* If the act bad said be should
have been '* deemed to be non-resident during the period such bouse of
** residence remained out of repair/* then the penalty would have been
indicated by the period of dilapidation.

320 Sistpensiatfom

'*y ^'.''ki'" ^^^ '1*^^ •' ^^ no^ done without a faculty granted in a particular
t^rapa manner ; wherefore the granting of a faculty or a license, is not
a dispensing with the law, but an execution and observance of
it. Ayliffe Parer. 221 ; vid. post^ " Faculty''

The use of the word dispensation was first introduced by the
Canon law ; it is not to be met with in any of the books of the
Civil law, that law according to Bartoldus, calling it by the name
of a grace or indulgence. But now the word indulgence^ accord-
ing to the use of the Roman church, has another acceptation.

Dispensations are regulated in this country, since the repudi-
ation of the pope's supremacy, by the 25 Hen. 8, c. 21 ; of which
statute Hobart says, in the case of Colt and Glover v. the Bishop
of Coventry and Litchfield^ p, 147, the archbishop is restrained
by the statute in four main heads and cases, which were ac-
counted spiritual, and dispensed with every day by the pope.

1. In ss. 3 and 12. That nothing be repugnant to the law of
GK)d, for king or subject.

2. In jr. 21. That nothing be against the slat, 21 Hen, 8,
against pluralities of benefices.

3. Nor against the king's prerogative, or laws, or statutes of
the realm, which though not in terms in the statute, as the two
former cases, is to be inferred plainly. For the king, never before
or after this statute, meant to allow dispensations against the
common laws, howsoever the pope practised it sometimes.

4. That he is limited to sucn things, as shall appear conve-
nient and necessary, upon examination of the causes and qua-
lities of the income.

By the 25 Hen. 8, c. 21, s. 3, the power of granting dispen-
sations, theretofore exercised by the pope, the bishop of Rome,
was transferred to the archbishop of Canterbury ; for any cause
or matter for which any license, &c., or other writing hath l)een
used to be obtained at the see of Rome, or by authority thereof,
the same being necessary fur the king and hi^ subjects ; the
archbishop of Canterbury thus has power to grant by an instru^
ment under his seal, unto the king, his heirs, &c., all such
licenses, &c., obtained at the see of Rome, and all other licenses,
&c., upon all such matters, as shall be convenient and necessary
for the honor and surety of the king, and the wealth and profit
of the realm ; so that the said archbishop in no wise shall grant
any dispensation, license, &c., for any cause repugnant to the
law of God. Hob. 147, 148 ; Gibs. Cod. 109, note (i).

By s, 4. Authority is given to the archbishop, after due exa-
mination by himself or by his sufficient and substantial commisH
sary, to grant, by an instrument under his name and seal, all
manner of licenses, for any cause or matter whereof the same
have been accustomed to be had at the see of Rome, &c. Gibs.
Cod. 103; Hob. 158.

Bistpensmtton^ 321

By s, 5« The archbishop is restrained from granting any ^y ^^om
other license, &c., in cases unwont and not accustomed to be ^'^""^ '
had at the court of Rome, until the king or his council shall be
advised thereof, and if it be determined by the king or his
council, that the same shall pass, then the archbishop or his
commissaiT having license of the king, by his bill assigned, shall
dispense, ^c. Gibs. Cod* 105.

By «• 6 ^ 7. No license, &c«, being of such importance that the '^^x upo°-
tax for the expedition thereof amounted to £4 or above, shall in
any wise be put in execution till it be confirmed by the king,
under the great seal, and enrolled in chancery. And all such
licenses, &c^ for which less than £4 was paid at Rome, shall
pass only by the archbishop's seal, and need not be confirmed by
the great seal.

By «« 8. All children procreated after solemnisation of any Of mar-

7
11

riaee efleo-

marriage had by virtue of such licenses or dispensations shall ^^^^
be taken to be legitimate, in all courts spiritual and temporal,
and shall inherit, &c. These dispensations by special license are
recognised by all the marriage acts.

By s. 9. The archbishop shall constitute a clerk, who shall
register every such license, &c«, and the king by letters patent
shall constitute a clerk in chancery, who shall enrol the confir-
mation of all such licenses.

The 10/A sec. directs the having two books, to contain the
icuees of all customable dispensations; and the 12th that no one
shall pay more than is limited in these books of taxes ; the 13th
and 14th sections provide for the division and appropriation of
the money, paid in taxes for dispensations.

Sec. 15. Saves to the archbishop of York, and to the other Saving to
bishops, that they may lawfully dispense, &c«, as they did before arrhbiahop
the act. ^^ ^°^^-

Sec. 16. If the see of Canterbury is void, then the guardian
of the spiritualities may, under his hand and seal, grant such
licenses, &c.

Sec* 17. If the archbishop or such guardian shall refuse, &c. Refusal by
then the chancelbr or lord-keeper, shall direct the king's writ »"^»»*>«»»<>P-
to him enforcing him to grant the same, or signify the cause of
his refusal, and the cause of refusal, if sufficient, shall be al*
lowed ; if not, then the king may send his writ of injunction
under the great seal to the archbishop or guardian, commanding
him to make grant thereof.

By s. 21. It is further provided, that nothing in the act shall
alter or derogate from the " late act, '* 21 Hen. 8, c. 13, concern-
ing pluralities and non-residence. Gibs. Cod. 109; Dyer^S52a;
Afoor. 442; Hob. 158.

Sec. 22. Any person suing the court of Rome, &c. in defiance
of the act, shall incur a pramunire. This penalty was after-

322 Bi^enstattottf.

wards changed into high treason by 13 Eliz. c. 2, s, 3. Gibs.
Cod. 110,

But notwithstanding this statute and the restrictive power
limited to the archbishop in the first section of it, the kings of
England, (the king not being named in the statute) have still the
power which they have used in every age, before the reign of
Hen. 8, to grant dispensations in causes ecclesiastical. This
statute only gives to the archbishop a power concurrent to the
power which the king has by common law. Gibs. Cod, 103;
Palm. 457 ; Hob. 146; Cro. Eliz. 542, 601 ; Moore, 542.

This statute was repealed by 1 ^ 2 P. 8^ M. which was an
act for repealing all articles and provisions made against the see
apostolic ; but revived by 1 Eliz. c. 1, an act to restore to the
crown its ancient jurisdiction.
Stamp. Every dispensation or faculty from the archbishop of Canter-

bury, or master of the faculties, or from the guardian of the
spiritualities, during the vacancy of the archbishop's see, shall
be charged with £40 stamp duty. 55 Geo. 3, c. 184. Dispen-
sations for holding two livings, vide *' Plurality.**

323

Btbdtte*

1 . For adultery.

Evidence in.

Confession of wife — of paramour.

Libel.

What it may plead.
Pleas in bar of.

J. Recrimination, or C^mpenuiUo Criminis,

Single act sufficient.

Evidence of, not so strong as for substantive charge.

Divorce may be founded on.

Cruelty not pleadable in.

2. Condonation.

Must be with knowledge*

May be implied.

Not so strong against a wife as a husband.

Condoned adultery may be revived.

3. Connivance.

Mere negligence not enough*
Must be with coirupt intent.
Must be pleaded.

2. For cruelty.

Danger from cohabitation.

Condonation bar to, aUter of recrimination.

Suit for restitution of conjugal rights no bar to.

3. For unnatural practices.

Malicious deaertion alone, no ground for divorce.
Separation by deed, no ground for, or bar to.
Suits for, by guardian or committee.
No limitation of time in suits for.
Foreign divorces.

X HE Canon law does not admit an absolute dissolution of the
marriage contract for any cause whatever; which principle is
still adhered to by the ecclesiastical law of this country. A
sentence of divorce in substance, declares that ** the said A. B.
*' ought to be divorced from bed, board, and mutual cohabi-
'* tation with the said C. D., her husband, until they shall be
" reconciled to each other ;" and proceeds to caution each
party from contracting marriage in the lifetime of the other.
ConseL 279; Oughton, iiL 215. It is true, that if an indi-
vidual be able to incur the expense of obtaining an act of par-
liament, he may procure a suspension of the law in his own
particular case, by the interference of the legislature to dissolve

Y 2

Siborrt.

his marriage ; but the law cannot do it propria vigore, it U
only by ihe intervention of a power above the law, that the
vinculum can be dissolved; when, therefore, the term "Divorce"
is used, nothing more is intended by the laws of England than
a separation " a mentd et tkoro." (a) Cra. EUa. 908 ; Cro.
Car. 463; Nay, 108; 3 Init.SS; Co. Litt. 335 a.

A sentence of divorce is the judgment of the spiritual oourt>
separating two persons legally married. Lord Coke sayi, " de
"Jaeto married." Co. Litt. 855. But, with submission tu

(a) It was the maxim of the Civil law, that matiimony ought to be
free, and therefore, by that law, the will of the person who sues out, and
makes a divorce, is die efficient cause thereof; but by the Canon law
the judge's decree is the efficient cause. By the Canon law, a divort-e is
not permitted without sufficient cognisance had of the cause ; whereas
hy die Civil law, divorces were often made through heat of anger; for
when a Roman had a mind to put away his wife, the only proceeding
necessary to carry his purpose into execution, was, to send a bill
of divorce to the wife to acquaint her with his intention. Ayl. Purer.
225 ; 1 Hag. Con. 147. These divorces were called, " divortium bond
gratid," or " tine eautd" or " repu^wm sine vUd quereld," Taylor'M
Elementt of Cieil Late, 361 . Sut, although the dvil law gave such a
general license of divorce, both the Julian and Roman civil law punished
adultery with death. The Juttiniaa Code and the Nooelt remitted the
punishment of death to the woman, and in lieu thereof, introduced the
ba*tinado,KaA the thrusting hei into a monastery, which ^yli^, speaking
of hii own times, say* is not unobserved at this day. Pater. 46.

In the polished period of the Roman Republic, the abuse of divorce
prevailed to a great extent ; divorces were afterwards, however, ren-
dered less arbitrary, hy one of the Novels of Juitiaian ; but voliiDtary
divorces were subsequently revived hy the emperor Jiutin, his grandson.
Taglor, 352, 362, 369. The papal Canon law allowed a divorce, a
tnenid et ihoro, for five causes. Adultery, Impotency, Cruelty, Infidelity,
and Ingreasm Setigionii, hut considered the bond of marriage as in-
dissoluble ; but the church sssumed to itself a power to grant dis-
peiuations for absolute divorces ; the ecclesiastii»l law of England,
though founded on the Canon law, allows divorce, but for two of theae
causes, Adult«ry and Cruelty ; Infidelity and Ingrettm ReUgionis
have never been here, at least, since the Reformation, considered as
causes for divorce ; Impotency, or any other matter arising from causes
prior to the marriaxe, and not proceedinn ex eavtd contequenti, is

ntence is

1. Oibt.

en a molt
a on the
divorces,

country

Btbom. 325

so Kigb an authority, proof of the factum of marriage is not D^vQ^^c-
soffi(»eiit. Proof of a valid marriage is the very first step.

matrimonial causes are not within the jurisdiction of civil courts ; hut
are exclusively of ecclesiastical cognizance. Inst, Laws of Spain, By
the Dutch law, a divorce, d vinculo^ is allowed for two causes, Adultery
and Malicious Desertion. Voet, de DivortUs, W>, 24, (tl. 2. In Pro->
testant Oernunuf, there seems to have heen a great facility for divorce.
Ayliffe Parer, 49 ; Code^ Frederick, In France^ hefore the Revolution,
the law following the Canon of the Roman Catholic Church, held mar-
riage to he indissoluhle ; hut the laws of the Republic permitted divorce
at the pleasure of the parties, wherever incompatibility of temper
was alleged. The Code Napoleon affected to restrain this license
to certain specified causes, but still allowed it to be attained by mutual
consent, according to the usage of ancient Rome. Cod. Nap. 283, 275»
et seq. On the return of the Bourbons^ divorces a vinculo were pro-
hibited by a decree of 8th May, 1816, but still the power of dissolving
marriage exists there, as in all Catholic countries, by a dispensation of
the church. In the United States^ the law on this subject varies. In
New Yorkf the legislature in 1787> authorized the court of Chancery
to pronounce divorces, a vinctdOf in the single case of adultery, upon a
hill filed by the party aggrieved. In some of the United States, Georgia,
Mississipi, and Alabama, divorces are restrained even by constitutional
provisions; which require to every valid divorce, the assent of two-thirds of
each hranch of the legislature founded on a previous judicial investiga-
tion. In New Jersey, Maryland, Virginia, South Carolina, and Louisiana,
no divorce is granted, but by a special act of the legislature, according to
the English practice. In Tennessee and North Carolina, the legislature
is itself restrained from granting them, but it may confer the power on
the Courts of Justice. So strict and scrupulous has been the policy
of South CaroUna, that there is no instance in that state, since the
Revolution, of a divorce of any kind, either by the sentence of a court
of justice, or by act of the le^slature. In all the other states, divorces a
9inctUo may be granted, judicially, for adultery. In some of them.
New York and Ittinois, the jurisdiction of the courts, as to absolute
divorces for causes subsequent to the marriage, is confined to the case
of adultery : but in the residue* intolerable ill usage, or wilful desertion,
or unheard of absence, will authorize a decree for divorce, under
different modifications and restrictions. Kenfs Comm. on American
Law, 2 Vol, 105. In Denmark, parties may be divorced, a vinculo, by
an ordinance under the hand and seal of the king. 2 PhiU, 334.

The law of Scotland, admits two causes of divorce, adultery, and
obstinate and malicious desertion ; and the courts of law there, have
the power of decreeing an absolute divorce, a vinculo, and are not
limited to decree a separation a mensd et thoro. In England, the
Canon law is still adhered to, which considers marriage as indissoluble,
** Separanlur sed remanent coiyuges." Oughion, tit, 215. The Refor-
mation seems to have created doubts and unsettled opinions upon this

326 Stborrt.

Adultery, and is altogether indispensable. 2 Hag. 8 ; AyUffe Paver. 50.
Marriage to A marriage de facto includes all descriptions of marriage, fts
be proved, well those that are void as those that are voidable ; but in a
suit for divorce, a defendant may plead either that the marriage
was absolutely void by reason of some civil disability in one of
the contracting parties, 2 PhiJL 1 1 » or that it was voidable by
reason of some canonical impediment, as for example, that it
was incestuous, or that one of the parties was incapable of con-
tracting marriage by reason of impotency. Gue9t v. Guest,
1 Hag. Con. 322, '' The validity of the marriage is not a mere
" incidental point, it is the foundation of the whole proceedings.
** There can be no adultery if there is no marriage. The first
" point to be proved is the marriage, which the other party may
*^ contest ; and if not contested, the form of the sentence in
" such cases pronounces, that there has been a true and lawful
" marriage, as well as a violation of it." Per Lord StoweUj ib.
So, it has been held, that a plea of a prior marriage is a good
ground to stay proceedings, and that the question of the former
marriage must be determined before the question of adultery is
gone into. Robins v. WoUeley^ 2 Lee, 149. So, where nullity
of marriage is pleaded. 2 Phill, 11.
Assuming therefore, that in all suits for divorce, it is neces-

subject ; in Edward Gtli's reign occurred the Marquess of Northampton's
ease, in which the delegates pronounced iu favour of the second marriage
after a divorce, a mensd ei ihoro, which sentence was confirmed by a
private act of parliament, four years after ; that act was, however,
repealed the next year; in the Reformatio Legum^ compiled at the
same period, it is said by Burnett, that the absolute dissolution of
marriage was allowed for adultery and desertion, similarly to the
present law of Scotland. But in 1601, Bancroft, in concurrence with
other divines, declared tliat by the law of England, adultery was only
a cause of separation, a mensd et ihoro. 3 Salk. 137.

The system of granting absolute divorces, by means of special acts of
parliament, seems to have commenced with Loid de Roo8*i case, followed
by Lord Macclesfieldts and the Duke of Norfolk's, in 1698. According
to Burnett, Hist, own Times, Sd VoL 140, the discussions on the latter
case partook strongly of party and religious spirit ; it seems, that the
law of divorce was not then considered as settled ; out of that unsettled
state of opinion, our present system seems to have sprang^ which admits
the principle of indissolubility, and has transferred to the legislature the
extraordinary power of dispensation formerly exercised by the Pope.
In Lord Macclesfield^ s case, there was a protest signed by two peers,
on the ground that there had been no previous divorce iu the ecclesias-
tical court. In the Duke of NorfolJcs case, a protest on the same
•ground was signed by nineteen peers and bishops.

fiiborte« 327

sary to prove a valid marriage : it follows that no cause or im- Adultery.
pediment existing previous to marriage can be made the subject Marriage lo
matter of a suit tor divorce ; the civil and canonical disabilities, be proved.
which render the marriage contract either void or voidable, are
grounds for a proceeding for nullity of marriage, but not for
divorce* GodoL Ab. 500.

The only grounds upon which a divorce can by the law of
England be granted, are generally two ; viz.^ Ist, Adultery ;
^ly, Crueltv ; to which a third may be added, in which the
ecclesiastical court has interfered, for the relief of a wife whose
husband has been guilty of unnatural practices.

Adultery, which is said by Isydore, in his Book of Etymo-
logies, to be compounded of the words, '' ad allerius thorum,^
means an actual surrender of the person ; and although the rule
of the ecclesiastical court does not require direct evidence of the
very fact committed at a specified time and place, 4 Hag. 26S,
yet it must be satisfied that the fact of adultery has actually been
committed. 2 Hag, Con. 226,34^; 2 Hag. 14; 3 Hag. 74;
1 Hag, Con. 299,

Adultery being an act of darkness, and of great secrecy, can Presump-
hardly be proved by any direct means; therefore in relation to ^•▼«ev»-
tbe proof by reason of such difficulty, it happens that presump- *°^^^ '
tive evidence alone is sufficient proof: and this presumptive
proof is collected and inferred ex actibus propinquis, that is to
say, from the proximity and nearness of the acts ; and thus
adultery may be proved by such conjectures as are received
and approved of either by law or nature. Ayliffe Parer. 50.

In WiUiams v. Williams, 1 Hag. Con. 299, Lord SloweU
says, ^* Direct evidence of the fact of adultery is not required^
*' as it would render relief almost impracticable ; but there must
'' be such proximate circumstances proved, as by former decisions,
'' or on their own nature and tendency satisfy the legal conviction
** oi the court that the criminal act has been committed. The
** court will look with great satisfaction to the authority of es-
'' tablished precedents; but where these fail, it must find its own
'' way, as well as it can, by its own reasoning on the particular
** circumstances of the case.'' Again, in Loveden v. Loveden,
9 Hag. Con. S, 3, — *' The facts are not of a technical nature,

but are determinable upon common grounds of reason ; and

courts of justice would wander very much from their proper
'' office of giving protection to the rights of mankind, if they
*' let themselves loose to subtleties and remote and artificial
'^ reasonings. Upon such subjects, the rational and the legal
** interpretation must be the same."

What are the circumstances which lead generally to the
conclusion that the fact of adultery has taken place, can

328 JBlbOlTf.

Adulter)-, hardly be laid down upon any rule, because they may be in-
Preramp. finitely diversified by the situation and character of the parties;
live evi- by the State of general manners ; and by many othfer incidenCal
ence o . circumstances, apparently sfight and delicate in themselves, but
which may have most important bearings in decisions upon Ibe
particular case. The only general rule seems to be, that the
circumstances must be such, as would lead the guarded dis-
cretion of a reasonable and just man to the conclusion. S Hag^
Con. 8, S ; ib.SSri; I Hag. Con. SI 5.

Fadts need not be so specially proved as to produce the con*
elusion that the fact of adultery was committed at a particular
hour, or in a particular room. 2 Hag. Con. 4. Slatemevits
of general, loose, and unduly familiar conduct are safficieiit lo»
establish a high and undue degree of familiarity between
parties. Isolated facts may lead to a conclusion of crime : for
the proper way to consider this sort of evidence is not to take
them separately, but in conjunction; they mutually interpret
each other ; their constant repetition gives them a determinate
character ; and such habits, when continued in pubKc, lead to
the inference that the parties would go greater lengths if oppor-
wC^**' tunities of privacy occurred. 2 Hag. Con. 228. If a witness
stops short, and declines or omits to state his belief of the ulti-
mate consummation of the act, it is true that the court is put ot>
its guard to see whether there is any ground for a scepticism of
this nature ; but it would be a monstrous proposition to assert,
that the merits of a case of this nature is not to depend upon
the narrative, but on the logic of the witness. The court, re-
presenting the law, draws that inference which the proximate
act unavoidably leads to : the scepticism of the witness, if it
really exists, signifies nothing. 2 Hag. Con. 278.
c'b"^ta« Where there has been general cohabitation, the necessity
tioo. * of proving particular facts is excluded, 2 Hag. Con. 4, and
the cases collected in the notes. If adultery continued a
long time, with pregnancy, and birth of a child, during the has-
band^s absence, be pleaded, it is useless to prove more than the
birth of the child, identity, and non-access of the husband*
1 Hag. 6.

A woman going to a brothel with a man furnishes condu^ve
evidence of adultery against her, for it would be impossible for
her to go to such a place but for a criminal purpose. 1 Hog.
Con. 302, SOS \ 2 Hag. Con. 24; 4 Hag. 1S8. So a6 against
a husband, proved to nave gone to such a place, a violent sus-
picion is raised, only to be rebutted, if a suspicion so founded
can be rebutted, by the very best evidence. 1 Hag. 720. But
if it be shown further that he was alone a considerable time
with a common prostitute, it would be of itself sufiicient evi*

IBibortf. 329

dence of adultery. /&. But the same conclusive presumption AduUry.
does not attach to the circumstance of a married woman going Presump-
to a single man's house or lodging, unconnected with other tive evi.
faelSy however improper such conduct may be; 1 Hc^* dence of.
Cois. 802 ; for the court must be convinced in its legal judgment
that the woman has transgressed, not only the bounds of deucacyy
but of duty ; t6. ; but when the windows were proved to be shut
at such visits, and letters, which could not be otherwise explained
were proved, the court has inferred, that adultery took place at
such vidCs. lb. In one case, separation, by reason of adultery
and erueUfff was pronounced, on proof of undue familiarities,
clandestine communication with frequent opportunities of guilt,
and concealed correspondence by letters, denoting great ardour
of passion, if not allusions to actual guilt, (but no credible proof
of a fact of adultery) united with great violence of conduct and
kuBffuage, and an attempted blow. 3 Hag. 618.

The communication of the venereal disease long after mar*
riage is pHmd facie evidence of adultery. 1 Hag. 161, So
where the wife, separated from her husband, lived with a young
officer for months at different places under the disguise of sepa-
rate beds. < 1 Hag. Con. 445 ; 2 Hag. Con. 6, in n. So where
the parties lived together in seclusion, the man sleeping apart
at an inn ; ib. ; for, as the court in another case observed ;
parties, living for months and even years together, and hoping
to insult the feelings of the husband and elude the justice of
the tribunals, have by such contrivances supposed that they
were sufficiently protected ; but courts have ever held that
these evasions were perfectly insufficient for such a purpose,
and the parties have been concluded by general cohabitation.**
2 Hag. Con., 6.

Ante-nuptial incontinence cannot lay the foundation of a suit Anta-nup-
for divorce by reason of adultery. 1 Add. 1 ; 2 Phill. 127 ; sed ^^ »««"-
vid. 2 Ad. 806y note {a). It may possibly be a defence in a suit ^'^^^^'
for restitution of conjugal rights ; 1 Hag. Con. 373 ; or, if a
wife were to set up a plea of malicious desertion, it would seem
that itmight be pleaded, that the discovery of her misconduct
before marriage, induced the husband to quit her society.

Confession generally ranks high, or perhaps highest in the ConfenioB.
scale of evidence ; for what is taken pro confesso is taken for
indubitable truth, as the plea of " guilty," by the party accused,
shuts out all further inquiry. Yet it is a species of evidence
which, especially in cases of adultery, is to be regarded with
great distrust Oughton has devoted a title to this subject,
TU. 21S, which, however, seems copied irom Consei, 279, 280;
in which he urges the danger of receiving any such confessions
from the temptations to collusion, or that the husband may
prevail on the wife by threats or intreaties to admit a crime of

330

Biborce*

AduUery.

Confes-
siontk

Identity.

Confession
of wife*

Of para-
mour.

€(

which he is not guilty. He adds also another caution with
regard to identity* " ne persona suppoaititia (quod meis diebus
bis twvij coram eOf ad aduUerium UbeUatum confitendum
producatur.*' Clarke also speaks of two such instances,
probably the same as spoken of by Oughton. Lord StoweU,
m Searle v. Price ^ @ ^^'' ^'^* '^' ^^y^9 ''In cases of
adultery no confession oi the fact can be admitted alone,
it beinff particularly necessary to guard against the imposition
of makmg false acknowledgments to procure a separation. A
" married person may afterwards wish the marriage avoided.
" For this purpose a false case might be established before the
court, or a former marriage might be propounded by one
party and admitted by the other. The utmost vigilance is,
'' therefore, required that the truth should be establisned, inde-
'^ pendent of the confessions of the parties. They might go
'' further. By substituting false parties, who might admit them-
'' selves to be parties in the cause when they were not, might
'' destroy the rights of real parties. Even a decree oi confront
^* tation would not protect the court in such a case, for the real
*^ parties might be unknown to the court, its officers, and to the
** practisers in the court."

Upon confession of the wife alone the court will not build a
sentence of separation, it being enjoined by the 105th Canon
that no sentence of divorce should be given upon the sole con-
fession of the parties. 2 PhilL 166; 2 Hag. Con. 189, 316;
3 Hag. 77, 131 ; 4 Hag, 262 \ and, although it seems to be the
more rational doctrine to say, that such a confession by a wife,
proved to the satisfaction of the court to be perfectly free,
might be sufficient to found a prayer for a mere separation a
mensa et ihoro, though not pro dirimendo matrimonii vinculo^

i^et the decisions establishing a different construction are too
iteral to be shaken. Mortimer v. Mortimer ^ 2 Hag. Con. 316.
But, where the wife is charged with adultery, her conduct and
declarations, on a confession of guilt by the alleged particeps
criminis being communicated to her, are admissible on behalf
of the husband. Burgess v. Burgess^ 2 Hag. Con. 2S5\
2 Hag. 407. For though such evidence is looked at with
distrust, it is not inadmissible; 1 Hag. Con. 304; and when
free from all taint of collusion, ranks of the highest importance*

2 Hag. 409 ; 4 Hag. 2G2.

The declaration of the paramour, in the wife's absence, that
she had committed adultery previous to that charged in the
libel is not admissible ; 3 Hag. 318 ; but a declaration in her
presence, and confirmed by her, is ; nor can the court reject it
on the ground that it reflects on third parties, or that it does
not refer to the adultery charged in the suit. Croft v. Oq/},

3 Hag. 318; Hag. Con. 148, 376. The declaration of a

fitborte. 331

petriieeps eriminis is by itself, however, but weak evidence; Adultery.
Vnit where criminal intention is ftiUy proved, and nothing but Conf^^
the consent of the other party is wanting, the consent of such a of pan-
person is stringent evidence that the act attempted has taken mour.
place. 1 Hag. Con. 376.

Letters from a wife to her paramour, leaving no doubt of Lettera of
gross familiarity and indulgence, and of proposals for future ^^^^
intrigue, may be admitted in proof of adultery. 2 Hag. Con.
S1,SS; 4 Hag. 262.

But letters of the paramour, where there are no strong facts Letters of
proved, from which adultery can be inferred, found in the wife's paramour.
possession, not necessarily implying the commission of adultery,
will not support a sentence of separation by reason of adultery.
2 Hag. 8.

Where a letter is pleaded to be in possession of the adverse
party, the contents may be set forth at length, leaving the other
party, if she pleases, to produce the letter. 3 Hag. 317.

Where criminal connexion is once shown, its continuance continu-
is presumed, especially where the parties live under the same anceofcon-
roof. S Hag. 350. T'umd

In all cases of adultery the identity of the parties is a very P""®**"""® •
necessary ingredient in the proof. Therefore the mere acknow-
ledgment to the ojBScer serving the citation, or the appearance
of the party in the cause, have been considered as insufficient ;
and identity has been required to be proved by extrinsic evi-
dence. 1 Hag. 305; 2 Hag. Con. 189, ante, 330.

The libel must plead the conclusion of adultery ; because, Libel.
unless it is pleaded, non constat that it may not be a suit for
mere solicitation of chastity ; but, if the party does aver it,
though he proves only proximate acts, yet he unquestionably
proves the whole of his averment in the libel ; and, if the facts
are of such a nature as will justifiably and almost necessarily
lead to the conclusion, the court, representing the law, draws
the inference. 1 Hag. Con. 278. Where the husband's adul-
tery is to be proved by pregnancy and acknowledgment of
children, specific acts need not be pleaded ; 1 Hag. 746 ; ib. 6 ;
nor, where the charge is keeping houses to which ne took loose
women. Ib. 777. When parties are living separate, the com-
mencement of the acquaintance with the alleged paramour, and
of the suspicions of the person under whose care the wife was,
should be set forth circumstantially. 3 Hag. 315. Though
the court will not, on presumption, and in the absence of matter
strongly inculpatory, impute connivance to a husband, it will
not debar him from pleading circumstances which make the
story consistent and natural; for a party ought not to be forced
to depend for explanation of his conduct, on the ingenuity of
counsel, or the discrimination of the court. 3 Hag. 3 IS;
1 Hag. 6; sed vid. 3 Hag. 123.

332

Btiiora*

Adallarv.

- ■ ■ ■ —

JJbel.
Verdicts at

IdW.

Whole
cue to be
pleaded at
once.

The introduction of Terdicts in the pkadtngt was long re-
sisted in the ecclesiastical courts^ and it is now understood that
they are merely introduced as circumstances of evidence ; it is
difficult to comprehend in what view an action against another
party can in any way instruct the conscience of the court upon
an issue between the husband and the wife; she not having faieen
party or privy, in the remotest degree, to that litigation. 2 Hag*
Con. 286 ; S Hag. Can. 51 ; 3 Hag. S64u

The only object indeed of the introduction of verdicts of courts
of law into the proceedings seems to bci to satisfy the court that
the husband has honestly endeavoured to obtain all the redress
the law will afford him. 2 Hag. Con. 306. If ever such a
verdict can weigh at all, it must be as a test of the credit of the
witnesses, if the same witnesses are examined in both courts.
3 PAitf. 99.

In considering the admissibility of pleas, the court must be
cautious not to exclude matter essential to a due decision, nor
allow proceedings to extend to an unnecessary length ; but if a
serious doubt arise as to the ultimate effect of any averment it
ought to be admitted. 3 Hag. 310, 311.

A libel pleading specific acts of adultery can only be rejected on
two grounds : — 1. That the plea on the face of it shows a case
impossible of proof. 2. That it appears from the facts pleaded
that the party complaining has barred himself. 1 Hag. 765.

The wnole substantive case should be at once brought before
the court ; 3 Hag, 1A& ; but where it is clearly shown that the
facts could not have been sooner pleaded, additional articles
may be given in, 3 Hag. 97 ; 1 Hag. 349, and a sentence may
be obtained on facts not existing at the commencement of the
suit; for a party is not limited to the contents of his libel.
S Hag. 136. But the Ubel must contain all the facts that by
diligence can be ascertained at the time ; and subsequently, such
new facts only can be pleaded as are nearly conclusive of guilt.
3 Hag. 738 ; 4 Hag. 385. Pleading after publication generally
is within the discretion of the court ; 3 Hag. 344 ; for in cases
of adultery, as in other cases, publication is a bar to further
pleading, as of right 3 H<ig. Supp. 137.

Where the evidence did not in the first instance amount to
judicial proof, but the conduct proved had been so suspicious
as to raise a strong presumption of adultery, and that an adul*
terous intercourse was actually carrying on between the parties
accused ; the court will, on affidavits, rescind the conclusion of
the cause, and allow the husband to give in 4tn additional alle-
gation, upon which a sentence of separation may be eventually
founded. 3 Hag. 1 ; 2 Hag. 144, Supp.

But where, there was a suggestion, that a charge of collusion
and connivance, raised in argument on the evidence produced
by the husband, was a surprise upon him, the court xefused

BOlOm* 333

to rescind the conclusion of tlie cause, in order that some letters Ad«ltety.
might be pleaded ; being of opinion that the liusband was bound Condona-
so to have shaped his case in the first instance as to have guarded tion or con«
himself from such suggestions ; but in this case there was no °J^*3^°**^
distinct plea of connivance, nor had the cross-examination been ^
directed to that point. S Hag. \2S. In another case it was
obaervedy that the husband must prove his case, so that his own
evidence shall not create a bar by reason of connivance or recri-
Qunationy for of such evidence the wife is entitled to the full
benefit ; S Hag, 77 ; but, it must always have less weight than it
would have, if a defensive recriminatory plea had been pleaded.
1 Hag, 747. In Turtan v. TW/on, 344, Dr. Lnahington said,
'' I am not aware of any case in which, upon answers to interroga*
'* tories, the court has decided, either that recrimination or con*
*' nivance has been proved, so as to dismiss the suit of the wife;
and on principle, 1 think it would be difficult to arrive at such a
decision.** Vid. 2 Phill. 153. After publication of the evidence
in a suit of divorce for the adultery of the husband, the court
will not in the first instance delay the hearing* nor will it re«
scind the conclusion of the cause, in order to admit an allegation
counterpleading certain answers to letters of the wife, which
had been annexed to the interrogatviries on cross-examination,
suggesting condonation and connivance on the part of the wife ;
and which answers were explanatory of the letters, and were in-
tended to repel the suggestions raised on the part of the hus-
band. The court saying, *^ It is necessary for me first to aa-
'^ certain what use is made of these documents and answers to
the interrogatories, by the husband's counsel ; if they are
insisted on as a bar to the separation prayed by the wife, and
** I should oonsider them important, I will allow the admissibility
^* of the plea now tendered to be debated, but otherwise its eon-
'' tents will be immaterial." The court also refused to have the
letters annexed to the interrogatories disannexed. 3 Hag, 346.

When adultery has been proved to the satisfaction of the Divorce for
court, the complainant is entitled to a remedy by divorce ; but adultery,
this rismedy may be. barred by his own conduct. There are \^^
three general grounds usually pleaded in answer to a charge of
adultery. Crewe v. Crewe, 3 Hag, 129,

1st. Compeneaiio Criminis, a set-ofi^ of equal guilt or re- Pleas in
crimination, of which Conset, 280, says, ** If the defendant ^" ^^'
" doth prove that the plaintiff* hath also committed adultery,
" the defendant is to be absolved as to the matters requested in
** the libel of the plaintiff." Oughton, Hi. 214. it is now
admissible in France, Cod, Civ. Art, 22, and In the state of Recrimint-
New York; Kent's Comm, 100; but not in Scotland. Formerly, ^'^^'
however, it was not adim'ssible in France, upon the principle,

334

Sttorce*

Adultery.

Pleas in bar
of.

Condona-
tion.

Conni-
vance.

Recrimioa-
tion.

A single act
sufficient.

as it seems^ that adultery committed by the husband was not
a ground of divorce or separation on the part of the wife*
Poihier 3, c. 1 17 ; 1 Hag. Con. 150.

Sdly« Condonation. If there has been a reconciliation, be-
tween a man and his wife, after adultery is known to hare been
committed by her, it is not lawful for him to have his action for di-
vorce against her ; for a divorce is not commanded, but only
permitted to the innocent person, who may recede from his
right, and renounce a favour introduced on his behalf. Ayliffe
Parer. 48, 226. Oughton^ speaking of the modes in which the
knowledge of the adultery is to be derived, mentions three.
1. The wife's confession. 9. Communication of the witnesses
whom he afterwards produces on the trial. 3. That he himself
detected her in the fact TiL 214. Probabilisscientia, he adds,
bars a divorce ; that is condonation after probabilis scientia.

Sdly. Connivance. Ayl^e^ Parer. 2S6, speaks of the case
of a husband prostituting his own vrife, as one wherein a di-
vorce cannot be had by reason of that adultery ; but the law of
this country does not require it to be shown that he has been
the active agent of his own dishonour. Indifference and neglect^
fairly imputable to a corrupt intention, are sufficient.

Recrimination, or a set-off of equal guilt, is founded on the

Erinciple of the Roman law ; which withholds from a guilty
usband the remedy of a divorce against a guilty wife. Xhis
principle appears a good, moral, and social doctrine. 1 Hag.
Con. 147. The party cited is entitled to be dismbsed as respects
the particular complaint charged in the libel, though that charge
be proved, as if no offence had been committed or proved.

It appears, from Gilbert's Jus Canonicum, that recrimination
was formerly not admitted in the courts of France ; but in this
country it was recognised by all the delegates in the case of
Lord and Lady Leicester, in 1737, and has been received here, as
a suflScient plea in bar to a suit for divorce by reason of adultery,
ever since>. '* E& Lege quam ambo contempserunt neuter Wit-
'^ dicetur, paria enim delicto mutud pensatione dissolvuntur,^ is
said to be the maxim of the civil law^ upon which the plea is
founded. 2 Has. 292.

A single act of adultery committed by either party (husband
or wife) at any time before sentence, will bar a sentence of se-
paration at the suit of the other party. 1 Hag. 722 ; 1 Hag.
Con. 147, 153 ; or will compel the court to dismiss both parties,
adultery being mutually, or reciprocally, charged in the cause.
2 Hag. 376 ; 1 Hag. 714; 1 Add. 411. And the courts must
allow either of such parties to plead adultery against the other
in any stage of the cause, whether before or after publication,
and how long soever this may have passed, or the cause may

Btborte* 335

have been depending ; it being pleaded within a reasonable Adoltery.
time after coming to the proponent's knowledge. 2 Add. 259. pieasinbar

Nor does it seem to make any difference, that the act of in- of.
continence did not take place till after the discovery of the Recrimi-
wife*8 infidelity^ and the voluntary separation which ensued ^^^'^°'.
thereupon ; and although there was no reason to believe but that ge^raUoiu
the husband had conducted himself with propriety , up to that
time. 2 Hag, Con, 295.

Where neither party has an interest in the suit, that is, when No bar in
the proceedings are ad publicam vindictam, and not for a di- pj^^l^j!^!.
▼orcej recrimination is no plea: for there, the public, and not the mgg.
prosecutor, is the injured party, and it can be no excuse for the
breach of the good order of society by the one party, that
the other has been guilty of the like also. 1 Hag. Con. 148«

The doctrine, that this, if proved, is a valid plea in bar, has
its foundation in reason and propriety ; it would be hard if a
man could complain of a breach of contract, which he himself
has violated. 1 Hag. 790.

As it is no answer to a charge of adultery, that the parties Volanury
were living separate at the time the adultery was committed, separation.
neither does it impeach the validity of a recriminating allegation
that the adultery there charged, was committed during a volun-
tary separation. 2 Hag. Con. 295 ; 1 Hag. 789 ; 1 Hag. Con.
142, in note.

If once the guilt of the husband, the party complained of, be ^"^f '^^'
established, the onus probandi shifts, and if he seeks to deprive
his wife of her remedy, by imputing to her criminality of any
kind, he must make good that charge by evidence, which admits
of no dispute. 3 Hag. 350.

Where adultery is pleaded by way of recrimination, and as a
bar^ it is not necessary to prove such strong facts as are re-
quired to convict the other party in the principal suit; for to ob-
tain a divorce a man must have a pure character. 1 Hag. Con.
153; 1 Hag. 721. But the evidence in such a case ought to
be from very credible witnesses. 2 Lee^ 384.

Nor will the condonation of a wife bar her of her right to re- Condona-
criminate, for then she seeks only to be dismissed ; when con- tionby wif<Q
donation is pleaded as a counter plea to compensaiio pleaded ^^^^^0%.
in bar, it is insufficient, for it is not a rule that whatever is a criminate.
plea in bar, and disables a party from bringing the suit, likewise
destroys the defence. 1 Haff. 797.

The general conduct of a husband, has been considered suf- Facts suffi-
ficient to support a recriminating plea in bar, though it would c*e°^tos«p-
not have been sufficient to support an ori^nal and substantive ^'
charge of adultery ; for it is a general principle, that many
things are good for one purpose, though not for another. 1

336

Bibom*

Adultery.

Pleas in
bar of.
Recrimi-
nation.

Most be
founded on
supposed
adultery.

Solicitation
of chastity
notiBnough.

Divorce
may be bad
on recrimi-
natory
plea.

Hag. Con. 152. Thus, where a husband failed in his en-
deavours with several females, but from no want of purpose or
activity on his own part, but from an honest and powerful
resistance on the other, it may fairly be concluded, that where
no such resistance was to be apprehended, the criminal act
would have taken place. lb. So, if the criminal intention of
the husband be satisfactorily proved, and it be also proved that
the conduct of a particular female, whose chastity he bad before
solicited, was different on former occasions when she had re-
sisted him ; and, moreover, if after being discovered in an
improper situation with this man, she ceases to complain, her
silence and submission afford the strongest presumption that
his attempt has been more successful. 1 Hag. Con. 373.

It must, however, be remembered, that although a plea of
recrimination in bar of adultery may be sustained on slighter
circumstances than would be required to sustain an original
charge of adultery, still the facts and circumstances alleged in
such plea, must be of such a nature, as to lead to the conclusion
that ad%iltery by the party against whom the recrimination is

? leaded, has actually taken place. In Chettle v. ChetHe^ 3
^MU, 508. Sir J. NichoU said, ^* I have not heard a case
'' stated, in which, there being proof of adultery by the wife,
** the mere solicitation on the part of the husband has been con-
'^ sidered a bar. But solicitation of chastity will revive condoned
" adultery." I Hag. 762, post.

A recriminating allegation, pleaded as a defence to adultery,
may, if the original charge be not proved, operate as a sub-
stantive case upon which a divorce may be founded.

In a case wnere a wife brought a suit for separation, by
reason of adultery, the husband denied his own guilt, and gave
in a recriminatory charge ; both parties prayed a separation.
The sentence of the consistory court was, that the wife had
failed to support her libel, but that the husband had proved his
recriminatory allegation ; and accordingly decreed a separation.
Harris v. Harris^ 2 Hag. 376. Confirmed on appeal. lb. 511.

So, where the wife libelled the husband for cruelty and
adultery, the husband answered by a recriminatcury charge of
adultery against the wife; the court held the cruelty and
adultery of the husband not proved, but that the adultery of
the wife was proved; and pronounced for a divorce* Kenrici
V. Kenrick^ 4 Hag. 133.

The wife having failed in a charge of adultery, and a recrimi-
natory plea on the husband's part being proved ; cruelty, and
the introduction of his wife to a female of loose character, the
wife's guilt not being connected with such introduction, will not
bar his prayer for a divorce. 2 Hag. 376.

««

«<
«<

Sfborrt. 337

Cruelty cannot be pleaded in recrimination to a charge of adnl- Adultery.
terjy and as a bar to a divorce for such adultery. 1 Hag. Con. Plea« in
4^1 . Nothing, indeed, except adultery can be pleaded in bar by ^^ ^^*
iray of recrimination to a charge of adultery* The delictum
tnu8t be the same.

Neither are indifference, ill behaviour, or cruelty pleadable in Cruelty not
a suit for adultery. They will not justify a wife's criminal con- [jj^j^.
duct. 2 Hag. 92. In the case of HarrU v. Harris^ 2 Hag. 411, natioo.
tlie court said, ''The citation states the suit to have been
brought by the wife for adultery alone. The charge of
cruelty, therefore, was not pleaded in the libel, nor could it
have been pleaded responsively to the allegation admitted on
*' behalf of the husband charging Mrs. H« with adultery; for
'^ there is no point, as it appears to me, more settled than that
^ cruelty cannot be oleaded in bar of a charge of adultery.*^
At an earlier period tnb question seems not to have been con-
sidered as settled. In Chambers v. Chambers^ 1 Hag. Con. 451,
the court said, ''On this plea a question might arise, whether a
party would be entitled to bar her husband from his remedy
of divorce for adultery proved against her, by the plea of
cruelty. I am inclined to think she would not. A wife has
a right to say, ' You shall not have a sentence against me for
' adultery, if you are guilty of the same offence yourself.* The
received doctrine of compensation would have that eflfect,
" because both parties are in eodem delicto / but this is not so
in recrimination of cruelty: the delictum is not of the same
kind. Here the husband is the * prior petens^ in a suit of
" adultery ; and I take the general doctrine to be, ' that a wife
" ' cannot plead cruelty as a bar to divorce for her violation of
" ' the marriage-bed.* "

Condonation is forgiveness of former adultery, legally re- Condona-
leasing the injury; 1 Haff. 793 ; 2 PhiU. 411 ; but, to make it ^'''''
operate as a bar to a suit for adultery, there must be a complete
knowledge of the adulterous connexion, and a condonation
subsequent to such knowledge. 1 Hag. 733; 3 Hag. 351, QSId ;
t«. 118«

Condonation may be either express or implied ; expressed
either in words or in writing, or implied from general conduct.
It may be implied by the husband cohabiting with a delinquent
wife ; for it is to be presumed he would not take her to his bed
again unless he had forgiven her. 1 Hag. 793 ; 3 Hag. 83.

But the eflect of cohabitation is justly held less stringent in the Agamst
case of a wife. ^hitiBmore^ub poiestate^vMyreinopaconBilii. She ^'^^'^
may entertain more hopes of the recovery and reform of her gumid^ar
husband. It would be hard if condonation by implication were agaimta
held a strict bar against a wife. It is not improper that she may l^usband.
for a time show a patient forbearance. She may find difficulty

4€

338

BAorte.

Adiillti'jf*

Pleum
bar of.

Condont^
tion.

By wife.

Loogac-
quiesceflce
by wife.

Facility of
condona-
tion.

either in Quitting her husband's house or withdrawing from
his bed. The husband, on the contrary, cannot be compelled
to the bed of his wife. A woman may submit to necessity.

1 Hag. 793, 794.

In order to found condonation where the parties hare se-
parate beds, there must be soniething of matrimonial intercourse
proved. It cannot rest on the negative fact of the wife not
withdrawing herself; ib. 794 ; but it seems that a husband, by
pleading that the wife slept at his house the night after the last
act of adultery charged in the libel, of which adultery he was in*
formed, takes on himself the onus of showing, that they did mai
sleep together on that night; though generally a party, relying
on condonation, must plead it. 8 Hag. 84.

The question, What amounts to condonation ? must neces^
sarily depend upon the circumstances of each particular case,
always bearing in mind the above principle, that the presumption
of condonation in the case of a wife is never so strong as in the
cafte of a husband. If she overlooks one act of human infirmity,
it is not a legal consequence that she has pardoned all other acta,
and tolerates every species of debauchery. A woman has not
the same control over her husband, not the same guard over his
honour, nor the same means to enforce his observance of the
marriage vow. 1 Hag. Con. 133 ; 1 Hag. 793. Therefore it
has been held that mere lapse of time in the case of a wife is no
condonation ; 1 Hag. 766 ; for forbearance on her part does
not weaken her tide to relief; ib. ; 8 Hag. Con. S79 ; 3 Hag. 355;
but neglect on the part of the husbancT to institute proceedings,
betraying apathy to the injury of which he eventually complaina
not satisUictorily accounted for ; Dobbyn v. Dobbyn, Poynier^ S38;

2 Hag. Con. 279, 319 ; 3 Hag. 132, 34S ; £ PhilL 161 ; or a
continuance to cohabit after circumstances of suspicion have
been brought to his knowledge; 1 Ad. 443; 3 Hag. 86, are su£>
ficient to bar his remedy. So, also, in the case of a wife ; very
long acquiescence after knowledge, amounting to a license,
would frustrate her remedy; 2 PMU. 153; 1 Hag. 740. In
the case of a husband great facility of condonation leads to an
inference that he does not duly estimate the injurv, and will
induce the court to look at his subsequent conduct with jealousy*

3 Hag. 78 ; 2 PAiU^^ll. The condonation of adultery by a
husband, still more, repeated reconciliations after repeated adul-
teries, create a bar of greater effect, than the condonation of a
wife of repeated acts of cruelty. 2 Hag. 113.

All condonations, however, are consi£red to be, expressly or
impKedly, upon condition that the injury shall not be repeated.
Condonation is not an absolute and imconditional forgiveness.
1 Hag. 782; 1 Hag. Con. 130; 1 Hag. 761. It is a promise on
the implied condition that the injury shall not be repeated, and

Bibone. 339

that the party condoning shall be treated with conjugal kind- Adnliwy.
ness. On breach of which condition, the right to a remedy for Pleas in
former injuries immediately revives. 1 Hag. 761, 762 ; 781, 786. ^*'**^'
If the offence forgiven is afterwards renewed, the party has a
right to revert to former facts, if she bring them in conjunction
with the latter. 1 Hag. 781.

The effect of condonation, therefore, is entirely got rid o^ Condoned
and a former charge revived, by a repetition of the injury ^daltory
complained of; 1 Hag. 761 ; nor is it necessary that clear ™J2d^ **'
proof of actual adultery should be given to get rid of con-
donation of previous adultery. If it were, the revival would be
useless, for the subsequent act would be sufficient to sustain the
suit. lb. i Phitt. 157 ; 3 Hag. 635. Therefore solicitation of Soikitadon
chastity by a husband, though no bar to a suit against him by a ^^^^^'^J*
wife for adultery, S PhilL 508, anie^ 886, would nevertheless be
sufficient to revive a previous adultery after an intermediate
condonation ; 1 Hag. 76S ; it has been contended that, ad-
mitting these propositionsi yet that the second and reviving
injury mtist be eftudem generis with the injury revived ; but
this is not the rule, it being now clearly established that crudty q^ cruelty
will revive adultery. 1 Hag. 738 ; 3 Hag. 635. So also the win revire
attempts of a husband, when aflfected with venereal disease, to condoned
force his wife to his bed not only amounts to cruelty, but to *^^^^^'
evidence of adultery, sufficient to remove condonation of either.
1 Hag. 767.

Circumstances may take away the effect of a condonation which
would not support an or^nai cause ; 1 Hag. 782, 789 ; lor it
does not follow that, because condonation mil bar the remedy
of a party agent, it will destroy the defence of a party recrimi-
nating. 1 Haff. 797.

A conditional promise made by a wife imder force and vio-
lence, the condition never being performed, is no condonation.
1 Hag. 767. Nor, her unwilling return to live in the same houses
if unaccompanied by connubial cohabitation. lb. 782, 789. Sof
also, if the wife withdraws from the husband's bed, though not
from his house, the continuing in the house cannot be set up as
condonadon; ib. 794; 2 Hag. 118; especially, if on execution
of articles of separation, it wife allowed a husband to have a
bed in her house, at the entreaty of his friends that he should
be merely under the roof by sufferance. 2 Ha^. 1 18.

Condonation may be implied from delay, in mstitutmg legal Maybeim.
proceedings, not satisfactorily accounted for. Delay under plied fnmi
such an injury, founds a presumption of passive, or even cri- wUj.
minal acquiescence. In the case of Best v. Besi, 2 PhiU.
161, an affidavit of the husband was allowed to be read to ex-
plain and account for the delay of five years ; upon which,
adultery having been proved, a divorce was granted : but where

340 SAorm

AJuitcry. ^ ^{f^ jid not accouiit for her delay, the suit was dismissed.

Pleas ioUr 2 Phitt. 155; sed, vid, 1 Hag. 134, posif 347.

o^' It seems, that a lunatic, havinz recovered, may condone adul-

Condona- fery, and resume cohabitation after a divorce d mensA et iharo,

^*''''- instituted by his committee. ZPhULlGO.

Generally Condonation ought, in strictness, to be pleaded, that there

^]ewM ^ ^^y "^ ^" opportunity of contradiction. 1 Hag. Con* SS2.

^^ But if it appear clearly upon the depositions, that there

had been cohabitation subsequent to the detection of the
wife and knowledge of the husband, the court might call
on the husband ex officio to notice it. 76. Therefore
where it appeared that the wife slept at the husband's
house after his knowledge of her adultery, he takes upon him-
self to reconcile that fact by showing that they did not sleep
together; although, generally, the party relying on condona-
tion as a bar should plead and prove it; 3^a^.84; but it
seems, unless pleaded, it cannot operate as a bar. 1 Hag* 751 ;
sed vid. 1 Hag, 795.

Conni- Condonatiou and connivance (a) are especially different in

vance. (||e]i> nature, tbouffh they have the same legal consequence of
barring a party of his remedy. Condonation may be merito-
rious; connivance necessarily involves criminality. 3 Hag.
86, 354.

Connivance on the part of the husband will, in point of law,
bar him from obtaininff relief on account of the adultery which
he has allowed to take place, upon the principle that volenti
non Jit injuria, 1 Hag. Con. 146; 3 Hag. 58, 121 ; (5) ft Hag.
Con. 271 ; 3 Hag. 356.

In order to constitute connivance, it is hot necessary that the
husband should actively contribute to his wife's dishonour: the
expression of Sanchez^ on this head, ** Vir qui uxorem pros-
** iiiuit;** Sanchez de Mairimonio, Lib. 10. iJisp. 5, No. 3, 4,
seems too strong; passive acquiescence is sufficient, pro-
vided it be accompanied with an intention and expecta-
tion of leading the wife to guilt ; but mere inattention, over
confidence, dulness of apprehension, or indifference, are not
sufficient to constitute connivance : there must be wilful con-
Most be currence. 3 Hag. 59, 76, 105, 133. It is not mere impru-
kitentUm ^^"<^^ ^^d error of judgment that the law deems connivance.
Conduct to bar, must be directed by corrupt intention. Per
Lord Stowell, in Hoar v. Hoar^ 3 Hag. 140. A plea of oon-

(a) It is to be observed also that connivance must always precede, or
be cotemporaneous with, the act of adultery. Condonation must always
be subsequent.

(6) As to the modification of this principle as regards the wife's
conduct, vid. 2 Hag, Con. 279 ; 3 Hag. 348, 352.

IBibom. 341

ntvanoe must be from its nature circumstantial, and consist of Afiuitery.
many facts ; trifling, perhaps, when taken separately, but taken p;ea«inbar
altogether, suiBcient to satisfy the court ; a husband, framing a of,
scheme to betray his wife, will hardly disclose it by any one broad Conni-
unequivocal act 3 Hag. 94f. Nor is it necessary to prove con- ^^Qce.
nivance to actual adultery any more than it is necessary to ^o b« io.
prove an actual and specific act of adultery. If a system of feiredfrom
connivance at improper familiarity, almost amounting to proxi- ^''J'^
mate acts, be established, a corrupt intention will be inferred,
and more direct proof rendered unnecessary; ib. 95; i6. 154;
a husband is not barred by permission of opportunity for
adultery ; but, if he continues the meeting to obtain sufficient
evidence of the fact, it is legal prostitution. lb. 81.

The notoriouslv debauched character of the paramour ; his
exclusion from all respectable female society ; the introduction
of him by the husband to his wife ; the encouragement of their
intimacy ; tlie allowing her to accept a sum of money from him ;
expostulations from her family at such intimacy ; the refusal of
the husband to attend to them ; and improper liberties and fa-
raiHatities in his presence, and without his remonstrance, are
material facts to show connivance. 3 Hag. 87. As to culpable Crtminal
neglect, amounting to criminal negligence, vid. also 3 Hag. 158. ^^ 'g^'^c*-
We have seen above that confession of the wife is not a suffi-
cient foundation on which alone to build a sentence of sepa-
ration; but although by the rules of law, it cannot satisfy a
judge, it must satisfy the mind of a husband, especially when
direct and unequivocal. 3 Hag. 77. But where a wife confesses
a guilty passion, but denies criminality, if a husband acts un-
wisely, the court will not deny him his remedy unless it appears
that he has acted corruptly. 3 Hag. 141, 14^, 143.

Collusion is an agreement between the parties, for one to com- CollQsion.
mit, or appear to commit, an act of adultery, so as to suffer the
other to obtain a remedy at law, as for a real injury. The law
permits no co-operation for such a purpose, and refuses a
remedy for adulterv committed with such intent ; but it is not
proof of collusion that after the crime is committed both parties
are desirous of a separation. 3 Hag. 130. A judgment by Jodgmcat
default suflTered by the paramour, and the absence of any de- ^7<l«fc«lt»
fence by the wife in the ecclesiastical court, may be, but are not
necessarily, proofs of collusion. /6. 133; 1 Haff. Con. S90.

If a husband is once in possession of a fact of adultery, and
still continues his cohabitation, it proves connivance, collusion, and
fjEU^ility, and bars his right to relief. 3 Hag. 76, 83. But he is not
bouna to show the time when the fact first came to his knowledge.
It might be prudent and expedient for the success of his suit,
that he should do so, but it is not absolutely necessary, some-
thing must be allowed for convenience. 2 Hag. Con. 279.

842 fifborrr.

Adaltery. But constant intercourse continued for four years between a
Pleas in ^^^® ^^^ ^^^ paramour, not clandestine, but the common subject
Ur of. of conversation among servants and friends, raises a grave sua-
Conni- picion of the husband's knowledge and acquiescence ; 3 Hag.
▼ance. j^ . but stiU, in the particular case, the divorce was granted, as
the husband could not be affected with knowledge. In the
case of a wife, a want of promptness in noticing the infidelity
of her husband, ought not to be pressed against her as barring
her legal remedy, unless in very particular cases. Certainly a
wife would not be justified in living in the same bouse with her
husband's concubine, sharing the turpitude of his crime, and
partaking of a polluted bed ; but she might have a reasonable
Forbear- hope of his return to her society : and forbearance under this
*°^coddU ^ V^' recuperandi has never yet been held to constitute a bar (o
▼ance. her legal remedy, when every hope of that kind should be ex-
^nct. lb. S Hag* 854. A wife nas not the same control over
the husband, as a husband has over the wife ; nor the same
guard over his honour; nor the same means to enforce ob-
servance of the marriage vow. 1 Hag. Con. 183; 1 Hag. 798.
A facility to condone en the part of a wife seems merltorit^ua,
whilst a similar facility on the part of the husband would be
degrading and dishonourable. 1 Hag. 75S, 706, 786; 3 Hoft.
78. The relative ages of the parties is proper to be pleadea ;
where the husband is much older than Che wife, it may perhaps,
impose on him an obligation to more vigilant saperintendefice.
SHag. 168.

Though malicious desertion does not operate as a positive

bar, yet if a husband withdraw without a cause, and when a

wife required his active superintendence ; it betrays a want of

prudent attention and honest caution, which may, on other

grounds, deprive him of his remedy. 1 Hag. Con, 164;

9 Ad. 999.

Plea of An allegation not defensive in respect of adultery, butcharg-

cosoivaoce ing the husband with connivance, does not admit the cbi^ge of

^T'Y^\ I adultery. 3 Hag. 58, 91. But it seems questionable whether

admit adul- .•' •h^i.lj ^ ^- jr

lery. a party, especially a husband, can set up connivance as a defence^

indirectly and incidentally, and by interrogatory only, without

giving the other party a nill opportunity to answer. Fenion ▼•

May be Penton^ 3 Hag. 350. Although it is clear that the court or a

uken ad. party may take the objection of connivance where it clearly ap-

^h °^ ^^' P^^^^ ^" ^^® evidence adduced to establish the adultery. lb.

pleaded""' ^'^ » '*• ^^^* Indifference, ill-behavour, or cruelty, is not

pleadable in answer to a charge of adultery, nor relevant to a

charse of connivance. 3 Hag. 92.

A nusband applying for a divorce must come with clean hands,
if he have connived at his wife's adultery with A. he cannot take
advantage of adultery with B. happening almost aio«//A^ same

Mibortt^ 343

Hme^ if he has relaxed with one maiii he has no right to complain Addtwy.
of another. 3Hag» 87. But where the improper conduct of the piea io Ur
wife was long antecedent, it waa held no bar ; as where there had of-
been a separation for five years, the husband was not barred of
his remedy, bj having connived at the improper conduct of his
wife, previously to separation ; especially in a case where children Long aoie-
had been bom of the subsequent adulterous connection, who <^?<i«Q^^(«.
had been baptiaed by the name of the husband, for this may be a u"^^'*
a severe injury and an irreparable grievance, as the presump-
tion of law is, that these are the legitimate children of the
husband. 3 Hag. 192; A. note 6/ 3 Hag. 147.

Suits for divorces by reason of cruelty, propter steviliamf are Cmclty.
usually brought by the wife, as the more infirm party, though
they may be, and indeed have been, successfully brought by the
husband. Hag* Con. 400. Every thing is in legal construction
0devitia, which tends to bodily harm, or to the injury of health, ^*"|f^^.
and in that manner renders cohaUtation unsafe; wherever ^^f^m
there is a tendency only, to bodily mischief, it is a peril from cohabiu-
which the wife ought to be protected, because it is unsafe for ^'^
her to continue in the discharge of her conjugal duties. 2 Hag.
Com. 140; 2 P/Ml. 95; 1 Hag. Com. 409. Unkind conduct,
though accompanied by wordsof menace, is not legal savitia un-
less there are expressions of determined malignity, or unless
acGompanied with blows ; if there are words of serious menace,
it matters not that they are addressed to a third person, the test
being, whether, or not, they excite reasonable apprehensions*
1 Hag. 776 ; ^Hag. S65. Nor b it necessary that there should be
many acts ; tiie court indeed is indisposed to interfere on account
of oneslightact, particularly in cases of long cohabitation, because
if only one instance of ill treatment is proved, it may be hoped
that it will not be repeated ; but unless there are some circum-
stances in the case restraining the court, one act is fully sufficient
to authoriae its interference. 1 Hag. Con. 459; 1 Hag. 768.

A groundless and malicious charge against the wife's cnastity^
followed by turning her out of doors, and which charge is not at-
tempted to be pleaded or proved, may be alleged with other
acts of cruelty, as a ground of separation* 1 Hag. 769 ; ib. 16S.
So spitting on a wife, or obtaining her property by imposition,
and oompdlinff to depart bv threats. 1 Hag. 776.

What merely wounds the mental feelings whilst unaccom- insult.
panied by bodily injury, either actual or menaced, can rarely be
noticed by the court ; mere austerity of manners, petulance of
temper, rudeness of language, a want of civil attention, even oc-
casional sallies, if thev do not threaten bodily harm, do not
amount to legal cruelty ; they are high moral offences in the
marriage state, not innocent in any state, but still they do not

344

Btborce*

Crmlty.
Insslt

Saitfor

titution of

conjugal

righu

Doab-

■olute bar

to.

Conduct of
wife iosti-
gating vio-
lence*

amount to such legal cruelty, against which the law will relieve ;
still less is it cruelty, where it wounds not natural feelings, but
those only arising from particular rank or situation, for the
court has no scale of sensibilities by which it can guage the
quantum of injury done and felt; and though such considera-
tions, when stated merely as matter of aggravation, are not ab^
solutely excluded, yet, they cannot of themselves constitute legal
cruelty. 1 Hag. Con. S7, S9, 40. The main test is, can coha-
bitation subsist without personal danger i Where personal safety
is in jeopardy, or there is reasonable ground to apprehend such
a consequence, it is the bounden duty of the court to protect
firoro risk or danger. 4 Hag. S65; 1 Hag. Con. S51 ; 1 Hag.
778; 2 Hag, Necessity alone confers on the ecclesiastical
court the power of putting those asunder whom Grod has joined,
and a regard to personal protection must define the exercise of
that power. But mere words, however reproachful, unless they
inflict indignity and threaten violence, can never lay a foundation
for a sentence of separation. 1 Hag. Con. 409 ; 2 Hag. Con.
168; 2 PhilL 111; 1 Hag. 775. A wife must endeavour to dis-
arm such a temper by weapons of civility and kindness, if these
fail, the law requires her to submit to the consequences of her
own injudicious choice. 1 Hag. Con. S64.

The bringing a suit for restitution of conjugal rights is
not necessarily a bar to a sentence of separation for cruelty,
even where the imputed cruelty has been committed prior to
snch suit ; nor are acts happening anterior to such suit, though
not precisely in the nature of legal cruelty, to be altogether ex-
cluded from consideration, if thev denote harshness and severity ;
but, still in ordinary cases, little reliance could be placed on
them, when the conduct of the party in bringing such a suit
seems so inconsistent with their existence. 4 Ha^. 27S.

But no wife can obtain the interference of the court to

Erotect her from treatment which she has drawn upon
erseif by her own misconduct, she must Bijirsi^ at least, seek
a remedy in the reform of her own manners. 2 Hag. Con. 159.
If, however, it should appear, that even misconduct on the
wife's part has produced a return from the husband, wholly
unjustuied by the provocation, and quite out of proportion to
the offence, the court would still interfere. 1 Add. 4£3. It is
not necessary that the conduct of the wife should be entirely
without blame, for the reason which would justify the im-
putation of blame to the wife, would not justify the ferocity of
the husband* 1 Hag. Con. 459. The court will also notice
relative cruelty, for what may be tolerated by one, may not be
by another. 1 Hag. 782, and 1 Hag. Con. 455. A husband's
attempt to debauch his women*«ervant8, is a strong act of

mmttt* 345

cruelty ; so also is a groundless and malicious charge against Us C"»g^^y'
wife's chastity ; and though neither, of itself, would be suflScient
for divorce, yet in conjunction with other acts, they would weigh
as acts of intrigue and indignity. 1 Hag» 760. But the taking
to a separate bed cannot be pleaded by the wife as an act of
cruelty. lb. 775.

Cruelty, like adultery, may be condoned, Westnieaih v. Maybe
Wesimeaiht it Hag. 112, and upon similar principles maybe co°<io»«<i
revived after condonation ; vid. ante^ 339 ; but, when cruelty vJvedT'
generally consists of successive acts of ill-treatment, if not of
personal injury, something of a condonation of the earlier
ill-treatment necessarily takes place. 2 H<ig. Supju 113. In
one ease, where there had been a Ions separation, nearly
twenty years, the court considered the efiect of it, was to ap-
proximate the acts committed in the two periods of cohabitation;
if there had been no separation, the court would have con-
sidered the former acts as obsolete, and that the husband was
emendatus maribus, but the separation got rid of the inter-
mediate years, and the former acts were to be looked at, as if
they had happened recently. 1 Hag. 781 ; 4 Hag. 511. But
although condonation may be set up as an answer to a suit for ^^ plea io
cruelty, it seems that recrimination may not In Chambers v. |^q"'"''"'
C/tambers, I Hag. Con. 45S, Lord Stowell says, *' If the wife
** was the prior peiens in a suit of cruelty, I do not know that
** she would be barred by a recrimination of that species, for the
** consideration would be very different, the court might not
" oblige her to cohabitation, which would be dangerous."

A plea of cruelty may be introduced with considerable Cruelty
effect, when adultery is, at the same time, charged against cbamd
the husband; because proof of cruelty, in such a case, adds |^^^|.
greatly to the probability that the charge of adultery is well tery.
founded ; for when the affections of a husband are estranged
from his wife, they are more likely to be directed to less worthy
objects* 1 Hag. Con. 146. So also it may be admissible, as
introductory to the history of an adulterous connection. 3
Phill. 500. Where cruelty and adultery are both charged, it
may not be necessary to proceed on the charges of cruelty at
all. iPhULffl.

A party being before the court on a charge of cruelty, acts of Acu of
adultery, subsequent to the citation, may be pleaded. 1 HtLg. SSt. adaitery.
In a subsequent case, where it appeared that the husband
was cited in a suit for cruelty, in Fenruary 1831, to which a
defensive allegation on his part was admitted in June 1832;
an allegation on the part or the wife was subsequently put in,
pleading adultery by the husband in 1827, 1828, and 1829; it
was contended that such allegation was not admissible, and
that no case had gone so £eir as to allow acts of adultery to be

346

IBfiiorce^

Craelfy«

Sodomitical
practices.

Deed of te-

parttioii*

Seoaratioii
in feet.

pleaded, mrliiGh had taken jllace previously to the original flutt»
although acts of adultery subsequent to the suit had been ad-
mitted, though not contained in the original libel; but the court
not admitting the distinction, the allegation of the wife was
admitted. Sampson v. Sampson^ 4 Hag. S88.

A wife sued her husband for a divorce, on the ground that
he had been guilty of unnatural practices, and a libel was given
in the consistorial court of York, pleading a conviction, and a
sentence to two years imprisonment ; the court having rejected
the libel, the cause was appealed to the court of delegates^
who reversed the sentence of the court below, and decree<I a
divorce ; an act of parliament was subsequently obtained, bj
which the marriage was dissolved. Bromley v. Bromlefff
2 Add. 159.

In Mogg V. Moggj 2 Add. 99S. The libel charged cruelty,
and unnatural practices ; a distinction was attempted to be es*
tablished between this and the case above, on the ground, that
the latter was a conviction of an assault, with intent to commit
&c*, whereas this was a conviction for endeavouring to persuade
£• K. to permit him to take indecent liberties, a minor offence,
though one of the same kind; but the court, Sir J. NiehoU,
said, ** The case upon the whole, amounts to that J9^r quod cf^n^
** sortimm amiiUiur. Could the court send the wife home to
** such a husband ; he refuses her access to his person ; he
^ resorts to abominable practices, cruelty itself, independent of
'^ that other charged ?"

A deed of separation is considered by the ecclesiastical court
as an illegal contract, implying a renunciation of stipulated
duties ; a dereliction of those mutual offices which the parties
are not at liberty to desert; an assumption of a false charaeter
io both nartieav contrary to the real Mtatui personae f and there-
fore such deeds are not pleadable in bar of proceedings for
adultery. 2 Hag. Con. 14«; 2 Hag. Con. 818; 1 Hag. 760,
789; S Add. S86, SOS; 4 Hag. 514.

It is not to be considered as a matter perfectly Hght in the
behaviour of a husband, complaining to this court, that he has
withdrawn himself from his wife, without cause, and without
consent, from the discharge of those duties that belong to the very
institution of marriage ; this malicious species of desertion, is a
ground for divorce in some countries, certainly not so here ; but
it will not justify a wife in a resort to unlawful pleasures,
because lawnil ones are withdrawn. 1 Hag. Con. 154.

Mere separation, in fact, cannot be made the ground of a
divorce. 1 Hag. Con. ISO, 154; 1 Hag. Con. 14«; S Add. 299.

If the court were to grant separations, because the husband
has thought proper to separate himself from his wife, it would
be to confirm desertion, and gratify the deserter, and the court

BAortti 347

would then become tbe perpetual instrument of these voluntanr ^g|^^^

and illegal separations, (a) Neither can desertion, though wilful, ^

or as it is sometimes called, malicious desertion, be made a ground
of separation, though in conjunction with cruelty it frequently is.

1 Hag. Con. ISO; 1 Hag. Cam. 142; 2 Add. 299.

Tbe mere desertion of a wife by a husband, though a ma-
lidous desertion, will not bar a sentence of divorce, on proof of
adultery committed by the wife. The long absence of the
husband was not considered to amount to a desertion, in the
case of Sullivan v» Sullivan^ 2 Add. 299.

A suit for a divorce may be instituted at the instance of the Who may
parent or guardian of tbe minor; and the court, in a case where !||!^^^iq„
the wife*s grandfather was appointed guardian, ad liiem, on her br. ^
mother's renunciation, would not enter into tbe question, —

whether die husband might dispute the apnointment of guardian, **

since it was enough, if a third person could not take Mlvaotage
of the ofcjeetion; for, there being a guardian apparently ap«
pointed with soffici^it regularity, the court will presume the
person sufficiently qualifiea to receive it, until the appointment
is shewn to have been invalid. 1 Hag. Com. 6.

So also the committee of a lunatic, may institute such a suit, in CommittM
which case it was said by Lord SloweU, in Pamellv. Parnellf of lunatic.

2 PkUl. 198 ; 2 Hae. Con. 170. '' The question resolves itself into
two points : whetner alunaticis put out of the protecti<Hi of the
law, and secondly, if he is not, whether there is any

(a) Paletf, in his Moral Philosophy, seems to consider this as a suf-
ficient grcmnd of divorce. B. 3, P. 8, c. 7 ; snd it is admitted by the
laws of Scotland and Prnssia, and was so in FWice, after the Revolution,
and before the Restoration. In Seotiaiulj four yean' desertion was tbe
pefiod fixed on by a statute passed in 1573 ; in practice, however, a
sboiter time is admitted ; the first process is, to compel cohabitation ;
on the contumacy of the defendant, the marriage is dHMolved, and tbe
statute is considered as satisfied, if four years intervene between the
first desertion and final septence. In America^ the practice varies ia
different States. In Maine^ five years' desertion without cause, is re*
quired to be proved. In Connecticut^ wilful desertion for three years
IS considered sufficient. Kent^s Comm. on American Lato^ 105, s.
Both the civil and canon law allow a divorce for long absence, but are
not agreed as to the period ; in one place it is said, after two years ;
in anotheri after three ; others have held that the civil law requires
five years. In the council of Lateran, a sentence was allowed by the
whole council, which was given by a bishop, pronouncing a divorce for
a woman, complaining that her husband had been absent ten years ;
giving also leave to the woman to marry again. But the truth is, no
abii^nce, be it for any time whatsoever, doth properly cause a divorce
at law. Godid. Abr. 494.

348 B(borte*

Advitery. << mode in which redress can be obtained ; on the first, there
can be no doubt ; and it never can be asserted, that
the wives of lunatics should be universally released from the
V duties of their marriage vow. It would be an imputation on
** the laws of this country, to suppose that it had not provided
** some remedy against such a mischief. Upon principle, the
*' powers of the committee must be upheld, to protect the
"lunatic from the greatest of all possible injuries." And, it
was also said, that the lunatic would have the power of con-
donation, if he recovered ; or might stand on what bad been
done for him. Ante, S40.

Limitaiion There is no limitation of time for bringing a suit for divorce

of suiu for. on the ground of adultery. " Quamtds aceusandi Jus de adul-
** terio quocui pienam criminalem et civilem prteseribaiur qmn*
** quemuOf quoad dhoriium tamen petendum, nunquam prascri*
" biiur.'' Sanchez, Uh. 10, disp. 3 ; Povnter, ^04. No limita-
tion is imposed by statute, or by any rule which the court has
laid down for itself. The court has no power by law to refuse
relief merely on the ground of lapse of time. Courts of law do
not afibrd any conclusive rule which should bind the ecclesias-
tical court in such a question. 1 Hag. Con, 1S3 ; 1 Hag. 740 fi.
The first thins the court looks to, wnen a charge of adultery is
preferred, is the date of the charge relatively to the criminal act
charged, and known by the party ; because, if the interval be
very long between the date and knowledge of the fact, and the
exhibition of them to this court, it will be indisposed to relieve
a partv who appears to have slumbered in sufficient comfort
over them ; and it will be inclined to infer, either an insincerity
in the complaint, or an acquiescence in the injury, whether real
or supposed, or a condonation of it It therefore demands a
fiill and satisfactory explanation of this delay, in order to take
it out of the reach of such interpretations. 2 Hag» Con» 313.

Delay. For the purpose of explaining delay in such a case, the affidavit
of the husband, the plaintiff, was admitted to be read, though
objected to, on the ground that no evidence of the wife or hus-
band could be heard in such a case ; and that the cause which
was concluded must be determined by the proofs exhibited in
it ; but the court said that the wife did not suggest connivance
or condonation as a ground of defence, and it was necessary
for the husband to explain the delay in order to satisfy the con-
science of the court; k PhiU. 168 ; but where not so accounted
for, condonation was presumed from the delay, and the suit
dismissed. lb. 153* A husband may wait in order to obtain
adequate proof, but no longer. 3 Hc^* 131 ; and vid, Dobbyn
v. Dobbyn, Poynier, 233 ; Ruding v. Rud&ng, ib. 231. But
this doctrine is not to be pressed against a wire. Forbearance
on her part may be excusable and even meritorious. 1 Hag.

Stiunte. 349

Con. ISS. Therefore mere lapse of time will not bar a wife's Adalfty.
remedy* 1 Hag. 740 n; ib. 766. Even in the case of a
husband, it is not, it seems, invariably expected that he should
show when a charge first came to his knowledge. 2 Hag. Delay.
Cbfi. S79. In Elu)e$ y. Elwes, 1 Hag. Con. SBZ^ the court
observed, " A husband has suspicions, he has some intimations^
*' he has enough to convince his own mind, but not to nistruct
*' a legal case* In that distressing interval his conduct is nice ;
** it is difficult to refrain from cohabitation, as the means of
** discovery would be frustrated, and if he continues cohabi*
*' tation, it then becomes liable to imputation.** How far delay
to institute proceedings may lead to an inference of condonation
or connivance, vid. ante^ SSH^ S4^.

It was solenmiy decided in Lolly's etue^ \ R.ifR. C.C. 236, Fonign(a)
that as by the law of England marriage was indissoluble, and divorcei.

(a) In America this question excites anxious oonsideration, ftom the in-
termarriages of dtisens of different states of the union, each state being in*
dependant and governed by its own laws. Chancellor Ainrf, in his Com*
vteniarieSfp. 107, says, "Assuming that in ordinary cases the oon8titutioiv>
" ality of Uie laws of divorce in the respective states is not to be questioned,
'* the enobarrassingpoint is, how far a divorce in one state has a valid opera-
** tion in another 7 If a husband and wife were married, and reside in a
'* state, where divorces are not at all permitted, or not to the extent, andfor
*' the same causes as in other states ; and the parties, or one of them, retire
** into another state for the express purpose of procuring a divorce, and,
** having obtained it, return to their native state and contract other
^ roatritnonial ties ; how are the courts of the states, where the parties
^ had their home, to deal with such a divorce ? When a divorce was
«« brought in such a case, the court in Mastaehtueti properly lelbsed to
** sustain a libel for a divorce, and sent the parties bai^, to seek such
^* relief as the laws of their own domicile afforded. The supreme court
*' oiNeto York has refused to assist a party, who had thus gone into
*> another state, and obtained a divorce on grounds not admissible in
'* New Yorkf and procured an evasion of its laws. They would not
" sustain an action of alimony founded on such a divorce $ In another
" case it held a divorce in another state obtained by the husband, when
** the wife resided out of the state, and had no notice of the proceedings
" null and void ; because the court had no jurisdiction over the case,
** when they had none over the absent wife. So also, in the supreme
*' court of MassachusetSf in the case of a divorce fraudulently obtained.
" Sentences obtdned by collusion being mere nullities, andall other courts
" having power to examine into facts apon a judgment obtained by fraud.'*
He adds, *' The question is, whether, if such a divorce be procured in
** another state by parties submitting to the jurisdiction, and after a fair
'* investigation of the merits of the allegations upon which the decree
** was founded ; sudi a decree be entitled to be received as valid and

350

fiiliorte*

Foreigii>

B«ai1ey ••
lieazley.

not be dUsolTeil but by an act of parKamenti it could not be
disaolved by the courts of another country. The iudges held
the conviction rigbti being unanimously of opinion that no sen*
tence or act of any foreign country^ or state, could dissolve an
English marriage & vinculo matrimonii for grounds on which it
was not liable to be dissolved i vinculo matrimonii in England*
The same question also arose, very shortly afterwards in tfie
house of lords, in Tovep ▼• Lindsay , 1 Dow, P. C 117. In that
ease there was no decision, Lords Eldon and RedcMdale con-
sidering the question too important to be decided upon the case
as it was then brought up.

Beanie jf v. Beanie^, 3 Hag. 6S9, was a case of nullity of
marriage promoted by the wife on the ground of a former
marriage. The question arose, whether such former marriage
was dissolved d vinculo by a divorce in the commissary court of
Scotland, so as to enable the husband to marry again ; the mar-
riage pretended to be dissolved, having taken place in England,
the second marriage in Scotland.

The court. Dr. LuMkinpton, said " Cases have been cited, in
'* which it is alleged that a final decision has been pronounced by
** Tery high authority upon the operation of a Scotch divorce on
^ an English marriage, that it has been determined, that a mar-
" riage celebrated in England cannot be dissolved by the sen-
" tence of a Scotch tribunal, and that the contract remains for
" ever indissoluble. The authorities principally relied upon fbr
** establishing that position, are the decisions of the twelve
** judges in Lollj/'s case, and the decision of the present lord
" chancellor, on a very recent occasion. M*Carthy v.De Caix.
** If those authorities sustained to its full extent the doctrine con-
tended for, the court would feel implicitly bound to adopt it ;
but I must consider whether in Louj/^s ease it was the inten-
** tion of those very learned persons to decade a principle of
** universal operation absolutely, and without reference to cir-
'* cumstances; or whether diey must not, almost of necessity, be
^ presumed to have confined themselves to the particular cir-
^ cumstances that were <hen under their consideration. Lolly's
** ease is very briefly reported ; none of the authoi'ities eited on

" binding upon the courts of the native state of the parties. A graver
*' question cannot arise under this title in our law." The learned author
then enters into an able discussion of the question, reviewing the deci-
sions of our courts and of the commissary courts in Scotland.

It appears that, upon the principles of the English law, a maniage
contracted in New York cannot be dissolved except for adultery by any
foreign tribunal out of the United States, because the Ux loci contractus
ought to govern. JTrs/, 117.

€t
€9

*• the one ude^ or on the other are referred to, nor are the ^^'^^^
** opinions of the learned judges given at any length ; all that Beaziey v.
'* we have, is the decision. Betiky.

In that case the indictment statedi that on the 18th of July,
Lottj^ was married at Liverjpool, to Ann Levaia, and after*
'^ war£ to Helen Hunter, his former wife being then living. It
« was proved, that both marriages were duly solemnised at
'* Liverpool, that the first wife was alive a week before the
*' assizes, and that the second wife agreed to marry the prisoner,
*' if he could obtain a divorce. The jurv did not find that any
** fraud had been committed; but there does not appear to have
** been any discussion upon the very important question of
'* domicil. A case in which all the parties are domiciled m
England, and resort is had to Scotland, (with which neither of
them have any connexion) for no other purpose than to obtain
a divorce i vinculos may possibly be decided on prindples
'* which would not altogether apply to a case difierently circum-
*' stanced ; as where, prior to toe cause arising, on account of
" which a divorce was sought, the parties had been bond fide^
" domiciled in Scotland. Unless I am satisfied that every view
" of this question had been taken, the court cannot, firom the
'* case referred to, assume it to have been established as an uni«
^ versal rule, that a marriage had in Enffland, and originally
^' vaUd by the law of England, cannot under any possible dr-
*' cumstances, be dissolved by the decree of a foreign court

*' Before I could give my assent to such a doctrine, (not
<' meaning to deny that it may be true,) I must have a decision
*' after argument upon such a case as I will now suppose ; tix*
''a marriage in England, the parties resorting to a foreign
'' country, becoming actually bcndjide domiciled in that country,
'' and then separated bv a sentence of divorce pronounced by
** the competent tribunal of that country. If a case of that des^
cription had occurred, and had received the decision of the
twelve judges, or the other high authority to which allusion
** has been mad^ then indeed it might have set this important
** matter at rest ; but I am not aware that that point has ever
** been distinctly raised, and J think I may say with certainty
'* that it never has received any express decision.**

When the above case came before the court for final judgment,
the learned judge said, '' One only distinction exists between this
'* case and that of Lolly's^ viz, that here the second marriage
'' took place in Scotland ; in neither case is there any proof of
" collusion in resorting to Scotland ; and in neither case is there
'* any domicil in Scotland ; and, as in my judgment the ques-
tion of domicil might form a most important and distinguish-
ing feature; the due efiect of a Scotch domicil on the decision

352

Foreign.

Beazley v,
Beazley.

€t
€t

t€

«(
tt
tc

€1
tt
it
tt
tt
tt
tt

of these cases would demand a very careful consideration.
That, however, does not arise in the present case.
" It is useless, however, to reason from principles or analogy,
I am bound by authority ; for since it now appears that neither
of the parties to the first marriage, were at any time bond fide
domiciled in Scotland, no sound distinction exists between the
present case and that of Lolly; I, therefore, pronounce the
second marriage null and void. My judgment, however, must
not be construed to go one step beyond the present case, nor
in any manner to touch the case of a divorce h vinculo, pro-
nounced in Scotland between parties, who though married
when domiciled in England, were at the time of such divorce
bond fide domiciled in Scotland ; still less between parties who
were only on a casual visit in England at the time of their
marriage, but were both then and at the time of the divorce
bond fide domiciled in Scotland.**

Description
of.

Bonattbe.

A donation is so called, according to CHbson Cod. 865,
because it is given and fully possessed by the single donation of
the patron in writing, and is merely given by the patron to a clerk
and requires neither presentation, institution, or induction; and
the donee may be put into possession by the patron, or by one
acting under bis orders. Degge, 163; AyUffe Parer* 230;
GodoL Abr. 202; nor is a donative visitable by the ordinary,
but by the patron and his heirs, or rather by a commission
appointed by him. Co. lAit. 344.

This exemption from ecclesiastical jurisdiction may have been
originally allowed by the bishops with a view to increase foun-
dations and endowments in the church ; and the privilege once
accorded to the founder, may eventually have been turned into
a prescription. 1 SOU. 335 ; 3 Insl. 122. (a) Donatives are

(a) OibsoUf speaking of the origin of donatives, Cod. 865, considers them
as sprung from the consent of the bishop to some particular lords or great
men, who were desirous to erect places of worship for the convenience of
their families, and did obtain those privileges for themselves and their
heirs, in r^ard that they were only at first considered private and do-

MOMtiiit. 353

to be distinguished {rotn sinecures and exempt jurisdictions ; Distin-
for sinecures are in fact benefices presentable, but by means oiP guisbable
vicarages endowed in the same places, the persons who enjoy ™ "°^'
them have by long custom been excused from residence ; and

cures.

exempt jurisdictions are not so called because they are under Peculiars.
no ordinary, but because they are exempted out of the juris-
diction of the ordinary of the diocese, and have one of their
own, and therefore are called peculiars. 1 SHU. 335.

The term donative is applicable to every description of eccle-
siastical preferment. From the Conquest till King John's reien
bishoprics were all donative. Prebends still may be so, as the
canonries of Windsor and prebends of Westminster are to this
day also benefices with cure of souls. WeUs. c. 15.

There are many benefices in the church which might be enu- Whaira-
merated, which resemble, rather than are, donatives ; as the grant ^™H^
of a prebend by the king without institution, and the collation

of a bishop without presentation ; or the nomination to a per- ^y^^
petual curacy which is without either presentation, institution, ^^'^
or induction. All these diiFer from donatives properly so called,
which are given, and entire possession of acquired, by the sole
donation of the patron in writing ; inasmuch as collations and Collations.
royal grants are to be followed by induction and instalment ;
and persons nominated to curacies are to be authorized by a Perpetual
license from the bishop before they can legally officiate; whereas curacies.
possession by donation is not subject to any of these consequents,
but receives its full essence and efiect from the single act and

mestic chapels. And as the families, and by consequence the neighbour-
hood, increased or decayed, these places became in process of time
churches or chapels with cure, or sinecures. For that a benefice with
cure of souls may be donative appears from the case of St, Burian in
Cornwall, Co. Litt. 344 a; AyUffe Parer. 260, and thechurchof the Tower
of London. But if these places had been originally intended for dis->
tinct cures of souls, and not as private places of worship only, it is not
to be conceived that the bishop should grant them such privileges and
exemptions, since the utmost flavour that was granted to the founders
or endowers of churches (though intended only for their own tenants)
was the right of patronage ; from whence it may be inferred that those
grants of independence made to the churches and chapels called dona-
tives, were in consideration of their being at first of merely a fyrivate and
domestic nature. Godolphin Ahr, 202, and AyUffe Parer, 230, adopt the
opinion of Mr. (rtttnfi, and trace the origin of donatives to a direct license
fiinm the crown ; and that, as the king might anciently found a free chapel,
and exempt it from diocesan jurisdiction, so he might also by his letters
patent license a common person to found such chapel, and to ordain that
it should be donative and not presentative.

A A

354

Boitattffie*

Description
of.

Parson may
be visited
by the ordi-
nary.

May be-
come pre-
Kentable.

Presenta-
tion by
patron.

Acceptance
of queen's
Anne*s
bounty.

IG. I. St. 2,
c.lO.

sole authority of the donor. Wats. c. 15; I T. R. 401 ; Cro,
EUx. 658; Co. lAit. 341. The grant of a donative once made
creates a right as full as if it had been accompanied with insti-
tution and induction, and which cannot be taken away, except
by resignation to be made to the donor, or deprivation to be
mad& by the patron or donor. Dav, Rep, 46.

But although a clerk upon whom a donative is befstowed'does
not gain his possession as others do by presentation, institution,
and induction, yet he is required to do many things that they are
required to do both by the Canons and by statute. S Bum's
E. Zf. S24. He will, in fact, be required to do what any other
incumbent does after institution. Vid. ^' Incumbent.^*

Although the ordinary has no jurisdiction over the place
where the donative is, yet it seems that he hath power as to the
parson, if he commit any misdemeanor, to proceed against him
by spiritual censures ; for the parson of a donative is liable
to the ecclesiastical jurisdiction, as he is a member of the
ecclesiastical body, for personal offences ; though for matters
relating to the church he was exempt^ and therefore the sfpi-
ritual court could not deprive him; but for drunkenness or
preaching heresy they might censure him. Lord Raym. 1905 ;
3 Wils. 355 ; 2 Salk. 140 ; 1 T. R. 396 ; sed quaere, if the patron
had appointed a commissioner as visitor. 1 Inst, 344.

A donative may become presentable in two different ways.
First, If the patron of a church donative doth once present to
the ordinary, (the presentation by a stranger having no title
would be merely void in such a case,) and his clerk be admitted
and instituted, it becomes presentable, and it shall never be
donative again ; and then the ordinary shall visit the same, and
lapse shall incur to the ordinary, as in all other benefices pre-:
sentable. The case of Ladd v. Widdows, Z Salk. 541 , aeeoM, •
however, to have overruled this. ^dly. By the patron's ac«
ceptanoe of Queen Anne's bounty it beooiiies- presentable, it
being enacted by 1 Geo* l^st. 2; e, 10, s, 4, that all such ehtircbes*
curacies, or chapels which shall be augmented by the govemtyrs
of the said bounty shall be from thenceforth x>erpetual cures
and benefices, and the ministers duly nominated and licensed
thereto shall be in law bodies corporate and politic, &c. and the
impropriators or patrons shall be excluded from receiving any
profit from such augmentation, &c.

And by ss. 6^7, for continuing the succession in such aug*
mented cures, hereby made perpetual cures and benefices, and
that the same may be duly and constantly served. If they shall
be suffered to remain void for six months, they shall lapse in
like manner as presentative livings.

And, finally by s, 14, all such donatives whi«di, at the time of

IBonatib^ 355

their augmentation are exempt from all ecclesiastical jurisdiction ^% ^

shall by such augmentation become subject to the visitation and aM^°^'
jurisdiction of the bishop of the diocese wherein such donative

is: provided by s, 15 that no donative shall be augmented J^n^''*'^'

without the consent of the patron in writing under his hand and

seal.

By 1^2 Vict, c. 106> s. 124, it is enacted, that in all cases
where the word benefice is used in that act it shall mean bene-
fice with cure of souls and no other ; and therein shall compre*
bend all '' donatives ;" so that, where a donative is with cure of
sools, it is within the meaning of that act, and consequently all
its provisions with regard to residence, plurality, curates, &c.
are applicable to it.

In cases of donatives, the executor does not take the right to
present of the testator falling during his lifetime, and not filled up
at his death, as in the case ofa presentative benefice; but the heir.
Repingion v. Governors of Tarmoorth School, 2 Wils. 1 50. A.
being seised of the advowson of a donative, the church became
void before he died, and he did not fill the vacancy. The
plaintiff, being executor, claimed the turn, as in the case of a
presentative benefice. The court, however, were clearly of
opinion that the right of donation descended to the heir at law.
Vid, RenneU v. the Bishop of Lincoln, 1 B, ^ C, and the
remarks made by Bay ley and Hohroyd, 33,, on the above case,
and also by Tindal, C. cF., in the exchequer chamber, afiirming
the decision of the king's bench. 8 Bing, 563.

If issue be joined, whether donative or presentative, it shall
be tried by a jury at common law ; and if the patron ofa dona-
tive be disturbed in collating his clerk, he may have a guare
itnpedit against the bishop and his disturber ; but the declaration
in such case must be special ; Degge, 164 ; if the patron of
a donative is disturbed in collating, and recover by quare
impeditj the writ shall be directed to the sheriff* to put the clerk
in possession. Gibs, Cod, 868.

Though it was formerly held that a mandamus was grantable
to admit or restore the donee of a donative, yet it is now not so,
there being a specific remedy by quare impedit, 1 T, R, 396.

A A S

356

In February 9 18S5, a commission was issued for the purpose
of considering the state of the established church in England
and WaleS) with reference to ecclesiastical duties and revenues,
which commission has since been renewed. In order to pro-
mote the objects of such commission, his majesty, William 4,
was pleased to signify, that it was his intention to defer any
nomination to any vacant dignity, prebend, canonry, or bene-
fice, without cure of souls, which might be in the patronage of
the crown, until the circumstances connected therewith should
have undergone the consideration of the said commission ; and
the two archbishops, and many of the bishops of England and
Wales, also declared their intention of pursuing the same course,
with regard to similar preferments in their respective patronage,
(excepting only with regard to the dignity of archdeacon ;) and
a similar declaration was made by certain other patrons ; but
considering that several dignities, prebends, canonries, and be-
nefices, without cure of souls, had become vacant since the
issuing the commission, and that others might become vacant,
pending the inquiries in progress ; it was deemed expedient
that such should remain vacant, until it should be decided in
what mode they should eventually be disposed of, so as to be
made most conducive to the efficiency of the established church;
with that view, it became necessary to provide that due care
should be taken of the revenues of such dignities, prebends,
canonries, and benefices ; and that the right of presentation or
collation to them, should not lapse, by reason of delay in such
presentation or collation.

For the purpose of protecting the revenues of such vacant
benefices, and of appropriating them to the purposes of the
established church, the legislature passed the 5^6 JVm. 4,
c. 30, an abstract of which immediately follows ; in the fol-
lowing session, the commissioners having made four reports,
the parliament passed the 6^7 Wm. 4, c. 67, called the Ec-
clesiastical Suspension Act, with a view of suspending the ap-
pointment to certain cathedral dignities, offices, and sinecure
rectories, which the commissioners in their Report had re-
commended should be entirely abolished, or placed upon a
different footing ; in the same session was also passed the 6^7
JVm. 4ff c. 77, which enumerated in its preamble, several very
extensive alterations in dioceses, revenues, and patronage, which

(Sttkni&ntitBl Commt0s(ton. 357

had been recommended by the commissioners in their third
report; and after having incorporated the commissioners and
given them extensive powers of inquiry, enabled them from
time to time to lay before the king in council such schemes as
appeared to them best suited to carry into effect their various
recommendations ; and enacted that such schemes, when ap-
proved by the council, should have the effect of a law, from the
time the same should he gazetted in the London Gazette.

It was enacted by the 5 ^ 6 fVm. 4, c. 30, that where any 5&6W. 4,
dignity, prebend, canonry, or benefice without cure of souls, ^' ^'
being in the patronage of the king, any archbishop, bishop, or
any other patron^ in England or Wales, had become vacant
since the 4th February, 18«S5, or should become vacant during
the existence of the commission, or any renewal thereof; that
all profits and emoluments which had arisen, or should arise,
until a successor should be appointed thereto, (in as full and
ample a manner, as if a successor had been installed and en-
titled to receive the same,) should be paid to the treasurer of
Queen Anne's Bounty, to whom was granted the same remedies
for recovering the same, as a successor would have had ; pro-
vided that he should have no power to grant leases, or present
to benefices.

By #• 2, it was enacted, that such treasurer should keep an
account of all receipts ; and allow all costs, expenses, and out-
goings, which would have fallen on the deceased incumbent.

By «. 3. Nothing in the act was to affect any profits or
emoluments of any dignity, &c., "then vacant, which had been
"already divided, or carried to any particular account; ac-
'' cording to the statutes, customs, or usages of the cathedral
" or collegiate church, in which such dignity might be founded.'*
By «• 4. Nothing in the act was to prevent the king, arch-
bishops, bishops, or other patron, of any dignity, &c., " without
*' cure of souls, which may have, or hereafter should become
** vacant, from appointing a successor thereto, in ccue he should
" think proper so to do^

By #. 5. Where any benefice icith cure of souls being in the
patronage of the holder or incumbent of any dignity, &c.,
without cure of souls, should become vacant, the patron of such
last mentioned dignity, &c., " should be entitled to present to
" such benefice with cure of souls."

By s. 6. The right of presentation or collation to any dignity,
&c., without cure of souls, should not lapse to any bishop,
archbishop, or to the king ; provided the patron of such vacant
dignity, &c., should within six months after the vacancy give
notice in writing to the commissioners, who should transmit a
copy of such notice to the treasurer aforesaid, who should

358

CommuttCotu

6 6C7W.4,
c. 67.

Appoint-
meats to be
made sub-
ject to fu-
ture pro vi-
sioQS.

tliereupon proceed to collect and receive the profits and emolu-
ments of the said dignity, &c.

In the next session of parliament an act, the 6^7 fVm. 4,
c. 67, was passed, which recited, that the commissioners
had made four Reports ; and for the purpose of carrying these
reports into effect, suspended for one year, appointments to
certain dignities and offices in cathedrals, and collegiate
churches ; and to sinecure rectories.

In the recital to that act it was stated, that the four several
Reports bore date respectively, the 17th of March 1835,
the 4th of March, the 20th of May, and the 24th of June 1836;
and that in the last of such reports, amongst other things, it
was recommended that the chapters of each cathedral church
in England, except at Oxford ; of the collegiate church of
Westminster; and of his Majesty's royal chapel of Windsor,
should consist hereafter of a dean and four canons only ; that the
chapter of Christ-church in Oxford, consist hereafter of a dean
and six canons only ; and that the chapters of St. Asaph and
Bangor respectively, consist hereafter of a dean and two
canons only ; the chapter of Saint David's, of a precentor and
two canons only; and the chapter of Llanda£r, of an arch-
deacon and two canons only ; and that no new appointment be
made to any of the prebends, dignitiesi or offices, not being
residentiary, in the several cathedrals and collegiate churches,
except as therein specified ; nor to the deanery of Wolver-
hampton ; and that all ecclesiastical rectories without cure of
soul, except such as were in the patronage of any college in
either of the universities, or of any private patron be sup-
pressed ; and the commissioners having recommended various
other measures, some of which were connected with, and de-
pendant upon the foregoing recommendations, and that it was
expedient that the reports gf the commissioners should be
further considered in the next sessions of parliament ; it was
enacted, ''That all future appointments to any ecclesiastical
dignity, place, or office referred to in the above recom-
mendations, should be made subject to such measures and
regulations as might hereafter be enacted respecting the same,
except us hereinafter excepted ; and that no appointment,
presentation, or collations be made to any canoncy, prebend,
or dignity in any cathedral church, in England or Wales; or in
the royal chapel of Windsor, or the collegiate churches of
Westminster and Ripon, or to any benefice without cure of
souls, in England or Wales, then vacant, or which should
become vacant during the continuance of that act. Provided,
that nothing should be construed to apply to any archdeaconry,
or deanery, except the deanery of Wolverhampton, nor to the

(((tlfriiutttcal CmmBifMioit. 359

dignity of precentor of Saint David's ; nor to any canonries of
Yock* Saint Paul's in London, Carlisle, Chichester, and Lincoln,
nor to the canonries of Christ church, annexed to the Regius
ProfiBBsorahips of divinity and Hebrew at Oxford, nor to the
prebend in the church of Worcester, annexed to the Margaret's
professorship of divinity in the same university, nor to the two
prebends of Westminster, which the commiasioners recom*
ineaded to be annexed to the parishea of Saint Margaret and
Saint John, Westminster, nor to the fourth prebend of Durham,
to be annexed to the archdeaconry of Durham, nor to the
prebends in the cathedral churches of Gloucester, Norwich,
and Rochester respectively, annexed to the maaterahips of
Pembroke college, Oxford, and Catherine hall, in Cambridge,
the provostsbip of Oriel college, Oxford, and the archdeaconry
of Rochester, respectively ; nor to any prebend now enjoyed by
the bbhops of Lincoln, Lichfield, Exeter, and Salisbury, in
the chapters of their respective sees ; nor to any benefice without
cure of souls, in the patronage of any college in either of the
aniveraities, or of any private patron ; nor to any canonry of
Chriat church, Oxford, by the vacancy of which the canonries
wottkl be reduced below. the number of six ; nor to any prebend
or canonry in the chapter of any other cathedral or collegiate
church in Kngland, or royal chapel of Windsor, or the col-
legiate churches of Westminster or Ripon ; by the vacancy of
whicb the prebends or canonries in such chapters respectively,
would be reduced below the number of four ; nor to any ca-
nonry in the chapter of either of the cathedral churches of
Wales, by the vacancy of which the canonries in auch chapter
wouU be reduced below the number of two."

The first act, it will be observed, merely provided for the
renewing and appropriation of vacant dignities and benefices,
the presentations to which were suspended, with a view of
promoting and carrying out the recommendations of the com-
misaioners.

The second act states certain recommendations of the com-
missioners, which had then been made, and directs that all
fttture appointments,. with reference to the subject matter of
such recommendation, should be made subject to auch regu-
lationa as nught be in future enacted, in furtherance of such
recommendation.

The6Sf7 fFiii.4,c. 77, which is entitled ''an act for carrying 6& 7 w.4,
'' into efiect the reports of the commissioners appointed to con- c-^^-
^* sider the state of the established church in England and li^leofact.
'* Wales, with reference to ecclesiastical duties and revenues,
'* ao fiir aa they relate to episcopal dioceses, revenues, and
*' patronage," proceeds to recite the appointment of two Keciul of
several oommissious, who were directed to consider the state ^^'*

360

attcletfiiucttcal

6&7W.4,
c. 77.

CoDstitu-
tioD of the
cornmis-
sioo.

What com-
missionera
are remov-
able and
vacancies
how filled

1»P-

Declara-
tion to be
made bjr the
laycomroia-
vionera.

Five to be a
quorum.

of the several dioceses of England Wales, with reference to
the amount of their revenues, and the more equal distribution
r f episcopal duties, and the prevention of attaching, by com"
mendam, to bishopricks, benefices with cure of souls ; and to
consider also the state of the several cathedral and collegiate
churches in England and Wales, with a view to the suggestion
of such measures as may render them conducive to the efficacy
of the established church, and to devise the best mode of pro-
viding for the cure of souls, with special reference to the re*
sidence of the clergy on their respective benefices. It then re-
cites that the commissioners have, in pursuance of such di-
rections, made four several reports ; and that they recommend,
amongst other things, that commissioners be appointed by par*
liament for the purpose of preparing and laying before his
majesty in council, such schemes as shall appear to them to be
best adapted for carrying into effect certain recommendations
which are there specified, in a continuation of the recital to
the act.

The act then proceeds, in see. 1, to nominate the commia-
sioners ; the archbishops of Canterbury and York, and bishop
of London, for the time being, and certain great officers of state,
being permanent commissioners; to whom are added two
bishops and three lay commissioners, who are constituted a
body corporate, by the name of " the Ecclesiastical Commis-
sioners for England;" and by that name to have perpetual
succession, and a common seal, and by that name to sue and be
sued ; and to take and purchase and hold lands, tenements, and
hereditaments.

By s, 2, It is enacted, that the two last-named bishops, uid
three last-named lay commissioners, shall be at all times re-
movable by the king in council, by warrant under the sign
manual ; and when any vacancies shall occur among them, or
among any others appointed in the places of those now ap-
pointed, some other bishop of England or Wales, and some
other layman, being a member of the church of England, shall
be respectively appointed to fill the vacancies.

By s, 3. Every commissioner, not being aii archbishop or
bishop, shall, at the first meeting which he shall attend, and
before acting at such meeting, subscribe in the book of the
minutes of their proceedings, a declaration in the words follow-
ing : — '' I do hereby solemnly, and in the presence of God, tes-^
'* tify and declare that I am a member of the united church of
** England and Ireland, as by law established."

Witness my hand, this day of

By«. 4. All things which the commissioners are authorized
or required to do, shall and may be done by any five <^ them,
provided that such five commissioners are assembled at a meet-

tftcbKfatfttail €omniiUiotu 361

ing whereof due notice has been given to all the comfnis*- ^^^^-^'

By s» 6. No proceeding which requires to be ratified or No final

confirmed by the common seal of the corporation, shall be J^^^ceDt

finally concluded, nor the seal affixed to any deed or instrument, ataiMeting

save at a meeting whereof due notice has been given, and where where two

two at least of the episcopal commissioners shall be present. ^^^^^^^

Provided also, that in case any two episcopal commissioners aionen pre-

present shall object to the ratification and confirmation of any sent

proceeding as aforesaid, (that is to say, a proceeding which re- If epucopal

quires to be ratified and confirmed by the common seal of the «?"»«»>»-

cornormCion of church commissioners), or to the affixing such ^^i^y

seal to any deed or instrument. Such ratification, and such final act it

affixing the seal, shall not take place until a subsequent meet- ^^^ .

ing of the commissioners shall have been held upon due ^^^^^ *
notice.

By s. 6. The commissioner first in rank and precedence shall Who to be

preside as chairman at the meetings, and in case of equality of chainnan.

rank, then the senior commissioner in order of appointment '^^ ^^

shall preside, who may not only vote as a commissioner, but ^^^
have a casting vote in case of equality of votes.

By s. 7. The commissioners may appoint a treasurer, se- How offi-

cretary , and such clerks, messengers, and officers as they deem cen ap.

necessary ; and remove them, and appoint others at their plea- P^*"^ ^

sure, whose salaries are to be regulated by the lord treasurer, ^^^ *
or the lords of the treasury, or any three of them.

By s. 8. The secretary is to keep minutes of the proceedings, MinatM of

with the names of the commissioners present at the several proceed.

meetings, which minutes are to be signed by the chairman. ^^'

By s. 9. The commissioners may, by summons under the y^^y ^^j^.
h«id of the chairman of any meeting, require the attendance mon wit-
of any person whom they shall think fit to examine, touching i>«>k8.
any matter within their cognizance, and call for answers or re-
turns as to any such matter. They may also administer oaths,
or in lieu of oaths, may require any person to make and sub-
scribe a declaration of the truth of his examination, and may And call for
cause to be produced before them, '^ all statutes, charters, retiinia,ata«
" grants, rules, regulations, bye laws, books, deeds, contracts, 2*^& *"""
*' agreements,' accounts, and writings whatsoever, or copies '*' ^'
** thereof respectively," in any wise relating to any nuitter
within their cognizance.

By s, 10. That the commissioners shall, from time to time, j^ ^

lay before the king in council, such schemes as shall appear to schemes

them best adapted for carrying into efiect the recommendations y^fon kioi^

contained in the recital of the act ; and shall in such schemes "'c<'v>><^^l«
recommend and propose such measures as may, upon further
inquiry, which they are authorized to make, appear to them to

3G2

^.nit'- ^'

6&7W.4,

c. 77.

May modi-
fy fcbeme*
proposed.

FecttUan.

Schemes
proposed to
oave effect
of laws
from time
they are
gaietted.

Copies of
orders to be
laid before
parliament.

To be regis-
tered.

Certified
copies ad-
missible in
ATidence.

Pioceseof
Canter-
bury.

Of London.

be necessary for carrying such recommendations into effect.
And it is specially provided, that they may propose such modi«
fications or variations* as to matters of detail and regulation as
are not substantially repugnant to any or either of the reconi^
mendations ; and in particular they may propose, that all pecu-
liars locally situate in any diocese may be subjected to tlie juris-
diction uf the Ushop in whose diocese. they are. so situated.

The act then proceeds by ss, 12, 13 ^ 14, to. give the ibrce and
effect of a law, as if the same were included in the act itself, to
any scheme of the commissioners, when approved hy her majesty
by an order in council, from the. time tne same is gazetted in
the London Gazetia ; unless a special time for its commencement
is otherwise particularly provided for.

And the 15M, I6/A 6f lit A sects, provide that copies of every
such order shall be laid before parliament in the month of
January in every year, and if parliament is not then sitting, then
within one week of the meeting of parliament; that the registrar
of every diocese shall register the same in the registry of the
diocese, under a penalty of ££0 for every day that he refuses or
neglects to do so, and of forfeiture of his office, if his offence
continue for three months. No fee is to be paid to the registrar
for such registry, but for every search for any such order, he
is entitled to a fee of three shillings, and to receive for every
copy or extract fourpence for every folio of ninety words.

Finally, by the nthseot.it is enacted, that '* the copy of every
** such entry certified by the registrar, shall be admissible as
** evidence in all courts and places whatsoever."

The schemes recommended in the recital of the act, contain
the following fifty-four propositions, corresponding to the pro-
positions made in the third report of the church commissioners ;
and at the end of those propositions is given an abstract of the
orders in council founded on them.

1. That commissioners be appointed by parliament for the
purpose of preparing. and laying before his majesty in council,
such schemes as shall appear to them to be best adapted for
carrying into effect the following recommendations; and that
his majesty in council, be empowered to make orders ratifying
such schemes, and having the full force of law : —

2. And that the diocese of Canterbury consist of the county
of Kent, (except the city and deanery of Rochester, and those
parishes which it is proposed to include in the diocese of Lon-
don,) and of the parishes of Croydon and Addington, and the
district of Lambeth palace in the county of i^uri^ey.

3. And that the diocese of London consist of the city of Lon-
don, and the county of Middlesex, of the parishes. of Barking,
East-Ham, West* Ham, Little Ilfonl, Low Layton, Waltham-
stow, Wanstead, Saint Mary Woodford, andChtngford, in the

tf ain(6M(tttaI CmmnlfiMton. 363

county of Essex, all in the present diocese of London ; of the f^^^ °^

Etrisbes of Charlton, Lee, Lewisham, Ghreenwich, Woolwich, ^°"®°"
Itham, Piumstead, and Saint Nicholas Deptford, in the county
of Kent, and St. Paul Deptford, in the counties of Kent and
Surrey, all now in the diocese of Rochester ; of the borough of
Southwark, and the parishes of Battersea, Bermondsey, Cam-
berwell, Christchurch, Clapham, Lambeth, Rotherhithe, Streat-
ham, Tooting Graveney, Wandsworth, Merton, Kew, and
Richmond, in the county of Surrey, and present diocese of
Winchester; and of the parishes of Saint Mary Newington,
Barnes, Putney, Mortlake and Wimbledon, in the county of
Surrey and in the peculiar jurisdiction of the archbishop of Can-
terbury, together with all extra-parochial places, locally situate
within the limits of the parishes above enumerated, except the
district of Lambeth palace.

4. And that the diocese of Winchester be diminished by the of Win-
transfer of the parish of Addington to the diocese of Canter miry, ohwter.
and of the before-mentioned parishes to the diocese of London.

6. And that the whole of the parish of Bedminster be trans- Of Bath
ferred from the diocese of Bath and Wells to the diocese of "^ Wells.
Gloucester and Bristol.

6. And that the city and deanery of Bristol be united to the City and
diocese of Gloucester; and that the southern part of the diocese ^®^°^^y of
of Bristol, consisting of the county of Dorset, be transferred to

the diocese of Salisbury.

7. And that the diocese of Ely be increased by the counties i^ioccse of
of HuntingdcHi and Bedford, now in the diocese of Lincoln, by ^'
the deaneries of Lynn and Fincham, in the county of Norfolk

and diocese of Norwich, and by the archdeaconry of Sudbury in
the county of Suffolk and diocese of Norwich ; with the excep-
tion of the deaneries of Sudbury, Stow, and Hartismere, and
by that part of the county of Cambridge which is now in the
diocese of Norwich.

8. And that it be declared that the Sciliy Islands are sciiiy
within the jurisdiction of the bishop of Exeter and of the arch- islands.
deacon of Cornwall.

9. And that the sees of Gloucester and Bristol be united, Sees of
and that the diocese consist of the present diocese of Gloucester, ^^^^^'f^.
of the city and deanery of Bristol, of the deaneries of Cricklade uDited.'"^^
and M almesbury in the county of Wilts and now in the diocese

of Salisbury, and of the whole of the parish of Bedminster, now
in the diocese of Bath and Welb.

10. And that to the diocese of Hereford be added the Diocese of
deanery of Bridgnorth, now locally situated between the dioceses ^^refoid.
of Hereford and Lichfield ; and that those parts of the counties

of Worcester and Montgomery which are now in the diocese of

364

^tcIetfiMttfcal d

E(bm

Diocese of
Lichfield.

Of Lincoln.

OfNor-
wich.

Of Oxford.

Of Peter-
borough.

Of Roches-
ter.

Of Sails.
bury.

Of Worces-
ter.

Sees of St.
Asaph and
Bangor.

Diocese of

Llandaff.

Of St.
David's.

Of York.

Of D«N

ham.

Of Car.
lisle.

Hereford be transferred to the diocese of Worcester and Saint
Asaphy and Bangor respectively.

M. And that the diocese of Lichfield consist of the counties
of Stafford and Derby.

12. And that the diocese of Lincoln consist of the counties
of Lincoln and Nottingham, and that the latter county, now in
the diocese and province of York, be included in the province of
Canterbury.

13. And that the diocese of Norwich consist of the counties
of Norfolk and Suffolk, except those parts which it is proposed
to transfer to the diocese of Ely.

14. And that the diocese of Oxford be increased by the
county of Buckinffham, now in the diocese of Lincoln, and by
the county of Berks, now in the diocese of Salisbury,

15. And that the diocese of Peterborough be increased by
the county of Leicester, now in the diocese of Lincoln.

16. And that the diocese of Rochester consist of the city and
deanery of Rochester, of the county of Essex, (except the
parishes which it is proposed to leave in the diocese of London,)
and of the whole county of Hertford.

17. And that to the diocese of Salisbury, reduced according
to the foregoing propositions, be added to the county of Dorset,
now in the diocese of Bristol.

18. And that the diocese of Worcester consist of the whole
counties of Worcester and Warwick.

19 And that the sees of Saint Asaph and Bangor be united,
and that the diocese consist of the whole of the two existing
dioceses (except that part of the diocese of Saint Asaph which
is in the county of Salop,) and of those parts of the county of
Montgomery which are now in the dioceses of Saint David's and
Hereford.

20. And that the diocese of Landaff consist of the whole
counties of Glamorgan and Monmouth.

SI And that the diocese of Saint David's be altered by the
transfer of those parts of the counties of Montgomery, Glamor*
gan and Monmouth, which it is proposed to include in the re-
spective dioceses of Saint Asaph, and Bangor, and Llandaff.

22. And that the diocese of York consist of the county of
York, except such parts thereof as it is proposed to include in
the new diocese of Ripon.

S3. And that the diocese of Durham be increased by that
part of the county of Northumberland called Hexhamshire,
which is now in the diocese of York.

24. And that the diocese of Carlisle consist of the present die-*
cese of Carlisle, of those parts of Cumberland and Westmorland
ifbicb are now in the diocese of Chester, of the deanery of Furnes

dPcdesEftuftital Commfosttoiu 366

and Cartmelin thecounfcy of Lancaster , of the pariah of Aldetton,
now in the diocese of Durham ; and of the Isle of Man. (a)

25. And that the diocese of Chester consist of the county of Diocece of
Chester, of so much of the county of Flint as is now in that dio- ChMt€r.
cese, and of so much of the county of Salop as is not in the
diocese of Hereford, and that the whole diocese be included in

the province of York.

26. And that two new sees be erected in the province of Two new
York, one at Manchester and the other at Ripon. sees.

. 27. And that the diocese of Manchester consist of the whole Dioceieof
county of Lancaster, except the deanery of Fumes and CartmeL Mancbes-

S8* And that the diocese of Ripon consist of that part of the ^\'
county of York which is now in the diocese of Chester, of the ^i»»«
deanery of Craven, and of such parts of the deaneries of the
Ainsty and Pontefract in the county and diocese of York, as lie
to the westward of the following districts, videlicet^ the liberty
of the Ainsty and the wapentakes of Barkston Ash, Osgoldcross,
and Staincross.

S9. And that all parishes which are locally situate in one Diocese of
diocese, but under the jurisdiction of the bishop of another parish
diocese, be made subject to the jurisdiction of the bbhop of >cco|dij)gto
the diocese within which they are locally situate. tloQ^ "^ **

30. And that such variations be made in the proposed Bouodaries
boundaries of the difierent dioceses, as may appear advisable, of diocMea
after more precise information respecting the circumstances of ^^^^n^d.
particular parishes or districts.

SI • And that the bishops of the two newly-erected sees be made New
bodies corporate, end be invested with all the same rights and ^.®P*
privileges as are now possessed by the other bishops of England p^^,^^''
and Wales, and that wey be made subject to the metropolitan
jurisdiction of the archbishop of York.

SSL And that the collegiate churches of Manchester and Ripon chnrches
be made the cathedrals, and that the chapters thereof be the of Man-
chapters of the respective sees of Manchester and Ripon, and chaster and
be invested vridi all the rights and powers of other cathedral ca^ednls.
chapters ; and that the members of these, and of all other ca*
thearal churches in England be styled deans and canons.

33. That the chapter of Carlisle be the chapter of the united
see of Carlisle and Man. (a)

34. That the bishops of the see of Saint Asaph and Bangor Alternate
be elected alternately by the dean and chapter of Saint Asaph, electioai of
and by the dean and chapter of Bangor. ^Sdi^

35. That the bishops of the see of Bristol and Gloucester ted
be elected alternately by the dean and chapter of Bristol, and
by the dean and chapter of Gloucester.

■ -■ - ■ , ...I

(a) The Isle of Man excepted by l^l Vki. c. 30.

366

(^AtiiMUtHl Cavmfmon*

Acts of con-
firmation.

Bbhops of
consolida-
ted sees.

Bishop's
court.

Pees.

Ecclesiasti-
cal patron-
age.

Incomes of
bishopricks.

Fond.

Return
every seven
years*

86. That power be given to determine the fiiture mode of
confirming such acts of the bishop of either of the united sees,
as may require confirmation by a dean and chapter.

37. And that upon the first avoidance of either of the sees
of Saint Asaph or Bangor, and of Gloucester or Bristol, the
bishop of the other of the sees proposed to be united, become
ipso facto bishops of the two sees, and thereupon become
seised and possessed of all the property, advowsons, and pa-
tronage belonging to the see so avoided.

38. And that the jurisdiction of the bishop's court in each
diocese be co-extensive with the limits of the diocese as newly
arranged.

39. And that such arrangements be made with regard to the
apportionment of fees, payable to the officers of the several dio-
cesan courts as may be deemed just and equitable, for the pur-
pose of making compensation to those officers who may be
prejudiced by the proposed alterations.

40. And that such alterations be made in the apportionment or
exchange of ecclesiastical patronage among the several bishops
as shall be consistent with the relative magnitude and im-
portance of their dioceses when newly arranged, and as shall
afford an adequate quantity of patronage to the Ushops of the
new sees.

41. And that, in order to provide for the augmentation of
the incomes of the smaller bbhopricks, such fixed annual sums
be paid to the commissioners, out of the revenues of the larger
sees respectively, as shall, upon due inqtliry and consideration,
be determined on, so as to leave, as an annual average income
to the archbishop of Cantetbury, fifteen thousand pounds ; to
the archbishop of York ten thousand pounds ; to the bishop of
London ten thousand pounds; to the bishop of Durham eight
thousand pounds ; to the bishop of Winchester sev^n thousand
pounds; to the bishop of Ely five thousand five hundred
pounds ; to the bishop of Saint Asaph and Bangor five thousand
two hundred pounds ; and to the bishop of Worcester and
Bath and Wells respectively five thousand pounds.

42. And that out of the fund thus accruing, fixed annual
payments be made by the commissioners in such instances, and
to such amount as shall be in like manner determined on ; so
that the annual average incMie^ ' of the other bishops re-
spectively be not leds thanf four thousand pounds, nor more
than five thousand pounds.

43. And that, at the expiration of every seven years, reckon-
ing from the first day of January, one thousand eight hundred
and thirty-seven, a new return of the revenues of all the bishop-
rides be made to the commissioners, and that thereupon the
scale of episcopal payments and receipts be revised, so as to

il €simmiMimu 367

preserve, as nearly as may be, to each bishop an amount of in-
come equivalent to that, which shall have been determined in
the first instance, to be miitable to the circumstances of his
bishopriok, and that such revised scale take eSBset as to each see
respectively upon the then 'next avoidance thereof.

44. And that if, in determining the mode of regulating the incomes
episcopal incomes, either in the first instance, or on any future may be
revision of them, it shall be deemed expedient to make the ^^'^'^'
alteration required, in any case, by the subtraction or ad*
dition of any real estates, such real estates to be transferred
accordingly.

45. And that out of the property of the see of Durham, Poor bene-
provision be forthwith made M>r the completion of those aug* Dnrham
mentations of poor benefices, which the late bishop (meaning
thereby the late Right Reverend William Van Mildert) had
agreed to grant, but which he left uncompleted at the time of

his death.

46. And that the bishop of Durham do in future hold the Castle of
castle of Durham in trust for the university of Durham, and ^"''^^^-
that all expenses of maiiitaining and repairing the same be de-
frayed by the university of Durham.

47. And that so soon as the relative values of the several sees Fiivt fruits.
under the new arrangements shall have been ascertained, ap-
portionment be made of the sums to be thereafler paid by the
respective bishops for fifSt-fruks, so as to leave the aggregate
amount payable from all the sees to the bounty of queen Antie,

the same as at present; and that the bishops who shall, on
the present vac«icies, succeed to the sees of Durham and Ely,
be relieved, frotn the excess beyond their doe proportion, pay-
able for first-fruits, and that the rendue of the sums due, be
paid by the coknmissioners out of the surplus funds arising
fipom those sees*

48. And that the tenths to be hereafter payable by the re- Tenths.
spective bishops be regulated by the amount of the first-fruits,
payable under the preceding propositions.

49. And that none of the proposed alterations affecting the Altentioof,
bouiidaries or jurisdiction of any diocese, or the patronage of ^^en to
benefices with cure of souls,' or the revenues belonging to any *^^*®^^*
see, the bishop of which was in possession on the fourth day of
Mflfch, one thousand eight hunored and thirty-six, take effect

until the avoidance of the see, wilbout the consent of such
bishop.

50. And that no ecclesiastical dignity, office, or benefice, be Commen-
in futuoe granted to any bishop to be held in commendam, but ^^^^'
that sHch of the endowments of certain prebends in the cathe-

dralr of Lincolni Lichfield, Essex, and Salisbury, as now be-

368 (BttkniMtistH tBmmitOion^

long to the bishops of the respective dioceses, continue annexed
to the respective sees.
Reiidences 51. And that fit residences be provided for the bishops of
ofbishops. Lincoln, Llandaff, Rochester, Manchester, and Ripon; and
that, for the purpose of providing the bishop of any diocese,
with a more suitable and convenient residence than that which
now belongs to his see, sanction be given, for purchases or ex-
changes ox houses or lands, or for the sale of lands belonging
Bishops to the respective sees ; and also, where it may be necessary, for
mayborrow ||jg borrowing by any bishop of a sum not exceeding two years'
money. income of his see, upon such terms as shall appear to be fit and
proper ; and that the governors of the bounty of queen Anne
be empowered to lend money upon mortgage to such bishops.
Damages 52, And that so much of the sum of six thousand pounds,

r^the^ recovered by the late bishop of Bristol, for damages done to
bishop of the episcopal residence at Bristol, and of its accumulations, as
Bristol. may remam after deducting proper expenses, together with the
money arising irom the sale of the site of such residence, if
sold, be applied to the purchase or erection of a residence for
the bishop of the see or Bristol and Gloucester*
New arch- 53. And that new archdeaconries of Bristol, Maidstone,
deaconries. Monmouth, Westmorland, Manchester, Lancaster, and Craven,
be created, and that districts be assigned to them ; and that
archdeaconal power be given to the dean of Rochester, within
that part of Kent which will remain in the diocese of Rochester ;
Rnral and that the limits of the other existing deaneries and arch-

deans, deaconries be newly arranged, so that every parish and extra-
parochial place be within a rural deanery, and every deanery
within an archdeaconry, and that no archdeaconry extend
beyond the limits of one diocese.
Patronage 54. And that all the archdeaconries of Ensland and Wales
of archdea- be in the gift of the bishops of the respective dioceses in which
connes. ^y^^y ^^^ situate ; and that all archdeacons have and exercise
full and equal jurisdiction within their respective archdeaconries.

ORDERS IN COUNCIL.

Upon the foregoing recommendations contained in such durd
report of the said commissioners, twenty-three orders in councU
have issued, carrying into effect some of the propositions therein
suggested. Abstracts of these, as laid before the commissioners,
are annexed, showing how fiir the commissioners have proceeded
in their labours.

The four first orders having been gaxetted before they were
registered, took effect only from the day the registry was com-
pleted ; but all the others having been registered in the first
mstance, became law immediately upon their publication in the
GoKeite*

enlttiiMtithl Cotnm<s(0(om 369

No. 1 • Oxford and S alisbttrt Territorial Altxrations.
Dated 5th October ^ 1836 ; Gazetted on the 7th, and Registered
at Oxford and Salisbury on the lOth of the same month.

The whole county of BerkS} and those parts of the county
of WiltSy which are insulated therein, forming together the
archdeaconry of Berks, transferred, with the consent of the
respective bishops, from the diocese of Salisbury to that of
Oxford; and

The right of appointing the archdeacon of Berks vested in
the bishop of Oxford.

No. 2. Salisbury, Exeter, and Bristol Territorial
Alterations. Dated 5th October, 18S6. Gazetted on the
7th, Registered at Bristol and Blandford on the 8th, at Salis^
bury on the iOth, and at Exeter on the \Ath of the same
month.

The whole county of Dorset, {except the parish of Stock-
land, after mentioned,) and the parish of Stolwell, in the county
of Somerset, forming together the archdeaconry of Dorset, in
the diocese of Bristol, and the parish of Thorncombe in the
diocese of Exeter, and in the county of Devon, but insulated
in the county of Dorset, transferred from the dioceses of Bristol
and Exeter respectively, to the diocese of Salisbury, with the
consent of the bishops of Exeter and Salisbury; and the said
parish of Thorncombe included in the archdeaconry of Dorset
and deanery of Bridport.

The said parish oi Stockland in the diocese of Bristol, and
in the county of Dorset, but insulated in the county of
Devon, transferred from the diocese of Bristol to that of Exeter,
with the consent of the bisluw, and included in the archdeaconry
of Exeter and deanery of Honiton ; and

The right of appointing the archdeacon of Dorset vested in
the bishop of Salisbury.

No. 3. Gloucester and Bristol Union. Dated the 5th
October, 1836. Gazetted on the 7th, and Registered at
Bristol, Blandford, and Gloucester, on the 8th of the same
month.

The whole diocese of Bristol, except the archdeaconry of
Dorset, united to the diocese of Gloucester, and named the
diocese of Gloucester and Bristol.

The sees to be united ; the bishop of Gloucester to be pos-
sessed of all the property, revenues, advowsons, and patronage
belonging to the see of Bristol ; and to be created a body corporate
by the name of the bishop of Gloucester and Bristol, to occupy the
same seat in the cathedral, and exercise the same authority over
the dean and chapter, as former bishops of Bristol, but to be ex-
empted from payment of first fruits, and all fees and expenses in
respect of his so becoming bishop of Gloucester and Bristol. On

B B

370 ettUiitaAittA €ommitMi9tu

the first avoidance of the see, the warrant for the election of a
bishop to be issued to the chapter of Bristol, and afterwards,
ahernatelvy to the chapter of Bristol and that of Gloucester.
Episcopal acts, requiring confirmation by the dean and chapter,
to be confirmed by the dean and chapter to whom the right
would have belonged, if the sees had not been united.

The deanery of the Forest, in the diocese of Gloucester, but
within the archdeaconry of Hereford, transferred to the arch*
deaconry of Gloucester ; and the deaneries of Bristol, Cirences-
ter, Fairford, and Hawkesbury, in the archdeaconry of Glou-
cester, to be separated therefrom, and together with all parishes
within the city of Bristol, which latter are to be included in the
deanery of Bristol, to constitute the new archdeaconry of Bristol ;
and the right of appointing the archdeacon thereof, vested in
the bishop of Gloucester and Bristol.

The site of the episcopal palace at Bristol to be sold, and
the proceeds, together with the sum lately recovered as damages
for injury done to the said palace, transferred to the eccle-
siastical commissioners for England, and to be applied towards
the purchase, or erection of a second episcopal residence at, or
near Bristol.

No. 4. RipoN BisHoPRiCK Foundation. Daied^ Bth Oc-
iober, 1836. Gazetted on the 7t/i, and Registered at York on
the 8M, Ripon on the 11 ^A, and at Chester on the \Sth of the
same month.

The collegiate church of Ripon, constituted a cathedral
church, and the seat of a bishop, within the province of York.
The dean and prebendaries, styled dean and canons, to be
the dean and chapter, subject to such future orders and re-
gulations as may be made by competent authority.

The town and borough of Ripon, and all such parts of the
deaneries of the Ainsty and Pontefract, in the archdeaconry,
county, and diocese of York, as adjoin to the western boundaries
of the liberty of the Ainsty, and of the wapentakes of Barkston
Ash, Asgoldcross, and Staincross respectively, and all that part
of the county of York which is in the archdeaconry of Rich-
mond and diocese of Chester, and the whole parish of Aid-
borough in the county of York, ioith the consent of the arch^
bishop of York and bishop of Chester, to constitute the new
diocese of Ripon ; and the person who should be duly elected
by the said dean and chapter, to be the bishop thereof, to be
invested with the same rights and privileges as the bishops of
England and Wales, and to be subject to the metropolitan
jurisdiction of the archbishop of York. The said bishop of
Ripon to be a body corporate, and the said collegiate church
to be his cathedral with the privileges of an episcopal seat, and
the said bishop to exercise the like jurisdiction in it, as other

flfttUfiiastital Commfo^tom 371

bishops of England and Wales^ in their respective cathedrals.
Power to the bishop, dean and chapter to do all such acts,
either jointly or separately, as other bishops, and deans, and
chapters may do in the province of York.

The diocese of Ripon to be divided into the archdeaconries
of Richmond and Craven ; the former to consist of the deane-
ries of Richmond, Catterick, and Boroughbridge, and so
much of the deanery of Kirby Lonsdale, as is in the county of
York; and the latter of the deaneries of Pontefract and Craven.
The right of appointing archdeacons to both archdeaconries,
to be vested in the bishop of Ripon.

The deanery of Pontefract in the archdeaconry of Craven,
to consist of all those parishes and places within the respective
deaneries of Pontefract and the Ainsty which will be within the
diocese of Ripon.

No. 5. York and Durham Territorial Alterations and
Revenue Charges, and Ripon Bishoprick Endowment.
Dated, 9Stnd December, 18S6, Gaxettedy 24^th January, 1887.

All places within the peculiar jurisdiction of Hexhamshire,
in the diocese of York, but locally situate in the county of
Northumberland and diocese of Durham, with the eonMent of
the archbishop of York, included in the latter diocese, and
in the archdeaconry of Northumberland, and deanery of New-
castle-upon-tyne.

The deanery of Craven, with the like consent, transferred
from the diocese of York to that of Ripon.

The parish of Craike, in the county diocese, and arch-
deaconry of Durham, and subject to the peculiar jurisdiction
of the dean and chapter of Durham, but insulated in the
county and diocese of York, with the like consent, included
in the latter diocese and in the archdeaconry of Cleveland.

Certain estates at Ripon belonging to the see of York, and
described in a schedule annexed, transferred, with the like con*
sent, to the see of Ripon.

All the estates of the see of Durham, situate in Stowden and
Howdensbire, Northallerton and Allertonshire, Borrowby,
Brompton, Romanby, Osmotherley, and Sowerby Grange, in
the county of York, transferred to the see of Ripon ; the
bishop of Ripon to be entitled to the rents and profits from
the day of the death of William, late bishop of Durham.
(21st February 1836).

The bishop of Durham, (for the purposes of the act, 6^7
W. 4, c. 77, and so as to leave him an average annual income
of £8,000,) to pay to the ecclesiastical commissioners for
England, the fixed annual sum of £11,200, by half-yearly
payments, on the 1st of February and 1st of August in every
year, the first being made on the 1st of February 1837.

BB 2

372 ettltiiwititiA Comm<fi»(om

One-third only of the first fruits to be paid by Edward,
bishop of Durham, and the remaining two-thirds by the ec-
clesiastical commissioners for England.

The fees and stipends granted out of the revenues of the see,
by former bishops of Durham, to any officer of the county
palatine of Durham, who held his office by patent, at the
passing of the act, 6 W. 4, c. 19 for separating the palatine
jurisdiction from the bishoprick of Durham, to be paid by the
ecclesiastical commissioners for England, out of the monies so
as aforesaid to be paid to them, during the term granted by
the patent, notwithstanding the abolition of the office.

The average annual income of the bishop of Ripon, to be
£4,500 ; and to that end the ecclesiastical commissioners for
England are to pay him and his successors out of the same monies,
the fixed annual sum of £2,250, by half-yearly payments, on
the 13th of April and the 13th of October in every year; the
first being made on the 13th of April, 1837.

And a further fixed annual sum of £500 by like payments,
until an episcopal house of residence shall be provided for the
see of Ripon.

The advowsons of the vicarase of Birstall, in the county of
York, transferred from the archbishop of York, tviih his con^
sent, to the bishop of Ripon.

The advowsons of the rectory of Birkby, the vicarage of
Osmotherly, the vicarage and perpetual curacy of Leak and
Nether Silton, in the county of York, and of the rectory of
Craike aforesaid, transferred from the bishop of Durham to the
bishop of Ripon.

No. 6. Lichfield and Worcester Territorial and
Patronage Alterations. Dated, 22d December, 1836.
Gaxetted, S4/A January, 1837.

The archdeaconry of Coventry, in the county of Warwick
and diocese of Lichfield and Coventry transferred, with the
consent of the bishop of Worcester, to the diocese of Worcester.
The remaining part of the diocese of Lichfield and Coventry
and the see thereof, to be named the diocese and see of Lichfield,
and the bishop thereof styled bishop of Lichfield ; such alte-
ration in name not to affect any right, privilege, or power there
tofore exercised or enjoyed by him, gu& bishop of Lichfield and
Coventry.

The right of appointing the archdeacon of Coventry vested
in the bishop of Worcester.

The advowsons of the rectory of St. Philip and of the per-
petual curacy of Christ Church in the town of Birmingham,
transferred from the bishop of Lichfield to the bishop of
Worcester.
No. 7. Lincoln, Norwich, and Ely Territorial Altera-

€ttUiiMtithl CommtfiCfitum. 373

TioNS, AND Ely Revenue Charge. Dated, I9th April.
Gazetted, 30th May, 1837.

The archdeaconry and county of Bedford, and so much of
the archdeaconry of Huntingdon as is co-extensive with the
county of Huntingdon, loith the consent of the bishop of Lincoln,
transferred from his diocese to that of Ely.

The parish of Rickinghall Inferior, in the deanery of Black-
bume, but united with the parish of Rickinghall Superior, in the
deanery of Startismere, both in the archdeaconry of Sudbury and
diocese of Norwich, to be included in the said deanery of Startis-
mere; and that of Stow, also in the archdeaconry of Sudbury, to
be included in the archdeaconry of Suffolk in the same diocese ;
the remainder of the archdeaconry of Sudbury to be transferred
to the diocese of Ely.

Not to affect any personal union theretofore granted by any
bishop of Norwich, according to the usage of the see of Nor-
wich, for enabling any clergyman to hold together two livings,
as it regards any livings either both or one only of which is
thereby transferred to the diocese of Ely.

The deanery of Camps, in the diocese and archdeaconry of
Ely to be included in the said archdeaconry of Sudbury.

The right of appointing the archdeacons of Bedford, Hunt-
ingdon, and Sudbury vested in the bishop of Ely.

The bishop of Ely (for the purposes of the act, 6^7 W. 4,
c. 77, and so as to leave him an annual average income of
£5,500) to pay to the ecclesiastical commissioners for England
the fixed annual sum of £2,500, by half-yearly payments on
the 6th of April and the 5th of October in every year; the first
to be made on the 5th of October, 1837.

Two-thirds only of the first fruits to be paid by Joseph,
bishop of Ely, and the remaining third by the ecclesiastical
commissioners for England.

The fees and stipends granted out of the revenues of the see
bv former bishops of £^ to any secular officer of the isle of
Ely, who held his office by patent for life at the passing of the
act, 7 W. 4, c. 53, for extinguishing the secular jurisdiction of
the bishop of Ely, to be paid by the ecclesiastical commissioners
for England, during the life of such officer ; whether his office
shall have been abolished by the said act or not.

No. 8. Welsh Language. Dated, \Oth May, 1837. This
provision of the statute is repealed by 1 ^ S Vict. c. 106, s* 103,
and a fresh provision made. Vid,post, *' Incumbent J**

No. 9. Durham Benefices Augmentation. Dated, 2lst
June. Gazetted, Hth July, 1837.

Annual augmentations of the following poor benefices in the
diocese of Durham, which the late William, bishop of Durham,
had agreed to grant, but which he left uncompleted at the time

374 ^ttUiiiatitul Commt9»tom

of his death, to be granted by the ecclesiastical commissioners
for England; viz. Esh, £1^5; St. Helen's Auckland, £82;
Etherley, £130; Shildon, £^1^5 ; and Escomb, £120; payable
half-yearly, on the 21st of February and the 2l8t of August in
every year, and to commence from the 21st of February, 1836,
the day of the death of the late bishop.

Certain lands which had been set apart for the purpose by
the late bishop, and described in aschedule to be permanently an-
nexed to the perpetual curacy of Etherley, in addition to the
above payment.

Power reserved to the ecclesiastical commissioners for England
of recommending the augmentation of Trinity Chapel in the
parish of Stockton-upon-Tees, whenever the conditions required
by the said late bishop shall have been complied with.

No. 10. Revenue Charges upon certain Larger Sees.
Dated, 2Ut June. Gazetted, I8th July, 1837.

The see of Canterbury to pay - - - £7,300

York 1,100

London ------ 6,000

Winchester 3,600

Bath and WeUs - - - - 1,000

Worcester 2,300

to the ecclesiastical commissioners for England, by equal half-
yearly payments, towards the augmentation of the incomes of
the smaller bishoprics, the first payment in each case to be
made at the end of six months from the day of the avoidance of
the see.

Proviso for deducting from the payment so to be made by
any archbishop of Canterbury or bishop of London, the sums
payable by them in respect of certain mortgage debts, for
money borrowed for repairing Lambeth Palace and rebuilding
London House.

No. 1 1 . Lichfield See Augmentation. Dated, 12th July.
Gazetted, 8th August, 1837.

In order to raise the average annual income of the bishops
of Lichfield to £4,500, the fixed annual sum of £850, com-
mencing from 13th August, 1836, to be paid by the ecclesias*
tical commissioners for England, by equal half-yearly payments
on the 13th February and the 13th of August in every year.

Proviso for postponing a portion of any half-yearly payment,
in the event of the fund not being sufficient to answer all the
demands upon it.

No. 12. Chichester See Augmentation. Dated, I2th July.
Gazetted, I8th August, 1837.

In order to raise the average annual income of the bishops of
Chichester to £4,200, the fixed annual sum of £650, com-
mencing from the 5th of October, 1836, to be paid by the

ettluHastitiil Commttf0tom 375

ecclesiastical commissioners for England, by equal half-yearly
paymentsi on the 5th of April and the 5th of October in every
year.

Proviso f as in No. 11.

No. 13. Salisbury, Gloucbstbr and Bristol, Bath and
Wblls, and Worcester Territorial Alterations. Dated,
I9th July. Gazetted, I8//1 August, 1837.

The deaneries of Cricklade and Malmesbury, in the county
and archdeaconry of Wilts and diocese of Salisbury, with the
consent of the bishop of Gloucester and Bristol, transferred to
the diocese of Gloucester and Bristol and the archdeaconry of
Bristol.

The deanery of Pottern, in the diocese of Salisbury, trans-
ferred from the archdeaconry of Salisbury to that of Wilts.

The parish of Shenington, in the county and archdeaconry of
Gloucester and diocese of Gloucester and Bristol, but locally
situate between the counties of Warwick and Oxford, and in the
deanery of Campden, with the consent of the respective bishops,
transferred therefrom to the diocese and archdeaconry of Wor-
cester and deanery of Kineton.

The parish of Iccomb, in the county, diocese, and arch-
deaconry of Worcester, but insulated in the county of Glou-
cester, with the Hie consent, transferred to the diocese of Glou-
cester and Bristol, the archdeaconry of Gloucester, and the
deanery of Stowe.

The parish of Bedminster, in the diocese of Bath and Wells,
and in the archdeaconry of Bath and deanery of Redcliffe and
Bedminster, to be transferred, on the first vacancy of the see of
Bath and Wells, to the diocese of Gloucester and Bristol and
the archdeaconry and deanery of Bristol.

No. 14. Lincoln, Oxford, and Gloucester and Bristol
Territorial Alterations ; and Oxford See, Present and
Prospective Augmentation. Dated, \9th July. Gazetted,
ISth August, 1837.

The parish of Widford, in the diocese of Gloucester and
Bristol and archdeaconry of Gloucester, but insulated in the
county of Oxford, with the consent of the respective bishops,
transterred to the diocese and archdeaconry of Oxford and
deanery of Witney.

The archdeaconry qf Berks having been annexed to the dio^
eese of Oxford, with the consent of the bishop of Oxford {vide
No. I, ante), the fixed annual sum of £750, commencing 10th
October, 1836, to be paid to him by the ecclesiastical commis-
sioners for England during his incumbency of the see of Ox-
ford, by equal half-yearly payments, on the 10th of April, and
the 10th of October in every year.

With the consent of the bishop of Lincoln, already signified,
and upon the first avoidance qf the see of Oxford, or before

376 (SttUfiijatml Commi^ism.

such avoidance, with the consent of the bishop of Oxford, the
county and archdeaconry of Buckingham, in the diocese of
Lincoln, to be transferred to the diocese of Oxford.

On the next avoidance of the see of Oxford, in order to raise
the annual income of the bishops thereof to £5,000, the fixed
annual sum of £3,500 to be paid by the ecclesiastical commis-
sioners for England by equal half-yearly payments, the first to
be made at the end of six calendar months from the day of such
avoidance.

Proviso as in No. 1 1.

After the archdeaconry of Buckingham shall have became
part of the diocese of Oxford, the right of appointing the arch-
deacon to be vested in the bishop of Oxford.

No. 15. Durham Castle Arrangements. Dated, I9th
July. Gazetted, 8th August, 1837.

The bishop of Durham to hold the castle of Durham in
trust for the university of Durham, subject to right of access,
by the clergy of the diocese, to bishop Cosin's library within
the precincts, and to all right of way to which the same premises
are legally subject ; to the right of all such officers of the see, or
diocese, or of the palatinate as have performed for thirty years
last past and still perform the duties of their respective offices
in any building within the precincts ; and to the enjoyment, by
the bedesmen of the cathedral, of the almshouses wherein they
reside, until the warden, masters, and scholars shall have pro-
vided, to the satisfaction of the bishop, sufficient buildings
elsewhere ; and as to the officers of the palatinate, so long as
any of those duties remain to be performed by officers who held
their offices at the time of passing the act for separating the
palatine jurisdiction from the bishoprick of Durham.

Certain apartments described, with coach-houses and stables,
to be reserved for the accommodation of the bishop of Durham,
as visitor of the university ; and to be at all times ready for bis
use, on three days' notice of his wish to occupy them.

The warden, master, and scholars to maintain and repair all
parts within the precincts, and to indemnify the bishop and his
successors against repairs and dilapidations.

No. 16. Hereford see Augmentation* Dated, Hist Au^
gust. Gazetted, 5th September, 18S7.

In order to raise the average annual income of the bishops
of Hereford to £4,200, the fixed annual sum of £1,400, com-
mencing from the Ist September next, to be paid by the ecde-
siastical commissioners for England, by equal half-yearly pay-
ments, on the Ist of March and Ist of September in every
year.

Proviso as in No. 11.

No. 17. York, Lincoln, and Peterborough prospective
territorial alterations; and Peterborough prospective

^nUnitatithl CommfMiom 377

AuoMSKTATiON. Dated, 2lst August. GoMetted, 6th Septtm-
ft^r, 1837.

With the consent of the bishop of Lincoln, already signified,
and upon the next avoidance of the see of Peterborough, the
county and archdeaconry of Leicester in the diocese of Lin-
cobiy to be transferred therefrom to the diocese of Peterboroughi
and the right of appointing the archdeacon of Leicester to be
vested in the bishop of Peterborough.

And after such avoidance, in order to raise the average an-
nual income of the see of Peterborough to £4,500, the fixed
annual sum of £1,100 to be paid to him by the ecclesiatical
commissioners for England, by equal half-yearly payments, the
first to be made at the end of six calendar months from the day
of such avoidance.

Proviso as in No. 1 1.

At the time of such avoidance, with the consent of the arch-
bishops of Canterbury and York, and the bishop of Lincoln,
already signified, the county and archdeaconry of Nottingham,
in the province and diocese of York, to be transferred to the
province of Canterbury and diocese of Lincoln, and the right
of appointing the archdeacon of Nottingham to be vested in the
bishop of Lincoln.

No. 18. Carlisle and Chester sees prospective augmen-
tation. Dated, 2 1 st August. Gazetted, 5th September, 1 837.

In order to raise the average annual income orthe bishops of
Carlisle and Chester to £4,500 each, the fixed annual sum of
£S,000 to be paid to bishops of Carlisle, and £1,450 to bishops
of Chester, by the ecclesiastical commissioners for England on
the next avoidance of either of the said sees, by equal half-yearly
payments, the first to be made at the end of six calendar months
from the day of such avoidance in each case.

And if a vacancy should occur in the see of Carlisle before
the mortgage debt due from the bishop for money borrowed for
repairing Rose Castle should be paid off, then the annual sums
myable in respect thereof to be also paid by the commissioners
by like payments, in addition to the sum before mentioned.

Proviso as in No. 11.

No. 19. RiPON House OF Residence. Dated, II th December,
1837. Gazetted, 5th January, 1838.

For the purpose of providing an episcopal house of residence
and demesne for the see of Ripon ; part of an estate called
Bramley Grange Farm, in the township of North Stainley and
parish of Ripon, but belonging to the see of York, transferred
with the consent of the archbishop to the see of Ripon ; and the
sum of £1,11 1. 5j. 6d. directed to be paid by the commissioners
to the bbhop, for the purchase of Mrs. E. S. Lawrence's lease-
hold interest therein.

378 (SttUni&fitufA €ommiaiiotu

No. SO. York and Ripon Boundary Line. Dated, Ui,
and Gazetted 16th February, 1838.

Such parts of the several parishes of Darton, High Hoylandj
Silkstonci Pennistone, and Kirk Hammertoni in the county of
York) as are in the diocese and archdeaconry of York, to be trans*
ferred with the consent of the archbishop of York, to the dio-
cese of Ripon ; and as to the said parishes of Darton, High
Hoyland, Silkstone, and Pennistone, to the archdeaconry of
Craven and deanery of Pontefract ; and as to the said parish
of Kirk Hammerton, to the archdeaconry of Richmond and
deanery of Burrowbridge.

Such parts of the several parishes of Croftoui Warmfield,
Normantonj Featherstone and Abberford, in the county of York
and diocese of Ripon, as form part of the archdeaconry of Cra-
ven, transferred, with the like consent, to the diocese and arch-
deaconry of York and deanery of the Ainsty.

So much of the deanery of Pontefract as remains in the diocese
and archdeaconry of York, included in the deanery of the Ainsty ;
and so much of the deanery of the Ainsty as remains in the dio-
cese of Ripon, included in the deanery of Pontefract.

All parishes and places, churches and chapels, within the
limits of the respective dioceses of York and Ripon, to be sub-
ject to episcopalarchidiaconal, and diaconal jurisdiction, accord-
ing as they are locally situate.

No. SI. Lincoln seb house of rbsidbncb; and prospec-
TiVB Augmentation. Dated, Aih April, and Gaxetted \&th
May, 1888.

In order to raise the average annual income of the bishop's
of Lincoln to £5,000, the fixed annual sum of £1,250, to
be paid by the ecclesiastical commissioners for England, by
equal half-yearly payments, commencing from the next avoid-
ance of the see : with the usual proviso, for postponing a por-
tion of any half-yearly payment in the event of the fund not
being sufficient.

Until an episcopal house of residence is provided for the see
of Lincoln within the limits of the diocese as newly arranged,
the sum of £500 to be paid to the present bishop by the eccle-
siastical commissioners for England, by half-yearly payments,
commencing on the 25th March, 18^, in order to enable him
to procure a temporary residence within such limits : the present
house of residence at Buckden to be pulled down and sold, and
the proceeds paid to the commissioners, and applied towards
providing a permanent residence.

No. 22. Exeter see prospective Augmentation, Scillt
Island Jurisdiction. Dated, SOth July, and Gaxetted 2M$
August, 1831.

In order to raise the average annual income of the bishops

(Bttlttii&atital Commt'Mtom 379

of Exeter to £5,000, the fixed annual sum of £3,400 to be
paid by the ecclesiastical commissioners for England, by
equal half-yearly payments, commencing from the next avoid-
ance of the see : with the usual proviso, for postponing a por-
tion of any half-yearly payment in the event of the fund not
being sufficient.

The Scilly Islands declared to be within the Jurisdiction of
the bishop of Exeter and archdeacon of Comwalli

No. 2S. Durham benefices final Augmentation. Daiedj
SOth July, and Gazetted 2*th August, 1838.

Augmentations of the following poor benefices in the diocese of
Durham, which the late William bishop of Durham, had agreed
to grant, but which he left uncompleted at the time of his death,
to be granted by the ecclesiastical commissioners for England ;
ffiz., Satley £46, Medomsley £90, Trinity Stockton £300, pay-
able half-yearly on the 22d of February and SSd of August in
every year, to commence on the 22d of August, 1838, and the
sum of £92 to be paid to the perpetual curate of Satley, being
the arrears of the said augmentation from the death of the late
bishop.

380

Tenn probatory.

May be extended.
Witnesses.

Attendance of.
Swearing.
Examination of.

Cross-examination.
Re*examination.
Competency.
Credibility.

Exceptive allegations.
Conir^ personam.
Contr^ dicta.
Publication of tbe evidence.

Facts or witnesses, noviter ferventa.
Miscellaneous points. '

Witnesses, number required.
Examination, secret.
Examined de bene esse.

When compelled to answer.
Foreign law, how proved.
Identity, decree of confrontation.
Declarations.

Confidential communications.
Confessions.

Verdicts of courts of law.
Written documents.
Exhibits.

xHE principles of evidence which govern the ecclesiastical
courts of this country do not appear to difTer from those which
regulate the courts of common law ; it is true that both by the
general principles of the Civil and Canon law^ a greater
amount of evidence is necessary to constitute what is called
" full proof," for two witnesses are required to make such proof.
So again, the mode of taking the evidence entirely differs, the
witnesses being examined in secret by an examiner appointed by
the court, who examines them to the facts stated in the libel ;
each witness being designed to such parts of the case as he is
able to depose to ; and cross-examines them upon interrogato-
ries furnished by the opposite party ; still the essential and fun-
damental principles of^ evidence are the same ; the same objec-
tions to competency, which would prevail in a court of com-

«
a

mon law would exclude the witness in the ecclesiastical court ;
and evidence inadmissible in the one court would^ with the
exceptions noted hereafter, be inadmissible in the other.
1 Curt. 5. In Beaxley v. Beaxleff, 3 Hag. 651 , the court.
Dr. Lushington^ in rejecting copies of the register of an epis-
copal chapel at Edinburghj which had been tendered in proof
of a marriage there, said '' I am not aware that such registers
'^ are, according to the law of Scotland, documents of an
*' authentic and public nature ; nor that a copy of an unauthen^
ticated register is by that law admitted in evidence. But, ac-
cording to the law of this country, as I believe it has been
practised in the courts of Westminster-hall, I think I should
act more safely by rejecting it. I consider it to be of the
highest importance that this court should adhere to the same
rules of evidence as prevail elsewhere;'* 1 Add. 213; 7 Ad* ^
EU. 329, 401 ; Sed. vid. 7 Ad. ^ Ell. 389, andoost.

When a libel, and the same may be said of a plea of any kind, la^ae.

whether articles, libel or allegation, is brought in, it is open to

the opposite party to object to its admissibility, either in the whole
or in part; in the whole when the facts altogether, if taken to be
true, will not entitle the party giving the plea to the demand
which he makes, or to support the defence which he sets up ;
in part, if any of the facts stated are irrelevant to the matter in
issue, or could not be proved by legal evidence or are incapable
of proof. When the articles or libel is admitted, whether with-
out objection or upon objection made and overruled, the oppo-
site party may give a negative issue, denying the truth of what
the libel states ; or an affirmative issue, which admits the truth
of what the libel or articles charge; the giving this issue is called
the *' contesiaiio litis,' in plenary causes, and when given the
parties may be said to be at issue. If an affirmative issue be
given there is no necessity to prove any of the facts. If a nega-
tive issue be given, the plaintiff may demand the personal
answer of the defendant, unless the proceeding be of a criminal na-
ture. In a matrimonial cause, if the wife be defendant, it has been
usual to admit the marriage in order to obtain alimony; and now,
under all circumstances, by Rule 8, Hil. Term, 1880, post , 383,
the proctor of a defendant is required to admit or deny the mar-
riage on the day on which the plea alleging the marriage is brought
in, on pain of suspension. And by Rule 9, ibid, if the personal
answers of parties are not brought in on the day assigned for
that purpose, the facts pleaded shall be taken pro confesso as
against the party so neglecting to give his answers.

When the libel or other allegation is admitted, the party pro- ^
pounding such allegation may request a term probatory, that is, betory.
that time to examine his witnesses be given him. Oughton, tit. 61 ;
Conset, 86. This period for examining witnesses is limited by

382

4%flimce*

T6Tin pro*
batory.

Rules of
court East.
T. 1827.

Kules of
court

Hil. Term,
1830.

€4

the orders of court of Easter Term^ 1837, 1 Hag, App. No. 1 ;
4fHag,95; which directs, 1st, ''That on the first session of

every Hilary, Easter, and Michaelmas term, publication shall

pass on all pleas given in and admitted on or before the by«
" day of the term preceding ; unless upon such first session
" cause be shewn to the satisfaction of the court for extending
** the term probatory. Provided, that nothing herein contained
** shall preclude the court from assigning a shorter term proba*
" tory, or prevent the party giving the plea from sooner praying
** publication,"

By the Sd rule, the party intending to counterplead is to assert
his allegation on the court day on which the term probatory
expires, and shall bring it in on the following court day ; unless
on that day cause be shown, to the satisfaction of the court, for
allowing further time for bringing in such allegation.

That upon answers being prayed, the proctor praying the
answers shall forthwith take out a decree, and shall cause the
same to be duly served without delay on the adverse party in
the cause, so as to put such party in contempt, in case the
decree shall not be obeyed within a reasonable time. Provided
that the examination of witnesses shall not be delayedi nor the
publication be postponed, in order to wait for the answers ; but
publication shall pass as aforesaid, unless, upon application
being made to postpone the publication, it shall appear to the
satisfaction of the court, that due diligence had been used in
taking out and enforcing the decree for answers.

That when application is intended to be made for extending
the time in any case, notice thereof in writing, and of the
grounds on which the application is to be made, shall be given
to the adverse proctor, and delivered into the registry three
days before the making of such application.

That any neglect or delay on bringing in answers, or in other
proceedings, shall be matter of consideration, in respect to costs
either immediate or at the end of the cause.

And by further orders of court, 13th Feb. Hil. Term, 1830.
8 Hag. 1.

By rule 8. It is directed that the proctor of a defendant, in a
matrimonial cause, shall admit or deny the fact of marriage,
under pain of suspension on the same day that the plea alleging
the marriage is admitted.

9. That if the party giving in any allegation shall require the
answers of the adverse party, he shall on the day on which his
plea is admitted, apply to the court to assign a time for bringing
in such answers ; and unless the answers be brought in, at or
before the time assigned, the facts pleaded shall be taken pro
confesso as against the party so neglecting to give his answers.

10. That the expense of taking depositions to prove facts

MHienm 383

confessed in answers or admitted in acts of court, if taken after T«™pro.
such confessions or admissions, shall be paid by the party pro- ^'
ducing the witnesses, unless the court shall think fit to direct Rules of
otherwise. ^^^^* ^^-

1 J. That in all cases the court may extend the time on rea-
sonable cause shown.

12. That where any exhibits are pleaded in supply of proof,
the proctor of the adverse party shall, on the day on which the

Elea is admitted, declare whether he confesses or denies the
andwriting ; and if the handwriting be denied and afterwards
proved, the costs occasioned by the proof shall be paid by the
party who denied the handwriting ; unless the court shall think
fit to direct otherwise.

The term probatory might have always been extended at Extennon
the discretion of the court, before the express power is given ®^*
by Rule 1, supra. But the consent of the adverse proctor was
not of itself sufficient to induce a judge to continue a term
probatory as a matter of course, though it would have great
weight with him as showing " reasonable cause ;** but the cir-
cumstances were to be stated to the court for its approbation lest
too much facility of accommodation should be allowed. 1 Hag. S.
This regulation must be found practically convenient to proctors
as a justification for declining to accede to a postponement
without strong grounds being shown for it.

Where due diligence has been used and the circumstances
of the case very special, the court is extremely anxious not to
preclude a party from examining any witness who is thought
material, and will extend the term probatory for that purpose,
especially if the opposite party consent. Countess of Portsmouth
V. Earl of Portsmouth, 1 Hag. 2.

But where, on appeal in a criminal suit, there had been a delay
of nine months without making substantial progress or examin-
ing a single witness, the suit having been depending in the
court of appeal for two years, an extension of the term proba-
tory was refused and the suit dismissed with £30 nom, expen-
sarum. Jenkins v. Barratt, 1 Hag, 12.

The party to whom a term probatory has been assigned WUnesaeg.
should apply to his witnesses to appear within such term, and Attendance
offer them their viatica and expenses ; and upon oath made how com-
of such offer, and that they refused or delayed to come, he P«"«^'
inay have a compulsory citation against them. If there is any
fear that the probatory term may lapse before the return of this
" compulsory," an extension of the probatory term should be
prayed for. If on the return day he shows that, notwith-
standing all diligence to cite his witnesses, they cannot be found,
he may have a citation viis et modis, and a continuation of the
term probatory to a competent day. If they do not appear

384

(Sbdttmt^

Attendance
ol, how
compelled.

Examined
on a com-
miidon.

Citation
ad audiea'
dum.

How exa-
mined.

upon this last citatioDi they may be proceeded against as con*
tumacious. ConseL 110; Ouffhion, tit. 76, 77, 78. But by
modern practice it would seem, that a witness, upon whom a
compulsory has been served, may be pronounced contumacious
if he does not appear on the return of the first compulsory.
I Hag. 34.

The attendance of witnesses being thus provided for by the
service of the compulsory, which is somewhat in the nature of
a subpoena, they are either brought to London, to be examined
by an examiner of the court ; or if by reason of distance or other
causes they cannot conveniently attend in London, they are
examined on a commission near their places of residence. The
directions of the commission should be strictly followed. Thus,
where it is directed that the witnesses should be sworn in the
presence of a notary, his presence at the swearing cannot be dis-
pensed with. 2 Phill 241.

The proctor producing the witness delivers a designation,
or notice, to the opposite proctors of the articles or parts of the
plea on which it is intended to examine each witness produced.

The opposite party is cited " ad audiendum testes ^^ which
does not mean that he is cited to hear them examined, because
both by the civil and canon law they ought to be examined in
secret ; but, that he may come and hear them sworn ; and, that,
after publication, he should come and hear their depositions
read, or receive copies thereof; Ayltffe Parer, 536; it is
said the admission of witnesses, made against a person not cited
to see them produced and sworn, is null and void. Ayltffe, 539.
The usual practice now is to give notice of the production of a
witness to the opposite proctor who attends to see him sworn.

The examination in cnief does not take place upon written
interrogatories previously prepared and known, but the allega-
tion is deliverea to the examiner, who, having made himself
master of the facts pleaded, examines each witness by questions
framed at the time, so as to obtain, upon each article of the
allegation separately, the whole truth, as far as he possibly can.
As a general principle regulating the mode of examining wit-
nesses, the examiner should be guided by the form of the
articles. Thus, where an article admitted by the court is io
general form, the examinations taken upon it should be gene-
ral also; in examining on a charge of general habits the
examiner ought not to admit specification, but adhere to the
general form of the plea ; but where the form of the plea re-
quires specification, or specification is allowed, the examination
should be so exact as to time and place, and all other material cir-
cumstances, as to give the party charged full opportunity to answer.

If the examiner entertains a doubt as to whether he ought to
receive any part of the evidence, it is safer for him not to reject

ebtlintce. 385

it. The court can do that at last, if it think proper, and there

is no irreparable injury done by the admission of evidence as How
there may be by a too hasty exclusion; but care should be taken, mined.
in admitting specific facts in general inquiries, especially in
cases of character, that the facts stated be plain and simple, and
not such as will run into intricacy of discussion or ambiguity.

1 Hag. Con. 97 ; 1 Hag. 108.

The court has expressed an opinion that for proctors to set
down a full statement of what each witness can say, called a
designation of witnesses, to be given to the examiner to examine
by, is a very irregular and dangerous practice ; for, if a case
depends upon special facts, those facts should be specially
pleaded. The party may then object, if they are irrelevant, and
the witnesses may be cross-examined to them. It is only by
this mode of proceeding that true justice can be got at, and
evidence be obtained on which the court can rely. Designations
and evidence taken on them are little more than ex-parie affi-
davits. ^Phill. 395.

Both the civil and canon law require that witnesses should
be examined secretly. This is not only the practice of the
ecclesiastical courts of our own country, but of tne tribunals of
aH countries where the ancient civil and canon law has been
received in practice. But. the secrecy prescribed by the general
rule is very much varied by local regulations. StricUy and
originally the witness was examined by the jud^e himsdf, taking
to his assistance a notary to reduce the deposition into writing,
but no one else was present. But in the ecclesiastical courts of
this country the examinations are taken by a practitioner, who
is appointed examiner, and who represents the judge, and who
reduces the deposition into writing, remaining quite alone with
the witness. Oughton^ iii. 85 ; Cofiset, 1 16 ; AyUffe Parer. 5S6 ;

2 Hag. Can. £67; 3 PiiU. 36.

As soon as the witness has given all the answers required,
bis deposition is read over to him, and he ought to sign it. It
is afterwards repeated to him, which means, that he declares it
to be true, in the presence of a surrogate, by virtue of the oath
which he has taken; the rule of law stated by Oughion is
*' Si depontio nan fuerii coram judiee recognita ei repeiita
" non valetr 85 ; Consety 1 16 ; Phill. 281.

The cross-examination by the opposite party is conducted
by interrogatories, which are delivered to the examiner by
the proctor on the side cross-examining the witness. These How croM-
interrogatories are not to be disclosed to the witness till after examined.
the examination in chief is concluded and signed ; nor to the
party producing him till after publication passes, and each wit-
ness is usually enjoined not to disclose the interrogatories nor
any part of his evidence till after publication. The rules and

c c

386

ebiutmt^

Rules
when re-
laxed.

Wkneiaeg. principles upon which a cross-examination is conducted ifi the
How croM. ecclesiastical courts are the same as in the common law courts.
examined. 1 Curt. 5 ; & Hag. 682.

It has been stated that, in order that the opposite party may
be prepared to cross-examine, the proctor producing the witness
delivers a designation, or notice of the articles of the plea on
which it is intended to examine each witness produced. The
general rule of practice is that twenty-four hours' notice shall
be given to the cross-examining party for the preparation of in-
terrogatories; but it seems that, if a proper case were laid before
the court, that time might be extenaed or abridged. Oughtamf
tit. 80 n. 3; 1 Hag. 97; 3 Hag. 610. Nor will the court
depart from its general practice and order a list of witnesses
long before the time, on the ground that the party applying
lives voluntarilv abroad. 2 Hag. 609.

But although these are the strict rules upon which it would
seem that every deposition ought to be conducted. Y«t the
court may, under circumstances, receive something short of a
regular examination. Therefore, where a deposition had been
read over and signed, but not repeated to the witness, and he
died before the other party had an opportunity of cross-exami-
nation, yet it was admitted with allowance, on account of tbe
want of cross-examination. HiU v. BtMleyf 1 PkiU. £81 ;
12 Vin. Ab. 108, Evidence; Ch. Rep. 90; 1 P. Wme. 414.

In a case somewhat similar in which, although the deposition
was read over, it had been neither repeated norsipned^ nor inter-
rogatories administered, the court, acting on similar prindples^
admitted the deposition subject to allowance on tbe same
ground ; 1 Ad. 2A0. The only difi«rence between the two
cases being, that in the latter the deposition was not signed.

The usual course of practice seems to be, that the witness is not
repeated till after he has been cross-examined, but that he ought to
sign his deposition as soon as his examination in chief is finished »
and not again to be alloveed to see it. Upon this practice being
brought under the notice of the court, the court said, such a
course was quite satisfactory, and it would also be desirable, if
any material alterations were made, at the request of the witness,
that it should appear from the paper that such was the case*
Ingram v. fVyaii, 1 Hag. 97, in notis.

With regard to the re-examination of a witness after he had
been examined and dismissed; the court said, in Reeves v.
Reeves, 3 Phitt. 1 13, that it would accede to such a pro«-
position with extreme jealousy, although there was no absolute
rule excluding such a course under every possible circumstance*
But where an aoplication was made that a witness who bad
been examined should be re-examined, on the ground that his
memory failed him from being unwell at the time of his exatni*

Re-prodtt-
cing to be
re-exa-
nined.

(Sh{titmt4 387

natioD, and that now his conscienoe impelled him to wish to Witneaaei.
be re-exaaiined ; but the examiner said, on being applied tO| Re.produ-
that he did not observe any incompetency during the examina* cingtobe
tion from illness or other cause, and that all the material points ^:^^*
were accurately put to him ; the court refused to allow such witness ™"
to be re-examined> ib.; nor were fresh interrogatories allowed to
be administered to a witness who has been dismissed, in a case
where the application was founded on the affidavit of a solicitor
instead of the proctor. 3 Phill. 4@3. So also a witnessi who had
been repeated and dismissed two years before, was not permitted^
though before publication, to be reexamined upon an article of
a plea to which through inadveriance she had net been designed
io at the time of her production as a witness ; at least not without
affidavits to explain how the witness came not to be designed to
this article of ttie allegation originally, and the necessity of her Tobecro«-
being examined now. WUUnson v. Dalton, 1 Add. 339. But e»>nioeH.
ihcre seems not to be the same objection to re^produce a witness
in order to be croesexamined : thus, a witness who had been
examined in chief, under a commission, but had been prevented
by illness fn m being examined on interrogatories before the close
of the commission was allowed to be re-produced and examined
on interrogatories at the expense of the party producing her*
Lady CooiesWinfordy.HUUer,! Lee 274^1 sedeid.2Hag.31Si
as toTe-examining witnesses after publication, eid. post. 406.

Ayliffe^ giving tlie opinions of the canonists on this subject,
says, that a witness may correct himself and amend bis de»
positions^ before the judge or notary has perfected the exami-
nation, and before he leaves the presence of the iudge, but not e:£
intervallo, or after distance of time, and the publication of his de-
positions ; but that odiers seem to consider that he ought not even
to be so allowed to do after he has subscribed his examination.
But he adds, that a witness may correct himself after his examina-
tion is ended and finished, provided it be done before he has had
any conversation with the party in the suit. Parer. M&.

Conseti 116; ^Oufthtonf tit. 85, #.6, 7, following him, lay
down the rule generally as follows : —

That a witness, on being repeated before the judge, may re-
quire that the whole of what be had previously deposed^ and
which had been taken down by the registrar, may be corrected
and blotted out, or any part of it. But if the witness do then
ratify and approve before the judge, all things so written and
read by the registrar, tlie examination is said to be perfect and
complete.

Tnis» seems to be the present practice of the ecclesiastical
courta in tins country in onlinary cases. But there is no rule on
the subject so inflexible as to limit or fetter the discretiou of
the judge; as against him no part of the proceedings are oon-

c c2

388 ^(HtMt.

wUncHes. eluded before final sentence; 3 PhiU. 103. So in the courts of
R^produ- common law, a judge, armed with unlimited power in his search
cing. for truth, may himself recall or permit counsel to recal a witness ;

mav permit adverse witnesses to be cross-examined by the party
calling them ; or may permit witnesses to be examined who have
staid in court after an express order to leave the court ; if he
thinks that in the particular case a departure from the ordinary
rule b safe and expedient. Vid. 5 Tywrh. 425; R* §f M. \^ ;

Comp«- Although it seems that by the civil law, parents and

tency. children were incompetent to give evidence for or against each
other, in the same way that a husband and wife were incompetent ;
and that the objection extended to ascendants and decendants act
if^niiumf yet even in that law there were many exceptions.
Jfyliff Purer. 54&, But no such objection exists now, indeed a
father itas been held competent in a suit brought by a son to
annul his marriage, which suit, during the son's minority, had
been commenced by the father. 2 Hag* Can. 419, ib. 414.

The law of evidence, as received in the ecclesiastical courts of
this country, adopts generally the principle of the common law
as respects the incompetency of witnesses. In the case of Soph
V. Atkinson and Westcot, 1 Add. 184, Sir J. Nichott thus lays
down the principle with regard to the objection on the ground
of interest '' Who then, are the witnesses by whose immediate
" testimony this instrument is to be sustained, and how do they
^' stand affected ; and, first, as in point of general credit ?
'' the witnesses upon the condidit are two of the sons and a
'' daughter of Mrst Saph, the party principally benefited
** under the will propounded. They are competent witnesses,
" as not having, themselves, a direct, pecuniary interest in the
** event of the suit. At the same time they can, by no means,
" be considered unbiassed ones. A direct interest, of the
" smallest amount in value, would preclude them from being
witnesses at all; so jealous is the law of the purity .of evi-
dence. At the same time it is obvious, that these parties are
under much stronger inducements to support this transaction
" (and were, originally, to embark in it) than a trifli^g le^cv
'* would have furnished ; though this last, as I have just said,
*' would have destroyed their competency as witnesses, whereas
'' the * stronger inducement* only goes to their credit. But
" though the law (which can only draw its line between interest,
" and no interest) permits witnesses who are so circumstanced
" as the present are, to be heard ; yet it also require^ th,em to
" be heard (as indeed common sense does) with a very cppsi-
"derable deduction from the credit to which they .might be
** otherwise entitled.*' And in another case, that learned jud^
said, '' Out of the seven witnesses produced to the testa*

(W)ftentt4 389

*• tor*8 incapacity, all are on the very verge of incompetency, as Witnease*,
"' being the children of parties entitled in the distribution, and compe-
*' consequently as having a derivative interest in setting aside tency.
" the will** 1 Add. 235, 4 Hag. 469, Doddington v. Hudson^
1 Bing. 257; Ward v. mtkinson, 4^ B. % A. 410.

Where a next of kin, not having voluntarily made himself a
party to the suit, or intermeddled at all, but who had been cited
to see a will propounded, and on appearance declared that he
would not oppose the will, and therefore fully answered the
purpose for which he was cited ; he has a right to be dismissed,
for the purpose of being examined as a witness. 3 Lee^ S80.
But where parties have materially interfered, it would be in-
justice to the opposite party to dismiss them. /&• 38S. But
in the case of a father instituting proceedings to annul the
marriage of his son, a minor, which were continued by the
son on attaining his majority, the court said the son's intervention
was a supercession of the suit by the father, who having with-
drawn from the suit, an objection to his competency was overruled ;
still for the sake of greater regularity the conclusion of the
case was rescinded, for him to be repeated to his depositions.
1 Hag. Con. 419. So in another case of nullity of marriage
promoted by the father of a minor, the evidence of the wife of
that father is admissible ; for he was not suing in his own right,
but was merely a formal party to make appearance for the
minor. 2 PhilL 181 ; 1 Add. 184; 4 Hag. 469.

The wife of the executor of a contested will has been held ^ife of
to be an incompetent witness in such a cause, although the executor,
executor had no legacy. 3 Phill. 334. In one case the ex-
pectation of a witness, that he should derive interest and advan-
tage from the will, if it were established, has been held sufficient
to exclude his testimony. 1 Lee^ 403 ; aed quaere ; a wager,
or an honourable understanding to indemnify bail, there
being no legally binding engagement to do so, have been held
not to render witnesses incompetent. 1 Campb. 145 ; Sir, 652.
If there remain any question as to the competency rn the iui««te.
ground of interest, the court will expect that the witness should
quaKfy in the usual mode by releasing. 3 Add. 61.

If a first release be insufficient the witness will be al-
lowed to exhibit a second release. 1 Lee^ 437. So the con-
clusion of a cause has been rescinded in order to allow a
witness, who had given an insufficient release to give a per-
fect release, and afterwards to be re-sworn and repeated as
a witness, leave being given to the opposite side to cross-
examine. 2 Hag. 484.

So in another case, where an incompetent witness had been
allowed to give an insufficient release, his deposition was sup-
pressed on motion, in order that he might give a sufficient

390

^tliatre«

Compe*
tency.

Release.

Witneswag, release on paying the costs of the application. The proceed*
ings are thus stated: — The motion having been made, the
proctor produced the witness in open court, and there exhi-
bited a full and sufficient release. The jud^e, Sir 6. Letf
then gare him the oath of a iivitness, and ordered the return
of the commissioners to be opened^ and the deposition of the
witness to be taken out. The witness then read over the whole
deposition to himself in court, and was there repeated to it,
and be openly declared the deposition was true on the oath he
had taken, and to his mind. Firth v. Finch, 1 Lee, 437.

An allegation may, it seems, be propounded, for the purpose
of showing that a witness is not interested ; or new facts may be
pleaded, to show that the witness was not interested at the time
of his examination ; or if not already examined, to show that he
Is no longer interested, in order to his being examined.
3 Add, 61.

Where a witness was examined upon a common confBdiif who
had received a legacy under the will without renouncing or re-
ceiving his legacy, his deposition was allowed to be suppressed,
in order that he might renounce his interest and be re-examined ;
when the application was made to the court, the opposite proctor
declared he would consent in acts of court that the existing de-
position should be read, and that he would not object against
the witness at the hearing of the cause, which consent was en-
tered in the acts of the court ; but for greater security, the
court directed the proctor to exhibit a proxy from his ctient,
authorizing him to give such consent. 1 Lee, 126.

A witness, it is apprehended^ may be objected to before he is
sworn ; by analogy to the practice of the courts of common law,
where formerly an objection to the competency of a witness
was always taken, and still ought to be whenever it is known, on
the voire dire; although this rule is now much relaxed. 1 Stark.
Evid. 122. Still the principle is so far adhered to, that the
privilege which a party has of inquiring into the contents of
written instruments by parol on the voire dire, is not allowed if
the witness is once sworn in chief. 2 Campb. 14. It is conceived,
therefore, that when witnesses attend to be sworn before the
surrogate, the opposite proctor may object to any one pro-
duced, on the ground of incompetency, and that the surroflrate
would be justified in refusing to swear such witness till he had
received the instructions of the court.

The objection on the ground ofincompetency generally appears
on the face of the proceedings, either upon the pleadings ; or the
depositions taken m chief; or most frequently upon the interro-
gatories administered on cross-examination. 1 Lee, 408. If the
objection does not appear on the proceedings it may be raised and
shewn by an allegation propounded for that purpose. 1 Add.

Objection,
how and
when taken.

C^ditnct* 391

Jt9& If it does appear on the faoe of the proceedings, it may be WitMMw.
ui^ed at (h^ hearing of the cause. 3 Phill. 334. In Searle v. compe-
Price, 2 Hag, Com. 187, which was a suit of nullity of marriage, teacj.
by raison of a former marriage, an objection on opening
the case, was taken to the evidence of the first husband; but it
was answered that in such a case the wife could not object, as
ah^ would thereby admit the principal fact in question, vix* the
first marriage.; The court allowed the evidence to be read de
befie eu^f re^^rving the point for more formal argument, in the
event of the case appearing to depend in any material degree
-^pOQ the evidence objected to; a similar course was pursued
la a subsequent case, 2 Hag. 278.

Before the 5Z G. 3, c. 127, witnesses, whilst under sentence of Excommtt-;
excommunication, or who had done any act by which they were ^^^^^
^0 facto excommunicated, were incompetent till they were ab-
solved ad testificandum in the court where they were produced
as witnesses. 1 Lee 9 594; 2 Hag. Con. 399. But now, that
statute by s. 3, provides that no person pronounced excom-
municate shall incur any civil incapacity by such sentence
of excommunication.

The mode of attacking the credit of a witness in the ecclesias^ Credit of,
tical court, is by pleading in exception to his credit by what is ^T*!*
called an exceptive allegation.

Exceptive allegations seem to be of two general descriptions. Eiceptive
Oughton, tit. 80, «. 12, 13; Conset, 140. tllegatiom.

1. The allegation contra personam ,\9\i\c\i is an exception to 1. Omtra
the witness on the«ground of general bad character. perttmaM.

iL The allegation contra dicta, which is an exception arising 2. Contn
out of his depositions in the particular case. <'«'<a.

The first class of exceptions ought to be pleaded before pub-
lication of the depositions. Oughton, tit. 80 ; Evans v. Evans,
1 Hag. Con. 98, in notd; 3 PhiU. 372.

The second cannot be pleaded till after publication, for till
then the witnesses' depositions are not known and the objection
does not arise. Although there is no decided case where both
species of exceptions have been allowed to the same witness,
tfiere seems to be no reason why they should not. 1 Add. 143.

There may also be exceptions to the testimony of a witness
not examined on the principal issue in the cause, but examined
only in support of an exception to the testimony of a witness.
Baa V. Ball, 3 Add. 10.

These exceptive allegations are proceeded upon when ad-
mitted in the same manner, and a term probatory granted
for the proof of them, as on the admission of pleas to the
issue. But they are not frequently offered, and are always
reiceived with great caution and strictness; especially when
ofiered by a wife opposed to her husband, as she has not

392 ^idnntt.

w»tn«»es> the ordinary check of costs ; 3 PhiU, 98 ; besides, tbey tend

Eiceptive commonly to protract the suit and to increase expense rather

ailegattoBs. than to afford substantial information to the court. S PAill. 161 $

3 PhiU. 98, 220 ; 2 Add. 171 ; 2 Hag. Can. 99, n; OrngkUm,

iiL 103. (a)

Uu Contra The general rule being that the exception to the general

b^'^i^ded' c^>^A<^>^ of A witness should be pleaded befim the pabli*-

before^b. catiou of the evidence, it ought to be pleaded at the same

licatioQ. time with the responsive allegation ; for it has been said that

*' before publication an exceptive allegation stands on the same

** footing with any other facts in the case. There may be

*' reasons indeed why it should be offered in a late stage ; bat

" the correct rule seems to be that, where general character is

** objected to, the facts as to the general character ought to be

** pleaded when the responsive allegation is given in, and

" should be introduced in the general aHegation. Extreme

** inconvenience would otherwise arise from the protraction of

'' causes." Chapman v. Whiiby and Paraons, 3 P/uO. 378.

'' Although the rule on this subject seems to hare fluctuated,

'' it is now settled that articles in exception to mneral character

** can be admitted only as an introductory article after puMica*

" tion, and being merely introductory the examiner is not to

" examine upon it.'* Per Lord StoweU, in Evan* v. Evans,

1 Hag. Con. 98.

(a) The exceptive allegation contra personam^ which attacks the
general character of a witness, is a collateral issue, or, as called by Lord
Stowell, an excrescence from the original cause. At common law,
although no formal issue can be raised upon the credit of a witness, yet,
if the character of a witness has been impeached, by calling witnesses to
prove they would not believe him on his oath, or by cross-examina-
tion, the party supporting the character of the witness may cross-examine
such witnesses as to the grounds upon which they have said that they
would not believe him on his oath, or may call witnesses to speak to
the general good character of the witness, or may contradict any parti-
cular fact which the witnesses, called to say that they would not believe
the witness on his oath, may have assigned as a reason for dis-
crediting him. 1 HoU N, P. C. 241. Where two out of three wit-
nesses to a will were dead, and the third disproved the sanity of the
testator, and thereby impeached the credit of the two other attesting
witnesses, general evidence of the good character of the latter has been
allowed. 3 Esp. 284 ; 4 Esp. 50 ; 1 Campb. 210 ; 1 Stark. Evid. 148.
So where a prosecutrix, upon an indictment for an attempt to commit a
rape, having been cross-examined as to her having been sent to the
House of Correction on a charge of theft, evidence of her subsequent
good conduct was admitted in support of the prosecution. 2 Stark,
N. P. C. 241 ; I Stark. Etid. 148.

tbUitntt. 393

Where the mahi fact depends on the evidence of some par* Witoews,
ticuknr witness, and it is necessary to weigh his credit nicely, the Exceptive
court is less averse to admit an exceptive allegation. Salman aliegatran,
V. CromweU, 3 PkiU. 290. ^^^ P^'

It is the rule of the ecclesiastical court that the cause ^^tble
IB newr closed against the judge ; and therefore the court after pubfi-
may in its discretion receive an exceptive allegation at any time ^^^»
liefere the condasion of the cause ; or the conclusion may be
jneseinded, in order that such an allegation may go to proof; for
if a cauise entirely or even mainly depends upon the credit of
witnesses proposed to be excepted to, so that every thing or
even nradi depends upon giving them full credit; tMir credit
being shaken, as by interrogatories or otherwise, the court in its
discretion, and in order to arrive at the real and substantial jus-
tice of the case^ may even at the final hearing rescind the con-
elusion of the cause, and permit evidence to be taken on an ex-
oeptireplea; Durantv. Durani^ 2 Add.S76\ and vtrf. 1 Add.
188 ; 4tHag, 133, and with that view counsel have been allowed
to argue tie bene esse on a suspended allegation, in order to see
if they think they can derive any benefit Arom it. 8 PAttf. SSI .

This discretionary power is exercised as well in cases
where the exception is in personam^ that is, against the general
character of witnesses, as in cases where the exception is contra
dicta only. SPhiU. 870.

In the case of Wargent v. HoUings^ 4 Hag. 345, an al- Admitted
legation exceptive to the credit of two witnesses having been condition-
OTOred, after publication decreed, and the cause assigned ''^^*
for sentence, and being objected to on the ground that the
time had gone bj[ within which it was competent to bring
in an exceptive allegation, the court, as appears by the
minute of its proceedings, ''permitted the allegation to be
'' brought in, reserving the consideration of its admission to
" the hearing of the cause, and assigned the cause for infor-
*' nations and sentence to the next session." From this decree
the party tendering the allegation appealed ; at the hearing be-
fore the delegates, that court pronounced against the appeal,
Mr. Baron Bayley observing, '' Such a reservation as forms the
** present ground of complaint may be convenient and advan-
'' tageous to both parties. The object of it is to prevent delay
'' and expense, and the court of appeal must be cautious liot to
*' infringe in such a matter on the discretion of the court below.
'' Shoum the prerogative court, at the hearing the cause, think
'' the exceptive allegation material, it will direct it to be debated ;
'' and should it then be rejected the party will have the liberty
*' of exercising a power of appeal from that decision."

Where one of tlie parties, in a cause for restitution of conjucal
rights, indicted some of the witnesses of the other party, of a

394 €todttllCf ♦

Wit— M. compiraoy to support the cause by fake oaths, who were

EzotpciTe eoBvictedi the record of their oonviction may be pleaded,

ailegftdons, in ati exceptive allegation to their teslimonyy ailter publication^

^m.'^ 2 Add. 380, this beiD|( the earliest time when such convietioii

could be pleaded, to. 112. But where it was pleaded, thai a

true bill for peijury had been found against one of the witnesses

for her evidence in the cause, the court relused to. admit the

allegation, nor would delay the hearing till the indietmem was

tried ; the court, Dr. LttsJUngion adding, '' I do not say that a

** plea allq{ing the conviction of a witness for peijury wo«dd iu

*^ no ease be admissible, but the court would require thai the

** conviction should not have proceeded on the evidence of the

** party in the suit, or of the alleged /lartfeqtM crimimt.'* Maclean

v. Maclean, ft Hag. 607 ; 4 Hag. 139.

But although exceptions to general character should betaken
at the time when a party gives in his responsive allegation, yet
if £M}t8 noviter perveniaf that is, facts which have come to the
knowledge of the party propounding the exceptive allegation sub*
seqnently to that period, and the allegation is KHinded on such new
facts only, it seems that such an allegation would be admissible.
3 Phm. 378. The same principle is adopted with less scruple in
dbe case of exhibits, or documentary evidence. 1 Hag* 854w
Should be Where .the character of a witness is attacked, it is univeraally
precMe. laid down that the objection should not be of an ambiguous
nature. It must be attacked in terms which clearly import the
imputation ; Evans v. Ewms^ 1 Hag. Can. 99 n. ; and the
Acts stated, plain and simple, and not such as run intp
intricacy or ambiguity. In Wilson v« Weikerell, cited 1
Hag. Com. . 97 n., an attadk was made upon the general cha*
MCter of a witness, and several witnesses allowed to be examined
upon it. The examiner allowed them to run into specificatifNit
and to say that they thought him a bad man, because be had
defrauded them as members of a public company. Lord
StoweU observed, ** fraud itself is composed fiequently of such
'* ingredients that to establish it, might occupy some yeans us a
court of equity. How, then, could this court entertain in-
cidentally, and only as an excrescence firom the original cause,
*^ a matter which might easily have overgrown the cause from
** whence it sprang ? Evans v. Evans, iS.
Ctmtra By the exception contra dieUii that is, arising out of the de-

licto, position of a witness, it is not meant that a party is at liberty

to controvert every declaration of a witness, but that he may
except to his character and credit from what arises out of his
depoeition. 1 Hag. Con. 100, n. AffUffe^ Parer. StSl, says,
*' that all exceptions or protestations against witnesses ought
''to be made, ante apertnram aiiesiaiumum ; but where the
'' question is| contra dicta^ this cannot be done, because, till

«<
((

diilieiior. 395

dietm*

*' ptibltcationy the objection does not arise ; still, such exception ^

'' being after pablication, are stricti jurU^ because the prooft Exceptive
** having been seen, there would be great danger of.perjury, as eUegAtien,
'* well as of endless delays, if further evidence could, at tliat time, ^^^^
" be lightly or loosely received/' And vid. 2 Hag. 481. The
exercises a greater discretion over these exceptive allegations,
because, after publication, the court can see more of the
general character of the case. 3 PhilL 98.

The object of these pleas is the credit of the witness, not
the proof or disproof of the facts in issue in the principal cause.
In the principal cause, all matters niost be pleaded before
publication, and therefore a party cannot plead in contradiotioti
to a witness, what he might have offered in contradiction to
the articles, or pleas before publication. 2 Bag, 481 ; 2 PAUL
151; 2^drf.274; 4 Hug. 127.

It is a rule that after publication you cannot plead as to facta,
so far, the cause is considered as shut, but it is also a rule
that you may, as to witnesses ; provided anything shall have
arisen from their depositions, which you could not have con*
trndicted irom the plea. No evidence on this exceptive alle-
gation will be received as to facts in the case, what may be said
can only ^o to the credit of the witnesses. Per Dr. Calvert^
in Oaodrtdge and Hunter v. Slaekf 2 Hag. 174 if, and vid.
Haiford v. Hafford, 3 PhiU. 98.

W here a witness is designed to particular parts of a plea, it has
been said, that it is open to the opposite party to plead before
pablication, declarations made by such witness, contrary to the
facts and statements to which he is so designed; and, that such
declaration cannot be pleaded in an exceptive plea after pub-
lication, because a party is not to lie by, till he has seen the
facte contained in a witness's deposition, and then, if convenient,
to plead to them* 2 Add. 484. So also, it was said, with
regard to the case of a subscribed witness to a will, examined
on a condidit. The party opposing the will, is not to wait till
after publication of the evidence has passed, and then to plead,
that the witness has said, ** he never attested the will," in the
shape of exception to his testimony* lb.

with unfeigned respect for ttie high authority by whom
these opinions were expressed, for they were only opinions,
the case itself, having been decided on another ground ; it
seems, that the mere declaration of a witness could not be
pleaded in the general allegation previously to publication.
1st. Because being mere hearsay, it could not be pleaded as a
fact on the principal issue ; and 2dly. Because it would be no
contradiction of the witness, till such witness had been cross-
examined, and had denied that he ever made such a declaration \

396

^tlienr^

Ezcepciy«

allagitioB,

contra

dicta.

and this hideed was the view which the learned judge seemed
to take of the case in a subsequent part of his juagment.

If indeed, a witness be designed to particular parts of a
libel, and it is known to the defendant that the same witness has
stated fkcts (a) material to the issue, (and if they are not material
to the issue, he cannot eventually be contradicted on them, if
he should deny having made such statements,) which facts are
wholly contradictory of, or inconsistent with, the facts which he
is in the libel designed to prove, the defendant must, it is con-
ceived, if he intend to avail himself of such facts, plead them
before publication, and if he omit to do so, he cannot plead
them afterwards, unless in the case of their being noriier per*
f>enia, newly come to his knowledge; it being the rule, as stated
above, that a party cannot plead in contradiction to a witness,
what he might have offered in contradiction to the libel ; if upon
the cross-examination the witness admit the facts favourable
to the defendant's case, his plea is so far proved ; if he deny
having made such statements, the defendant by an exceptive al-
legation, may contradict this denial, and by proving the state-
ments which he has made, destroy the witness's credit with the
court, and prevent either party from being benefited or pre-
judiced by his testimony.

Wfaerei however, a witness has made declaraiioru contradic-
tory of, or inconsistent with, the facts which he is in a plea designed
to prove, such declarations being hearsay evidence only, cannot
be pleaded in any allegation to the principal issue, but would
only be admissible in evidence to impeach the credit of the
witness, and therefore strictly and properly the subject of an
exceptive allegation, and consequently pleadable after pub-
lication. 1 Add, S61. In such a case, however, it seems, that
it would be proper to cross-examine the witness to these
declarations upon the interrogataries, in order that he may
have an opportunity of explanation. To plead a contradiction
at once without a preliminary inquiry, would, in many cases.

(a) It would seem to be a strange proposition to say, that wbece a
witness deposes to a variety of facts, some of which lead to an inferenoe
favourable to one party in the cause, and the others to an inference
directly contrary ; that the contradiction in the &cts themselves, could
be made the ground of an imputation on the credit of ^ witness,
in the form of an exceptive allegation ; if any of the facts stated
are contradicted, then indeed discredit attaches to the witness, by
reason of the contradiction, but n6 discredit attaches from the in-
consistency of the facts themselves. 1 Campb, 210 ; 1 Stark, EHd.
148.

be moat unfair to a witness ; and indeed it would be no dis- ^^'>

tinct contradiction, unless the witness had been first asked £xcepdf«
whether he bad, or had not made such a declaration. The allcgatioii,
rule of law on this subject, was laid down in the Qmen'^ case, ^^^
2 B. if B. 301, by Abboii, C. J., delivering the unanimous
opinion of the judges. ''According to the practice of the
" courts below, a witness is asked, in cross-examination, whether
" he has made a declaration or held a .conversation, and such
'' previous question is considered as a necessary foundation to
*' the contradictory evidence of the declaration or conversation
'' to be adduced on the other side.*'

The practice of the courts of common law was stated more
fiill;^ by lindah C. J., in the subsequent case of An^us v.
Smilh, \ M. 8^ M* 4^7 4t. '' Before you can contradict a witness.
'* by shewing that he has at some other time said something in**
" consistent with his present evidence, you must ask lum as to
** the time, place, and person involved in the supposed contra-
" diction. It is not enough to ask him the general question,
" whether he has ever said so and so.'* And, in addition, before
the contradiction can be offered, the witness must expressly deny
having made such statement, saying that he does not recoUed
having made it, is not sufficient.

Further, the declaration denied by the witness and which it is

Sroposed to prove that he has made, in contradiction of such
enial, must be on a matter relevant to the issue in the causey
if it be on matter irrelevant or collateral^ the witness's answer
would be conclusive at common law, for no evidence could
be received to contradict him: upon the same principle it
is conceived the ecclesiastical court would reject an ex-
ceptive allegation, pleading that the witness had made such
declaration, if it was on matter irrelevant to the issue* 7 EaH^
109; 2 Campb. 637; 2 Stark. 157; 8 Bing. 59.

Where a witness, on crosspexamination, denied an impu*
tation personal to herself only, and not bearing on the issue,
an allegation proposing to contradict such denial was rejected,
SetjeasU v. Serfeani, 1 Curi. 5. and vid. 2 Hag. 604. In
Whish and WooUai v. Hesse, 3 Hag. 68S; Sir J.Nichott said,
'Mt is a loose and dangerous practice to introduce masses of
** interrogatories, not relevant to the point in issue. The
court cannot stop the practice in any individual case, for it
does not see the interrogatories till after the evidence has
*' been taken; but it can prevent attempts to discredit a witness
'* by means of exceptive allegations, contradicting answers to
** such irrelevant questions." Vid. also Lambert v. Lambert,
1 Curt. 6. So also contradictions of mere hearsay, are not
admissible in an exceptive allegation* 3 PhiU. 103 ; 1 Hag.
Can. 103 n.

(Si^Oitntt^

i«lh»ll«li«iit

Coatradic-
tion must
beprecMe.

The courts of connKni law aHow considerable latitade of cross*
examinatiixi, in order to sift the character of a witness^ and ex*
pose it if necessary ; but if the question on cross^xaraination be
personal to the witnessi his answer to it is condusive, and he
cannot be contradicted in such answer, Watstnlt cate ; JR. ▼•
Blactmore, R. Sf M. S8S. So that the principle which gorema
the two courts is the same. Nor is there the same ground for a
wide cross-examination into the personal character and conduct
of a witness in the ecclesiastical court as at common law, becaoae
that inquiry may be most effectually had in the former court,
by an exceptive allegationi contra personam, to which there ia
nothing stnctly analogous at common law.

In order also to make an allegation exceptive to the deposi-
tion of a witness admissible, it must contain a clear and disdnct
contradiction to the deposition, and moreover be capable of
being proved by witnesses, so as to show that the witness has
deposed iUsely and corruptly. 2 Hag. 48S, and vtdL 1 M.SfAf.
474; 2M.^M.2d.

The mere inference of a witness ewmot be yieaded iitxsBP*
tradictioB to the fiicts deposed to by such witness. 8 Add.
488. Want of experience or discernment, or a pvgudioe in
favor of the party implicated, or a combinaticm of such causes
may lead an honest witness to draw false inferences from the
{acts stated by himself; but the doing so does not necessarily
impeach his credit; besides a witness may have expressed
different opinions at diflferent times without impeachment of his
credit, or even of his diseemmentk Hag. Con. 100 ».

' But declarations of witnesses as to facts bearing upon (heir
diaracter and credit are pleadable, thus it has always been held
that the credit of a witness may be impeached, by shewing that
be has made statements out of court contrary to what he has
sworn. 1 AM. 361. Subject, however, as it seems to the above
limttlitions, that the statement be on matter relevant to the
cause, and that the witness has had the supposed statement
distinctly brought before him on cross-examination, and that he
has denied having made it.

Not only must the contradiction be clear and distinct, but
it must be so defined and pointed as to remove all doubt of mis-
apprehension and mistake ; it is not sufficient merely to con-
trovert the declaration of witnesses, but it must be shewn that a
witness has misrepresented a matter corruptly and wflfidly.
There must be what the law cMB**/akiias cum corrupHone.^
Every man is liable to ntistake, and it is not enough to affect a
witness with inaccuracy or error. 1 Hag. Con. 100 s* ; 2 P&itt.,
lis, ISO; S PhUl. 103; 2 Add. 484; 2 Hag. 604.

At common law the rule is clear that the witness must be con-
tradicted expressly, almost in the very terms of the statement ; the

practice being for the counse] in crois-ezaminalion to p«t the Wituwn
very words to the witnesSy in which he is supposed to have made £ieep(iT«
the statement, and when the contradicting witness is called the aU«gatioB,
counsel may read from his brief the precise words of the statement, ^^
which the former witness is supposed to have made, and which
he has denied. 3 Stark. N. P. C 7.

It has. been matter of discussion how far a party may exeept witnen
to the credit of a witness called by himself; Qoodridge v. produced
HwUer ^ Starke, 2 Hag. 172 n. In IwlefieU v. Inglefield, ll^X'^^
ib. 174. A witness was called on both sides, one party ®'^^P^°s*
was allowed after publication to except to his crediti by reason
that in his depositions when produced by the opposite party, he
had given evidence contradicting what he had sworn in his
former deposition. VitL AyRffe Parer. 540« In Mynnv. Rohrn^
jofi, S Hag. 169; an attesting witness having denied on cross*
examination, that the attestation clause was written when be
signed his name, said that it had been introduced and interpo-
lated subsequently. An allegation exceptive to his testimony;
was given in by the party who had called him, on the ground
that an attesting witness being the witness of Uie court, rather
than of Ae party who ealis him, it is competent for such party to
contradict him if be deposes contrary to his own act ; and such ex«
ceptive allegation was admitted. To this case the following ob-
servations are annexed by the learned reporter :

** In the ecclesiastical courts, where the depositions are never
** seen till all the witnesses have been examined, it is necessarv
" that parties, though they may not before publication attack
the general character of bis own witness should be permit-
ted, afier publication, directly to except to his credit; because
as no plea unless exceptive, and no evidence unless on such a
plea, can be given at this stage of the cause, parties would
otherwise be precluded from contradicting their own witness
** falsely deposing to the occurrence of matters which might ffo
*' to the foundation of the whole case, and yet to which it could
** not have been foreseen that he could speak. The variation,
** between the practice of the common law courts, which do not
** permit general evidence to discredit a witness, but only that
'' fieicts stated by him may be contradicted, and of the ecclesi*
*' astical courts, arises only from the different manner in
" which the evidence is taken, and the different opportunities
'* thereby aff rded to a party of obviating the effect of his own
" witness unexpectedly deposing against him ; and is a variation
^* in form rather than in substance. At common law, the pri-
'' mary purpose of the examination of other witnesses is to sup*
" port the party's original case ; the accidental consequence, to
'* discredit the first witness ; or, as Mr. Justice BuUer expresses
** it : ' the other witnesses are not called directiy to discredit the

tt
It

400 (SiKiiitmt.

** first witness, but the irapeachment of his credit is incidental
«' and conseouential only/ {Butter's N. P. p. £97, 5th edU.) On
" the other hand, in the spiritual courts, the primary purpose
^^^^ ** of an exceptive allegation is to destroy the credit of the wit*

^. ' ** ness ; the accidentia consequence to support the orignial ease.

^^SHo^ " ^^ practice in both courts, however difierent at first sight,
^Uwiptftj '^ produces the same result, and originates in the same good rea-
•xccptuc. *' son and sound principle.**

In the courts of common law, it is clearly established, that
where an attesting witness is called and denies having seen a
deed executed, ouier evidence of the execution is admissible.
In Talbot v. Hod^son^ 7 Taunt. S51, the attesting witness to
a bond, who was sister to the obligor, the defendant, swore
that he never executed it in her presence, but that it was
brought to her in a room where the defendant was not present,
and she was desired to subscribe her name as a witness, which
she did, and that she did not remember whether there was, at
that time, any seal aflBxed to the bond, nor whether she was
even present when any seal was affixed. Cribbs, C. J., received
other evidence of the execution, and the plaintiff had a verdict;
on application for a new trial, the same learned judge, said,
** It is admitted that where an attesting witness has denied all
** knowledge of the matter, the case stands as though there was
*' no attesting witness, and other evidence may be admitted ;
'' hete the attesting witness, who attests the seding and de-
'Mivery, says she saw nothing of it, and the attesting witness
** being thus got rid of, it is open for the jury to consider the
** effect of anv evidence that may be adduonl.** The court
concurring, the rule for a new trial was discharged. Similar
evidence was received under similar circumstances, fai Wheaitey
V. Lowes 9 eor. Paitesan^ Middx. Sitt. HiL TVnn, 1838; andvM/.
8 Esp. 173 ; 2 Campb. 635, 636 ; 4 Burr. 9SS^. So, in chancery.
Sir W. Grants M. 12., thus states the principle, '^ Those cases
** in which it has been held that a witness is not at liberty to
*Voontradict his attestation, go thus far ; that if there is the at-
*' testation, and he confesses himself to be the attesting witness
** wirndfade^ the presumption is, that what he has attested
''nas taken place in his presence; if he denies that, other
** evidence is admissible under circumstances, as where there
" were no attesting witnesses.*' Barrwoes v. Lock. 10 Ves.
474. In Ewer v. Ambrose^ S B. ^ C 746, which was ah action
of assumpsit against A. alone, who pleaded in abatement, that
the promises in the declaration were made with A. and S. B.
conjointly ; S. B., the alleged joint contractor, was called by
jthe defendant in support of the plea to prove a partnership ;
but he denied it ; the defendant's counsel then proposed to
read in evidence an answer in chancery, in order to show that

U
«

€4

iStiHtlitt. 401

he had therein admitted himaetf to be a partner; the judse Witftc>»e«.
admitted the answer to be given in evidence, and eventually Exceptive
left it to the jury to find for the plaintiff or defendant, as they alt^tion,
gave credit to S. B/s answer in chancery, or to his te8tinH)ny in ^j^
court* On application for a new trial, Mr. Justice Bayley said, ^imag,
** There have been cases in which, when a witness called to prod«c«d
*' make out a substantive case, disproved that case, the party ^y perty
** calling him has been allowed to prove it by other witnesses ; «*^P*"*
** but those were cases where a witness was forced upon the
** party by law : as, for instance, a subscribing witness to a
<' deed or will, ra/« 399. In Lowe v. JoUiffe, 1 W. BLm&\ the
subscribing witnesses to a will swore to the testator's insanity,
yet the plaintiff was allowed to examine other witnesses in
support of his case« to prove that the testator was sane. So
in Pike v. Badmering, cited in 2 Strange, 1096, where the
thsee subscribing witnesses to a will, denied their hands, the
plaintiff was permitted to contradict that evidence* This case
*^ differs from those, inasmuch as the witness was not forced on
** the party, but I have no doubt that if a witness gives evidence
'^ contrary to that which the party calling him expects, the
'* party is at liberty afterwards to make out his own case, by
*' other witnesses. I doubt, however, whether the defendant was
<« at Uberty to put in the answer in chancery of the witness in
" order to discredit him* It was conipetent to the plaintiff in
** cross-examination to have asked the witness, if he had sworn
'* in his answer in chancery contrarv to the fact he was then
*' deposhig to ; and if he had said that he had not, then the
'* plaintiff, in order to discredit him, might have given the
" answer in evidence ; but he could not do so without putting
** the preliminary question to him* But I think the defendant
^' ought not to have been permitted so to discredit his own
''witness; tjie present impression of my mind, therefore is,
" that the answer ought not to have been received in evidence.
*' At all events, 1 think there ought to be a new trial, because
'* the answer of itself was not evidence of any fact, and it was
** left to the jury to consider whether they could discredit the
testimony given by the witness at the trial, or that given in
his answer in chancery."
As to allowing further evidence, in case a witness proves a
case against the party who produced him in the ecclesiastical
court, see Stames v. Martin, I Curt. 294f, post 404.

(a) It is dear from the above authorities at common law, that if a wit-
ness, wbether imposed upon the party by the court, or voluntarily called,
foigetordeny a transaction which he isexpected toaflSrm, the party calling
him is not to be debarred from supplying this deficiency, occasioned

D D

it
it

40S ^flytncr.

Witnttiei. In Fricdlander y. The London Assurance Companyt ^ B»

Exceptive % Adol. 197. Porie, J«, affirms the sanie principle. ''It b

iiiegation, ** clear that a party may contradict hb own witnessi if he sneak

wntra << to a fiut material in the case* against the interest of tnose

*^' ** who called him. On a coUateral fact he cannot be contra-

** dieted, not only because such evidence goes to the credit of

** the witnesst but because a multiplicity of issues would be

" introduced*" and ricf. Bradley t. Bieardo, 8 Bing. 59.

It has been noticed abore, that exoeptire alle^tionsy when
admitted, are proceeded upon in the same manner as other
pleas. It b said, however, that any fact pleaded in an exceptive
allegation will be more strictly examined into than if it were
plefuled before publication. Wilkinson v. Gordon, SJdd, 171 „
tft. 274.

So ako any fact then alleged must be pleaded with all possible
specification as to times, places, and persons. Atmnmm ▼.
Atkinson, 2 Add. 4«7; ib. 171 ; IM.^M, 474.
An allegation exceptive averring that an indictment had been

by the want of memory or treachery of his witness, by other witnesses
or farther evidence, merely because such further evidence might, in
effect, contradict the testimony of a witness who was produced by
himself. In the ecclesiastical court also, where tbe attesting
witnesses to a will deposed against their own acts, and proved the
incapacity of the testator, the court offered to allow the executor, pro-
pounding the will, an opportunity of producing further evidence to shew
capacity. Siamea v. Martin^ I CurteiSf 294 ; the practice of the common
law and ecclesiastical coiuts therefore seems to be identically the same.
But the rule of the ecclesiastical court, which enables a party to destroy
the credit of a treacherous witness, as well as to supply the deficiency
of proof occasioned by his treachery, may sometimes secure the ends of
justice, where the strict rale of the common law may tend to defeat
them : cases have ocoarred at common bw, where an attesting witness
has denied any knowledge of the execution of the mstrument which he
is called to prove, or perhaps has given a fraudulent colouring to it,
and the party supporting the instrument is, perhaps suddenly, thrown
back on evidence of handwriting ; slight evidence, sufficient for a
primd facie case, may be within reach, but not sufficient to countervail
the contradiction which has been introduced; but there may be abundant
evidence that the attesting witness has made declarations inconsistent
with his evidence, which might be pleaded in an exceptive allegation and
proved in the ecclesiastical court, but which would not be admissihie in
a court of law, but which, if admitted, might destroy the credit of the
attesting witness, and thereby purge the ease of any presjudioe which
might have been cast upon it, and allow the evidenee of handwriting,
slight as it may have been, lo be eonsidered as tee from oonttadiotion,
and unimpeached by suspidon.

(tbtttmt.

403

found against a witnesa for perjury in his depoaitions in the
c»uae then pending was rejected, but the court refused to lay
down as a general rule that such an allegation exceptive could
in no case be admissible. Maclean ▼• Maclean^ 2 Hag. 601 ;
Kenrici v. Kenrict, 4 Hag. 139; and vid. 1 Bing. S39;
4 JIf. ^ 5. 140; 4 East, 677, ». a, ante, S94.

When the proctor for the plaintiff thinks that be has suffi-
ciently proved the intention of his client, and intends to produce
no more witnesses, he must pray pubhcationi and that copies
of the depositions be given to the parties. Oughion, tit. 97 ;
Canset, 134.

The prayer for publication may be made before the term
probatory expires, if the opposing party have not accepted the
term probatory, and declared his intention of using it ; for the
term probatory is common to both parties ; but after the term
probatory has expired, publication may be prayed, whether the
other side has accepted it or not. Jb. If, in a testamentary
cause a party propounding a will has examined two out of three
attesting witnesses, the court will grant publication, on affi?
davit that the third witness has been diligently sought for and
cannot be found, and that it is believed he is not in the king-
dom. 1 Hag. 70«

If the defendant intends to counterplead, and asserts an alle-
gation, he should dissent to the publication of the plaintiff's
depositions, and bring in his allegation, containinff his matter of
defence. If such allegation be admitted, the puUic^ition of the
plaintiff's depositions will be stayed ; and if the term probatory
originally granted to the plaintiff have expired, a new term
probatory will be assigned to the defendant, who will then pro-
ceed to examine witnesses in chief; serve a designation of wit-
nesses on the plaintiff's proctor, in order that he may crosa-
examine them ; and proceed in all things in preparing his depo-
sition as the plaintiff had previously done. Conset, 139.

Up to the period of praying publication, a party may examine
as many witnesses as he pleases ; for, as the term probatory is
open to both parties, the plaintiff may use the term granted to
the defendant ; but having once prayed publication, his case
and evidence is considered as closed, and he cannot produce
fresh evidence without the leave of the court. 2 Hag. App. 137.
Nor is the case different, though publication is prevented by the
assertion of an allegation on tne part of the opposite party.
Thus, if publication of the evidence has been prayed by one of
two litigant parties, the mere assertion of an allegation by the
other is not sufficient, per se, to re-open the term probatory to
that one who has prayed it ; no such asserted allegation being
filed by, and consequently no new term probatory b^g assigned
to, the other. A partyi therefore, who has on<^ prayed pub-

D D 2

WUoMKt.

Publica-
tion.

Party priy-
ingcanoot
examine
frath wit-
neweflwitU.
out leave.

404

(SbditMt^

Witoeweii
after pub-
lication.

Original

witneflsea

refuted.

NoviOr

Kcation, though stopped from pubKcation by an asserted aUe«
gation, is not at liberty to produce and examine a further wit-
ness or further witnesses, upon his libel or allegation as matter
of course ; that is, not without special ground laid, and by leave
of the court, in the event of such asserted allegation^ not being
actually admitted. Bruce v. Burke, 2 Add. 404a

If the plaintiff have produced two or more witnesses to prove
his libel, and the defendant, by way of exception, has refuted
them, or at least some of them, so that there are not two lei^
worthy of credit ; then, upon the confutation of such witnessed
by the above exceptions, of which it does not appear that the
party producing the witnesses had any knowledge, he may, by
way of corroboration of former witnesses, or in proof of the
libel itself, produce any other witnesses he pleases. And the
reason is, tnat every man is presumed to be honest until the
contrary is proved ; and the ecclesiastical law says that regularly
two witnesses are enough for proof. Consequently the plaintiflT
producing two might reasonably conclude they were sufficient.
Oughiouy iiL 83; Consei, 139. It seems by modern practice
that, where witnesses fail to prove the case they are called to
prove, other evidence, after publication, may be oflSered in sup*
port of the case. In Stames v. Martin, I CurU 294, Sir H*
Jenner, in pronouncing against a will, the two attesting witnesses
to which deposed to the incapacity of the testatrix, said, reading
the deposition of one, '' Undoubtedly this person is deposing
'* against his own act ; and if there were any other evidence show-
'' ing the deceased to have been of sufficient capacity at the time,
** the court would have no difficulty in pronouncing for this will ;
** but the parties have declined to avail themselves of the oppor*
*^ tunity offered them of producing further evidence ;'* and vid.
Hag. App, 1 46, where the conclusion of the cause was rescinded,
to allow fresh evidence to be given ; and vid, ib. 144; and in
Henley and Dudderulge v. Morisan, ib. 147, the conclusion of
the cause was rescinded three times, which course was affirmed
by the delegates. Vin. Ab, Etidenee, R. a.

So abo, if after publication it comes to the knowledge of the
party, whether plaintiff or defendant, that there are other wit-
nesses very necessary ; he can at any time, during the pro-
gress of the cause, that is, at any time before the conclusion of
the cause, produce such witnesses; Canset, 136; Oughton,
tU. 81 ; but it is apprehended that such witnesses can only be
received on an affidavit that the testimony of such witnesses was
unknown to the party applying to produce them previously to
publication. 2 Hag. App. 14§.

In Middleion v. Middleion, 2 Hag. App. 137, Lord Stowett,
'* Two pleas only have been given by Mr. Middleton, one
*' of them being tesponsive ; and the .facts now pleaded are

dbditntt* 405

€t
tf

Btxch asj if publication did not withstand, the court would not ^ito««^
** hesitate to admit. Now the grounds on which in point of cV^o^^
** law publication is a bar are, first, the fear of subornation and . ' —
the danger of prolongation of the suit. Here are fresh fietcts ^^^ta.
to be proved, and, I presume, fresh witnesses to be examined*
'' It is not proposed to supply the defect of the proof of the
former pleas, but to establish facts having no existence at the
time of the libel given in." Afterwards he added, ** I owe it
to my own conscience to give the cause every instruction I
can ; and I think this allegation, and the evidence produced
upon it will contribute to throw great light on the real state
" of the facts, and I am convinced will materially serve the
" interests of truth. I, therefore, am clearly of opinion that I Ezhibito.
" ought -to receive the allegation." So also with exhibits, in the
case o{ Jones v. Jones ^ 1 Hag.254f, it was proposed to plead four
letters after publication ; and upon an affidavit that the facts
were noviter perventa^ and that the depositions had not been
seen, they were admitted to proof, and ric/. the note to that case.
The rule on this subject is thus given by Oughton^ tii. 81, #. 5.
'' Unless the opposite party shall show, that the party applying
" to have these fresh witnesses admitted ^ habuisse notitiam eel
*' * scientiam saUem probabilem* of such witnesses before the
** publication of the evidence of his former witnesses, or that
** the cause in which such application is made was of that nature
'' that witnesses recently heard of could not be admitted, the
*' judge ought to admit them, if present, or decree a compulsory
'' for their attendance, if absent. But before their admission
the party applying must swear, that the evidence of such wit-
nesses is necessary, and that lately, and not till after the pub-
lication, it first cam^ to his knowledge that such witnesses
would be necessary to him." Oughton^ tit. 81 b\ 83 6;
1 Hag. 254.

In tit. 83, Oughton proceeds to state what are grounds for
presuming, that the party had ** notitiam pel scientiam saltern
'' probabilenk* of these witnesses, especially in testamentary and
defamation causes ; and adds that, if such grounds exist in the
particular case, the party applying should purge himself from
the vehement presumption of knowledge by an additional oath,
explaining how and why it was that he did not produce such
witnesses on his original libel.

In practice it would seem that, independently of the oath
or affidavit of the party, the materiality of the newly-
discovered evidence will appear upon the allegation containing
the facts proposed to be proved by the witnesses ; and the court
can also generally form a reasonable opinion as to whether the
facts were likely to be '^ noviter pervenia ;" and vid. 2 Hag.
App. 136, 143.

406 €bibtm.

^i«r°^i- ^°^ '^ '' "^^ allowed to re-eumine intnesset after pnlifica-
ciSm!^ ^ ^^^9 ^^ ^ ^^^® sugffestioti that the examuier had misconstmed

the allegation, and had improperly rejected evidence. In the

nl!io"S case of Ingram v. Wyatt, 1 Hag. 101, the court said, ''An
former wit- '^ application that a witness after publication shall be re-exa-
ttMMf. '* mined stands on very different grounds from a similar appli-
'* cation before publication, and is open to far stronger objec-
'^ tions. The court would require very stringent matter before
" it would set such a precedent ; for under any circomstances
'' and in any mode it would be a most dangerous experiment,
** leading to subornation and improper extension of evidence.**
The court suggested that, if it were essential to justice, it
would direct a vivA voce examination in open court.

With regard to the reproduction of a witness, generally to
be re-examined in chief, or to be cross-examined on interrogato-
ries before publication, vid. ante^ 387.
Numbtr A Single witness is not sufficient in the civil law $ and the

rtqoiiitf, spiritualcourt will not allow of one witness only, but there must
be two witnesses at the least. Vin. Abr. Evid. Z ; Oibs. Cod.
1054; Ayliffe in his Parergon, 641, writes thus: "Regularly
'^ single witnesses make no proof, according to the civil and
** canon law, nor yet so much as half proof by those laws ; unless
'* such witnesses' deposition be given oh the principal fact or
" matter in controversy."

The inconvenience attending the rule of requiring a cer-
tain number of witnesses, or a defined amount of evidence, to
make full proof, has produced great departures from that prin-
ciple in manv systems of law. In the ecclesiastical courts of
this country it is sufficient that the two witnesses should speak
severally to different facts in the case. 1 Hag. Con. 461 ;
S Phill. 106. One witness, anid circumstances in corroboration,
are all that the law requires in cases of adultery. Kenrick v.
Kenrick^ 4 Hag. 136; and vid. ib. 314. Therefore, in cases of
adultery, proof by two witnesses to distinct acts is held suflicient
to found a sentence of divorce. So also two witnesses speaking
to distinct acts of defamation or of brawling are sufficient ; ib. ;
that is, if the proceeding is under the old ecclesiastical
law ; but if the proceeding be under the stat. 5^6 Ed. 6, c. 4,
which requires two witnesses, the court, it seems, would feel
some difficulty in deciding that the words in a statute could
be satisfied in the same way. 1 Ha^. Con. 189.

In the case of the goods of Mary Keeton, it appeared that the
deceased, a spinster, died in August 1831. She left about £800,
and a will written and subscribed by herself; there was no wit-
ness to it. Mr. Lawford, a solicitor, and her intimate acquaint-
ance could alone verify her handwriting. But her sister, execu-
trix, sole next of kin, and in distribution, also deposing th^t from

^fiieme^ 407

the dectased's retired habito and infrequency of wiitinf , no leeond Wita<

could be supplied. The court said that the affidavit of Numbw
Mr, Lawfordis very satisfactory, and the statement of the sister, ^^^i"^-
who would be more benefitted by an intestacy, may be taken in
proof of the handwriting as equal to a second affidavit.
^Hag. 209.

In a case where a witness, notwithstanding he had attested a
will, deposed to the testator*s incapacity, and it was strongly urged
that, therefore, no credit could be given to him, and tnat as he
could not therefore be considered as a witness in the cause, there
woald only be one witness in support of the will. Sir G.
Z^ee said, he was a good witness for every other part of the de-
position, except where he contradicted his own attestation ; and
decreed for the will. 2 Lee^ 528. So in Bradley v. RicardOf
SBhig. 57, it was held, that the evidence of a witness is not wholly
to be repudiated, because the party calling him, calls witnesses
to contradict him as to particular parts of his testimony, andvid.
1 Bl. Bep. 365.

Although the rule of the ecclesiastical courts is to proceed Extmina-
upon written, and opt on vivd voce testimony, it has neverthe- tioo,privatc
less the power, if the peculiar circumstances of a case should
appear to require it; of resorting to this latter mode of receiving
eiridence* Thus in a case, where after publication the court
refused to allow witnesses to be re-examined in the ordinary
mode, on a suggestion that the examiner, from a misconstruction
of the plea, had improperly rejected evidence, the court. Sir
J. NichoUf said ** Should therefore the court, against whom the
'' cause is never concluded, find, at the hearing, that the facts
** are so very nicely balanced, that its decision may turn upon
** such evidence as loose declarations made after dinner, it will
" not be precluded from admitting them, if necessary and essen-
'' tial to justice. But in that case I should probably adopt
** a course not very usual, but not altogether unprecedented, of
** issuing a monition to the witness, to appear and undergo a
'' vied voce examination in open court, wnen his answers might

be taken down by the registrar ; that would be the only safe

way, and which the court is fully competent to adopt.'* Ingram
V. Wyatt, 1 Hc^. 105. In Griffiths v. Anthony, 5 Ad. ^ EU.
QStSi one objection in prohibition seems to have been that the
consistory court took evidence vivA voee^ but no opinion was
given on that point, the prohibition having been granted on
another grounoL

In Jones v. Yamoldj 2 Lee, 568, the court below examined
witnesses to a marriage vied voce ; the party opposing the mar-
riage gave in an allegation exceptive. The judge below was of
opinion that the allegation came too late, the evidence taken vivd
voce being known. The court said, ** that having examined the
*' witnesses below vivd voce, as soon as they were produced, the

^d fSbdittut.

wjfneaaei M B|]^natlt had 110 otiportunities of excepting before puMiettCloii*''
ibEUDiM- There were other objections^ and the appeal was pronounoeil
ii#Dpri?it«« for generally. It cannot be concluded irom this case thai tbe
mere fact of a tivd voce examination is irregular and a ground #f
appeal ; the objection here beincr that there was no opportunity
for an exceptive allegation ; the case by no means decides
that if notice had been given of the witness, and an oppoftu-
nity given to except ; or an exceptive allegation had been ac«
tually offered, that the mode of examination was illegal aod
an appealable grievance.
Compel- If the answer of a witness be objected to for insufficiency, the

labie to court will decree a monition against him, to answer the interro^
^°'^®'- gatory explicitly ; and will compel him to do so. 1 Add* 358;
i Add. 468. Where a third attesting witness could not be
found, and the executor prayed publication, being content to
Attesting, rest his case on the case as it then stood ; the court mnted the
production prayer for publication, saying, that if the witness should be found
^'* the party opposing the wUl would be entitled to a monition

against him to undergo a cross-examination. 1 Hag. 70. In
Cartwrighi v. Cartwf?ght, 1 PkiU. 94, Sir J. NickoU said, '' If
" you have a mind to cross-examine an attesting witness you
*' may call upon the other party to produce him to be exft-
'' mined on interrogatories ; a party must produce a witness to
" submit to interrogatories when called on, though they taee
** not bound to do it without."
Compellt- ^^ A witness upon cross-examination is compellable, if re-
bie to DTo- Quired, to produce all written communications made to him,
duce docu- ihe witness, by the solicitor or agent of the produeent, rela-
"'^^' tive to his examination as a witness in the cause. S Add. 468.
And is bound to answer explicitly, whether he is or is not
responsible for the expenses of the suit. 1 Add. 35S. But a
witness is not bound to answer a question that may lead to cri-
minate or even degrade him. 4fHag> 155.

In one case, Sir G. Lee allowed the handwriting of the at-
testing witness to a will, who though alive was in a country with
which this country was at war, to be proved ; the party making
the application specifying the time when the witness wentabroad,
that it might appear whether it was probable he was sent
abroad to avoid cross-examination. 2 Lee, 5S0.
Examined It does not seem to be the ordinary course of the ecclesiastical
deb€H9e»Mi. court to allow witucsses to be examined de bene esse, unleas
some special cause arise ; thus where an application was made
on affidavit stating one witness to be seventy-eight and the other
seventy-nine, but did not say that either was ill and in danger
of death, the application was refused. 1 Lee, 568, and vid.
9 Lee, ^22,. But in the case of Herbert v. Herbert, 2 Hag.
Con. 263, which was a suit for the restoration of conjugal rights
and to establish a foreign marriage, Lord Stowell peitnitted

(Sbi^ntt. 409

^ilneBies residing in a foreign country to be examined on the WhasiMi.
Hbel de bene esse, during tlie long vacation^ though the de- ^^^^^
fieaidant had not appeared ; and before the libel had been ad- dtben9m$,
Biitted, OB the ground that there was an attempt on the part of
the defendant to delay the proceedings; on appeal to the arches
on this pointy Sir J. riichoU, said '* The evidence is to be ad-
** mitted provisionally and subject to all lesal objections; if the
**■ party proceeded against can show any nullities or irregularities
^ in the examination of the witnesses, if he can shew the libel to,
** be inadmissible, it will be open to him to do it ; he may object
*' to the admission of the libel, to the jurisdiction, to all the pro-
*' oeeding. ItisstiUopen to theoourt to suppress all the depositions
*^ hereafter ; and if there be any opportunity of re<«xamininff
*' the witnesses, they may be re-examined; if the defendant had
*' prayed that without prejudice to his protest, he might have
*/ interrogated the witnesses, he might have administered inter-
'' rogatories to them ;'* adding in conclusion, '' the court is never
*' to forget that this is a suit to establish a marriage/' 2 PhiU,
448. In a. prior case o{ Robins v. JVolseley, before Sir G. Lee,
2 Le€f 140, which was a suit for divorce for adultery ; the
defendant denied the marriage, and therefore that not beinff the
wife of the plaintiff he had no right to bring a suit against her ;
to this plea in bar the plaintiff pleaded in contradiction, and the
defendant gave in an allegation in answer ; and as it appeared,
that these preliminary proceedings on the marriage would post-
pone the suit for adultery, an application was made by the plain-
tiff to be allowed to examine his witnesses in that suit de bene
esse ; on an aflSdavit that one witness in the army might be sent
abroad, and that other witnesses might die ; but the court rejected
the application, because either the witnesses miist be examined ex
parte, which would be unjust and deprive the other party of her
defence ; or if she put interrogatories to her witnesses she would
be forced into a suit while it was sub judiee, whether she were
subject to such suit or not.

If a question of foreign law arise, it is necessary that the law Foreign
itself shall be proved ; if the law be written, a copy authenticated, l*w.
or at least examined by some one competent to speak to its
accuracy should be produced ; 3 Stark. 178, if the law be un-
written, then it must be proved by some professor or practiser of
such law. Pictans case, 24 How. St. Trials, 494 ; 3 East, 380;
4 Canm. 155 ; sed vid. SEsp. 58 ',6Ad.^ EU. 185 ; 3 Fes. ^ B.
99. It has been said by the highest authority that it is no ob- NMemnly

i'ection to the free use of the answers of professors of difierent onoAtb.
aw, that the answers were not upon oath ; in the particular case,
which was a Jewish marriage, the question had been addressed
to the tribunal of Betbdin ; per Lord Stowell in Lindo v. Beli"
sario, I Hag. Con. 249, the learned lord added, '' It is in the
'' experience of all of us that such information is usually received

410

Withtm*

Foreign
law.

Identity.

Confronta-
tion.

** in this form ; and I learn, on inquiryi from those who are well
*' Tersed in the practice of the court of chancery, that it is the
** usual practice of that court to receive information on foreim
" law in the same manner ; not on oath, but on a reliance in the
** honour and integrity of the professors of that law."

It was once contended that a peer, being a witness, need not
be sworn, but the distinction was not admitted. S Mod, 99; Vin.
Abr. Evid. X. a. In exparte Cridland^ 3 Vea. % B. 99, Lord
Eldon considered that if the object of the introduction of foreign
law is to affect proceedings in England, the foreign law must
be proved as a fact ; and no exception seems to be made in
the cases in the courts of common law dispensing with an oath
in such a case ; and in America, it is expressly stated by a
learned writer. Professor Story, that such evidence is given on
oath ; indeed, if the honour and integrity of the professors of
the law is to be considered as equivalent to the sanctity and
obligation of an oath, it seems difficult to deny the same latitude
to physicians, surgeons, &c., the broad principle seems to be
** in jftdieio non ereditur nisi juratis/* 2 Add. 391. ApUffe,
Parer. 539, savs, " that it is provided both by the civil and
** canon law, that all witnesses should be sworn before they
** give their depositions, in what rank or station of honour soever
" thev appear."

Where a doubt exists as to identity, the partvy with regard
to whom the doubt exists, may be cited, in order to be confronted ;
but a decree of confrontation is an assistance to the proof only
to be applied for on special grounds* In Searle v. Pricey 2
Hag, Con. 188. The partv cited appeared in obedience to the
mandate of the court, but tne only evidence adduced on the de-
cree was that of two witnesses who knew her in the name of her
first husband ; (the suit being for nullity of a second marriage
by reason of a former one) and who proved that she acknow-
ledged herself to be the party in the suit ; so that the case rested
partly on her acknowledgment, which was held to be insufficient ;
afterwards three witnessesi two of whom deposed to the first mar-
riage, and one to the second, and all of whom had an opportunity
of seeing her on being examined at a police office on a charge
of bigamy, concurred in identifying her. The court in the first
instance observed, that thoush the indulgence of a decree of con-
firontation had been granted, the result was not such as the
court was entitled to expect. It was necessarv that the wiie
should be confi'onted with a witness who knew her in both cha-
racters ; or with two or more at the same time, who could sepa-
i«tely identify her in each. The court proceeded to say, *' The
acknowledgment, however, by the party produced that she was
the party in the cause, had been much relied on. Ac-
<' knowledgment, indeed, is a term in such a case improperly ap-
plied, as it is no acknowledgment at all, unless the par^ is

<«

<toifetltr^ 4 1 1

** othtrwiie omved to be the party in the cause ; and ^ithotit ^^^^^y-
" such pMof, the acknowledgment Is open to the suspicion of CoofroQtt*
*' haying been coUusiyely made and by another than the real ^^^
party. Howeveri as the party has subsequently been seen by
witnesses who connected her with each marriage, the chain of
evidence is complete, and sentence of nullity may be signed."
It seems not unusual to allow the conclusion of the cause to be
rescinded in order to admit evidence of identity. 2 Hag. 122 ;
ib. Avp. 144, 146.

Wnere a question arises upon the presumption whether a will Declare*
was revoked by marriage and the birth of a child; such presurap- tions.
tion, mav, it seems be rebutted by evidence of declarations by the
deceased* In Calder v. Caldery cited in Johnston v. Johnston,
1 PAiiL 472. Sir W. Wynne said, " that marriage and birth of
** children was a presumptive revocation, but the contrary may be
'' shewn and the presumption be rebutted ; declarations of the de-
*' ceased are admissible not to revoke a will but to explain it,
** and in Johnston v. Johnston, supra, on the same point, Sir J.
Nichott said, '* The evidence of circumstances has been ad-
** mitted in all courts and in all cases. In this court parol
** declarations have been always admitted in concurrence with
" other evidence." Sedvide 3 Hag. 166; 4 Dow. P. C. 65;
IS Ves.SOl, 313; 18 Ves. 148; 1 PhiU. 3S8. But, as said
by the same learned judge in Colvin v. Fraser, 2 Hag. 844.
** Declarations alone, unsupported by circumstances, strongly
'' marking their sincerity and confirming their probability, would
*' of themselves be very unsafe and insufficient to repel the pre-
" sumption of law. All declarations, where you are to rely upon
" the exact words of a casual expression, are liable to be mis-
** apprehended, to be misrecollected, to be misrepresented ; a
slight bias in the mind of the hearer will render the apprehen-
sion and the recollection incorrect, the slightest alteration of
*' the expression by a word, or almost a letter may vary the
'' wholeimport of the declarations." Andmcfel PhM. 17,367,
404; 2 Hag. 167. But though the court can seldom rely on
single declarations as evidence of intention, yet the uniform
tenor of declarations to confidential friends is of considerable
weight 3 PhUL 187; 2 Hag. 367. But the circumstance of
affisction for a particular object, and declarations that she
would be benefited by his death, though of some weight in an
inquiry on the publication of a will, yet weigh nothing as amount-
ing to the revocation of an uncancelled will, the factum of which
cannot be unpeacbed. 1 Phitt. 838.

In order to prove the age of a party, entries in a faiil^ily Bible Entries in
are constantly admitted. 3 PhUl. 4@* And in one case an famiij
entry was admitted in a BiUe, which was not printed till eight ^^l«*
years after the supposed birth, and was a copy of an original

412 (thdttmt.

entry supposed to have been made by the father ; the court i
however, said, " that this was going one step further than it
** recollected to have gone before." 2 PhiU, 346.
Letiera td- In the ecclesiastical courts, it is usual to plead that a party
dressed to whose sanity is in question, was treated as a man of sound
onTmieL ^^^^9 ^"^ letters addressed to him, are held legitimate evidence
tioQof to supprt such plea ; if there be satisfactory proof that the
■anitjr. writer knew the testator, and that the letters came from a
proper custody. 8 Hag. 507, 609, 790. In Wright v. Doe
dem, Tatham, 7 Ad. ^ Ell. 389. Parke, J., giving his judg-
ment in the exchequer chamber against the reception of letters
for such a purpose said, *^ It is true that evidence of thb
"description has been received in the ecclesiastical courts.
** But their rules of evidence are not in all respects the same as
** ours ; some greater laxity may be permitted in a court which
*' adjudicates both on the law and the fact, and may be more
'* safely trusted with the consideration of such evidence, than a
''jury ; and I would observe also, that in no instance has the
** propriety of the reception of it, even in the spiritual courts,
** been confirmed by the court of delegates." And Tituial, C. J.,
in the same case, said, *' Evidence of this description mav have
** been admissible in questions relating to the status of mind
** or competency of a testator before ecclesiastical tribunals ;
" those courts, may, perhaps, and not improperly, have al-
'' lowed evidence of the manner in which a person has been
treated by his friends and others, without inquiring whether
those modes of treatment came home to the understanding of
^* the testator. But in an ecclesiastical court, the same persona
** are judges both of the law and the fact ; and their experience
*' and sagacity may be sufficient to prevent any injurious con-
** sequences from a class of evidence which approaches so closely
" to, if it is not in fact, mere opinion of the witness, by giving
** such testimony no more weight than it really deserves. But
'* our rules of evidence are cdculated for trials before popular
*' tribunals ; and one of the first objects of the law of evidenoe
^* in those courts is to exclude the admission of any evidence
" which may, by possibility, mislead the understanding of the jury.**
Compari- I" Machin v. Tyndal^ 2 Lee, 335. The genuineness of the
BOQof^od- handwriting of a will being contested ; receipts in the band-
writaog. writing of the testator, written three years before the date of
the will, were allowed to be pleaded, as shewing a diflferenoe in
the writing and manner of spelling. They were allowed to be
pleaded, on the ground that such exhibits had always been re-
ceived in evidence.

In Spear v. Bone, however, cited in Doe dem. Mudd v. Sucker-
more, 5 Ad. ^ Ell. 709 ; which was a case between the next of
kin and the executors of a will ; it appeared that there had been

€t

€i
€€

€4

atlerations on the face of the will ; and a third party, who had Htod-wri-
been executor as the will originally stood, intervened ; and the ^^^ 2*
allegation which he gave in, . raised the question of com- ^^^^ of
parison of handwriting before the delegates: the allegation skill.
which was given in, stated, ** that upon the examination of the
said will by writing engravers and others accustomed ac-
curately to examine the formation of the letters of different
handwriting, &c., it manifestly appears that the words and
'' letters of the alteration aforesaid are not the handwriting of
the person who wrote the will, but that the same, though in
many respects very like the writing of the other parts of the
*' will, bear the appearance of having been touched with the
pen a second time, as if done by some one endeavouring
to copy or imitate the handwriting of another^ person.*' This
alleffation was directed by the delegates to be reformed thus :
** That upon an examination of the said will, it appears that
'' the words and letters of the allegation aforesaid, are not of
the handwriting of the person who wrote the will, but are in
a feigned handwriting ; and that the same is weU known to
persons skilled in handwriting. And such is now the proper
mode of pleading.'* From this it appears, that by modem
practice in the ecclesiastical courts, they have narrowed the
limits of evidence upon this head, and assimilated their rules to
those of the common law. In Goodtitle dem. Revett v. Braham^
4 T. R. 497 ; R. v. Cator, 4 Esp. 117, and Birch v. Crewe,
cited in Gumey v. Langlands, 5 B. ^ A. 330, the evidence of
expert persons was admitted to say whether a signature was
flenuine or imitated; but in the latter case, such evidence
baviag been refused at the trial, great doubt was expressed
whether such evidence was admissible, and if admitted, it
was considered entitled to no weight. Per Lord Denman,
6 Ad. ^ EU. 751.

The same rule with regard to confidential communications Qo^gj^,^
preyaik in the ecclesiastical courts as at common law ; but as Ual com-
said by the court in Mosb v. Brander, 1 Phill. 266 ; the pri- munict-
vilege of not answering to facts communicated to him confi- ^^'^
dentially by his client, is the privilege, not of the attorney but
of the client : and if the client waives the privilege the at-
torney cannot refuse to answer.

In Mortimer v. Mortimer, 2 Hag. Con. 316, Lord StoweU Coofei.
said, '^ I need not observe that confession generally ranks high, "wb^
^ or I should say highest in the scale of evidence. What is
" taken, pro confesso, is taken as indubitable truth : The plea
" of ** guilty'* by the party accused, shuts out all further in-
'' quiry* ** Habemus conptentem reum,* is demonstration unless
'' indirect motives can be assigned to it."

414

Cf)<fteiKe*

Confef-
•ioos.

Felonious
acts.

Vcidicts.

In cases of divorce by reason of adultery, the court k pro«
hibited by Canon 105, from acting upon confession alone, for
fear of collusion. ** Divorce" ante. But in a suit for the res-
titution of conjugal rights, where the husband pleads the
adultery of the wife, in bar of her remedy, there seems to be
no such danger; in such a case, therefore, as it is not ne-
cessary to prove the specific act of adultery, at any certain time
or place, modo et formd^ loco et tempore^ it is equally unne-
cessary that a confession should apply to a particular time and
place. The confession, if general, will apply to all times and
places at which it might appear probable in proof that the fact
might have taken place, lb. 9^.

Although it is true that the ecclesiastical court cannot inquire
criminally into cases which are cognizable at the common
law, yet it is very frequent to admit a roct criminal in itself to be

J^leaded as a necessary part of the evidence in a civil suit ; there-
ore in a cause of divorce where the libel charffed the woman
with cohabiting in an adulterous intercourse, and also pleaded a
pretended marriage with the adulterer, it was objected that this
marriage, being bigamy, and a felonious act, could not be pleaded,
and of course not proved in the ecclesiastical court. But tiie court
said, ** The marriage, in the present case, though amounting, if
'' criminally prosecuted, to what the law describes as a felony,
** will afford a strong presumption, and go in corroboration of the
^* other evidence that may be offered as to the charge of adul-
** tery. It is tlierefore proper to be pleaded." Naih v. Nashf
1 Hag. Con. 140.

So in cases of nullity of marriage by reason of a former mar-
riage, proof of the first marriage, which is part of the proof,
necessarily involves the proof of a felony; ib, but in this case,
if a party have been convicted of bigamy at common law, he
may, in a suit of nullity, controvert such verdict, and show the
first marriage to have been void ; S Add. 480. So also, where
the parties were married, and signed the entry of marriage by
fictitious names, which it is felony to do by % Qeo. S, c. 83, 1. 16*
Yet that consideration was held not to bar the right of a party
to proceed to a sentence of nullity in a civil suit, though it would
have subjected the paKy to a criminal prosecution, lb.

As a medium of proof therefore, the ecclesiastical court is not
precluded from inquiry into felonious acts, but they may not be
the object of proof ; thus, where a clergvman is sued in order to
be deprived, they must receive the verdict of the criminal court
and build their deposition on that. lb.

For the purpose, as it is said, of shewing that there has been
no collusion between the husband and the ^ulterer, verdicts ob-
tained by the former against the latter, are commonly admitted in

Cildimtr. 415

the ecdeaiastical courU; it is diflBcult, however, to anderstand the Ve"^'ct«>
principle upon which they were originally admitted, or the
object for which they are still produced ; the wife is no party
nor privy to the suit between the husband and the adulterer, and
therefore, her suit in the ecclesiastical court ought not to be pre-
judiced by a verdict in their suit in a court of common law.
Ehges Y.Elwes, 1 Hag. Can. SOO; 2ib.l; 2 Hag. 165. But
it is now the usual practice to admit such verdicts ; 8 Hag. 268 ;
although in 1736, in Dinely v. Dinely^ before the delegates, the
court refused to admit such verdict. But although the proof of
such a verdict may be a circumstance to negative coUusion, and
in this light only is it admitted, the absence of such proof leads
to no inference per se, though as connected with other facts,
it may tend to strengthen a suspicion of coUusipn.

So also in trying the sanity of a testator, a verdict for the
plaintiff* at law, but who was defendant in the spiritual court,
shewing the legal intestacy of the testator, on tne ground of
insanity, was allowed to be pleaded. 2 Add. Ill, 1 IS.

It is apprehended that, as a general rule, a party must plead Writtando-
written aoeuments, in order to entitle himself to give them in c«"n«nu.
evidence ; 1 Lee^ 346 ; he need not however do more than set
forth their substance and effect in his pleadings; but as he must,
in proving them, exhibit the whole document before the register,
the opposite party may, on examination, have an opportunity of
extracting any thing which makes for his own case. Where a
document b pleaded in the libel, it must be exhibited before
contestation of suit, OugMon, tit. 104>, ii. 6; in order that a party
may deliberate whether he will contest the cause or relinquish
it ; instruments may generally be propounded at any time up
to the condusion of the cause, unless the judge has appointed
some time, as is usual in those courts to propound all instruments.
Ougiion, ib. n. c. 2. But instruments noviter pervenia, Oughion
says, may be produced even after the conclusion. Ib. c. 3. In
Jones V. JaneSf 1 Hag. 254, upon an application to admit an
allegation after publication, containing certain letters written by
the opposite party, upon an affidavit that they were noviter
perventa, and that the depositions had not been seen, the
court, having made some observations on the general practice
of admitting evidence noviter perventa^ said, '* But as this alle-
** gation is merely for the purpose of introducing exhibits, letters
** written by the adverse party, I think I am bound to allow it
" to be brought in. The most summary way of making these
'' letters evidence will be the best. They may possibly be ad-
*' mitted, even without answers, in acts of court ; at all events, in

answers explanatory of their meaning and of the circumstances

under whicii they were written, unless, indeed, their audien-

416

(Sbibmt.

Written do-
cvmentt.

In custody
of third
pAfties*

Incottody
of oppo-
nent.

" ticity and genuineness be denied, and even then evidence of
" handwriting alone would be gone into/*

If documents be in the custody of third parties^ a monition
may be obtained for such parties to exhibit them. The form
and style of such monition is given in OughtoHy iiL 109 ; 2 Add.
470. Such monition, it is conceived, should be served person-
ally on the party; and that by analogy to the course pursued in
case of a witness not obeying a compulsory, such party would
be pronounced contumacious if he did not obey the monition.
1 Hag. 34.

If a letter be in the possession of his opponent, a party may
plead either passages from or the contents of the letter ; and
may substantiate them in the best way he can, leaving it to the
other party to produce the letter or not, as may be deemed
advisable. S Hag. 317. In a suit for reparation, by reason of
adulteiy and cruelty, by a wife against her husband^ it was
pleaded that ** he sent love letters and notes of a very amatory
'* description** to a supposed mistress. The letters were not
annexed to the Ubel, nor was it pleaded that they were not in
the possession and control of the wife. The court said, " The
objection to the libel is, that it pleads a correspondence be-
tween the defendant and the party with whom he is charged
with having committed adultery. The general character of
that correspondence is set forth, but none of the letters exhi-
bited. The libel does not allege these letters to be in the
husband's possession, nor that any one has seen them and is
acquainted with their contents ; though somebody, it may be
' presumed, would be examined to depose in support of this
' article. It is, I apprehend, a settled rule that a party cannot
' plead the contents of an instrument, unless it is destroved or
' m the possession of the adverse party. If the article had
' pleaded that the letters were in the husband's possession, or
' that any one had seen them, and could identify the hand-
' writing, I should have allowed the description of the letters
' to stand and have admitted the article. But in the absence of
' all such averments I must direct the article to be reformed, by
' striking out the epithets attached to the letters (the words in
^ italics) ; and I am the more inclined to pursue that course,
' because, if it can be shown that the husband kept up a con-
' stant correspondence with this woman, the wife will have all the
' effect of that proof that the article in its present shape could
* supply.**

By Rule IS of the Rules of HiL Term, Feb. 1830, it is di-
rected that, where any exhibits are pleaded in supply of proof,
the proctor of the adverse party shall, on the day on which the
plea is admitted, declare whether he confesses or denies the

©biDitnt^ 417

handwriting, as pleaded, of sudi exhibits; and if the hand- Writtemlo.

writing be denied and afterwards proved, the costs occasioned ^V""5"**: —
by the proof shall be paid by the party who denied the hand-
writing, unless the court shall think fit to direct otherwise.
1 Hag. App. xvi.

€)ctf)anjse.

^N exchange of benefices is made by first procuring a license
fironfi the ordinary to treat of an exchange ; and it is effected by .
an instrument in writing, whereby the parties agree to exchange
their benefices, both being spiritual; and, in order thereunto, do
resign them into the hands of the ordinary. Such exchange
being executed, the resignations are good. Gib^. Cod, 8G8 ;
2 iRqo. 74 6 ; Hob. 152.

Permutations, or exchanges, are where two clergymen agree to
exchange their livings; and, after they have made such agreement
and put it in writing, they make mutual resignations on condi-
tion in the form following, Degge, 167; and he then sets out the
condition. But if one be instituted and inducted, and the other
only is instituted, and dies, or refuses to finish ; in this case,
though they have proceeded so far, yet the resignation and all
that followed upon it shall be void ; and both, if living, may
return to their former benefices on the foot of former possession ;
or, if one die before he is inducted, and after the induction of
the other, this induction and all that went before shall be void,
because the exchange was not fully executed during the lives of
the parties. Gibs. Cod. 868. And this follows the common
law ; for at the common law, if a man exchange lands, and be
evicted from the lands he receives in exchange he may repair to
hb own lands and re-enter upon them. Vegge^ 168; Perk.
Exchange.

By 31 EUz. c. 6, s. 8, any incumbent corruptly resigning or
exchanging; or directly or indirectly corruptly taking any
money or benefit in respect of the resigning or exchanging ;
both the giver and taker shall lose double the sum taken, half
to the queen and half to the informer.

By some recent acts of parliament incumbents are enabled,
with the consent of the bishop and patron, to exchange portions PnteDt
of their glebe, &c. ; the bishop having first satisfied himself, by mode of
issuing a commission, that the exchange will promote the per- ^^^^^°S^
manent advantage or convenience of the incumbent.

The powers given, the mode in which they are to be
carried into execution^ and the general consequences attending*

B E

418

^cl)ansr*

Pre«efrt
mode of
exchanges.

65 Geo. 3,
c. 147.

such exchange will be fi)und in the following abstract of the provi-
sions of the 55 Geo. 3, r. 147 ; 56 Geo. 3, c. 5S ; I Geo. 4, c. 6,
and 6 Geo. 4, c. 8.

The 55 Geo. 3, c. 147, after reciting^ that, in divers
ecclesiastical benefices, perpetual curacies, and parochial cha-
pelrieSf the glebe lands, or some part or parts thereof, lie at a
distance from, and are inconvenient to be occupied with, the
parsonage or glebe houses ; and the parsonage or glebe houses
are mean and inconvenient, and that it would tend to the comfort
and accommodation, and thereby promote the residence of the
incumbents, if the glebe lands and parsonages could be by law
exchanged for other lands of greater value or more conveniently
situated, and for other or more convenient houses; Enacts by
s. 1, that it shall be lawful for any parson, vicar, &c. by deed,
indented with the consent of the patron and bishop, to grant
and convey the parsonage or glebe house, &c. glebe lands, and
anv pastures, feedings^ or rights of common, rights of way, &c«
belonging to any such benefices, &c. in lieu of and in exchange
for, any house, &c. and any lands, or any or either of them,
** whether lyinff within the foca/ limits of such benefice, &c/ or
not, but so as that the same be situate " conveniently for actual
residence or occupation by the incumbent thereof, the same
also being of greater value or more conveniently situated than
the premises so to be given in exchange, and being of free-
hold tenure, or being of copyhold, of inheritance, or for life,
or lives holden of any manor belonging to the said benefice. This
enactment is extended by 6 Geo. 4, c. 8, 8. 3, to manors not be-
longing to such benefices ; the lands taken by the parson to become
freehold, and the land given to become copyhold ; to be held in
the same manner and by the same services as that given up.**
There then follows an enactment enabling the parson^ vicar, &c.
to accept and take in exchange any other house, lands, &c.; and
that the lands so taken, &c. shall become and be of freehold tenure.

The 55 Geo. 3, c. 147, provides further, that nothing shall
authoriase the granting by one or several incumbents, or at one
time, or at diflerent times, any greater quantity than thirty
acres, (since extended by 6 Geo. 4, c. 8, s. & to any number of
acres.) And provides also, that where the exchange shall be
made with any owner having a less estate or interest than fee-
simple ; or with a corporation or person under any legal disability,
the parsonage house or lands, &c. so taken in exchange, shall
be of equal or not less value with the house and lai:^ds, &c. so
taken in exchange to such parson, vicar, &c.

By 55 Geo. 3, c. 147,#. 2. The lands to be given in exchange by
the parson, vicar, &c., unless otherwise agreed on, shall be either
subject to or exempt from tithes in the sam^ manner a^ the liinds
taken by the parsoni or vicar, &c. had beien before the exphaiige.

Sec 8. Providco that no incumbent shall be evicted from any ^.^* ^'
house^ lands, &c* taken by kirn in exchange ; but that any persons, ^! — Ll^
&c. having claim» shall recover the house, lands, &c given by
him in exchange ; in the same manner as he would nave re-
covered the lands taken by the incumbent, if the act had not
passed*

Seo. 10. Provides, that the consent of the patron and bishop
to every deed of exchange shaU be signified by their being made
parties to, and signing and sealing such deed, before it is signed
and sealed by the parson, vicar, &c. ; the signing and sealing of
the bishop and jpatron to be attested by two witnesses, '' in
*' which attestation it shall be expressed, that the deed waa
'* signed and sealed by the patron and bishop before the execu-
** tion thereof by such parson, vicar, Sid" By ^«. 17 ^ 1ft,
If the patron be under legal disability as infant, lunatic, &c.,
the guardian, committee, &c. may act for him; If the patronage
be in the crown, and the benefice above £20 in the king's books,
the first lord of the treasury ; if under X20, the lord chancellor ;
if in the duchy of Lancaster, the chancellor of the duchy ; to
signify their respective consents by executing the deed.

Sec. 1 L In cases of peculiars, the authorities and powers ^ven
to the bishop of the diocese, are to be exercised by the archbishop
or bishop to whom the same shall belong ; and not, except such
peculiar belong to some other person or corporation than sudi
bishops, to the bishop in whose diocese they may be locally
situate.

Sec. 12. Guardians, committees, &c. acting for persons un-^
der legal disability to act for themselves, enabled to exchange,
not exceeding twenty acres. The lands taken in exchange to
be settled to the same uses, &c., as those given in exchange.

Sec. 14. Six calendar months* (by 6 Geo. 4, c. 8, #• 8, limited
to three month's) notice, '' describing the particulars, ex-
tent, and. situation of the premises respectively to be given and
taken in exchange," shall be given for three successive weeks,
in some one and the same newspaper of, and in circulation in,
each county, wherein the premises so to be given and taken in
exchange, or any part thereof, are situate ; '* and also, by affix-
ing such notice in writing on a conspicuous part of the door
of the church or chapel of each parish or chapelry wherein
such premises, or any part thereof are situate, on three Sun-
days successively, whereon divine service shall be performed ;.
and shortly before the commencement of such service on each
Sunday in such church or chapel.**

Sec. 15 requires a map. or maps under an actual survey on oath
by some competent surveyor to be approved by the bishop^ pa-
ircn, and incumbent ^ ** of the whole or of such part or parts of
the lands to be respectively exchai^ed, as will enable the

K E 2

420 tfrrbanfff .

^197^*^' '^''^^P ^ ji^^S^ ^f ^h^ convenience and expediency of the
^' ' propoBed exchange ;*' every such valuation to include and dis-
tinctly specify the value of all timber and other trees growing
thereon, rights of common, and all mines, mineralsi quarries, and
all other rights, profits, and advantages.

Sec. 16 provides, that upon the bishop receiving the map and
valuation, he may issue a commission of inquiry, consisting of
not fewer than six persons ; three at least to be beneficed cler-
gymen actually resident in the neighbourhood of the benefice, &c.
where the exchange is to be effected ; and one to be a barrister
of at least three years standing, to be named by the senior
judge in the last preceding commission of nisi prius for
the county in which the benefice, &c., is situate. The re*
turn to the said commission is to be made and signed by a majo-
rity of the persons therein named after actual survey of the pre-
mises, with the map and valuation before them and not otherwise ^
and in no case shall any exchange be effected, unless the com*-
roission shall have been previously issued and returned ; and
unlesd the return to sucn commission shall certify that the
exchange is fit and proper to be made, and will promote the
fperroanent advantage or convenience of the said incumbent, in
the judgment of the persons making the return.
By 1 Geo* 4, e. 6, provides, that as Middlesex is not within
^^ any circuit, the barrister, to be named in any commission for that
"" county, may be named by the chief justice of the king's bench

or common pleas.

By 6 Geo, 4, c. 8, #. 1 , the barrister, named in any com-
mission in Lancaster or Durham, shall be named by the chief
justice or senior judge for the time being of the court of com-
mon pleas for the said counties palatine respectivelv.

By 55 Geo. S, c. 147, s. 20, the forms in the schedule to 17
Geo. S, c. 5S, 4r21 Geo, S, c. 66, are required to be used so far
as they are applicable. This provision was subaequently re-
pealed by 1 G. 4, e. 6, #. 2,
p«pont of By s. 19, 66 Geo, S, e, 147» one part of all deeds and instru-
ments to be made and executed, together with the map and
valuation, the commission of inquiry, and the return, are to be
deposited in the office of the registrar of the dioeeso, within
twelve calendar months next after the date or dates thereof, to be
perpetually kept and preserved. In cases of peculiars* in the
ofiice of the registrar of the peculiar. In all cases the registrar
is to give and sign a duplicate of such deposit, to be written on a
duplicate, or on any part of the said deeds, or some separate in-
strument either of paper or parchment.

Every such deed or instrument to be produced to any per-
son applying to inspArt it. An office cojpy of siich deed certified
by the registrar to be admissible in evidence.

Ten shining for the coimnission, and previous requisites (orer ^^^
and above the stamp duty, if any) ; five shulings for depositing and
certifying the deposit ; one shilling for each search ; and sixpence
per folio of seventy-two words for each certified copy over and
above stamp duty.

CjctommunieattDn.

Writ de excommunicato capiendo at coromon law.

By 5 JBUz. c. 23.
By 63 Geo. 3, c. 127.
Sentence of excommunication still to be passed.
Form of writ de eoniumaee capiendom

Jurisdiction, to appear.
To be directed to the right sheriff.
Objections to, how and when taken.
Court of chancery may gnnt amended writ.
Ecclesiastical court may grant fresh signiiicavit.
Party in custody not dischargeable under 48 Geo, 3| c. 123.
Escape.
Bail.
Action for illegal excommunication.

XHE common law writ, cfe excommunicato capiendo^ which Commoii
was the only mode of enforcing the sentence or decree of *"*^»^"^°'»
the spiritual court, before the 5 EUz, c. ^, directed the sheriff
to apprehend him who stood obstinately excommunicated.
According to Fitzherbert, if, within forty days after sentence of
excommunication had been published in the church, the of-
fender did not submit and abide by the sentence of the ec-
clesiastical court, the bishop might signify, t. e. certify such
contempt to the king in chancery ; upon which there issued
a writ to the sheriff of the county, called from the bishop's
writ, a "significavit" or from its effect, a writ de excommwiicato
capiendo^ and the sheriff thereupon took the offender and im-
prisoned him in the county gaol till he was reconciled to the
church, and such reconciliation certified by the bishop. F. iV.
B. 62.

The statute 5 EUm. c. 2S, recited that many ofifences be- 5 ^^^^
longing to the ecclesiastical jurisdiction, were often times un* c. 23.
punished for want of the due execution of the y/ntde excommv^
nicato capiendo, the great abuse whereof, as it should seem, had

422 ^commnti<rat(om

^ ^l** grown, for that the said writ was not returnable into any court
°' • that might have the judgment of the well executing the said writ
according to the contents thereof; but hitherto had been left
only to the discretion of the sheriffs and their deputies^ by
whose negligence the said writ was not executed upon the of-
fenders as it ought to be.

The 53d Geo. 3, e. 127, retained the name and form of a sen-
tence of excommunication, but changed the nature of the punish-
ment attached to it ; and in cases where it was used only as
compulsory process, changed the name of the process, but ex-

{>ressly retained the machinery proyided by the 5 Eliz. c* 23,
or carrying it into e;iecution. The 53 Ceo. 3, c. IS7, enacts,
*^iQ?*' ^* *^** "excommunication, together with all proceedings following
^' thereupon, shall in all cases, save those hereafter to be specified,

be discontinued throughout England ; that in all causes cog-
nisable in the ecclesiastical courts, when any person or persons
having been duly cited to appear in any ecclesiastical court, or
required to comply with the lawful orders or decrees, as well
final as interlocutory, of any such court, shall neglect or refuse
to appear ; or neglect or refuse to pay obedience to such lawful
orders or decrees ; or when any person or persons shall commit
a contempt in the face of such court ; no sentence of excom-
munication shall be given or pronounced, saving in the par-
ticular cases thereafter to be specified ; but, instead thereof, it
shall be lawful for the judges or judge who issued out the
citation, or whose lawful orders or decrees have not been
obeyed, or before whom such contempt in the face of the court
shall have been committed, to pronounce such person or per-
sons contumacious and in contempt, and withm ten days to
signify the same in the form annexed, to his majesty in chan-
cery, as hath heretofore been done in signifying excommunica-
tions ; and thereupon a writ de contumace capiendo in the form
(annexed in the scnedule) shall issue from the court of chancery,
directed to the same persons to whom the writs de excommunieiUo
cajnendo, have heretofore been directed ; and the same shall
be returnable, in like manner, as the writ de excommunicato
capiendo hath been by law returnable heretofore, and shall
have the same force and effect as the said writ ; and all rules
and regulations not altered, and by law applying to the Mid
writ, and the proceedings following thereupon, and particularly
the several provisions contained in a certain act, passed in the
fifth year of queen Elizabeth, intituled " An act for the due ex-
ecution of the writ, de excommunicato capiendo^ shall extend
and be applied to the said writ de contumace capiendo, and
the proceedings following thereupon, as if the same were
therein particularly repeated and enacted ; and the proper

tjx^mttmixatUnu 423

oflBeen of the said court of chaneery, are thereby authorized 53 Geo. 3,
and reottired to issue such writ cfe eontumace capiendo ac- ^' ^^^'
eordingly; and all sheriffs, gaolers, and other officers are
aothonzed and required to execute the same, by taking and
detaining the body of the person against whom the said writ
shall be directed ; and upon the due appearance of the party
to cited, and not having appeared as aforesaid ; or the obedience
of the party so cited, and not having obeyed as aforesaid; or
the due submission of the party so having committed a con-
tempt in the face of the court; the judges or judge of such ec-
clesiastical court shall pronounce such party absolved from the
contumacy and contempt aforesaid, and shall forthwith make
an order upon the sheriff^, gaoler, or other officer, in whose
custody he shall be, in the form to this act annexed, for dis-
charging such party out to custody ; and such sheriff, gaoler, or
other officer shall, on the said order being shewn to him, so soon
as such party shall have discharged the costs lawfully incurred
by such custody and contempt, forthwith discharge him.**

By #• 3. The effects and consequences of excommunication Ezcommv.
arising out of the cases excepted by s* S, are limited and provided nicatedper-
for thus. That no person who shall be pronounced excom- J^'J'n'Jpe'.
municate, shall incur any civil penalty or incapacity whatever nalty or in-
io consequence of such excommunication, save such imprison" capacity.
ment not eweeeding sia: months^ as the court pronouncing or imprison-
declaring such person excommunicate, shall direct ; and in such ^^^^ °^
case, the excommunication and the term of such imprisonment ^^X.
shall be signified or certified to his majesty in chancery, in the
same manner as excommunications have heretofore been sig-
nified ; and thereupon the writ de excommunicato capiendo,
shall issue, and the usual proceedings shall be had, and the
party taken into custody shall remain there for the term
directed ; or until he shall be absolved by the ecclesiastical
court.

By the above statute 53 Geo, 3, c. 1S7, therefore, excommuni-
cation was in fact abolished as a punishment ; but still there is
a saving of certain cases in which the sentence is retained,
that is to say, in definitive sentences or interlocutory, de-
crees, having the force of definitive sentences pronounced
as spiritual censures for offences of ecclesiastical cognizance.
In such cases, therefore, if sentence of excommunication be
pronounced, the form of the writ issued upon the significavH, will
still, it is conceived, be de excommunicato capiendo; but in those
cases the punishment is altered, six months* imprisonment being
now the only consequence attaching to such sentence of excommu-
nication. Before the above statute, it was doubtful whether a
party could sue who had incurred excommunication, and if pro-

421

(^tommmitatioiu

53 Geo. Z,
c. 127.

Sentence of
excommu-
nication
Btill to be
puaed.

Where no
sentence.

5 Eliz.
C.23.

duced as a witness, it was necessary that be should be absolved
ad testificandum. 1 Lee,394f\ 2 Hag. Con. 999; anie,3Bl^

Formerly excommunication was divided into the greater and
the less ; by the latter, a person was excluded from the com-
munion of the church ; by the former, not only from tbaty
but also from the society and conversation of the faithful.
1 Bum's E. L. 242j 3 Bl. Com. 101; 3 PhiU. 27K With
reference to a man sitting in the house of commons after
he had been excommunicated, Mr. Selden said, ''By the
"canon law every one under the excommunication major,
'' maketh all them subject to the excommunication minor thai
*' kept him company, when he, being a member of this house,
" and amonffst us, we are all upon this matter excommunicated.**
Journals f House of Commons, 1st Vol. 8^, 838.

All these consequences have ceased, for it is expressly pro-
vided by the 53 Geo. 3, c. 127, s. 3. " That no person who shall
be pronounced excommunicate, shall incur any civil penalty or
incapacity whatever, in consequence of such excommunication,''
save an imprisonment of six months.

But although the consequences incurred by a sentence of
excommunication have ceased, that sentence may still be
passed ; indeed, in some cases, it must be passed, as where
a statute has declared that if a party be guilty of a certain
offence, he shall be ipso facto excommunicated ; in such a case,
if the court upon a review of the evidence, comes to the
conclusion that the statute has been violated, it must pass
the sentence of excommunication ; it has no discretion. jBut
although the court is bound to pass sentence, and to apportion
the term of imprisonment which it deems adequate to the oflfbnce/
not exceeding six months, as limited by the statute ; yet it is not
necessary for the court to proceed to certify the sentence into
the court of chancery, unless the promoter calls upon the court
to proceed to execution. Hoile v. Scales, 1 Hag. Con. &S1.
No significavit was prayed in the above case, and therefore
no writ de excommuniccUo capiendo issued out of chancery to
apprehend the party, in order to his being imprisoned in
execution of the sentence, under the above clause of the
68 Geo. 3, c. 127.

Where no sentence is required, and the writ is only resorted to,
in the nature of process, to compel obedience to some order or in«-
terlocutory decree ; in such case the name of the writ is altered, it
is no longer a writ de excommunicato capiendo^ but a writ de con-
tumace capiendo ; still the mode in which it is issued, and the
machinery by which it is to be carried into execution, is expressly
directed to be according to the provision of the 5 Elix. e. 28,
as if those provisions had been specially re-enacted ; the enact-.

tfjrtontmuninitfom 425

tneiits of that act therefore apply equally to the writ de con^ ^ ^^^

iumace as to the writ de excommunicato capiendo. ^J — '-

' The a Eli». e. SS, «• SenactSi that every writ de eACommunicato
capiendo shall be granted out of the high court of chancery in the
tine of the term ; and be returnable in the king's bench in the term
next after the teste ; and the same writ shall be made to contain at
least twenty days between the teste and the return : and after the
same shall be so made, and Sealed, it shall be forthwith brought
into the court of king's bench, and there in presence of the justices
shall be opened, and delivered of record to the sheriff or other
officer to whom the serving and execution thereof shall apper-
tain ; or to his or their deputy ; and if afterwards it shall appear,
that the writ so delivered of record be not duly returned at the
day of the return thereof, or that any other default or negli-
gence hath been used, or had, in the not well serving and execut-
ing it, the said justices shall assess such amerciament upon the
said sheriff or other officer in whom such default shall appear,
as to them shall seem meet ; the same to be estreated into the
exchequer.

By #. 3. The sheriff or officer to whom such writ shall be
directed, shall not in anywise be compelled to bring the body of
sach person as shall be named in the said writ or process, into
the said court of king's bench at the day of the return thereof;
but shall only return the writ and process thither, with declara-
tion briefly how, and in what manner he hath served and executed
the same.

By s. 4. If such sheriff or officer shall return that the partv
cannot be found within his bailiwick ; the said justices shall
award a writ of capi€u against the person named in the said
writ; returnable in the same court in term time, within two
months at least after the teste thereof; with a direction to
he contained in the said writ of capias, that the sheriff or officer
as aforesaid, in the full county court, or at the assizes or sessions,
shall make open proclamation ten days at least before the re-
turn, that the party named .in the writ shall, within six days
next after such proclamation, yield his body to the prison of the
said sheriff or officer, there to remain as a prisoner, according
to the tenor and effect of the first writ of excommuniccUo capi^
endo, upon pain of forfeiture of £10: and after such proclama-
tion had, and the said six days passed, the said sheriffor officer
shall return the writ of capias into the king's bench, with all that
he hath done in the execution thereof, and whether the party
have yielded his body to prison or not.

By #• 5« If upon the return of the sheriff it shall appear that
the party named in the writ of capias hath not yielded his body
to the gaol of the sheriff or officer according to the effect of the
proclamation ; every person who shall so make default, shall for

428 tfMmtnmimtiotu

^ o^ every auch defiiult forfeit to tbe king £10, to be estreated into
^ the exchequer.

By #• 6. The justices of the king's bench shall thereupon
award another writ of capias against the said person returned
to have made default with like proclamation, as in the first
eapiast and a pain of £S0 to be mentioned in the second writ
and proclamation. And the sheriff or officer to whom the
second writ of canias shall be so directed, shall serve and ex*
ecute the said writ, in like manner as the first writ of capias.
And if the sheriff or officer shall return upon the said second
capias^ Uiat he hath made the proclamation according to the
tenor of the writ, and that the party hath not yielded his body
to prison, according to the tenor of the proclamation ; then the
said party that shall so make default, snail for such contempt
and default forfeit to the king £20, as aforesaid.

By a. 7. The justices sballaward one other writ of capias
against the said party, with like proclamation and pain of
forfeiture as was contained in the second writ of capias;
and the sheriff or officer to whom the third writ of camas
shall so be directed, shall serve and execute the said tnird
writ of capias^ in like manner as is directed for executing the
first and second writs of capias f and if the sheriff or officer
to whom the execution of the third writ shall appertain, make
return of tbe third writ of capias, that the party upon such
proclamation hath not yielded his body to prison ; every such
party, for every such contempt and default, shall likewise forfeit
to the king other £90, to be estreated in manner aforesaid.
And thereupon the said justices shall likewise award forth one
other writ of capias against the said party, with like proclamation
and like pain of forfeiture of £20: And the said justices shall
have'autbority infinitely to award such process o{ capias with like
proclamation and pain of forfeiture or £20, against the party
that shall so make default in yielding of his body to prison,
until such time as by return of some of the said writs it shall ap-
pear, that the said party hath yielded himself to the custody of
the said sheriff or officer, and the party upon every such default
and contempt of any of the said writs so infinitely to be awarded
against him, shall incur like pain and forfeiture of £20, to be
estreated in like manner.

By «• 8. When any person shall yield his body to the sheriff
or officer, upon any of the said writs of capias, he shall remain
in the custody of the sheriff or officer, without bail, as he should
have done if apprehended upon the writ of excommunicato
eamendo.

By s. 9. If any sheriff or <^cer by whom the said writs, or
any of them shall be returned, do make an untrue return upon
any of the said writs, that the party hath not yielded his body.

tfjtommiininittan. 427

wbere the party did yield hinnelf ; every such sheriff or ofiicery ^ |^''*

for every such false and untrue return, shall forfeit to the party !l I

grieved the sum of £40, to be recovered in any of the courts of
record.

By #• 12. It is provided that any person, at the time of any
capias awarded, being in prison, or out of thb realm in parts
beyond the sea, or within age, or of non-sane memory, or woman
covert, shall not incur any of the pains or forfeitures, which shall
grow by any return or detoult happening, during such time of non*
age, imprisonment, being beyond the sea, or non-sane memory ;
and the party grieved may plead every such cause or matter in
bar of the distress or other process that shall be made for levy
ing of any of the said pains or forfeitures.

By #• 13. If the ofiender against whom any writ of excommm^ Offenders
nicaio capiendo shall be awarded, shall not in the same writ lunre to have
asuflScient and lawful addition ; or if in the signjficavii it be not ^^^ ^
contained, that the excommunication doth proceed upon some
cause or contempt of some original matter of heresy, or refusing ^^^^ ^^
to have his child baptized, or to receive the holy communion as appear in
it is now commonly used to be received in the church of England, the writ
or to come to divine scrrice now commonly used in the cSiurch
of England, or error in matters of religion or doctrine now re-
ceived in the said church of England, incontinency, usury,
simony, perjury in the ecclesiastical court, or idolatry : that
then aJI and every the pains and forfeitures limited against such
persons excommunicate by this statute, by reason of such writ
of excommunicato capiendo wanting suflScient addition, or of
such sigmfieavit wanting all the causes afore-mentioned, shall
be utterly void in law, and, by way of plea, to be allowed to the
party grieved.

By s. 14. If the addition shall be with a nuper of the place, Residence
in every such case at the awarding of the first capias with pro- of offender.
chmation according to the form mentioned, one writ of procla-
mation (without any pain expressed) shall be awarded into the
county where the o^nder shall be most commonly resiant at
the time of the awarding of the said first capias with pain, in
the same writ of proclamation, to be returnaole the day of the
said first capias with pain and proclamation thereupon, at some
one such time and court, as is prescribed for the proclamation
upon the said first capias with pain ; and if such proclamation
be not made in the county where the offender shall be most com^-
monly resiant in such cases of additions of nuper ; every such
ofilender shall sustain no pain or forfeiture bv virtue of this Ma-
tute, for not yielding his body accordinff to the tenor afbre-men-
tioned ; any thing before specified, and to the contrary hereof
in anywise notwithstanding.

428 <^tommtm(ration«

jurisdictSoii It is necessanr, therefore, according to the provisions of the
marSn^e ^^^^ '^^* ^^^^ ^"^ cause for which the party is pronounced ex-
iignijicavit coDimunicate should be set forth in the writ with certainty ; and
*^ ^"^' that it should appear that such cause was within the jurisdiction
of the spiritual court ; and as the writ recites the significaeii,
the cause must be properly set forth in the writ also, fn R. t.
Fowler, 1 Salt. 293, on the return to the habeas carpus, which
was under the statute of EUzabeth, it appeared by the recital
of the writ| that the excommunication was for '' certain causes
'* of subtraction of tithes, or other ecclesiastical rights ;'* and it
was resolved, 1st, that this return was uncertain, for that the
"aliajura'^ might be such matters as were out of their juris-
diction ; that they oueht to show the matter was within their
jurisdiction, for that the king's court are to be judges and not
they themselves, vid. 5 B. |* A. 721; and 2 Ld. Raym. 817.
And in another case, since the 53 Geo. 3, c. 127, where it ap-
peared that a suit had been instituted against a man in his cha-
racter of trustee under a will, and that tne payment of a sum of
money had been decreed against him in that character ; he was
discharged, the spiritual court having no jurisdiction over trusts.
1 5. ^ C. 695 ; 7 r. R. 153 ; 2 Sir. 950.
Cauieto be So the cause of excommunication must be set forth in the writ.
Mt forth ia j^^ common law the writ de excommunicato capiendo was always
and^^iTl* general pro contumacid, not containing a special cause, and the
catiu writ was returnable in chancery, and founded on a ngnificavU,

or certificate of the bishop, which certificate set forth toe cause ;
and the party could not be discharged but by supersedeas in
chancery, if the cause were insufficient. But now the cause
must be set forth in the writ itself, because by the 5 EUx. the
writ is made returnable in the court of king's bench, which could
be to no purpose, if the cause were not to be set forth in the writ
and that court judge of that cause. Str. 1067 ; 1 Salt. 294.
Direction of The writ should also be directed to the sheriflT of the county
irrit. Qf ^bich the party is described to be, in the significanU.

Thus a writ was set aside which was directed to the sheriff* of
Herefordshire, and which recited that the ecclesiastical judge
had signified that T. B. R. of the parish of P. in the county of
Radnor , was manifestly contumacious, and the nature of the con-
tumacy, and commanded the sheriff to attach the said T. B. R.
by his body, until he should have made satisfaction for such con-
tempt. The court held it sufficient because the writ was directed
to tne sheriff of Herefordshire, and recited a significavit
that T. B. R. of P. in the county of /iaebior, was contumacious,
and commanded the sheriff to attach him by his body. The
form of the writ given in the schedule to the statute, 53 Geo. 3,
c. 127, and whicn writ is directed in the statute to be in that
form, is " To the sheriff of greeting. The

O^communiratiotu 429

** bath signified to us that of Directum

•* in your county of , is manifestly contumaciousi &c/' *^^"^*

The form of the significavii is given in the same schedule, and
notifies that one i of » in the county

of , hath been pronounced contumacious, &c. It

is plain, therefore, that the statute intends that the writ should
be directed to the sherifi^ of that county of which the party
18 described to be in the siffnificavit. In the above case that
would be the shefifT of Radnorshire ; and it was said to be the
more necessary that the form in this respect should be adhered
to» because neither in the form in the schedule, nor in the
actual writ, were the words, " if he shall be found in your
" bailiwick,*' nor any equivalent words to be found, except the
words ** in your county,*" which are in the form in the schedule,
but which were different in the writ. On which ground it was
held that the writ should be quashed. R, v. RickefiSj 6 Ad.
§• EU. 537. So also in a subsequent case, where the writ *' de
" contumace capiendo** was issued on a significavit ** that J. H.
*' now or heretofore of C. in the parisli of O. in the county of
** Kent, is contumacious,** and was directed to the sheriff of
Notts, and J. H. was^ after the first mention of his name as
above, described throughout the writ as " the said J. H.** it
was quashed ; a distinction was endeavoured to be raised between
this and the last case on the words " now or heretofore of.*'
Patteson, J. said, " In the schedule B. of the statute 53 Geo. S,
c. 1£7, the party is described as 'of in your county.*

The writ, therefore, can only go to the sheriff of the county
** of which the party is described to be.** It was contended, in
answer to this observation, '* that such a construction would
*' frequently make the statute nueatory : a party may have no
** permanent residence, or may shift his abode to evade the
** process;'* but Patteson. J. replied, "Then a return of non
** est inventus might be had, and a capias upon that.*' R» v.
HewUt, 6 Ad. ^ EU. 547.

The usual mode by which any question on the sufficiency of writ how
the writ was formerly raised was by bringing up the body by qtt*»hed.
habeas corpus, and upon return of the proceedings to move to dis-
charge the party upon the insufiiciency of the return. 1 Salt,
•298; 2 LordRaym. 817; 5 B. % A. 791 ; \ B. ^ C. 655. In
acme cases it appears that the court of chancery has quashed the
Mtgnijicavit ; Lord Chancellor Talbot saying that the court
of chancery was not to lend its assistance but where it appeared
that the ecclesiastical court clearly appeared to have jurisdic-
tion ; and, therefore, though the signtpcavit had issued, it was
quashed on the ground of its not distinctly appearing that the
matter was merely spiritual. Str. 1067. In SaUc. 293, 294« it

430 (0ymtiimimfatimi4

Writ bow was denied that the court of chancery could quash the rigni/l-
quariwL ^^^j^ gj^^^ ^(i^ Statute 6 Elix. ; for that statute having made
the writ returnable in the court of kingV bench, a party could
no longer go into the court of chancery for a 9upersedea$. In
ex'parte Little, before Lord Hardwicie, 3 Atk. 479| a petition
was presented to supersede a writ of exoommumcato capiendo
after the return day was aut» The ChaiiceUor saidi ** After the
*' return of the writ is out| this court cannot on petition to quash
** the writy do any thing in it» as they have no authority \ for
" the court of king's bench have the cognisance of it, and they
'' can compel the sheriff to return it, and you must apply there
'' to quash it. If the writ had issued in vacation, and had not
" yet been returnable,, (for it must be returned on one of the
'' return days in the term) this court ijrould have given relief
May be " and discharged the party out of custodyt*' The more usual
qaasbed oa qourse at present seems to be to apply to the court of queen's
motioQ, bench by motion for the discharge of the party out of custody
by reason of the insufficiency of the writ, whether the writ be
returned into court or not \ T T. R. 153 \ 2 B. ^ Ad. 139 ;
R. V. RickeUs, 6 Ad. % EU. 537 ; the proceeding by habeas
corpus being dilatory and uselessly expensive ; nor till the case
of R. V. Hewitt, 6 Ad. % EU. 547, does it appear that any
objection was taken to this more ready and inexpenme
proceeding. In that case, however, the writ not having
been returned, it was contended that the party should have
" been brought up by habeas carpus, and that die proceeding
" by motion was not the proper course ; that the 53 G. 3,
" c. 127, directs the writ de contumace to be returnable, as
^' the writ de excommunicato was under the 5 EUx. c. 9A ; that
'* by #• 2, 5 EUz. c. 23, the writ is directed to issue out of
" chancery, and is to be delivered to the sheriff of record ; by
*^ s. 3, the sheriff need not bring the body into court, but has
** only to return the writ and process into the court of king's
^' bench, and that the writ in the case before the court was not
*' returned; it could not, therefore, be quashed, not having
** issued from the court of king's bench, nor having been re-
^' turned into it ; and that, though the court has posseasion of
*' the writ ^fter it has been delivered of record to the sheriff,
** yet they could not quash it after execution." The court,'
however, made the rule for. quashing the writ absolute, upon
condition that no action was brought.
Ol^jectioii Ii> ^^ ▼• E^e, Str. 1189, the writ, having issued out of
wilea to be chancery, was opened and enrolled in B. R. ; but upon excep-
^^^^ tionatoiti the court made a rule on the prosecutor to show

cause, why the delivery of the writ to the sheriff should not be
stayed^ Be£^re the tiipe for showing cause, the return of the

^ommttiiiratiom 48 1

writ waB out, and the prosecutor sued out a aecmid writ, and to ^"V]^
prevent the loss of that, desired that the defendant might at ^"**
once take his objections on motion to quash, which he did.

If the writ be quashed for want of form in the writ only, the Error in th«
party must apply to the court of chancery for a fresh writ. ^"^
In JL ▼. Eyre, Sir. 1189, it seems that the second writ i^aJJhad.
issued before the first was quashed, indeed it does not appear
fay the case what became of the first writ ; it was objiected
that the first writ being enrolled in B. R*, the chancery oould
not issue a secondi for by 5 Elix. c. fiS, such second writ was
to issue from K. B. ; to this it was answered that the act only
related to the case where the first writ had actually issued, and
the sheriff returned, non est inventus* The court said, ** The
answer is right; if the writ had been actually quashed they
murt ha^ ^ne to chancery for another."
In order to obtain a new writ where the error was in the Error in
sigmfieapit, as well as in the writ, the party must apply to »ign\ficavit,
the ecclesiastical court for a new monition and sign^avit, ^^o.'"^''*'
In Austin ▼• Dugger, 1 Add. 307. Dugger was dis-
charged out of custody, the court of K. B. being of opinion
that the significavit was defective^ ty B. ^ A. 791 ; an ap-
plication was made to the court of arches for a new monition
against the defendant for payment of costs, (such having been
the ground of the original monition,) in order to his recom-
mitment under a new warrant in default of payment ; it being .
swum that neither the costs nor any part of them had been
paid. Sir J. NiehoU said, " Had the process been liable to no
** objection, Dugeer must still have been in gaol, whereas in
" consequence of its being erroneous, he has been at large
** since £aster term last. He therefore has sustained no iiyurv
by the process going out in its actual form, or if he has, it is
an injury for which, in my judgment» he must seek his
remedy in another forum. Meantime, the costs not being
paid, it seems to me that the court is bounds ex debito jus^
titi^e, to enforce their payment. This court is not functus
** officio till it has enforced the execution of its decrees ; nay
*' even after payment of costs, had the process been regular,
** the party must have come here for his writ of deliverance, so
'' that this court could hardly have been called functus officio
'* in either alternative ; I shall therefore allow the monition to
'' go, though I confess with some reluctance/'

The writ de contumace capiendo, being a commitment for a Pnrty not
contempt rather than an execution, a party cannot be dicharged <Uach«rg».
out of custody by reason that the sum for the non-payment of Jg^Q**^
which he was originally attached is less than £^, under the c. 123. '
48 Geo. 8, e. 123. Ex parte Kay, 1 B. ^ Ad. 652.

The sheriff is liable in an action for an escape, as in the £cc«pe.

432 O^rommmuratfon.

^*<^P*^' case of a man being arrested upon a capias uilagaium, aftef
outlawry upon mesne process, i Ld. Raym. 788.

Nor could the sheriff take bail at common law ; if a man be cer^
tified into chancery by the bishop, and then taken upon the writ
de excommunicato capiendo he is not bailable ; in ancient tim6s
men were excommunicated only for heinous, and not for petty
causes, and, therefore, the party was not bailable hy the sheriff or
goaler without the king's writ; but if the party offered sufficient
caution to obey the orders of that court in form of law, the
party might oaTe had a writ to the bishop to accept his
caution, and so cause him to be delivered ; and if the bishop
would not deliver him, then he shall have a writ out of chancery
to the sheriff for his delivery ; or if he be excommunicated for
a cause not within the jurisdiction of the spiritual court, he
shall be delivered by the king's writ without any satisfaction.
S InMt. 188. But Lord Coke adds, '' that they may be bailed
in the king's bench." So, if a man be excommunicated, and
offer to obey and perform the sentence, and the bishop refuses
to accept it, and assoil him ; he shall have a writ to the bishop
requiring him, on performance of the sentence, to assoil him.
The party aggrieved may also have his action on the case
against the bishop, in like manner as he may when the bishop
doth excommunicate him for a matter which belongeth not to
ecclesiastical cognizance, i Imt. 6SS ; 8 BL Com. 101.
Actions for In Beaurain v. Scoii, 3 Campb. 888. It was admitted that
illegal ex- if the ecclesiastical judge exceeds his jurisdiction an action on
^muni- ^^^ ^^ jj^g against him, and vid. 16 Ves. 846. But if the
judge have general jurisdiction over the subject matter, no
action will lie, though he proceed erroneously. 1 Ld. Raym,
466; 2 W.m. 1145; 3Af. ^&411; unless it be shewn that
he proceeded maliciously, and then an action on the case is
maintainable. 1 East, 655; Cro. Car. 891; S WHs. 807;
£ Stark. N. P. C. 577. It is apprehended that in such a ease
it is not necessary to shew express malice ; if it can be shewn
that the judge acted wilfully, that is, contrary to his own con-
viction, it would be sufficient legal malice to support the acdon.
1 Easi, 555.

433

1. Of public nature for oonvenience or benefit of parishioners

generally*
For organs, galleries, &c.

2. Of i«ivate nature, for benefit or convenience of individuals.

Pews, tombsUmes, vaults, tablets, &c.
RightB of rectors and vicars.
May be revoked.
Proceedings to obtain.
Articles for proceeding without.

A FACULTY in the extensive meaning of the wordi is a Facalty.
privilege or dispensation granted to a man, by favour and
indulgence, to do that ^ich by law he is not permitted
to do ; for the granting these there is an especial court under
the archbishop of Ciuiterbury, and the chief office there is
called the master of the faculties. CoweU; 4 Inst. 337.

These, however, are not the faculties •.now the subject of
inquiry, which only relates to that particular description of faculty
or privflege which is granted by the ordinary, to parishioners,
or US individuals, in respect of the church.

These seem to be of two descriptions. 1st. Those that are
public in their nature, and have for their object the benefit of
the parishioners generally. Sdly. Those that are private, and
are for the exclusive benefit or convenience of an individual.

Of the first sort are faculties for newly pewing a church, Public
erection of a gidlery, organ, making a church path, building a ^°«fi^
vestry room, or the like*

Of the second sort are those which are granted to secure to private
some individual or family the exclusive use of a pew, or vault, benefiu
or to give permission for the erection of a monument, or tablet,
or for privileges of a similar sort.

As tne granting a faculty is altogether in the discretion of Granting of,
the ordinary, subject only to the superintendence of a court of discretion- '
appeal, that discretion will be variously swayed or governed *•■>•
according to the nature of the application made to it, and the
information supplied in order to enable the court to come to a
right conclusion. BuU v. Jones, 2 Hag. 424; 3 East, 213.

If the application be for a faculty of the first sort, the prin- of public
cipal inquiry will always be, whether the plan proposed will nature.
really add to the benefit or comfort of the parishioners ? and
if the ordinary be satisfied that the faculty will be for the

P P

430 ;facultp»

FacttUy. individual, the main inquiry necessarily is, if the request can be
Ofa private Complied with without interfering with the general rights and
nature. convenience of the parish at large. 2 Hag. 426 ; S Add. 428 ;
S Add. 14. Before a faculty for the exclusive use of a pew be
granted, it should be inquired, 1st, whether such grant would
be prejudicial to the parish ; 2dly, whether it would be so to
those who oppose the grant, and, Sdly, whether the party
applying is, from his station and property in the parish,
entitled to the grant ; 2 Lee^ 345 ; for witli regard to such
grants it has been said on more than one occasion, that
they have been granted with too much facility, considering
the increasing demands for church room, and that a strong case
should be made out to justify such grants in the present day.
1 PIdU. 237 ; 2 Add. 428.
ExciiudTe Faculties for the exclusive use of pews have been usually of
right to a qqc q{ ^^ foui. following descriptions : —
pew. 1^ rp^ ^ ^^^^^^ ^^j 1^.^ family, so long as they continue inha-

bitants of a certain house in the parish.

2. So long as they continue inhabitants generally. 2 Lee^ 354.

3. Appropriating certain pews to certain messuages or farm
houses.

4. Such as are called faculties at large, appropriating pews to
persons or their families without any condition annexed of resi-
dence in the parish.

Of these forms the first seems to be the least objectionable,
and is the utmost extent to which the court in modem times is
inclined to go. Butt v. Jones^ 2 Hag. 4^4.

The objection to the second is, that it often entitles pari-
shioners to the exclusive occupancy of pews of which they them-
selves are no longer in circumstances to be suitable occupants,
whatever their ancestors might have been. 2 Add. 4&1\

1 PhiU. 237.

The third sort of faculty seems to be the origin of those
prescriptive claims which are recognized at common law.

2 Hi^. 4^.

With regard to the fourth sort, they are merely void, at least
no faculty can be supported either at common law or in the
ecclesiastical court to the extent of entitling any person who
is a non-parishioner to a seat in the body of the church.
2 Add. 4^; 5 B. ^ C.21; sed vid. Lousley v. Hayward^ ante.
Indeed it has been held that a faculty to a man and his heirs
would be bad on the express ground that his heirs might reside
out of the parish. 1 Hag. Con. 321. (a)

(a) The etmmuwmert <m the jurisdiction and practice of the ecele^
siastical courts, in their general Report, p, 48, recommend that in future

fatvApf. 437

On the expiration of a faculty limited for a certain period, ^^c^^^y*
the right of the parishioners to the pews, the subject of such of « private
faculty, revives. nature.

The actual possession of a seat by any one seems an answer Eicluuve
to an application for a faculty for that seat, where no title on o'feofa
the other side is shown ; 2 Lee, S59 ; or it may be a reason for ^^'
granting a faculty to the person in possession. 2 Lee, 355.

AH intimations should run ** to show cause why a (acuity inUmatioD.
** should not be granted to appropriate ;'* and although the
minister and churchwardens are the properest persons to show
cause, yet any- other narisliioner may appear and oppose,
because he has a general interest. 2 Lee, S54>.

The churchyard as well as the church is the freehold of the Mona-
minister, subject to the rights of the parishioners for interment. "»«"^ »"**

In order therefore to have a monument erected in the church, ^
the proper mode, strictly speaking, is to apply to the ordinary for
a faculty ; it being clear that he is to judge of the convenience of
allowing tombs or monuments to be erected. It is to his care
that the fabric of the church is committed, that tt shall not be
deformed or injured by the caprice of individuals. The consent
of incumbents alone is generally acted upon on such occasions,
and especially of the rector for monuments in the chancel ; and
a faculty is frequently omitted under the confidence reposed in
the minister ; Lee, 440 ; nor is the ecclesiastical court eager to
interpose, but when cases are brought before it, an inquiry is
necessarily instituted whether the thing itself is proper to be done,
whether the consent of the incumbent has been obtained or not.
For no practice can legalize the erection of a monument without
a faculty. 1 Hag. Con. SOS; ih. 14, 15, 18; S Add. 15;
1 Hag. 48.

With regard to buildings of height, the authority is wholly
reserved to the ordinary, and permission ought not to be
granted without his authority m some manner interposed.
1 Hag. Can. 14.

If not inconveniently placed, the parson's authority to erect a Remo?al
monument or tablet in practice seems considered to be sufficient. ^'-
1 Lee, 640 ; Gibs. Cod. 454 ; Sir. 576. But nothing but the

no faculties be granted permanently annexing to any messuage any
pew in the church or chancel ; and that a commission should issue in
every diocese to examine all claims to pews by faculty or prescription ;
that the churchwardens should in future be subjected to the authority of
the archdeacon in the arrangement of pews, but that the common law
jurisdiction over pews by prescription should continue.

438

/amitp*

Faculty*

Of a private
nature*

Monu-
ments and
tomlM.

Tablets.

For faults.

Lay rector
no absolute
right to a
faculty to
affix tablets
in thechan*
celyOrmake
a vault
there.

authority of the ordinary can justify the removal of a monatneot)
and if a churchwarden were to direct the removal of a monument
he might be sued for so doing in the ecclesiastical court. 1 Hag»
Con. 172, ^8. The erecting tombstones in the churchyara
without a faculty may strictly be punished in the ecdesiastical
court, and the party obliged by a decree of that court to remove
them. Bardim and Edwards v. Calcol, I Hag. Con. 14.

The repairing tombstones without leave of the churchwardens
is punishable, although decency and propriety require that they
should not be allowed to run to decay, and although the application
for leave would have been merely formal, the churcbwardeiw
being bound to grant it, for the court would have censured their
refusal; ib.f an action of trespass will lie against a person
defacing a tombstone by the person erecting it* 8 Bing^ 186.
If the spiritual court be about to grant a raculty without the
consent of the minister, it is a ground of appeal and not of pro-
hibition. 3 Eastf 2\S.

The fixing a tablet against a wall is not considered ob-
jectionable, indeed it is a practice rather to be favoured. 4 Hag.
1 12. When a faculty for erecting a tablet is a]pplied for, plans
and dimensions must be submitted to guide the iudgment of the
ordinary, and if not shewn to be injurious to tne convenience,
the beauty and stability of the fabric, will probably be granted
when applied for. lb. 175«

A faculty for a vault or exclusive buryinff place may be ob-
tained upon consent of the rector and churchwardens, and
upon public notice, and no objection on the part of any of
the parishioners ; but a faculty for this purpose will not be
granted to a man and his family for ever, but only for as long
as they continue inhabitants and parishioners. Mmnay v.
Parishes of St. Michael and St. Martin, 1 Hag. 46. But
faculties for vaults either in the chancel or bodv of the church,
are not to be encouraged, they are far better when made in the
churchyard. 4 Hag. 174, 171.

The lay rector has no absolute right, independently of the
ordinary, to construct a vault or to fix a tablet in the chancel ;
nor is the consent of the vicar, it seems, necessary to the af-
fixing a tablet in the chancel, or even in the body of
the church. In Rich v. BushneU, 4 Hag. 154. The
proceeding was by decree with intimation, " calling upon
" the vicar, churchwardens, parishioners, and inhabitants
" to show cause why a faculty should not be granted to the
" lay rector and sole owner and proprietor of the chancel in
" the parish church thereof, to make a vatilt for burials in the
" chancel, for himself and family, and to erect tablets against
'Mlie walI,^to the memory of himself and family.** An ap-

jTaraltp.

439

pearanoe was given for the vicar; and an act on petition en-
tered into, wherein it was alleged that he, the vicar, was patron and
incumbent, possessed the glebe land with tithes of beans, hay,
&c., that he bad a pew hi the church, which he repaired ; that
no one could be buried or aflix a tablet in the church, or in any
part thereof, without his leave, and for which he is entitled to a
fee ; and that he, as incumbent, was to iudge in each particular case
whether the erection of a tablet will occasion inconvenience or
deformity. The lay rector replied, *' that being lay rector, he was
sole proprietor of the chancel and entitled to the faculty." The
pari^ioners though cited, did not appear.

Sir J. NichoU stated the question, as it arose on the argument,
appeared to be ; which, or whether either party had the right,
or whether there were not two other parties, namely, the parish,
and the parish and the ordinary, whose rights were concerned.
For though the freehold of the chancel be in the rector, lay
and spiritual, the use of it belongs to the parishioners ; and the
ordinary, as protector of their rights, must see that neither
their present nor future accommodation be unduly prejudiced.

The learned judge then stated his opinion, *' that the lay
** rector was not entitled as a matter of right, either to make
" a vault under, or affix tablets on the walla of, the chancel ;
'' but that being owner of the freehold, the application came
'' in as favourable a shape as possible, unless the vicar could
'' convince the court that his consent must precede the leave
** of the ordinary. If any other parishioners wanted to make a
** vault in the chancel, the consent of the lay rector must be had;
*' he must be called before the court, not merely because the
*' freehold is in him, but because the burthen of repair is on him."
Again he said, " It may be doubtful whether the consent of the
** vvcar is necessary to the construction of, or to the affixing a
'* tablet even in the body of the church, or whether he has, in
*^ such a case, a claim to a fee unless when established by
" special custom. Even if the consent of the vicar to the
" actual interment of bodies were required, or his right to a fee
'' in such a case were conceded, it would not necessarily follow
** that a faculty for the construction of a vault, or the erection
^* of a tablet in the chancel must be refused unless he consented
** to the grant The grant of a faculty would not preclude the
** vicar from enforcing his fees if he were legally entitled to them."
Again, '* The opinion of the vicar against the expediency of
granting a faculty would have its due weight with the or-
dinary ; but if the cause shewn by him be nothing better than
his will or pleasure, it will be insufficient to stay the grant ;
*^ still more so, if his consent be mere matter of purchase and
" barter." " If the vault were to be constructed, and the vicar*s
" consent to interments therein were necessary, he might object

Faculty.

Of a private
nature.

Lay rector
no absolute
right to a
faculty to
afHx tablets
in the chan-
cel or make
a vault
there.

•Sein6.

Consent of
vicar not
necessary.

Opinion of
vicar.

440

^ntftp*

Faculty.

Oftpri?ate
nature.

Lay rector
no abaolnle
right to a
faculty to
affix tablets
in the chan-
cel, or make
a vault
there.

it
ft

Vicar no
positive
right of
refusal.

Vaults.

May be re»
voked.

Discretion
of local or-
dinaries.

'' on proper grounds, but it cannot be tolerated that his de-
'' cision on the moral fitness of the individual to be buried in
'' the chancel should be guided by the amount of the fee paid*"

In conclusion the learned judge said, " Upon the whole, both
" parties seem to have mistaken their rights. The lay rector
** is not, on the ground that the chancel is repaired by fain,
" entitled to a faculty, without laying before the ordinary such

particulars as will afford the vicar and the parishioners an

opportunity of judging of it ; and as will satisfy the ordinary
" diat what is proposed may be carried into execution without
" interrupting the parishioners in the use and enjoyment of
'* the chancel; in wnich case the court would pay due attention
'' to the application* On the other hand, the vicar has not a
'' positive right of refusal/ though he may very properly shew
^* cause affainst the grant of the faculty by stating tne grounds
" of his objection.'*

In the case of Seager v. Bowie ^ 1 AddL 541, which was a
criminal proceeding against the defendant by articles, for having
set up a monument in a church without a faculty; and secondly,
to shew cause why he should not be decreed to remove them. A
responsive allegation pleading, 1st. That the said monument was
erected by leave of the minister and churchwardens, and £dly.
That the monument was ornamental to the said church instead
of injuring or disfiguring it, was rejected by the court below, on
the around that it contained no legal justification of the erection
of the monument, but on appeal to the delegates the order of
the court below was reversed.

Besides the consent of the rector and churchwardens, and
the absence of all objections on the part of the other
parishioners, the ordinary ought not to grant the faculty in the
case of vaults, nor indeed in any other case, unless he is satisfied
upon inquiry that it might issue without probable inconvenience
to the parish. 3 Add, 14.

When a vault has been previously appropriated to others,
and bodies have been deposited in it, if a faculty issue for any
other family, there should be a clause inserted, that the bodies
formerly interred shall not be disturbed. 1 Hag, 50.

Where the vigilance and sound discretion of the ordinary
has been surprized or imposed upon, or if the faculty itself be
unusual and vicious, the grant may be appealed against to li su-
perior tribunal, and the faculty may be revoked. Buti v. Jones^
2 Hag, 4&4f\ 3 East, 211.

Generally speaking, the subjects upon which faculties are
issued, are so much within the discretion of the local judge tiiat
there is a great indisposition on the part of the superior eccle-
siastical courts to disturb the judraient of the local ordinaries,
unless it could be clearly shewn that it involved the violation of

fatait^^ 441

some iprivate rights or would give rise, actually or probably, to ^**^^^'

conaiderable and general inconvenience. 3 Add. 5; 2 Hag. 42^,

It has been tbe practice for a decree for a faculty to issue, as Proceed-
other citations and decrees, without motion of counsel ; and that on ingsin order
the return of the decree the court has formed its opinion, con- ^ <»*^**o.
sidering the issue of the decree as not binding on the court, eveu
if no one appeared to oppose it, the objection to this practice
however is, that an intimation is inserted in these decrees, that
if no one show cause the faculty shall go, which looks like an en-
gagement to grant it, unless an objection be taken. The more
tegular mode according to the present practice is, it is conceived,
to apply for a decree, with intimation to the inhabitants of the
parish, to show cause why the faculty should not be granted.
a Hag. II.

Where the objection to a monument is, that it was erected Article! for
without sufficient authority, and the ordinary is called upon to {^JJom a^
direct it to be taken down as inconveniently placed, the mode of facaiiy.
proceeding should be criminally by articles. 1 Lee, 640, and
pid. I Add. 540.

ifir«t fruits antr tttn^a, w

ANNATES, primiiitBy or first fruits, was the first yearns value pj^ frajig^
of every spiritual living which the pope, claiming the disposition
of all ecclesiastical livings, reserved out of every benefice.
12 Rep. 45.

The rate or valor was made under the direction of Pope
Innocent the 4th, by Walter, bishop of Norwich, and afterwards
advanced hi value by a commission, from pope Nicholas the 3rd,
in \^S2\ 20 Ed. 1 ; which latter valuation is still preserved in
the exchequer. 3 Inst. 154.

DedmcBy or the tenths, were the tenth part of the annual Tenths,
profit of each living by the same valuation. \2 Rep. 45; i^Inst.
120; GodoLAbr. 337.

By the 25 Hen. 8, c. 20, s. 3, it was enacted, that all pay- Not to be
nients of first fruits to the pope should cease; and by the 26 pwdtothe
Hen. 8, c. 3, s. 2, the king is to have of every person who ^^'

(a) First fruits are to be paid within three months after institution or
collation i Tenths are due at Christmas. By 1 Fiet. c. 20, both were
consolidated with Queen Anne's Bounty ; and the office for payment,
adjoins the Bounty Office, Great Dean's Yard, Westminster.

442

fixiA fruft0 aitH tentK)!^*

Finl fraits.

and tenths
given to the
crown.

King's
books.

Court of

first fruits
and tenths.

Exemp-
tions.

Vicangee
under 10/,

and paraon-
ages of ten
marks from
fint fruits
only.

Benefices
with cure of
souls under
601. from
tenths also.

Exemp-
tions.

shall be nominatedi elected, &C.9 to any dignity, benefice, or
promotion spiritual, of what name nature or quality soever,
they be, or to whose foundation, patronage, or gift soever they
belong, the first fruits, revenues, and profits thereof for mie
year ; and by #• 9, one yearly rent or pension amounting to
the value of one-tenth part of all the revenue, &c., of all other
profits, as well spiritual as temporal, belonging to any benefice
or promotion spiritual, is yearly to be given to the crown for
ever.

This latter act was confirmed by the 1 Elhi. e« 4; and certain
commissioners were appointed for each diocese, to make a new
valor beneficiarum, by which the clergy are at present rated.
This is usually called the '' King's BookSf* and a copy of it is
given in £cton*s ** Thesaurus,'* and Bacon's " Liber RegisJ*
1 BL Com 285.

By 32 Hen, 8, c. 45, a court of first fruits and tenths was
established, which was a court of record with a seal, the prin-
cipal ofiicer of which was to be called chancellor of the first
fruits and tenths* There was to be also a treasurer and a king's
attorney of first fruits and tenths ; this was dissolved by stai,
1 Mar. sess. S, c. 10, and the clergy exonerated from these
payments by stai. 2^3 Ph. % Mar. e. 4 ; but though the
crown resumed the payment by 1 EUx. e. 4, yet the court was
never revived. 4 Reeve's Hist. C. L. 1858.

By successive acts of parliament many exemptions have been
established to the payment of first fruits and tenths. The first
exemptions are contained in the above statute, 1 EUz. c. 4.

1. By s. 29 of that statute, vicarages not exceeding the
yearly value of £10, after the rate and value upon the records,
and books of the rates, and values for the first fruits and tenths
remaining in the exchequer, (according to the valuation made in
the S6 Hen. 8,) and parsonages, not exceediujz the like yearly
value of ten marks, shall be discharged of first fruits. Vid.
Degge.

By the 5 Millie, c. S4, s. 1, this exemption from first fruits,
with the additional exemption from tenths, was extended to all
ecclesiastical benefices with cure of souls, not exceeding the
clear yearly value of £50 by the improved valuation, and it is
provided by the 45 Oeo. 3, c. 84, s. 2, though for the purposes
of augmentation by Queen Anne's Bounty, the certificates re-
turned to the exchequer are superseded by the valuations made
under the 1 Geo. V, s.2, e. 10, yet for the purpose of discharge
from first fruits and tenths, the certificates are not aflfected by
that rate.

By the third sect, of the 5 Anne, c. S4, it is provided that the
discharge should not affect those benefices the tenths of which
had been granted away by the crown in perpetuity ; and by

iifnst tmita aiOi ttnifyi. 443

sect* 5, that no annual sum, stipend, pension, or annuity, here- ^xemp.
tofore granted and charged upon the revenues of first fruits and ^'^'"'
tenths, shall be diminished by such ex^emption $ but if the first
fruits and tenths in any diocese be insufficient to pay the annual
sums charged upon them, then the whole revenues of the first
fruits and tenths throughout the kingdom, shall be liable to
make good the deficiency.

The above provision in the third section was afterwards ex-
pimned by the 6 AnfWf e. 27, «• i, to the effect, that although
where the tentAs of any benefice had been granted away in
perpetuity, such tenihs should not be discharged by the operation
of tnat act, yet, that wherever any benefices, with cure of souls,
did not exceed the clear yearly value of £50 by the said im-
proved valuation, they should be for ever discharged {torn first
fruits.

By the d4th sect, of the 1 Eliz. c. 4, all grants made to the Onmts to
universities, or any college or hall therein, and to the colleges of the siuTcr*
Eton and Winchester, by any king or act of parliament for the ]g^^ ^^ ^
discharge of first fruits and tenths ; and by sect. 40, the deans wioches-
and canons of the firee chapel of St. George within the castle of («'•
Windsor, and all the possessions thereof, shall be discharged st.George's
of tenths and first ihiits. Windwr.

By the same section nothing in the act is to charge any HMpitais
hospital or the possessions thereof, employed for the relief of ^^
poorpeople, or any school or the possessions or revenues thereof, ^^ '
with the payment of tenths and first fruits.

By 9& Hen. 8, e. 3, s. 2. Every person, before any actual or Tint (rnita,
real possession or meddling with the profits of his benefice, bow paid or
shall pay or compound for the first fruits to the king's use, at ^QQcled
reasonable days and upon good sureties. kr.

By s. 5. If he do not, and be convicted thereof by present- Receipt of.
ment, verdict, confession, or^ witness before the lord chancellor,
or any commissioner to compound for the same, be shall be taken
a« an intruder on the king's p<»ae»ion, and shaU forfeit double
value.

B^ s. 3. The chancellor or master of the rolls, or other com-
missioners under the great seal are to have power to search for
the true value of first fruits and to compound for the same, and to
limit reasonable days of payment upon good surety by writing
obligatory. The writing obligatory or money taken to be deli-
vered to the clerk of the hanaper for the king's use, if compo-
sition be made by the chancellor or master of the rolls ; ana if
before commissioners, then the same shall be delivered to the
treasurer of the chamber or elsewhere, as the king by commis-
sion under the great seal appoint.

In order to ascertain the valuation it was enacted by the ^^^^ .^ow
26 Hen. 8, c. 3, s. 10, that the lord chancellor should appoint ^^ d^°i^.

lions.

444 firit (mits Aittr tentftfif.

Exemp* commissioners, archbishops, bishops, and others, to examide the

''^°** true yearly value of all manors, lands, tenements^ hereditamentai

rents, tithes, offerings, emoluments, and all other profits, as weA

spiritual as temporal, the only allowances to be as follows:

Lords' rents, or other perpetual rents or charges which any

spiritual person is bound to pay, or rive in alms by reason of any

foundation or ordinance, and all tees for stewards, receivers^

bailiffs, and auditors, and synods and proxies ; the commissioners

to certify under their seals, on days limited in their commissions,

peduc- the entire value and deductions as aforesaid. And by #. 80, all

^'^ fees, which any prelate is bound to pay to any chancellor, master

of the rolls, justices, sheriffs, or other officers or ministers of

record for temporal justice, are also to be deducted.

ratod"* ®y ^ ^^' ^' ^' ^' *• '*' ^y^^ dignity or benefice to be

rated in the diocese where they be, wheresoever their posses*
sions may lie.
Whea due. By 28 Hen. 8, c. 11, #. S, The year in which first firtrits arc
to be paid is to commence directly on avoidance, and the profits
go to the successor towards payment.
ArchbU But by 6 Ann. e. 17, «. 5, every archbishop and bishop

shoptand ghall have four years to compound for the payments of first
^ ^^ fruits, to commence from the restitution of his temporalities ; in
every year to pay one-fourth, and if he die or be removed before
the K>ur years are expired, he shall be discharged of so much as
did not become due at his death, in the same way that rectors
and vicars are discharged.
Deaiu, &c. And by s. 6, deans, archdeacons^ prebendaries, and other
dignitaries to account as rectors and vicars, and in case of death
or removal, put on the same footing with them.
Rectonand By 1 EUx. c. 4, M. 80, 31, SS, 38. If an incumbent live to the
rr* what ^^^ ^^ *^® half-year next after avoidance, so that he may have
proportioni received the rents and profits of that half-vear, and before Ae
to b€ paid, end of the next half-year shall die, or be lawfully evicted, &c.,
he, his heirs, &c., shall only be charged with a fourth part of
the first fruits. If he live one whole year after avoidance and
die, or be evicted, &c., before the end of the half-year then
next following, he shall be charged with only half of the first
fruits. If he live a year and a half and die, or be evieted, ftc,
before the end of the six months then next following, he shall
be charged with three parts of the first fruits ; and if he Kve to
the end of two whole years, and not be lawfully evicted, re-
moved, or put out as aforesaid, he shall pay the whole.

By the 86 Hen. 8, c. 3, m. S7. A person presented or collated
to a parsonage or vicarage not exceeding eight marks a-year,
according to Uie valuation then made, was not to pay first firuits,
except he lived three years ; in the composition there was a

fim frattd anH tentf)0. 445

cLiu8e» that if the incumbent died within three years the obliga- '^'•n^fc
tion should be void.

By S Geo. I, c. 10, s. 2. There is to be one collector or re- Receipts of.
ceiver of the perpetual yearly tenths, to be nominated by letters
patent, who shall take an oath for the faithful discharge of his
office before seven ffovemors of queen Anne's bounty, at a
general courti and likewise give security for his just account of
all monies he shall receive, and for the faithful discharge of his
duty ; and he, and his lands and tenements are to stand charged
with due payment of sums received. 34 ^ 35 Hen, 8, c. 2;
13 EOz. c. 4 ; 14 EUm. c. 7 ; 27 EUz. c. 3. The collector to
keep his office in some convenient place within London or
Westminster, and to give attendance for the receipt of the
tenths at such times as the governors shall direct, between
December the S5th and April the 30th yearly, at which time
and place, due notice shall be given by the governors in the
Gazette yearly, one week at least before December 25, whereof
every person concerned shall be obliged to take notice without
buj further notice^ by way of summons, demand, or otherwise;
the collector to pay in sums received into the exchequer, on
or before the last day of May yearly. 7 Ed. 6, c. 4 ; 3 Geo. 1,
c. 10, M. 2.

By 26 Heu. 8, c. 3, e. 9. The tenths are to become due yearly, Wbenpud.
at the feast of the nativity of our Lord.

And by 3 Geo. 1, c, 10, s. 3. If any person charged with the
payment of tenths shall not pay or tender before the last day of
April, following the Christmas whereon they were due, then the
ecMlector, upon certificate* shall be allowed such sums as are not
paid, and in such cases the treasurer, chancellor, and barons of
the exchequer, shall issue process upon such certificate against
the person against whom certificate shall be made, his executors
and administrators, whereby the same may be levied and paid to
the collector, and such sum the collector shall bring into his next
account; and by s. 2, the collector is to ffive acquittance under Defaulten.
his hand to persons paying ; persons nuuung default to forfeit
double value.

And by 26 Hem. 8, e. 3, s. 18, and 27 Hen. 8, e. 8, s. 4, which
so far as they are not altered are continued by 3 Geo. 1, c. 10,
s. 4, where process was issued against an incumbent or his ex-
ecut<Nrs, or if they were found insuflkient, against the successor ;
the successor may distrain upon the goods of his predecessor,
remaining on the premises, and retain the same till the prede*
cesser, if he be alive, or if he be dead, till his executors or ad-
ministrators shall pay the same ; and if the same shall not be
paid in twelve days, then he may cause the goods to be appraised
by two or three indifferent persons to be sworn for the same, and
according to the same appraising may sell so much as shall pay

446

Six^ fnttt<( nOv tttittM(.

Tenthi.

Payment
bj gucces-
■or.

Living void.

Queen
Anne's
bounty.

GoTernon
of.

A corpora-
tion.

Gnmftof
first fruits
and tenths,
for mainte-
nance of
clergy.

Quarterly
meetings.

Rules and
orders.

the same, and also the reasonable costs of distraining and ap-
prising ; and if no such distress be found, then such prede-
cessor, if he be alive, and if he be dead his executors and ad-
ministrators, may be compelled to the payment thereof by bill in
chancery, or by action or plaint of debt at common law.

And by 7th Ed. 6, c. 4, «• 4. If an incumbency be void, the
king may take the whole profits until he be paid the whole
arrearages of the tenths,

FinalTy, by S6 Hen. 8, e, 17. Farmers and lessees of any
manors, &c., belonging to spiritual persons shall be discharged
both qfJirMt/rtUts and of tenths^ and the lessors and owners shall
pay the same.

In cathedral churches and colleges, every distinct head and
member shall pay according to his own respective salary, and
not for any others. 26 Hen. 8, c« S, ss. 25, 36.

In pursuance of certain powers vested in the queen (Anne)
by S ^ 3 Anne, c. 1 1, «. ), she by letters patent of the 3rd of
November, in the third year of her reign, and by supplemental
charter of the 5th of March, {^iUhAnne^ declarea the holders of
certain offices and dignities therein named, to be a body corporate,
by the name of the " governors of queen Anne*s bounty, for the
" augmentation of the maintenance of the poor clergy ;*" and
thereby granted to them the said revenue of the first fruits and
tenths, *' to be applied and disposed of, for the augmentation
** of die maintenance of such parsons, vicars, curates, and
'^ ministers officiating in any church or chapel, where the
'' liturgy and rites of the church of England, as now by law
** established, shall be used and observed." Such grant
to be subject to the rules and directions to be established
pursuant to the said letters patent, together with these follow*
mg directions ; that is to say, that they shall keep four general
courts at least in every year, at some convenient place within
London and Westminster, notice thereof being first given in
the Gazette or otherwise fourteen days before; the said courts
to be in the months of March, June, September, and December.
That the said governors, or so many of them as shall assemble,
not less than seven in number at any one meeting (whereof by
the aforesaid supplemental charter, a privy councillor, bishop,
judge, or one of the queen's council to be one,) shall be a general
court, and dispatch business by majority of votes, with power to
appoint committees for the easier dispatch of business.

They were to draw up rules and orders for the better govern-
ment of the said corporation and members thereof, and managing
the said revenues and benevolences, and disposing of the same,
the same being approved, altered, and amended by the crown,
and so signified by the great seal, to be the rules whereby the
governors shall manage the said revenues. And by 1 Geo. st. 2,

fim frmUi xnH tent(M(. 447

c« lOy «. 3, orders approred by the king under hU sign manual. Queen

to be as valid as if under the great seal. bount'
The governors are to inform themselves of the true yearly value ^'

of the maintenance of every incumbent officiating in any church ^°^„J^^[^
or chapel for whom a maintenance of £80 per annum b not suffi- meedngT.^ ^
cientlv provided, and the distances from London of such churches to inquire
and chapels; and which are in towns corporate or market towns, into sute of
and which not; and how they are supplied with preaching poor^n«-
ministers, and where the incumbents have more than one living.

By 1 Geo, si. 2, c, 10. Their courts and committees have ]^_ ^.
power to administer oaths to persons giving them information, or minuter
being examined concerning anything relating to the trust. ^^^*

They are to have a secretary and treasurer and such inferior officers and
officers, substitutes, and servants as they think fit, to be chosen servants of
by a majority of votes at a general court, and to continue during corpora.
the pleasure of the said governors ; the secretary and treasurer ^°'
to be first sworn at a general court for the due and faithful ex-
ecution of their office, and the treasurer to give security for his
faithfiil accounting for the monies he shall receive by virtue of
the said office.

To have power to admit into their corporation, all such persons May admit
who shall be piously disposed to contribute towards such aug- contriba.
mentation, as the said governors, at a general court, shall think ^^
fit

And they shall cause to be entered in a book to be kept for Bookto be
that purpose, the names of all the contributors, with their keptcontri-
several contributions, to the end that a perpetual memorial, may ^^^^^
be had thereof, and whereby the treasurer may be charged with therein.
the more certainty in bis account*

Pursuant to the power in the act, eighteen rules were made,
which are as follow :— -

!• The augmentations to be made by purchase and not by j^^i^f^r
way of pension • diitriba-

S. The stated sum allowed to each cure to be £S00, to be tion, ab-
in vested by way of purchase, at the expense of the corporation. *^^^^ ^^'

3. As soon as all the cures not exceeding £10 per annum,
which are fitly qualified, shall receive the £200, the governors
shall then proceed to augment those which do not exceed £20
per annum, and augment no other till all these have received
£200, except as after provided. And that from the time that
all cures not exceeding £10 per annum shall have received the
£200, the same rules, &c. shall be thenceforth observed in re-
lation to cures not exceeding £20, which are now in force in re*
lation to cures not exceeding £10 per annum.

4. That to encourage benefactions the governors may give
£200, to cures not exceeding £46 per annum, where any per-

448 first tmiti anfe ttulfyi.

QMep'0 sons will give the same, or a greater sum in lands, tithes^ or
^4' '^en^ charges-

— 5« That the goYemors shaU every year between Christmas
jlj^^jl^^ and EUtfter cause the account of wliat monies they have to dis*
tion^mb- tribute that year to be audited, and when they know the sum,
■tract of. public notice shall be given in the Gamette or such other way,
as shall be thought proper, that they have such a sum to distri-
bute hi so many shares, and that they will be ready to apply
those shares to such cures as want the same, and are qualified to
receive them, where any persons will add the like, or greater
sum to it, or the value in land, tithes, &c., for any such particular
cure.

6w If several benefactors offer themselves, the governors shall
first comply with those that offer most.

7. Where the sums are equal, they shall prefer the poorer
living.

8. Where the livings and sums offered are equal, those that
first offer shall be preferred.

9. Provided, that cures not exceeding £20 per annum, shall
be so far preferred, that the governors shall not apply above one-
third of tne money they have to distribute that year to cures
exceeding that value.

10. No proposals of benefactors to be received after Michael-
mas for that year, but if any money remain, after that, to be
disposed of, in the first place two or more of the cures in the
gift of the crown, not exceeding £10 ner annum, shaU be
chosen by lot to be augmented preferably to all others $ the
precise number of these to be settled by a general court, when
an exact list of them shall be brought in to the ffovemors.

11. For the money to be disposed of after that, a list shall
be made of all the cures in the church of England, not ex-
ceeding £10 per annum, and so many of them be chosen by
lot as tnere snail remain sums of £200 for their augmentation.

12. Provided that when all the cures not exceeding £20 per
annum, shall be so augmented, the governors shall then pro-
ceed to augment those of greater value, according to such rules
as shall be proposed by them, and approved by the king, under
his sign manual,

13. That all charitable gifts shall be strictly applied according
to the particular directions of the donors thereof, where any has
been given, where not, it shall be applied as the rest of the fund.

14. A book to be kept wherein shall be entered all the sub-
scriptions, contributions, gifts, devises, or appointments to the
charity mentioned in the charter, the names of the donors and
the particulars of the matters so given ; the book to be kept by
the secretary of the corporation.

15. A memorial of the benefactions and augmentations made

;ftn(t fntitd anH Unti)^. 449

to each cure, shall, at the charge of the corporation be set up Queen

in writing, on a stone to be fixed in the church of the cure so ^^^^^^

lo be hicreased, these to remain in perpetual memory thereof. — * —

16. The treasurer, at the next general court after the receipt ^^^^^ ^^J
of any money for the corporation, is to lay an account thereof ^" "^'°'*'
before the governors, who may order it to be placed out for
improvement thereof upon some public fund or other security,

till they can lay it out in proper purchases for the augmentation
of cures.

17. The treasurer to account annually before an audit com*
mittee, who are to state the same ; the said account to be en-
tered in a book kept for the purpose, to be laid before the
general court, next after such stating, there to be re-examined
and determined*

18. The persons whose cures are augmented to pay no fee
to the officers or servants of the corporation.

In order to encourage bene&ctions for the furtherance of the Power to
objects of Queen Anne's Bounty, it was enacted by the 2^3 **^^ ^^^
ArniCp e. 1 1 , «. 4 4r 5, that every person having in his own right any chase? ^^^'
estate or interest in possession, reversion, or contingency, in any
lands, or property in any goods, shall have power by deed enrolled
in such manner, and within such time as is directed by the
27 Hen. 8, c. 16, for enrolment of bargains and sales, or by his
last will or testament in writing, to give and grant to, and vest
in the said corporation and their successors, all such his estate,
&c., for the purposes of such augmentation, &c. ; and such
corporation and their successors shall have full ability to take
and purchase, &c. as well from those disposed to give, as from
those willing to sell, &c«, without any license or writ, ad quod
damnum^ the Statute of Mortmain, or any other statute or law
notwithstanding.

Provided, that this power shall not enable any person within Persons
age, or of non sane memory, or woman coverte, (without her noTemMw-
busband,) to make any such alienation. ered.

By the 43 Geo. 3, c. 107, it is enacted, that so much of the
above statute as relates to deeds and wills, made for the benefit
of Queen Anne's Bounty, shall remain in full force, notwith-
standing the 9 Geo. 2y c. 36, s. 1. (Stat, of Mortmain.) And
it is expressly provided by the 45 Geo. 3, c. 84, that all persons
may give personal chattels to the governors of Queen Anne's
Bounty in like manner as they could have done before the
passing that act, without anv deed either enrolled or not enrolled,
in like manner as he could or might have done, either by
deed or deeds enrolled, or otherwise, before the passing the
act; which act received the royal assent, 2nd July ^ 1805.

By 1 Geo. 1, sh. 2, c. 10, s. 1, bishops and the guardians of
the spiritualities, sede vacante^ are required to inform them-

G G

450 fit^ tmitsi anil Unlfy^

Queen selves of the clear yearly value of every benefice with cure of
boimty. Boulsy living, and curacy within their dioceses, or within any

~ peculiars or places exempt, within the limits of their respective

bisfops^u ^><><^se8, or adjoining or contiguous thereto, and how such
to value of yearly values arise, with the other circumstances thereof, and to
benefices, certify the same under their hands and seals, or seals of their

respective offices, to the governors of the bounty.
^ d "^0/ Although by s. 2, it is said, that where the certificates re-
per annum, turned into the exchequer, under 5 Anne, e. 24, duly specified
the yearly values of any livings, not exceeding £50, no
difierent valuation shall be returned to the governors, yet
Reports to by 45 Geo. 3, c. 84, s. 1, this is altered, and by that act all
benefi^ces. ^i^hops and guardians of spiritualities, sede vaeante, are directed
from time to time, as they see occasion, to inform themselves of
the values of all such benefices with cure of souls, livings, and
curacies, returned into the exchequer in pursuance of 5 Anne^
ror^ac?" ^' ^'^^ *"^ ^ Anne, c. 27, and certify the same to the governors
suchnew^'^ of Queen Anne's Bounty ; and such governors may act on sach
valuations, new certificates with respect to livings certified into the eTt.--
chequer, {for the purposes of augmenictiion,) as fully as* they
might do under I Geo. 1, sh, 2,c, 10, in regard to livings not so
certified, and as if the restraint in s. 2 of that act had not been
made.
Modeofap. To the end that churches and chapels may, at all times, be
plication, capable of receiving augmentation, it is provided by 1 Geo. 1,
Annexation sh. 2, c. ]0, s. 2\, that if the governors shall allot to any church,
of lands to &c., any lands, &c,, arising from the said bounty, or from any
^»e ce. private benefaction, and declare that the same shall be for ever
annexed to such church, &c., then such lands, &c., shall
thenceforth be held, &c., and go in succession with such church,
&c., for ever ; and such augmentation so made shall be good,
whether such church, &c., be fuU or vacant, provided the deed
or instrument in writing, by which such allotment is made, be
enrolled in the chancery within six months after the day of the
date thereof.
Mainte- And, whereas the augmentation is intended for the main-

nance of tenance not only for parsons and vicars, but also of curates, &c«
we7/L*' officiating in churches and chapels, it is enacted by 5 Anne^
incumbent, c. S4, s. 4, that when any part of the first fruits or tenths, that
be annually or otherwise, applied towards the maintenance of
every minister officiating in any church, &c., such part shall from
thenceforth for ever be in like manner continued to the minister
from time to time, so officiating in the same church, &a, every
such minister, whether parson, vicar, curate, or other minister
for the time being so officiating in such church, &c., shall enjoy
the same for ever.
And by the 43 Geo. 3, r. 107, s, 3, it is enacted, that where

firsft fnittst anli Untf)i. 451

a living shall have been, or shall be augmented by the said go- Queen
vemors, either by way of lot or benefaction, and there is no Anne's
parsonage house, suitable for the residence of the minister, it ^"°^^'
shall be lawful for the governors, from time to time, to apply the House of
money appropriated for such augmentation, and remaining in [,^-[||j"t^
their hands, or any part thereof, in such manner as they deem
advisable in, or towards, the building, re-building, or purchasing Purchas-
a house, and other erections within the parish, suitable for the re- ing.
sidence of the minister thereof, which house shall be ever there- Application
after deemed the parsonage house of such living. °/ugT^^'**

By I Geo. I, sh. % c. 10, *. 4, it is enacted, that all churches Augmented
&c., which shall be augmented by the governors of the bounty benetices
shall be perpetual cures and benefices ; and the ministers duly tobepcrpe-
nominated and licensed thereon, and their successors res- ^"^^^"^^^^^
pectively, shall be in law, bodies politic and corporate^ and
shall have perpetual succession by such name, as in the grant
of augmentation shall be mentioned, and be enabled to take to
them and their successors, all such lands, &c., as shall be
granted to, or purchased for them by the said governors, or
other persons, contributing with the said governors as bene-
factors ; and the impropriators or patrons of any augmented
benefices or donations for the time being, and their heirs, and
the rectors or vicars of the mother churches whereunto any
such augmented curacy, &c., doth appertain, shall be excluded
from having, or receiving directly or indirectly, any profit or
benefit by such augmentation ; and shall pay and allow to the
ministers officiating in any such augmented church, &c., such Former
annual or other pensions, salaries, and allowances, which, by payments
ancient custom, or otherwise of right, and not of bounty, ought 1^^^^ ^^[
to be by them paid and allowed, and which they might, by due ^vithstand-
course of law, before the making the act, have been compelled ing bounty.
to pay or allow, and such other yearly sum and allowance as
shall be agreed on, (if any shall be), between the said governors
and such patron and impropriator, upon making the augmen-
tation ; and the same shall be perfectly vested in the ministers
officiating in such augmented cnurch, &c., and their successors.

Provided that no rector or vicar of such mother church, or No rector^
any other ecclesiastical person having cure of souls, and shall &c* ^^ ^
be devested from the same augmented church, &c. ; but the ^"^^^^ '
cure of souls, with all other parochial rites and duties, (such
augmentation and allowances to the augmented church, &c.,
on^ excepted,) shall remain in the same state, plight and
manner as before the making this act.

As to the effect of an augmentation or donatives, wrf. " Do- Donatives.
naiivei' and 1 Geo. sh. S, c. 10, s. 14 8f 15.

And by 1 Geo. sh. 2, c. 10, *. 6, if such augmented cure be La^ of
suffered to remain void for six months, the same shall lapse |||^ented ^~

Q Q 2 cure.

452 fint tniita atOi ttntb^*

Qoeen according to the course of law, used in cases of preaentative
Anne'* livings, and the right of nomination may be granted or recovered,

^^^^ and the incumbency may cease, or be determined, as in the

Applicttion ease of a vicarage presentative. Vid. tit. " Lapsed
^ ' With a proviso by s. 7, that if lapse incur, but the person

entitled shall nominate before advantage taken of it, such nomi-
nation shall be valid, though the title by lapse be vested in the
crown.
Patronage By Sec, 8. Where the governors give £200 to any cure not
mi*ireS\y*^ exceeding £35 ner annum, some one else giving the same or
lyenefac greater sum in lands or tithes ; it is provided, by way of en-
tion. couragement to benefactors, that all agreements with benefactors,

with the consent and approbation of tlie governors, touching
the patronage or right of presentation or nomination to such
augmented cure, made for the benefit of such benefactor, shall
be good and effectual in law; and the patronage of such
augmented churches shall be vested in such benefactors or
others, as fully as if the same had been granted by the king
under his great seal.

Sec* 9 renders valid the agreements made by guardians, on
behalf of infants and idiots.

See. 10, 11. Agreements by parson or vicar to be made with

consent of the ordinary; those made by a husband seised in right

of his wife, the wife to be a party.

Agreement By See. 1 2. Such agreements with benefactors to be as effectual

^r ^HT ^^^ supplying cures vacant at the time of such augmentation,

menied as for tlie advowson or nomination to future vacancies.

cures. By Sec. 16. Where any living shall be augmented by lots, the

Agreement governors, before they make the augmentation, may agree with

forstfpend" ^^® patron of any donative, or the impropriator of any rectory,

where aug- without endowment of vicarage, or parson or vicar of any mother

nientedby church for a perpetual, yearly, or other payment or allowance

'^^* to the minister or curate of such living, and for charging with,

and subjecting the impropriate rectory, or mother church, or

vicarage thereunto in sucn manner, and by such remedies as

shall be thought fit; and such agreements made with the king

under his sign manual, or others, are rendered as valid as the

agreements are declared to be in the 8M sec. supra. And if

such impropriator, other than the king, and such parson or

vicar does not make such agreement, the governors may refuse

such augmentation, and apply the money for other purposes of

the Bounty.

Excimnge. By Sec. IS. The governors, incumbent, patron, and ordinary

of any augmented living, may allow exchange of all, or any

part of an estate, settled for the augmentation thereof, for any

other estate in land or tithes, of equal, or greater value to be

conveyed to the same uses.

Sim fruttsf anH ttn^si. 453

By Sec. 20. All augmentations, certificates, agreements, and ^^
exchanges made by virtue of that act, to be entered and kept ^ouQiy^
in a book, which entries, when approved at a court, and attested

by the governors present, " shall be taken to be as records, and ^^P"<^*^®"

** true copies thereof, or of the said entries, being proved by g^^^j^ ^^

** one witness, shall be sufficient evidence in law, touching the cords.

*' matters contained therein, or belonging thereto." Copies evi-

dence.

Sncum^ent

Presentation.

Who may be presented.

How made.

Revocation of.
Collation.
Examination.

Refusal, notice of.
Admission.
Institution.

Subscription to articles.

Declaration of conformity.

" Reading in."

Rflfect of.
First fitdts and tenths.
Induction.

Form of.

Effect of.
Forms to be observed after induction.
Actions by new incumbent.

Evidence in.
Of " charging of benefices."

13 Eliz. c. 10 ; 43 Geo. 3, c. 84 ; 57 Geo. 3, c. 99.

An incumbent, from incumbered (signifying as well to possess who
and keep safely, as to endeavour earnestly, obnixi operam called
darCf) Co. Litt. 119 <]r; is a clerk duly possessed of, or resident
on, his benefice with cure.

There are four things necessary to the being a complete
incumbent.

Ist. Presentation. That is, the patron's free gift or com-
mendation of his clerk to the parsonage or vicarage, by
presenting or offering him to the bishop. Degge^ 5 ;
GodoL Abr. 317.

454

{tmtmtintt.

Whoso
called.

Prcsenta'
tion.

Must be in

priests*

orders.

Who may
be pre-
sented.

Layman or
deacon, qy.

Son of last
incumbent.

Sdly. Admission. OF such clerk by the bishop by bis aDov-
ance on approbation of him, after due examinatioD, and
by making a record of his name accordingly.

Sdly. Institution. Of such clerk to such benefice by the
bishop on collation.

4thly. Induction. Whereby the clerk takes actual possearion
of the benefice, by takinc the keys of the church door,
by the ringing a bell, or tfie like.

The word presentation is a known term of law, and when
spoken of a benefice with cure, imports the patron's presenting
his clerk to the ordinary to be admitted and instituted. 2 JSro.
P. C. 173.

It is enacted by 14 Car, S, c. 4, '' that no person shall be
capable of being admitted to any parsonage, vicarage, benefice,
or other ecclesiastical promotion, preferment, or dignity what-
soever, before such time as he shall be ordained priest, in the
form and manner by the said Book of Common Prayer pre-
scribed.** Any man presuming to be admitted, not having such
ordination, to forfeit £100.

Priest, or no priest generally, is triable by the ordinary ; but,
it is said, that if the question be, whether a man was, or was
not a priest at a particular time, it is triable per pais ; for the
rule being made, and penalties inflicted by an act of parliament,
the original cognizance does not belong to the ordinary, but to
the temporal courts. Gibs, Cod. 849 ; 2 Lev, S50. No person
is capable of being parson, vicar, &c., until he is twenty-four
years of age ; indeed, until that age he is incapable of being
made a priest. Degge, 55; Gibs. Cod. 848; 44 Geo. S, c. 23.

It has been said that a deacon, or even a layman, may be pre-
sented, and that it is sufficient if he be in priests' orders at the
time of the institution. 1 Burns E. L. 146 ; Hob. 140; Cro.
Eliz. 775. But this can hardly be recognized as law, indeed
Lord Hardwicke seems to have stated the contrary in The
Attorney General v. fVickliffe, I Ves, Sen. 80, and vid. 15 East,
136; Aylijffe, Parer. 415, says, that by the Decretals of
Boniface it was required that a person presented should be in

Ericsts' orders, at the time of presentation, or be capable of
cing promoted to priests' orders within the year. By the
Decretals of Gregory the 9^A, more especially called the papal
law, it was directed that the person presented should be in
some clerical order at the time of presentation. But Ayliffe
adds, that in England, the person should be in orders at the
time he tenders his letters of presentation to the bishop.

By the canon law it was not permitted for a son, without a
dispensation, to be parson of a church of which his father was
incumbent immediately before him. Degge, S ; 1 Bum*s E.

{ttntmlient. 455

L. 146 ; Gibs. Cod. 837. It has been said that this canon Pre^cnta.
uiras never received here. Sed vid GodoL Ahr, 258; Vtn, ^°"'

y46r. PresentaitoUy M. a, 4; Latch. 191. Degge however Who may
does not seem to treat the canon as havincr lost its force, but it ^ ^T
seems not to have been acted upon, as there is no instance of
deprivation for this cause, since the Reformation.

An alien, it seems, may be presented to a benefice. 1 Burns Alion.
JB. Zr. 144; Vin. Abr. Presentation^ L, a.: GodoL Abr. 264.
Ijord Coke however, says, '' the bishop ought not to admit him,
*' but may lawfully refuse; which we have added, for that the
" abridgments or late impressions may deceive you.** 4 Inst. 338.

If a man cannot speak such language as the parishioners Not speak-
understand, he ought not to be admitted parson of such a i°g|^an-
parish, but may be refused by the bishop ; for to be illiterate, fhe^pa-"
and not to be understood, is all one to the parishioners. The Hshioaers.
not being able to speak Welsh was held a good ground for the
bishop's refasal. Cro. Eliz. 119; Degge, 3. By 6 ^ 7 W. 4, Ztc^]^'
c. 77, the commissioners were directed to prepare and lay 6&7W.4,
before his then majesty, a scheme for preventing the appoint- <^-77.
ment of any clergyman, not fully conversant with the Welsh
language, to certain benefices with cure of souls in Wales.
This enactment has been subsequently repealed by 1 ^ 2 Fict. ^ *^^*^**
c. 106, s» 104, which provides, that within the dioceses of St, ^' ^^y^'
Asaph, Bangor, Llandaff, and St. Jt)avids, it shall be lawful
for the bishop, if he shall think fit, to refuse institution or
license to any spiritual person, who, after due examination and
inquiry, shall be found unable to preach, administer the sacra-
ment, or perform other pastoral duties, and converse in the Welsh
language. There is a provision for appeal to the archbishop
by the person refused, and that nothing therein contained shall
abridge the rights of the inhabitants of any benefice, of entering
a caveat to the institution, &c., of any spiritual person, or of
proceeding to procure the deprivation, of any such person.

No person can present himself, yet if he offer himself to the Not present
ordinary, and pray to be admitted, such admission may be ***'"*6^^*
good. It has been said that the regular way is to make over the
right to some other before avoidance. Gibs. Cod. 836.

A common person, as well as the king, may present to a church How made.

by parol, but if it be in writing, yet it is not any deed but only r

in the nature of a letter to the bishop. GodoL Abr. 265 ; Co. ^ ^'"^
Liu. ]20bf Degge, 5 ; 1 Sid. 426 ; 2 Fes. sen. 429 ; Gibson
says. Cod. 836, '^ If it be by word, the patron must declare in
" the presence of the ordinary ; if by writing, it is not properly
'* a deed, but is in the nature of a letter missive to the bishop.

But where a corporation aggregate of many doth present, it
* must be under their common seal.** It is said, however, that

466

Itmtmljetit

Presenta-
tion.

Revoca-
tion of.

since the statute of frauds, all presentations must be in writing.
8 Cruise, 17.

A presentation may be revoked. It is true that QibsoHy in
his Codex, 836, seems to deny the opinion of Doderidge^ Latch,
192, that a common person could revoke, conceiving the law to
be, that none but the king had such power. But the opinion
of Doderidge was held to be law in Rogers v. Holhed^ % W,
Bl. 1039; 1 Bro. P. C. 117; Godol, Abr. 268. And it is
said by Lord Hardmcke, 1 Ves, sen. 81, that the king, before
induction, and a common person, before institution, may revoke.
Varying of. As to the power of varying, it seems agreed on all hands that
this may be done by a common person ; that is, that after one clerk
hath been presented the patron may, before admission, present
another ; but with this difference from a revocation, that where
a patron doth thus vary, cumulando, the ordinary may choose,
and admit which of the clerks he pleases. Vin. Abr, Present,
U, a.. Lane, 74. But this power of varying, it seems, does not
belong to ecclesiastical persons, because they are supposed to
be competent judges of the sufficiency of the person. Gibs.
Cod. 836; Keilw. 164; Vin. Abr. Present. T. a. 6; GodoL
Abr, 259.

If a common person present one, but dies before institution,
this is not any revocation ;.and if his executor present, it is said,
the bishop may receive either clerk. Vin. Abr. Present. U. a^

A bill, to have the presentation of a living on the next avoid-
ance delivered up, charging the defendant with gross miscon-
duct in obtaining it whilst private tutor in the family, was dis-
missed on general demurrer.

If the king die before his clerk's admission and institution, it
is a revocation in law of his presentation. Or if the king pr^
sent one to a benefice, and then present another to the same,
without revoking the former, or making any mention of it, y^t
this is also a revocation in law of that former, unless the second
were by fraud or surreptitiously obtained. GodoL Abr. S66.

Godolphin says, Abr. 270, 273, " Examination (a) is that
trial or probation which the bishop or ordinary nudces before

Examina-
tion.

(a) Upon the foundation of churches by lords of manors, the bishops
were well contented to let those patrons have the nomination of Idcuio-
bents, provided they were satisfied of their fitness, and that the nomina-
tion was not deferred beyond a limited time. So that in truth the
right of patronage is but a limited trust, for patrons never had the ab-
solute disposal of their benefices. So, if they did not present fit persons
within the limited time, the care of the churches returned to the bishopi
who was then bound to provide for them. 1 BurrCs E. L, 152; jww^
" Lapse.''

{imimiirnt 457

his admission to holy orders or to a benefice touching the qua- S'^unina-
lification of such persons respectively. So that there are two ^^°'
certain times and seasons especially wherein this examination is
required ; the one before an admission to holy orders ; the other
before en admission to a benefice. The former being enjoined
by (Janon S5. So also when the clerk is presented by the patron
of an advowson, before he be admitted as clerk to serve the
cure, the ordinary is to examine him of his ability. For if
upon his examination he be found unable to serve the same, or
be '^ criminous i^^ the ordinary may refuse to admit and institute
him to the benefice. Degge^ 6*

A clerk having been ordained and licensed to preach by
another bishop^ and so presumed to be of good abilities, doth
not take away or diminish the right which the statute gives a
present bishop to examine and judge. Gibs. Cod. 857.

By the statute AriicuU Cleri, 9 Ed. 2, st. 1, e. 13, which is a
statute not merely enacting, but declaratory of the law and
custom of the realm, it appears that '' of the ability of a parson
presented to a benefice of the church the examination belongeth
to the spiritual judge, so it hath been used heretofore and shall
be hereafter.** Lord Coke^ says, " The bishop in this exami-
'' nation is a judge and not a minister, and may and ought to
'' refuse a person presented, if he be not ' idanea persona. "
2Inst.6Sl.

All such matters as are causes of deprivation are also causes
of refusal, but for a presentee to have another benefice is no
cause of refusal for that is at his own peril ; and possibly the
second benefice is more worth than the former, which only be-
comes void in such case. God. Abr. 271 ; Specofs case, 5 Rep.
59; Gibs. Cod. 851.

By Canon S9. It is directed that no bishop shall institute to Letten of
any benefice who hath been ordained by any other bishop, orden.
except he first shews unto him his letters of orders, and bring
him a sufficient testimony of his former life and good behaviour,
if the bishop shall require it ; and lastly, upon due examination
shall be worthy of his ministry.

By the ancient laws of the church, and particularly of the
church of England, the four things in which the bishop was to
have full satisfaction, in order to institution were, IstAge; 2d
Lieaming ; 3d Behaviour ; 4th Orders, (a)

(a) In a case where the right of nominating is in A., and of present-
ing in B. ; B. is to judge of the qualification of the person nominated
in the same manner as a bishop would. If the person presenting, object
on the score of immorality, it may be tried by a jury. 3 7*. R. 848.

458 {tmtmbntt

Examina- In Specoti CMC, 5 Rep. 68, which was a proceeding in
^*^°' Quare impedit^ against the bishop of Exeter ; the bishop

SptcoCt pleaded generally, that the presentee was an inveterate schia-
cau, matic. In the Common Pleas it was adjudged that the bishop's

plea was insufficient, which judgment, upon a writ of error to
the king's bench, was affirmed. In R. v* The Archbishap of
Canterbury ▼• Bishop of London^ 15 Eastf 143. Zrorc/
Ellenborough thus speaks of Specots case. " In Speeofs case it
*' is decided that it is not allowable to plead generally that the
** clerk presented, is an inveterate schismatic. That case was
'' much discussed, and there was great debate among the judges
*^ whether a plea pleaded thus generally, were good or not, I
*^ think the judges were equally divided in the common pleas ;
^* upon which the opinion of the other judges was taken, when
** the greater part decided that it was not a good plea ; and
'* this judgment was afterwards affirmed in the king's bench,
** upon a writ of error ; and it was held according to the report
'' of the case in 5 Co. 58, (and which is also reported in An^
** dersoH, 189, and S Leon, 198,) that the cause of the schisni
** or heresy, for which the presentee is refused, ought to be
alleged in certain, to the intent that the king's court may
consult with divines whether it be schism or no, and if the
party be dead, thereupon to direct the jury to try it; but if
it be traversed, and the party refused be aUve, it shall be tried
by the metropolitan. The authority which belongs to Soecats
case has been certainly questioned, or a good deal shaken by
** the case of Hele v. The Bishop of Exeter and others, in
'' Show, P. C. 88. It was there maintained that it was a good
** plea on the part of the bishop, that the presentee was ndmms
** sufficiens in liter aiurd, without stating in what particulars.
*' It was contended that he should state in what respects he
'* was ' minus sufficiens, Sic. ; because, in case of the death of
*' the party it could not be tried by the archbishop, but must
*' be tried by the jury. It is so laid down certainly in the
** books ; but a trial of that sort has never occurred in oar
'* times, nor is there any instance of it, that I am aware of, to
** be found in our books ; and if such a case should happen, it
*' does not occur to me, how such a trial could conveniently
*' proceed. Suppose a jury of twelve farmers collected in the
'' jury box, addressing themselves to try the literature of a de-
" parted person ; how are they to set about it ? are they to try
" It by evidence of his reputation for literature generally, or
" are they to try it by the particular documents in proof of his
" literature, which he may have left in the shape of Latin or
'' Greek exercises, produced upon his examination before the
'' bishop, and upon which the bishop pronounced at the time

Imumiient 459

" he refused to institute him 7 It would be somewhat strance Examim-
" to present to the grave attention of such a panel the trans-

" lation which the deceased may have made from some part Specot*t
" of the sacred writings in the Greek tongue, or his Latin ^'^^'
" compositions upon a theme which may have been handed
*' to him by the bishop ; to hear counsel haranguing them
** upon topics of grammatical construction or verbal criticism,
" and to see them assisted by a judge, (who possibly may not
" himself be very learned in the dead languages), addressing
*' their minds, to try whether some learned bishop is right in
*' the judgment he has formed upon the same materials, and
" sitting as a court of error from him in matters of grammar.
" I wish that the law books, which tell us that it belongs to a
** judge and jury to decide such points, had at the same time,
*' instructed us how we are adequately to perform the task.
'' As no case has been referred to as having happened, so I
'^ hope none will ever arise; for however well constituted we
" may be for other purposes, every body must see that a very
** imperfect and blind execution of duty must take place, if
" the trial of literature were committed to such a tribunal, I
'' merely advert to these, as topics presented by the mention of
" Specot*s case.''

It seems now to be understood, that if the refusal be for want
of learning, the ordinary is not accountable, to any temporal
court, for the rules by which he proceeds in examining and
judging those that come to him for institution.

*' Not suiBcient," or '* not capable in learning to have the
'^ church," is a good plea on the part of the bishop, without set-
ting forth in what kinds of learning or to what degrees he was
defective, (a) 2 Salk. 534.

By the ancient Canons the bishop had two months to Time for.
inquire and inform himself of the sufficiency and quality of
every clerk presented to him. Linchc. 138, 215; 1 Burn^s E.
Zf. 15^ But by the 95th Canon^ it is ordained, that the said
two months shall be abridged to twenty-eight days. Though
the Canon speaks of bishops only, yet it applies to peculiars, and
all others having the power of institution.

If the bishop refuse to admit the clerk presented, and the lUfusal.
presenter be a layman, the ordinary is in most cases bound to if a patron

give notice to the patron of such refusal ; and if in such case be a lay-
man.

(a) It is not usual for bishops to insist on examining a clergyman
actually in orders, preparatory to institution ; still, the power exists,
and was exercised, and submitted to without objection in the diocese of
Exeter, in the year 1884, and a clergyman refused institution on the
ground that he was " minta sufficiens"

460 InnmArnt

Hefiiial. no notice is given, no lapse is incurred, thoagh no other derk
Notice of. ^^ presented ; nor if notice be given, unless upon trial, the clerk
was justly refused. But if a clerk presented, be for good cause
refused, and notice thereof be in due time and manner given to
the patron, and no other clerk be presented in time; lapse doth
run to the ordinary. But if the clerk refused be the presentee
of a bishop or other ecclesiastical patron, the ordinary is not
bound to give notice of the refusal ; or if he should do it, such
patron can never revoke or vary his presentation by presenting one
afterwards that is better qualified, without the ordinary's consent ;
the law supposing him, that is a spiritual person, to be capable
of choosing an able clerk. fVeUs. c. 12 i Gibs. Cod. 836. (a)

It seems, however, but reasonable in all cases, to give
the patron notice of the refusal, whatever the cause may
be, tor it is very possible that the person presented may be
unfit, and the patron not know it; and it is not enough
that the bishop barely give notice of his refusal unless he
also signify the cause of it ; for although the bishop b judge
in the examination, yet inasmuch as the proceedings of the
bishop are not of record, the cause of refusal is traversable, and if
it be traversed and the party refused be living, this shall be tried
by the metropolitan ; and if he be dead by the country ; 5 Rep»
58; but see ante^ 458, the observations of Lord EUenborougk.

If the bishop refuse a clerk for insufficiency, and the patron
presents another, and the bishop admit the first, he is a dis-
turber; for having once refused a clerk for insufficiency, he cannot
afterwards accept him. Gibs. Cod. 851.

If a bishop without good cause refuse to admit and institute
a clerk to the church to which he is presented, his remedy is
by complaint before the archbishop in his court of appeal ; if
an archbishop refuses then to the deleffates, (or now, to the
judicial committee of the privy council)* So, if the bbhop
admit the clerk, and then refuse to institute him, the clerk
may have the same remedy against the ordinary to compel
institution.

The course is, for the dean of the arches, or other judge or
judges of the court of appeal, to send a letter to the bishop so
refusing ; which letter or rescript is called duplex querela.
DupUx By this proceeding the bishop is called on to show cause

qfunb. why, by reason of his neglect of doing justice, the right of in-
stitution is not devolved to the superior judge ; the duplex
querela should also contain an inhibition to the bishop that
nothing be done pending the suit injurious^ to the party
complaining. Hob. 15. As to the proceedings in duplex

(a) This distinction between lay and ecclesiastical patrons, was acted
upon in the case alluded to. Ante, 459, noie a.

innimbnit 461

querela. Fid. Oughtan, tit. 273 ; Consel. 344 ; 1 Bum's E. L. Refusal,
160; 2/6.230.

If the bishop refuse to admit the clerk presented to him, the
writ of quare non admisit will lie : and if the cause of refusal
be, that he questions the patron's right to present, and the
said patron afterwards recover against the said bishop in a writ
of quare impedit, the clerk shall then have a writ of admitiendo
clerlcum. F. N. B. 38 ; Register, 33 a ; GodoL Abr. 274, ante
•* jidvowson**

"When upon examination, the bishop is satisfied of the suf- xdmission.

ficiency of the clerk, he admits him in these words, " admitio te '-

hiibilem.^ Co. Litt. 244 a. This act is called admission, as
contradistinguished from institution ; institution being the act
by which he commits to him the cure, sometimes in the older
records called InvesUture.

Institution, as practised with us, consists in the letters of in- jogtitution.

stitution directed from the bishop or ordinary, in whose diocese *

the church is, to the clerk, the presentee, by which he admits ^^Tf ^^
him as lawful incumbent to the vacant church, whereto he is ^ *

presented by the patron thereof. GodoL Abr. 274.

Before actual institution, the clerk, to whom the letters are
directed, must,

1st. Take the oaths of allegiance and supremacy before such
person as shall have authority to admit him. By 1 Eliz. c. 1 ;
1 W. 1, e. 8, s. 5; 1 BurtCs E. L. 163.

2dly. The oaths against Simony, vid. ** Simony,'' required
by Canon 40. 1 Burns E. L. IC3.

3dly. The oath of canonical obedience to the bishop and his
successors, the form of which oath is as follows.:—

** I, A. B, do swear that I will perform true and canonical
" obedience to the bishop of C, and his successors, in all things
** lawful and honest, so help me God." 1 Bum's E. L, 163.

An oath of residence formerly required to be taken by all Q^^y^ ^^
Ticars, by a constitution of Oi/io, is now dispensed with by 1 ^2 residence.
I id, c. 106, ^. 61 , re-enacting the 34th section of the 57 Geo. 3,
c. 99.

By Canon 36, and 13 Eliz. c. 12, No person shall, either by Subscrip-
institution or collation, be admitted to any ecclesiastical living; tioDtoarti-
except he shall first subscribe to these three articles following : — ^^ *° ^^^^

1st. " That the king's majesty, under God, is the only Kinj-»,'g„.

** supreme governor of this realm, and of all other, his highness's premacy.

*' dominions and countries, as well in all spiritual or ecclesiastical

'* things or causes, as temporal ; and that no foreign prince,

*' person, prelate, state, or potentate, hath, or ought to have

" any jurisdiction, power, superiority, pre-eminence, or au-

" thoritVf ecclesiastical, or spiritual, within his majesty's said ^ ^ ^
gi 1 J • • J *^i. • ft J ^ Book of

" realms, dommions, and countries. Commoa

2dly. " That the book of Common Prayer, and of ordering of Prayer.

462

itifttmlmit*

Subscrip-
tion to
CanoD 36.

39 Articles.

Declara-
tion of con*
formity.

Certificate
of declara-
tion of con-
formity.

** bishops, priests, and deacons, containeth in it nodiing con*
** trary to tne word of God, and that it may lawfiilly be used,
'* and that he himself will use the form in the said book pre-
'' scribed in public prayer, and administration of the sacraments,
" and none other."
Sdly, '' That be alloweth the book of articles of religion,
agreed upon by the archbishops and bishops of both provinces,
and the whole clergy in the convocation holden at London,
" A. D. 1562; and that he acknowledgeth all and every the
'* articles therein contained, being in numbers, nine and thirty,
** besides the ratification, to be agreeable to the word of God."
To these three articles whosoever will subscribe he shall for
the avoiding of all ambiguities subscribe in this order and form
of words, setting down both his christian and surname, f>iz. "/
** N. N. do willingly, and ex animo, subscribe to these three
'' articles above mentioned, and to all things that are contained
'' in them.*' And if any bishop shall admit any as ia aforesaid,
except he first have subscribed in manner and form aforesaid,
he shall be suspended from giving of orders and licenses to
preach, for the space of twelve months.

By the 13 ^ 14 C 2, c. 4. Every dean, canon, and pre-
bendary of every cathedral or collegiate church ; and evei7
parson, vicar, curate, lecturer, and every other person in holy
orders ; who shall be incumbent, or have possession of, any
deanery, canonry, prebend, parsonage, vicarage, or any other
ecclesiastical dignity or promotion, or of any curate's place or
lecture, shall, at or before his admission, to be incumbent or have
possession aforesaid, subscribe the declaration or acknowledg-
ment following, vis. ** I, A. B. do declare, that I will conform
'* to the liturgy of the church of England, as it is now by lai^
*' established/' 13 ^ 14 C. 2, c. 4, s. 8, 12; 1 W. seu. U

C. 8, 8. 11.

Which said declaration and acknowledgment shall be sub-
scribed before the archbishop, bishop, or ordinary of the diocese
(or before the vicar-general, chancellor, or commissary res-

!)ectively, 15 Car, 2, c. 6, s, 5,) on pain that every person
istiling in such subscription, shall lose and forfeit such res-
pective promotion, and shall be utterly disabled, and ipso/aeio
deprived thereof; and the same shall be void, as if such person
so failing were naturally dead. IS ^ 14 C 2, c. 4, «. 10.

After such subscription made, every such parson, vicar,
curate, and lecturer, shall procure a certificate under the hand
and seal of the respective archbishop, bishop, or ordinary of
the diocese, (or such their vicar-general, chancellor, or com-
missary as aforesaid), who shall on demand make and deliver
the same, to be read by him publicly in the church afterwards*
13* 14 C. 2, c. 4, *. 11.
For the forms of " Reading in/* Vid. post.

itmimlinit 463

The form of institution, still in use, is for the clerk to Institution.
kneel before the ordinary, whilst he reads the words of institu- i orm ot.
tion, " Insiituo te ad (tale) beneficium et habere curam anima-
" rum, (of such a parish) accipe curam iuam et meam^'* this
'* is read from a written instrument drawn beforehand for that
purpose, with the seal episcopal appendant, which the clerk,
during the ceremony,is to hold in his hand. 1 Imt. 344 a ;
GodoL Abr. 276 ; Johns. 74.

A distinct and particular entry should be made of the institu-
tion in the bishop's register, not only of the day and year ; but
if presented, in whose right ; if collated, whether by lapse or
not. This may be of importance to the clerk, if his letters of pre-
sentation should be lost ; and also for the title of the patron.
1 Burns E. L. 168.

If the bishop admit, it is sufficient He may either institute By whom.
in person, or give his fiat to the vicar-general, chancellor, or
other commissary to institute for him. Johns. 72. During the
time that a diocese or other inferior jurisdiction is visited, or
during vacancy of the see, the right of institution belongs to
the visitor, or in the case of vacancy to the guardian of the
spiritualities. Vid. " Bishop" Gibs. 804.

The examination, admission, and institution need not take ^^ere.
place within the diocese in which the church is, for the juris-
diction of the ordinary as to such matters is not local, but fol-
lows his person wherever he goes. Wats. c. 15.

Collation is the act of the bishop in respect of a benefice in Collation.
his own gift, equivalent to the act of presentation to him by any
other patron, and the act of acceptance and admission by him-
self; for it could hardly with propriety be said that the bishop
presented to himself, or that he admitted a clerk whom be had

E resented to himself; but when the act of presentation is by
im as well as the act of admission, the whole proceeding is
designated by the word '* Collation."

It seems not to be material what seal the ordinary uses. The Seat.
seal used, whatever it may be, shall be taken to be the seal
of the person instituting. Cro. Car. 341 ; Godol. Abr. 277.
When the institution is complete, the ordinary usually executes
a written mandate to the archdeacon or other proper person to
induct. Johns. 74; Cro. Car. 341.

By 31 EUx. c. 6. If any shall for any reward, &c. or pro- Fees.
mise, &c. of reward, &c. other than for lawful and usual fees,
admit, institute, &c. to any benefice, &c. or other living eccle-
siastical, he shall forfeit double the value of one year's profit
thereof, and the same shall be void, as if such person were
naturally dead. All fees were forbidden by the councu oiLateran.
Fees are now regulated by the practice of every diocese.

464 inntmfient

iMiittttion. according to a table confirmed by archbishop Whitgift, as is
directed by 133d Canon.

Effect of. By institution the parson hath only Jus ad rent, and he hath

not jus in re until induction. Wherefore, in virtue of collation
and institution, the clerk may enter on the glebe and take tithes,
though for want of induction he can neither grant nor sue for
them, Gibs. 813 ; GodoL Abr. 276.

Institution alone causes plenarty , except against the king, when
he presents under a title by lapse pro hdc vice; for if his clerk be
instituted, but die before induction, he may in such case present
again. GodoL Abr. 276 ; Dyer, 34^ ; but against other persons
and also against the king himself when he claims in the right of
a common person, institution and plenarty by six months is

CoUatioii, pleadable ; and herem collation differs from institution, for by

effect of, collation the church is not full, nor is plenarty, by collation only,
pleadable, but the right patron may bring his writ, and remove
the collatee at any time, except he be such patron who hath
also a right to collate, for against him plenarty by collation is

Institution, pleadable. Co. LUt. 344* b. And the reason why collation

how tried, doth not make a plenarty, is because then the bishop would be
judge in his own cause, to the great prejudice of patrons, and
therefore the bishop's collation in this respect is interpreted no
more than a temporary provision for celebration of divine ser-
vice, until the patron do present, 1 Burns E. L. Vll \ Co.
Liu. 344 6 ; 6 Rep. 29.

Institution is properly cognisable in the ecclesiastical courts,
but, if after induction a man is sued there, supposing his institu-
tion was void, that shall be tried by the temporal courts ; because
by the induction the parson hath a freehold in the benefice, which
must be tried at the common law. 1 Burris E.h.Vl\\% RoU.
Abr. 294; Godol. Abr. 281 ; Bulsir. 13.

When a church is foil by institution, and a second institution
is granted to the same church, it is called a super-institution^
and is properly triable in the ecclesiastical court, if there was no
induction on the first institution, but if there were, then not.
\ Bum's E.L. 171.

First fruits. By 26 Hen. 8, c. 3, s. 2. Every person, before any actual or
real possession, or meddling with the profits of his benefice,
shall pay or compound for the first fruits to the king's use, at
reasonable days and upon good sureties. Ante 441.

First fruits are to be paid within three months after institu-
tion or collation.

Tenths. Tenths usually become due at Christmas, and are to be paid

immediately afterwards. By 1 Vict. c. 20, which is an act for
the consolidation of the ofiices of first fruits, tenths, and Queen's
Anne's Bounty. The collection of first fruits and tenths is

Iitmmlinit 465

transferred to Queen Anne's bounty office. The office at which lartHotiop.
T>oth first fruits and tenths are to be paid adjoins the bounty xeotbi.
office in Great Dean's Yard, Westminster.

By institution or collation, the clerk has the cure of souls
committed to him, and then is answerable for neglect in this
point ; but not before.

Induction is the giving the parson actual possession of the ln<loctioii.
church and glebe, which are the temporalities of the church, nor
is he, till induction, a complete incumbent. Godol. Abr. ^78.

In the instrument of collation the government of the church
is conferred on him ; in that of institution the cure of souls is
giTcn ; but when he receives induction, he is given ** the
real and corporal possession of the church with all its rights,
profits, and appurtenances thereto belonging." Godol. Abr4
276; 3PAiU.75.

After institution the ordinary issues a mandate for induction,
directed to the person having power to induct, who of common
right is the archdeacon ; but by prescription others may make
inductions, as the deans and chapters of St. Paul's and Litch-*
field. Godel. Abr. 218; 1 Burn's Ecc. L. 172.

It is said if an archdeacon make a general mandate for Feet,
induction to all parsons, vicars, &c., within the archdeaconry,
and a minister not resident within the archdeaconry make
induction, yet it is good. Godol. Abr. ^80; Gibs. Cod. 860.

Institution and induction into the office of archdeacon is an
ipso facto institution and induction into a prebend annexed to
it. SB. % Ad. 95.

As induction is a temporal act, if the archdeacon refuse to
induct after institution an action on the case lieth against the
archdeacon ; Godol. Abr* 279; such refusal is punishable also by
spiritual censures, or a mandamus will be granted. S B. ^ Ad*
95. By induction, the person instituted hath, as it were, livery
of seisin, whereof publication is made to the parishioners, by
ringing one or more of the bells. Godol. ib.

In Doe dem* Kirby r. Carter ^ R. ^ M. 237, it was held, that
institution, followed by induction, was sufficient evidence to
support an ejectment, and that the recital in the instrument of
institution, that it was made on the cession of the former in^
cumbent, so accompanied by induction, was primd facie evidence
of the resignation of such former incumbent.

If a church is exempt from archidiaconal jurisdiction, as many Churche*
churches are, then the mandate is to be directed to the chan- »empt
cellor or commissary : if a peculiar, then to the judge of the ^Uiconal
peculiar. When an archbishop collates by lapse, or when a see is juritdic-
vacant, the mandate goes, not to the officer of the archbishop, but tion.
to the officer of the bishop. 1 Bum's Ecc. LA12\ Gibs. Cod. 860.

H H

466

inntmbtnt

Induction.

Churches
exempt
from archi-
diacooal ju-
risdiction.

Free cha-
pels.

Prebends.

Sinecures.

Who may
induct

Form of
induction.

CertiBcate
of indue*
tion.

If a bishop die or is removed after institutioii, but before in-
duction is complete, the archbishop may grant a mandate of
induction, the archbishop being guardian of the temporalities,
sede vacante; so also, it the authority of the bishop be sus-
pended, as by visitation, if such mandate be not executed till
after a new bishop has been confirmed, who then has power
himself to execute it, yet it is not void, although it may be
voidable. 1 Burns E. L. 172.

The king's grantee of a free chapel is to be put into posses-
sion by the sheriff of the county, and not by the ordinary.
GodoL Abr. 279 ; Gibs. Cod. 860. In some places a prebendary
shall have possession without induction, as at Westminster, where
the king makes his collation by letters patent, and thereupon the
party enters without induction. Sometimes the bishop makes
induction, and sometimes others, according to the usage of the
place. iVaiM. c. 15. The possession of sinecures is to be ob-
tained in the same manner as other benefices.

The clergyman having obtained the bishop's mandate of in-
duction, is to take it to the proper ofiice, tor the purpose of
procuring the archdeacon's mandate, directed to all and singular
rectors, vicars, &c., in order to obtain induction. But if the
bishop's mandate is directed in general, to all and singular
rectors, vicars, &c., any clergyman in the diocese, mav induct
by virtue of that mandate, without any application to the arch-
deacon's office. Hodgson's Instructions, 30.

The person empowered to induct, taking the hand of the per-
son to be inducted, lays it on the key of the church in the
church-door, or on the ring of the door; or if the church be
ruinated, it is done by laying his hand on the wall or the fence
of the churchyard, and saymg, ** By virtue of this mandate,
** I induct you into the real, actual, and corporal possession of
'' the church of with all its fruits, members, and appurte-

'' nances." He then puts the new incumbent into possession of
the church, who, when he has tolled the bell, comes forth, and
the inductor indorses and signs a certificate of such induction
on the mandate, attested by those who witnessed the same.
This form substantially agrees with that recommended and set
forth by Degge.

The certificate of induction is usually in the following
form :

Memorandum, that on the day of 18 , 1, M. N.

rector, (vicar or curate, as the case may be,) of in the

county of and diocese of by virtue of the within

written mandate, did induct the within named A. B., clerk,
into the real and actual possession of the within mentioned
rectory, (or vicarage] of • with all the rights, membersi

it
u

iimimbent 467

and appurtenances thereof, witness my hand Induction.

The said A. B. was so 1
inducted in the presence > M. N.

of us. J

O. P. 1 Churchwardens
Q. R. / or Inhabitants, [as the case may be.] Ibid.

A new incumbent of a benefice is to read, within two months |' Reading
after actual possession, the morning and evening prayers, and *°*"
declare his unfeigned assent and consent thereto, publicly in
the church before the congregation, in the following form, ** I,
" A. B. do hereby declare my unfeigned assent and consent to
** all and every thing contained and prescribed in and by the
*' book entitled the Book of Common Prayer, and administra- Assent to
" tion of the Sacraments and other rites and ceremonies of the p^"°"

church, according to the use of the united church of England

and Ireland, together with the Psalter, or Psalms of David,
** pointed as they are to be sung or said in churches, and the

form of making, ordaining, and consecrating of bishops,

priests, and deacons.**

To read the thirty-nine articles in the church, in the time of ^^^^^^
common prayer, and to declare his unfeigned assent thereunto
within iwo months after induction ; and

To read in his church, within three months after institution or Declara-
eoUaiion, the declaration, appointed by the act of uniformity, and foJ^S;?.'*"*
also the certificate of his having subscribed it before the bishop.

The forms required, as above mentioned, constitute what is
termed ** reading in," and are usually observed on the same
Sunday.

It is prudent to obtain from the churchwardens, or some
other inhabitants of the parish, a certificate that the new in-
cumbent has complied with the above forms, which are required
to be observed in the church. A printed form of which certifi-
cate, as here set forth, is usually supplied by the bishop's secre-
taiy at the time of institution or collation :

Memorandum.— That on Sunday, the day of , Certi6cate

m the year of our Lord one thousand eight hundred and ^ '

, A. B., rector (or vicar) of the rectory (or vicarage)
of the parish church of , in the county of ,

and diocese of , did read, in his parish church of

aforesaid, the articles of religion, commonly called
the Thirty-nine Articles, agreed upon in convocation in the year
of our Lord 1562, and did declare his unfeigned assent and
consent thereto ; also that he did publicly and openly, on the
day and year aforesaid, in the time of Divine Service, read a
declaration in the following words, vix. : " I, A. B., do declare,
" that I will conform to the Liturgy of the united church of
*' England and Ireland, as it is now by law established ;*' toge^

H H 2

468 Inntmfimt

CerUficftte ther With a certificate under the hand of the right reverend

of "rMd-

y by divine permission lord bishop of

■ '■ of his having ma^e and subscribed the same before him : and
also, that the said A. B. did read, in his parish church afore-
said, publicly and solemnly, the morning and evening prayer,
according to the form prescribed in and by the book entitled
" the Book of Common Prayer, and administration of the Sacra-
** mentsand other rites and ceremonies of the church, according
" to the use of the united church of England and Ireland;
'* together with the Psalter, or Psalms of David, pointed as
*' they are to be sung or said in churches, and the form and
** manner of making, ordaining, and consecrating bishops, priests,
** and deacons ;" and that, immediately after reading the evening
service, the said A. B. did openly and publicly, before the con-
gregation there assembled, declare his unfeigned assent and
consent to all things therein contained and prescribed in these
words, viz. : '* I, A. B., do declare my unfeigned assent and
" consent to all and every thing contained and prescribed in
" and by the book intituled the Book of Common Prayer and
'* administration of the Sacraments and other rites and cere-
*' monies of the church, according to the use of the united
" church of England and Ireland ; together with the Psalter,
*' or Psalms of David, pointed as they are to be sung or said
*' in churches, and the form and manner of making, ordaining,
" and consecrating bishops, priests, and deacons.** And these
things we promise to testify upon our corporal oaths, if at any
time we should be duly called thereto.

In witness whereof we have hereunto set our hands, the day
and year first above written.

C. D. G. H.

E. F. I. K.(o)

Within six months after institution or collation, a new in-
cumbent or prebendary is to take the oaths required by law,
in one of the courts of Westminster, or at the general quarter
sessions of the county, city, or place where he resides.
ActioBi by. By the act of induction the parson is put into the actual pos-
session of a part for the whole, and he can therefore maintain
trespass generally, and it is not necessary that he should actually
go on the glebe itself. 2B.Sf A, 470. Fifteen years' possession i^
primA facie evidence of a regular induction to a benefice and of
having read the thirty-nine articles. 3 Anst. 942. In an eject-
ment brought by a prebendary to recover his prebendal house,
tried before Wilmoi, C. J., it was objected that the plaintiff
ought to prove that he had complied with the several requisites of

(a) The above fbrms and directions are copied from Mr. Hodgson**
Instractions.

Itmtmbeiif. 469

the statute and canon law, preliminary and necessary to institu- Action§ by.
tion, but the chief justice said '' those shall be presumed upon ETidenca
*' sound principles of law.*' 3 WiU. 367. Nor need such pre- io*
liminaries be proved in any case in the first instance; but if
upon examination of the registers on the part of the defendant a
suspicion be induced that such requisites have not been per-
formed, it may be fit for a jury to take it into consideration.
3 fViU» ib. Lord Holt in one case observed, ''Having es-
** tablished his temporal title, his religious or political title shall
*' be presumed." Comb. 202. The recital in the institution that
it was on the cession of a former rector is primd facie evidence
of such cession. R. ^ M, ^7, ante 465. A new incumbent has
the right of immediate possession, and therefore the irregularity
of a notice to quit given by his predecessor is unimportant. lb.
If a presentation be required to be proved, and it be lost, the
bishop's institution book should be produced. A copy of it is
not evidence. 2 WiU. 366. It has been decided that, where a
blank was left in the register of an institution for tlie patron's
name, it might be supplied by reputation. 1 Wils. 2\5\ sed. q.

By the latter part of the first section of the 13 Elix, c. 20, Cliu|eson
it was enacted that all chargings of benefices with cure here- ^°^°<^^'
after, with any pension or with any profit out of the same to be is euz.
yielded or taken, hereafter to be made, other than rents to be c. 10.
reserved upon leases hereafter to be made, according to the
meaning of this act, shall be utterly void. The 13 Elix. c. 10 43 Geo. 9,
was entirely repealed by the 43 Geo. 3, c, 84. ^* ®^

The 57 Geo. 3, c. 99 repealed the latter act, but only so 57 Geo. 3,
much of the 13 Eli». c. 10 as related to leases of benefices and ^'^*
livings. The above portion of that act, therefore, which does
not relate to leases of benefices stands unrepealed ; the act
43 Geo. 3, c. 84, by which the 13 Elis, c. 10 was originally
repealed, being itself repealed by 57 Geo. 3, c. 99. In conse-
quence of this state of the law, it was held in the court of king's
bench that a bargain and sale of a rectory in 1816, after the
passing of the 43 Geo. 3, c. 84, but before the 57 Geo. 3, c. 99,
to a trustee for securing ah annuity for years, gave a legal estate
to such trustee. Doe dem. Gates v. Somerville, 6 B. Ss C. 126;
9 D.Sf R. 100. But where there was demise of a benefice
made subsequently to the 57 Geo. 3, c. 99, for securing an
annuity, it was held that, though in form it might be a lease,
yet, as it was substantially a " charging the benefice," it fell
within the words of the 13 EUa. c. 10; that part of that act,
which declared that all chargings of benefices should be void,
having been revived by the operation of the 57 Geo. 3, c. 99, re*
pealing the 43 Geo. 3, c. 84. Shaw v. Pritchard, 10 B. S[ C. 241 .

Before the passing the disabling and restraining statutes, Whtttre.
ecclesiastical bodies had power to alienate the possessions of

470

ItuunAtnt.

CharffCf od
bene nee.

What are.

13 Kliz.
c. 10.

Dot dtm,
Broughton
V. OuUy,

Dot dim,
Wilkt ▼.
Ramtdtn,

Ntwland ▼•
Watkin.

the church, which power still exists modified by diose statutes.
The 13 Eliz. c. 10 was passed, because in former times a needy
incumbent was content to take a living on any terms, and was
induced to grant leases in favour of the patron who had pre-
sented him. In the case of Moyg v. Leake and another^
8 T, R. which was decided entirely upon the 13 EUm. c. 10,
and before the passing either of the 43 Geo* 3, c. 84, or the
57 Geo, 3, c. 99, one of the defendants executed a deed, by
which he granted an annuity, or rent-charge, out of certain
benefices, which deed contained also a covenant to pay the
annuity, the court held that, though the grant of a rent-charge
was void by the 13 Elix. c. 10, yet the covenant in the deed
miffht operate as a personal security from the grantor.

In Doe dem. Broughton v. GuUy, 9 B. & C* 344, it appeared
that a rector, after the repeal of the 13 EUx. c. 10, by the 43
Geo. 3, and before the 57 Geo. 3, c. 99, charged his benefice with
an annuity, and that afterwards, and after the 57 Geo. S, e. 99,
which revived the 13 EUz. that he assigned such annuity. The
object of the deed of assignment being to substitute common
interest for annuity interest, it was held not to be a creation of a
new charge, but a continuation of the old charge, which being
valid at the time it was created, that is to say, during the operation
of the 43 Geo. 3, c. 84, which pro ianio repealed the IS EUm. c.
1 0, it was not invalidated by the subsequent act of 57 Geo. S, c* 99.

A similar question arose in Doe dem. Wilke v. Ramsden^ 4 B,
^ Ad. 609, 1 Net. ^ Man. 489. Two annuities, which were
originally created after the 43 Geo. 3, and before the passing
the 57 Geo. 3, were assigned to W. in 18S5, that is, after the
passing the latter act. It was contended that the assignment
did not vest the legal estate in W., because the object of it was
to secure, not the original annuities, but the annuity first granted
in 1825, and that it operated as a new charge upon an eccle-
siastical benefice, and was consequently void, and that the
terms created to secure the original annuities had been satisfied
by their having been paid ; but Parke, J., said, '* The two ori-
'' rinal terms were valid in point of law, being charged after
" the 43 Geo. 3, c. 85, and before the 57 Geo. 3, c. 99. The
" assignment of those terms for the purpose of securing the
" annuity granted in 18^, operated pro ianio as a continuance
" of the original charge, and vested the legal estate in W.**

It has been shown above that the demise of a benefice to
secure an annuity has been considered a sufficient ** charging of
a beneficfe** within the 13 Eliz. c. 10. 10 B. 8f C. 241. In
Newland v. Watkin, BBing. 113, a clergyman had raised money
of A. and B. by two severd annuities. In order to secure the
annuity to A., he had given him a warrant of attorney, expressly
authorizing him to issue a sequestration. He had also given a

Itttumiitnt 471

warrant of attorney to B., but that warrant contained no allusion Chaives on
to a sequestration. The annuities being in arrear, A. first, and ^^ ^^'
then B. entered up judgment, and respectively issued seques- What are.
trations against the defendant's benefices ; and the court of Neiciand ?.
common pleas, on the application of B., directed that A. should ^^^''^*'<*
not further enforce his writ of sequestration.

In this case it seems that, as A.'s warrant of attorney expressly
pointed at the proceeding by sequestration, it was, in fact, a
charge on the benefice within the statute ; but that B.'s war-
rant of attorney being free from such objection, it was a valid
security, and he therefore had a sufficient interest to entitle him
to apply for the removal of a judgment which impeded his own
execution,

A clergyman entered into an agreement for a composition AUhin v.
with his creditors not to arrest him, &c. in consideration agreed Hopkins.
that his future income might be received by the Rev. H. £., or
some other person, and applied in liquidation of his debts, after
providing a competent stipend for a curate to serve the church ;
it was shown that the clergyman had no income except the
profits of a living of £148 per annum ; and that Mr. H. L. had
received the amount and distributed the residue amongst the cre-
ditors ; the court said that the effect of the instrument, although
not operating as a direct charge, was an agreement to charge
the profits of the living; and if such an agreement were not
held to fall within the prohibition of the statute, all its purposes
might be avoided with the greatest facility. Alchin v. Hopkins^
1 oing. N. C. 99, vid. post 475.

In FH^ki V. Salter^ I B. ^ Ad. 673, a warrant of attorney FUghty,
recited the grant of an annuity, and that the same was secured Salter.
hy the demise of a rectory glebe by the grantor; and declared
that the warrant was executed for the purpose of securing
the annuity, and to the end and intent that a sequestration
might be obtained, and continue, for the better securing the
s^^me ; it was held that the warrant of attorney, being given for
the express purpose of enabling the grantee to get possession
of the benefice was in fraud of the statute, and therefore that it
must be set aside, as well as the sequestration issued upon it.

In Saltmarshe v. Hetaitt, I Ad. ^ EIL 812, H., a clergyman, Saitmanht
gave a warrant of attorney to enter up judgment for £3000. It ^- Hewiit,
Appeared by the defeasance that S. had agreed to purchase an
annuity of H. for £1800, and that the annuity was to be secured
by deed, charging it on the benefice of H., and that H. and S.
had also agreed that the annuity should be secured by the
Warrant of attorney. The defeasance further declared that the
judgment on the warrant of attorney was to be a collateral secu-
rity only, and that execution should not issue till payment had
l>een twenty-one days in arrear, in which case, and so often as

472

Itintmbmt

What ir«
not.

BritUn v.
WuiU

Chaxges on it should SO happen, S. might immediately obtain ieqoeBtralioii
°^ * of the rectory, to the intent that he should recoTer the arreaors.

Wb^tare. It was contended that, though by the defeasance the grantee of
the annuity could seauester for arrears actually due, yet that
the sequestration would not operate as a continuing charge upon
the benefice. The court, however, considered that from the
language of the defeasance enough appeared to show that the
warrant of attorney was given " to charge the benefice ;" and
that, therefore, being void by the statute, it should be set aside
together with the judgment and writ of sequestration.

But the instrument sought to be set aside must appear to
have reference to the benefice ; if it does not, though part of
the transaction may be tainted with the legal fraud, prohibited
by the statute of Elizabeth, it will not be avoided ; as shown
above, in the case of Moys v. Leake, 8 T. iZ. 41 1, where it was
held that though a deed may contain a charge upon a benefice
which would be void by the statute ; yet a personal covenant in
the same deed to pay the rent-charge, and a warrant of attorney
given as a collateral security, were not therefore invahd.

In Britten v. Wait^ 3 B. ^ Ad. 915, it appeared that an annuity
had been charged on a benefice, and that there was a warrant of
attorney to confess judgment in the common form for £3^00.
By the annuity deed it was agreed that the judgment to be en-
tered up on the warrant of attorney, was to be a further security
for the annuity, and that no sequestration should issue thereon
until the annuity should be in arrear. There was a further
covenant, that if the grantee should at any time deem it expe-
dient to sequester the living, it should be lawful for him to issue
a sequestration for the £3^00, or any part thereof. Judgment
having been entered up, on the warrant of attorney, and the
annuity being in arrear, the grantee issued a sequestration for
£3200, which greatly exceeded the arrears due, and entered
into possession of the living ; Lord Tenterden said, '' we cannot
^' set aside the warrant of attorney, which on the face of it is
^* free from objection. It appears by the deed, that there is a
'^ power to sequester the rectory for £3200. Now the grantee
^* could not by law sequester to that eiLtent, but he might for
*' part of that sum, 0f>. for the arrears which are actually due."
And Littledale, J., said, " the sequestration cannot be supported
" to the extent for which it is issued, but the warrant of attor-
^* ney canno( be set aside, because the terms of the deed are
'* not incorporated with it.*' And Parke, J., *' the warrant of
^' attorney is good. In Flight v. Salter, I B.&^Ad.&T^, antei?!!^
•' the declared intention was to do an illegal act. Here the war-t
" rant of attorney was given for an illegafand a legal purpose, we
** cannot say, therefore, that it is for an illegal purpose only ; but
- ' the sequestration has issued for a larger sum than it ought,"

it
it

Inntmlietit 473

In (sibbans t. Hooper, 2 B. % Ad. 734, three annuities bad ^^ ^"^
been charged on a benefice, which was conveyed to a trustee "* ^"'
the more effectually to raise and enforce payment. Three war- What ire
rants of attorney were also given with defeasances, in the com- '^^.^
mon form, to confess judgment at the suit of the grantee ; on ^||^' ^*
application to set aside these warrants of attorney as being in
evasion of \^ Etiz. c. 20. Lord Tenterden said, "there is
" nothing in the defeasances of the warrants of attorney to
'* shew that they were intended to bind the living more than in
** any other case where a clergyman gives a security. If these
'' were held void, we must set aside every warrant of attorney
" given by a clergyman holding a benefice, because its effect
" may ultimately be a sequestration of the living." And TVmii-
toiif J., added that, " though the law would not suffer an attempt
** to do by evasion that which was prohibited to be done directly,
" yet that principle did not apply. The warrants of attorney
*' were no doubt intended to secure the arrears of the annuity,
" by such means as might be authorised by a judgment thereon
" entered up. An execution against a living is the common
'* and inevitable consequence of such judgment against a bene-
ficed person; but it does not follow that the warrant of
attorney is void, because it leads to that result.
In Kirlew v. Butts, 2 B. S^ Ad. 736, n, a rector executed a KirUw r.
warrant of attorney to confess judgment for £3000, reciting that ^'***''
by an indenture of the same date he had granted to Kirlew an
annuity charged on his rectory. It was thereby declared that
Kirlew should hold the judgment on trust to secure the annuity,
but that no execution should issue unless the annuity should be
in arrear for fourteen days, and that as often as it was so in
arrear, then execution might issue against the rector and his
estate for £3000, and the sums to be levied should be applied in
payment of the said annuity and costs, and the surplus laid out
upon trust to pay the said annuity as it became due, and subject
toereto, in trust for the said rector. Judgment was entered up,
and a sequestration issued under which tne benefice was taken
by a sequestrator, to an amount greatly exceeding the arrears
due at the time of the execution.

After taking time. Lord Tenterden delivered the judgment of
the court, saying that the warrant of attorney and judgment
ought not to be set aside, but only the execution ; thkt the
effect of the provision, whereby execution, when a year's annuity
should be in arrear after demand made, is to issue for £3000, is'
to make the warrant of attorney an absolute charge on the bene-
fice for that entire sum, and to give power (if it were available
by law) to take the profits of the living until the whole sum*
should be levied, and to apply the dividends, as far as they would
go, in payment of it. We are of opinion that such a power

474 hitmAtiKL

Chftms on cannot by law be allowed. Therefore the arrears of the^umuity ,
j^^ ^\ due at the time of execution issued^ havinff long since been
Whit are satisfied, so much of the rule, as prays that the execution may
^^ be set aside, must be made absolute, and the rest discharged*

Fsirchih In Faircloth v. Gumey, 9 Bing. 622; S M. §^ SeoHj 822 ;

V. Gttmcy. y^y ^ deed by which an annuity was granted, a rector charged
his rectory with the payment of the annuity, giving the grantee
a power to sequester it, upon any of the quarterly payments of
the annuity being in arrear thirty days. The rector further
covenanted not to vacate the living, or if he took another in
exchange, to charge the substituted benefice with the annuity.
There was a warrant of attorney of the same date, reciting the
deed generally, and authorizing executions for the arrears, but
it did not expressly authorize a sequestration of the rectory.
On a motion to set aside this warrant of attorney, Tindal, C. J.
said, ** No doubt a charge on the rectory cannot be supported ;
** but the circumstance that such a charge is inoperative will
*^ not avoid those parts of the deed which are good, nor can we,
" because the deed contains such a charge^ set aside the warrant
** of attorney, because many cases have decided that the warrant
'' of attorney is objectionable, only where it contains an express
** reference to a sequestration, but legal, where it refers omy to
" other modes of execution.*'
CoUhrook In Colebrook v. Layton, 1 Nev. ^ Man. 874 ; 4 jB. ^ Ad. 578;
V. yion. ^ warrant of attorney, the defeasance to which recited that it
was given to secure the pinrment of an annuity, and authorized
the plaintiff to issue a jufa* de bonis ecclesiasticis for arrears,
but did not state that it was riven for the purpose of charging
the defendant's ecclesiastical living, though it was stated by the
affidavit that such was the object of its being given. The
warrant of attorney was held valid notwithstanding the affi-
davit, and notwithstanding it referred to the annui^ deed of
the same date in which that object was distinctly declared. In
giving judgment, PtUieson^ J., 4 jB. ^ Ad. 587, said, '' With-
** out going the length of saying that the object and intent
" of the parties to the warrant of attorney must necessarily
appear on the defeasance to it, I am of opinion that it must
appear that their intention of charging the benefice has in
*' &ct been accomplished ; in other words, that the benefice is
*' by the warrant of attorney so far actually charged, that the
*' party to whom the warrant of attorney is given, following the
" authority which it confers, would, but for the provisions of
" the statute of EUxabeihf obtain an actual charge on the
" living. Now, whatever may have been the intention of the
" parties here, it is clear to my mind that they have not by this
** warrant of attorney charged the living. If it were their object,
** they have failed to do so. The defeasance only gives a power

imUmbtnt 475

on
ce.

*' to issue a writ oifi.fa.de bonis eeelesiasticis, in case the Charps

•' annuity is not paid, and then only for the arrears. If by ^^^ ^^

*' means of this writ those arrears should be obtained, it would

" have no further operation, and any sequestration founded on

'' it would be at an end. For, though it is said in the books

" that a sequestration is a continuing writ, by that is meant that

'' it is a continuing execution for the purpose of levying a giren

*' sum, viz. that for which the writ of fi. fa. de bonis eccksiasticis

*' issues and no further. That sum in the present case would

" only be the amount of the arrears due."

With reference to this judgment, it is to be observed, that AUtun t.
in the subsequent case of Alchin v. Hopkins^ 1 Bing. N. C. ^^'^»"'-
99, ante 471, an agreement for a composition by a clergy-
man with his creditors, wherein they agreed not to sue or arrest
him, in consideration that his income should be applied in liqui-
dation of his debts, was held to be void under the statute of
EUm. on the ground that it was an agreement to charge. The
agreement itself indeed was not " a charging of the benefice ;**
but as an ** agreement to charge*' it might, it is conceived, if it
had been complete in other respects, have been enforced in
equity but for the provisions of the statute of EUm. ; so that if it
had been capable of being converted into a charge, it is difficult
to say that it was not a *^ charging.*'

In the late case of SaUmarshe v. Hewitt, I Ad. ^ EU. 8 IS,
the court of king's bench in an elaborate judgment reriewed all
the preceding cases, and endeavoured to lay down a plain, intel-
ligible, and consistent principle ; Lord Denman expressing the
opinion of the court said,

'' Cases have been brought under our notice, bearing (as they lUriew of
'' certainly do) upon the point in question. In support of the rule, <^^*^
** reliance was placed upon the case of Flight v. Salter, ante 471,
** and against it, upon the recent case of Colebrook and others y.
Layton, ante 474. In the former case, the warrant of attorney
directly referred to the annuity deed, and was declared to be
** 'for the purpose of securing the said annuity, and to the end
'' and intent that a sequestration may be obtained or procured,
" and continued bv the said Thomas Flight, his executors, &c.,
pursuant to the hereinbefore recited indenture.' In the latter
case, it was averred by affidatAt that the warrant of attorney
was given for the express purpose of charging the said vicarage
and curacy with the payment of the annuity, and for the pur-
pose of enabling the plaintiffs to sue out the before-mentioned
executions. Upon the discussion of this case of Colebrook and
** others v. Lavton, the authorities were brought under the con-
'' sideration of the court, and particularly the case of Flight v.
'' Salter, upon which then, as now, reUance was placed to set

€4

t€
ff<
«i
<f

476 imumbent^

ChtrMi ra " aside the judgment entered upon the warrant of attorney,
°^' ** which was then in question. The court, however, distiiigaished
lUvitw of «< (and we think rightly) between the impeachment of the warrant
cMM* f f ^f attorney depending upon aflSdavit, and an objection to the
" warrant of attorney, which is presented to the notice of the
" court, upon the face of the instrument itself. And accordindy,
** as the court then thought, and we are now of opinion, ttiat
** there was not sufficient relation or connection between the
** warrant of attorney and the annuity deed to show, that the
" benefice was to be charged to pay the annuity, in the eTent of
its beinff in arrear, the rule to set aside the judgment was dis-
charged.

" In the present case, however, from the language of the
** defeasance to which reference has been already made, we are
*' of opinion that enough appears to show that the warrant of
** attorney was given * to charge the benefice,' and is therefore
*' void by the statute. In adopting this distinction, we think that
*' we are not only deciding in conformity to the authorities and
*' the meaning of the statute, but are, probably, laying down as
*' intelligible a rule as can easily be suggested, for preventing the
<' recurrence of those questions which have been so frequently
** raised, in a very short time, upon the construction of these
** instruments.

'^It seems proper to add, that the authorities cited to us, (with
'* the exception of Colebrook and others v. Layton^ which is of
*' a more recent date,) namely, Shaw v. PriicAard, ante 469 ;
** Flight V. Salter ,* Gibbons v. Hooper y ante 478 ; and Doe v.
'' Carter, were brought under the consideration of the court of
** common pleas, in the case of Newland v. Watkin, anie 470.
" There a rule had been obtained to set aside the plaintiff's
** warrant of attorney, judgment and sequestration. The war-
" rant of attorney is not set out, but the report states that the
** defendant, a clergyman, gave it to the plaintiff, to enter up
*' judgment ybr the arrears of the annuity, and the warrant
** expressly authorized him to issue sequestration. The court,
** having taken time to consider, made the rule absolute, de-
** ciding that the plaintiff should no further enforce his writ of
** sequestration, but should not be subject to an action of tres-
** pass. The reasons of the court are not given, but the dedsion
** was as already stated."

477

An inhibition is a writ to forbid a judge from further pro«
ceeding in a cause depending before bun, being in the nature
of a prohibition, and commonly issues, out of a higher court
christiany to an inferior court on appeal. Terms o/ the Law,
AyUffe, Parer. 297 ; 2 Burns E. L. 339.

There are also inhibitions which issue, not in any cause
pending, but on the visitations of archbishops and bishops ;
thus^ wnen the archbishop visits he inhibits the bishop ; and
when a bishop visits he inhibits the archdeacon ; and this is the
course to prevent confusion. Ibid.

By Canon 96^ it is directed, that the jurisdiction of bishops
may be preserved (as near as may be) entire, and free from
prejudice ; and that, for the behoof of the subjects of this land,
better provision be made, that henceforward they be not
grieved with frivolous and wrongful suits and molestations ;
it is ordained that no inhibition shall be granted out of any
court belonging to the archbishop at the instance of any party,
unless it be subscribed by an advocate practising in the said AUinhibi-
court. And the like course shall be used in granting forth any tioottobe
inhibition at the instance of any party, by the bishop or his JJ*^^5^
chancellor, against the archdeacon or any other person ex- cttef
ercising ecclesiastical jurisdiction. And if in the court or
consistory of any bishop, there be no advocate at all, then shall ^^ »<> •dro-
the subscription of a proctor practising in the same court, be p^tor/
held sufficient.

And by Canon 97, it is further ordered and decreed that Noinhibi-
henceforward no inhibition be granted by occasion of any tiontobe
interlocutory decree, or in any cause of correction whatsoever, f™'*^* "
except for the cause aforesaid. And, moreover, that before from griev-
the going out of any such inhibition, the appeal itself, or a ^oces ex-
true copy thereof, (avouched on oath to be just and true), be *^«P^<*'"•
exhibited to the judge, or his lawful surrogate, whereby he an^^tsd.
may be lawfully informed both of the quality of the crime,
and of the cause of the grievance, before the granting forth the
said inhibition, (a) And every appellant, or his lawful proctor.

(a) Archbishop Parker's directions to his court enjoined them, in
every one of their inhibitions, to appoint a reasonable day for the
prosecution of the appeal, which if the appellant did not do effectually

478

ivfyfbitUnu

Judge may
be suf-
pended.

Proctor
may bere-
mo?ed.

Grant of

diieretion-

ary.

When it
operates

shall, before the obtaining any of any such inhibition^ shew and
exhibit to the judge, or his surrogate, in writing, a true copy
of those acts wherewith he complaineth himself to be aggrieved ;
and from which he appealeth or shall take a corporal oath,
that he hath performed his diligence and true endeavour for
the obtaining of the same, and could not obtain it at the hands
of the registrar in the country, or his deputy, tendering him his
fee. And if any judge or registrar shall either procure, or
permit any inhibition to be sealed, so, as is said, contrary to
the form and limitation above specified ; let him be suspended
from the execution of his office for the space of three months ;
and if any proctor, or any person whatsoever, by his appointment,
shall ofiend in any of the premises, either by making or sending
out any inhibition contrary to the tenor of the said premises, let
him be removed from the exercise of his office for the space of
a whole year, without hope of release or restoring.

On the first of these Canons , Can. 96, it has been decided
that although no inhibition can be granted without the signature
of an advocate, if there be any practising in the court; yet it
does not follow that the mere signature of an advocate entitles
a party to an inhibition as a matter of course ; although,
therefore in ordinary practice, no question is made on granting
an inhibition, still taking the two Canons together, it may be
inferred that the judge is invested with discretionary powers,
and may refuse to alfow an inhibition to issue, if a sufficient
ground and occasion for refusal is presented to him. Herbert
V. Herbert, S PAiU. 444.

It is the service of the inhibition and not the assertion of an
appeal which ties up the hands of the court In one case, the
court having overruled objections to the admission of an
allegation, on the following day admitted such allegation,
notwithstanding an appeal had in the interim been asserted.
S Hag. 133, Sum^. In Chichester v. Donegal, 1 Add. SI,
Sir J. NichoU said, *^ I take it, that in appeak, at least for
grievances, the hands of the court are in no case tied up till
the service of the inhibition ; and that what, or whether any
intermediate steps shall be taken, depends upon the particular
*' circumstances or the case, the judge exercising in that respect
a sound, legal discretion."

it
tt

fff

i€

the cause was to be remitted to the first court, with charges reasonable,
cutting off all matters frivolous, and frustratory delays ; one of the
complaints of the prelates and clergy iu convocation, 1399, against the
irregularity of the archbishop's courts, was, that when any one pre-
tended he was aggrieved in Uie inferior courts, he went to the court of
arches, and without showing his appeal, obtained inhibition. Gibs.
C0d. 1083.

Till the inhibition has been returned, the court above has
nothing to act upon; and therefore in a case where an inhibition
had been served on the judge and registrar of the infierior
court, and on the opposite proctor, but notwithstanding, that
court was proceeding to follow up its decree of contumacy,
for non-performance of the order appealed against, the court
of appeal declared its inability to interfere, tdl the inhibition
was returned. 1 Hag. 94e a.

Jnttrbener*

A third party may interpose in a suit in the ecclesiastical
court in defence of his own interest in every case in which it is
affected, either in regard of his property or his person. Thus
he may intervene in causes of matrimony, of ecclesiastical bene*
fices, and of testaments, whether of administrations generally or
of temerarious administrations. Oughtant tit. 14 ; S PhiU. 686 ;
4 Hag. 67.

In a matrimonial cause, if proceedings be taken against a Matrimo-
party who has either solemnized or contracted marriage with n>^ causes.
another, such other or third party may, if he or she pleases,
interpose in such suit, to protect his or her own rights, in any
part or stage of the proceedings, even after the conclusion of
the cause. OughtoUf ib.; DcUrymple r. Dairymple, 2 Hag.
Con. 59; ib. 1S7; 1 Hag. Con. 188.

It matters not whether the party appear in aid, of or in oppo-
sition to, the party cited, neither does it make any difference
that he has had notice of the suit, and of the plaintiff having
proceeded to proof. Ougkton^ ib.

In a matrimonial cause the publication of evidence and the
conclusion of the cause do not prevent the interposition of a
third party alleging a prior contract, and a previous marriage.
He must, however, declare on oath that he does not intervene
with any malicious intention, or for the purpose of protracting
litiffation, and that he believes he can make good his allegations ;
and if he does this, he may be admitted to propound and prove
his interest, notwithstanding publication, and the conclusion of
the cause; Ougkton^ ib. ; 2 Hag. Con. 137; or, as said by Lord
StoweUf if in a matrimonial cause they neglect to intervene, they
mav still appeal against the sentence.

In other than matrimonial causes, when the party intervening other than

appears in aid of the defendant, he is bound to take up the matrimo-
nial causes.

460

Intrrbninr^

Oih«rthan

matrimo-
nial CtUMf.

In tkl of

To (ret rid
of deft od«
tot.

C'tuaea of
bcneflce.

Willcauief.

Nature of
interest.

ti
If

cause at^ the ttam which it had arrived at the period of his
intervention, and ne must not delay the suit. OmgAiom^ ib. In
Clement ▼. Rhodes, S Add. 40, Sir J. Nichott said, '< The rule
'' as to interveners is, that they take the cause as they find it al

the time of their intervention, and they can at such time, of

right, only do what they might have done had they been

parties in the first instance, or had their intervention occurred

at an earlier period of the cause."

When the object of the intervention is to get rid of the
defendant, who is colluding with the plaintiff to the prejudice
of the intervener, he may stay the proceedings. But col-
lusion must be specially stated, as well as the grounds upon
whicli the defendant is to be got rid of. In such a case it is not
suflicient, according to the best authorities, for the intervener
to frame his allegation in general terms, but he must in parti-
cular state that he appears with the intention of getting rid of
the defendant, and of detecting collusion between him and the
plaintiff and defendant. Oughton, tit. 14.

In a cause of a benefice, as in a proceeding by way of duplex
querela, where a clerk is demanding institution to a living of
which a third partv is in possession, it is fit that such third
party should be at liberty to intervene, lest another be instituted
to his benefice. Oughton, ib.

So in a cause of a will, where legacies are lefl, the executor,
desiring to invalidate such will and to have it declared null by
a judicial sentence, and so escape payment of the legacies, might
collude with some of the next of kin of the deceased, and others
having an interest in an intestacy, to call upon him to prove the
will per testes, and then designedly fail in proof, so that a judicial
sentence might be obtained against the will. To avert such con-
sequences, it is fit that a party should be allowed to intervene, to
protect his own interest in a testamentary cause. Oughton, ib.

In Pertreis v. Fondear, 1 Hag, Con. 188, Lord StoweUsaid^
" Every person interested, who thinks there is a legal defect,
" may apply, and has a right to a declaratory sentence of nullity
" of marriage, if his application is well founded. It may be
** necessary for the peace and happiness of families and of the
" public likewise that the real character of these domestic con-
*' nections should be ascertained and known ;** and tnd, Ray v,
Sherwood and Ray, 1 Curt. 173, 193.

It seems to have been considered that, as persons in i-emain-
der have been allowed to bring suits of nullity to declare a mar-
riage void by reason of consanguinity. So, by analogy and upon
principle, they may also possibly be entitled even to institute
such an original suit under the marriage act. 1 Add. 16. In
cases of consanguinity there is, however, this especial reason
for the interference of others, for the marriage can only be

Inttrbener. 4bi

affected inter vivos, for on the death of either party the mar- Nature uf
riage cannot be set aside. In cases when the marriage is abso- '°^'^"^*
lutely null and void, the remedy may be pursued at any time.
1 Hag. Con. 414 «; 1 Add. 27.

In Dalrymple v. Dalrymptej 2 Hag. Con. 59, which was a
case for restitution of conjugal rights brought by a wife against
a hosbandy the chief point of discussion was the validity of the
marriage, and the jud^e of the consistory court. Lord Stowell, gave
judCTient for the plamtiff, thereby affirminfi^ the marriage. The
husband, having treated the marriage as null, had married again.
Lord Stowell, speaking of the wife of the second marriage, said
that she was in substance a party to the suit, and might have
heen so in point of form, if she had chosen to intervene.
lb. 187. Afterwards, on appeal to the court of arches, an alle-
gation was asserted on this lady's behalf and time prayed, which
was refused by the judge of the arches. On appeal to the dele-
gates, time was allowed, and the cause beins there retained, her
allegation was given in and opposed, but ultimately rejected.

In the case of incestuous marriages, it has been the common incestuous
course for them to be annulled, not only at the suit of either of marriages.
the parties, but at the instance of third persons whose interests
are prejudiced, or likely to be prejudiced by such a connexion.
Thus, where the sister of the husband of an incestuous mar-
riage had an interest under the will of their mother contingent
upon the death of the brother without lawful issue ; the
court said that a slight interest would be sufficient to enable a
party to bring a suit of this description, and that there was full
proof of suflScient interest in the particular case. 1 PhilL 355.

In a cause of divorce where the alleged marriage was denied Divorce,
to be valid, parties who had estates expectant, inter alia, upon
the event of there being no legitimate issue of such alleged
marriage, and who consequently were interested in the question
of the validity of such marriage, might it seems, be cited
*' to see proceedings" in the cause, so far as related to the
marriage; and might therefore intervene to protect their in-
terests. 2 Add. 372 ; 1 Add. 16.

When a party intervenes in a cause, he must proceed except Time of in-
in a matrimonial cause, from the stage at which he finds it; nor tervention.
can he of right claim any privilege to which he would have been
entitled if he had intervened at an earlier period ; therefore, after
publication of the evidence had passea, he cannot, of right,
plead in the principal cause ; though the court might, if suf-
cient and satisfactory cause were shewn, give permission, ex
gratid. So also, though not permitting a party to plead after
publication, the court might still allow him to cross-examine
witnesses, on giving security for costs, if finally awarded against
him by the court. Clement v. Rhodes, 3 AM. 37.

1 1

4B2

SactitattDn of ^fRwctinQ^*

The proceeding by way of jactitation of maniBae, is in
the nature of a criminal proceeding." Per Lord Siaweu, Howie
V. Corri, 2 Hag, Con. 281. If a person pretends to a marriage
whicli has no existence, and proclaims it to others^ the law
considers it as a malicious act, subjecting the party agaiost
whom it is set up, to various disadvantages, and imposing on
the public ; it is therefore a fit subject of legal redress, aiid
this redress is obtained by charging the supposed offender with
having falsely and maliciously boasted ox a matrimonial con-
nexion, and upon proof of tne fact, obtaining a sentence, en-
joining him or her to abstain in future from such false and
injurious representations, and punishing the past ofi*ence by a
condemnation in the costs of the proceedings. lb, £85.

During the prevalence of irregular marriages, the suit of
jactitation was not of unfrequent occurrence, and the '^maUcioui
bocut'* complained of, originated in a reasonable doubt whether
the species of irregular connexion formed, did, or did not
amount to a marriage ; or at least to such a marriage as wouldi
primd faciet entitle the party proceeded against to the civil
rights belonging to the real character ; at other times the suit
may have been promoted, and perhaps connived at, as a collusive
mode of justification for a second marriage, (a) or to defeat

(a) This seems to have been the case of tlie Duchess of Kmgfioi^*'^
In 1768, the Duchess, under her maiden name of Chudleigh, institiited
a suit for jactitation of marriage, in the Consistory Court of London,
against Mr. Hervey, (afterwards Earl of Bristol) ; he appeared to the
citation, and in form, pleaded a marriage between Miss Chndleigh and
himself in 1744, the judge of the Consistory Court of London, (J^*
Bettesworth,) pronounced against the marriage, and enjoined Mr.
Hervey to perpetual silence ; upon this sentence being given, M^^*
Chudleigh married the Duke of Kingston, and on his death, a prosecution
for bigamy was commenced in the House of Lords for this second
marriage* In tjie course of this trial, the proceedings in the jactitation
cause, and the sentence of the court were produced, and read de bene ets€ ;
and the counsel for the Duchess contended that this sentence, so long as
it remained in force, must be received as conclusive evidence against that
marriage. On the other side it was contended, that if admissiUe a*
a bond fide judgment, still it was not conclusive in a criminal fln>^

^artttatton of inarriagr. 483

claims well founded in fact, but difficult of proof, from the
secrecy of the original contract; and the state of the law
previous to the marriage act of 1754, gave great encouragement
to such proceeduigs. Until after the year 1751, the suit of
jactitation was the usual mode by which questions as to the
validity of a marriage were determined, and the earlier cases
of nullity arising out of the marriage act, were tried by the
same process ; the modern practice of pleading the statute was
doubtfullv introduced in the first instance, although it has since
become the ordinary mode, of trying questions of the validity of
marriage. 1 Lee^ 16; 2 Lee, 315.

To a charge of jactitation, three distinct defences may be
opposed: 1st. A general denial of the jactitation or malicious
boast alleged. 2dly. Admission of the fact of jactitation, but
denying that the jactitation is untrue, and pleading a marriage,
defaciOy and its validity. 3dly. Admission of the jactitation,
witliout setting up a marriage, but pleading a license to assume
the character of wife. Z Hag. Con, 285; 1 Hag. Con. 216,
324 ; Oughton, tit. 195 ; Conset, 258.

The first of these heads of defence is in the character of a suit
for defamation, but with this difference, that the defendant in a
jactitation suit, may be compelled to answer the libel on oath.

The second, by confessing the fact, but avoiding it, by
pleading a marriage, brings the /actum, or the validity of

which put both marriages in issue, and that such a judgment was never
final.

After argument, the following questions were put to the judges :

1st. Whether a sentence of the spiritual court against a marriage in
a suit for jactitation of marriage, is conclusive evidence, so as to stop
the counsel for the crown from proving the said marriage in an indictment
for polygamy.

2ndly. Whether, admitting such sentence to be conclusive, if on such
indictment, the counsel for the crown may be admitted to avoid the
effect of such sentence, by proving the same to have been obtained by
fraud or collusion.

The lord chief justice of the Common Pleas delivered the unanimous
opinion of the judges upon these questions, stating the reasons of that
opinion, and concluded thus : —

That a sentence in the spiritual court against a marriage, in a suit of
jactitation of marriage, is not conclusive evidence, so as to stop the
court fit>m proving Uie marriage in an indictment for polygamy.

Admitting such sentence to be conclusive on such indictment, the
counsel for the crown may be permitted to avoid the effect of such
evidence, by proving the same to have been obtained, by fraud or
collusion.

I I 2

484 9artitat(on of marriage.

the marriage at once in issue; such a defence assumes the
shape of a suit of nullity on one side, and the restituticm
of conjugal rights on the other: and the court would pro*
nounce a sentence of nullity; or might decree a return to
matrimonial cohabitation, unless intervening circumstances have
occurred to dissolve the matrimonial obligation.

In cases where a party fails in establishing a legal nmrriage,
yet| if it appear that there has been a marriage in fact, a party
could hardly be held guilty of a false and malicious jactitation,
at least before a sentence of nullity; after such sentence,
jactitation must obviously be false and malicious.

In the case of Lord Uawke v. Corrif fitlsely calling herself
Lady Hatcke,2 Hag. Con. S80,the defence set up embraced both
the second and third of the above grounds of defence ; 1st, by
pleading the fact of marriage ; Sdly, the sanction of Lord //•
to the defendant assuming the character of his wife ; the first plea
was abandoned, but with reference to it, the court, Lord Stowell,
said, ** that if it were to appear that a young woman had been
** imposed on by an artificial licence, and a pretended clergyman,
** it might be arguable whether such an atrocious fraud would not
" bind the author of it in all its consequences, and whether a mar-
** riaffe by a person ostensibly acting as a minister of the church,
and not known or suspected to be otherwise, might not be a
valid marriage; for parties could not be expected to ask to see
his letters ofordination ; or if they saw them, to inquire into their
authenticity. On the second plea, it appeared that Lord H. had
" represented the defendant as bis wife, to his friends, connexions,
" tradesmen, and domestics, and introduced her in that cha-
** racter to persons of rank, and foreign ambassadors, and
" above all to his children by a former marriage, who were
" taught to look up to her as a second mother ; upon which
" proof the court dismissed the suit of jactitation."

In Wiscombe v. Dock, I Lee, 59, which was a case of jac-
titation, the party charged was admitted to her suppletory oath,
or "juramentum necessarium^** which, when there is a want of
full proof, the judge, upon knowledge of the cause, though the
parties request it not, may administer to either plaintiff or
defendant.
Sentence It is said by Consetf S58, and by Oughton, tit. 195, if the

for de- defendant plead a marriage in justification, and prove that the
boasting, with which he is charged, was made on just grounds,
and that he really did contract an absolute marriage with the
plaintiff, the judge may pronounce in one and the same
sentence, not only that the plaintifi* has failed in the proof of
his libel, or, at least in so much as is necessary, but also
sentence may be pronounced at the same time for the marriage

*€
U
U

3wct(t!ition of marrfast^ 485

alleged; in the same manner as if a matrimonial cause had been
originally instituted. 2 Hm. Con, 285.

In cases where the defendant admits the jactitation, but Sentence
justifies it by pleading that a valid marriage was celebrated, ^^^ pluntiiT.
and fails in establishing the justification^ then sentence is to be
pronounced that the plaintiff has proved his libel, and that the
defendant has failed to justify and prove his contract by him
alleged and pretended, and Uiat therefore perpetual silence be
imposed on the defendant, (which prayer ior silence to be
imposed on the defendant is usually inserted in the libeL) In
Undo V. BelisariOf 1 Hag. Con. 261, the woman was the
plaintiff, and the defendant naving failed in his justification, the
decree was simply, ''That she is not the wife of the defendant"
In Ooldsmid ▼. Bromer^ ib. 336, in which the justification also
failed, the counsel prayed the court, in addition to its sentence of
nullity, to enforce perpetual sildnce, meaning to pray the same
sentence as was prayed in the case of the Duchess of Kingston.
The court said, it would decree it if prayed, and sentence was
given accordingly. In Hawke v. Corrif 2 Hag. 292, afiie484,
the suit was dismissed generally.

iE^apsie*

What it is.

Time within which it accrues.

How to be reckoned.

When to begin.
Of notice.

Lapse is a slip or omission of a patron to present to a church ^^^^ i^ '^
within six months after it becomes void. Others have called it
a title given to the ordinary to collate to a church, by neglect of
the patron to present within six months next after avoidance.

When a lapse takes place, it is a devolution of a right of pre-
senting from the patron to the bishop, or from the bishop to the
archbishop, or from the archbishop to the kin^.

The principle of the law lapse seems to be this, that where any
one is invested with aright, authority, or power, or charged with
a duty in which the pnblic has an interest, and neglects to exer-
cise such right, authority, or power, or to discharge such duty,
his immediate superior is bound to remedy the neglect and sup-
ply the deficiency. For it is to be remembered, as said by bishop

486 iCapsfe-

Stillingfleet, 320; 2 Burn's Ecc. L. 355, that churches and dio-
ceses were of common right under the care of the bishops ; and it
was by their indulgence that lay patrons had the right of presen-
tation, which being neglected things return to commori right ; and
if the patron does not present within the first six months^ or the
bishop collate within tne second six months, then the right falls
in the first case to the bishop and in the second to the archbishop,
upon the inferior's neglect. Upon the metropolitan's neglect,
then, it falls to the king, as patron paramount of all the bene-
fices in the realm ; by which is meant that the king, by right of
his crown, is to see that all places be duly supplied with persons
fit for them ; and if others whom the law has intrusted in the
first instance neglect their duties, then by the usual course of
government it falls to the supreme power to supply defects and
reform abuses, {a)

If the ordinary or metropolitan have actually collated his clerk
whilst the turn was respectively theirs, although the clerk be
not inducted, it is a bar to the patron's presentment. Wats,
c. 12; Dyer, 277. Or if the inferior ordinary, after lapse
How in- to the metropolitan, hath collated his clerk to the benefice
curred. ^|^^^ j^ j^^ lapse, although this collation be tortious to the metro-
politan, yet it seems that it takes away the presentation from the
patron, and is only an usurpation upon the metropolitan, and
thereby the metropolitan is put out or possession and driven to his
quare impedit. Wats, c, 12 ; 6 Rep. 30 b ; ib. 50. It hath been a
question whether the bishop ought to admit the patron's clerk

(a) The law of lapse was introduced into this country in the twelfth
century. A general council was held at Lateran, according to Selden,
Hist, of Tythes, A. D. 1215 ; ace, Bracton, lib, 4, 241 ; but at Lyons,
according to Briton and Fleta, to which latter opinion Lord Coke seems
to incline. 2 Inst, 273. By that council, after vacancy of six months,
the chapter was to bestow those churches which the bishop, being
patron, had left so long void, and upon their default, the metropolitan.
But there is no mention of lay patrons in it ; yet by reason of the
authority of that council, and a decretal of Pope Alexander 3, which
speaks of like time upon default of lay patrons, it hath been since taken
here generally, that after vacancy of six months the next ordinary is
regularly to collate by lapse. Selden, ib, ; Johnson's Canons, 2 ; Canons
at York, 1195, 19; Peckham's ConstU. 1279, I. It will be found
that about the period that lay patrons discontinued the admitting clerks
by investiture, the law of lapse began to prevail. The canon law
made a distinction between lay and ecclesiastical patrons, giving four
months only to the former and six to the latter. But the council of
Lateran made no such distinction, neither does the common law of
England. 2 Bum's E, Z. 355.

lUpStt. 487

after the title of lapse is passed from the metropolitan to the How in-
king, Hobari says. Hob. 154, HutL 24, that the patron's pre- ^"™**
seatation takes place after the church is lapsed to the king, if
it be exhibited to the ordinary before the king's ; because the
patron's right to present continues until the title by lapse be
executed, and the king's title is not vested in hira in this case
absolutely, as other titles are, but on condition that he present
before the patron. But this seems not to be law. On tne con-
trary, it has been ruled, that in such case the crown does not lose
the lapse ; but if the presentee of the patron die or resign before
the kin^ presents on lapse, the crown loses the presentment,
except mdeed the resignation be by covin and to defeat the kind's
title; Cro. Joe. 216 ; S Bum's E. L. 361. In a case where the
bishop, being patron, presented after lapse to the queen, and
aftierwards the successors of the bishop certified against this
incumbent, that he had refused to pay the tenth, and collated
another clerk who was inducted, it was adjudged that the queen
bad not lost her presentation, because the church here became
void by the incumbent's own act ; so if he had resigned or been
deprived, but if he had died it would have been otherwise ; for
lapse is only unicd et proximd vice* Cro. EU«. 119; Com.
Dig. Esglise IH. 13).

Sut generally, lapse shall not incur according as it happeneth,
or not by the fault of the bishop, as if he refuse 2lju8 paironatHs,
or without cause refuse to admit a clerk when required, a lapse
shall not incur; but if he does his duty upon presentment made
to him, and only refuse the clerk with sufficient cause, and is
not named in the quare impedii; or if no presentation be made,
and yet a quare impeM be brought against the patron and
ordinary, a lapse win occur and his collation thereon be good.
2 Bum's E. L. SSI ; Cro. Jac. 93 ; Hob. 200.

Also after the commissioners, upon a ;'tr^/7a/ro7ia/^ awarded,
have certified the right, the bishop shall not take advantage of
the lapse, that is, if the clerk of the patron for whom it is cer-
tified, makes a new request to the bishop to be admitted, which
may be done upon the first presentation, but without such after
request the ordinary may have the void turn as by lapse, IVats.
e. 12, such inquiry notwithstanding, 2 Burn's E. L. 358.

So if, when a church has become litigious, no jus patronatHs
is awarded, but only an assize of darrein presentment, or a quare
impedii; if the bishop is not named, and the six months' pass
pending the same, lapse shall incur ; for that there was no default
in the mshop, and though the patron recover within six months,
yet if that time be passed before the writ to the bishop be taken
forth, lapse shall incur, and if the ordinary collate before the
receipt of the writ, his clerk shall not be removed. So also, if
after the recovery within six months the defendant brings a writ

488

lapfi(r*

Time, how
reckoned.

When time
l>cgint to
run.

Same per-
son patron
and ordi-
nary.

of error, and the six months pass pending the sane, unlets the
plaintiff before the expiring of the six months brings a qmare
tmpedii against the bishop (for it is said that lapse mar diereby
be prevented). However^ it is generally said, that if a qumre
impedit in any case be brought, and the bishop named therein,
lapse shall not pass to the or^nary pending the writ, Wais.
c. 12; 2 Burn's E. L. S58.

The time or space in which the tide bv lapse accrues sueees*
sively to the parties entitled to take by lapse, is six monUu, —
that is, half a year by the calendar, not six months oompating
twenty-eiffht days to the month, for the computation is by the
ecclesiastical law, which reckons by calendar, not by lunar
months. 2 Inst. 860 ; Co. Litt. 135-6 ; Cro. Jac. 141, 166. The
day on which the church becomes void is not to be taken into
the account. 2 Inai. S60.

RoUe says, " that the six months shall begin from the time of
" the patron's knowledge of the avoidance ;" and adds, *' that it
*' was so adjudged upon a writ in* the reign of Edward die Se-
<' cond," 2 Koll. Abr. 363; and Dr. Watson says, '' it has been
'' holden that the six months for lapse on an avoidance shall not
'' be accounted but from the time the patron could reasonably
^* be supposed to have notice of the incumbent's death, especially
'' if the patron or incumbent should happen to be beyond the

seas, or in some remote country within the realm, at the time

of such avoidance ;" but by the common law of England the
six months he supposes are to be accounted from the time of
the death of the fast incumbent. Wats. e. 1 ; 2 Leon, 46 ; Dyer^
327 b; 6 Rep, 62. The law, as now understood, seems to be,
that where tne avoidance is occasioned by the act of Qod, aa in
case of death ; or by the act of the incumbent himself, as in the
case of cession ; no notice need be given, but the patron is bound
to take notice of it, and so time runs from the time of the
death or cession^ I StilL 251 ; 2 Burns E.L.SSS; Cro. EUm.
601 ; Cro. Car. SSI.

Although the bishop be both patron and ordinary he shall
not have double time, that is, six months as patron, and again
six months as ordinary, but only six months before title accmes
to the metropolitan ; so also it passes from the metropolitan to
the king in six months, where the metropolitan is patron; for he
who has neglected his trust and left the church destitute for six
months, should not be able to leave it destitute fiar nx months
Gibs, lea \ Wats. c. 12; Com. Dig. EsgUse. (M. 11.)

more.

If an archbishop visits an inferior diocese, and inhibits the
bishop during the visitation (as is usual), and afterwards, during
the visitation and inhibition, and before any release made by
the archbishop, some church in the same diocese lapses, the
bishop shall have the lapse although he cannot collate, by reason

la^it. 489

of the inhibition, but he must, as a common person, present to When time
the archbishop, who, as his ordinary, ought to institute on such ^6*°^ ^^
presentment; for though the inhibition suspends the power to "*"'
institute or collate, it does not aflfect the patronage. Wais. c.
13; » Rett. Abr. 361.

If dtle by lapse accrue to a bishop, and he die, or is translated
or deprived, before he takes the benefit of it, the devolution is
to the metropolitan as guardian of the spiritualities, as this is
not an interest but a personal trust. Wats. c. 12.

But by Hob. 154, it is said to be doubtful whether the de-
volution be to the metropolitan or to the king, in case of bene-
fices belonging to the see; but it seems the presentation in
such a case belongs to the king. 1 B. SfC.lGS.

Where the patron presents his clerk before the bishop has when no
collated, the presentation is good, notwithstanding the six l^P*e*
months are past, and so also if he present before the archbishop
hath collated, though the twelve months are past; for lapse
only accrues to enable the superior to supply the neglect of the
inferior, but if the inferior execute his trust and fill the living
by presentation, the necessity for the interference of the superior
is at an end. 2 Inst. 273. If the bishop or archbishop be
patron, and do not collate to a benefice in their gift within six
months, the archbishop or the king, as the case may be, shall
have them by lapse. Dr. ^ Stud* c. 36. But the king is not
confined to any time. 2 Inst. 273.

Title by lapse can never accrue to the metropolitan or to the
king, unless it has previously accrued to the immediate ordinary,
even though the lapse be lost by default of the ordinary, as for
the want of giving notice or the like. 2 RoU. Abr. 368 ; Cro.
Jac. 93.

In many cases the patron must take notice of the avoidance Notice,
of the church at his peril, in others the ordinary is to give him — — —
notice, and no lapse wul be incurred without it. Where tlie clerk
of an ecclesiastical patron is refused quasi criminosus, although
notice must be given, in order that another derk may be pre-
sented, the six months reckon firom the avoidance, and not
from the notice. 3 Lean. 47 ; 2 Soli. 539. In like manner
where the benefice becomes void by death, creation, cession, or
acceptance of a plurality. Gibs. 769 ; Cro. Car. 354 ; 2 Inei.
632 ; 6 Rep. 63.

In cases where the avoidance is created by an union, as there
can be no union without the patron's knowledge, and it must be
appointed who shall present after that union, the patron must
necessarily be privy to the union, and to the avoidance conse-
quent on it, so the six months are to be accounted firom the time
of the agreement. Dr. % Stud. ch. 3, 202.

4<K) iLapsse.

^o<^^- But where the avoidance happens by an act done by priTity

of the ordinary and the incumbent, then the six months are to
be reckoned from the time of notice given to the patron, and
not from the time of avoidance. In all cases of deprivation and
resignation, therefore, notice of the avoidance should be given
to the patron, because these are matters in privity with the
diocesan or metropolitan. Dyer^ 292 ; Gibs, 769.

So if the bishop refuse to pre^^ent a clerk for default of learn-
ing, or that he is a heretic, schismatic, or the like, as this be-
longs to the knowledge of ecclesiastical law, he must give notice
to the patron. 2 Trut. 632; S Salk. 539; Cro. EUz. 119;
ante 459. But in this case a distinction is made between spiritual
and lay patrons, for the law presumes the former capable of
choosing an able clerk, and therefore presents an insufficient one
at his own peril. 2 Roll. Abr. 364 ; 2 Burn's E.L. 157; ante 460.

In all cases where lapse would not occur without notice, if
the ordinary die before it is given, no lapse can incur to his
successor before notice by him; and incase of death after lapse,
the king, by his prerogative, shall have the presentment, and
not the executors of the ordinary. Hob. 154.

In all cases where the patron is to have notice it ought to be
given to himself, if he be resident in the country, if not it should
be affixed to the church door, so that public intimation may be
given. Cro. Elix. 669.
1 & 2 Vict By the late act, \%2 Vict. c. 106, it is enacted by «. SI, that
c. 106. if any spiritual person shall trade or deal in any manner con-
trary to the provisions of that act, he shall, for his third offence,
be deprived ab officio et beneficio, and thereupon it shall be
lawful for the patron to make donation, or to present, or nomi-
nate to the preferment held by the person deprived, as if such
person were actually dead ; and the bishop shall forthwith give
notice thereof in writing, under his hand, to the patron of the
preferment held by the person deprived, such notice to be
given in the manner in which notice is required to be given to
the patron of a benefice continuing under sequestration for one
whole year, and thereby becoming void, and any such cathedral
preferment or benefice shall lapse at such period after the said
notice, as any benefice continuing under sequestration for one
whole year would, under the provisions of that act.

491

i^ettiirer»(«)

■LHE more antient lectureships seem to have had their founda-
tion in the pious intentions of individuals or of parishes ; in
modern times they have frequently been established by act of
parliamenti in order to afiord the inhabitants of populous
parislies more frequent opportunities of attending the public
service of the church.

Lecturers are mentioned in the Canons of 1603, as persons
then known and recoffniaed by the establishment, and co-
operating in the general service of the church; they were pro-
bably very much increased during the long parliament, as it
appears that there were directions then given for their general
astabUshment, and we learn from the Statute 13^14 Car, 2,
c, 25, of the provision made by that parliament, '* as well for the
'' augmentation of certain vicarages as for the use and mainte-
** nance of preaching ministers and lecturers;" and it is not
improbable that many of the endowed lectureships, whose
foundation cannot now be satisfactorily traced, had their origin
in the provision then made for them. Considered now as part
of the general church establishment, lecturers are in all cases
subordinate to the diocesan, and in most cases, to the incumbent
of the parish, in which they exercise their functions ; indeed,
they are in no case independent of the incumbent, unless they
can establish their claim to be so, by act of parliament or pre-
scription.

By the common law no lecturer or other person can claim
to lecture or preach in the pulpit of the parish church without

(a) The Lector seems to have been a very antient minister in
the church, in Elfiric's Canons, 975, 1 Johnson. The Lector was the
second of the seven orders appointed in the church, and his office is
thus stated, *' The Lector is to read in Ood's church, and is ordained
to publish Ood's word."

Lecturers appear to have come in with the Reformation, and to have
been rather preachers than Lectors or readers ; and possibly may have
been appointed in many cases to supply the deficiencies of non-preaching
ministers, a class of incumbents not veiy uncommon either immediately
after the Reformation, or after the Restoration, when the removal of
papist and non-conforming ministers, occasioned more vacancies than
could well be supplied by competent preachers.

492 Ifrturen

the consent of the incumbent, whether he be rector or viear ;
in some places lectureships are founded and regulated by
express act of parliament, as in the case of many populous
parishes in and about London ; in some, lectureships exist by
custom, but such a custom must be immemorial, and proved by
usage. 2 Easty 466 ; 7 East, 258 ; and when set up, it being
in contravention of the common law, must be very clearly proved.
5 Bing. 335; and have a legal origin, otherwise the usage
would only be so many instances of usurpation. 9 Eden, 860;
AmbL 568. Many lectureships appear to be founded and
endowed by deeds, wills, grants, &c., others have been esta-
blished by the existing inhabitants, and are supported by
their voluntary contributions. But nothing short of an act of
parliament or immemorial custom, can give a right to the use
of the church without the consent of the incumbent ; for it is
not competent for any person or any set of persons to engraft
a lectureship on the church by compulsion, otherwise it might
be done for the most capricious purposes, and in abuse of the
regular institutions of the church, and might overthrow the
whole establishment. S East, 465 ; 7 East, 34€ ; \T.IL3S\\
4 T. R. 125; 1 Wils. 11 ; 2 Str. U82;antel4S.

The same principle applies to chapels of ease, as to parish
churches ; vid. ante, '' Chapel," 148, 152 ; the rule of law being
" that no person can have a right to compel the incumbent to
'' allow another person, although licensed by the bishop, to offi-
ciate in a public chapel, erected for the ease of the inhabitants
of a portion of the parish ; and no such person can officiate
" without the consent of the incumbent." 4 A ^ C, 569* In
Clinton r. Hatchard, 1 Add. 108, the court said, "A very
** little inquiry would have instructed the defendant that in the
" case of every, at least unendowed lectureship, no choice, by
'* the parish, of a lecturer is effective, without the consent or
approval of the rector, whose undoubted right it is, in every
such case to grant to, or withhold from, the lecturer so chosen,
•* the use of the pulpit."

If the lectureship be endowed, a strong argument, it seems,
is afforded in support of a custom dispensing with the necessibf
of an incumbent s consent, and to show that the custom itself
had a legal commencement ; 1 71 jR. 888 ; but where the
period of the endowment, and commencement of the usage
under it, is shown, such argument can have no foundation.
2 Eden, 360 ; Ambl. 568 ; 2 East, 466.
Election of. In London and other populous places, where lectureships
have been established, it has been very usual for the lecturer
to be chosen by election, sometimes by the vestry or chief in-
habitants, and sometimes by the inhabitants at large ; it has

t€

Ittttttet, 493

frequently happened that contests have arisen as to the class Election of,
of persons in whom the right of election is vested. "'

Applications by bill have from time to time been made
to the court of chancery to establish the right of election ; but
Lord Eldon^ speaking of such applications, seems to doubt the
power of the court, to declare and bind the right for ever.

14 Ve$. 9. Lord Hardwicke^ in a previous case, dismissed such
a bill, on the ground that there was not sufficient evidence
of the right, but did not intimate any doubt of the power of the
court to entertain the application. 3 Atk. SIT.

But where the application to the court of chancery was to have
a right of election established, in a case where a chapel had been
erected, and endowed with lands from the lord ana freeholders
of a manor, and the right of nomination was given by the arch«
bishop in his deed of consecration to the inhabitants, the vicar of
the parish declaring at the time that he had no right to nominate,
and where the inhabitants had repaired and nominated for ninetv
years. The chancellor, Lord Norihington, dismissed the bill,
saying, " that the archbishop could not of his own authority
** give the nomination to the inhabitants, that the consent of
the vicar could not bind his successors, if it did bind himself,
that there could be no prescription, as the foundation of the
chapel was shown ; that the plaintiff had no legal title nor
equity ; and that the election was an usurpation on the vicar.**
Dixon V. Kershaw or Metcalfe, 2 Edefu 360 ; AmbL 528.

In The Attorney General v. Parker, 1 Fes. Sen. 43, Lord Bight to
Hardwicke laid down as a general rule applicable to cases on ▼ote.
the right of election, that the right and qualification to vote,
must depend on the deed of trust and the usage in the parish,
expounding and putting a construction on the general words
thereof; '' which, as he added, *' is the very best expositor of
'' large and general words in deeds and ^ants.'* As to parochial
elections in general, md.post, " Parish.

In cases where the electors have an equitable right of nomi- Bight to Do-
nation only, the rieht of presentation being in trustees or others ™i°ate.
who have the legal estate, the party must proceed in equity, in
order to compel the trustees to present the person nominated
by them. As soon as it is ascertained in whose persons is con-
stituted the character of cestui que trust entitled to the bene-
ficial interest by nomination, those persons, like all other cestui
que trusts, have a right to call upon a court of chancery, and it

15 merely the ordinary case of a cestui que trust of an advowson,
calling upon the trustee to present on his nomination. 14 Ves. 7;
ib. 13; 10 Ves. 342; 3 Aik. 577; 2 Vem. 387.

If the party, when nominated, is entitled to a stipend, so far as
the title to that stipend is in question, but no furttier, it may be
also considered in the nature of a charity, with regard to which

494 tfcturer/

Election of. there is a right in the attorney general to proceed by infor*
mation. The Attorney General v. Neweombe^ 14 res. 7;
ib. 19.

By a deed of 1656, the impropriate rectory of Clerken-
well, having been purchased by the parish out of the parish
stock; was conveyed to the churchwardens, for the use of
the inhabitants and parishioners for ever. By a decree of
the court of exchequer, the right of nomination was declared
to be in the parishioners and inhabitants, paying the rates and
assessments to the church and poor. Upon these facts Lord
Eldon considered this as a purchase for the benefit of the pa*
rishioners and inhabitants, the legal interest being vested in the
trustees; but the inhabitants and parishioners being the lay
owners, their trustees were subject to the obligation of pro*
viding a person to do the duty, and they would be bound to
present the person named by the cestui que trusts, who have
the right and duty of nomination. 10 Fes. 837; 1 Fes. sen. 4:31
8 Atk. 576.
Licenie of ^^ ^ leftal right to the lectureship be conferred on a party by
bishop. the election, it is still necessary for him to be licensed by the
bishop. 13 ^ 14 Car. 2, c. 4, s. 19 ; Canon 36. And the court of
king*s bench will enforce that right by mandamus, calUng on the
bishop to license him or to show cause why he refuses to do so.
3 Salk. 87.
Manda- ^^^ before a mandamus is granted, it must be shown that the

mat. ' title of the lecturer is complete by the election ; for if the con-
sent of the incumbent be required to his exercising his clerical
functions within the parbh, and that consent be not obtained,
or still more if it be withheld or refused, the court will not grant
the mandamus, as it would be nugatory to do so, and the law
<' non cogitadinuiilia:' 1 WiU. 1 1 ; 13 East, 4&0nf 2 East, 265.
Nor will a mandamus be granted, if it appear, by the affidavit
of the bishop, in showing cause against the rule for a mandamus,
that the party elected had been admitted before him, with a
view to his being approved and licensed (which are the words
of the 13 8f 14 Car. S, c. 14, s. 19, imposing that function on
the archbifiliop or bishop, before any lecturer can lawfully
preach) that he had made diligent inquiry concerning his conduct
and ministry, and being convinced from such inquiry that he
was not a fit person to be allowed to lecture, he had conscien-
tiously determined, aflter having heard him, that he could not
approve or license him thereunto. JSC. v. Archbishop of Canter^
bury and Bishop of London, 15 East, 117.

It seems also, that as by the act of uniformity, 13 ^ 14 Car. 2,
c. 4, the archbishop has a co-ordinate power of licensing,
the party may apply to him as well as to the bishop for a license,
and that a mandamus will not be granted to either, unless it

X^ctttren 495

appear that both have refused ; t&. 158; IS East^ 426; for a Ucenaeof
mandamus will not be granted, if the party has another remedy ^"^^^P*
open to him. Manda-

But the bishop has not an arbitrary power of refusing a mus.
license. He must exercise his discretion fairly on the fitness
of the person presented to him secundum aquum ei bonumn
IS East, 426; 2 Lord Raym. 1205.

By the S6M Canon, no person is to be received or admitted None to be
as lecturer or reader in divinity, except be be licensed by the received m
bishop or archbishop of the diocese where he is to be placed ^\"^g^wl
under their hands and seals,* or by one of the universities under icnbe to
their seal ; and except he shall first subscribe to the three 3 ardclee.
articles concerning the king's supremacy, the book of Common
Prayer, and the Thirty-nine Articles ; and any bishop licensing
without such subscription shall be suspended from giving licenses
to preach for twelve months ; and by STth Canon none licensed j.
as above are to be permitted to preach, &c. or exercise any preach be-
ecclesiastical function, unless he first consent and subscribe to tore he has
the three articles above mentioned, in the presence o{ the bishop •"^"^'•d.
of the diocese wherein he is to exercise such functions, &c.

By 13 ^ 14 Car. 2, c.4, s. 19, the act of uniformity, no to declare
person shall be allowed or received as lecturer unless be shall, anent to
m the presence of the archbishop of the province, bishop of the ^ •^^^^
diocese, or guardian of the spiritualities, in case the see be void,
read the thirty-nine articles mentioned in the Statute 13 EUm.
c. 12, with declaration of his unfeigned assent to the same; and
every person who shall be appointed and received as lecturer,
&c* shall, the first time he preaches, (before his sermon), openly
and publicly and solemnly read the common prayers and service
appointed to be read for that time of day, and then and there
publicly and openly declare his assent unto, and approbation of,
the said book, and to the use of all the prayers, rites, and cere-
monies, forms and orders therein contained ; and shall, upon the
first lecture day of every month afterwards, as long as he is lec-
turer, then openly, &c.. read the common prayer, &c,, and after
such reading openly, &c. before the congregation there assem-
bled, declare his unfeigned assent unto the said book as afore-
said ; and, neglecting or refusing to do so, shall be disabled to
preach the said sermon in the said or any other church, &c«
until he shall openly, &c. read the common prayer and service
appointed by the said book, and conform in all things therein
prescribed, according to the purport and true interests of this act
^11/^467.

Sect. 20. Applies the same provisions to cases of collegiate
churches and chapels.

Sect. 21 . Enables county as well as borough justices, upon the
certificate of the ordinary, to commit any person, disabled by

496 iUrtmtr«

To dwUre ihe 19th secLj preacbing any sermon or lectare, whilst he shall
39^c]es. continue so disabled, to the county or other gaol for three months.
— — — — Sect. 22. Provides that at all times when any sermon or lec-
ture is to be preached, the common prayers and service appointed
by the book of Common Prayer to be read for that time of the
day, shall be openly, publicly, and solemnly read by some priest
or deacon in the church, &c. before the sermon or lecture is to
be preached, and the lecturer is to be present at such reading.
In the case of R. v. BaihurH, I W. BL B. 210, it was held
that where, by the endowment, a lecture is to be preached at a
convenient hour, the trustees may appoint what hour they
choose, and may vary the appointment.

Sect. 23. Exempts the university churches from the operation
of the act. 13 ^ 14 Car. 2, e. 4.

libtl vide pieaDithg^

XjY Canon 13, all manner of persons within the church of
England are directed to keep the Lord's day, commonly called
Sunday, according to God's holy will and pleasure, and the
orders of the church of England prescribed in that behalf.
' Various acts of parliament have at different times passed to
give efiect to the directions of the Canon law.

Fain. By the 27th Hen. 6, c. 5, s. 1, all fairs and markets on the

principal feasts of the church, or Sundays, (the four Sundays in
harvest excepted), and on Good Friday, are ordered to cease
from shewing any goods or merchandizes, necessary victuals
only accepted, on pain of forfeiting the goods exposed to sale.
But this statute did not invalidate the sale, although a penalty is
inflicted on the party selling. Comyns v. Boyer, Cro. Eliss.
485 ; and vid. Gtbs. 275. Such sale is however now made void
by 29 Car. 2, c. 7, post ; 1 Tyrwh. 130.

Sporu. So early as 12 Ric. 2, c. 6, (enforced with additional penalties

bv 1 1 Hen. 4^ c. 4,) labourers and servants were prohibited from
au games, and limited in their exercises to the use of the bow
and arrows only.

In the reign of James the First certain games were con-
sidered lawful for parishioners after Divine Service in their own
parishes on a Sunday, and some were prohibited, vid. *' Book
of Sports.** This book was published 16 Jac. I , and renewed
9 Car. e. 1, continued by 3 Car. c. 4, and 16 Car. c. 4, it

Sottas; 98^4 497

is enacted, that if any assemble on the Lord's day, otd of their Sport§.
parighf for any sports or pastimes whatsoever ; or for any bear-
Daiting, bulI-baiting, interludes, common plays, or other unlawful
exercises and pastimes, toithin their own parishes, such person
so offending shall forfeit, for such offence, 3i. 4c/., to the use of
the poor*

It is provided that no man be impeached by this act, except
he be called in question within one month next after the offence
committed; and provided also that the ecclesiastical jurisdiction
by virtue of this act shall not be abridged, but that the eccle-
siastical court may punish the said offences as if this act had
not been made.

By S Car, 1, c. 1, it is enacted that no butcher kill or sell any Butchers.
meat on a Sunday, on pain to forfeit 6s, %d.\ every prosecution to
take place within six months, and no abridgment of ecclesiastical
jurisdiction. As exercising the trade of a butcher, by selling meat
on a Sunday, was not an offence at common law, but was made
so by this Statute, it is necessary, in an indictment upon it,
to lay the offence as done against the form of the Statute*
Sira. 702; I Taunt. 135.

By 29 Car. 2, c. 7, no tradesman, artificer, workman, lar 29 Car. 2,
bourer, or other person whatever, shall do or exercise any ^' ^'
worldly labour, business, or work, of their ordinary callings, on Ordinary
the Lord's day or any part thereof, (works of necessity and <=*i^»ng»'
charity only excepted), ana every person, being of the age of four-
teen years and upwards, offending in the premises, shall forfeit 5s,

This Statute having prohibited the exercise of a man*s worldly Contracts.
calling on the Lord's dayi under a penalty, a contract to do
anything within the scope and meaning of the act, is thereby
rendered void. 1 7'aunt, 136.

The spirit of this act is to advance the interests of reIigion«
and to prevent persons carrying on their trade, and ordinary
occupations and callings, on the Lord's day ; with regard to the
mode of its construction, it has been said, " Although it may
be perhaps desirable that other similar concerns (besides those
expressly mentioned in the statute,) should be comprehended
in it, we must not extend the words of the statute beyond their
natural import. Here the legislature does not enact that, no

{person whatever, but that ** no tradesman, artificer, workman,
abourer, or other person whatsoever," shall do any work, &c.
The words, '* other person whatsoever" must, according to the
general rule, that preceding particular words, controul sub*
sequent general words be construed to mean persons ejusdem
generis, with those previously mentioned. All the persons
previously mentioned, exercise an ordinary calling. The statute
therefore in substance enacts that all persons having an ordinary
calling, shall not do any worldly labour or business, or work of

K K

498

tdtti^si fiap.

29 Car. %
c. 7.

Ordinary
f^Hjng.

Py BgciU.

Contract
must be
complete
pn Sunday.

tlieir ordinary calling ; this is a penal enactment, for erery con-
tract which is void within the first part of the clause, subjects
the party to a penaltyi it must therefore be construed strictly."
PerHolroyd,J.,K v. Whitmarsh, 7 ^- * C 601 ; ib. 96;
S B. ^ C. IBi. In which case it was decided that tbe hiring a
servant by a farmer, is not within the statute, for although
hiring servants may be useful or even necessary for carrying
on the business of his ordinary calling, it is not a part oi' it Ib.
Nor is tbe sale of a gentleman's horse by private contract on a
Sunday, by a person keeping a commission stable for selling
horses by auction, void. 1 Taunt, 131. Such sale not being
in the ordinary course of business which was to sell by auction ;
and vid. 1 Tyrwh. 131.

But where the plaintiffs, being horse dealers, brought an
action upon the warranty of a horse, the contract of sale and
warranty being made on a Sunday, the action was held not to
be maintainable. FenncU v. Ridlcr, 5 B. ^ C. 406.

Nor will an action lie on a contract entered into on a Sunday,
although entered into by an agent, and although the objection
be taken by the party at whose request the contract was made.
Smith V. Sparrow, 4 Bing. 84. But where one party was
ignorant that the other was a dealer in horses, and therefore
not apprized, that in buying a horse of him he was dealing with
a man exercising his ordinary calling on a Sunday, and con-
sequently ignorant that he was doing an illegal act, the other
party cannot take advantage of his own wrong* and set up his
own breach of the law, as an answer to an action. Bloxholme
v. Williams, SB.SfC. 232 ; Begbie v. Levy, I Tyrwh. 130.

A doubt seems to have arisen at one time, whether the act
was not intended to apply exclusively to promote public decency,
and not for regulating private conduct, and therefore that it
onlv applied to manual labour, and other work visibly laborious,
and the keeping open shops. 3 B. if C. 334, But the same
learned judge, who suggested the doubt in a subsequent judg-
ment, said, " that it would be contrary to the spirit of the act
^^ to give it such a construction, for labour may be private, and
" not meet the public eye, and so not offend against public
" decency ; but it is equally labour, and equally interferes with
" a man's religious duties." Per Bayley, 5 B. §f C. 436 ; and
vid. 4 Bing, 84.

But the contract must be complete on the Sunday, therefore
where the plaintiff made a i^erfra/ agreement for a horse on a
Sunday, which was then warranted sound, and the price above
£10. ; but the horse was not delivered nor the money paid till
the Tuesdav, it was held that as by the statute of frauds there
was no valid or binding contract till the Tuesday, the plaintiff
might recover on the warranty. 3 B. % C S32« It has been

9Lor}i^i lAnn. 499

said, that although the mere inception of a contract on a Sunday ^ ^^r. 2,
will not avoid it, if completed on the next day ; yet if most of the ordinary
terms are settled on a Sunday, and the mere signature be calling.
deferred to the next day, such a contract could hardly be sup- "Z
ported. Per Best, C. J. 4 Bing. 87. But in Begbie v. Levy, ^^^^^
I TffTwk. ISO, it was held that the indorsee of a bill of complete
exchange, might recover against the acceptor of a bill, on Sunday.
dated Sunday, there being no evidence to show it was accepted
on the Sunday, and the probability being that though drawn on
a Sunday, it was not left for acceptance till the next day.
In Peate v. Dicken, 5 Tyrwh. 116. An attorney entered into an
agreement on a Sunday to settle his client's affairs, by which
agreement he incurred personal responsibility ; it was held that
this was not in ''his ordinary calling," for it is no nart of his
ordinary business to enter into guarantees, or maKe himself
personally responsible for his client ; and the court expressed Attomies.
much doubt in that case, whether an attorney came within the
provisions of the ^ Car, 2, c. 7.

Where a conditional contract was made on the Saturday, but
not concluded till Sunday, when the heifer, the thing contracted
for, was left in the possession of the defendant, who, on a sub-
sequent day promised to pay for it, it was held that the sub-
sequent promise was sumcient on the quantum merwt count to
entitle the plaintiff to a verdict for tne value of the heifer.
WiUiams v. Paul, 6 Bing. 65S.

By the next paragraph of the above statute, it was enacted, Ezposingto
'' that no person shall publicly cry, show forth, or expose to tale*
sale, any wares, merchandize, fruits, herbs, goods, or chattels
whatever, upon the Lord's day, or any part thereof, on pain of
forfeiting the same.

By the 10 A* 11 Wm. 3, c. 24, m. 14. Mackarelhre allowed to Mackarel
be sold on Sundajrs before or after Divine Service; in the
statute S9 Car. 2, there is an exception for crying milk. '

Again by 29 Car^ 2, c. 7, #. 2, it is enacted ** that no drover, TnvelUog.

horse, courser, waggoner, butcher, higgler, or any of their servants,

shall travel or come into his or their inn, or lodging upon the
Lord's day, or any part thereof, upon pain of SOs, ; and by the
8 Car. 1, c.l, noticed above, it is enacted, ** that no carrier, with
any horse or horses, nor waggonmen, with any waggon nor
waffgons, carman with carts, wainman with wains, nor drover
with any cattle, shall bv themselves or any other, travel on the
Lord's day on pain to forfeit the same penalty.

By 2 Oeo. S, e. 15. Fish-canriages for the supply chiefly of f^\^^^^^
the markets within London and Westminster, shall be allowed to riagm.
pass on Sundays and holidays, whether laden or returning empty.

And by the 9 Ann, c. 28, s. SO, amended and extended by Hackney-
\ S^Z Wm. 4, c. 22, s. 97, it is made lawful for any licensed coachmen.

K K 2

600

9U)r)i^0 ftjip.

99 Car. 2.
c. 7.

Hackney
.coaches.

coac)iM.

Vani.

Wajterpven.

Cookr
•hopt,

Crying

milk.

Bakerf.

hackney coachman^ or his driver, or any /ebuirmaja, to ply and
. stand with their coaches and phairs, and to driv^ and carry the
same respectively pn the Lord's day« within the limits of the
bills of mortality^

3y 3 ^ 4 Wfn. 4, Cp 19| s. 26. Justices of the peace may order
Ithe route of stage coaches find cattle during th^ hour^ of Divine
Servicei on Sunday. It has been decided that it is not illegal for
stage coachf s to travel on a Sunday within the meaning of either
pf the above statutes. Sunditnan v. Broach^ 7 B. & C. 96. But
a person who h/u the care of a van is a carrier wiUiip the tornv
pf S Car. 1, c. 1. Ex partfi Miftdl^ton, 8 B. ^ C 164*

Again, by the 29 Car, 2, p. 27, it is enacted that no person
/ihall Mse, ^mploy, or travel on the Lord's d^y with any boat^
wherry, lighter, or barge, except it be on an extraordinary occa-
sion, to be allowed by a justice of the peace of the coontyt or
head oflScer, or some justice of the peace of the ci^, borough,
pr town corporate, where the fact shall be c(>inmitted> on pain
pf 5#.

By 11 Ir \2 FF. 3,c. SI, the rulers and overseers, auditors and
Assistants of the society and companv of watermen of the rivar
Thames may appoint any number of watermen, not exceeding
forty, to ply and work on every Lord*0 day, between Yauxhall
and Limehouse, for the carrying passengers at one penny each
person, the same to be applied, after paying thereout to such
persons for their day's labour so much as shall be agreed op,
|o the use of the poor, aged, decayed, and maimed watermen ;
;md lightermen of the said society and their widows.

Thi^re is also a general provision, at the conclusion of thi?
section of the act, that it shall not extend to prohibiting the
dressing of meat in inns, cook-shops, or victualling houses, for
f uch as otherwise cannot be provided for ; nor to the crying or
^Uipff pf milk, before nine o'clock in the mprning, or after K>ur
o'clock in the afternoon. Several discussions and decisions have
(taken place pn this branch of the act; 9 Burr. 785; Cotep.640;
& T. fi. 44P I which eventually gave rise to the 34 Geo, 3> c. 61,
and which pases, therefore, it is not now necessary tP advert
tOf That act introduced fre^h regulations, by which it is
provided that no baker carrying pn his business in th^ city of
London, or within twelve miles thereof, ahall, on any pretence
whatsoever make, bake, or expose tp sale, any bread or rolls; or
bake any meat, puddings, pie3, or tarts; or in 4ny other manner
exercise his trade or calling, except in the manner allowed by
tbi^t act ; which permits the selling of breiid, and the baking of
me^t, puddings, pr pies only, on the Lord's day between the
hours of nine of the clock in the forenoon, liud one of the clock
in the aftiernoon, so as the person requiring the baking thereof,
shall carry or send the same to and from tb? pt#oe wpere «^c^

meat, pudding, or pie is baked. Penalty, 10^. Prdsecutions 29 Car. 3,
to be commenced within six days after the offence committed. ^' ^'

And further, by 69 Geo. S, c. 36, s, 1 2, and I S^ 2 Geo. 4, Bakers.
c. 50, «. 1 1 , for regulating the making and the sale of bread out
of the city of London and liberties thereof, or beyond the weekly 59 Geo. 3,
bills of mortality and ten miles of the Royal Exchange, where c. 36.
no assize is set; it is enacted that no person exercising the trade 1 <^ 2G.4,
of a baker out qf the aboee limits, shall on the Sunday make of ^' ^^'
bake any household or other bread; rollsj Of cakes, or sell or
expose to sale; or permit to be sold or exposed to sale any bread,
rolls, or cakes of any sort or kindj except to travellers, or in
cases of urgent necessity ; or bake or deliver,- or permit to hz
baked or delivered any meat^ pudding, pie, tart; or vietualsi at
any time after half past one in the afternoon of that day ; or in
any other manner etercise the trade of a baker, or be engaged
in the business thereof, except as aforesaid ; and also except so
far as may be necessary in setting and superintending sponge for
the following day 9 and no meat, puddings piei tart, of victuals
shall be brought to^ or taken from any bakehouse during the
time of Divine Service^ nor within one quarter of an hour of
the time of Commencement thereof; and every person offending
against the foregoingVegnlations, being thereof convicted before
any justice of the peace, fdithin two days, either on view by such
justice, or confession, or proof by one witness on oath or affir-
mation, shall forfeit for the first offence 5s,, the second lOs.i
and for every subsequent offence £ I . ; and moreover on convic-
tion pay the costs of prosecution to be assessed by the convicting
justice, and the amount thereof, together with such part of the
penalty, as such justice shall think proper for loss of time in
instituting and tbllowinff up the prosecution, at a rate not
exceeding S^. a-day, shall be paid to the prosecutor ) and the
residue to such justice, to be transmitted by hira, within seven
days after its receipt ^ to the officers of the parish for the benefit
of the poor; and in ease the penalty and costs be not paid
within three days after conviction^ the same may be levied by
warrant of such justice by distress and sale ; or^ in default or
insufficiency of distress, be may commit the offender to the
house of correction for the first offence for fourteen days^ and
for a second or third for twenty-^ne days^ unless the costs and
penalty be sooner paid^

By 50 Geo, 3, c, 78, Si 8, simiktr provisions are enacted as
to bakers and others residing out o^ London or its liberties,-
or beyond ten miles of the Royal Exchange^ where an assize
is set.

And by 3 Geo. 4, c; 106, s, 16, within London and its liberties^
the weekly bills, and ten miles of the Royal Exchange^

By the former statute, S9 Car, 2^ c, 7, S4 6y it is further

602

^Latt^H Msfi

29 Can 2,
c. 7.

Serving
procets.

Eccletiat-
ticaJ.

Criminal.

Charging
the hun-
dred.

For rob-
beries 00
Sundays.

Recovery
of penalties
of, and en-
forcement
of its provi-
sions.

enacted that tio person upon the Lord's day shall serve or exe-
cute, or cause to be served or executed, any writi process, war-
rant, order, judgment, or decree; {except in eases of treason,
felony, or breach of the peace) but the service of the same
shall be void to all intents and purposes ; and the person, so
serving or executing the same, shall be as liable to the suit of
the party grieved, and to answer damages to him for doing
thereof, as if he had done the same without any writ, process,
warrant, order, judgment, or decree at alL

This statute does not extend to ecciesiasticai process, aa
citations and excommunications. Gibs. S71 ; 1 Lord jRatfrn^ 706;
Carth. 504 ; 13 Mod. 275 ; 5 Mod. 449 ; 2 SaU. 626.

Nor to any criminal process, but only to that which is issued
in civil cases. A warrant to take a man to find sureties for good
behaviour b a warrant for the peace. Sir T. Raym. 250* Wbere^
by the contrivance of the plaintiff's attorney, a party had beeD
arrested on a Sunday on criminal process, for the purpose of
effecting his arrest on civil process, and was detained till Monday
and then arrested on civil process, the court ordered him to be
discharged. Wells v. Gumey, 8 JB. ^ C. 769.

By 5 Ann. e. 9, s. 3, a judire's warrant for apprehending
a person escaped out of the king s bench or fleet prison, may be
executed on the Lord's day. 2 Lord Raym. IQSS. So
if a party have wrongfully escaped, he may be retaken on Sun-
day without warrant. 5 T. R. 26.

Previously to the above statute, it seems to have been ques-
tioned, whether one robbed on the Lord's day could charge the
hundred, because it was said to be at the peril of those who
travelled on Sundays if they were robbed ; Cro. Jac. 496 ; and
now by the 5th sect. 5 Ann. c. 9, it is enacted that, if any which
travel upon the Lord's day shall be then robbed, no hundred, or
the inhabitants thereof, shall be charged with, or answerable for,
any robbery so committed , but the person so robbed shall be barred
from bringing any action for the said robbery. Neverthdess
the inhabitants of the counties and hundreds, aiter notice of any
such robbery to them or some of them given, or after hue and
cry for the same to be brought, shall make fresh suit after the
offenders, on pain of forfeiting to the king as much money aa
might have been recovered against the hundred by the party
robbed as if this law had not been made. But this section does
not apply to the case of a person robbed in his way to church,
but only where the party is travelling. Str. 406; Com. Rep. S45.

Finally, the 29 Car. S, provides, that if any person offending
in any of the premises shall be thereof convicted before any
justice of the peace, or chief o€5cer, or justice of any city, &c.,
on view, or confession, or oath of one witness, the said justice
or chief officer shall give warrant to the constables or church*

wardens, where the offence shall be committed, to seize the said ^ Car. i,
goods cried, shewed forth, or put to sale as aforesaid, and to ^' ^'

levy the other forfeitures and penalties by distress and sale ; and Becovery
in default of such distress, or in case of insufficiency or inability °^5*enl^^'
of the said offender to pay the said forfeitures or penalties, that forcement
then the party offending be set publicly in the stocks by the of its pro-
space of two hours ; and all the penalties and forfeitures afore^ ^*'^^°*«
said shall be employed and converted to the use of the poor of
the parish where the offence shall be committed ; save only that
such justice^ mayor, or other head officer, may reward the
informer out of the same, not exceeding the third part«

By 13 Geo, 8, c« 80, «• 16, any person knowingly and wilfully Killing
taking, killing, or destroying any hare, pheasant, partridge, e^*"^
heath or moor game, or using any gun, dog, net, or engine, for
taking, &c. the same on a Sunday or Christmas day, and being
convicted thereof, shall forfeit for the first offence, not exceed^
ing £20., nor less than ^10. ; for the second £30«, and not less
than £20. ; and for the ttiird, may be committed to the common
gaol of the county till he enter into a recognisance to appear at
the next quarter sessions, where, if he be convicted, he shall
forfeit £50., which, if be neelect or refuse to pay, he may be im«
prisoned for a term not less than six nor more than twelve
months, and at the expiration thereof be publicly whipped.

By 2\ Geo^ S, c*4Sf it is enacted, that every house^ room, or Hotiseadf
other place, which shall be opened or used for public enter- •nt«rta>o-
tainment or amusement, or for publicly debating on any subject delniUD'^
whatsoever, upon any part of the Lord*s day, and to which deemed dis-
persons shall be admitted by the payment of money y or by tickets ^rderiy
sold for money, directly or indirectly, shall be deemed a dis- °^*^*
orderly house or place, and the keeper thereof shall forfeit
£200. for every Sunday the same shall be so used as aforesaid^
and be otherwise punishable as disorderly houses; and the
person managing the same, or acting as master of the cere-
monies, or as moderator, president, or chairman, in any such
debate shall forfeit £100.; the doorkeeper or other person de-
livering out tickets, £50.; and any person advertising such
amusement, ^50. Such penalties, with full costs, to be re-*
covered in any of his majesty's courts at Westminster within
six months after the offence committed, provided that nothing
in the act shall abridge the ecclesiastical jurisdiction or the im-
munities of the act aforesaid.

iHan&annis; vide ^&ns(l[).

604

inatna^e.

1. Of the contract.

2. By banns.

Place of publication*
Notice to minister.
Undue publication.

Cases under 4 Geo. 4, c. 76^
Republication.

Cases of undue publication under 26 Geo, 2, c* Z3*

1. Total variation in name.

2. Partial variation in name.
d. By license.

Of irregularities in.

Of special licenses.
4. Of the place andbour^ in cases of marriages by banns, or sur^

rogate's license.
6. Of marriages under 6 4* 7 fVm. 4, e* 85.

Registrar's certificate*

Registrar's license.

Place of celebratioH.

Time and form of.

6. Of dissent to banns^ and forbidding certifieale, and of caveala

to licenses*

7. Of consent in cases (^ minors.

Of father, mother, guardian, Court of Chancery.
Consequence of want of, by 26 Geo, 2, e, 33.

Retrospective clause of 3 Geo, 4, c. 75.
What now necessary under 4 Geo, 4, c* 76, and t ^S Wm, 4,

C.85.

8. Of void and voidable marriages*

Void.

1. Impuberty*

2. Idiotcy or luiracy.
S. Bigamy.

4. Consanguinity or affinity.

Proceedings in cases of incest.
£• Nonrcompliaaoe with provisions of marriage acta*
26 Geo. 3, c* 33 ; 4 Geo. 4, c. 76 ; 6^7 Wm. 4,
c. 95.
Voidable*

1. Impotency or frigidity.

2. Force, fr»id, or error.

3. Consanguinity, marriage contracted before August/

1835.
4* Pre-contract*

iMarriag^ 605

9. Consequences of irregular marriages.

Punishments and forfeitures by 3 Oeo» 4, e, I64
Forfeitures by 4 Geo, 4, e, 76, «. 23.

by 6 4- 7 JVm. 4« e. 65, «. 43.
Punishments by 4 Oeo, 4, e. 77, »• 8 ^ 2L

by 6 4- 7 JVm. 4, c. 85, and 1 Vict. c. 22, 9. 3.

10. Foreign marriages.

Carriage is a contract, having its origin in the law of orcbecMi«
nature, antecederit to all civil institdtions, but addtited by ^*^^
political society, and charged thereby with various civil obliga«
tions. It is founded on mutual consent, which is the essence
of all contracts ; and is entered into by two persons of difiereni
sexes, with a view to their mutual comfort and support, and foi"
the procreation of children.

The opinions which have divided the world, or Writers at
least, on this subject, are generally two, it is held by some!
persons that marriage is a contract nierely civil, by others that
it is a sacred, religious, and spiritual contract, and only so to
be considered; but, as said by Lord Stowett in Undo V.
BeUsario, 1 Hag. Cotii 290. '^ According to juster notions of
the nature of the marriage contract, it is not merely a civil
or religious contract i at the present time it is not to be con-
*' sidered as, originally and simply, ofie or the other/*

The same noMe and learned lord, iii the case of Dalrymple
v. Dalrymple^ 2 Hag. Con, 64, said : —

'' In the Christian church, marriage was elevated in a latei'
" age to the dignity of a sacrament, in consequence of its divine
** institution, and of some expressions of high and mysterious
** import respecting it contained in the Sacred writings. Thef
'' law of the church, the Canon law, (a system which, in spit^
'' of its absurd pretensions to a higher origin, is in many of itsr
" provisions deeply enough founded in the wisdom of man,)
** although, in conformity to the prevailing theological opinion,
*' it reverenced marriage as a sacrament, still so far respected
'' its natural and civil origin, as to consider, that ithere the
" natural and civil contract was formed, it bad the full essence
'' of matrimony without the intervention of the priest ; it had
" even in that state the character of a sacrament ; for it is a
misapprehension to suppose, that this intervention was re-
auired as matter of necessity, even for that purpose, before
'' the Council of Trent. It appears from the histories of that
** council, as well as from many other authorities, that this wasr
'' the state of the earlier law, till that council passed its decree
" for the reformation of marriage : The consent of two parties
expressed in words of present mutual acceptance, constituted
an actual and legal marriage, technically known by the nam^

ti
ti

506 iMarriase^

Of the con-
tract

'' of spomalia per verba de prassenii, improperly enough,
** because sponsctUa, in the original and classical meaning of the
^* words are preliminary ceremonials of marriage."

It is to be noticed that these observations, though general in
their tenor, were made in a case in which the marriage in issue
did not depend upon the rules of English law, but in the csase
of a marriage contracted in Scotland, which was to be decided
therefore, by the rules of the law prevailing in that country.

Swinburne, in his Book of EspousalSt 8. 4, says, " It is a
*' present and perfect consent the which alone maketh matri-
** mony, without either solemnization or carnal copulation, for
** neither is the one nor the other the essence of matrimony, but
'' consent only/* The vinculum is said to follow on the contract
without consummation ; for when the words import a contract
de prcBsentiy it is not necessary that actual use and possession
should intervene to complete the vinculum Jidei. So also was
the maxim of the Roman civil law '* Consensus non concubitus
facU nuptias ;" for the concubiius may take place for the mere
gratification of present appetite, without a view to any thing
further ; but a marriage must be something more, it must be an
agreement of the parties looking to the consortium viice^ Dal^
rymple v. Dalrymple^ 2 Hag. Con* 63 ; 1 Hag. Con.93lSi\ Lindo
V. BeUsario, 1 ib. 2S2 ; Co. Litt. S3» But where the promise is
per verba de futuroy consummation is required to complete
the contract* In such case, till consummation, the relation of
husband and wife is not established* If the promise be for
future marriage, it must be cum copuld. 2 Hag. Con. 65.

But it can hardly be asserted, though the opinions of many
most distinguished men seem to lead to such a conclusion, that
by the law of England the mere civil contract was ever consi-
dered as a complete state of matrimony. A contract per verba
de prtesenti, as lonff as the now obsolete and repealed law of
pre-contract prevailed, conferred certain rights on each party to
such contract ; but such rights were essentially rights of con-
tract, and which each party might enforce adversely to the other,
but were not such rights as flow out of, and are incident to, the
actual union of two persons in a complete state of matrimony.
For instance, it conferred no immediate and possessory rights
over the person or the property* It was an inchoate contract
which might be enforced by the intervention of the spiritual
court compelling solemnization, but till solemnization, it was not
attended by any of the incidents of marriage, such as legitima-
tion of issue, dower, &c. In fine, as a mere civil contract and
without the presence of the priest, it seems not to have been
*' legiiimum matrimonium."

With regard to the authorities on this question, there seems
to be none which goes the length of treating a mere civil coii«^

tract per verba de prasenii, entered into without the intervention Of tlie aon^
of a priest, as a sufficient and legal marriage* For a time ^'^^'
indeed, as appears by the older cases, Foxerafi'e case, RoU.
Abr. 359; and Del Heith's case, fol. 339, 34tEd. I; Harleian
MS. 2117; the papal Canons oi Innocent 3, against clandestine
marriages, and which required that marriages should be solem*
niased in fade ecelesia^ were engrafted upon our common law,
and the courts held that marriages, not so solemniaied, were insuf-
ficient and null ; but immediately upon the Reformation, if not
before, this canonical restriction was considered as inoperative,
and marriages, in other places than in churches, were considered
legal, if solemnized by a person in holy orders. Vin, Abr,
Baron ^ Feme, JB. SI ; Com. Dig. Baron ^ Feme, B. 1 ;
2 Show. 300 ; 8 Kebl. 148. Indeed, it was the scandalous abuse
of this power of celebrating marriages any where, and which
hucity led to the Flcet^prison and May^fair marriages, where
the ceremony of marriage was so frequently performed by
disreputable persons in orders, that gave rise to the first
marriage act*

But the very circumstance, that in all these cases the inter-
vention of a clergyman was required, shows the opinion that
universally prevailed that such intervention was necessary to
legalise the contract. The same principle runs through all the
modem cases since the marriage act, where irregular marriages
in Ireland or in the colonies, where the marriage act does not
extend, have been brought under the notice of the courts^
R. v. Brampton, 10 East, 282 ; Smith v. Maxwell, \ R.SfM.90}
R. V. Baihwick, 2 B.SfAd.639; Steadmany. Powell, 1 Add. 58;
Bruce v. Bwrke, 2 Add. 471.

The expressions which have been used by the distinguished
men above alluded to are to be traced to the civil and canon
law. The canon law, however, though stated by Lord StoweUf
in Dalrymple v. Dalrymple, 2 Hag. Con. 67, ** to be the known
** basis of the matrimonial law of Europe," could not alter the
common law and custom of England, if that law and custom
required the intervention of a priest at the marriage ceremonyi
before the Canon law was superinduced upon it.

It would seem that our Anfflo*Saxon forefathers, from whom
we derive most of our common law principles, considered the inter*
vention of a priest necessary, indeed indispensable, to the effectual
celebration of the marriage ceremony. The uniform train of
deci^ons, the cases cited by Finer in his Abridgment, and
Comyns in his Digest, as referred to above ; and the prevailing
opinion, evidenced by the constant recourse to a person in
orders, during the prevalence of the Fleet and May*fair mar-
riages, seem to show that the custom had never been neglected

SOS

iMatrfas^*

Oftliecon*
tract.

By banns.

t^lace of
bnblica-
uon.

as obsolete, but held in viridi observantid m this country^ down
to the passing the marriage act in 1754 ; and that since that act
the same principle has been recognised in all the cases which
have come from Ireland or the Colonies.

All inquiry on this subject has now become unimportant with
regard to marriages contracted in England since the passing the
marriage act ; and especially so since the late act 6 & 7 W. 4,
c. 85, which, with ample liberality, allows every person of every
religious persuasion to contract marriage^ according to the forms
and ceremonies received and adopted by the particular congre*
gation to which he belongs | or, ir the parties prefer to consider
marriage merely as a civil contract and nothing more, they may
now, under the provisions of such last-mentioned act, contract
it, not only without the intervention of a priest, but without any
religious or other form or ceremony whatsoever. This question
is more fully considered, and most of the authorities cited, in a
note at the end of this article.

3* Marriages by Banns^

The main purpose of the 96 0. 3, c. 53, which was the first, 89
well as of the subsequent marriage acts, was to prevent clandestine
marriages, to which object various canons and eionstitutions of
the church had been directed from a very early period. The
institution of banns, as a means of publicity may, it is said, be
referred to the fourth lateran council, A.D. 1S15, held during
the pontificate of Innocent the Third. From the catholie
church the ordinance of banns was adopted into our Canons at
the reformation, and from the passing of the first marriage act
in 1754, (a) till the late act of the 6 ^ 7 JV. 4, c. 85, no mar-'
riage was valid/ unless banns were published/ or a license pre-*
viously procured.

By the act 6 ^ 7 W. 4, c. 85, parties objecting to the ritual
and ceremonies of the church of England are relieved from the
necessity of resorting to that church for the publication of banns/
or solemnization of the marriage contract, or to the ministers of
that church for procuring a license ; notice to a soperintendant
registrar of an intention to contract marriage at a licensed dis-
senting chapel, or in some registrar's office, being duly pub^
lished as required by that act, is deemed equivalent to banns, or
sufficient for the obtaining a license from the registrar ; and the
celebration in a dissenting chapel is now as effectual a celebra-'

(a) It seems that at the passing the original marriage act in 1754/
there was an intention of passing a similar act for Scotland, but by the
act of union it was declared that the state of religion should not be
touched, and therefore that created a difficulty of applying the marriagi^
aet to that country. Per Sir W. fVynne, 2 Hag 4 Con, 448/

iKarnagt. 609

tion as if it hod taken place in a church of the establishment; or Bybanng.
parties may, if they pboose, ratify their contract at a registrar's puce of
office, without any solemnity at all. publication.

The word banns is of Saxon origin, aiid signifies publication
or proclamation ; a publication by banns for three several Sun-
days or holidays was required, unless a faculty or license was
obtained, by the 62d of the Canons of 1603, and by the Book of
Common Praver recognised by the 2 4r 3 Ed. 6, c. 2\ • The words
of the Canton however were considered as only directory, and not
obligatory, and did not, therefore, affect the validity of marriage;
for the laity are not bound by the Canon law, except so
far as it may have been adopted into the common law, or con-
firmed by statute ; but a minister neglecting these directions and
celebrating a marriage in defiance of canonical regulations might
have been suspended for three years. 6 Ves. 423; 16 Ves. 259;
& M.&S,Q&i\\ Curt. 84. The first marriage act, 26 Geo. 2,
c. 33, by ss, 1, 2 & 3, regulated the mode in which the pub-
lication of banns was to be made ; those sections were re-enacted
by the 1st, 7th, and 8th sections of the 4 Geo. 4, <?. 76 ; and
further provisions have been made by the 6^7 JV.4ftC. 85, s, 1 ;
explained and amended, as that last act has been, by the 24th
and 36th sections of the 1 VicL c. 22.

By 4 Geo. 4, c, 76, «, 1, it is enacted, ** That from and after 4 Geo. 4,
'* the 1st of November, 1823, all banns of matrimony shall be ^^'^^'
'' published in an audible manner in the parish church, or in
f' some public chapel, in which chapel banns of matrimony may
** now, or may hereafter, be lawfully published, of or belonging
^' to such parish or chapelry wherein the persons to be married
^* shall dwell; according to the forpi of words, prescribed by the
*' Rubric prefii^ed to the ofiice of matrimony in the Book of
*' Common Prayer, upon three Sundays preceding the solemnly
*' zation of marriage, during the time of morning service, or of
f* evening service, (if there shall be no morning service in such
'' church or chapel upon the Sunday upon which such
^* banns shall be published,) immediately after the second
^' lesson; and whensoever it shall happen that the persons to be
'' married sb^U dwell in divers paristies or chapelries, the banns
'' shall in like manner be published in the churchi or in any
** such chapel as aforesaid, belonging to such parish or chapelry
*' wherein each of the said persons shall dwell; and that all
f* other the rules prescribed by the said Rubric, concerning the
" publication of banns, and the solemnization of matrimony, and
** not hereby altered, shall be duly observed ; and that in all
'' cases where banns shall have been published, the marriage
f* shall be solemnized in one of the churches or chapels where
^' such banns shall have been published, and in no other place
*' whatsoever.** I Curi, 81.

610

iMarnase*

By bttnnt.

Place of
publkatioiu

Chapeb.

Chapels
with cha*
pelries, and
in extra-pa-
rochial
places.

Chapels in

populous

parishes.

Notice to
be affixed
in.

Churches

under

church

building

acts.

The publication therefore must take place.

1* In the parish church or public chapel where banns may be
so lawfully published. Taunian v. JVybarHf S Campb.
S97; D(HigL639.

S. In the church or chapel, belonging to the parish or
chapelry in which the parties dwell ; and, if they live in
different parishes or chapelries, then publication must be
made in each.

First, then it is to be seen what is a chapel wherein banns
may be lawfully published* It was enacted by 11 Geo. 4f,
e. 18, s. 4, that with regard to all banns which had been pub-
lished in chapels duly consecrated before the passing of that act,
(29th May, 1830), the same should not be questioned by reason
** that they had been published in a chapel not legally authorised
" for the publication of banns or solemnisation of marriages,'*
as that provision, however, applies only to banns which haul
been previously published, it is still necessary to inquire In
what chapels, since the passing of that act, banns may have been
lawfully published.

By 4 Geo. 4, c. 76, s» 3, the bishop of the diocese, with con-
sent of the patron and incumbent of the parish, may authorise
publication of banns, or solemnisation of marriages, in any
chapel ** having a chapelry thereto annexed, or of any chapel
** situated in an extra-parochial place.*'

By 6^7 ^.4, c. 85, s. 26, bishops, with like consent, may
license chapels /or marriages in populous parishes, whether
such chapels have or have not chapelries annexed ; and by the
1 Vict c. 33, s, 33, banns may be published in such chapels.

4 Geo. 4, c. 76, s. 4, and 1 Fict. c. 22, s. 83, require notices
to be affixed in conspicuous parts of the interior of both of such
classes of chapels, that ** banns may be published and marriages
** solemnised in this chapel/'

By 58 Geo. 3, c. 45, it is enacted by ss. 24 and 27, that
all acts of parliament relating to publishing banns of marriage,
marriages, &c. shall apply to all separate and distinct parish
churches, and to all district churches and chapels, built under the
authority of that act ; but by s. 28, it is provided that no banns
shall be published or marriages solemnised in such churches or
chapels, except by the incumbent of the parish or his curate, till
after the death, resignation, or other avoidance of the person,
who was incumbent, at the time of the consecration of the said
church or chapel. Ante, 197, SOI.

By 59 Geo. 3, c. 184, ss. 16 and 17, the same powers are ex-
tended to all churches or chapeb of ecclesiastical districts or
consolidated chapelries ; and by s. 16, in cases of chapeb of
ease, to which ecclesiastical districts are attached, the commis-
sioners have power, with consent of the bishop, to determine

iMamage^ 51 J

whether banns shall be published, or marriages had, in such BjbanM,
chapel or not ; and if they so determine, then the boundaries of puce of
the district assigned to such chapel are to be enrolled in the court pubUcation.
of chancery, and in the registry of the diocese. Ante^ 198,
£08.

With regard to churches and chapels built under the autho-
rity of the 1 ^ S fV.iffC. S8, although the rites of baptism and
burial may, upon the allowance of the bishop or commissioners,
be performed there, the act seems silent on the subject of the pub-
lishing banns, and the celebration of marriages* AntCf 201,
808.

Where the parish church, or chapel of any chapelry^ is de- Churches
molished, in order to be rebuilt, or under repair and disused ; it ^ ^^?Ff|j]>
is provided by 4 Geo. 4, c. 76, s. 13, that banns may be pro- or under re-
claimed in the church or chapel of any adjoining parish or pair.
chapelry, in which banns are usually proclaimed ; or in any
place licensed by the bishop for divine service, during the disuse
of the church ; or by 11 Geo* 4, c. 18, 8. 2, in any consecrated
chapel of such parish or place which the bishop may order and
direct ; and by 6 Geo* 4, e. 32, 8. 3, and 11 Geo. 4, c. 18, 8. 2,
all such publications shall be considered as if made within the
parish church or chapel of the chapelry. (a)

By 26 Geo. 2, c. 33, 8. 1, amended and extended by 4 Geo. 4, Extim-pa-
Cm 76, 8. 12, it is provided, that extra-parochial places, or places ^^^
having no parish church or chapel, or none, wherein Divine havl^ no
Service is usually solemnized every Sunday, shall be deemed church or
and taken to belong to the next adjoining parish ; and banns ^^"^

{>ublished there, shall be certified as if one of the persons had y\^^ every
ived in such adjoining parish. Sunday.

Secondly, The publication of banns is to be made in the Residence
church or chapel belonging to the parish in which the parties of parties.

dwell ; and if they live in different parishes then there must

be publication in each.

We have seen immediately above, that if either of the parties
live in an extra-parochial place, or where Divine Service is not

(a) Before the passing of the above acts indeed, it was held in the year
1815, that a marriage which took place in 1792, and had been solem-
nized on the site or ruins of the church of St. Mary Newington, that
church having been unroofed and partly pulled down, but the banns had
been published in the church of St. George's, Soothwark, which was
the church of the adjoining parish, both parties being parishioners of St.
Mary Newington ; that the marriage was not void for the insufficient pub-
licatioD of banns ; on the ground that neither the spirit nor letter of the
26 Gto. 2, c. 33, had been violated ; and that the parties had done all
they could to comply with the law. StaUwood v. Trtdgear^ 2 PhiU. 287.

012

iHan1aj|f«

By banns.

Beatdence
of partiM.

Livio^in
different
districts.

No evi-
dence of
residence
required.

Notice to
minister.

usually solemnized every Sunday, they may be considered as of
the next adjoining parish. 26 Geo. 2, e. 33, s. 1, amended by
4 Geo. 4, e. 76, s. \2. Supra,

By 1 VicL c* 22, s. 34, it is enacted, that when parties live
within difTerent ecclesiastical districts the banns are to be pub-
lished '^ as well in the church or chapel, wherein such marriage
** is intended to be solemnized, as in the chapel licensed under
'^ the provisions of the said recited act, (6^7 fV. 4, c. 85, s. 26),
^' for the other district, within which one of the parties is
*' resident ; and if there be no such chapel, then in the church
" or chapel in which the banns of such last-mentioned party
*' might be legally published, if such recited act had not been
'* passed,'*

It is, however, expressly provided by 26 Geo. 2, c. 33, s. 10,
re-enacted by 4 Geo. 4, r. 76, s. 26, that qfier the solemnization
of any marriage under a publication of banns, it shall not be
necessary, in support of such marriage, to give any proof of the
actual dwelling of the parties in the respective parishes or
chapelries wherein the banns were published, vid. also 16 Fesm
259; 18 Fes. 289; 2 PAUL H; 1 Curt. 175; and there is a
similar provision as to marriages contracted under 6 ^ 7 fF. 4,
c. 85, by s. 25.

With regard to the notice to be given to the minister of the
names and places of abode of the parties, whose banns are to be
published, it is enacted by 4 Geo. 4, c. 76, s. 7, re-enacting the
provision contained in the 26 Geo. 2, c. 33, s. 2, that no parson,
vicar, minister, or curate shall be obliged to publish the banns
of matrimony between any persons whatsoever, unless the per-
sons to be married shall, seven days at the least before the time
required for the first publication of such banns respectively,
deliver, or cause to be delivered to such parson, vicar, minister,
or curate, a notice in writing, dated on the day on which the
same shall be so delivered, of their true Christian names and
surnames, and of the house or houses of their respective abodes
within such parish or chapelry as aforesaid, and of the time
during which they have dwelt, inhabited, or lodged in such
house or houses respectively.

Lord StoweU, in commenting on this section of the
26 Geo, 2, in the case ofPouget v. Tomkins, 2 Hag. Con. 146,
says, '' In order to provide against clandestine marriages for the
'' future, the act directs the true names and residence to be
'^ given to the minister in writing seven days before, or he is
^' not obliged to publish the banns, though he is not forbidden

to do so. It has been matter of regret that this provision of

the act has not been more generally observed. The clear
** intention of the act is, that the true names of the parties should

be published, and if they are not so published it is nopublica-

€i

0U(trUist* 513

tion. No notice is given, and no opportunity is afforded to Bybanni.

any one to allege an impediment. It has been constantly lield,

tiierefore, since the case of Early v. Stevens, Consist 1785,

that a publication in false names is no publication."

The law is not imperative on a clergyman to require seven Notice to
days' notice before he publishes banns, nor would be be punish- ounister.
able for publishing banns without that particular notice, or the
expiration of seven days ; but if he chooses to dispense with the
notice which he is entitled to require, and if it should turn out
that the parties are not entitled to have the banns published in
this parish, he must take upon himself the consequences of his
own neglect to do that which the law has provided for his secu-
rity ; he cannot be allowed to shelter himself under the excuse
that he was ignorant of the fact of their non-residence in the

Earish when ne might and ought to have inquired into the
lets. 1 Curt 84; 2 AikynSy 157; 6 Ves. 421 ; 16 Fes. 259;
19 Ves. 453.

By 4 Geo. 4, c. 76, s. 6, it is further directed that the church- PabUctUoii
wardens and chapelwardens shall provide a proper book of sub- to be from
stantial paper, marked and ruled respectively, in manner directed bc^i^S^^*'
lor the register book of marriages; and the banns shall be pub- tobesigned*
lished, from the said register book by the officiating minister, and
not from loose papers, and after publication, shall be signed by
the officiating minister or by some person under his direction.

With regard to all marriages solemnised by banns between Undiia
the 25th Alarch, 1754, the day on which the 26 Geo. 2, c. 3S, publu»*
came into operation, and the 1st September, 1822, the day on ^°'
which the S Geo, 4, c. 75, took effect ; if a false name or names
were inserted in the banns, the ecclesiastical court considered
that the provisions of the statute 26 Geo. 2, c. 23, had not been
complied with, and therefore considered itself as carrying that
law into effect by annulling marriages where a false name has
been inserted in the banns, though no fraud was intended ; upon
the ground, that such proclamation was no publication of banns
referring to the particular marriage ; and that such marriage,
therefore, being without publication of banns, was illegal and
null.

Lord Stowett, in Sullivan v. Sullivan, 2 Hag. Can. 252,
commenting on the above provision of the statute, said,
** The banns, or publication of intended marriages, must be
'' thrice published in the church, or churches of the parish
" where the parties dwelt, and in one of which the marriage is
** to be celebrated ; and these banns, being notifications of the
** intended marriage, must indicate the parties by the descrip-
'' tion of their names and parish residences ; for the law does
'' in terms or in effect require these two particulars, but under
*^ different sanctions. A false description of residence is by a

514 iMarHajpr^

BaniM. " particular clause of the marriage act rendered a mere impedi'

Undue " mentum impediiivumf imposing on the cleigymaD« if the fiict

]>ublica- ** be known to him, the duty of not proceeding with the mar-

^^' '' riage, but not invalidating the ceremony if once performed.

** The publication of false names is different, though no such

'' difference is marked in the statute. It forms an impedimentum

" dirimens, invalidating the marriage in toto; and this arises

*' from the very nature of the thing, and the intent and nature of

" the publication."

The cases arising upon this branch of the statute, and involv-
ing questions upon the validity of marriages by banns, celebrated
within the above periods, are hereafter collected and noticed,
post 517 ; for though the 3 Geo. 4, c. 75, contained retrospective
clauses validating marriages had by license, prior to that period,
and which were, and would have continued, but for such clauses,
permanently null and void, by reason of minority and want of
legal consent ; yet these retrospective clauses did not reach the
cases of marriages by banns had before the passing of that act ;
26 Geo. 2, and though the ^6 Geo. 2, c. 33 was eventually repealed by
^' ^^' the 4 Geo, 4, c. 76, yet there was an exception in the repealing
provision as to acts, matters, and things done under its pro*
visions. Stanhope v. Baldwin^ 1 Add. 93; FarquAarsan v.
Farquharson, 3 ^Jdd. 282 ; R. v. Tibshelf, 1 B. % Ad. 194.

3 Geo. 4, The 3 Geo. 4, c. 75, which is also noticed hereafter, oost 524,
^'^^- provided by s. 19, that where a marriage had actually taken

place, " such marriage shall be deemed good and valid to all
intents and purposes, notwithstanding false names, or a false
name, assumed by both, or either of, the said parties in the pub*
lication of banns, or at the time of the solemnization of such
marriage." So that between the 1st of September, 188S, and
the 1st November, 1823, when the 4 Geo. 4, c. 76 came into
operation, no incorrect, untrue, or even wilfully false pub*
lication of names in the banns, is a sufficient ground to invalidate
a marriage solemnized on such banns.

4 Geo. 4, The framers of the 4 Geo. 4, c. 76, seem to have taken a
^'^^* middle course, protecting parties acting bondjide from the re«

lentless consequences of the general words of the 26 Geo. 2,
c. 33 ; or rather from the stern construction which the eccle-
siastical courts had put upon them ; at the same time protecting
the public, and indeed the parties themselves, from the frauds
and deceptions to which the lax provisions of the 3 Geo. 4,
c. 75, must inevitably have led.

The 4 Geo. 4, c. 76, by «. 22, provides, ** that if any person
shall knowingly and wilfully intermarry without due publication
of banns, or license from any person or persons having authority
to ffrant the same," the marriages of such persons '* shall be
null and void to all intents and purposes whatsoever." This

iManlagt. 515

pnmsion in terms applies to cases where some fraud is intended, Bybmw.
and where some object is to be effected by the suppression or Undiie
alteration of a name in the publication of banns. It has been puUica-
decided that both parties must be cognizant of the undue pub- ^^Z ^^^^
lication before the marriage was celebrated ; for it is not suf- c. 76?' '
ficient merely to show that the knowledge existed after the
marriage had taken place. 1 Curt. 4&. The provision in
6^7 Wm. 4, c* 85, s, 4&, with regard to due notice to the 8U«
perintendant registrar is similar to the above.

The first case which came before the ecclesiastical court Piireev.
unon this statute, was Pierce v. Wiits/iire, S Hag. 332, in ^^^^^
which it was pleaded that the husband, being only nineteen,
was prevailed upon by the wife, aged thirty, a cook in his
father's service, to publish the banns ; and that it was arranged
between the parties, with a view to concealment, that he should
be published by the name of John, his real name being Henry
John, and being always called by the name of Henry ; and so
called by the wife, both before, and after marriage. The
court. Dr. Lushington, said, ^'whatever might be the con«
*' struction of this section when one only of the parties knew
** of the false publication ; here there is sufficient evidence to
*' show, that both parties were aware of the publication in a
'* manner calculated to conceal the identity of one of the
** parties. The omission of a christian name may operate as a
*' concealment as much as the omission of a surname." The
marriage was pronounced invalid.

The case of Pierce v. Wiltshire, was followed by the case of Both par-
R. v. Inhabitants of Wroxton, 4 JB. ^ ifrf. 640; in which the ^^'^'^"
court of K. B. held, that in order to invalidate a marriage a. v. inha*
under the above section of the 4 Geo. 4, c. 76, the marriage i>itanu of
must have been contracted by both parties, with a knowledge ^*^*'*^*^'
that no due publication of banns had taken place ; and there-
fore, that as the woman did not know of the false publication
of banns, the marriage was good.

In the case of Tongue v. AUen, 1 Curt. 38, the court, Sir H. Timgu$ v.
Jenner, coming to the conclusion that both parties were cogni- ^^^^'
sant of the fraudulent suppression of a baptismal name in the pub-
lication of banns, held that the marriage had upon such banns
was null and void. But in the case of Hadley v. Reynolds, Hadly v.
cited in Tongue v. AUen, the court not being satisfied that the ^^*^^*
woman was acquainted with the undue publication, and holding ^^® P^^y.

*i^» i_^*i_^ ^'j ... only cogni-

that in such a case the strongest evidence was necessary to prove Bant.
her cognizant of the intended use of false names in the publication
of banns, refused to declare the marriage void. Subsequently in
the case of Wright v. Elgood, 1 Curt. 49, it appeared that at the wrigkt v.
time of the publication of banns the woman, whose maiden Elgood.
name 'had been Amelia Dames, was the wife of Harlow El-

ll2

616

ilUirriage^

By twniis.

Undue

]>ublic4t

tioo.

Under
4 Geo. 4.

One party
only cogni-
sant.

Disaent of
parents or
guardians
declared at
time of pub-
lication.

Republica-
tion of.

Undno
publication*

Under
26Geo«2.

wood ;(a) that the hanns were pobHshed in the name of Emma
Elwood ; and that Wright, at the time of publication beUeved
her to be a spinster, and there was no evidence to shew that he
knew that Emma, the name in which the banns were published^
was not her real name. Dr. Ijushington saidj ** asaaming that
*' the publication was such as to cause a suiBcient disguise of the
*^ parties ; still as Mr. Wright did in truth suppose mtz. Elwood
** to be a spinster, it cannot be said that thia was a Csdse pub*
*^ lication of banns had with the consent and connivance of both
** parties.'* Thus it seems settled that no marriage bad since
the 4 Geo. 4, c. 76, will be avoided, unless both parties were
cognisant of the fraud intended to be practised.

Although it is not necessary that there should be a consent
by parents or guardians to the marriage by banns, of a par^
or parties under age ; yet parents or guardians may dissent to the
publication of banns ; it being expressly provided by 4 Geo* 4,
c. 76, s. 8, " that in case such parents or guardians, or one of
them, shall openly and publicly declare, or cause to be declared
in the church or chapel where the banns shall be so published ,
at the time of such publication, his, her, or their dissent to such
marriage, such publication of banns shall be absolutely void."

This clause is copied from 86 Geo* S, c. 33, «. 3.

By 4 Geo. 4, c. 76, s. 9, it is further enacted, that whenever
a marriage shall not be had within three months after the pub-
lication of banns, no minister shall proceed to the solemnioatioo
of the same, until the banns shall have been re-published on
three several Sundays, in form and manner prescribed by that
act ; unless by license duly obtained, according to the provisions
of the act. This clause was a re-enactment of the SOth section
of the 3 Geo. 4, c. 75.

Before the passing the 3 Geo. 4, c. 75, or the 4 Geo* 4»
c. 76, the only act, by which marriages were regulated, was the
96 Geo. 2, c. 33, which act was finally repealed, except as to all
acts, matters, and things done tmder its provisions, by 4 Geo* 4«
c. 76. Neither that act, nor the repealed act, 3 Geo. 4, c. 76,
contains any clause rendering former marriages by improp^
banns valid ; and if section 19 of the 3 Geo. 4, c. 75, could
have been construed to have had that effect, it could not
have any operation, after the repeal of that act by the passing
the 4 Geo. 4, c. 76; with reference therefore to marriagea
celebrated before the passing the 3 Geo. 4f, c. 75, it is necessary
to consider the 26 Geo. 2, c. S3, and the cases decided upon it ;
that act by s. 8, provides that all marriages that shall be

(a) It appeared that the husband died before the maniage*

ilbirrtagt^ 5 17

iolemtiised without due publication of banns, or license, shall be By battoi.
noil and void to all intents and purposes whatsoever. In the uq^„q
directions in that statute for the publication of banns, nothing pubiica-
is said as to the names of the parties, but section 2 excuses the tion.
minister irom publishing them, unless the parties deliver in, in Under
writing, their true christian and surnames. In a series of de- ^^ ^'^' ^*
cisions upon this statute, both in the ecclesiastical courts and the
court of K.ing*s Bench it has been held, that the clear intention
of the legislature was, that the banns are to be published in the
true names of the parties, otherwise it is no publication at all.

By these decisions these rules are established: Ist. That
if there be a total variation of a name or names, that is,
if the banns are published in a name or names totally different
from those which the parties, or one of them, ever used ; or by
which they were ever Known, the marriage in pursuance of that
publication is invalid; and it is immaterial in such cases, whether
the misdescription has arisen from accident or design, or
whether such design be fraudulent or not.

But, secondly, if there be a partial variation of a name only^
as the alteration of a letter or tetters, or the addition or sup*
pression of one christian name ; or the names have been such
as the parties have used, and been known by at one time and
not another ; in such cases the publication may or may not be
void ; the supposed misdescription may be explained, and it
becomes a most important part of the inquiry, whether it was
consistent with honesty of purpose, or arose from a fraudulent
intention. It is in this class of cases only, that it is material
to inquire into the motives of the parties. 1 J3. ^ Ad» 194.

The cases therefore which have arisen under this act, may Total Taria.
therefore be divided into two classes : tion of

1st. Where there is a total variation of a name or names ; '^"^
that is, where the banns are published in a name or names
totally different from those which the parties or one of them
ever used, or by which they were ever known.

Sndly. Those, where there is a partial variation of name only,
as the alteration of a letter or letters ; the addition or sup-
pression of one christian name ; or where the names used have
been such as the parties have used and been known by at one
time and not at another.

With regard to the first class of cases, it would be imma-
terial as stated above, whether the misdescription arose from
accident or design; or whether such design were fraudu-
lent or not ; 1 ^. ^ Ad. I94f ; 1 Hag. Can. 401 ; I Bing. N.
C.8; and therefore in the case of Mather v. Ney, Consist.
July, 1807; 2 Ha^. Cm. HM; 8 M. ^ S. 268; where a
woman from a mere idle and romantic frolic had the banns put
up in the name of Wright, to which she had no pretensiout

518

ilUimage.

Total vari-
ation of
name.

Under
26 Geo. 2.

((

€t

€i

By banns, the court held that such a publication invalidated the marriage
for, whether fraudulently intended or not, it operated aa a fraud.
In speaking of the marriage act of 26 Geo. 2j Lord Sicwell
is reported to have said, " The marriage, except in case of
license, is to be performed by proclamation of banns, which
is to designate the individual, in order to awaken the attention,
*^ and the vigilance of parents and guardians, and to give them
** an opportunity of protecting their rights ; it requires, there-
" fore, that the true name should be given, evidently considering
" that a name assumed for the occasion, will not answer the
'' purposes of those provisions ; accordingly the court has con-
'' ceived itself carrying the intention of the law into efiect, when
** it has annulled marriages where a false name has been in-
" serted in the banns, though no fraud were intended ; upon
'^ the ground that such proclamation was no proclamation re-
ferring to that marriage, but to another transaction, the
marriage therefore was without banns and consequently
*' illegal. There is a fraud, or want of fidelity and truth in
the application of the banns to the marriage, though there
might be no fraud in the original intention. It b therefore,
" I think clear, that if there is a true name, that name must be
" used ; it may be a name less notorious to the world, than the
'' name which the party has thought fit to assume ; but it is
** not less the true name on that account ; it is the name which
" it is presumed, the relations, parents, or guardians are the
" best acquainted with, and therefore the name which ought
" to be applied upon such an occasion, provided the party is pos-
'^ sessed of such a name.'* Wakefield v. Wakefield^ 1 Hag.
Con. 401, 402.

So also in the case of jR. v. Tibshelf^ I B. Sf Ad. 194.
Joseph Beits and his supposed wife Mary, were married by
banns in 1817, by the names of Joseph Betis and Mary White t
she was the legitimate daughter of Job and Martha Hodg-
iinson, and was never known or called by any name except
Hod^kinson till after her marriage ; but in the register of her
baptism she was described as Mary, the daughter of Samuel
White and his wife; it appeared that her mother was the
daughter of Samuel and Dorothy White, and that her father
and mother resided with them at the time of her birth, and it
was supposed that the entry was the mistake of the clergyman
who baptised her ; it being impossible therefore in any latitude
of construction to consider WhHe as her '' true" name, the
marriage was held to be null and void.

If the decision of this case had depended upon the 4
Geo. 4, c. 76, as the parties meant to act cautiously and cor-
rectly and from good motives, they could not have been said,
within the words of sec. 22 of that statute, to have intermarried

iMarrtagfe. 519

knowingly and m(fuUy" withoul the due publication of banns ; Bybanni^
if it was intended to publish the woman in what the parties con- ToulTari-
sideredy though wrongly , to be the legal and true name of the ationof
woman^ they could not have been said to have acted wilfully. °^™^
There is^ however, one case falling within this class, which Under
it seems difficult to reconcile with the principles above laid ^^ <3eo.3.
down, that where there is a total variation of name, it is im-
material whether it was designed or accidental, and whether
the design was or was not fraudulent ; for the learned judge
in the case alluded to, held the marriage to be valid, notwith*
standing the name of publication was not the real name, on
the ground that no fraud was practised, and none intended.
The question arose upon a suit for divorce by reason of
adultery, and the validity of the marriage being contested by
the wife, the court considered it right to decide upon that as a
preliminary question, before it proceeded to the case of adul-
tery; it appeared that the wife's name being ^^ Sarah White,*'
and spinster, she was published by the names of *^ Sarah
KeltOj * widow ; and further, that the husband was acquainted
with her real name. The court. Lord Stowelly said, '' I am
of opinion that such a publication would not affect the va-
lidity of the marriage ; on whom would be thefratid ? not on
** the man, he knew lul the &cts and all the circumstances, and
*' might think this the most proper name to be used ; she had
'' used many names, he might have doubts as to what she ought
'' to be called ; on whom else could there be any fraud ? the
woman was a major ; different from a case where the parents'
rights are invaded ; no fraud can possibly be suggested
'' against any one. The act of parliament does not require a
'' description of the party." May hew v. May hew ^ 2 PhilL 11.

The marriage acts require that the true name should be Names by
used in the publication, and where there is a name of baptism raputatiou.
and a native surname, those are the true names, unless they
have been overridden by the use of other names, assumed
and generally accredited. Sullivan v. Sullivan, 2 Hag. Con.
254; Diddear v. FaueU, 3 PhiU. 582. It ought to be the name
which, it is presumed, the relations, parents, and guardians, are
best acquainted with ; it may be a name less notorious to the
world than some name which the party has thought proper to
assume, but it is not less the true name on that account, 1 Hag.
Con. 40S ; at the same time it must be a name by which the
party is known. It seems, indeed, that a name acquired
should be used in preference to the native surname or the name
of lawful parents, for a name may be acquired by reputation and
habit, which may supersede the original name. 1 Add. 4f74f.
There may be cases indeed where the publication of the real
name would defeat the object of the statute, Wilson v. Brockly,

520 iMarriase^

Bybanai. 1 PhiU. 147 ; and in such a case it is probable that the pub*

Total van- lication by tbe name of habit would be suflBcient. The same

ation of rule, it appears, may be applied to a name of baptism, which

Uode'r ^^^ ^ superseded as well as a surname, so that a party may

!}(SGeo. 2« acquire a kind of prescriptive right to the use of a christian

name as a proper designation. Wyatt v. Henrff, 2 Hag. Can.

S20.

Illegitimate Frequently indeed, as in the cases of illegitimate children, it

chiidreD* IS difficult to say what are the true names; they have no proper

surname except what they may acquire by repute, though it ia

a well known practice, which obtains in many instances, to give

them the surname of the mother, whose children they certainly

are, whoever may be the father* However, if they are much

tossed about in the world in a great variety of obscure fortunes,

Sassing under many different names, as such persons frequently
o, it may be difficult to say what name they may have per«
manently acquired, and none may appear so clear as to be de*
pended upon exclusively as the true name, for the purpose of
invalidating the publication of banns in any other name. In
such a case Lord Siowell thus discusses what would be the rule
of law: "In my opinion," he adds, *' it would be, that such a
^* person would be out of the statute. The law presumes, as is
^' generally true, that every person has a name ; but the law
'' which presumes that, and calls for that name, does not compel
^* parties to impossibilities, and if the party is not possessed of
'' that, which can be considered as a true name, it could not be
'^ unfair to judge of the marriage of such a person on the old
^* footing of the Canon law, which requires banns as a matter of
'' regularity, but not as a matter necessary to the validity of a
« marriage." Wakefield v. WaiefieU, 2 Hag. Con. 4«2 ;
I PhtU, 134, in notis. In that case the female, who was the
party proceeded against, was an illegitimate child, and had
been baptized by her mother's name of Jackson ; in the course
of her life she had used various surnames ; Jackson, however,
had been frequently re-assumed, and she having been published
in that name a sentence of nullity wat refused. So also in
Wilson V. Brockley, 1 PhilL 132. The party proceeded against,
being an illegitimate child, whose mother afterwards married,
she adopted the name of the mother's husband. Banister. She
was published in the name oiLangley, the name of the putative
father, by which name she had been generally known ; sentence
of nullity was refused. So again, in Sullivan v. Sullivan, 2 Hag.
Con. 238, affirmed in the court of arches, 8 PbilL 4b5. Both
parties were minors, the wife was the illegitimate daughter of
Thomas Oldacre and Amelia Holmes, who were married four
months after her birth ; she was baptized by the name of Ofat
acre as a legitimate child, under which name and charaoter she

iMarriasr* 521

was brought up ; she was published as Maria Holmes OUaere^ By btnro.
but the name of Holmes had never been used except on this Total mri-
occasion ; the marriage was had unknown to the nusband's ttion of
father, but fraud, which was imputed» not being established, ^^
sentence of nullity was refused. 26 ^. 2.

But in all these casesy before a complainant can establish a Namouo-
case of nullity by reason of publication in a wrong name, it must certain.
be shewn what was the rtghi name, which, in cases where a
party has gone by many names, is frequently very difficult, if not
impossible. The maxim of law is, semper presumiiur pro matrix
momo. He, therefore, that attempts to set a marriage aside
must distinctly make out the proposition on which he rests the
case ; the name of publication will be presumed to be the true
name till the contrary is proved ; thus, in the case of Diddear
V. Faudtf 3 PhiU. 580, wnich was a suit of nullity instituted by
the wife ; the husband, who was an actor, was married in the
name of FomcU, but it was charged that his real name was
Savill ; the court said, '' In this case it is not very clearly es-
** tablished what was the true and which the putative name. It
" is said to be the practice, and I believe it is, for actors to as-
sume names by which they designate themselves ; it is said
he went by the name of Faucit ; this does not satisfy me that
'^ Faucit was the name by which he was universally known ;
** nothing points to Savill but his declaration that it was his
** name, but that declaration was made at a time when he did
'' not intend to commit a fraud. Which of the two was the
true names does not appear. I cannot pronounce for this
nullity. Vid. also Wyait v. Henry ^ 2 Hag. Con. £15; 1 Do.
399; 2PAiU. 11.

The second class of cases comprehends those where there has pi^rtial ra-
been a partial variation. These are of different degrees, arise nation of
from different causes, and may be followed by different conse- ^*^^
quenees. Variations may consbt in the alteration of a single
letter, as it did in Dobbyns for Dohbyn^ 3 PhiU. lOS ; in more
than one letter, as in Widowcroft for Meddowcrofit S Hag.
Con. 207 ; in the suppression of a name where there are more
than two, as William for William Peter ^ 2 Hag. Con. 14@ ;
1 PhiU. 502 ; Harriet for Harriet EUzabeih, 8 PhiU. 581 ; and
Edward for Henry Augustus Edward, 1 Add. 93 ; and in the
addition of a name where there are only two, as Maria Holmes
Oldacre for Maria Oldacre, 2 Hag. Con. 238 ; 3 PIUll. ; Martha
Caroline for Martha, 2 PhiU, 14 ; Sophia Augusta for Sophia,
1 Add. 289. Such variations may disguise the name and con-
found the identity nearly as much as a total variation would do,
in which ease the variation is for the same reason fatal, from
whatever cause it arises. Where it does not manifestly de-
ceive, it is open to explanation, if it can be given. If the expla-

622 iMardagt.

Bybtana> nation refer itself to causes which are perfectW inbocenty and
Partial Ta- DO fraud appears to be intended, the court will not presume
riadon of that the variation operated as a disguise* If the explanation
\j!^ should leave the matter in doubt, then general evidence of fraud
26 Geo. 2. '"^y ^^ '^^ ^^ > ^"^ ^^ ^^^ explanation of the variation be satis-
Fraud factory in the first instance, general evidence of fraud is unne-
cessary, and therefore inadmissible* Thus, in the case of Sul^
Uvan V. Sullivan^ 2 Hag. Con. 288, Maria Oldacre was pub-
lished by the name of Maria Holmes Oldacre, she was an ille^
gitimate child, and the name of her mother was Holmes ; and
though she had always been known by the name of Oldacre
only, yet at the period of her marriage, from over-caution, she
had added the name of Holmes, from an erroneous impression
that she was entitled to her mother's name. This explanation of
the variation being considered satisfactory, the court decided
the publication to be sufficient, and therefore to have all the
authority of a due publication ; and that no evidence of firaud
connected with the marriage was admissible, except such, as
might have given where the publication had passed in the most
orderly and regular manner.

The variation that is caused by the addition, substraction, or
substitution of a letter may be unimportant, or it may, especially
if it be the first letter, wholly alter the sound of the name.
With regard to the omission or introduction of a name, it may
be said generally that the latter is much less easy to be accounted
for and explained, than the former. It is true that in the publi-
cation of banns all baptismal names, which legally constitute but
one name, ought to be set forth ; but where there has been the
omission of a name through negligence, or of a dormant name
that was not generally used, the fair presumption would be, tiiat
such omission was accidental ; for where could be the use of
omitting an unknown name ? Where no fraud was intended,
nor any deception practised, it has been said that it would be too
much to hold that an honourable marriage would be invalidated
by such an omission. Diddear v. Faucii, S PhiU. 581.

But in the cases of Pouget v. TomkinSi 2 Hag* Con. 14S;
1 Pkill. 602 ; and Stanhope v. Baldwin, 1 Add. 94 ; in both of
which, the names omitted were the names by which the parties
were known and called in their respective families, there could
be little doubt that the suppressions were intentional, and in
themselves so indicative of fraud as to require strong dream-
stances to explain and countervail them ; and in both cases the
attending circumstances tending to confirm the impression of
firaud which the suppression of the names had alreadiy created,
especially in the latter, where the marriage took place in dis-
guise; the court pronounced for the nullity in both in-
stances.

HtUittinfSt. 523

With regard to those cases where an added name has been Bybamw.
introduced into the publication, to which the party is not entitled, Partial vt-
the variation, not entirely confounding the identity^ is ako open nation of
to explanation, and when satisfactorily accounted for, as in the 26Geo?2!'
case of SuUiean t. SvUitan, suprOy will not invalidate the mar-
riage. But in the cases of reUowes v. Stewart^ 2 PkiU» 257,
and Green v. Dalton^ 1 Add, 289, no explanation being given
of the cause of the variation in either case ; and in the former
there being evidence to show fraud ; the marriages were in both
instances pronounced invalid.

Where the explanation leaves the matter doubtful, and evi- Evidence of
dence of general fraud may be let in to determine the character fraud.
of the transaction, which remains undecided by the explanation ;
it has frequently been discussed what circumstances are admis-
sible in proof of fraud.

In such a case evidence has been admitted that the marriage
was clandestine and without the consent of the parents of the
party complaining ; for although the want of consent to a mar-
riage by banns is of no consequence, 3 PhiU. 581, yet it is an
ingredient which mav be properly introduced to show fraud in
the transaction, g PkiU. 258. But the fact of going out of the
parish to be married, cannot be received in evidence, even as a
circumstance of fraud and clandestinity ; the acts of parliament,
26 Geo. 2, c. 33, s. 10, and 4 Geo. 4, c. 76, a. 26, expressly di-
recting, that no evidence to prove that the parties did not reside
in the parish, shall be received m any suit touching the vaUdity
of such marriage. Tree v. Quin^ 2 PhilL 14« The same learned
judge who refused to admit this article for the collateral pur-
pose on this occasion, had shortly before, in the case of Pouget
V. Tomiitu, 2 Hag. Con. 143 ; 3 PhilL 502, admitted such evi-
dence, though with hesitation, and subject to future objections ;
saying that, if he were obliged to decide the point, he should
entertain strong doubts, as the words of the act were very
exclusive.

In considering whether the partial variation of a name is
the effect of design, with a view to conceal publication, it is
material to observe if the alteration is made in the name of the
person whose banns were to be concealed. In SuUivan v. Sul»
Uvan, 2 Hag. Con.^ Lord SiouxeU says, ^' There is one cir-
^* cumstance in this case decisive in my mind that the name
** could not be used for fraud. Who was to be concealed on
"this occasion t Not Maria Oklacre, but John Augustus
** Sullivan^ whose interests his father had to protect." Again,
** Whose name was concealed in Powell's case ? The young
'' man*8. They must have been bunglers indeed, if they placed
** the fraud not in the name which required to be concealed,
** but in that which needed no concealment. The very course

534 iKardage*

Byb>imi, ** of the transaction, therefore, repels the Buspieion of fraud."

Vid. aho S PhiU. 583.

3 Geo. 4, The preceding cases were all decided upon the S6 Oeo. %

c* 75. £•, S3, which act continued in operation till the Ist of September,
18S2, when it was superseded by the S Oeo. 4, e« 75,(a) which
latter act by #. 21 enacted ** that all and every the clauses and
provisions in that act touches the publication of banns of matri-
mony, and touching marriages solemnized by such banns, shall
commence and have effect on and after the first day of Sep-
tember, 18S2, and not before,"

The 8 Geo. 4, c. 75, continued in force till the 1st November,
1823, when the provisions of the 4 Geo. 4, c. 76, with regard
to the publication of banns, came into operation. Between the
Ist September, 18S2, and the Ist November, 1888, there-
fore, the sufficiency of the publication of banns and the conse-
quences of an insufficient publication, depend altogether upon
the 3 Geo. 4, c. 75.
AffidiTiu The 3 Geo. 4, c. 75, by s. 16, required that before the pub-
4°c*'75^' lication of banns of matrimony there should be delivered to the
' * proper minister an affidavit or affidavits in writing, sworn before

such minister, or some justice of the peace by the parties to the
marriage, stating truly the Christian and surnames of such par-
ties respectively, and the houses of their respective abodes, if
both shall abide therein ; or of one such parties, if only one shall
abide therein ; and the time of such abiding, and whether as
occupiers or as lodgers, stating also whether one or both the
parties were under age ; such affidavit or affidavits to be deli-
vered to the minister before publication of banns,
NtmMand ^Y '• ^'^i ^^ banns were not to be published until the true
rMtdencw Christian and surnames of the persons and the houses of their
^r^^°^ abode within such parish or chapelry, &c. as stated in such
doortnd in affidavit, should have been affixed on the principal door of such
thechuich. church or chapel, and in some conspicuous place within the said
church or chapel, and continued affixed until the expiration of
the three Sundays on which such banns were published,
AiBdftvits ^y ** '^> ^^^ affidavits were to be delivered to the church-
depootedin warden or chapel warden, to be deposited in a chest, to be pro*
chwt vided for that purpose, and kept in the said church or chapel.

By s. 19, it was provided tnat, after solemnization of mar-
riage by banns, it should not be necessary, in support of such
marriage, to give proof of such affidavit ; nor can any evidence
be received, to prove that such affidavit was not made and deli-
vered, as required, by the act, in any suit touching the validity

(a) As to tbe periods when the several provisions of the 3 Oeo, 4,
e. 76, came into operation, po8i%

of nwh marriage ; nor can any marriage contracted by banns BybiMia.
between the Ut September^ IS22, and the Ist NoTember, 1823, 3 Geo. 4,
be avoided for want of, or by reason of any defect in, such affi- <:• 76.
davit ; or on account of the true name or names of either party
not being used in the publication of such banns ; or for such
name or names not having affixed as aforesaid ; and the con^*
duding clause is — *^ But it shall be lawful, in support of such
marriage, to give evidence that the persons who were actually
married by the names specified in such publication of banns,
were so married, and such marriage shall be deemed good and
valid to all intents and purposes, notwithstanding false names or
a false name assumed by both or either of the said parties in
the publication of such banns, or at the time of the solemniza*
tlon of such marriage."

S. Marriages by license.

A common license is a faculty or dispensation in virtue of By liceme.
which marriage is permitted to be solemnized without the pub«
lication of banns. 2 Lee^ 515 ; S Gibsoti's Cod. 511.

By the lOlsi Canon, licenses are to be granted only by peiw
sons having episcopal authority, and that upon good caution
and security, taken of the person obtaining them, for compliance
with the conditions specified in the Canons. The security
usually taken was a bond, the necessity for which is now, how-
ever, dispensed with by the I5th sec. of 4 Geo. 4, c. 76.

In the 6 ^7 W. 4f, c. 85, s. 1, after reserving the riffht of the
archbishop of Canterbury to grant special licenses, there is a
further reservation of the right of any surrogate or other person
now having authority to grant licenses for marriages.

By sec. 14, 4 Geo. 4, e. 76, before any license is granted^
one of the parties must personally swear before the surro*
gate, or other person having authority to grant the same, that
he or she believeth that there is no impediment of kindred, or
alliance, or of any other lawful cause ; nor any suit commenced
in any ecclesiastical court to bar or hinder the proceeding of
the said matrimony, according to the tenor of the said license ;
and that one of the said parties hath, for the space of fifteen
days immediately preceding such license, had his or her usual
place of abode, (a) within the parish or chapelry within which
such marriage is to be solemnized ; and where either of the

(a) By #. 26, it is declared to be unnecessary to give any proof of
the usual place of abode of one of the parties for fifteen days, as afore-
said, nor shaU any evidence be received either in this case, or of the
actusl dwelling, in case of banns, to prove the contrary in any suit
touching the validity of such marriage. Tree v. Qsin, 2 PhiU. 15 ;
3 M. 4* S. 266 ; 2 Hag. Con. 253, ante 523.

528

iMarriage*

Wrong

Speciftl
licenies.

Byljcenie. Although a liceDse is an authority from the ordinary ibr a
clergyman to solemnize a marriage without the publication of
bannsj yet if he discover any variation in the license, he may,
without impropriety, hesitate to act upon it, 2 Hag. Con, 185;
indeed, if he fairly has reason to suspect fraud, delay may be
justifiable for the sake of inquiry. S Lee^ 515.

There is a distinction between banns and license; in pub-
lication by banns it is essentially necessary that the publication
should be in the true name, or the publication, would be de-
fective in substance, as no one would be put on their guard by
such publication ; whilst a license is not of the same notoriety,
but is granted by the ordinary, on the evidence that he is con-
tent to receive, f?j«., the oath of the party according to the
Canons of the church, 1 Hag, Con. 438 ; therefore a marriage
under a license in which one of the parties was described by a
false christian and surname was held valid. lb. In licenses,
the identity is the material circumstance. % Hag. Con. 184.
A license obtained by one person and transferred to another
might be considered fraudulent. 1 Hag. Con. 439.

The privilege of a special license is generally restricted to
persons of a certain station. By a regulation of archbishop
Seeker^ 15th January, 1759, special licenses, dispensing with
both time and place, are not to be granted, excepting to persona
of the rank of peers, or peeresses in their own right, dowager
peeresses, privy councillors, the judges of Westminster hall,
baronets, knights, and members of parliament ; but this regula-
tion does not bar the archbishop of Canterbury from granting
occasional favours beyond these limits. In all cases, a speciu
fiat is addressed by his grace to the master of the faculties. A
license to marry, not in the parish church, seems to be recog-
nised in the constitutions of archbishop Mepham^ 13S8. John'
sofC$ Canons ; and to marry without banns, by the constitution
o{2^uchf archbishop of York in 1347. lb.

To obtain a special license, the same form is required as if
the license issued merely as a dispensation of banns ; the only
material alteration consisting in the permission for the mar-
riage to be solemnized, *' at any time, in any church or chapel,
" or other meet or convenient place."

To persons of inferior rank a special license, dispensing with
the particular parish required by the act, or with the canonical
hours, is sometimes granted on a particular application. Poynier,
Law of Marriage, 51 •

This power of the archbishop of Canterbury to grant special
licenses was transferred to him by the 26 Hen. 8, c. 21, «• 3.
Vid. ante, 320, having in former times been exercised by the
popes.

It was recognised by the 26 Geo. 2, c. 83, #• 6, which pro*'

vided that nothing therein-before contained, should be construed Special
to extend to deprive the archbishop of Canterbury, or his "^^°^'
successors, and his and their proper officers, of the right which
they had hitherto used, in virtue of a certain statute made in
the 25th year of the reign of the late king Henry the 8th,
intituled " An act concering Peter Pence and Dispensations, of
granting special licenses to marry at any convenient time and
place." This act was repealed by the 4 Geo. 4, c. 76, but the
above section was re-enacted by the 20th section of the re-
pealing act; and by 6 ^ 7 fVm, 4, c. 85, s. 1, the right of the
archbishop is reserved in the same way.

Special licenses issue from the faculty office, Knight-Rider
Street, Doctors* Commons. The archbishop's offices, viz. the
faculty and vicar general's offices, grant licenses within every
diocese in the province.

4. 0/ the place and hour in cases of marriages by banns, and puce or.
surrogates' Ucenses.

By a constitution of archbishop Mepham, 1328, it was
ordained that every priest, whether regular or secular, who
dared celebrate, or be present at, the solemnization of marriage
anywhere, save in the parish church, without special license of
the diocesan, ahould be suspended from his office for one whole
year.

And by a constitution of archbishop Stratford, 1S43, the
above constitution was recognized, and solemnization extended
to a " chapel,^ having of old '* parochial rights belonging toit.**

These constitutions however, and others which had for their
object the prevention of clandestine marriages, only imposed
punishments and penalties, and did not pretend to treat a marriage
as void, on the ground that it was not celebrated in a church or
chapel.

By the customs of the Anglo-Saxons, the marriage ceremony
was commonly performed at the home of the bridegroom, to
which the bride had been previously taken; after the in-
troduction of the Canon law, and for a considerable period after-
wards, the courts of law in this country seem to have been so
strongly imbued with the spirit of that law against clandestine
marriages, that they went beyond the bounds of the Canon
law itself, and treated all marriages as illegal and void, that
were not celebrated in facie ecclesice. Foxcrofts case. RolL
Abr. S59,post,' DelHeith's case, Harleian MSS. 21 17, fol. 339.
34 Ed. I, post, n.

At the Reformation, by the 62nd and 102nd of the Canons of
1603, it was required that marriages should be celebrated
publicly in the church or chapel of the parish where one of the
parties to the marriage dwelt ; but as these Canons were not

If M

530

iVttttiti^i

Place ot

BanDS.

License.

Newly
erected
chu relies.

4 Geo. 4,
c. 7fi.

Banns.

License.

Church

under

repair.

binding on the laity, the marriage itself was not avoided by a
neglect of their provisions.

Previously therefore to the 86 Geo. S, c. S3, it waa not
strictly necessary to the validity of a marriage, that it should
take place in facie eeclesuje^ and many marriaffes solenmised in
the Fleet Prison, or its liberties were, before Uiat statute, held
to be sufficient and legal marriages. 1 Lee^ 28, 29, 441, SOSl ;
S Lee^ 35, 45, 547 ; and so in Mav Fair, and other places of
the like description ; so marriages m a private house ; Tarry t«
Brown, Sid. 64 ; Fin. Abr. Baron ^ Feme, J}. 21 ; 5 Staie
Trials, 615, ante; and in Ireland, where the marriage acta do
not extend, a marriage in a private house is still suffident.
R. V. Bathtoick, ^ B. & Ad. 6^; 1 Add. 58; 2 Add. 471.

But that act enacted hy s. 1, that in all cases where banns
shall have been published, the marriage shall be solemnized in
one of the parish churches or chapels where such banns have
been published and in no other. R. v. NorthfieU, DougL 659.

By s. 4, it was enacted, that no license should be granted to
solemnize matrimony in any other church or chapel than that
of the parish in which one of the parties shall have resided four
weeks before.

By s. 8, *' all marriages solemnized in any other place, than a
** church or public chapel, are declared null and void to all
'' intents and purposes whatsoever/'

To avoid any question with regard to marriages solemnized
in newly built churches, the 44 Geo. 3, c. 77, by «• 1, provided
that marriages in churches and chapels erected and consecrated
since the passing the 26 Geo. 2, e. 33, should be good and
valid in law ; which act has been since extended by 6 Geo. 4,
c. 92, to all marriages then (5th July, 1825) solemnized.

By 4 Geo. 4, c. 76, s. 2, all other the rules prescribed by the
Rubric, concerning the solemnization of matrimony, and not
thereby altered, are to be duly observed; and where banns
have been published, the marriage is to be solemnized in one of
the parish churches or chapels where such banns have been
published and in no other place.

By s. 10, no license is to be granted to solemnize marriages
except in the church or chapel belonging to the parish or
chapelry, where one of the parties has resided for fifteen days,
immediately before the granting such license; by 5 Geo. 4f, c. 32,
#• 2, where such church is rebwldingor under repair, the license
shall extend to any licensed place in the* parish or chapelry, or
if there be none, tnen to the church or chapel of the adjoining
parish or chapelry.

By 4 GeoA, c. 76, s. IS, where a church or chapel b demolished
in order to be rebuilt, or under repair, and on that account dis-

iMarrtfuge. 531

used, and no place licensed by the bishop within the limits of the Pl«c«of
parish or chapelrv^ for the performance of Divine Service or °'*"''^*
the publication of banns; then inasmuch as the banns may have
been published in the church or chapel of the adjoining parish
or chapelry^ the marriage may also be solemnized in the same
church or chapel, where the banns were published; and there
is a further provision in the same section, that iJl marriages
solemnized before the passing of the act^ shall not, on such
account, be liable to have their validity questioned ; tAdU ante^
51 L The 5 Geo* 4, c. 32, extends this provision to marriages
solemnized in any licensed place in the parish or chapelry, or
if there be none, then in the church or chapel of any adjoining
parish or chapelry, and provides that they shall not be questioned
whether they are solemnized by banns or license.

By 4 Geo. 4, c. 76, s. 90, if any one after the first day of No- Pudish-
vember, 18^4, solemnize matrimony in any other place than a ^^'V'?*^
church or such public chapel^ wherein banns may be lawfully J^^,^
published^ or at any other time than between the hours of
eight and twelve in the forenoon, except by special license ;
every person wilfully so ofiending, and being lawfully convicted
thereof, shall be deemed and adjudged guilty of felony, and
shall be transported for fourteen years; provided that all
prosecutions be commenced within three years after the offence
committed. 1 Hag. Con. 136.

By s. 22, if any persons shall knowingly and wilfully inter- Marriages
marry in any other place than a church, or such public chapel ^^'^*
wherein banns may be legally published, unless by special
license, the marriages of such persons shall be null and void to aU
intents and purposes*

By 6 Geo. 4, c. 92, «. 1, all marriages solemnized in churches
and public chapels erected since 26 Geo. 2, c. 33, and consecrated ;
and by s. 3, all marriages hereinafter to be solemnized in such
churches or chapels, it having been customary to solemnize mar-
riages therein since the passing the S6 Geo. 2, c. 33, shall be as
good and valid in law, as if such marriages had been solemnized in
parish churches or public chapels having chapelries annexed^
and wherein banns had usually been published before, and at
the time of passing the said act

Finally, by 6 ^ 7 Wm. 4, c. 85, s. 26, it is provided for the Chapel* in
relief of the inhaUtants of populous districts, remote from the ^^^J^^g"
parish church, that with the consent of the patron and incumbent, ^
under their hands and seals respectively, of any parish or district
in which there may be a public chapel, with or without any
chapelry annexed, duly licensed for Divine Service; or any
chapel, the minister of which is duly licensed ; or without such
consent after two months' notice given to such patron and in-
cumbent by the registrar of the diocese. The bishop of the

M M 2

532

iKarrtaff^

Place of
marriage.

Form of.

Witnessei.

Time of.

loterrup-
tiooof.

diocese knay authorize, under his hand and seal^ the solemnization
of marriages in such chapel, for persons (or one of them by
1 VicL c. 22^ s. 34y) residing within a district specified in the
bishop's license.

But the patron and incumbent may state their reasons for
withholding consent upon which the bishop may adjudicate;
and by s, 28, the patron and incumbent may appeal to the
archbishop against the grant of any such license ; or by s* 32,
the bishop may revoke a license previously given, with consent
of the archbishop.

By 6 4* 7 fVm* 4, c. 85, s. 30, all regulations respecting mar-
riages in parish churches, shall extend to such chapels.

And hy s. 31, notwithstanding any such license, parties may
solemnize their marriages in such churches or chapels as they
might legally have been solemnized in before the passing that
act.

The 6 ^7 Wm. 4, c.85,s. 1, recognises the duty of adhering
to the forms prescribed by the Rubric, and enacts, " that after
the 1st day of March, 1837, extended to the last day of June, by
the 7 Wm» 4, c. 1, notwithstanding anything in the act contained,
all the rules prescribed by the Rubric, concerning the solemnizing
marriages, shall continue to be duly observed by every person
in holy orders of the church of England, who shall solemnize
marriage in England.*' Quaere, however, whether the precise
form is obligatory.

By 4 Geo. 4, c. 76, s. 28, all marriages are to take place in
the presence of two or more credible witnesses, besides the
minister, who shall celebrate the same, and the entry thereof
shall be registered.

The confining marriages between the hoursof eiffht and twelve
in the morning was said by Lord Hardwicke, 2 Atk, 650, to be
a regulation introduced by the Canons of 1603, which, proprio
vigore, do not bind the laity; by 4 Geo. 4, c. 76, j. 21, it is
enacted, that any person knowingly and wilfully solemnizing ma-
trimony ''at any other time than between the hours of eight and
twelve in the forenoon," unless by special license, shall be ad-
judged guilty of felony, and transported for the space of fourteen
years. Although the person celebrating such marriage may be
punishable, there seems nothing to invalidate the marriage itself,
provided the ceremony take place in a church, if a clergyman
could be found to solemnize a marriage out of canonical
hours.

It is declared that none shall hinder the solemnization of
matrimony, upon pain of being punished by the bishop. Othob,
I Gibs. Cod. 518. But the parties themselves are cnarged to
declare any impediment making marriage unlawful. lb. But
it is added, '' if any man do allege or declare any impediment

MBXriHSt. 633

why they may not be coupled together in matrimony, by God's Interrup-
law or the laws of the realm, and will be bound, and sufficient °°°' —
sureties with him, to the parties, or else put in a caution to the
full value of such charges, as the parties to the marriage do
thereby sustain, to prove his allegation ; then the solemnization
must be deferred until such time as the truth be tried;" and vid.
2^ 5 Ed. 6; 13* 14 Car. 2.

And it seems tnat the clergyman himself, if he is aware of a
variation in the license, or suspects fraud, may properly hesitate
to celebrate a marriage. S ^^^g' C^^* 185 ; S Lee^ 515.

5. Of Marriages under Q ^1 W.^f^c. 85.

The provisions of the late marriage act (a) 6 ^ 7 Wm. 4, Under
c. 85, (explained and amended by the 1 Vict. c. 22,) by ^^^-^^
9. 4, are made to apply to every description of marriages, ^' ' ,
whether the same be intended to be solemnized after the rites ^^l^jficTif
of the church of England, (unless the parties intend to be mar-
ried by banns, by a surrogate's or special license) ; or according
to the usages of Quakers or Jews ; or according to any of the
forms authorized by that act.

Doubts seem to have existed whether a party having ob-
tained a superintendent registrar's certificate could insist upon
being married in a church according to the rites of the church
of England ; but that doubt appears to be removed, and such
certificate to be made equivalent to the regular publication of
banns, by the 36th sect, of the 1 Vict. c. 22; which, reciting the
provisions of the 6 ^ 7 ^. 4, c. 85, s. 1, enacts, that the notice
to the superintendent registrar, and his certificate, shall be used
and stand instead of the publication of banns to all intents and
purposes, where no such publication shall have taken place,
vid. post. (6)

In order to obtain a certificate or license under this act, one
of the parties is to give a notice according to the form pre-
scribed by schedule A. to the act annexed, which notice is in
the following form.

(a) This act was intended to have come into operation on the Ist of
March, 1837, but it was postponed till the last day of June in that year
by the 7 W. 4, c. 1.

(Tti) It is provided by «• 11, That the registrar is not authorized to
grant any license in a church or chapel belonging to the Church of
England, or licensed for the celebration of Divine Worship, according
to the rites of the Church of England.

534

iMarrias^

NOTICE OF MARRIAGE.

To the Registrar of the district o/*Hendon, in the county of Middlesex,

I hereby give you notice, that a marriage is intended to be had within
three calendar months from the date hereof, between me and the other
party lierein named and described ; that is to say,

Name.

Condition.

Rank or
Profession.

Affe.

Dwelling
place.

Length of
residence.

Church orBnild.
ing in which
the marriage
is to be so-
lemnized.

DistrlctA County
in which the
other party re-
sides, when the
parties ttre in
different dls-
tricts.

James
Smith

Widower.

Carpenter.

Of full
age.

IS. Hl^^h
Street.

Twentf-
threeda^s

Slon Chapel,
West Street,
Hendon,Mid.
dlesez.

Tonhridge, Kent.

Martha
Green

8pinst«r.

Bfliior.

Grove
Ftom.

More than
a month.

Certificmte.

Notice.

rablication
of.

Where no
board of
guardians.

By license,
seven days
publica-
tion.

By certifi*

cate21

d»yt»

Winess my hand this sixth day of May; 1837,

(Signed) James Smith.

The act, however, is not obligatory as to the exact form, for
if it be to the *' Uke effect/' it is sufficient.

This notice is to be given to the superintendent registrar of
the district in which the parties shall have dwelt for not less
than seven davs then next preceding, and one shilling fee is to
be paid* If the parties live in different districts, then notice is
to be given to the superintendent registrar of each district.

Bv sect. 5, it is directed that the superintendent registrar
shall file all these notices, and enter them in a book, to be called
the '' marriage notice book," open to public inspection, without
fee ; payment of one shilling fee for each entry.

By sect. 6, if the superintendent registrar be the clerk of the
guardians of any poor law union, or of any parish or place, com-
prising the district for which such superintendent shall act, he
IS to read all these notices at the next weekly meeting of the
union immediately after the minutes of the preceding meeting
have been read ; or if he is not such clerk, then he is to transmit
them to such clerk the day before such weekly meeting, in order
to their being so read; or as provided by 1 Vict. c.^St^ *. 24; if
there are no such guardians, then till a board of guardians is
elected, and only till then, the notices of marriage, or true
copies thereof, under the hand of the superintendent registrar,
are to be suspended in some conspicuous place in the office of
the superintendent registrar during seven successive days, if the
marriage is to be solemnized by license ; or for twenty-one days
if the marriage is to be solemnized without license, (that is by
certificate), before any marriage can be solemnized pursuant to
auph notice; but if there be a board of guardians, tfien the

iKarrfoge^ 535

6^7 FT. 4, c» 85, s. 6, goes on to provide, that the notices, Under
transmitted to the clerk of the board of guardians, shall be read ^%l^^'^'

three successive weeks at the weekly meetings of such guardians, — — ^

unless in any case, license for marriage shafi be sooner granted, ^«'^<^te*
and the notice, of its being granted, shall be given to such clerk.

If there be not three successive meetings of the guardians, Notice.
then it is declared, that it shall be sufficient that the notice
shall be read at any meeting of such guardians, held within
twenty-one days from the day of such notice being entered*

By f. 7, after the expiration of twenty-one days after luueof.
the entry of such notice of marriage, if the marriage is to For mar-
be solemnised without a license, (that is, by certificate only), the ™ff/°J^*
superintendent, upon being requested so to do, by or on behalf ^
of iAe party by whom such notice was ffiven, is to issue under
his hand a certificate, in the form given in schedule B, an-
nexed to the act ; provided that no lawful impediment be shewn
to the satisfaction of such superintendent registrar why such
certificate shall not issue ; and provided the issue of such certificate
shall not have been forbidden, as provided for by the act.

The certificate is to contain " the particulars set forth in the Cooteotoof.
notice, the day on which the notice was entered, and that the full
period of twenty-one days has elapsed since the entry of such
notice, and that the issue of such certificate has not been for-
bidden."

The superintendent's fee on the issue of such certificate is to ^ee*
be one shilling.

By «• 8, every certificate for marriage without license, and in black
Upon a certificate only, is to be printed with black ink. i°k*

And by s. 14, no marriage, by virtue of such notice and cer-
tificate, shall be solemnized until after the expiration of twenty-
one days of the entry of such notice, except in case a license
shall have been granted.

If the marriage is to be had by license, the same notices are Marriage
to be given, and the same proceedings taken as are required for by regie-
procuring a certificate, by ss. 4, 5,and 6, aniCf and then, by s. 7,
after the expiration of seven days after the entry of such notice of
marriage, the superintendent, upon being requested to do so by
or on behalf of the party by whom the notice was given, shall issue
a certificate, under his hand, as in schedule B., and as if the
marriage were to be performed under such certificate onlv;
but with regard to certificates, which are preliminary to the
issue of licenses, it is provided, by s. 8, tha^ in order to dis-
tinguish the certificates to be issued for marriages by license, issue ofcer-
from the certificates to be issued for marriages without license, tificate for
a watermark in the form of the word ' License,' in Roman letters, -J^^^Iq^^
shall be laid and manufactured in the substance of the paper on which
which the certificates to be issued for marriage, by license, shall prmtod.

trai*s li-
cense.

636

iKarriase.

Vndtr

6 .\ 7 W.4,

c. 85.

By license

Delivery of
certificate
to superin-
tendeot.

Oath.

No im«
|;ecJtmeDt.

Residence.

Consent of
parents.

Alarrtageto
be within
three
moQtbs.

Place of
celebration.

Church or
chapel of
the chnrch
of England.

Upon a
certificate.

be written or printed, and every certificate for marriage by
license shall be printed with red ink.

Having given the requisite notice, the next step towards pro-
curing a license, as directed by s. ]2, is, that one of the parties
intending marriage shall appear personally before the superin-
tendent registrar, to whom the notice of marriage was given ;
(and in case of applying for a license of marriage to a different su-
perintendent, delivering to him the certificate in red ink, as pre-
scribed by s. 8, of the superintendent or superintendents to
whom such notice shall have been given), and making oath or
solemn affirmation or declaration, instead of taking an oath,
'' That he or she believeth that there is not any impediment of
" kindred or alliance, or other lawful hindrance, to the said
" marriage, and that one of the said parties hath, for the space
" of fifteen days immediately before the day of the grant of
'' such license, had his or her usual place of abode within the
" district, within which such marriage is to be solemnized ; and
" where either of the parties, not being a widower or widow,

shall be under the age of twenty-one years, that the consent

of the person or persons, whose consent to such marriage is

required by law, has been obtained thereto ; or that there is
" no person, having authority to give such consent, as the case
" may be.'* And all such licenses and declarations shall be
respectively liable to the same stamp duties as licenses for mar-
riage granted by the ordinary of any diocesei and affidavits
made in order to procure the same.

The form of such license is directed hy s. 11, to be according
to the form of schedule C. in the Appendix, and the fee thereon
to be limited to £3, above the value of the stamps necessary on
granting such license.

By s. 15, whenever a marriage shall not have been had within
three calendar months after the notice shall have been entered
by the superintendent registrar, the notice and certificate, and
any license granted thereupon, and all other proceedings shall
be utterly void ; and no person shall solemnize a marriage or
register the same until a new notice, entry, and certificate, be
given as before.

By s, 1, where by any law or canon, it is provided that any
marriage may be solemnized after publication of banns ; aach
marriage may be solemnized in like manner on production
of a registrar's certificate; this clause not being clear, it
was further enacted by 1 Vict. c. 92, s. 36| that the giving
notice to the registrar, and the issue of his certififcate^ shall be
used and stand instead of the publication of banns to all intents
and purposes^ where no such publication shall have taken place ;
and every parson, vicar, minister, or curate, in England, shall
solemnize marriage after such notice and certificate, in like man*

iHarriasre. 537

tier as after due publication of banns. Provided always, that Under
the church wherein any marriage, according to the rites of the g.^!^'*'

church of England, shall be so solemnized, shall be within the ' —

district of the superintendent registrar, by whom such certificate J^i*b*n[iion
shall have been issued.

By s. 18, any proprietor or trustee of a separate building. Building
certified according to law as a place of religious worship, may registered
apply to the superintendent registrar of the district, in order °°^^'
that such building may be registered for solemnizing marriages
therein, and in such case shall deliver to the superintendent a
certificate, signed in duplicate by twenty householders at least,
that such building has been used by ihem^ during one year at
least, as their usual place of public religious worship^ and that
they are desirous that such should be registered as aforesaid ;
each of which certificates shall be countersigned by the pro-
prietor or trustee, by whom the same shall be delivered ; the
section then proceeds to make provision for the registration of
the certificate and its being advertized in the London Gazette^

By tf. 19, if it be made appear to the satisfaction of Sabetita-
the registrar-general that such building has been disused ^o°-
for the public worship of such congregation, the registrar-
general shall cause the registry thereof to be cancelled, and may
substitute some other such public building, although it has not
been used for public worship for one year then next preceding.

By s. 20, after the expiration of twenty-one days, if the mar- Marriage
riage is by certificate ; or seven days if by license, marriages solemnized.
may be solemnized in such registered building, if it be the
building named in the notice and certificate.

By s. 19, if a building be once disused, the registry thereof
cancelled, and another building substituted, the old one cannot
be again used for solemnizing marriage except it be again for-
mally registered.

By s. 21, persons objecting to marry in such registered ^^"°;
building may, after due notice and certificate issued, contract office^'
and solemnize marriage at the office of the registrar.

By s. S, where both parties are of the society of friends, QuAken
Quakers ; or professing the Jewish religion, they are at liberty *"*** ''•**^'-
to contract and solemnize marriages according to the usages of
their society and religions respectively, provided notice shall
have been given and a certificate issued according to the provi-
sions of the act.

By «• 1, if the marriage be in a church, the ceremony is to be Form and
performed by a minister of the established church according to time of
the order and form directed by the Rubric of that church, and ^'^^'*^^°*
within the canonical hours of eight and twelve. Church.

By #» SOy if the marriage take place in a registered building, Regiitered
it may be ** according to such form and ceremony as the parties buidUng.

378

£Hnvrititgfi

Under
c. 85.

Superinten-
dent*! of-
fice.

Time.

may see fit to adopt/' provided that during some part of the
ceremony each of the parties shall declare^

I do solemnly declare that I know not of any lawful impedi*
ment why I, A. B.| may not be joined in matrimony to C. D.

And each of the parties is to say to the other,

I call upon these persons here present to witness that I, A. B«,
do take thee, C. D., to be my lawful wedded wife (or husband).

No form, religious or otherwise, is required if the marriage
take place at the superintendent's office, except that the parties
make the above declarations.

In both the above cases the marriage is to take place between
the hours (a) of eight and twelve in the forenoon ; the doors of

(a) There may be a distinction between marriages celebrated imder
this act, the 6 ^ 7 ^.4, c. 85, and marriages solemnized under the
4 Oeo, 4, c. 76, with regard to the legal hours of marriage ; and also a
difference in this respect in marriages celebrated in a regbtered building,
and those celebrated in a registrar's office.

The 62d Canon of the Canons of 1603 enjoins marriages to be solem-
nised between the honra of eight and twelve in the forenoon. The
26 Oeo. 3, e, 33, gives no statutable effect to the Canon, nor contains in
itself any directions with regard to the hour of celebration ; and the
Rubric is also silent on the subject. The 4 Geo, 4, c. 76, by «• 21
enacts, that any clergyman celebrating marriage at any other hour than
between eight and twelve shall be liable to be transported for fourteen
years, but contains no obligatory nor other directory words as to the
time of celebration ; so that, before the 6 4* 7 W. 4, c. 85, the restriction
as to time depended solely upon the Canon ; and it was decided in
Middleton v. Croft, 2 Ath. 650, where this point was expressly
raised, that the Canons of 1603 were not, proprio vigorCf binding on the
laity, and, consequently, the ecclesiastical court was prohibited firom
proceeding in that case, upon so much of the libel as charged that the
parties were married before eight o'clock in the morning. But in cases
under the 6 4* 7 fV. 4, c. 85, it is different. That act enacts by «. 20,
that after the period of twenty-one days, or of seven days, if by Hcenae,
marriages may be celebrated in the registered building, " provided never-
theless that every such marriage shall be solemnised with open doors,
between the houra of eight and twelve in the forenoon.'* These words,
being introduced in the shape of a " proviso," seem to have the effect
of cutting down the former power, and of preventing it from having
any operation, except it be exercised in the particular mode contem-
plated by the provision. The 2\st sec. however, enacts that persons
may, after due notice and certificate, " contract and solemnise marriage
at the office, and in the presence of the superintendent registrar and some
registrar of the district, and in the presence of two witnesses, with open
doon and within the houn aforesaid." Here the words are simply
affirmative and directory, and the specific time is not introduced as a
proviso. It may be doubtful, therefore, whether a maniage in a regis-

;^atTtege. 639

the building or office being open, and the declarations above ^^^!^^
being made. In the case of a marriage in a registered building, it ^ g^^ ' '

must be in the presence of some registrar of the district in which /tt— ^

it is situate, and of two or more credible witnesses. In the case riag«.
of a marriage at the superintendent's office, in the presence
of the superintendent, some registrar of the district, and two
witnesses.

By s. 16, it is enacted, that if the marriage be solem- Certificates
nized according to the rites of the church of England, the super- to be dell-
intendent*s certificate, or, in case notice shall have been given to ^^\ t
more than one, the certificate of each superintendent shall be EngUiDd.
delivered to the officiating minister.

If the marriage be solemnized according to the usages of the Quaken
people called Quakers, or of the persons professing the Jewish a°<i J«wf.
religion, the certificate or license shall be delivered to the regis-
tering officer of the Quakers for the place where the marriage is
solemnized ; or to the officer of a synagogue by whom the mar-
riage is registered in each case respectively.

In all other cases the certificate, or license, shall be delivered other
to the registrar present at the marriage. caiee.

By s. 28, the registrar is to re^ster every marriage Marriages
celebrated in his presence in a register book, according toberegis-
to the form provided for the registration of marriages by the ^^'^
6^7 FF. 4, c. 86 ; and every entry of such marriage shsJl be
signed by the person by or before whom the marriage shall have
been solemnized, if there shall be any such person, and by the
registrar, and also by the parties married and attested by two
witnesses ; and every such entry is to be made in order from the
beginning to the end of such book.

And by s. 36, it is enacted, that it shall be lawful for the Questions.
registrar before whom any marriage is solemnized according to
the provisions of the act, to ask of the parties to be married,
the several particulars required to be registered touching such
marriage.
6. Dissent to Banns, forbidding Certificates and Caveats to or dissent

Licenses. to banns.

By the 6Sd Canon of the Canons of 1603, ministers were -
forbidden to calebrate marriage between persons under age,
though the banns were thrice asked, until the parents or
governors had, either personally or by sufficient testimony, sig-
nified to him their consent. 1 Gibs. Cod. 512.

tered bnilding out of the specified hours would not be bad, though the
same construction would not apply to marriages in a registrar's office ;
the 42d see., the avoiding clause, does not avoid the marriage either in
one case or the other.

540

iMamase*

Of dusent
to banns.

2 Geo. 4,
c. 75.

4 Geo. 4,
c. 76.

PublicatioD
void.

Consent not
necessary
to banns.

6&7W.4,
c. 85.

Forbidding
certificate.

By 26 Oeo. 2, c. 33, s. 3, parents or guardians were enabled
to dissent as now ; but consent in cases of marriages by banns
was not required. 3 PhiU. 581.

By 3 Geo. 4, c. 75, s* 16, before publication of banns the
parties for whose marriage the banns were to be published
were to make an affidavit, in which they were required to swear
whether the parties, or either of them, were under age, but no
provision was made that the marriage should be void, if the affi-
davit were false in that respect, ante^ 524t, although the making
false affidavit was punishable.

The 4 Oeo. 4, c, 76, by s. 8, re-enacted the 3d sect of
36 Oeo. 2, s. 73, and declaring, that no minister should be
liable for ecclesiastical censures for solemnizing the marriage of
a minor, unless such minister should have notice of the dissent
of parents and guardians; enacts that ^'in case such parents or
guardians, or one of them, shall openly and publicly declare,
or cause to be declared, in the church or chapel where the
banns shall be so published, at the time of publication, his, her,
or their dissent to such marriage, such publication of banns
shall be absolutely void.'*

But though dissent, thus declared, may make banns void, and
so prevent any marriage from taking place, yet it has been
said by the court, that in marriages by banns consent is not
necessary, and the want of it is of no consequence, 3 Phitt. 581 ;
this was said indeed with reference to the 26 Geo. 2, c. S3, but
it must necessarily be equally applicable to the same clause in
4 Geo. 4, c. 76.

The 3 Geo. 4, c. 75, contained no provision for dissent to
banns, but as that act only repealed the 11th sect, of the
26 Geo. S, c. S3, the power of dissent under the latter act con-
tinued in force till it was at last wholly repealed and re-enacted
by the 4 Geo. 4, c. 76.

In cases arising under the 6^7 FF. 4, c. 85, the certificate
is made equivalent to banns, if the marriage is intended to be
celebrated without a license, or as preliminary to a license, if
the marriage is intended to be by license. By that act a
power is given by s. 10, to any person, whose consent to any
marriage is required by law, to forbid the issue of the certificate ;
this power is given as well in the case where the marriage is
intended to be celebrated on the certificate alone, as where it is
to be by license founded on the certificate ; but in the
latter case, where the certificate is only granted as an authority
for the issue of the license, a caveat may, by«. 13, be also entered
against the grant of the certificate, or the license founded
upon it.

The provisions by ss. 9 and 10, are as follow, ** every person
whose consent to a marriage by license would have been re»

iKarnase^ 541

quired by law, in cases of marriage before the 6^7 Wm. 4, Diwent to
c. 85, is authorised to forbid the issue of a certificate whether ^'°°*'
the marriage is to be by license, or without The mode of for- Manner of
bidding the issue of a certificate is directed by *. 9. "Any fo'b«iding.
person authorised in that behalf may forbid the issue of the cer-
tificate by writing (at any time before the issue) the word ' Forbid-
den,' opposite to the entry of such intended marriage in the
marriage notice book, and by subscribing thereto his or her
name and place of abode, and his or her character, in respect of
either of tne parties, by reason of which he or she is so au-
thorized, and in case the issue of any such certificate shall have
been forbidden, the notice and proceedings thereupon shall be
utterly void."

By #• 11, 4 Geo. 4, c. 76, it is enacted, that if any caveat be Caveata,
entered against the grant of any license for a marriage, such to license
caveat being duly signed by or on the behalf of the person who of surro-
enters the same, together with hU place of residence, and ground ^^*'
of obfection on which his caveat is founded, no license shall
issue till the said caveat, or a true copy thereof, be transmitted
to the judge, out of whose ofiice the license is to issue, and
until the judge has certified to the registrar that he has ex-
amined into the matter of the caveat, and is satisfied that it
ought not to obstruct the grant of the license for the said
marriage ; or until the caveat be withdrawn by the party who
entered the same.

There is a similar provision in the 6^7 W. 4f, c, 85, s. 13, To license
with regard to the entry of a caveat witn the superintendent ®^ registrar
registrar, against the issue of a certificate or license by him, >v;7c.a5[
under that act; with a power, that in cases of doubt he may re-
fer the question to the registrar general ; or, in case of his
refusing the certificate, the party refused may appeal to the
registrar general. And by s, 37, of that act, it is enacted, that
every person who shall enter a caveat with the superintendant
registrar against the grant of any license or issue of any cer-
tificate, on grounds which the registrar general shall declare
to be frivolouB,(a) and that they ought not to obstruct the grant
of the license, shall be liable for the costs of the proceedings,
and for damages to be recovered in a special action upon the
case, by the party against whose marriage such caveat shall
have been entered ; and by 1 Vict. c. 22, s, 6, a copy of the
declaration of the registrar general, sealed with the seal of the

(a) It would probably have been better to have added the word
vexatiaus, or some other word conveying the same meaning. A parent
or guardian may enter a caveat on grounds which may appear to be
£nvoloo8, and which probably he can barely explain, much less prove ;
it 18 hard that for such cause he should be subjected to an action, if he
has acted bond fide, and not vexatiously.

542 iKamagr.

^^dTfi &7 S®"^"^^^ register office, is made evidence in such action, that
w. 4^0. 85. ^^^ registrar general has declared such caveat to have been

/ ■■ entered on frivolous grounds.
^eTsSe? Tfaes® provisions in the 6 ^ 7 W. 4, c. 85, with resard to the
forbidding certificates, and entering caveats against the issue of
licenses, and the right to bring an actioa for frivolous objections,
a power quite new in the law of marriage, deserve to be carefully
considered.

By ss. 9 and 10, any person, whose consent would be neces^
sary by the former marriage acts, in cases of the marriages of
minors, may forbid the issue of the certificate, whether the
party about to marry be a minor or not, and such forbidal is a
conclusive and irresponsible act; if the marriage is to be by
certificate only, and without a license, there is an interval of
twenty-one days, in which the party, desirous to forbid, is
allowed, in order to make his objection; if the marriage is to
be by license, the interval is only seven days ; but if Uie mar-
riage is to be by license, not only those persons whose consents
are made necessary by previous acts, but any one else^ on pay-
ment of 5«.,may, by s» 13, enter a caveat against the issue of the
certificate, or grant of the license, subject however, by s, 37, to all
costs, and an action on the case if entered on frivolous grounds.
Thus a parent or guardian may forbid the issue of a certificate,
and a certificate, if any be issued after such forbidding, is void ;
and the party forbidding is irresponsible for the step he has
taken ; but suppose the same person, on the same grounds,
enter a caveat against the issue of the certificate, the registrar
may treat the grounds as insufficient, and notwithstanding the
caveat^ may direct the certificate or license to issue, and the
marriaTC may consequently take place ; and if the registrar
general, on reference to him, shall declare the grounds of ob-
jection to be frivolous, the party making them is subject to an
action on the case. Persons, therefore, having the power to
forbid^ should be cautious to exercise their power by /or-
biddings and not proceed by caveat^ by whicn course their
object may be defeated, and they themselves subject to an action.
Again, with regard to the action, which, by e. 37, 6^7 ^.4,
c. 85, is to be founded on the declaration of the registrar, that
the caveat was entered on frivolous grounds, and that it ought
not to obstruct the grant of the license, or issue of the certificate.
By 1 Fict. c. 22, s. 5, a copy of such declaration, purporting
to be sealed with the seal of the general register office, is
made evidence, that the registrar general has declared such
caveat to have been entered on frivobus ^rounds, and that they
ought not to obstruct the grant of the license or certificate ;
but it would seem by s. 13, 6 ^ 7 JV. 4, c. 85, that it is only in
cases of doubt that the superintendent registrar, with whom the
caveat is entered, has power to refer the matter to the registrar

iHarriase. 643

general ; every declaration made by the registrar general there- ^*T**^. .
fore, assumes that the case referred to him was doubtful, for he wr4» c. 85.
has no jurisdiction to make a declaration in other cases. In - ' ' * — *
cases where the grounds are clearly fiiYolous, which are the Action od
only cases in which such right of action ought, as it would seem, ^ ^^'^'
to have been given, no action it is conceived could be brought,
because in such cases the superintendant re^trar must decide
for himself, and cannot refer them to the registrar general.

But suppose a case of a caveat entered on grounds which
are, and which the superintendent considers to be, palpably
frivolous; but, in order to obtain the declaration of the registrar
general, he refers the case to him, for the purpose of enabling the
party to bring his action. When the declaration of the registrar
general is pr^uced on the trid it must be taken in point of law
to liave been a case of doubt with the superintendant. Further, DecUn-
the language of the 37th sect. 6^7 W.^^c. 85, seems to im- «»on o^ re-
port that the declaration of the registrar general, that the grounds I^^^l^
on which the caveat was entered were frivolous, would of itself
give a right of action; and, as the decision of a competent juris-
diction be taken to be conclusive that the grounds were frivolous,
and that the court and jury were merely to assess the damages in
the action ; but the I Vict. c. 22, s. 5, enacts, that " the copy of
the declaration shall be evidence that the registrar general has
declared such caveat to have been entered on frivolous grounds,
and that they ought not to obstruct the grant,*' &c., which
seems, as if the declaration was only intended to be evidence
that such a declaration had been made ; not making the decla-
ration conclusive, or even primd facie evidence that the grounds
were in fact frivolous ; but this section concludes, '^ and such
declaration shall have the effect of the declaration required in
such case by the said act for marriages.*' What effect, or what
such concluding sentence means, it is difficult to conjecture.

7. Of the consequences of want of consent in Marriages by
lAcenee.

The necessity of parental consent, is a restraint of civil insti- Coo^e.
tution ; marriages made contrary to the consent of parents were queoce of
pronounced to be invalid, both by the Civil and Canon law. ^>^°^ <>'
AgUjgr.Parer,am.(a) con-ent^

By the £6 Geo. S, c. 83, such a restraint was introduced into
this country in a compulsory form ; by that act the power was
given to the father exclusivelv ; it did not survive to the other
parent, but was ^ven preferably to a stranger, whom the deceased
parent thought fit to nominate, and devolved on the surviving
parent only in default of such nomination. If it did so devolve to

(a) As to the consent necessary by 4 Geo. 4, c. 76, vid. ante, 526.

544

0Uirmst,

Cooae-
queoces of
want of
consent

Guardians.

How ap-
pointed.

Court of
chancery.

Illegitimate
minon.

Consent
implied.

her it continued only during her widowhoodi for her second mar*
riage, though it did not at all affect her natural character, as
parent, put an entire end to her legal right to consent to the legal
marriage of her child, and transferred it to the public magistrate.
1 Hag. Con. 352, 428 ; 3 PhiU. 43 ; 1 Add. 475 ; ante, 526.

The father having the sole power of consent during his life,
has also the power of directing, by deed or will, who shall
exercise the power after his death, and any guardian appointed
by him, therefore, has the power to the exclusion of the widow
and surviving parent ; but as the father had not this power by
the common law, and only derives it under the statute, 12 Car.
% c. 24, s. 8, a will or deed, appointing guardians, must be ex-
ecuted in accordance with the provisions of that statute, and be
attested by two witnesses. 3 PhiU. 256.

A testamentary appointment of guardian is not revoked by a
second marriage, and the birth of children of the subsequent
marriage ; nor is it revoked by a subsequent testamentary ap-
pointment, which is not executed according to the statute, and
does not directly shew an intention to revoke. 7 Ves. 349.

But though such will be insufficiently attested, it may be
made sufficient, by a codicil referring to and confirming the wilU
16 Ves. 167.

If there be no testamentary guardian nor unmarried mother^
then an application must be made to the court of chancery, by
petition, to appoint a guardian.

The power of consent given to parents by 26 Geo. 2, was not
applicable to the cases of illegitimate minors ; in their case, even
during the lives of their parents, guardians must be appointed
by the court of chancery, whose consent to marriage has been
supposed to be sufficient. 1 Hag. Con. 837; 2 Hag. Con. 194;
2 PAUL 328; I T. R. 96; Cald. 485; 11 East. 1.

As to the consent, it has been held on the 26 Geo. 2, that it
need not be in writing, 1 Hag. Con. 267 ; nor a formal act, but
might be collected from all the circumstances of the case ; ib. /
sed vid. provisions of the 3 Geo. 4, c. 75, s. 9, which requires
the consent to be in writing, and signed in the presence of two
witnesses ; which provision is not repealed by 4 Geo. 4, e. 76.
Qy. therefore, whether it is not still necessary that the consent
should be in writing, and signed in the presence of two
witnesses. A general consent is sufficient, and the courts have
almost gone the length of requiring dissent to be proved, when
the party, whose consent is required, has known of, and coun-
tenanced, courtship. I PhiU. 221, 223, 296, 299; 3 PhiU. 39.

It is not a necessary circumstance, upon which consent may
depend, that the party, whose consent is required, should have
personal acquaintance with the party marrying a minor. 2 PhiU.
283.

ti
it

iMarrtagt. 545

Consent also may be prestinied from delay in making objec- Conieot
tion after the fact of marriage has come to the knowledge of the im^ied. ~
person whose consent is required.

After marriage had, it is necessary for parties, insisting on
want of consent, to prove the negative in the strongest manner*
S Hag, Can* 17S, sedvid* Ambl. 256. But ignorance of the fact
at the time, and a refusal to see a son upon the discovery of the
marriage two years after, has been held sufficient evidence of
want of consent. 1 PhUL SSI.

As parental authority continues up to the time of marriage May be re-
consent may be retracted ; but, when once consent has been ^'^'^-
given, it is necessary that the dissent should be distinctly and
unequivocally expressed, " For it would be a most alarming

circumstance, if upon mere brooding dissatisfaction of mind

not expressed, the validity of a marriage, to which consent

had once been given, could be attacked.*^ Per Sir W. Scott^
1 Hn^. Con. 065, and vid. Dashtioood v. Lord Bulkely^ 10
Ves. 242.

Where a mother was informed of the place, of the time, and
of the person by whom the ceremony was to he performed, and
signified her approbation of the approaching event, and, after
the ceremony, drank to her son and daughter, wished them
health and happiness, and thanked the attendants for the
trouble they had taken, she was considered to have consented
to the marriage. 1 Hcut, 262.

If a marrille be inrld for want of consent at the time it 8.i»e-
was solemnized, no consent given afterwards could establish quent.
it; there must be a precedent or cotemporary consent. 2 Hag. ^nnotvaiu
Con. 241. *^*''''

The marriage of a minor, without the previous consent of Coi»e-
parent or guardian, was rendered null and void, to all intents queDcesof
and purposes, by the 26 Geo. 2, c. 33, s. \l ; and a suit might "^^"^
be instituted for sentence, declaratory of nulHty of marriage,
by either party, though in the teeth of his or her false affi-
davit ; and the marriage set aside at any time, for the original
disqualification never could be got rid of. 1 Phill. 221 ; 2 PkiU.
92, 285; 3 Do. 39, 43, 256 ; 3 Hag. 301. Thnt act was con-
sidered to have produced great uncertainty and hardship, and
therefore the particular clause was wholly repealed by the
3 Geo. 4, c. 75, «. 1, and the injurious consequences pro- Hetrospec-
duced by its operation prevented, by the retrospective pro- ''Y® J^)*"*^
visions of the sec. 2, whicn enacted, that in all cases of mar- c.7s,^^ '
riage by license, before the passing of that act, (which received
the royal assent, 22d July, 1822, but which did not take eflTect till
the 1st September, 1822, in cases of marriages by banns, post,
559, II. (a),) without such consent as was required by 26 Geo. 2,
e. 33, ** and where the parties shall have continued tolive together

M N

546

iMaittase.

CoDwnt.

Retrospec-
tive clauses
of 3 Geo. 4,
C.76.

Cohabita-
tion not
begun.

Where no

rohabita*

tion.

Living
together
and discon-
tinuing co-
habitation.

as husband and wife, till the death of pne of them, or till the
passing of that act, 3 Geo. 4, e. 75 ; or shall have only have dis-
continued their cohabitation for the purpose, or during the
pending of any proceedings, touching the validity of such mar-
riage ; if not otherwise invalid, shall be deemed to be good and
valid to all intents and purposes/' Of the operation of this
statute it was said by the court, Dr« Lushinglon^ in DennU v.
Donovan^ 3 Hag. 305. '' The 3 Geo. 4, c. 75, s. % generally
" and practically speaking, may be said to render valid, with
'' certain exceptions, all marriages of minors previously solem-
'' nized by license, without the consent of parent or guardian,
" thus far restoring the general law as to the validity of such
" marriages, which the former law declared to be absolute
" nullities."

Where the clandestine marriage of a minor, without consent,
was discovered before any cohabitation had taken place, the
retrospective operation of the above section, which renders
valid such marriages, only where the parties have lived together,
was held not to take effect. In Bridgwciier v. Cruichleyt
1 Add. 479, Sir J. Nicholl said, *^ I am satisfied that the case
*' before the court is neither within the words nor within the
*' intention of the 2nd clause of the 3 Geo. 4, c. 75, under
'' the provisions of which, as being an act ex post faciOy it
'' clearly ought not to be included by constructicm or impli-
'^ cation ; it is not within the words for a reason already hinted,
*' namely, that a cohabitation can hardly, with propriety, be
'^ spoken of as discontinued, which had never commenced ;
" there can be no end properly of what has no beginning. Not
" within the intention ; for the intention of this clause was ob-
" viously in my judgment, if not to include a particular case, yet
'^ still, only to confirm marriages which the parties themselves
" had previously confirmed (so far as in them lay) by a subse-
'' quent cohabitation subsisting at the passing of the act ; or
" only suspended for the institution of some proceeding, in order
*< to ascertain thereby, this being doubtful, the legal validitv of
" such marriage." The marriage therefore having taken place
before the passing the 3 Geo. 4, c. 75, and not being within its
retrospective section, was declared null and void under 9& Geo.2f
c. 33,*. 11. (a)

As to what is a " living together" within the meaning of the
act, and a *' discontinuing cohabitation" within the meaning of

(a) It was contended in the case of Rase v. Biaekmore^ Ry. ^ Mao.
382, that as the 4 Geo. 4, c. 86, repealed the 3 Qeo. 4, c. 75, the retro-
spective clause of that statute was no longer in operation, but the
court, Abbott ^ C. J., overruled the objection.

inamagt« 547

the exception, vid. King v. Sansom^ 3 Add. 277 ; Poole v. <^op«gp^-
Poole, 2 Tyrwh. 76 -, 2 Cr. ^ J. 66. Rctroapec

The retrospective operation of the 2nd sect. 3 Geo. 4, c. 75, tive clauses
was however limited by the 3, 4, 6, 6, and 7th sections of that ""^^^^"^ '
statute, which provided that no marriage was to be rendered
valid, previously declared to be invaUd by a competent court ;
nor where either of the parties shall have lawfully married with
any other person ; nor where its invalidity had been established
on any issue touching its validity, or the legitimacy of any descend-
ant of such marriage ; nor where its validity or the legitimacy of
any such descendant had been duly brought in question, and
judgments, decrees, or orders of courts of law or equity, had been
made thereon ; nor where property or titles of honour had been
possessed or enjoyed on the ground, or pretence^ or under the
eoUmr, of the invalidity of any such marriage, although no sen-
tence or judgment had been pronounced against the validity of
such marriage.

Upon the first of these provisions it has been held, that where Marriage
a court of competent jurisdiction had declared a marriage under !'^^[^^*^
26 Geo. 3, c. SiS, to be null and void, an appeal from that sen- jQvaHd.
tence did not let in the retrospective operation of the 3 Geo. 4,
c. 75, $. 2 ; the appeal merely suspending the issue of the suit,
not extinguishing the suit itself. Blyth v. Soden^ 1 Add. 312.

Upon the second exception, viz., where either of the parties p^^ty
shall have been lawfully married with another person ; it lawfully
has been held, that where parties continued to live together till "^'^ *°
the passing the 3 Geo. 4, c. 75, the marriage was completely
valid, though it would have been invalid by 26 Geo. 2, e. 33,
but for the retrospective operation of the first section of the
former act ; which state of facts being established, such marriage
could not be invalidated by a second marriase, after the passing
the 3 Geo. 4, c. 75, the first husband being then living. R. v. St.
John's Delpihe, 2 B. ^ Ad. 226.

The facts of that case were as follow :— In the year 1808, the
pauper, M. L., not being a widow, and being a minor, married
J. L. The marriage was solemnised by license, without the
consent of M . L.*s father, who was then living ; she continued to
live with J. L. till 1825, when she married T. L., J. L. being
still alive. Upon this case the judgments given by Lord Ten-
ierden and Parke, J., were as follow : —

Lord Tenterden, C. J. " We must construe the proviso in
'' the third section, as hi tended to apply to cases which oc-
** curred before the passing of the 3 Geo. 4, c. 75; section 2

applies to marriages, which, under certain circumstances,

were rendered invalid by the 26 Geo. 2, e. 33, and which are,
'' by that section, rendered valid in cases where the parties
" shall have continued to live together as husband and wife till

N N 2

548

iMarrtagt*

CoDsent.

Retrospec-
Hve claaaes
of3Geo.4,
c. 75.

Parties

lawfully
married to
another.

Rex V. St,
Delpike,

u
it
it

€$
ff
tt
€t
€€
«
€t
Cf
tt
tt
tt
tt
tt
tt

tt
tt
tt
tt
tt
tt
tt
tt
ffl
tt
tt
tt
tt
tt
tt
tt
tt
tt
tt
tt
tt
tt
tt
*t
C(
tt
tt
tt

6&7W.4,
c. 85.

the death of one of them, or till the passing of that act. The
provisions in section 3, that *' the act shall not extend to ren-
der valid any marriage where either of the parties shall, at
any time afterwards, during the life of the other party, have
lawfully intermarried with any other person/ may have been
wholly unnecessary ; at the same timci it may possibly have
occurred to those who framed the act, that it might occa-
sionally happen that one of the two parties to the first mar-
riage might, during the life of the other, have lawfully inter-
married with a third, and might afterwards have cohabited
again with the original husband or wife, till the death of one,
or the passing of the act. I think, however, that clause was
introduced only for greater caution, and that we ought not to
construe the act so that a marriage may first be treated as
valid, and afterwards as invalid. The first marriage, there-
fore, was valid ; and consequently the order of sessions must
be quashed."

Park, J. ** I think this is a very clear case; the second
section renders valid marriages otherwise invalid by the
96 Geo. S, c. 33, in cases where the parties shall have con-
tinued to live together as husband and wife till the death of
one of them, or till the passing of that act. Under that sec-
tion, therefore, the first marriage would be valid, because,
here the parties did continue to live together till the passing
of the act. Then, the third section enacts, that the act shall
not render valid any marriage where one of the parties shall,
during the other's life, have lawfully intermarried with any
other person. It is said that this clause is prospective. If
it be retrospective only, there can be no question in the case.
If it be prospective this absurdity will follow, that parties,
whose marriage is rendered valid by the second section, may
at any time they please bastardize their issue, by contracting
a subsequent marriage. Such a construction oueht not to be
given to the words of the act, unless it be absolutely neces-
sary. But then it is said that, if the construction be retro-
spective only, this clause is useless. That would not be a
sufficient reason for so absurd a construction as that con-
tended for by the respondent parish ; but, in truth, the clause
is not altogether useless; for two parties may be living to-
gether, and yet one have married another person, and this
case is provided for by the last part of the third section. The
argument assumes that a party cannot commit bigamy without
ceasing to live with his first wife. A man may have continued
to cohabit with his first wife till the passing of the act, or th6
death of one of the parties, and yet have contracted another,
and a valid marriage, in the mean time."
By 6 ^ 7 Wm, 4, s, 10, it is enacted that ** the like consent

shall be required to any marriage in England solemnized by Conseou
lioensey as would have been required by law to marriages solera* sfit? wT,
niaed by license immediately before the passing of this act/' c. 86.

The law of consent to marriages under this act would
appear to be the same as it is under 4 Geo. 4, c* 76. But
didfe is a distinction between these acts, for by the latter act, in
case of anv suit of nullity for want of consent, it is enacted
that it shall not be necessary to prove consent, nor shall it be
aUowable to prove the want of consent.

The provisions are the s. 25^ 6^7 Wm. 4, c. 85, and the
9Qth 4 Geo. 4, c. 7. By the former it is enacted, that it shall not
be necessary, in case any marriage shall be solemnized, to give
any proof of the dwelling of the parties within the district, or
ef the consent of any person whose consent thereto was required
bylaw^ nor shall any evidence to prove the contrary be given in
any suit touching the validity of such marriage. By the latter
act, that it shall not be necessary to give proof of the actual dwel-
ling of the parties in the parishes where the banns are published,
or where the marriage is by license, that the usual place of abode
of one of the parties for fifteen days was within the parish where
the marriage was solemnized, nor shall evidence be received to
prove the contrary.

8. Of void and voidable nuirriages. Mamages

The distinction between marriages which are void, and those ^**|^^u"^
which are only voidable, is necessarv to be considered. —

The canonical disabilities (a) make the marriage voidable, Voidable.
and not ipso facto void ; and if sentence of nullity be sought,
such sentence must be actually declared during the lifetime of
the parties. Elliot v. Gum, 2 PhiU. 19 ; 12 Mod. 432.

Civil disabilities, such as a prior marriage, want of age. Void.
idiotcy, and now by 5 ^ 6 ^.4, c. 54, consanguinity and affi-
nity, and in some particular cases, non-compliance with the pro-
visions of the statutes concerning marriage, make a marriage void
ab initio, and not merely voidable. These do not dissolve a con-
tract already made ; but render the parties incapable of con-
tracting at all, or declare the contract to be no contract They
do not put asunder those who are joined together, but they

I previously hinder the junction ; and if any persons under these
egal incapacities come tosetber, it is a meretricious and not a
matrimonial union, and therefore no sentence of avoidance is
necessary. lb. ; Salt. 548 ; Cro. Elix. 857.

(a) Previously to the passing the 6 W. 4, c. 54, the impedimenta of
consanguinity and affinity rendered a marriage voidable and not void.
Vid. post, 556.

650 iHamagf^

y^dlbuf ^"^ leading distinction between marriages void and voidable

1. is, that the first, being an absolute nullity, is void at all times,

and its validity may be questioned at any period, although after
the death of one, or indeed both the parties; Turner v. Meyers^
1 Hag. Con. 414, note; but if voidable only for canonical disa*
bilities, the courts of common law will not suffer the spiritual
court to declare such marriages to have been void, because such
declaration cannot tend to the soul's health of the parties. Co.
Litt. 33 a ; posty 556 n. (a.) Therefore it is, that a voidable mar-
riage can only be avoided by a sentence inter vivos, and will be
treated as valid until a sentence of nullity be declared during
the lifetime of the parties. 1 Haq. Con. 414; 2 PhiU. 19. A
void marriage, arising out of civil disabilities, may be questioned
in any proceeding, collaterally as well as directly ; and in any
court civil, criminal, or the court of chancery; or in those
ecclesiastical courts which properly have no jurisdiction in ma-
trimonial questions, in all of these the validity may be tried as an
incidental matter. Thus, in the prerogative court of Canter-
bury, whose authority extends to testamentary causes only, it
frequently becomes necessary to determine the validity of a
marriage ; 1 Add. 65 ; 2 PhiU. 760 ; in the inferior courts of
quarter sessions, upon cases of settlement ; in criminal courts,
in cases of bigamy ; and in committees of privileges in the
House of Lords. But a man*iage voidable only, cannot be col-
laterally disputed in the temporal courts; those courts, it is
apprehended, having no jurisdiction in matters purely spiritual.
Therefore, until such a marriage has been annulled by the
decree of the ecclesiastical court, it is good for all civil purposes
whatsoever, (a)

(a) Generally speaking, as the question of marriage arises only inci-
dentally in the temporal courts, it is sufficient to prove a marriage de
facto. If, however, a distinct issue be raised on the legality of the mar-
riage, as it may be by a plea of ne ungues accouple en loyal matrimonief
a legal marriage must be proved, though in that case a legal marriage in
fact would, it is conceived, be sufficient, though it may be a marriage
voidable in the ecclesiastical courts ; for, as stated above, the temporal
courts have no jurisdiction over voidable marriages, which are valid and
sufficient for all purposes till actually dissolved by a sentence of the
ecclesiastical court. R. v. Brampton^ 10 Easty 287; Jaeofs case,
Moody, C. C. 140 ; R. v. Bathwicky 2 B. ^ Ad. ; Standen v. Siandeny
Peake'a C. 32v So also, except in the case of criminal conversation or
of bigamy, cohabitation and reputation, are sufficient on which to
presume a valid marriage, in the first instancev Starkie*s Evid. tit.
** Marriage y** open to any objection, which may be raised by proof, show-
ing such marriage to have been void.

0Uaxi&Sf. 551

But although the courts of common law have the power of ^^^f?^
determining on the validity of a marriage, when that question ^^*
arises incidentally for their decision, ana in some cases upon a
direct and distinct issue, as, for instance, in case of dower, it is
the ecclesiastical court alone which has the power of pronouncing
a binding and effectual judgment on the legality of a marriage.
The judgments of that court are also binding on questions of
marriages of British subjects contracted in foreign countries,
and of aliens, if necessary, and this must be in order to pre*
vent a failure of justice ; and there is the less diflSculty in doing
so, from the knowledge that the principles which regulate English
marriages are such as are generally applicable to the marriages of
Christian foreign countries ; the marriage law of England being
founded on the same general principles, and having, like them,
the ancient canon law for its basis.

A case may be directed by the court of chancery to the eccle-
siastical court, in order to have the validity of a marriage deter-
mined. In the case of Smith v. Smithy 1820; Poynier^ 167;
a suit was instituted in order to instruct the court of chancery
as to the validity of the marriage of an alleged lunatic*

Ist, then, of the disability by reason of want of age. All per- void.
sons who had completed their seventh year were held compe- ^^^^ ^^
tent to contract espousals ; and espousals contracted even before ag«.
that age might have been ratified by a subsequent regular con-
sent ; but these had no legal effect, unless the parties, when
they arrived at the age of agreement or disagreement, signified
their consent, (a) 4 Reeve's HUt. Co. LitU 53. This age
of agreement or disagreement is for the woman at twelve ;
8 Hag. 418; 2 Lee's Rep* 521 ; and for the man at fourteen;
S Lee's Rep. 521 ; and there needed no new marriage if they
agreed ; but till then they could not disagree and marry others,
and if they once gave consent they could not disagree after.
Co. Liti. 79 a; AyL Parer. 361.

In the Canons of Richard^ who succeeded Thomas Becket

(a) If a woman, though under twelve, be married to a man seized of
lands and tenements in fee-simple, or tail, or by purchase, or by descent,
she shall be endowed of her third part, if she be of the full age of nine
at her husband's death. Swinb, Matr. Con, 37.

By the Canon law puberty was not adjudged according to the num-
ber of a person's years, but from the habitude of body and the faculty of
generation, whether the term of puberty decreed by the Civil law were
past or not. AyUffe Parer, 246. It has been also suggested that the
early petiods fixed by the CivU law are adapted to the southern climate
of Italy, whence that law is derived. Lancelot, Instit,

^2 ilUirrtast^

^'<^<'' in the see of Canterbury, published in 1 175, the 18ih Commmi, in

Age. conformity with the decrees of pope Nicholas^ enjoins Chat

'* Marriage is null without the consent of both parties. They
who marry boys and girb do nothing, unless they consent afker
they come to years of discretion. Therefore we forbid the con-
junction of those who have not both attained the legd and
canonical age, unless there be urgent necessity for the good of
peace." Fid. the same injunction repeated in the Comtiiith'
tions of Edmund, archbbhop of Canterbury, IS86. Johnson's
Canons, vol. 2.

Miss Morris, bom 28th Nov. 1759, married Sd Jan. I77S^
was said by Sir George Hay, in giving judgment, to be of aoe
to consent ; Harford v. Morris, 2 Hag. Con. 4(i8 ; and Sir Hr.
Wynne, in East v. Bowerman, speaking of this case, said, ** The
'^ case of Harford v. Morris was that of the marriage of a girl
^^ above the age of legal consent." lb. 436 (a).
Idiots and Formerly it was adjudged that the marriage of an idiot should
Imiatici. bind him; Sid. 112, Vin. Abr. *' Marriage;' D. S; and that
his issue were legitimate. 1 Roll. Abr. 357 ; Co. Hit. 80 a.
The contrary, however, has been long since established. Thus,
in a modern case, administration was refused to a husband, on
the ground that his marriage was invalid, his wife being an idiot
at the time it took place. 2 Phill. 69. And although there
are some dicta of the earlier commentators that the marriage of
an insane person could not be invalidated, it is now a dear
principle of law that mental incapacity nullifies altogether a
contract of marriage. Turner v. Meyers, 1 Hag* Con. 414.
Blaekstone, speaking of the old law, says, '' A strange determi-
*^ nation, since consent is absolutely requisite to matrimony, and
^' neither idiots nor lunatics are capable of consenting to any
" thing, and therefore the civil law judged much more sensibly
** when it made such deprivations of reason a previous impedi*

(a) The rule of the civil law was adopted in France, and in most
countries where the civil law has prevailed, or been the basis of the
municipal law. The Code Napoleon altered the age of consent to
eighteen in males, and fifteen in females. Code Civily 144. Tlie Revised
Statutes of the stAie of New York, vol. 2, 138, established the age of
consent at seventeen in males, and fourteen in females ; but the provi-
sion was so disrelished that it was repealed within four months there-
after, which of course left the case to stand as before, on the rule of the
common law. In Ohio, the age of consent is raised to eighteen in
males, and fourteen in females ; in Massachussets to seventeen in males,
and fourteen in females. Kent, Comm» on the Laws of the United States,
2 vol, 10.

iMatriagt* 553

ment, though not a cause of divorce, if they happened after ^°'^-
** marriage. Modern resolutions have adhered to the reaion of idiots aod
*' the civil law, by determining that the marriage of a lunatic, looses.
" not being in a lucid interval, was absolutely void." 1 BL
Cam.4S8.

Afl a man, though generally insane, is considered a capable Lucid in-
and competent agent during a lucid interval clearly and satisfac- ttrvaU.
torily proved, it seems that during such interval he may contract
marriage. 1 Hag. Can. 417; 2 Bro. C. C. 441 ; 1 Dow. 178.

It is not material whether the want of consent arises from Partial
idiotcy* lunacy, or from both combined. Complete idiotcy, total >°B«i>i(y*
fatuity from the birth, rarely occurs. A much more common
CBMe 18 mental weakness and imbecility, increased as a person
grows up and advances in age. If the incapacity be such,
arisii^ from either or both causes, that the party is incapable
of understanding the nature of the contract itself, and incapable
from mental imbecility to take care of his or her own person
and property, such an individual cannot dispose of his or her
person and property by the matrimonial contract, any more than
by any other contract. Sir J. NichoU, 2 PhiU. 7 1 ; 1 Hag. 859.

When a commission of lunacy has been taken out prior to Commb-
tbe marriage, the proceeding will be under ^he stat. 15 Geo. 2, ^^^'
c 30, which provides that the marriage of lunatics and persons '^^^*
under phrenzies of mind, (if found lunatics under a commission,
or committed to the care of trustees by any act of parliament)
before they are declared of sound mind by the chancellor or
majority of such trustees, shall be void. This statute has been
extended to Ireland by 51 Geo. 3, c. 37.

Where there has been no such commission before marriage,
the case is to be established by evidence, although a commission
executed after marriage is evidence, and strongly corroborative
of the other circumstances ; 2 PhiU. 90 ; and although the ver*
diet of the jury embraced a period within wliich the marriage
waa solemnized, it would be a circumstance, and part of the evi-
dence of unsoundness, but no more. 1 Hag. 356. Where a
man having a weak understanding from his infancy, and by hard
drinking was sometimes lunatic, and did many mad and frantic
acts, but no commission of lunacy was taken out, nor was he
constantly mad but only by fits, and he married on previous
deliberation and intention ; sent for and paid for the license ; and
the curate who performed the ceremony, swore he went through
it with as mucn propriety as a man could, and there was no
evidence of mad acts about the time of his marriage, it was held
to be valid. Parker v. Porter, 2 Lee, 382.

It haa been decided that a person may, upon his recovery How set
from insanity, institute proceedings for annulling a marriage aaide.

554

iManrtas'^

Void.

Idiots and
lanaticA.

How let

aside.

Bigamy.

Second
marriage
contracted
abroad.

contracted during his incapacity; and the degree of proof tnnat
be stronger when a person, by bringing such a suiti necessarily
exposes to view the changes of his own mind. Turner y. Meyers ^

1 Hag. Con, 414. The suit in this case was first brought by
the father ; but the son having been of age at the time of the
marriage, and there being no means of making the father guar-
dian, or curator ad lUem^ the court was of opinion that the suit
could not proceed in that form* lb.

In the Earl of Portsmouth v. the Countess of Portsmouth^

2 Hag. 355, the suit was instituted by the committee of Lord
Portsmouth, and the marriage declared null and void on the
ground of incapacity. Fid. also Pamell v. PameU^ 2 PhiU. 158 ;
2 Hag. Con. 169, where it was decided that a committee may
institute proceedings against the wife of the lunatic for adulterv.
Ante, 347. As the marriage of an incapable person is absolutely
void ab initio, it may be invaBdated by a decree of the court after
death of one of the parties. 2 PhiU. 70, supra.

There can be no second marriage where both parties are
living in any country which disallows polygamy. There may
be a ceremony performed, but there can be no second marriagie :
it is a mere nullity. 2 Hag. Con. 129, 187; 2 PhW. 321 ;
1 Lee, 621.

If the first marriage be valid, it is immaterial whether it was
contracted in this country or abroad. If celebrated according to
the law of the country where contracted, {vid. post ** Foreign
Marriages,") the second marriage will be null and void. In
such a case the offender might be convicted of bigamy ; but if
the second marriage were contracted abroad, he could not have
been so convicted under the 1 Jae. 1, c. S; if the act
which constituted the felony was done in another kingdom;

1 Hale, 692; Hawk. B. 1, c. 44, s. 7; 1 Kelyng, 79; but this
distinction is taken away by the 9 Geo. 4, c. 31, repealing the
former act; such a distinction could at no time have been
recognised in the ecclesiastical courts of this country, because
they have jurisdiction in all cases with respect to the marriages
of British subjects, wherever celebrated. Harford v. Morris,

2 Hag. Con. 4£5; 3 Hag. 639.

The late statute against bigamy, the 9 Geo. 4, c. 31, makes the
following exceptions : *^ Provided always that nothing herein
contained shall extend to any second marriage contracted out
of England by any other than a subject of his majesty ; or to any
person marrying a second time whose husband or wife shall
have been absent from such person for the space of seven years
then last past, and shall not have been known by such person
to have been living within that time ; or shall extend to any per-
son who, at the time of such second marriage, shall have been

iMarrtas^ 555

divorced from the bond of the first marriaire ; or to any person Vo«»»
whose former marriage shall have been declared void by a court Biguny.
of competent jurisdiction.'*

The words ''the bond," being omitted in the old statute
against bigamy, it was held that a divorce i mensA et thoro fell
within the exception as well as a divorce & vinculo, 1 HeUe^ 694;
S Inst^ 694; Cro. Car. 461. This lenient construction, pro-
perly said by Sir E. East to be beside the reason and justice of
the case, is now put an end to, by the insertion of the above
words in the later statute.

In a charge of bigamy under the provisions of the old statute,
it was held, in the case of R. v. LoUy^ R. ^ R. C. C. 237, that
a marriage contracted in England could not be divorced d virn
culo by a foreign jurisdiction ; the English law not admitting
such divorce, which could only be obtained by means of an act
of parliament. Ante, 323, 349.

This decision was acted upon in a case of a divorce, d
vinculo, pronounced by a foreign jurisdiction upon a marriage
between parties who were not domiciled in Scotland, where
the divorce was pronounced. Mr. B. was married to Miss R.
in England, in 1810, and divorced & vinculo, in the commissory
court of Edinburgh in 1823, and married asain in Edin-
burgh in 1824, according to the ceremonies of the church of
England, the first wife living; it was decided that the par-
ties to the first marriage not having at any time been do-
miciled in Scotland, the divorce there had no efiect, and the
second marriage was null and void. Beazley v. BeoMley,
3 Hag* 639, vieL this case fully given, ante, 350. But such a
divorce between parties who had a bond fide domicile in Scot-
landy was held valid, on appeal from the commissaries court in
Scotland, that law permitting a divorce a vinculo, Warrender
V. Warrender, 2 CL % Fin. The anomalies arising out of such
a conflict of laws are pointed at in that case. Vid, post.

In a case before Sir G. Lee, where a second marriage was
declared null by reason of an existing former marriage, alimony
was asked, but refused, though it was admitted that the case
was a compassionate one. 1 Lee, 621.

As to the operation of the retrospective clause, 3 Geo. 4,
c. 75, s. 1 , controlled by s. 3, as to second marriages, con-
tracted under a belief of the nullity of the former marriage.
2B.^Ad.926', ante, 547, and R. v. WauUey, 1 Moo. C. C.
163 ; pott, 559 a.

In all cases where an existing marriage has been proved, and Evidence.
a dissolution prayed, great care is to be applied to prevent
deception and collusion, and therefore the court, by analogy to
cases of adultery, will not act on the bare confessions of the
parties, but will require independent proof; and with regard to

556

Void.
Bigtmy.

Congan-
guinity or
affinity in
marriageg
contracted^
since 31ft
Anguit
1835.

identity upon a decree of confrontation, will expect that the
offending party should be confronted with witnesses who knew
him or her in both characters, (f. e. cohabiting under each
marriage,) so that two or more witnesses could separately iden*
tify her in each. Searle t* Pricey 2 Hag. Con* 187, anief 830,
410. In that case, which was a suit of nullity against a wife, the
court allowed the evidence of the first husband to be read, de
bene esse^ resenrinff the objection to it. In all cases, as
courts of justice will not presume crime, the party suggesting
that the husband of a previous marriage is alive, must prove
that fact.

In a suit for nullity of a second marriage it is competent to
a party to set up the nullity of the first marriage in bar to such
suit, although he has already been convicted of biffamy in
respect of such second marriace. Bruce v. Buries 2 Add* 471.
A conviction of bigamy is evidence in the ecclesiastical court,
but not conclusive evidence, of the nullity of the second marriage.
WiUehuon v. Gardotif ib. 161, which latter case was not a suit
of nullity, but for revoking letters of administration granted to
Gordon as husband of the deceased, and whether he was lawful
husband or not was one of the issues in the case.

Previously (a) to the 5^6 Wm. 4« c. 54, a marriage between
persons relat^l by consanguinity or affinity, was held to be in-
cestuous, but the disability was considered as a canmiical im-
pediment only, and as sucn, making the marriage voidable, and
not absolutely void ; much curious learning is to be feund in
the older writers on this subject, but the late statute premising
that it was unreasonable that the state and condition of the
children of marriages between persons within the prohibited
degrees of affinity, should remain unsettled, and that such mar>
riages should for the future, be ipso facto void, and not merely
voidable. Enacts by «. I.

^'That marriages celebrated before the passing that act
being within the prohibited degrees of qfiSnity^ shall not
hereafter be annulled for that cause, by any sentence of the
ecclesiastical court, unless pronounced in a suit which shall
be depending at the time of passing the act.*' (Slst August,
1885.)

By an express provision at the end of the section, the retro*

(a) This act is said to have restored the old common law, by which these
marriages were treated as absolutely void ; for it was the interference of
the common law courts, which, in such cases, prohibited the spiritual
courts from bastardizing the issue, afler the death of one of the parties,
that created the unnatural distinction of voidable and void. 1 Curt,
188, 199.

iMarriasr^ ^7

spective operation is limited to cmos of affinkyf and does not ^^'

extend to marriages voidable for conaangutnity*. Coatao.

By s. 2, it is enacted. That all marriages which shall ^^^\l
hereafter be celebrated between persons within the prohibited ma^iagm
degrees of consanguinity or affinity, shall be absolutely null and ooDtncted,
void to ail intents and purposes whatever. af^^f

The effect of this statu te, therefore, is to legalise all marriages |g^ ^^
voidable by reason of affinity, contracted before the 3 1st August,
18S5, in which no suit was at the time pending in any ecclesiastical
court

To leave all marriages voidable for consanguinity in the
same condition they were before passing the act ; and to render
all marriages of both descriptions absolutely void for the future.

But marriages still voidable for consanguinity can only be
annulled during the lives of both the parties. 2 PhiU. 10«

The Stat. Sk Hen. 8, c. 88 in its preamblci reciting the
inconveniences which had arisen by reason of other prohibi-
tions than God's law admitted, and of the dispensations which
the court of Rome had always reserved to itself, as in kindred
and affinity, between cousins german, &c., proceeds to enact
that all persons are lawful to marry that are not prohibited
by Gh>d*s law, and that no reservation or prohibition, (God*s
law only except,) shall trouble or impeach any marriage with-
out the levitical degrees.

The impediments to marriage, on the ground of con-
sanguinity or affinity, are defined according to the letter
and spirit of the levitical law, and the degrees within which it
is prohibited by the canon law of England, '* to contract or
make marriage," are set forth in a table called Archbishop
Parkers Table, referred to in the Canons of 1603, copies
of which are found in the book of Common Prayer, and hung
up in churches, which declares that *'all marriages made
'* and contracted within those degrees shall be adjudged
" incestuous and unlawful, consequently shall be dissolved aa
" void from the beginning, and the parties so married shall by
*' course of law be separated." It seems that a person is to be Prohibition
restrained from marriage with illegitimate relations, as much as f|^^||^|^
with legitimate ones, l^cause the rules of prohibition of mar- relations.
riage arise out of natural relationship. 1 Hag. Con. 35S. For
the punishment of incest. Vid. " PenanceJ'

In cases of incest there are two modes of proceeding, one, ^JIS^^
civil, the other criminal ; (a) in the first, the dissolution of the ^^

—__-----—---—---—--------— -—-_^--------—----_----^— —-—---—------— -———— Criminal.

(d) Although tke statute has prohibited the ecclesiastical courts from
annnUing marriages for affinity contracted before the Slst August
1 835, yet I am by no means prepared to say that the parties may not

558 iHarriagt^

^'^' /actum of marriage^ is the direct and immediate object, and it

Conian- Can only be prosecuted either by one of the parties themselyes,
guinity and or by some one who has an interest in the dissolution of the
l^!^!!^ prohibited contract. I PhiU. 855. The effect of the sentence

since r 1 1 ,

3Ut March 18 Only to annul the marriage.

1835. The criminal proceeding is a cause of office, and may be pro-

Marriage moted by any person, every one having an interest in putting an
disMived, end to that which is a public scandal ; 1 Hag. Can. 386 ; ik
^^^^^^^ 414, mno^; 1 Curt. 184; if in the course of the evidence, a
criminaL marriage appears, or is proved, though all the proceedings are
inpoBnamf the court will pronounce the marriage null and void
in the first instance, and then sentence the parties to penance.
2 PhiU. 859; 1 Hag. Con. 884; 1 Curt. 84.
ProTinons The cases in which marriages are now made void for non-
of marriage compliance with the provisions of the marriage acts, are com-
^^' paratively few; it is to be observed, however, that as the

retrospective clauses of the 8 Geo. 4, c. 75, only apply to mar-
riages by license, and as there is nothing in that nor in any
other act which renders valid marriages, which are void by
reason of an insufficient publication of banns under 26 Geo. 2p
c. 83, that ground of avoiding a marriage remains as it was be-
fore the passing the late act. R. v. 'Hpshelfy \ B.ts Ad. 194,
ante.
Marriages The following heads comprise the provisions by which
4^60^4°^^ marriages were rendered void previously to the passing the
€.76. 4 Geo. 4, c. 76.

I7ii</«eti»6/«ca^iofio/*6<>n/t#. All marriages contracted between

the ^5th March, 1754, the day when the 26 Geo. 2, c. S&t came
into operation, and the 1st September, 1822, when the 8 Geo. 4,
c. 75, took effect, are void, if the banns were unduly published.
As to what amounts to undue publication under the provisions
of the 26 Geo. 2, c. 33, vid. ante. No marriage by banns cele-
brated during the interval that the 3 Geo. 4, c. 75, was in
operation, vix.^ between the 1st of September, 1822, and the
Ist of November, 1828, when the provisions of the 4 Geo. 4,
r. 76, took effect, is subject to be avoided for undue publication
of banns, vid. ante.

After dissent to banns. All marriages, where one of the
parties was a minor, celebrated by banns, after a parent or
guardian, &c. had publicly declared his dbsent thereto, in the
mode prescribed by the 26 Geo. 3, c. S3, s. 3, at the time of

be punished by the ecclesiastical law for the incest, though the validity
of the marriage cannot be called in question, for the enacting part of the
act does not make these marriages good and valid to all intents and
purposes. Per Sir H. Jenner^ Ray v. Sherwood^ 1 Curi, 199, 201.

the publication of the banns for guch marriage, between the Y^

25th March, 17549 and the Ist November , 1828, are void, such Provisioiit
publication of banns being "absolutely void" by the above o^'oiftrriage
section of the 26 Geo. 2, c. 33, and the retrospective clauses of ^^^
the 3 Geo, 4, c. 75, not applying to such a case.

Solemnized in some other fdace t/ian in a church or public
chapel. All marriages between the 25th March, 1754, and
the 1st November, 1823, not celebrated in a church or public
chapel where banns have been usually published ; or by the
exceptions in 2 1 Geo. 3, c. 53 ; 44 Geo. 8, c. 77 ; and 48 Geo. 3,
c. 121 \ in churches or chapels not duly coneecraied, are de-
clared to be void by the 26 Geo. 2, c. 33, e. 8, and are not
affected by the 3 Geo. 4, c. 75. The first act, by «. 1, re-
quired further that where the marriage was by banns it should
be celebrated in one of the churches where the banns were
published, but Sir J. Nicholl, in StcMwood v. Tredgear,
2 PhiU. 289, treats that provision as merely directory, as it cer-
tainly seems to be. (a)

(a) There is an apparent ambiguity as to the time at which the dif-
ferent provisions of the 3 Geo. 4, c. 75, came into operation. That
act, hy a. 1, repealed the 11th sect, of the 26 Oeo. 2, e. 33 ; and the 2,
3, 4, 5, 6, and 7th sections were directed with certain limitations to have
a retrospective effect in rendering valid the marriages of minors without
consent of parents or guardians, which were rendered null by the re-
pealed section of the 26 Geo. 2, c. 33 ; other sections were directed to
the making fresh provisions for marriages by licenses and banns ; it
was provided that all these new provisions were to take effect from the
1 tt of September, 1822, but no special time being fixed for the operation
of the repealing and retrospective clauses, they took effect from the day on
which the statute received the royal assent, which was on the 22d of July,
1822. Therefore, it was held in /?.v. WauOey, \ Moody, C. C. 163, by all
the judges, that the marriage of a minor, by license, without the consent
of parents, on the 30th of August, 1832, was a valid marriage, and the
prisoner was convicted of bigamy for contracting a subsequent marriage
on the 15th February, 1827, the husband of the first marriage being
alive at the time of the second marriage ; for although the general pro-
visions of the 26 Geo, 2, c. 33, with regard to licenses, were not in any
way repealed by the 3 Geo. 4, c. 76, and consequently continued in
operation (except so far as they were superseded by the subsequent
provisions of the later statute, which provisions came into operation on
the Ist of September); yet these being only directory the marriage
would not be avoided by a neglect to adhere to them, when the nullifying
clause was repealed.

The 4 Geo. 4, c. 76, repealed so much of the 26 Geo. 2, c 33, as was
left unrepealed by the 3 Geo, 4, c. 75 ; and the 4 Geo. 4, c. 76, repealed
some of the provisions of the 3 Geo. 4, c. 75, but did not repeal the
3 Geo. 4, c. 75, itself. The 4 Geo. 4, c. 76, though it received the

560 iMamaffe*

Vo»<i« License insufficieni. All marriages celebrated by license*

Non-com- One of the parties being a minor, and not a widow or widower,
pliance without a sufficient license, between the 25th March, 1754, and
^Insor^^* the 1st September, 1822, were declared to be null and void by
marriage the 28 Geo. 2, c. S3, s. II. But such marriages, subject to cer-
acts. tain limitations and exceptions, are declared and rendered valid

by the retrospective provisions of the 3 Geo. 4, c. 75 ; atUe, 545.
4 Geo. 4, With regard to the avoidance of marriages which have been
c.'76. celebrated since the 1st of November, 18S3, the day on which

the 4 Goe. 4, c. 76, came into operation ; they are made void

for the following causes only.

1. Marriages of persons knowingly and wilfully intermar-
rying in any other place than a church or such public
chapel wherein banns may be lawfully published, vicL
5 Geo. 4, c. 82; 6 Geo. 4, c.92; 6^7 Wm. 4, c. 85,
and vid. ante.

2. On knowingly and wilfully intermarrying without pub-

royal assent on the 18th of July, 1823, expressly enacts, by s. 1,
that the repeal of the remainder of the 26 Geo. 2, c. 33, and the
4 Geo. 4, c. 17, shall not take effect till the Ist of November, 1823,
and provides in all its prospective clauses that they shall not come into
operation tUl that day.

With regard to marriages by banns there is some difficulty :
banns unduly published were considered under 26 Geo. 2, c. 33,
ante, as not having been published at all, and consequently, mar-
riages had, under such banns, were held to be void. The 3 Geo. 4,
c. 76, repealed no part of the 26 Geo. 2, c. 33, except the 11th sect,
making marriages of minors without consent void ; but with regard
to the publication of banns made fresh provisions, which super-
seded the provisions of the previous act. The 2 Ist section of the
3 Geo. 4, c. 75, enacted " that all and every the clauses and pro-
visions of this act, touching the publication of banns, of matrimony, and
touching marriages solemnized by such banns shaU commence and have
effect from the Ist day of September, 1822, and not before." Bat the
19th section provided '* that after the solemnization oiany marriage,
under a publication by banns, &c., such marriage shall be deemed good
and valid to all intents and purposes, notwithstanding fals^ names or a
&lse name assumed by either or both the said parties, in the publication
of banns, or at the time of the solemnization of such marriage." The
generality of these words would seem to lead to the conclusion that they
applied to all marriages by banns after the day of passing the act, the
22d of July, 1822, and were not limited to marriages by banns under
the provisions of the act, and which did not come into operation till
the Ist of September; but from the effect of the 19th section, as
well as upon * the construction of the act itself, it would seem that
marriages by banns before the 2 1 st of September, 1822, depend entirely
upon the 26 Geo. 2, c. 33, and are not affected by the 3 Geo. 4, c. 75.

£H&rruiSt. 561

lication of banns (and vid. g. 8, rendering the publication Void.

of banna of a minor void after open and public dissent of Non-com-

parent or guardian at time of publication) ante. pliance

3. Or, knowingly and wilfully intermarrying without a ^^}^ P'®:
license from a person or persons having authority to marriage
grant the same. acta.

4. Or, shall knowingly and wilfully consent to, or acquiesce
in, the solemnization of such marriage by any person not
being in holy orders.

3. By 6 ^ 7 IF. 4, e. 85, s. 4^, after the last day of June,
1837, (a) marriages, of persons knowingly and wilfully inter-
marrying under the provisions of that act, in any other place
than

1. The church, registered building, office or other place,
specified in the notice and certificate.

2. Or, without due notice to the superintendent registrar.

3. Or, without certificate duly issued.

4. Or, without license, in case a license is necessary
under that act.

5. Or, in the absence of a registrar or superintendent re-
gistrar where his presence is necessary under that
act,

Are, by sect. 40, declared to be null and void, '^ except in
any case hereinfifter excepted ;" the above section however is
the last but three in the statute, and those sections that follow
are quite foreign to any ** exception," so that it is not easy to
understand to what the above words point; it seems they point
to nothing and have no meaning whatever.

A physical incapacity to consummate marriage existing in Voidable,
either of the parties to it, is a ground for annulling the con- impotency.
tract. Where the defect is palpable it is called impotency,
where not, it is termed frigidity. By the Canon law, where a
case of impotency or frigidity, not accidental, but natural and
incurable, was established, the matrimony was declared never
to have been a matrimony. GodoL Ab. 493 ; 3 PMU. 328 ;
2 Hag, Con. 322. Real defects of this nature are not very
common in males, and still more uncommon in females ; where
they do exist, parties will generally be discreet enough to ab-

(a) By the 6 4r 7 fV. 4,c. S5, 3,\, it was provided that that act
should take effisct from the Ist of March, 18d7t but by the 7 W. 4, c, ) ,
reciting that it was expedient that its operation should be farther
delayed, enacted that that act should be construed as if t^e words the
** last day of June*' had been inserted in the said act, instead of the
" first day of March," in every place where these last mentioned words
were found in the said act.

o o

5(52

iHaiTiaffe*

Voidable.

I m potency
or frigidity.

Frigidity.

Triennial
cohabita-
tion not re-
quired
where
defect
palpable.

Delay of
complainL

Ai^e of

parries.

lotpectioD,

stain from marriage altogether, or where marriage may have
been contracted in ignorance of the defect, many reasons may
exist for abstaining from a disclosure. 2 Hag. Con. 321.
But as upon entering into a contract of marriage the law
implies an undertaking in both of the parties to it, that they are
capable of consummating that contract ; when, it appears that
either of the parties is incapable, it is a legal fraud upon the
other^ the original contract is nullified^ and the marriage void-
able. In cases of frigidity, in which, according to tlie maxim
of law, a man may be said to be habiUs et inhabtUs dwersis
iemporibuSf the court will require that there should have been a
triennialis cohabiiaiio ; and, therefore, where parties have ap-
plied to the court within that period, they have been enjoined to
return to further cohabitation. Weldy. WeU, 2 Cee^ 576,
578 ; Dick v. Dick^ Poynier on Marriage , 1S5.

Where, however^ the defect is palpable, and can be as-
certained at once, such a trial is not required, 2 Phill. 10;
3 Do. 3^; in such a case any unnecessary delay in ap-
plying for relief would, it seems, furnish a ground to the court
to doubt the sincerity of the application. 2 Hag. Con. 330.
A delay of seven years in the case of mal-formation, where
the defect was palpable, has been considered as almost a
bar to such proceeding ; Guest v. Guest, 2 Hag. Con. 323 ;
3 PhilL 159; and a delay of even sixteen months has occa-
sioned suspicion* lb. 330. In both these cases the proceeding
originated with the husband. In the case of a wife applying,
greater indulgence is conceded, on account of the innate deli*
cacy of her sex. Her patient endurance of injury is rarely
allowed to be set up as a bar to her legal remedy. PoUard v.
Wyboum^ 1 H€ig. 125. In this last case the marriage had con-
tinued for eleven years before application for relief.

The ages of the parties have also frequently been taken into
consideration by the court, and have indisposed it to entertain
the complaint. In the cases of young persons the injury is
greater. In age more advanced, especially if a man marries a
woman beyond the ordinary age of child-bearing, the primary
and most legitimate object of wedlock, he should be content to
take her tanquam soror. Besides, in advanced age the mode of
inquiry is less conclusive and more abhorrent to the feelings of
the party exposed to it. Brown ▼• Brown, 1 Hag. 524 ; 2 Hag.
Con. 328, 330. But if a man marries a widow, it is no estoppel
to his complaint that the former husband was silent, who might
have had peculiar reasons for his forbearance, although it cer-
tainly furnishes a presumption against the complaint itself.
lb. 327.

The usual mode of proof in these cases is by inspection, by
persons appointed by the court. 2 Hag. Con. 329 ; 2 Phill. 10;

URnttiHqt* 563

and t?«rf. opinion of Sir W. Wynne ^ 3 PhilL 14S, in notis; Voidable.
ib. 154, 155. But, though usual, it is not absolutely necessar;^, impotency
especially when the party complained of has withdrawn himself ^r frigidity.
beyond the reach of the process of the court ; 1 Hag. 728 ; nor
is it alone sufficient, for there appears to haye been no case
where the sentence has proceeded solely on the report of the
inspectors; 3 PhilL 160; sed vid. 2 PhiU. 102; and indeed
this species of proof, even as collateral, is always received with
caution. lb* Where the woman is the applicant, and was not
a widow at her marriage, the court usually expects a certificate,
that she is virgo iniacta et apta viro. 3 PhilL 155, 160;
1 Hag. 726 ; 2 Lee, 580.

The admissions of the party to medical men are evidence ; Admissions
and if made long anterior to the institution of the suit, would be o^^he
free from suspicion of collusion. I Hag. 728 ; 2 Lee^ 585. So P*'^*^'
also his description of his condition to the inspectors appointed
by the court, if from the general aspect of the case there was
no reason to suspect its sincerity. 2 PhilL 10. In giving their
certificate, the medical men are not required to give their
reasons, in the first place cuilibet in arte sud credendum est, and,
secondly, the court is not competent to decide on the reasons,
and to determine between conflicting opinions. 1 Hag. 728.

The defect complained of must have existed at the time of Defects su-
marriase. If it has supervened through accident, ill health, or P«^vening
advancmg years, as it may to the most vigorous constitution, it riage.
does not afford a 8u4)ject for legal relief. 2 Hag. Con. 331* It
must also in its nature, or from the state of health of the party,
be incurable. 2 PhiU. 10 ; 1 Hag. 523.

The certificate of medical persons is required, where pos- certificme
sible. 1 Hag. Con. 728. If the parties lay together in one of medical
bed for several years, and the woman is certified to be intacta *"*"•
virgo, there cannot be a stronger presumption that impotency
existed, and that it was incurable, lb. Inspection has been
refused until there has been a triennial cohabitation. 2 Lee, 576.

Although in these cases the woman is more frequently the Either party
complainant, yet the suit may be instituted by either party ; but may rom-
it was decided in a recent case, notwithstanding some autho- P***°-
rities to the contrary, that a man is not at liberty to plead his
own impotency for the purpose of annulling a marriage, espe- But a man
cially after seven years* cohabitation ; and especially in a case may not
where the wife was said to be pregnant, so that the sentence P*^^^. ^*'
might have the effect of bastardizing the issue. Norton v. Seion, t^cy. ^'
3 PhiU. 147; ib. 330. If a man be libelled for adultery, and
do not then controvert the marriage on the ground of mal-for-
mation of the wife, as he well might, but admit the marriage,
lie cannot afterwards bring a substantive charge against his wife

o o 2

5G4

itlarriasr.

Voidable.

[ri potency
or frigidity.

Collusion.

Libel.

Triennial it
cohahitatio*

Force.

Fraud.

on the ground of impotence. In Ouest v. Guest^ 2 Hag,
Con. 321 ; a suit so circumstanced was dismissed with costs.

In cases of this nature the court is very cautious, if collusion
be reasonably suspected ; but it cannot suspect collusion without
facts to raise such a presumption. 1 Hag. 726 ; 2 Mod. 1 15.

In a cause of nullity of marriage on account ofim potency, the
charges of frigidity and absolute incapacity may be pleaded in
the same libel; 2 Lee, 578; but a man cannot plead his own
impotency. 3 Phill. 147, 330. The age of the parties should
be set forth, as it is a material allegation. 2 Hag. Con. 328.

A triennial cohabitation does not require a living together
de die in diem, but a general cohabiting only, such as is usual
between married persons ; nor is it necessary to state specially
where, and how long at each place they cohabited, for that is
proper for a plea on the other side. 2 Lee, 579. Where par-
ties have been married three years, but a greater part of that
time absent from each other, a triennial cohabitation is so requi-
site, that if the parties are necessarily absent, the man b
to be restored to that time during which he has been absent.
lb. 585 b.

A marriage contracted under restraint, and by means of force
and custody, (a) is altogether void. Harford v. Morris, 2 Hag.
Con. 436 (6).

So also a marriage produced by trick or contrivance, fraud
or deception, so that the necessary consent was not given ;
but see R. v. Edwards, \ Boit. 334 ; R. v. Birmingham^ 8 B.
§• C. 29.

So also where there is considerable weakness of mind, circum-
vented by proportionate fraud, the marriage will be vitiated ;
for a person incapable from weakness of detecting fraud and
of resisting the ascendancy practised in obtaining his consent to

(a) It was said by Ix)rd Stowell^ " The contract must not be extorted
" by force or fraud. It must be deliberate, serious, the ani$nus eontra-
" hentium must be regarded.*' 2 Htig. Con. 104.

{b) With regard to the case of Harford v. Morris, it is stated in a
note to that case, 2 Hag. Con. 436, that Sir W. Wynne, in giving judg-
ment in Frost v. Bowerman, Arches, 1790, said that, when Harford v.
Morris was before the delegates, the judges desired the counsel to con-
sider whether the marriage might not be declared void on the grouii? ilf
force and custody ; that point was argued by the court, and it is well
known that the decision passed ultimately on that principle. But in the
case of Portsmouth v. Portsmouth, 1 Hag. 359, Sir J. NichoU speaking
of Harford v. Morris, said that the case was decided principally on the
ground of fraud.

€4

iWarriaja^t^ 565

the contract^ can hardly be considered as binding himself, in Voidable.
point of law, by such an act. 1 Hag. 359 ; sed vid. R. v. fVai- '
son, 1 H'ils. 41.

"With regard to a marriage procured by conspiracy, Lord conspi-
Stawett made the following observations in the case of Sullivan racy.
V. Sullivan, 3 Hag. Con. 238 : *' I will not lay down that in no
** possible case can a marriage be set aside on the ground of
having been effected by conspiracy ; suppose three or four
persons were to combine to enect such a purpose by intoxi-
cating another, and marrying him in that state of mind. This
'* court would not hesitate to annul a marriage, on clear proof
" of such a cause connected with such an effect. Not many
other causes occur to me in which the co-operation of other
persons to produce a marriage can be so considered, if the
party was not in a state of disability, natural or artificial,
'* which created a want of reason or volition, amounting to an
" incapacity to consent."

But marriages procured by force or threats, or other impro- SnbMciueDt
per and illegal means, are only voidable and would still be good, cohabita-
till set aside by a court of competent jurisdiction ; and when
the fear is done away and the party restored to his free agency,
if be or she continue cohabitation voluntarily, the marriage can-
not be invalidated. Ayliffe says, '' This rear may be purged
'' and done away by a spontaneous cohabitation, for so long a
** time as that the cause of such fear may be presumed to cease,
** and to be destroyed thereby, and a spontaneous consent
** added in its room.** Parer. 361.

Error has been divided by the Canonists into four sorts : error ^^^^^
personcBy contUtioniSy forty nee , qualitatit. Ayl. Parer. 362.

1. Error per soncB. It is difficult to imagine how a person [q identity.
intending to marry A. could, without fraud, marry B.; but if the

fact could be established, it is apprehended that such a marriage
would be invalid. 3 Add. 282 ; Ayl. Parer. 362.

2. Error fortuncBy or conditionis, or qualitatis. Error about iq fortune.
the condition, the family, or the fortune of the individual,
though produced by disingenuous representations, does not at

all aflFect the validity of marriage. A man, who means to act
upon such representations, should verify them by his own in-
quiries. The law presumes that he uses due caution in a mat-
ter in which the happiness of life is so materially involved ; and
it makes no provision for a blind credulity, however it may have
been produced. 1 Phill. 137; 2 Hag. Con. 180.

3. The same rule of law, it is apprehended, applies to the in rank.
error gualitatis, where a man, thinking to marry a chaste woman,
discovers her to be the contrary, caveat suitor.

It has been decided that ante-nuptial incontinence cannot
lay the foundation for divorce by reason of adultery. 1 Add. 1 ;

566

;^8aiTuig:t*

VoUlabU.

ConMn-
guinity.

Marriage
contracted
before
1835.

Pioceed'
ings in

1 Phill. 137 ; 2 Phill. 127. The Canon law, so far from re-
scinding a marriage with a strumpet, considered it as an act of
charity, and meritorious.

We have seen above that marriages contracted etfier the
31st August, 1835, the day of passing the 5 4r 6 W. \ c. 54,
in which the parties are within the prohibited degrees of con-
sanguinity or affinity are absolutely void. The prohibition,
as noticed above, extends to illegitimate as well as legitimate
relationship. 1 H(ig. Con. 352, ante.

The retrospective provision of the act does not apply to marriages
voidable for consanguinity contracted before the 31st August,
1835, these are stillsubject to the jurisdiction of the ecclesias-
tical courts, and may still be declared to be null by sentence
of those court^. With respect to such suits, none can proceed
in them unless they have some interest; for, when a suit
is not ad publicam vindictam, it must some way or other
be for the interest of the party concerned who brings it. It haa
been said that a slight interest is sufficient to give a party a title
to institute proceedings. 1 PhilL 355, ante, 481. The question
what is a sufficient interest has been much agitated lately.
In the case of Ray v. Sherwood, 1 Curt. 1 73, it was held by
the judge of the consistory court that an interest arising from
a possible and contingent case of intestacy was not sufficient ;
and that a father, in respect of his parental rights merely, had
not a sufficient interest to institute a suit for the purpose of
annulling the marriage of his daughter when of age. Upon
appeal to the Arches, this decision was reversed, the judge of
that court saying that he was not disposed to decide the case
on the narrow ground that the father bad an interest of a pecu-
niary nature, viz. the expectation of succeeding to his dauff nter*s
property, if she should die a spinster and intestate, thougu that
mignt be an ingredient ; added, *' My decision is founded
** on a combination of the various duties, rights, and interests
** which distinguish the relation between parent and child from
" that, which exists between any other mdividuals whatever ;*'
and held that a father had a sufficient interest in the legitimacy
or illegitimacy of the issue of his daughter, to maintain a suit for
annulling her marriage.

But although in a civil proceeding it is necessary to show an
interest which the party has in procuring a declaration of nul-
lity by a court of competent jurisdiction, it is competent for a
court to pronounce such judgment in a criminal proceeding.
This question was considered in the recent case of ChicJt v.
Ramsdale, 1 Curt. 34, which was a criminal proceeding insti-
tuted by Ann Chick against Mathias Ramsdale and Joan Chick.
The counsel for the promoter prayed the court to assign the

itOiniR^. 567

parties the usual penance, and also to pronounce the marriage Voidable.
null and void. To this it was answered^ that the parties by the
citation were merely called on to answer a suit for incest, that g^jott^.'
to ingraft on such a citation a sentence of nullity of marriage, ji^arrian
bastardizing the issue, was tantamount to permitting the party before
to proceed in a civil suit without the necessary proof of interest. ^8^5.
The court. Dr. Lushington, referring to the cases of Blackmore
^ Thorpe V. Brider^ 2 Phill. 259 ; and Cleaver v. fVoodridge,
2 Phill, 262^ note, said, " As there is no proof that these cases
'' were determined without sufficient consideration, although I
" still entertain some doubts upon the point, I must consider
'* them binding as precedents on this court. I, therefore, pro-
nounce this marriage null and void, and direct the parties to
perform the usual penance.'*
By 4 Geo. 4, c. 76, s. 27, re-enacting the previous pro- Pre-coo-
visions of the 26 Geo. 2, c. 33, provided, " that in no case tract.
whatever shall any suit or proceedings be had in any eccle-
siastical court, in order to compel the celebration of any marriage
in fade ecclesia, by reason of any contract of matrimony
whatsoever, whether by verba de prcesenti, or by verba de
/uiuro, any law or usage to the contrary notwithstanding ;
and vid. Str. 937; this statute has been extended to Ireland, by
58 Geo. S, c. 81, s. 3.

9. Forfeitures and punishments of parties engaged in ir- conse-
regular marriages. quences of

The marriage act of 26 Geo. 2, c. 33, called by Blackstone j|,^J["^
** an innovation on our laws and constitution,'' is said by "^"'^^^
Lord Stowellf 2 Hag. Con. 70, " to have swept away the
** whole subject of irregular marriages, together with all
** the learning belonging to it, by establishing the necessity of
'' resorting to a public and regular form, without which the
" relation of husband and wife could not be contracted." An
endeavour has been made above, p, 560, to point out in what cases
a marriage is declared to be voia by the several provisions of
the various marriage acts ; it remains to be seen what punish-
ments, penalties, and forfeitures attach to the parties con-
tracting, or to the ministers celebrating, a marriage contrary
to the forms and modes therein directed. The first marriage
actt ^ Geo. 2, c. 33, declared a marriage contracted without
due publication of banns, without license, or (where one of
the parties was a minor,) without consent of parents or
guardians^ to be absolutely null and void, constituting the
neglect in each case, an '' impedimentum divimens,'' which could
not be got rid of, by shewing that the neglect or mistake was
without fraud and unintentional ; nor could it be purged by length of
time and long cohabitation. 3 Hag. 301 ; 3 PhiU. 39, ante, 545.
The 3 Geo. 4, c. 75, which covers but a small space of time.

568

iMardast*

Conae-
quences of
irregular
marriages.

Punish-
ments and
forfeitures
by 3 Geo. 4,
c. 75.

Banni.

Forfeiture.

By 4 0.4,
c. 76.

and the 4 Geo. 4, c. 76, proceed upon different principlea ; by
the latter act ; no marriage is invalidated unless both parties to
the marriage have knowingly and wilfully married without due
publication of banns or license; whilst those who have procured
a valid marriage by false and fraudulent means, may be deprived
of all pecuniary benefit which they hope to derive from the
connection.

The provisions of the 3 Geo. 4, e. 75, are different from
those of the 4 Geo. 4, c, 76, the first act provides that a
consent, where necessary, should be in writing and be given to
the person by whom the license is to be granted, and verified on
the oath of the party applying, and then by s. 10, enacts, that if
any person knowingly and wilfully shall obtain a license, by
false swearing or by any false instrument, such person shall be
transported for life ; in cases of marriages by banns, an affidavit
of the truth of the facts to be contained in the pubtication of
banns was required to be made by both parties who, if they
swore falsely, might be convicted of perjury ; and if the person
convicted of such offences shall be one of the parties con-
tracting marriage by means of the false license, or if either of
the parties making a false affidavit be convicted of perjury,
such person or persons should forfeit to his majesty, all estate,
right, title, interest, profit, and advantage which such person
may derive, or be entitled to, by virtue of such marriage ; but
s. 15 provides, that after solemnization by license, it shall not
be lawful to impeach or invalidate any such marriage on the
ground that any of the forms, necessary to entitle parties to
receive a license, have been neglected or insufficiently executed ;
nor on the ground of any defect in the affidavit ; or that the
true names were not used in the publication of banns.

The 4 Geo. 4, e. 76, by s. 23, enacts, that if any vaUd mar«
riage by license shall be procured by a party to such marriage,
between two persons, one of whom is a minor, and contrary to
the provisions of that act, by means of such party falsely
swearinff to any matter, to which such party is therein-before
personally required to swear to ; or between persons, one of
whom is a minor, &c., such party knowing that such person
was under twenty-one years, and had a parent or guardian
living, and that such marriage was had without the consent of
such parent or guardian, and knowing that banns as required
by the act, had not been duly published, and having knowingly
caused or procured the undue publication of the banns, such
party may be (a) sued at the instance of a parent or guardian.

(a) There are no words in this statute rendering the marriage of a
Oiinor wubout consent void ; and it was decided in B. v. Ptrminghaim^

iMarrtase. 569

whose consent has not been given, for a forfeiture of all estate, Conae-
right, title, and interest in any property which hath accrued or JIJ^^^®'
shall accrue to the party so oflTending by force of such marriage, marriages.

and the court has power to secure such estate for the benefit of — —:

the injured party, or of the issue ; and if both the parties in the ^v Vg!'4,
judgment of the court shall be guilty of any such offence, the €."76.
court may settle the property for the benefit of the issue, &c.
The proceedings are directed to be by information by the
attorney general, who must be satisfied, on oath, of the sufficiency
of the grounds of proceeding, and that the party desirous to

Iiroceed had not discovered that the marriage had been so-
emnized above three months previous to such application.

And by s. S5, it is further provided that such information informa.
must be filed within one year of the solemnization of such (ion withia
marriage, and be prosecuted with due diligence ; and in case ^°^ ^^"'
any person or necessary party to the information shall abscond,
or be, or continue out of England, the court may order such
person to appear and answer the information within such time
as the court shall think fit, and cause such order to be served on
such person at any place out of England, or to be inserted in the
London Gazette^ or such other British or foreign newspaper,
as to the court shall seem proper; and in default of such person
answering within the time limited, to order such information to
hz taken as confessed, and to make such order as may seem
meet, as if such person had appeared to such information.
And further, that if the person at whose relation the suit was
instituted, should die pending the suit, the court may appoint
proper persons at whose relation the suit may be continued.

And by s. 24, all agreements, settlements, and deeds entered Settl«iD«nu
into, in consequence of, or in relation to the marriage, in respect ^°'^*
of which such iuforroation shall be filed, so far as the same shall
be contrary to, or inconsistent with, any provision made by the
court, as contemplated and provided for by the former section,
are declared to be absolutely void, and of no force and effect.

By 6 ^ 7 FFm. 4, c. 85, s. 43, if any valid marriage be had 6 & 7 W. 4,
under the provisions of that act, by means of any " wilfully c. Sd.
false notice, certificate, or declaration, made by either party
to such marriage, as to any matter to which such notice, cer-
tificate, or declaration** is therein required. The attorney, or
solicitor general may sue for a forfeiture, *^ and the proceedings
thereupon^ and consequences thereof^ shall be the same as are
provided in the like case, with regard to marriages solemnized

S B, ^ C. 29, that in the case of the marriage of a minor without the
consent of his father, who was living, such marriage was valid, the pro-
visions respectiDg consent being directory only.

570 iHamagt*

CoDsa- by license^ before the passing of this act, according to the ritea
m^Z""^ of the church of England." Embodying therefore the pro-
marriages, visions of the 4 Geo. 4, c. 76, to the extent of the forfeitures

~~: enacted by that statute, and applying them to the cases

hystiT^ pointed at by the 6 4r 7 Wm. 4, c. §5, and adopting also
w.4,c.8S. the proceedings provided by the former act to carry its own
objects into execution.

Besides these pecuniary losses attaching to the parties con-
tracting marriage in contravention of the marriage laws, parties
engaged in such transactions are subjected to ecclesiastical cen-
sures and criminal punishments, (a)
PuQuh- By 4 Geo* 4, c. 76^ s. 89 ministers are not punishable by eccle-

mrats by stastical censures for solemnizing marriages between minors,
c. 7*6.' after banns published, unless they have notice of dissent, which
dissent must be openly and publicly declared at time of publi-
cation. But, as said by the court, supposing the minister, after
notice of dissent, proceed to solemnization, he would clearly not
be exempt from ecclesiastical censures, nor fr^m transportation.
1 Curt. 82.
By s. 21, persons solemnizing matrimony in any other place
than a church or chapel, &c.
or, at any other time than between eight and twelve in the

forenoon,
or, without due publication of banns, except where a license

has been granted ;
or, falsely pretending to be in holy orders, solemnizing mar-
riage according to the rights of the church of England.
Every such person knowingly and wilfully so offending, and
being lawfully convicted thereof, shall be deemed and
adjudged guilty of felony, and shall be transported for
the space of fourteen years, according to the laws in
force for the transportation of felons, provided that all
prosecutions for such felony shall be commenced within
the space of three years after the offence committed.
By 6 ^ 7 Wm. 4, c. 85, s. 38,

Every person who shall knowingly and wilfully

(a) In the case of Wynn v. Davies and Weever^ 1 Curt. 69, the
principal offence charged was publishing the banns of, and marrying per-
sons not resident within the parish. It was objected, that the offence im-
puted, if a violation of law at all, was not cognizable in the ecclesiastical
courts ; and if it was, the jurisdiction had been taken away by subsequent
statutes, which have enacted that the knowingly and wilfully solemnizing
marriages without publication of banns or license shall be a felony ; but
the court held that it was always a canonical offence, and that the eccle-
siastical jurisdiction was not tidcen-away.

iHarrtagt. 57 1

make any false declaration ; Coose-

or, sign any false notice or certificate as required by the act, ,^"2?^®'
for the purpose of procuring marriage ; mamagoB.

or, who shall forbid the issue of a certificate by falsely repre- p^^^- —

senting himself to be a person whose consent to such mar- meats by
riage is required by law, knowing such representation to 6&7 W.4,
be false, shall suffer the penalties of perjury. ^' ^'

By s, 39, Every person who shall knowingly and wilfully
solemnize marriage in England except by special license
in any other place than in a

church or chapel, in which marriages may be
solemnized according to the rites of the church
of England ;
or, than the registered building or office specified

in the notice and certificate,
(marriages between two Quakers or two Jews
excepted.)
Every person, who, in any such building or office, shall
knowingly and wilfully solemnize any marriage

in the absence of the registrar of the district

in which such registered building or office is

situated ;

or, within twenty-one days after entry of notice to

the superintendent registrar (except by license),

or, within seven days after such entry, if the

marriage is by license ;
or, after three calendar months after such entry,
shall be guilty of felony.
And in order to prevent improper conduct on the part of the l Vtc.c.22.
superintendent registrar, it is enacted, by s. 40, corrected and
amended by 1 Vict. c. 22, s. 3,

That every superintendent registrar who shall knowingly and
wilfully issue

any certificate for marriaae after the expiration of three
calendar months after the notice shall have been en-
tered by him ; or,
any certificate for marriage by license, before tlie ex-
piration of seven days after the entry of such no-
tice ; or,
any certificate for marriage, without license, before the
expiration of twenty-one days after the entry of such
notice; or,
any certificate, the issue of which shall have been for-
bidden by a person authorized to forbid the issue of
the registrar's certificate ; or,

who shall knowingly or wilfully register any marriage
declared to be nuQ and void ; or.

572

iMarnas(*

COMS*

qaences of

irre^lar

marriages.

Punish-
menta by
6&7W.4,
c. 76, and
I Vict
c. 22.

False en-
tries in re-
gister book.

6&7W.4,
c. 86.

Destrojfing
or defacing
register
book.

False en-
tries.

False
copies.

Counter-
feitinff seal
ofre^r
office.

any registrar(or superintendent registrar by 1 Vici.c,22),{a)
who shall issue any license after the expiration of three
calendar months, after notice shall have been entered
by the registrar (or the superintendent registrar ;) or,
solemnize in his office any marriage declared to be null
and void,

shall be guilty of felony.
By s. 41, it is enacted, that every prosecution, under that
act, shall be commenced within the space of three years
after the offence committed.
With regard to making, or causing, or procuring, to be
made, any false entry in any marriage register book ;
or making, or causing to be made, any false license of

marriage,
and altering and publishing them as true,
or, destroying any marriage register book ;
It was provided, oy 4 Geo. 4, e. 76, «. 29, that persons so
offending should be transported for life.

This section was repealed by the 1 Wm. 4, c. 66, which, by

ss. SO, 21, and S2, made fresh and extended provisions,
Subiecting the parties, if found guilty, to be transported for
life, or for seven years, or to be imprisoned for any term,
not exceeding four years, nor less than two years.
The 6 If 7 Wm. 4, c. 86, by s. 43, enacts, that any person who
shall wilfully destroy or injure, or cause to be destroyed or
injured, any register book, or any part or certified copy
thereof,
or, falsely make, or counterfeit, or cause to be falsely made,
or counterfeited, any part of such register book, or certified
copy thereof;
or, snail wilfully insert, or cause to be inserted, in any re-
gister book or certified copy thereof,
any false entry of any marriage,
or, shall wilfully give any false certificate, or shall certify any

writing to be a copy or extract of any register book,
knowing the same to be false in any part thereof,
or shall forge or counterfeit the seal of the register office,
shall be guilty of felony.

(0) By the first act, the 6 ^ 7 Wm, 4, c. 65, this offence was limited
to the issue of a license by a registrar, after the expiration of three
calendar months afler notice shall have been entered with the r^strar,
and to the solemnization of any marriage by a registrar, declared
to be null ; the 1 Vict. c. 22, a, 3, extended both these provisions
to the same acts done by the superintendent registrar, and in the first
case afler notice shall be entered by the superintendent registrar.

iMarriagtt 673

People absent from England, either from necessity or choice, Fore^
may marry in a foreign state, and such marriages, if celebrated ntarnagw.
according to the law of the country, where they are contracted, i^utd.
are legal ; if their validity be questioned, they are to be tried by
the laws of the country where the marriage took place, and not
by the English law. It is of equal consequence to all nations
that one law should prevail on this subject, for infinite mischief
and confusion would ensue, with respect to legitimacy, succes-
sion, and other rights, if the various marriage laws of different
countries were to be observed by the subjects of those
countries, when abroad. All English decisions have therefore
established the principle, that a foreign marriage, valid ac-
cording to the law of the place where celebrated, is good every-
where else, 2 Add. 471 ; 3 Phill. 63 ; 2 Hag. Con. 391 ; ib. 417 ;
10 East, 289 ; 8 Taunt. 830 \ 2 CI. is Fin. 488 ; but they have
not i conoersOf established that marriages of British subjects
not good according to the general law of the place where cele-
brated, are, under all circumstances, to be regarded as invalid
in England. 2 Hag. Con. ^4; pogt/576; though Sanchez seems
to lay down such a doctrine. De Matrim^ ib. 3 ; 2 Hag. Con.
4 1 2. The ecclesiastical courts of this country entertain questions
of foreign marriages, not only of British subjects, but also (to pre*
vent a failure of justice) examine into the validity of the mar-
riages of aliens ; and in considering the factum of a foreign
marriage, it is, in a general sense, quite unimportant whether
the foreign law, whicli is to determine its validity, happens to
be more strict than our own, as in France, are altogether lax
and indefinite (by comparison) as in Scotland. According to
general principles a marriage unduly celebrated in France is
primd facie a nullity in England ; whereas a marriage lawfully
contracted in Scotland, is valid in the courts of this country,
without reference to its irregularity. In either case the rules of
English law would be inapplicable, and for the purpose of in-
vestigating the question, it would be superseded by the law of
the country in which the marriage had taken place. In such
cases, although the inquiry is in an English court, and the de-
cree the act of an English judge, the law of England with-
draws altogether and leaves the legal question to the exclusive
judgment of the law of the country where the marriage took
place. 2 Hag. Con. 59. It follows, that where a marriage is
celebrated contrary to the laws of the country where it takes
place, and would be null, and not obligatory in that country, it
would be also null in this, 1 Atkyns, 50; Ambler, S13. Thus, in
the case of Scrimshire v. Scrimshire, 2 Hag. Con. 895, which
was a suit for the restitution of conjugal rights, the parties
were both English subjects, and the marriage had taken place
in France, but was subsequently annulled by the courts of

574

inamasv.

Foreiga
marriages.

Lex loci.

Kiceptionf*

France, as not having been celebrated conformably to the laws
of that country; this sentence of the French court was not
treated here as, in itself, a bar to the suit, but as evidence of
what the French law was, by which the court here was to try
the vaKdity of the contract ; and the court here, being satisfied,
both from the decree of annullment and the evidence of wit*
nesses, that the marriage was contracted contrary to the laws of
France, dismissed the suit for restitution of conjugal rights.
So also in Miditleton v. Javerin^ 2 Hag. Con. 437, the mar-
riage of English subjects, celebrated abroad, not according to
the lex locif was held to be invalid ; in that case Sir W. Wynne
said, " I think that the true principle is, that if the marriage is

had abroad and is not good there, as being contrary to the

laws of the country in which it was had, it is not to be held

good by the law of this country."

Dui this general principle is subject to exceptions, and
although the safest course is to marry according to the law of the
country, yet if legal or religious diflSculties prevent this, the laws
of this country do not prohibit its subjects from marrying at all
when abroad, but exempt them from the strict rule, whenever
it is shewn that insurmountable obstacles had occasioned a de-
viation from established forms. Thus in Ruding v. Smith, 2 Hag,
Con. which was a case of nullity brought by the husband,
a marriage between subjects of England at the Cape of Good
Hope, by the chaplain of the English forces, by virtue of a
license or permission from the commander in chief at the colony,
was held good, although not celebrated conformably to the
Dutch law ; which law, as it was pleaded, was in force at the
colony at that time, never having been repealed or altered.
In the case of Latour v. Teesdaley 8 Taunt. 830, a marriage
between two British subjects, solemnized by a Catholic priest,
at Madras, followed by cohabitation, was held valid, though
there had been no license from the governor, which it had been,
before then, the uniform custom to obtain. And Gibbs, C. J.,
said, ^* British subjects settled at Madras, are governed by the
*^ laws of this country, which they carry with them ; and
'' are unaffected by the law of the natives ; what is called the

marriage act does not follow subjects to foreign settlements ;

and the question, therefore is, whether it would have been a

valid marriage here before that act passed.*' And the learned
judge lays down for law, that a marriage between British subjects,
celebrated in a British settlement, according to the laws of this
country, as they existed before the marriage act, is valid.

In the case of Bum v. Farrar, 2 Hag. Con. 370, the court
intimated an opinion, (for the case never reached a decision,)
that the law of France would not apply to any officer of the
English army of occupation, marrying an English lady, on the

€t

iMarriase. 575

ground that at that time and under such circumstances the Fore^n

Earties were not French subjects, under the dominion of French °^^"*8^
iw.
So also, ahhough not confirmed by any judicial decision, the Exceptions.
universal opinion seems to have been that marriages of foreign Ambana-
subjects celebrated in the chapels or houses of the ambassadors, don' cha-
or in the factories of the country to which they belonged, according ^^* *°^
to the form of marriage established by law in their own country,
were valid. These questions, however, as far as they affect the
validity of such marriages within the United Kingdom, have
been set at rest by the 4 Geo, 4, c. 91, which, reciting that it
has been thought expedient to relieve the minds of all bis
majesty's subjects from any doubts concemine the validity of
marriages solemnized by a minister of the churcn of England in Factories.
the chapel, or house of any British ambassador, or minister re-
siding within the country, to the court of which he is accredited,
or in the chapel belonging to any factory abroad, (a) or in the
house of any British subject residing at such factory ; as well
as from any possibility of doubt concerning the validity of mar-
riages solemnized within the Britbh lines, by any chaplain or British
other person officiating under the orders of the commanding i'"^
officer of a British army abroad, Enacts, that all such mar-
riages shall be deemed and held to be as valid in law, as if the
same had been solemnized within his majesty's dominions, with
a due observance of all forms required by law.

But this privilege was always limited to the houses of
the ambassadors of those countries to which the parties then^
selves belonged, thus in the case of Pertreis v. Tondear, I Hag.
Con 136, in which it appeared that the marriage had been cele-
brated in the chapel of the Bavarian ambassador without banns
or license, and it was objected that the marriage was celebrated in
an unauthorized place. The court observed, " The party who
*' proceeds in this case is in the suite of the Spanish ambassador,
*' not of the Bavarian. The other party, though she has the
'' name of a foreigner, is not described as belonging to any am-
<< bassador's family. She h'A» been resident in this country four
*' months, which is much more than is necessary to constitute a
matrimonial domicile in England, inasmuch as one month is
sufficient for that under the act of parliament. Supposing the
** case, therefore, to be assimilated to that ofamarriase abroad,
** between persons of a different country, it is difficult to bring

(a) The English factory at St. Petersburgh was abolished by the
emperor Paul, in 1807, but marriages celebrated there since then, are
declared to be valid by 4 Geo. 4, c. 67, if celebrated in the manner
required.

576

iMarriagt*

Exceptions.

Minors.

Foreign « this marriage within the exception, as this woman is not des*
roarrages. ^ cribed as domiciled in the family of the ambassador.^

The differences of religion in all countries that admit residents
professing religions essentially different, unavoidably introduce
exceptions to the universality of the general rule, that the lex loci
is to decide the marriage, the matrimonial law of England for
Differences the Jews, is their own matrimonial law ; and an English court
of religion. Christian examining the validity of an English Jew marriage
would examine it by that law, and by that law only. lAndo v.
Belisario^ I Hag. Can. SI 6, affirmed on appeal to the Arches,
ib. Appendix, 7 ; Goldsmid v. Bromer^ ib. 824^, There is bJus
gentium, a comity which treats with tenderness, or at least with
toleration, the opinions and usages of a distinct people in the
transaction of marriage. It may be difficult to say how far the
general law should circumscribe its own authority, but practice
has established the principle in several instances, and where the
practice is admitted it is entitled to acceptance and respect.
** An English resident at St. Petersburgh does not look to the
'* ritual of the Greek church, but to the Rubric of tbe church
'^ of England, when he contracts a marriage with an English
'^ woman. Nobody can suppose that whilst the Mogul empire
" existed, an Englishman was bound to consult the Koran on
** the celebration of his marriage.*' Per Lard Siawell, 2 Hag.
Con. 386.

The principle that the lez loci is to govern the contract, and
that " locus regit actum " seems also to have been extended to
the cases of minors as well as of persons of full age ; although
it has been contended that the domicile of the parent is the true
domicile of the child ; that parental dominion is a quality fixed
in the parent and that its application is to be regulated not ac-
cording to the law of the country, under which the minor hap-
pens to be living, but according to the law of the place in which
the parental authority exists, which authority is not to be avoided
by removal, but follows and attaches to the person of a minor
even in a foreign country. But in Dalrvmple v. Dalrymple,
2 Hag. Can. ami vid. 2 PhilL 285. This objection seems to
have been disregarded, and the legal disability of the minor,
according to his parental domicile, had no effect on the contract
he entered into; indeed, a contrary decision would impose on
every one about to contract marriage with a foreigner, the per-
plexing necessity not merely of inquiring whether the marriage
itself will be valid according to the lex loci, but also of ascer-
taining whether or no it might be impeached on some collateral
ground, which though unimportant to its validity in the country
where the marriage takes place, would be a bar to its validity in
the natural domicile of the stranger.
The consent of parents or other circumstances of the contract

iMardag^^ 677

must be distinguished from the essence of the contract itself. Foreign
that being substantially the same all the christian world over, ""^''"^^P**
though the different restraints and limitations which surround the
contract, and the mode and authority under which it is made, are
dissimilar in different christian countries, still, the status acquired
by the parties to the contract is the same ; but we regard it as a
thing quite different, a status quite distinguished from that ac«>
quired by the marriages of Turks or other Infidel nations, be-
cause the laws of this country would never recognise plurality of
wives, and the consequent validity of second marriages standing
the first ; which second marriages, the laws of those countries
authorise and validate. 2 CL & Fin. 539.

The following is stated by Mr. Burge in his valuable Com-
mentaries, as the result, of the opinions of jurists, and the
decisions of judicial tribunals. 1 Comtn. on Conflict of Laws,
190, 200.

1st. That the validity of the marriage, both in respect of the
competence of the parties to contract, and of the solemnities
with which they contract it, is to be decided with reference to
the law of the place in which the marriage is contracted, and
that if it be valid, secundum legem loci contractHSf it must be
deemed valid in every other place.

Sndly. But the lex loci contractus is not admitted when it
violates the law of nature, public morals, or the policy or in-
stitutions of that state in which its validity is sought to be
established.

3rdly. (a) It is not admitted when the parties have no bond

(a) In considering prohibitions which are founded on municipal
laws, and are not therefore of universal obligation, the question arises
how far a marriage contracted within degrees not prohibited by the
lex loci contraciiUf will be recognised in another country, where persons,
within those degrees, are prohibited from marrying. In one of the
American courts, it was decided that such a marriage ought to be
recognised. It was said, that " if a foreign state allows of marriages
incestuous, by the laws of nature, as between parent and child, such
marriage would not be allowed validity. But marriages, not naturally
unlawful, but prohibited by the law of one state, and not of another, if
celebrated where they are not prohibited, would be holden valid in a state
where they are not ailowed. As in one state, a marriage between a man
and his deceased wife's sister may be lawful, but not so in other states ;
such a marriage celebrated in such first state ought to be held valid in any
other state, and the parties entitled to the benefit of the matrimonial con-
tract. 6 Mass. Rep. 378 ; 4 John Ch. Rep. 348, {American Reports.)

In Warrender v. Warrender^ 2 CI. ^ Fin. 531. Lord Brougham^
C, observed, " I should strongly incline to think that our courts
'* wonld refiise to sanction, and would avoid, by sentence, a marriage

p P

580

^HaniiSf*

Jews and
Qua ken.

Quakers*

Freuch
marriages.

and in Harford v. Morris^ before the Delegates, 1781, WUtes^
J., said, '' he remembered a case many years ago on the circuit,
where an objection having been taken to such a marriage in an
action of criminal conversation, it was overruled after argument,
and the plaintiff recovered.'* 1 Hag. Con. App. 9,

According to the language of the marriage acts, it is necessary
'' that both the parties to any such marriage shall be of the
people called Quakers, or persons professing the Jewish religion
respectively;" therefore, where one only of the parties is of those
particular persuasions, the case is not within the clause. Jtmes
v. Robinson, 2 Phill. 285,

Les Cinq Codes contain the following provisions respecting
marriage : Code Civil, Art. 63. *^ Before celebration of mar-
riage, the officer of the civil state shall make two publications,
at eight days' interval, on Sunday, before the door of the town-
hall. Such publications, and the act of them to be drawn up,
shall set forth the pre-nomens, names, professions, and domiciles
of the future couple, their state, either of full age, or minority,
and the pre-nomens, names, professions, and domiciles of their
fathers and mothers. The act shall set forth, moreover, the
days, places, and hours where the publications shall have been
made. It shall be inscribed upon a register by itself, which
shall be marked and certified in manner prescribed by art. 41,
and deposited, at the end of each year, in the registry of the
tribunal of the district." Art. 64. '' An extract of the act of
publication shall be affixed at the door of the town-hall, and
shall remain so during eight days* interval between the one and
the other publication. The marriage cannot be celebrated
before the third day after, and exclusive of that of the second
publication." Art. 68. *' In case of opposition, the officer of
the civil state may not celebrate the marriage before his receipt
of the dismissal, under pain of a fine of three hundred francs
and all damages." Art. 74. " The marriage shall be celebrated
in the township where one of the couple shall be domiciled.
Such domicile, as to marriage, shall be established hysix months*
continued habitaiion in the same township." 5 Bum. Just. 141.

In the case of Lacon v. Higgins, D. If B. N. P. C. 40,
Stark. 78, M. Nettement, the Trench vice-consul, resident in
London, gave the following evidence of the marriage law of
France : " British subjects, after a residence in France of six
" months, may be married in the same manner as French sub-
" jects ; but at the ambassador s they may be married without
'' having resided six months in France. And even if persons

lived together, and were acknowledged as man and wiiTe, that

circumstance would not avail, if the legality of the marriage
** came afterwards into question." In the above case, two
Britbh subjects, who had been previously resident in Paris,

ft
«
•t

iltaiTtage^ 58 1

went to Versailks to be married. The ceremony was performed Freoch
at a hotel, by a clergyman of the church of England, in the "^'^"•g^'
presence of two witnesses. The clergyman gave a written cer-
tificate of the marriage, but that was not produced. After this
marirage, the parties lived together, and were received every-
where as man and wife. It was also stated, that British subjects
resident in Paris were usually married at the British ambas-
sador's, where a register of marriages solemnized there is regu-
larly kept. Upon these facts, and the evidence of M. Nette-
ment, (above stated) and a reference to the articles of the Code
Civilf Abbott, C. J., said, '* I am clearly of opinion that,

according to the law of France, this marriage is invalid,

and, consequently, must be so considered hi an English

court of justice." 5 BurtCs Jutt. 142.

The modes by which the rules of foreign law are obtained Proof of
are stated by Lord Stowell thus : " The authorities to which I ^^^ •
** shall have occasion to refer are of three classes : 1. The opi- uw.
** nions of learned professors, given in the present or similar
** cases. 2. The opinions of eminent writers as delivered in
" books of great legal authority and weight. 3. The cer-
" tified adjudication of the tribunals of Scotland upon these
** subjects. I need not say that the last class stands highest in
" point of authority. Where private opinions, whether in books
" or writings, incline on one side, and public decisions on the
'* other, it will be the undoubted duty of the court, which has

to weigh them, stare decisis.*' 2 Hag. Con. 81 ; ante, *409.

Again, in Goldsmid v. Bromer, 1 Hag. Con. S35, the same

learned person said, ** There is also thejudgment of the college
*' of German Jews, to which community the party particularly
** belongs. The sentence of the Bethdin, (a tribunal of three per-
** sons administering their law upon questions ofthis nature) which
** judgment has been submitted also to the college of Portuguese
" Jews, who concur in it. Here, then, are courts of great
'' authority on this point, and on matter of Jewish law entitled
** to the greatest respect, as they are tribunals whose certificate

of the foreign law must be received as most satisfactory."
Vid. also Lindo et Belisario, 1 Hag. Con. 360.

The following observations are offered on the question, whether a
marriage without the intervention of a priest was good in England
before the marriage acts, bat the reader is referred to a more extensive
and able view of the subject, in Afr. Jacobus note, 2d Vol, of his edition
of Roper's Law of Husband and Wife, 445.

A light understanding of the law relative to the contract of mar-
riage is still important; for although succesuve marriage acts have
fixed the mode by which alone matrimony can now be legally contracted
in England, yet those acts do not extend to Ireland or to our various

€*

582 ittarnase.

colonies, in very many of which the common law of England as to mar-
riage still prevails.

The reasoning of those who assume that the bare civil contract
amounted to full and complete matrimony proceeds thus : — The Canon
law is the basis of the marriage law of England, as well as of most of
the other states of Europe. That law reverenced marriage as a sacra-
ment, and enjoined its celebration in the face of the church. At the
same time, it so far respected the natural and civil origin of maniage
as to consider that, where the natural and civil contract was complete,
it had the full essence of matrimony without the necessity of religious
solemnization ; that it was not till the council of Trent passed its de-
cree for the reformation of marriage that the intervention of a priest was
required as actually necessary to the validity of a marriage even by the
church of Rome; and that in England, where the authority of the
council of Trent had never been acknowledged, a church ritual was
framed for the more solemn and public celebration of matrimony, a ne-
glect of which exposed the parties to ecclesiatical censure, but did not
render their marriage invalid. 2 Hag. Con, 64 ; MacAdam v. Walter^
1 Dow, ante 605.

To this it may be answered, that although the Canon law be the
basis of the marriage law of England, yet that the distinctions of the
canonists between regular and irregular marriages have never been recog-
nised by the common law. A marriage here has been either good or
bad, legal or illegal ; and cohabitation founded on the mere civil con-
tract has been at all times treated as concubinage and not as matrimony ;
and that there is no instance in which a marriage celebrated without the
intervention of a priest has been held to be legal by the courts of this
country ; it is true that the canonical r^^ations, which required not
only that marriages should be solemnized in the presence of a priest,
but that the solemnization should take place in facie ecclesitse^ were
never binding here; and therefore, though for a time this regu-
lation was adopted and acted upon to the extent of holding such mar-
riages void as had not been publicly celebrated in the church, yet that
eventually the courts rejected this canonical restraint, and considered
a marriage good, without reference to the place of its celebration, always
however treating the presence of a priest as necessary to give validity to
the marriage ceremony.

But it is contended that the necessity for the intervention of a priest
does not depend upon the Canon law, but upon the customs and usages
prevailing before the introduction of that law ; if so, the Canon law,
when introduced, could no more dispense with the intervention of the
priest, if his presence had been previously held to be necessary, than it
could insist upon the celebration taking place in the church, if that had
previously been considered unnecessary, to the validity of the marriage.

It is well known that the Canon law was a law of regulation, at least
as far as regarded the laity; directory, and not compulsory, unless
voluntarily adopted by them ; proprio vigore the Canon law does not
bind the laity ; the observation of Lord Hardwicke, in Middleton v.
Crofie, 3 Atk, 658, is conclusive on this. ''If," said he, " the cleigy

in convocation could have altered tlie common law, the bishops need

not have applied to the barons ; and though the lords, with one voice,

iMarriage. 583

'* gave the memorable answer, ' Nolumus leges Ang1i» mutare/ the
** dergy might have done it in convocation by a new Canon.** There
musty however, have been a law of marriage as well as a law of legi-
timacy, before the introduction of the Canon law, which the refine*
ments of the canonists could neither unsettle nor fritter away. If,
therefore, it can be shewn by referring to the histories of the customs
as well as laws, of our early forefathers, upon which our common law
is founded, that those usages required that the priest should be present
at the marriage ceremony ; that a series of judicial decisions have
recognised and upheld such usage ; that there is no case nor certain
opinion to be found in our law books leading to a contrary inference ;
that the general conduct of mankind, no mean evidence of the common
law, shews the prevailing conviction that the intervention of a priest was
necessary ; it would go far to establish that the common law required the
intervention of a priest; and then neither the Canon law, nor any abstract
opinions on the nature of the marriage contract, however philosophical in
theory, can govern the question ; the latter may, in the views of some,
point to what the law ought to be, but cannot determine what it is.

Confining historical inquiry to the usages of the Anglo*Saxons, it
appears that in the only instance in which any mention is made of the
law or custom of marriage, either by SHemhooh^ de Jure Sveonam, or
by WUkins in his collection of Anglo-Saxon laws, the priest is men-
tioned as taking a part at the celebration of the contract.

Stiemhook in his chapter on marriage, p. 159, having stated the
taking the bride to the home of the bridegroom, says, " Conjunctio
** (adding the solemn form of words used), autem tunc primum a tutore
*' ^ta est, consecratio vero ab Ecclesias Ministro : nihil ritd fieri poterit
** nisi preesenti tutore, aut qui ejus locum suppleret, absque eo eniro
" si consecrasset sacerdos, gravissimi poend puniebatur tanquam si
** c«da fecisset."

A heavy punishment in order to prevent clandestine marriages was
thus imposed upon the priest for solemnizing a nuptial contract without
the presence of the tutor, who was always the parent, nearest relation,
or guardian, p. 158. The importance attached to the consecration by
the priest seems obvious, from the severity of his punishment if he conse-
crated a marriage without the presence of the " tutor,**

In the Saxon laws oi Edmund, according to the Latin translation of
Wilkins, under the title " Quomodo virgo desponsanda est et quinam
ritus ibi esse debent," it is said, '' Dationi Presbyter intersit, is de jure
" cum Dei benedictione conjunctionem eorum adunare debet in omni
^' felicitatis plenitudine." Wilkins, 76, 8.

The form of language in both these extracts, though strong, is still in
the affirmative, and consequently it may be said only to be directory,
but the extracts are given to shew the origin of the common law,
evidenced, as that law is, by the decisions which follow, and by
the prevailing opinion as to the necessity of the presence of a priest ;
which it is submitted is a legitimate mode of inquiry as to what the
common law on the subject is.

The prohibition not to consecrate the contract unless the parent or
guardian were present, was then considered a safeguard against clan«

584 iHarriaflif*

dentine marriages, and conaeqnently the celebration was not required to
be public or in a church.

After the publication of the Canons of Pope Innocent the Third,
against clandestine marriages in 1215, the courts of law adopted the
canonical restrictions, enjoining celebration in a church, as appears by
the following cases of Foxcrofi and Del Heiih, but such a rule prevailed
but for a time, after which the courts returned to the old principle of the
common law.

In Bunting's case, (Fin. Abrid, Marriage F, citing Moor's Rep. 169.)
It is said, " Solemnization of marriage was not used In the church be*
" fore an ordinance of Pope Innocent III., before which the maa came
" to the house where the woman inhabited, and carried her with him to
" his house, and this was all the ceremony." By Goldingham^ doctor
of the civil law.

In Foxcroft's case, 10 Ed. 1, Roll. Ahr, 359. An infirm man was
privately married in his bed, to a woman enceinte by him, the mar-
riage was performed by the bishop, but without mass, it was adjudged
to be void, and the issue a bastard. Fid, observations on this case,
ante, 82. Del Heith's{a) case from the Harleian MSS. 21i7,
foL 839, 34 Ed, 1. Johannes del HeUh Katherinam Concubinam in
domo ipsius Johannis coram Vicario de Plumsted spontanea voluntate sud
affidavit et annulum digito Kaiherince apposuit et verba consueta ad
matrimonium conlrahendum absque Misses eelebratume pronuntiavit^ eo
quod propter debUitatem ad ecclesiam aceedere nonpotuit, et ipsam extunc
ad totam vitam ipsius Katherince pro uxore tenuit ; et postea procreavit
filium WilUelmum ex ipsd Katherind. Peter the brother of John
entered on the lands of which John died seised ; the above William
claimed as son and heir of John, and it was inquired whether John bad
solemnised his marriage in facie eeelesiee, after he had recovered from
his infirmity ; and it being answered that he had not, it was held that
WUliam took nothing in the lands by reason that John had never
married Katharine ** in facie ecclesi<e»" See this case in Nicholas's
AduU. Bast. 257, 567.

The canonical regulations requiring celebration in fade eceiesi^^ had
publicity only for their object, in order to prevent clandestine maxriagee;
it was not pretended that it was meant thereby to give greater aanctky
to the contract ; it was the priest's presence that imparted the religious
character to the marriage vow, and his blessing which hallowed it,
wherever the contract took place : and it seems that before the
Reformation a neglect of the Canon law did not invalidate the
contract.

In RoUe's Abridgment, Baron and Feme, 341, pi. 21, it is 8aid» If
a man and tsoman are married by a priest, in a place which is not a church
or chapel and without any solemnity of mass, yet it is a good marriage,
and they are baron and feme. This is copied into Finer' s Abridgment,
Baron and Feme, 21, but it is added, contra, 10 Ed. 1. The ref(Henoe

(a) This case is given as it is not found in the abridgments.

iKarnast. 585

is to Foxeroffi ease in which, as stated, a marriage though celebrated
by a priest, was held null, because not celebrated *' in facte eeelesite*'*
The law however was by no means settled on this point at this time,
for Fitzherbertf N, B,^ 150 n, says, " a woman married in a chamber,
shall not have dower."

Perkins^ who wrote in the reig^ of Hen* 8, says, If a man make con-
tract of matrimony with J. i9., and die before marriage eokmmMed between
them, she shall not have dower, for she never was his wife. $» 806. Again ;
After such a contract one may enfeoff the other, for they are not one
]>erson in law, and if the woman die before solemnisation, the man
shall not have her goods as her husband, s, 194.

During the Commonwealth 1653, an act was passed enabling parties
after certain preliminaries of publication, to marry before a justice of the
peace, the form was thus, the man and woman taking each other by the
band, repeated, ** I, A, B., do here in the presence of God, the searcher
*' of all hearts, take thee, C. Z)., for my wedded wife, (or husband,)
** and do also in the presence of Ood, and before these witnesses
** promise to be unto thee, a living and faithful wife (or husband.)"
20 Pari Hist, 215. In 1660, an act 12 Car. 2, c. 83, passed to
confirm such marriages ; now if a mere contract, de verba de pr^eseniif
was considered at that time a complete marriage, no such statute was
necessary even to remove doubts.

In Tarry v. Browne, 1 Sid. 64, a question arose whether a marriage
in an alehouse by a parson in sacred orders, which had taken place
whilst the act of the Commonwealth was in force, was a good marriage,
the court said the marriage having been legally solemnized, all the
world could not dissolve it : and in Sir Robert Payne^s ease, in the
same Reports,/). 13. It having been urged in argument that Noy^
the attorney general, in his reading at Lincoln's Inn, had said, '* that
'* when the spiritual court dissolved a marriage on the ground of free
contract ; such first contract made the parties complete man and wife,
without any other solemnity ;" Twisden, Justice, at once denied such a
position, and said the marriage must be solemnised before they were
complete man and wife. Fin. Abr, '* Marriage,** B. In Holmer v.
Dickenson, 1 Freem. 95 ; 8 Keb. 148 ; which was an action for breach of
promise of marriage, Vaughan^ C. J., tiiought the declaration insufficient
because the woman had not averred ** quod obtuUt se," in the presence
of a parson, the other judges differed from him as to the necessity of
such an averment, but did not deny that if such an averment had been
necessary, the form suggested by him, would have been correct.

In Com. Dig. Baron and Feme, B. 1, "A marriage by a Popish
priest by the Latin service in a chamber was allowed, and a second
marriage disannulled, by a sentence in the ecclesiastical court, and the
person, for such second marriage, convicted of felony." The case re-
ferred to in Comyns, was the marriage of Col* Fielding in 1704, which
according to the report in 5 State Trials, 615, took place in a chamber*
and was solemnized by a Popish priest, Col. Fielding having married
tbe Duchess of Cleveland afterwards, was convicted of bigamy, and the
marriage set aside by a sentence of the ecclesiastical court.

So in B. v. Brampton, 10 East, 282. The man was a soldier in the

586 jfftiLvriasf.

British anny, and the woman a widow of a soldier, they were married
by a person appearing to be a priest, and in a chapel, the service was
in French, but explained by one who officiated as clerk ; and they
cohabited as man and wife several years, till the husband died, and the
marriage was held good ; here indeed the marriage was stated to have
taken place in a chapel, but the opinion of Lord EUenborough lays no
stress whatever on that.

In Smith v. Mcawell, 1 Ry. ^ Moo, 80, the same question was raised
before Best, C. J., at Nisi Prius, on which occasion, the marriage was
performed by a gentleman, who had officiated as curate for eighteen
years, in a private house, he said, ** I know of no law which says that
*' celebration in a church is essential to the validity of a marriage per-
" formed in Ireland," and again, "It is true that in a case of bigamy
'* tried before Mr. Justice Bayley, on the northern circuit, an acquittal
was directed, because the first marriage which took place in Ireland
was in a private house, but I have reason to know, that that learned
judge altered his opinion afterwards, and was satisfied of the validity of
the marriage ;" and in R. v. Bathwick, 2 B.^ Ad. 639; the marriage
took place in a private house in Ireland ; and the only contest was,
whether the person by whom the marriage was celebrated, was a priest
in orders ; it not being contended on one side that the marriage was
invalid, because it had not been solemnized in facie eeclesitt ; nor on the
other, that it could be supported, unless the party celebrating it, oould be
proved or presumed to be in orders.

The decisions of the ecclesiastical courts seem to concur with those of
the temporal courts. In Hutcheson ^ Wife v. Brookbank, 3 Lev. 876,
a prohibition was prayed to stay the ecclesiastical court from proceeding
on a libel for incontinence and fornication. The parties libelled were
dissenters, and were married in the face of their congregation and before
witnesses, after banns published according to the discipline of the said
congregation ; the ecclesiastical court refused to admit this as a defence.
The case was argued on the toleration act, 1 W. ^ M, c, 18, t. 4^ that
no person taking the oaths, &c. should be prosecuted in any ecclesias-
tical court by reason of their not conforming to the church of England.
It was agreed that prohibition should go, in order that the law might be
tried. Upon a sound view of the principles of the c(Mnmon law, ex-
tended by the toleration act, this marriage ought perhaps to have been
sustained ; but the doubt entertained by the court of law, and the deci-
sion of the ecdesiastioal court seem decisive to prove that a mere civil
contract was not considered by them to be '' ipsum matrimonium.** In
Haydon v. OoM, 1 SaUc. 119, before the delegates, the question resolved
itself simply into this point, whether R. and H. were ever married.
It appeared that the man and woman were Sabbatarians, and married by
one of the ministers in a Sabbatarian congregation ; that they used the
form of the Common Prayer, except the ring ; and that they lived toge-
ther as man and wife till the woman's death, viz, seven years. On the
other hand, it appeared that the minister was a mere layman, and not
in orders. Upon this appearing, the court below repealed the letters of
administration which had been granted to H. as the husband of R. ;
and upon thu appeal the delegates affirmed the judgment of the court

iMarrtagse. 587

belowy and the xeaaona given are as follows : '* for H. demanding a right
" due to him as husband by the ecclesiastical law must prove himself a
" husband according to that law,** It was further urged that this mar-
riage was not a mere nullity, because by the law of nature the marriage
was sufficient, and though the positive law ordains that marriage shall
be by a priest, yet that makes such a marriage as this irregular only, but
not void. But the court ruled lU supra, and a case was cited out of
Slvifibume where such a marriage was held void. And it was added
that an act of parliament was made to confirm the marriages made during
the usurpation. And that the constant form of pleading marriage is, that
it was per presbyterum sacris ordinibus constitutum. Sir J. NichoUf in
ElUot V. Ourr, 3 PhiU. 21, said of the above case, '' It was a marriage
" between Sabbatarians not celebrated by a priest. This was held to
"•be no marriage, a void marriage, a mere nullity. But if the bare
civil contract were sufficient before the marriage acts, according to the
Canon law, as received in this country, the authority of the council of
Trent not being admitted here, the civil contract seems to have been
complete, and deliberately entered into*

The direct effect of all the cases at common law is to show that mar-
riage need not be celebrated in a church ; they do not expressly decide
that the intervention of a priest is necessary to give validity to the con-
tract ; but the presence of a priest is carefully pointed at in all, which
shows the prevailing opinion that his presence could not be dispensed
with ; and, therefore, the absence of any express decision on the point
goes rather to show that the law was considered clearly to be understood.
As to the cases in the ecclesiastical court; in Hutcheson v. Brooke
bank, the argument seems to have proceeded entirely on the tolera-
tion act, witib a view to establish Uie validity of the marriage. No
notice is taken of the second point, which one would have imagined
would have been an ample defence to a libel for incontinence, if the
distinction between regular and irregular marriages had ever been ad-
mitted by the Canon law of England.

In Heydon v. Gould, decided by the delegates* and therefore a mixed
tribunal of common-law judges and civilians, the claim was denied on the
ground, that a man claiming a right by the ecclesiastical law must prove
himself a husband by that law. That case, therefore, disaffirms the
position, that the Canon law of this country did ever so &r respect the
natural and civil origin of matrimony as to consider, that when the
natural and civil contract was complete, it had the full essence of matri-
mony. But the case does not rest here ; for when it was argued, that
though positive law ordains marriage to be by a priest, yet that made
the marriage irregular but not void, the court denied the distinction,
alluded to ti^e act to confirm marriages during the Usurpation, ante, 585,
and added that the constant form of pleading marriage was that it was
**per presbyterum saeris ordinibus constitutum,** Now it is conceived the
forms of pleading are strong evidence of the common law.

In endeavouring to ascertain what the common or unwritten law is,
it is by no means unimportant to refer to prevailing opinions and
the conduct of men, founded on such opinions or convictions ; espe-
cially when there is a distinct object to comply with just so much

688 iKarrfefit^

of the law as is considered absolutely and indispensably necessary, and
to evade everything else which, though decent and becoming, is not ab-
solutely requisite. With this view, the clandestine marriages solemnized
at May-fair, the Savoy, Salisbury-court, Ram-^alley, Mitre-court, White*
friars, Fuller's-rents, the Fleet, and King's- bench prisons, and other
places enumerated by Mr. Bum in his publication of the Fleet Re-
gisters, deserve notice ; vid. the preamble of 7^8 W.Sf e. 35, and
10 Ann, e. 9. A long list of clergymen, who gained a livelihood by
solemnizing marriages in such places has been preserved. These men
ran the risk of degradation, and suspension, and incurred very heavy
penalties by their illegal and unprincipled conduct ; their demands con-
sequently were very heavy ; and one of the name of Keith is said to
have established a bishopric for revenue in May-&ir. The expense of
such marriages was therefore large ; and the conviction must have been
very strong, that the intervention of some priest was requisite to give
validity to marriage, to drive parties to incur the disgrace and great
expense of resorting to such men.

If this be a fair representation of the curreot of authorities on this
subject, it next becomes important to consider the question of pre-
contract ; it is argued, that as a contract per verba de pntsenti^ ren-
dered a subsequent regular marriage void ; it establishes the position
that such first contract was held to be " ipsunt matrimonium.^* Ante, 585.
Thb, however, seems not to have been so, for it was always held that
pre-contract was one of those impediments which rendered subsequent
marriage voidable and not void ; but if the contract were actual marriage,
the second marriage would have been bigamy and absolutely void ; but
for pre-contract the marriage could only be set aside during the lives of
both parties. Anie^ 550, 554. In proceedings, on the ground of pre-con-
tract, the form of the suit was to compel solemnization, cohabitation,
&c. : if the plaintiff in the suit died before sentence, so that judgment
could not be given for solemnization, &c., then the intervening marriage
would stand unimpeached ; if the judgment was given, the effect of
obedience to it would be, to annul the intervening marriage, and bas-
tardize the issue of such marriage ; but still it would not l^timise the
issue of the contract bom before solemnization, for the solemnization
would not have relation to the contract.

This latter point was insisted on by the civilian who argued the case of
Bunting v, Leapingwell, Moore, 169, 4 Rep, 29, post, 590, according to
the report in Moore, but not conceded. In Dower the contrary was
decided in the case cited from Hale's MS. post, 589.

Lord Siowell, however, in Dalrympie v. Dalrymple, says, '* that at
** the reformation, this country retained those roles of the Canon law,
" which had their foundation, not in the sacrament or in any religious
" view of the subject, but in the natural and civil contract of marriage.
*' The ecclesiastical courts, therefore, which had the cognisance of ma-
** trimonial causes, enforced these rules, and, amongst others, that rule
" which held that an irregular marriage, constituted per verba de pre^
*' senti, not followed by any consummation was valid to the full ex-
'* tent of voiding a subsequent regular marriage contracted with another
*' person;" and he adds, a statute ofHenr^ 8, proves the &cU Now

iMarnagr^ 689

the 32 Hen. 8, c. 88, by ite preamUe, reciting that the nsnrped power of
the bishop of Rome haid much inquieted the subjects of this realm by
making that unhiwful, both in marriages and oUier things, which, by
God's word, was lawful ; and that many marriages consummate with
bodily knowledge and children, have by unjust law of the bishop of
Rome, (which is, that upon pretence of a former contract made, and not
consummate with carnal copulation), being divorced and separate, con-
trary to God*s law; and so the true matrimony, both solemnized in the
face of the church and consummate with bodily knowledge, clearly
frustrate and dissolved ; enacts, that marriages contract and solemnized
in the face of the diurch, and consummate with bodily knowledge, shall
be deemed just, good, and indissoluble, notwithstanding any pre-con-
tract, not consummate with bodily knowledge.

This act was partially repealed by 2 4* 3 Ed* 6, e. 23, which pro-
vided, that as concerning pre-contracts the former statute should be of no
force or effect, and be reduced to the estate or order of the king's eccle-
siastical laws of this realm, which immediately before the making of the
said statute in this case, were used in this realm ; so, that when any
cause or contract of marriage is pretended to have been made, it shall
be lawful for the king's ecclesiastical judge to hear and determine the
said cause, and having the said contract sufficiently and lawfully proved
before him, to give sentence for matrimony, commanding solemnization,
cohabitation, consummation, and tractation, as becometh man and wife
to have ; inflicting such pains " upon the disobedients thereof^" as in
times past, before the statute, the king's ecclesiastical judge, by the
king's ecclesiastical laws, ought and might have done if Uie said statute
had never been made.

Now, what is the state of law indicated by these statutes ? not it
would seem that the pre-contract was '' ipsum matrimonium" because
if it were there could be no necessity for the ecclesiastical judge
" to give sentence for matrimony ;" that is to say, that the con-
tract should be completely executed by the parties, it being before in
the nature of an executory contract, or a contract imperfectly executed ;
or rather that it should be performed specifically ; if it had been con-
sidered as a contract executed and complete, the sentence would have
been simply for solemnization (as the church probably would insist
upon the Canon law being complied with in that respect).

That the law of England, however, did not allow the contract to confer
any other than the mere rights of contract, notwithstanding the attempts
of the ecclesiastical court to introduce the principles of the Canon
law, appears from the following case, cited from Lord Hale^s MS.,
and given by the learned editors to Coke upon Littleton ; 10 Ed. 1.
A. contracts per verba de prtesenii with B., and has issue by her, and
afterwards marries C. in facie eceleeiis ; B. recovers A. for her husband by
sentence of the ordinary; who for not performing the sentence is excom-
municated, and afterwards enfeoffs D. and dien marries B. in fade
ecclesiief and dies. She brings dower against D. and recovers the
feoffment, which was per fraudem mediate between the sentence and the
solemn marriage ; aed reversatur coram rege et concilio — quia pradictua,
A» non fuit scisitus during the espousals between him and B. Nota^

690 iMarrtagr^

Neither the contract nor the sentence was a marriage, Co. Litt, 33, a*
note 10.

The power given, or rather restored, to the ecclesiastical court by the
statute of 2 Ed. 6, however extended to annul any marriage entered
into after a previous contract clearly proved; in the following case
this authority appears to have been submitted to, rather than ac*
qniesced by ^e temporal courts. But the case is important to shew
Uie form of the sentence, which was simply " quod subiret mafri-
monium" with the party with whom the contract was entered into, and
declaring a subsequent marriage null and void. This *' mbire mofrf-
numiutn" does not support the idea of a pre-existing ** matrimoniwn/*

Bunting v. h^apingweU^ Moore, 169; 4 Rep, 29. J. B. contracted
matrimony with A. A. per verba de prasenti, and afterwards A. A. took
husband T. T. J. B* then libelled A. A. in the court of audience, and
on the proceeding u^on such libel it was decreed, quod A. A. subiret
matrimonium cum prdjfato, J. B., and that her marriage with T. T. was
null. A. A. and J. B. did intermarry and had issue, and the question
was whether the issue of A. A. and J. B. after such after marriage was
legitimate. Lord Coke in his report says, " in this case five points were
" adjudged, first, that although T. T., then being the husband of A. A.,
" was not party to the said suit, nor to the sentence of the spiritual
*' court, which dissolved the marriage betwixt him and the said A. A.,
but the said A. A. only, yet the sentence against the wife only, being
but declaratory, was good, and should bind the husband de facto; and
forasmuch as the conusance of the right of marriage belongs to the
ecclesiastical court, and the same court has given sentence in this
" case ; the judges of our law ought (although it be against the reason of
our law), to give credit and faith to their proceedings and sentences,
and to think that their proceedings are consonant to the law of holy
" church, for cuiUhet in arte sud credendum est,*' It is clear that the
judges in this case did not mean to express any concurrence in the
sentence of the ecclesiastical court, but simply to give it effect without
question, as they were bound to do. In 1752, the year before the
passing the marriage act, the case of Baxter v. Buckley, was decided by
Sir O. Lee in the court of arches. The contract had taken place before
witnesses, and the marriage service read, but by a layman. Sir G. Lee
gave sentence for the contract, as being fully proved, and enjoined Mr.
Buckley to solemnize marriage in the church with Susanna Baxter
within sixty days after he shall have been served with a monition for
that purpose. 1 Lees, 48. This, as stated in the report, was a cause
of contract founded on the statute.

It remains to be seen what are the authorities upon which the
proposition rests, that by the Canon law of England a contract ** per
verba de pr^ssenii,** entered into without the intervention of a priest, was
a sufiicient and legal marriage. The cases are Jessot v. Collins ; Wig-
morels case ; and Lord Fitxmaurice*s case in 1752 ; and the authority
of Swinburne in his book of Espousals. With regard to Jessot v.
Collins, and Wigmore^s case, it would seem from a collation of the
different reports, that the dicta of Lord HoU, must have reference to
the Canon law generally, and not to the Canon law received and acted

upon in this country ; because it is scarcely credible that he should
have stated that a contract, " per verba de praseniif** was a sufficient
marriage ; or as in Wigmore'a casCf a marriage, in respect of which, they
could not punish for fornication ; when in Hutcheson v. Brookbank, the
ecclesiastical court had shortly before asserted their right to do so, and
the court in which the prohibition was moved, had not said they were
wrong ; and when in Hagdan v. Gouldf the delegates had denied that
a mere contract, *' per verba de prasenti" was a sufficient marriage
by the English Canon law ; by showing that by the mode of plead-
ing marriage at common law, " per presbyterum Mcria ordinibus con-
stituium" it was no marriage without the intervention of a priest by
that law ; it is right, however to add, that both Lord EUenborough^ in
R, V. Brampton, 10 East, and Sir Y. Gtbbs in Latour v. Teasdah,
8 Taunt, 830, refer to the language of Lord Holt in these cases, with
seeming approbation.

The opinions of Lord StoweU in Dalrymple v. Dahrymplef 2 Hag.
Con,, and of Lord Eldon, in Mac Adam v. fVaUcer, 1 Dow, 181, have
reference to the cases before them, which, in both instances, were Scotch
marriages ; and there is nothing to show that they intended them for a
more extensive operation.

The case o£Jeasot v. CoUins, 2 Ann,, reported 2 Salk, 437 ; 6 Mod.
155; HoU, 458; is thus cited by Lord StoweU, in Dalrymple v.
Dalrymple, 2 Hag. Con, 69. " If a contract be per verba de prasenti,
*' it amounts to an actual marriage which the very parties themselves
*' cannot resolve by release or other mutual agreement, for it is as much
" a marriage in the sight of God, as if it had been in facie ecclesice,
** But a contract per verba de future, does not intimate an actual mar-
** riage, but refers to a future act, and is releasable." Such is the
report of this case in the Modem Reports, a book of inferior authority ;
the report in Salkeld gives the whole of this part of the case as an
obiter dictum, as it certainly was. Also he said, " that a contract per
** verba de prasenti, was a marriage, viz. I marry you ? you and I are
" man and wife, and this is not releasable ; I promise to marry, &c.,
** do not intimate an actual marriage, &c." The application to the
** court, was for a prohibition, on the ground that the contract was
per verba de future, and therefore the party had a remedy at com-
mon law, by breach of promise of marriage; and Lord Holt having
stated this as the ground on which prohibition was denied, namely,
that either in the one case or the other, the spiritual court had jurisdiction,
draws the above distinction between the two species of contract, a dis-
tinction not in any way bearing upon the decision of the case.

In 5th of Ann, Wigmore^s case, 2 Salk. 437» was decided by Lord
HoU. Lord StoweU gives the report thus, " A contract per verba de
** praserUi is a marriage, and so is a contract de future. If the contract
" be executed and he take her, it is a marriage, and thetf^cannot punish

for fornication." In Salkeld, however, the report runs thus, per Holt,

By the Canon law a contract per verba de prasenti is a marriage,'* &c.
The above words, " by the Canon law," omitted by Lord StoweU, seem
to explain the meaning of Lord Holt in both the above cases. The
assertion that they could not punish for fornication is at variance with

592 iKamaset

the case of Huteheion v. Brwihhamk^ supra, 586, in which the eode-
fliastical court had lately asserted its right to do.

In Dabrymple v. DaWymple, Lord Stowell cites also the case of Lord
Fitzmaurice, coram Deleg, 1752, in which he said there were suffi-*
cient words of present contract, and the court composed of a full com-
mission found for the marriage, and a commission of review was after-
wards refused; and it might be inferred from this statement of the ahove
case that nothing more than the mere civil contract took place. That
case, however, is mentioned in Walton v. Rider, 1 Lee, 27) by Dr. Hay
in argument. He says, " In Leeson v. Fitsmaurice he made her declare
" in writing that she was not married to him. Delegates held that to
" be a strong circumstance in favour of the marriage. It is not neces-
" saiy to prove the clexk who married them was in holy orders."
The case came before the court, probably as a case of jactitation, at
that time the ordinary mode of questioning the validity of a mar-
riage ; but it would seem that there had b^n at least die show of a
legal marriage in the presence of a priest, and as against the husband
impeaching it, every thing would be presumed to have been done
correctly, and that the clerk in orders till the contrary was proved.
Indeed, in Lord SUmeU, Hawke v. Corri, 2 Hag, Con. 288, says, " It
" seems to be a very generally accredited opinion, that if a marriage is
" had by the ministration of a person in the church who is ostensibly in
'* holy orders, and is not known or suspected by the parties to he other-
" wise, such marriage shall be supported. Parties coming to be mar-
" ried are not expected to ask for a sight of the ministers' letters of
" orders, and if they saw them could not be expected to inquire into
'< their authenticity." Fid. also R. v. Brampton, 10 East, 282. The
same principle, it is conceived, applies to the ministration of a person
not in the church. Indeed, in Hawke v. Corri, the ceremony was not
performed in a church.

The case of Lord Fitzmaurice, therefore, is not an authority for the
position that a mere civil contract entered into without the intervention of
a priest was ever in this country considered as a complete marriage, though
on reading that case as it is stated by Lord StoweU, it certainly might
appear to be.

Swinburne, whose elaborate work on espousals was published about
the year 1686, in speaking of the sUtutes 2 ^3 Ed. 6, says, " Worthily,
" I say, and on good grounds was this branch of that statute, (esta-
** blished by the &ther) repealed and made void by his gracious son,
" Edward VI. ; for spousals de prmsenti, though not consummate, be in
''truth and substance very matrimony, and therefore perpetually indis-
" soluble except for adultery, although by the common law of this
** realm (like as it is in France and other places) spousals not only de
" futuro but also de pr^ssenti be destitute of many legal eflfecta where-
" with marriage solemnized doth abound, whether we respect legitima-
" tion of issue, alteration of property in her goods, or right of dower in
" her husband's lands."

Swinburne*s book exhibits much learning and extraordinary research.
Indeed it is made up of the opinions of the most eminent writers of all
countries on the subject of marriage, and he treats of it in the abstract.

iKaiTfage. 593

and rather as a pbOosopher than a lawyer* SwMume^ indeed, himielf
admits that hy the common law of this realm, like as it is in France and
other places, such a contract is destitute of many (he should have said
all) the legal effects wherewith matrimony solemnized doth ahound ;
and it may be asked what better test can be required that the law of
England never treated such a contract as ipsum matrimonium, when it has
denied to it the rights and privileges attached to, and consequent upon,
the "status" of matrimony. If then the common law denies legitimation,
dower, &c., and the ecclesiastical law refuses to recognize the parties as
husband and wife, and not only denies the rights incident to that state,
hut claims to punish them for fornication and incontinence. What state
of matrimony can it be ?

The editor of Swinbumef in a learned pre&ce to that book, says,
There is little difference between spousals and matrimony, only the
public office and greater solemnity of the act, together vrith the bene*
" diction of the minister, are b^ law requisite to complete matrimony,
** before it be capable of those legal effects of dower, and legitimation of
issue. But inforo conscientia they are as much man and wife as if
all legal requisites and solemnities had been performed." And Swifi"
burne himself writes, p. 9, ** This word, nuptiee, marriages, is not ever«
** more referred to the substance and indissoluble knot of matrimony
only, but doth often signify the rites and ceremonies observed at the
celebration of matrimony only ; which thing being true, then is it
" not false that, seeing a man may contract present matrimony, and
yet refer the solemnization thereof till another time in respect of this
future solemnization, the contract de pr€eserUi may justly be defended
and verified to hefuturarum nuptiarum repromissiOf a promise of future
** marriage." t

To what practical result, then, does this inquiry tend ?

1 . It is submitted as clear, that in places to which the marriage act
does not extend, it is not necessary that the celebration of marriage
should take place in facie ecelesia,

2. It is submitted, but with much diffidence, in respect of the great
names that appear to sanction a contrary opinion, that the mere civil con-
tract, or contract per verba de praserUi, neither does, nor ever did in this
country, constitute matrimony ; and that, since the power of the ecclesi-
astical court to compel celebration of marriage has been taken away,
laying aside all question of actions for damages, no rights whatever attach
upon such a contract in places to which the marriage acts do not extend.

S. That, although- it is insisted that the intervention of a priest is
necessary to give validity to marriage, yet it is not necessary that the
ceremony should be performed in strict conformity to the rites of the
church of England. The object of the law, in calling in the aid of reli-
gion to sanctify the marriage vow, is to give it a deeper and more solemn
obligation than belongs to ordinary contracts. The most rational way
of effecting this object seems, as in the case of oaths, to allow all persons
to assume the vow with such religious ceremonies as are most binding
on their own consciences ; nor does it appear by the foregoing cases that
any particular rite or form has ever been held to be indispensable.

Q Q

it
u

594 iKarnase.

finally, is it neeesaaiy that the priest oelebratiiig the marriage liionld
be Id fegnhff oxden ? It would appear not The common law only
seems to insist that the contract should be solemnly entered into, in the
presence, and under the sanction, of a minister of religion.

It is d^cult to find any other sound ground upon which to maintain
the principle, that Jews are allowed to marry according to the usages and
customs of their nation ; onto, 579 ; 1 Hag. dm. App. 9 ; or that the mar-
fiage of a Quaker has been held to be sufBdent to support an action of
crim. con. ; or to go a step further, to support a suit in the ecclesiasti-
cal courts for restitution of conjugal rights. Und. It is true that the first
and subsequent marriage acts have uniformly excepted the marriages of
Jews and Quakers out of their operation, which has been said to be a
i^cognition of them, as excepted cases ; but if those marriages were not
good at common law, the exception would appear to be useless.

The observations of Sir J. NichoU, in his luminous judgment, in Kenp
V. fVickes, 3 Phill, 298, and the language of Lord Mansfield^ in the
House of Lords, cited by the learned judge in that case, seem to put
this question on its true grounds. Lord Mansfield says, " Non-confor-
" mity is no offence at common law, and the pains and penalties for
" non-conformity to the established rites of the diurch are repealed by
** the act of toleration." And vide Cotpp, 383, 393. Sir J. NiehoU says,
" The toleration act has allowed Protestant Dissenters publidy to exercise
their worship in their own way ; under certain regulations ; it legalised
their ministers, it protected them against prosecutions for non-confor-
" mity. Now, their ministers and preachers being allowed by law, (and so
" far as that goes they are lawful ministers for the purposes of their own
** worship), their worship being permitted by law, their non-conformity
" being tolerated, could it any longer be said, that rites and ceremonies
** performed by them, are not such as the law recognizes in any of his
Majesty's courts of justice, provided they are not contrary to, nor de-
fective in, that which the Christian chureh universaUy holds to be
" essential, that is, provided they are Christians. This appears to be a
" necessary consequence of the Toleration Act."

Burnet f in his life of Hak, cited by Mr. Jaeobtp. 464, says, that Hale
" considered marriage and succession as a right of nature firom whidi
^ none ought to be barred, what mistake soever they might be under in
" points of revealed religion, and that all marriages made according to
" the several persuasions of men, ought to have their effects in law ;*'
and on a Quaker's marriage being brought in issue before him, he
directed the jury to find a special -verdict.

In Huteheson v. Brooksbank, ante^ 586, the spiritual court re-
fused to admit a marriage of Dissenters, according to the forms
of their congregation, even as a defence to a chaige of fomicfttk>n.
But it must be remembered with regard to this case, and also with
regard to Haydon v. GotM, that the toleration acts had but lately
passed, and then with great heat and opposition ; though relieved from
pains and penalties, the Dissenters were still a suspected and disfisvored
class ; nor was it to be expected that the ecdesiastical courts would ao
soon concede to their ministry anything which tended to raise them to

iHamaffe. ^^^

an equality with the clergy of the established church, tn Heydon v.
Oould, the question does not seem to have been raised ; and in Hniche^
son y. Brooksbank, although the ecclesiastical court rejected the defence,
prohibition was granted by the temporal court on account of such
rejection ; so that there has been no decision hitherto against the claim
of the dissenting ministry. The 1 2th Car, 2, passed to establish irregu-
lar marriages had during the Commonwealth, applied only to marriages
contracted before justices of the peace, and did not include marriages
had before sectarian ministers. The mode of pleading noticed above,
" sacris ordinibus eonstitutum^*^ doubtless had its origin at a period when
no other church ministers were recfpiised or even known.

^otarp*

xT appears from the Legantine constitutions of OthOf A* D.
1^7, 28 Johnson^ s Canons, vol. 2, that notaries were not at
that time used in England, and the Legate observes, that on
that account there is the more occasion for authentic seals ;
and therefore ordains, that not only '' archbishops and bishops^
but their officials; also abbots, priors, deans, archdeacons,
and their officials, and deans rural, as also cathedral chapters ;
and all colleges and convents, have a seal jointly with their
rectors, or distinct from them, according to their customs and
statutes*

A notary was anciently a scribe or scrivener, who only took
minutes and made short draughts of writings, and other instru-
ment both public and private ; but at this day we call him a
notary public, who confirms and attests the truth of any deeds
or writings, in order to render the same more creditable and
authentic in any country whatever ; and be is principally made
use of in courts of judicature and in business relating to mer-
chants. AtfL Parer. S&2^

The books of the civil and canon law give a notary several
appellations, as TabelliOy Aciuarius, Registrariue, Scriniarius,
and the like, all which words are put to signify one and the
same thing; though we here in England confine the word
Registrarius to the officer of some court, who hath the custody
of the records and archives of such court, and distinguish him
from the actuary thereof. lb. 383.

Amongst the powers and privileges of the archbishop of
Canterbury, enumerated by Uughion in his Observations, he

Q Q S

696 ^otai-p^

mentions the power to create notaries as one, and Aylijfe
says, this arose out of his le^ntine powerj Parer. 384; but
afterwards he says» '' here^ in Kngland^ the creation of public
** notaries belongs to the king's majesty in his high court of
" chancery y as it does to most other princes, because this is an
'^ act or thing done for the advantage of the public weal, and is
*' a badge or ensign of sovereign majesty reserved to the prince
" alone, which we in other terms style the royal prerogative."
76.385.

All notaries, it is said, at their entrance into their office ought
to swear, '' That they will make not out the acts of such persons
" as are not of sound mind and memory ; that they will not deny
'^ copies of acts to any person requesting the same ; and that
'' they will insert and put into their instruments all the proper
'^ and usual clauses.*' AyL Parer, 385.
41 Geo. 4, By 41 Geo. 3, (U. K.) c. 79, s. 2, it is enacted, '' that from and
c. 79. after August 1, 1801, no person shall be sworn, admitted, and

inrolled, as a public notary, unless such person shall have been
bound, by contract in writing, or by indenture of apprenticeship,
to serve as a clerk or apprentice for the space of not less th^n
seven years, to a public notary, or a person using the art and
mystery of a scrivener (according to the privilege and custom
of the city of London, such scrivener being also a public
notary), duly sworn, admitted, and inrolled, and that such
person, during the said term of seven years, shall have con-
tinued in such service ; and also, unless every such person who
shall, from and after the said 1st day of August, be bound by
contract in writing or indenture of apprenticeship, to serve as a
clerk or apprentice to any public notary or scrivener, being also
a public notary, shall, within three months next aft^er the date
of every such contract or indenture of apprenticeship, cause an
affidavit to be made and duly sworn by one of the subscribing
witnesses, of the actual execution of every such contract or
indenture of apprenticeship by such public notary or scrivener
(being also a public notary), and the person so to be bound to
serve as a clerk or apprentice as aforesaid ; and in every such
affidavit shall be specified the names of every such public
notary or scrivener (being a public notary), and of every such
person so bound, and their places of abode respectively* to-
gether with the day of the date of such contract or indenture of
apprenticeship ; and every such affidavit shall be sworn and
filed within the time aforesaid, in the court where the public
notary, to whom every such person respectively shall be bound
as aforesaid, shall have been inrolled as a notary with the
proper officer or officers, or his or their respective deputy or
deputies, who shall make and sign a memorandum of the day of

Botnrp* 597

filing every such affidavit on the back or at the bottom of such
contract or indenture.

''And from the said 1st day of August^ in case any person Penalty..
shall, in his own name, or in the name of any other person,
make, do, act, exercise, or execute and perform, any act, mat-
ter, or thing whatsoever, in anywise appertaining or belonging
to the office, function, and practice of a public notary, for or in
expectation of any gain, fee, or reward, without being admitted
and inrolled, every such person, for every such offence, shall
forfeit and pay the sum of fifty pounds, to be sued for and re-
covered in manner therein mentioned. «. 11.

'' And whereas the incorporated company of scriveners of To be free
London, by virtue of its charter, hath jurisdiction over its mem- of the Scri-
bers being resident within the city of London, the liberties of c^mx^ny.
Westminster, the borough of Southwark, or within the circuit
of three miles of the said city, and hath power to make good
and wholesome laws and regulations for the government and
control of such members, and the said company of scriveners
practising within the aforesaid limits ; and it is therefore ex-
pedient that all notaries, resident within the limits of the said
charter, should come into and be under the jurisdiction of the
said company. Be it therefore enacted, that all persons who
may hereafter apply for a faculty to become a public notary,
ana practise within the city of London and liberties thereof, or
within the circuit of three miles of the same city, shall come
into and become members, and take their freedom of the said
company of scriveners, according to the rules and ordinances of
the said company, on payment of such and the like fine and
fees as are usually paid and payable upon the admission of
persons to the freedom of the said company, and shall, previous to
the obtaining such faculty, be admitted to the freedom of the said
company, and obtain a certificate of such freedom, duly signed
by the clerk of the same company for the time being, which cer-
tificate shall be produced to the master of faculties, and filed in
his office prior to and at the time of issuing any faculty to such
person to enable him to practise within the jurisdiction of the
said company, s, 13.

" But nothing in this act contained shall extend, or be con- Exception.
strued to extend, to any proctor in any ecclesiastical court in
England ; nor to any secretary or secretaries, or to any other
person or persons necessarily created a notary public for the
purpose of nolding or exercising any office or appointment, or
occasionally performing any public duty or service under go-
vernment, and not as general practitioner or practioners ; any-
thing to the contrary notwithstanding, and nothing herein con-
tained shall extend, or to be construed to exempt any proctor,
•»eing also a public notary, from the pains, penalties, forfeitures.

51)8 Botarp.

and disabilities, by this act imposed upon any puUic notary
who shall permit or suffer bis name to be, in any manner used
for, or on account, or for the profit and benefit of any person or
persons, not entitled to act as a public notary." «• 14. (I).

#ati).

XHERE are some oaths peculiar to the ecclesiastical courts
and to the Civil and Canon law. Oughton^ tiL 1 10, note a, divides
these oaths as follows :

1. The oath ex officio y or oath of truth.

S. The oath decisory.

8. The oath of calumny or malice.

4. The oath suppletory.
£x officio. The oath ex officio is an oath whereby any person might
have been obliged to make any presentment of any crime or of-
fence, or to confess or accuse himself of any criminal matter or
thing, whereby he or she may be liable to any censure, penalty, or
punishment whatever. 3 Bunis E. L. 4. By a Canon of
archbishop Boniface^ *' laymen shall be compelled by excom-
munication, if need be, to take an oath to speak tlie truth when
inquiry shall be made by the prelates and judges ecclesiastical^
for the correction of sins and excesses." Gibs, Cod. 999.

By 2 SfSEd. 6, c. 13, s. 9, the ordinary was empowered, in
cases of refusal to pay tithes, to call a party before him, and
examine him concerning the true payment of tithes by "all lawful

and reasonable means other than by the parties' own corporal

oath." This power of the ecclesiastical court was denied by the
judges of the temporal courts, as being against the law to cause
a man to accuse himself, Cro. Jac. 388 ; 12 Rep. 2S ; and
by 13 Car. 2, c. 12, it was enacted, that it shall not be lawful
for any person exercising ecclesiastical jurisdiction to tender
or administer to any person whatsoever, the oath called the
oath ex officio^ or any other oath, whereby " such person to
" whom the same is tendered or administered, may be charged or
'* compelled to confess, or to purge himself or herself of any
** criminal matter or thing, whereby he or she may be liable to
' ' censure or punishment." Fid. the observations on this restraint
on ecclesiastical discipline, Gibs. Cod. 1089.

It will be observed, that this statute prohibits the very tender
uf an oath, whereby any person shall be charged to purge him

or herself of any criminal matter or thing ; and therefore, in Exoffieio,
criminal suits, the usual oath for answers cannot be legally
tendered to defendants, so as even to oblige them to answer
those articles objected to them, which are not criminal charges ;
this was decided in the case of SchuUes v. Hodgson, 1 Add. 111.
The court, Sir J. NichoU, in giving judgment, said, '' To tender
*' to a defendant the usual oath for answers may indeed be the
'* modified practice in civil suits founded on criminal imputa-
** tions, it is clearly not the practice at all, in suits directly
** criminal ; for instance, if adultery be proceeded against by

libel quoad petendum divortium; the defendant's answers

may be, though seldom are, taken to such parts of the libel
** as involve no direct or implied charge of adultery ; but if
" adultery be prosecuted by articles quoad pcenam legale m ;
** the defendant's answers may not be taken, not even to such
*' facts of the article as involve no charge of adultery either
'* direct or implied ; the same holds good mutatis mutandis, in
** proceedings for incest and other cases." But in other pro-
ceedings, where the course of the ecclesiastical court hath been
to receive answers upon oath, they may still receive them ; and,
therefore, in the case of //mt v. Broum, T. 31. Car* 2, where a
suit was for payment of the proportion assessed towards the
repair of the church, the defendant offering to give in his
answer^ but not upon oath, prayed a prohibition, because it
was refused. The court, after argument, denied the prohi-
bition, for they said it was no more than the chancery did to
make defendants answer upon oath in such like cases. Gibs.
Cod. 1088; 1 Fentr. 839; 3 Bum's E. L. 5; Oughton,
tit. 65.

The oath decisory or conclusive, which has been said to re- oath deci-
semble '* wager of law,'* is given by one party to the other, when *ory.
one of the litigants, not being able to prove his charge, offers to
stand or fall by the oath of his adversary, which the adversary
is bound to accept, or to make the same proposal back again,
otherwise the whole will be taken as confessed by him. Wood
Civ. L. 314. This oath had become obsolete in Oughton's
time. Oughton, tit. 1 10, ». 4.

By the Canons of Otko, 123T, it seems that the oath of Oathof
calumny had not been usually taken in England, and it is thereby calumnj.
ordered to be taken in future, in all ecclesiastical causes what-
soever. 2 Johnson's Canons.

In this oath it should be stated,

1. That the party is persuaded his cause is just and good.
S. That when interrogated he will not deny what he be-
lieves to be the truth.
3. That he will not knowingly advance any falsehood in
proof.

600

^atft*

Oath of

calumny.

Oath of
inalirBi

Suppletory
oath.

4. That be will not fraudulently seek any delayy in order
to protract the suit.

5. That he has given no bribe and promised none, nor will
give any, or promise any for the sake of gaining his cause.

6. That be has only given fees to those persons whom the
ecclesiastical laws and Canons permit to receive them.

If the plaintiff refused this oath of calumny, he was to desist
from further prosecution of his action. If the defendant refused,
then he was to be condemned as one confessing the articles laid
against him. This oath was not to be taken more than once in
a suit, and for the most part the time selected was immediately
after contestation of suit. It is said to be against the custom of
England to compel laymen to take this oath, except in cases
matrimonial and testamentary. 2 Inst. 658; IS Rep. 27.

There is besides a special oath against calumny, called by a
different name, the oath against malice.

This oath against malice may be administered as often as it
seems fitting to the judge, (even against the will of the litigant
parties) without reference to whether the suit has been con-
tested or not, and without considering whether the general oath
against calumny has been taken or not.

The suppletory oath, is so called, because it is given in supply
of other proof or evidence. Ayliffe Parer. 391. But Conset
says, it is properly called **juramentum necessariunij^ the neces-
sary oath, which, when there is a want of full proof, the judge,
upon knowledge of the cause, though the parties request it not,
may administer to either the plaintiff or defendant. This oath
is also purgatory as well as suppletory, for the judge may impose
it upon him against whom the presumption seems chiefly to
press. But when there is nothing, or when the whole matter, is
proved, this oath need not be administered. Conset, 154.

In Williams v. Lady Bridget Osborne, before the delegates,
Str. 80, the question in the court below was, whether Lady B. O.
was married to the plaintiff, Williams ; and there being a variety
of evidence on both sides, the judge required the plaintiff to
take the suppletory oath, in support of the allegation in his libel,
that he was married. The accepting this oath, it was agreed
on both sides, was discretionary with the judge, and is only used
where there is only, what is called by the civilians, a semiplena
probatio ; for if there be full proof, it is never required ; and if
the evidence does not amount to half proof, it is never granted ;
because strictly this oath is said not to be evidence, but only
confirmation of evidence ; and if that evidence do not amount
to half proof, a confirmation of it by the party's own oath will
not alter the case. Before the delegates two questions were
made: 1. Whether the suppletory oath ought to be adminis-
tered in any case to enforce half proof. 2. Whether the evi-

4^ntb. 601

deuce amounted to half proofs so as to entitle the plaintiff to Suppletory.
pray that his suppletory oath might be received. The court
thought, upon the whole case, that the evidence did amount to
half proof, and therefore that the court below did right in ad-
mitting the plaintiff to his suppletory oath. Ayliffe, however,
says, that the half proof, on which the suppletory oath ought to
be given, should not be obscured or defeated by contrary proofs
in any part thereof. Parer. 392. It would certainly be a very
dangerous practice, where the evidence was contradictory, and
nicely balanced, to allow the oath of a party to turn the scale.

In Best V. Best, 2 PAUL 161, which was a cause of divorce
by reason of adultery, the court being satisfied that there was
entire proof of the criminality of the wife, but considering that
there had been delay in bringing the suit which required expla-
nation, rescinded the conclusion of the cause, in order to allow
the husband to explain the delay, and admitted his affidavit for
that purpose only ; not as suppletory proof of criminality, or to
answer any defence made by the wife, but merely to satisfy the
judge himself that the husband came into court with clean hands.
In this case, it is to be observed, that the objection emanated
from the court itself; that the wife had not set up any case, and
had not suggested either connivance or condonation, nor had
she taken any objection to the conduct of the husband. And vid.
3 Hag. 155.

Orders in the church.
Who may be ordained.

Age.

Title.

Letters testimonial.

Examination.
By whom ordination to be given.

Bishop of diocese.

Letters dimissory.
Time and place of ordination.
Form of.

Oaths, subscriptions.
Note containing.

Forms &c., for obtaining deacons* ciders.
For obtaining priests' orders.

X HE Apostles having appointed certain persons to be the Orj^n,
standing governors and preachers of the Christain church, it wUau '
has been thought necessary that there should be a power lodged

602 ^rlitnattom

whau* somewhere, to set apart some distinct oi^dera of men for the ex-

ercise of those public offices. The act of appointing or setting

them apart for the ministry of holy things, is called ordination.
Agli0h Parer. S98.

At the Reformation it was declared bv S Ed. 6, 5 d* 6 Ed, 6,
and also by 13 ^ 14 Car. 2, that the only orders in the church
should be bishops, priests, and deacons. Gibs, Cod. 115.

Besides priests and deacons, the Romish church had five
others, viz. subdeacons, acolyths, exorcists, readers and ostia-
res. Gibs. ibid. ; Elfric's Canons^ 957. Some of the canonists
made nine, by reckoning the paslmodist and the tonsura into the
number ; but episcopacy is said not to have been considered an
order, but only a dignity in the church ; as to which, however,
different opinions seem to have been entertained. Ayliffe Parer.
4O0 ; Constitutions of Pectham, 1281-5.

There were various personal as well as moral impediments to
the taking of orders, according to the Canon law ; but the
church of England, in the preface to the form of ordaining
deacons, gives these simple directions only : — ** The bishop
" knowing, either by himself, or by sufficient testimony, any
** person to be a man of virtuous conversation, and without
'* crime ; and after examination and trial, finding him learned
^' in the Latin toncue, and sufficiently instructed in Holy Scrip-
** ture, may admit him a deacon.**

The only qualifications, therefore, now necessary for orders,
are, that the candidate should be of sufficient age, that he possess
a title for orders, that he be of good moral conduct and character,
and of competent learning and ability. GodoL Abr. App. 19.
Qualifica- ^7 Canon 34, no bishop shall admit any person into sacred
tioQof thoM orders, except he, desiring to be a deacon, is three and twenty
to b« years old } and to be a priest, four and twenty years complete ;

ordamed. ^^^ ^^ ||. j^ |^ ^|^^ preface to the form of ordination, except that if
Age. one have a faculty or dispensation from the archbishop of Can-

terbury, allowed sometimes to persons of extraordinary abilities,
he may be admitted to deacon's orders sooner; this privilege b by
44 Geo. 3, c. 43, limited to the archbishops of Canterbury
and Armagh. But for priests' orders there can be no dis-
pensation, Gibs. 146; by the stat. \S EUm. c. 12, it is en-
acted, that '* none shall be admitted minister, being under the
age of four and twenty years.** Minister here, meanine one
capable of all ministration, which is a priest only. Finalhr, by
44f Geo. 3, a. 43, «. 1, it is enacted, that the admission of per-
sons to be priests or deacons within the above ages respectively,
*' shall be void in law, as if such admission had not been made,
'* and the person so admitted shall be wholly incapable of having,
** holding, or enjoying, or beinff admitted to any parsonage,
** vicarage, benefice, or other ecclesiastical promotion or dignity
" whatsoever, in virtue of such his admission as deacon or priest

^rlrtoatiott 603

respecUvely, or of any qualification derived, or supposed to be 9^^^^^*

derived tlierefrom. Provided always that no title to confer jJJ*^"^^^**®
'' or present by lapse shall accrue by any avoidance or depriva- ordained.
** tion ipso/acio^ by virtue of this statute, but after six months'
^' notice of such avoidance or deprivation given by the ordinary
** to the patron." Ante, 454.

So early as 741, as appears by the Canons, known by the Title.
name of the '^ Excerptions of Ecbright,"' it was enjoined that
no one should be ordained without a title, nor without pronoun-
cing the place to which he was to be ordained, the same is re-
peated again in the Canons of A. D. 785-6. Again in CorboyFs
Canons, ] 127-8; 2 Johnsons Canons.

In the Canons of Hubert Walter, archbishop of Canterbury,
ISOO, 6. It is said, ''according to the Lateran council,
1179. If any ordain a priest or deacon without a title, let him
maintain him till he can make a clerical provision for him in
some church, except he be able to live on his own, or have a
patrimony : and if the archdeacon without the special command
of the bishop present a man to be ordained subdeacon, and he
be accordingly ordained without a title, let him be liable to the
same penalty." 2 Johnson*s Canons, Ayltffe seems to think
that a Inshop may ordain any one with impunity, on the title of
a patrimonial estate alone, Parer* 401 ; but the practice is now
regulated by the Canon.

If any person who is to be ordained make any promise or
engagement to the person who ordains or presents him to
such ordination, in order to indemnify him ; such promise or
engagement, if formally made, is a species of simony on both
sides, according to the Papal law, as well as by the law of the
church. Ayltffe, ibid. Gibson Cod. 162, shows some cases, in
the time of archbishop Winckelsea, of bishops being obliged to
maintain persons whom they bad ordained without a title. The
articuli cleri, and the constitutions of 1597, refer to this princi-
ple, as the known law of the church, and the penalty of ordain-
ing without a title.

By Canon 33, it is declared, that it hath been long provided
by many decrees of the ancient fathers, that none should be
admitted either deacon or priest, who had not first some certain
place where he might use his function ; according to which ex-
amples we do ordain, that henceforth no person shall be ad-
mitted into sacred orders except

he shall exhibit to the bishop, of whom he desireth impo- ] prefer-
sition of hands, a presentation of himself to some eccle- menu
siastical preferment then void in the diocese ; or,

shall bring to the bishop a true and undoubted certificate, 2. Provided
that either he is provided of some church within the said of some
diocese where he may attend the cure of souls ; or, church.

604

^rliination.

Title,

cmKod *U
4. Fen<^w.

>w^lU>^ or

1« cttM.of

of some minister's place, vacant either in the cathedral church
of that diocese, or in some collegiate church therein also
situate, where he may execute his ministry ; or,

that he is a fellow ; or in right as a fellow, to be a

conduct or chaplain in some college in Cambridge or Ox-
ford; or,

that he is a master of arts of five years* standing, that Uveth
of his oton charge, in either of the universities ; or, except

by the bishop himself, that doth ordain himself minister,
he be shortly after to be admitted either to some benefice
or curateship then void.

And if any bishop shall admit any person into the ministry
that hath none of these titles as is aforesaid, then be shall
Aeep and maintain him with all things necessary till he do pre-
fer nim to some ecclesiastical living. And if the bishop shall
refuse to do so, he shall be suspended by the archbishop,
being assisted by another bishop, from giving of orders by the
space of a year*

The observance of this Canons or rather of the common law
of the church, of which this is only an afiirmance, was spe-
cially enforced on the bishops by King Charles the First, and
archbishop Laud; and Gibson adds, Cod. 162, that it is much
to be wished that law should be strictly executed, especially
in temporary cases (if such are really comprehended and
allowed in this Canon), and that the persons granting such
titles were made sensible, of the consequence of what they do,
and of the scandal and inconvenience of multiplying clergymen
far beyond the number of benefices.

In cases of letters dimissory, the rule of the Canon law is,
that the bishop, whose business it was to see that there was a
good title, shall be liable for the penalty for a person ordained
without sufficient title, although another bishop ordained him.

By a constitution of OMo, it is declared to be '* danger-
ous to ordain persons unworthy, void of understanding, ille-
gitimate, irregular, and illiterate ; and therefore deemed, that,
before the conferring of orders by the bishop, strict inquiry be
made of these things,'* 3 BunCs £• L. 31 ; and according to the
canonists, if a bishop knowingly ordains any unworthy person
in the Romish church, he is said to be guilty of a mortal sin.
AyL Parer. 401.

By Cation 34, with regard to the acquirements necessary
for orders it is directed thus, " No bishop shall admit any
person into sacred orders, except he hath taken some degree of
school in either of the two universities, or at the least except he
be able to yield an account of his faith in Latin according to
the thirty-nine articles ; and with respect to priests orders it is
especially enacted, by the 13 Eliz. c. 12, that none shall be

^^rlitnattom 605

made minister unless he first bring to the bishop of the diocese, Testiino-
from men known to the bishop to be of sound religion, a testi- °'^ '
monial, both of his honest life, and of his professing the doctrine
expressed in the thirty-nine articles.

With regard to moral conduct, it is further declared by the
34th Canon f that no bishop shall admit any person into sacred
orders except " he shall then exhibit letters of testimonial of
** his good life and conversation, under the seal of some college of
** Cambridge or Oxford, where before he remained, or of three
'^ or four grave ministers, together with the subscription and
'' testimony of other credible persons, who have known his life
'* and behaviour for three years next before." It will be observed,
that this applies to each class of orders, deacons as well as
priests.

By the constitutions of OthOf 1237, 2 Johnson^ s Canons ^ Examina-
it is enjoined on bishops to make true and diligent inquiry ^^^
before ordination ; and by our own 35th Canon^ it is de-
clared that the bishop, before he admits any person to holy
orders, shall diligently examine him in the presence of those
ministers that shall assist him at the imposition of hands, and if
the bishop have any lawful impediment he shall cause such
ministers carefully to examine every such person so to be
ordered ; and if any bishop or suffragan shall admit any to
sacred orders, who is not so examined and qualified as before
we have ordained {viz, by Canon 34), the archbishop of his pro-
ifince having notice thereof, and being assisted therein by one
bishop, shall suspend the said bishop or sufiragan so offending,
from making either deacons or priests for the space of two years.

Of common right and by the Canon law this right of ex-
amination pertains to the archdeacon, and by our own form of
ordination it appears to be his office to present the persons that
are apt and meet ; the duty is however in fact now usually ex-
ecuted by one of the bishop's chaplains. AyL Parer, A02 ;
Gibs. Cod. 169.

The person who confers orders ought to be the proper bishop By whom,
or diocesan of the person to be ordained ; or at least the person — ; — j-
to receive orders ought to come with leave from his own bishop jj^^^
for so doing, which license is called letters dimissory or com-
mendatory. AyL Parer. 402*

By Canon 34, no person shall henceforth admit any person
into sacred orders which is not of his own diocese, except he be
either of one of the universities of this realm, or except he shall
bring letters dimissory from the bishop of whose diocese he is ;
and by a constitution of JVei/terskead, archbishop of Canter-
bury, a bishop ordaining one of another diocese, without
special license of the bishop of that diocese, shall be suspended
from the conferring of that order, to which he shall ordain any

606 {^rliinatfom

By whom, gueh person^ until he shall have made a proper satisfiietioii.
-Bkhop of S Bumts E, L, 35.

diocoM. The being one of the universities means a member of some

Letten dU college, SO as that he may be ordained " ad iUuhtm coltegii suiJ*
wJ»^m*y During the vacancy of any see, the right of granting letters

^nu dimissory within that see rests in the guardian of the spi-

\'«c«ttcy of rituality, who, if he be of episcopal order, may also ordain.
*^* The vicar general of a bishop, in parts remote, and those who

have exempt jurisdictions may also grant letters dimissory. Cribs.
Cod* 164; Aj/L Parer.iS2. Butnot archdeacons or officials. /&.
Nor the arclibishop as metropolitan, except during his visita-
tion, when he may both grant them and ordain. lb.
To whom A bishop may grant fetters dimissory to such as are born in
may b« the diocese, or are promoted or resident in it. lb.
grinttd. 'piig fitness of the person to be ordained (as to life, learning,

title, or the like), ought to appear before the granting the
letters dimissory. And the bishop who grants the letters is to
make the inquiry, and not he to whom the letters are transmitted ;
for he is to presume that the persons recommended to him are
fit and sufficient. Gibs. Cod. 165.

They who shall be promoted to holy orders by other than
their own bishop, and without his license, shall be suspended
from the exercise of such order until they shall obtain a dis-
pensation. Litidw. 26. A dispensation from their own bbhop
IS sufficient. lb.
Time of. By the Canons of Lanfranc, 1071, it was enjoined, that

• ordination shall be performed at certain seasons, which was

usually understood to be the ember weeks. Indeed, so early
as the fourth or fifth century, the jejunia quatuor tentpomm, or
ember weeks, became the fixed period for ordination; and
so the practice continued both here and elsewhere; in the
convocation, 166S, there was a special enforcement of the
ancient law, and so it is also ordained by the thirty-first Canon.
But by 3 ^ 5 £«{. 6, and 13 ^ 14 Car. 2, as appears by the
preface to the forms of consecration and ordination, the bishop
may admit to the order of deacon or priest at the times ap-
pointed by the Canon, " or else upon some urgent occasion,
upon some other Sunday or holiday in face of the church."

Gibson says, the practice has been for the bishop to have the
archbishop's dispensation for departing from the Canon ; for-
merly, he adds, it was a special prerogative of the see of Rome ;
and the upper house of convocation, in Mary's reign, (in order
to make the number of clergy sufficient to supply the cures),
resolved that the bishops should be authorised by the pope '* to
give orders extra iempora prcescripta i* so also Godolphin,
Abr. App* 19.

But as the Kubrick seems to leave it to the judgment of the

^UtoattotU 607

bishop, without any direction to have recourse to the archbishop, ^""^ ^*
it may be a question whether such dispensation is now neees*
sary. S Bum'i E. L.9&\ Ayl. Parer. 402.

By Canon 31, the giving of orders is directed to be in the Place,
cathedral or parish church where the bishop resideth ; so the
bishop's jurisdiction is not confined to one certain place, but he
may orddn at the parish church where he may reside ; and
Irish bishops do sometimes ordain in England, but regularly
leave ought to be obtained by the bishop within whose aiocese
the ordination is performed. 3 Bum's £« L. S8.

In the liturgy established, 2 Ed. 6, the form given for ordi- Form 9(.
nation did not much differ from the present. By 3 ^ 4 Ed. 6,
c. 10, all boolcs used for the service of the church, except those
set forth by the king's majestv, were abolished, and by an act of
the next parliament, 5^6 Ed. 6, c. 155, the Book of Common
Prayer was annexed to that statute, adding also a form and
manner for making and consecrating archbishops, bishops,
priests, and deacons, to be of like force and authority as the
book of Common Prayer. This form was subsequently recog-
nised and established by the 86th article of the church,
and by the sixth Canon ,- and finally, by the Act of Uniformity,
13 ^ 14 Car. 2, c. 4, which by ss. SO and 3i, enacts, that '' all
subscriptions to be made to the thirty-sixth article shall be
construed to extend (touching the said thirty-sixth article) to
the book containing the form and manner of making, ordaining,
and consecrating of bishops, priests, and deacons, in this act
mentioned, as the same did heretofore extend unto the book
set forth in the time of king Edward the Sixth."

The form of ordination therefore is that which is contained in
the Books of Common Prayer.

By 13 EU». c. \2f none shall be admitted to the office of oaths. &c.,
deacon or ministry ; unless he shall first subscribe to ail the necessary.
articles of religion, agreed upon in convocation in the year 156S, Sabscnp.
which alone contain the confession of the true Christian faith and ^|o° ^o &r-
the doctrine of the Sacraments. ^

By 1 Eliz. c. 1, and 1 W. 3, c. 8, every person taking orders Oaths of
before he shall receive or take any such orders, shall take the allegiance
oaths of allegiance and supremacy, (a) before the ordinary or ^^ ""'*'*'
commissary.

(a) By 24 Geo, 3, c. 35, an exception is made on behalf of subjects
of foreign couotries, desirous of being ordained according to the form of
the church of England ; and bishops n^y ordain such without requiriog
the oath of allegiance ; but they are not to exercise their office within his
Mfljesty's dominions, and vid. 26 Geo, 3, c. 84 ; and 59 Geo. 3, c. 60.

608

(!^r]r(uat(om

necessary,

Subscrip-

tionto

articles.

Letteis of
orders.

Fee for.

Besides the subscription to the articles of religion above
required^ it is further directed, by Canon 36, that no person
shall be received into the ministry, except he shall first sub-
scribe to the articles prescribed by that Canofu Ante, 276.

It is safe (though notnecessary) for the person ordained to have
with him the writing or letters testimonial of ordination, under
the bishop's seal, containing the names of the person ordaining,
and of the person ordained, and the taking of such orders, and
the time and place of ordination and the like ; but these letters
testimonial are no part of the ordination.

By Canon 35, no fee or money shall be received either by the
archbishop, or any bishop, or surrogate, either directly or indi-
rectly, for admitting any person into sacred orders ; nor shall
any other person or persons under the said archbishop, bishop,
or suffragan, for parchment, writing, wax, sealing, or any other
respect thereto appertaining, take above I0s» under such pains
as are already by law prescribed.

And by Canon 137, every parson, vicar, and curate, is re-
quired to shew his letters of orders to the bishop at his first
visitation, or at the first visitation after his admission, to be
allowed or disallowed; and if approved, to be signed by the
registrar ; the whole fees to be paid but once in the whole time
of every bishop, and afterwards but half the fees.

As to simoniacal promotion to orders, vid. " Simony.*'

First.

The following instructions, taken from Mr. Hodgson's useful work,
have been annexed, as doubtless they will be found serviceable to persons
called upon practically to direct the course to be adopted for candidates
for orders.

Candidates for deacons' orders, are to make a written application to
the bishop three months before the time of ordination, stating their age,
college, academical degree, and the usual place of their residence ;
together with the names of any persons of respectability, to whom they
are best known ; and to whom the bishop may apply, if he thinks fit,
for further information concerning them.

They should also transmit the following six papers to the bishop, in
whose diocese the curacy, which is to serve as a title, is situate, three
weeks before the day of ordination, or at such other time as the bishop
shall appoint ; and in due time, the bishop's secretary will inform them,
when and where to attend for examination.

If the papers are sent by the general post, they must be enclosed in
several packets, addressed to the bishop, and weighing less than one
ounce.

Letters testimonial from his eoUege ; in case the candidate shall have
quitted college, he must also present letters testimonial for the period
elapsed since he quitted college, in the following form ; signed by three
beneficed clergymen, and coun tersigned by the bishop uf the diocese in which

^limatfom 609

their benefices are respecdvely sitaate, if they are not beneficed in the
diocese of the bishop to whom the candidate applies for ordination.

Form ofUUers testimonial for orders. Second.

To the Right Reverend by divine permission, Lord Bishop

of (file bishop in whose diocese the curacy conferring the title

is situate)* "Whereas our beloved in Christ, A. B., Bachelor of Arts,
(or other degree^ of Collie, in the University of

hath declared to us, his intention of offering himself as a candidate for
the sacred office of a deacon, and for that end, hath requested of us,
letters testimonial of his good life and conversation ; we, therefore,
whose names are hereunto subscribed, do testify that the said A. B.,
hath been personally known to us for the space of last past ; that

we have had opportunities of observing his conduct ; that during the
whole of that time, we verily believe that he lived piously, soberly, and
honestly ; nor have we, at any time, heard any thing to the contrary
thereof ; nor hath he, at any time, as far as we know or believe, held,
written, or taught anything contrary to the doctrine or discipline of the
United Church of England and Ireland ; and moreover we believe him,
in our consciences to be, as to his moral conduct, a person worthy to be
admitted to the sacred order of deacons.

In witness whereof, we have hereunto subscribed our names,
this day of in the year of our Lord, one thousand eight
hundred, and C. D., Rector of

E. F., Vicar of
G. H., Rector of (a)
[See before, as to countersigning, if not in the diocese.]
Form of Notice, or "si quis," and of the certificate of the Thiid.
same, having been published in the church of the parish where
the candidate usuaUy resides, to be presented by the candidate if
he shall have quitted coUege,
Notice is hereby given, that A. B., Bachelor of Arts, (or other degree,)
of College, Oxford, (or Cambridge,) and now resident in this

parish, intends to offer himself a candidate for the holy office of a
deacon, at the ensuing ordination of the Lord Bishop of
and if any person knows any just cause or impediment, for which he
ought not to be admitted into holy orders, he is now to declare the
same, or to signify the same forthwith to the Lord Bishop of

We do hereby certify, that the above notice was publicly read by the
undersigned C. D., in the parish church of in the county

of during the time of divine service on Sunday, the

day of last, (or instant), and no impediment was alleged.

Witness, our hands, this day of in the year of our

Lord, one thousand, eight hundred, and

C. D., Officiating Minister.
£. F., Churchwarden.
Certificate from the Divinity Professor in the University, that the Fourth.
candidate has duly attended his lectures.

Certificate of the candidate's baptism, from the register book of the ^ihh.
parish where he was baptized, duly signed by the officiating minister,

(a) Not persons giving the title.

B R

610 4^i2iftmttotu

to show that he has completed his age of twenty-three yean; and in
case he shall have attained that age, hnt cannot produce a oeitlficate of
his haptism, then his father or m^er, or other competent peraon, must
make a declaration, before a jnstice of the peace, of the actual time of
his birth ; and here it may be necessary to remaik, that by an act of the
44 Geo. 3, e. 43, intituled, " An Act to enforce the due obserYance of
the Canons and Rubric^ respecting the ages of persons to be admitted into
the sacred order of deacon and priest ;" it is enacted, that thenceforth
no person shall be admitted a deacon, before he shall have atfained the
age of three and twenty years complete ; and that no person ahall be
admitted a priest before he shall have attained the age of four and
twenty years complete ; and that if a person shall be admitted a deacon
before he shaU have attained the age of twenty three years complete, or
a priest, before he shall have attained the age of twenty^four yean
complete, such admission shall be void in law : and tbe person so
admitted, shall be incapable of holding any ecclesiastical preferment.
Sixth. Nomination as a title for orders^ if incumber non-residetU.

To the Right Reverend Lord Bishop of these axe to

certify to your lordship, that I, C. D., rector, (or vicar, &c.,) of
and your lordship's diocese of do hereby nominate A. B.,

Bachelor of Arts, (or oiher degree^) of College, in the University

of to perform the office of curate, in my church of

aforesaid ; and do promise to allow him the yearly stipend of
pounds, to be paid bv equal quarterly payments, (as to amount of
stipend, vid. ante, 280,) with the surplice fees amounting, on an average,
to pounds per annum, (if they are intended to be allowed,)

and the use of the glebe house, garden, and offices, which he is to
occupy, (if that be the fact, ante, 285 : if not, state the reason, and name
where and at what distance from the church the curate purposes to
reside) ; and I do hereby state to your lordship, that the said A. B.
does not intend to serve, as curate, any other parish, nor to officiate in
any other church or chapel, (if such be the fact, otherwise state the real
fact) ; that the net annual value of my said benefice, estimated according
to the act of parliament, 1^2 Vict. c. 106, m. 8 ^ 10, is pounds, and
the population thereof, according to the latest returns of population made
under the authority of parliament, is, that there is only one ehnrch

belonging to my said benefice, (if there be more, state the £Eu;t) ; and that
I was admitted to the said benefice on the day of 18 .(a) ** And
I do hereby promise and engage with your lordship and the said A. B.,
that I will continue to employ the said A. B., in the office of curate in
" my said church, until he shall be otherwise provided of some ecclesiaa-
" ticsl preferment ; unless, for any fault by him committed, he shall be
'* lawfully removed from the same ; and I hereby solemnly declare that
" I do not fraudulently give this certificate to entitle the said A. B. to
" receive holy orden, but with a real intention to employ him in my
" said church, according to what is before expressed.*'

Witness, my hand, this day of in the year of our

Lord, one thousand, eight hundred, and

(Signature and address of) C. D.

(a) From this to the end only to be used in titles for deacon's oiders.

^rtiCnatibit. 6ii

Declaraiion to he written at the foot of the Nomination.
We, the before-named C. D., and A. B., do declare to the said Lord
Bishop of as follows, namekf, I, the said C. D., do declare,

that I, hondfide^ intaid to pay, and I, the said A. B., do declare that I,
bond fide, mtend to reoeive the whole actual stipend mentioned in the
Ibregoing nomination and statement, without any abatement in respect
of rent or consideration for the use of the glebe house, garden, and
offices thereby agreed to be assigned, and without any other deduction
or reservation whatsoever, anUf 277*

Witness, our hands, this day of in the year of our

Lord, one thousand, eight hundred, and

(Signatures of) C. D.

A. B.
6th. Nomination as a title for orders^ if incumbent is resident.

The same form as No. 6, so far as " quarterly payments ;*' then
proceed as follows : — And I do hereby state to your lordship, that the
said A. B», intends to reside in the said parish, in a house, (describe its
situation so as clearly to identify it,) distant from my church mile,

(if A. B., does not intend to reside in the parish, then state at what
place he intends to reside, and its distance from the said church) ; that
the said A. B. does not intend to serve, as curate, any other parish, nor
to officiate in any other church or chapel, (if such be the fact, otherwise
state the real &ct) ; and I do hereby promise and engage with your
lordship, and so on (in the same form as No. 6 to the end.)

Witness, my hand, this day of in the year of our

Lord, one thousand, eight hundred, and

(Signature and address of) C. D.
The declaration to be written at the foot of the nomination, is to be
in the same form as No. 6, so &r as the word " statement," after which
proceed as follows: — '* Without any deduction or reservation what-
soever."

Witness, our hands, this day of in the year of our

Lord, one thousand, eight hundred, and

(Signatures of) C. D.

A. B.
It is proper to observe, that the following declaration is to be sub*
scribed previous to ordination, in the bishop's presence, by all persons
who are to be ordained.

I, A. B., do willingly, and from my heart, subscribe to the thirty-
nine articles of religion of the United Church of England and Ireland,
and to the three articles in the thirty-sixth canon ; and to all things
therein contained, ante^ 276, and they are also to take the oaths of alle-
giance and supremacy.

The present bishop of London, in his printed instructions, to his own
candidates for orders, recommends them to read with attention the
subscriptions and oaths ; to study with great care the ordination service ;
and also to peruse the canons of 1603, the spirit of which, (and, as far
as it is practicable, the letter of them,) his lordship adds, " the clergy
" are bound to observe in their conduct, as members of the established
" chuwh."

612

^rbtnattoA^

Pint

Hccoodly.

I'liirdly.
Fourthly.

Fifthly.

Instruetiofu as to prie$f» orders.

The following papers are to be sent by a candidate for priest's oiden
to the bishop, dree weeks before the day of ordination, or at such other
time as the bishop shall appoint ; and in due time he will be informed hy
the bishop's secretary when and where to attend for examination.

Where a candidate applies for priest's orders, to the same bishop
who ordained him deacon, the papers 1 and 2 only are required.

Letters testimonial of his sound doctrine, good life, and behavionr,
for the time elapsed since he was ordained deacon, signed by three
beneficed clergymen, and countersigned by the bishop of the diocese
in which their benefices are respectively situate ; if not beneficed in the
diocese of the bishop, to whom the candidate applies for ordination.
[See form of testimonial, in instructions as to deacons' orders. No. 2.]

Notice or " si quis*^ and certificate of the publication thereof! (See
form in instructions as to deacons' orders, No. 3.)

In case the candidate was ordained deacon by the bishop of another
diocese, he must produce not only the papers, Nos. 1 and 2, but also
the following papers, Nos. 3, 4 and 5.

As it is not common for a deacon to be ordained priest by any other
than the bishop who admitted him to deacon's orders, a candidate
applying to the bishop of another diocese must, in the first instance,
state to him the particular circumstances which occasion the applicatioo,
the curacy which he served, and for what period*

Letters of deacon's orders.

A certificate of his baptism. (See directions as to the same
No. 5, in the instructions for deacon's orders.)

Nomination, if he be not already licensed. (See forms, Nos. 6
and 6, in the instructions for deacon's orders.)

The same subscriptions and oaths are to be made and taken by
candidates for priest's orders, as are mentioned in the instructions as to
deacons' orders.

Candidates for priests' orders are requested, when they send their
papers, to state their place of residence, and post town.

613

^rtsil).

Division of country into.
Boundariea of.

Perambulations.

Not triable in ecclesiastical court.
Of yills may be tried there. Sed qy.
Issue on, not granted out of chansery .
Commission to ascertain.
Statutable provisions for.

17 Geo. 2, c. 37 ; 41 Geo. 8, c. 101.
Elections in.

Right of election under deeds or charters.
Usage.
Agreements*

Words ' ' inhabitants," " inhabitants, parishioners. ' '
Mode of election.
Nominations in.
Mandamus.
To admit.
To restore.

To meet to do public acts.
Ministerial.
Discretionary.

The word " parochia" (a) is equivocali having various ac- Divigion»
ceptations, sometimes meaning the whole diocese, which notion
of the word often occurs in the councils. Sometimes the word
is taken for such part of the diocese as was assigned to some
priest, arbitrarily sent and maintained by the bishop, to whom
such a parish paid all the dues, out of which the bishop again
paid stipends to his clerOT. GodoL Abr, 355.

The work of dividing the country into parishes is said to have
been originally began by pope Evaristus, A.D. 110. In Eng-
land the parochial distribution is said, by Spelman, to have been
begun by Theodorus, archbishop of Canterbury, A.D. 668.
Spelm. ConeiL 15S. But Speed ascribes it to Honorius the

(a) Ayliffe Parer^ 404, differing from every one else, and therefore
somewhat pedantically, derives the word " Parochia" from Uaftxn,
prwbeo, frx>m the distribution of the Sacraments to all within the district ;
but, it seems obviously derived from Ilaf eucia, and so it is considered by
Dufresne and others.

614

parish*

Division.

Bonnda-
rie*.

Peiambii'
lationfl.

Fifths archbishop of Canterburyi A.D. 636. Ayl^e Pater.
405 ; GodoL Abr. 72.

Nevertheless, Hobart, C. J., is reported to have said that,
" before the council of Later an^ 1179, there were no parishes."
But this notion cannot be maintained ; because we know from
Bede^ that when the Danish devastations had ended, parishes
began to increase rapidly. And in the laws of Edward the
Confessor, it is said '' that there were then three or four
** churches, where there had been but one before/* Ayf^M^
Parer. 406.

In the reign of Edward the Third, A.D. 1S71, writs were
issued to the sheriffs of all the counties in England, to cause
them to return to him the number of the parish churches in each
shire, in order to impose a tax upon them. Stawe has preserved
a list of the several counties of England, in which the number of
parishes in each shire is given, and the several taxations on die
shires, in respect of the number of parishes in each fixed, p. 269.

The number of parishes there given appears to be 8632, and
the number of shires 37, besides Uie county palatine of Chester,
the bishoprick of Durham, and the city o{ London, The parishes
in the county palatine are not included in the above list, but
those in Durham and London are, and appear to be, in Durham,
6 1 , and in London, 1 1 0 ; 1 Pari. Hist. 307. The number stated
by Blackstone, 1 Comm. Ill, from Cribson^s Britannia, is ten
thousand, not very greatly increased therefore since 1371.

The reduction of the country, however, into its present paro-
chial limits was efiected gradually, being the work of many gene-
rations; the boundaries of parishes depend consequently
upon ancient usage, never having been limited by act of parlia-
ment, nor set forth by special commissioners. 1 StUL 243.
But care is or ought to be taken to preserve the boundaries by
perambulations. In some places parishes seem to interfere
when some place in the middle of one parish belongs to another
that is distant ; but this has generally happened by an unity of
possession, when the lord of a manor was at the charge to
erect a new church, and make a distinct parish of his own
demesnes, some of which lay in the compass of another parish.
lb. 244 ; Ayliffe Parer, 408. Some lands were never at all
united to any parish, and remain to this day extra-parochial.
Formerly, perambulations of boundaries of parishes were more
strictly attended to than in modern times; and parishioners
being legally entitled to make these perambulations, it has been
held that they may justify the going on a man's land, or into his
house, if on the necessary track, C>o. Eliz. 441 ; FUx. N. B.
185. It was even thought that a custom for refreshment during a
perambulation might be supported, as due of right from a houseor

$art«((), 615

land* But such custom, on being questioned, was held to be Perambu-
invalid. 2 Lev. 163 ; 2 Roll. Rep. 259; Gibs. 213. (a) ''''°°''

But an entry into a particular house cannot be justified unless
it stand upon the boundary line, and unless it is necessary to
enter it, for the purpose of effecting the perambulation. There-
fore, a plea, in an action of trespass for breaking and entering,
the plaintiff^'s dwelling-house, that the house was in the parish
of B., in which there was an immemorial custom for all the
parishioners to go through the house, upon their perambulation
of the parish boundaries, and a justification under the custom,
was held insufficient, for not stating that the house was on the
boundary line, or that it was necessary to pass through the house,
for the purpose of the perambulation; and issue having been
joined on such a plea, and a verdict found for the defendants, it
was held that the plaintiff^ was entitled to judgment non ob^
siante veredicto ^ Taylor v. Devey, 7 Ad. ^ EU. 412. Lord
Denman^ in giving the judgment of the court in that case, said, Entry of
*' the right to perambulate parochial boundaries, to enter pri- hoiuei.
** vate property for that purpose, and to remove obstructions Removal of
*' that might prevent this from being done, cannot be disputed, obrtniction.
*' It prevaik, as a notorious custom, in all parts of England, is
*' recorded by all our text writers, and has been confirmed by
" high judicial sanction. Anderson^ C. J«, and the whole court
** of common pleas, assert the custom and the right, in the most
*' unqualified manner, in Gooddav v. MicheU^ Owetif 72 ; Cro*
** EUz. 4il ; the pleadings in which are to be found in Coke's
** Entries^ 651 b. That case indeed appears to be the only
** decision in the books on the subject of parish perambula-
'* dons. There the justification failed ; but the defect was in
** the mode of pleading, for the defendant's right was thought
'' to be placed on prescription, and not on custom; and,
** besides, the bar did not embrace all the trespasses laid in the
** declaration. These material faults, being pointed out and
** adjudged fatal, superseded the necessitv for examimng the
** plea more minutely, and inquiring whether the custom was
'' well laid. It claims a prescriptive right to enter plaintifif s
" close exactly in the same manner as the defendant in this

(a) These perambulations, though of great use, in order to preserve
the bounds of parishes, were in times of popery accompanied with two
great abuses — feasting and superstition, being performed with proces-
sions, &c. The injunctions of queen Elizabeth forbad processions, but
retained the useful and innocent part of the perambulations ; these
superstitions, though at first not easily suppressed, yet being so now, it
is to be r^;retted that the perambulations are not held more regularly.
Gibs, Cod. 239.

616

^an'tfl;*

Bounda*
ries.

Peramba-
latioQi.

Not triable
in the ec-
clesiastical
court

** action and justifies under the custom for all and every the pa-
" rishioners upon t)ie perambulation of the boundaries to enter
*' plaintiff's house, which is averred to be within the parish.

Now it is obvious that the right to perambulate boundaries

cannot confer a right to enter any house in the parish, how-
'* ever remote from the boundaries, and thouch not required to
'* be entered for any purpose connected with the perambulation ;
'' and it seems to follow that a custom, on that occasion to enter
*' a particular house, which is neither upon the boundary line
*' nor in any manner wanted in the course of theperambulaticm,
" cannot be supported.'*

From an early period it seems to have been much discussed
whether the boundaries of parishes were triable in the ec-
clesiastical court ; the right was strongly insisted on by the
clergy, on the ground that as the division into parishes was
an ecclesiastical work, and originally for ecclesiastical purposes
only, that the boundaries of those divisions became a matter of
ecdesiastical cognisance, and properly therefore triable in those
courts.

By a provincial constitution of Boniface^ 1861, archbishops
and bishops were forbidden to appear to answer before a
secular jurisdiction, for, amongst other things, ** having
taken cognisance of causes purely spiritual, as tithes, oblations,
bounds of parishes, and the like, which cannot concern the
secular court." 2 Johnson* s Canons. By a small tract printed
by Thomas Godfrey, in Henry the Eighth's reign, the author
admits that in times past the spiritual court held plea of these,
and of divers other things, though, he adds, rather by custom
and the sufferance of princes, than by any mere spiritual right
they had. AyL Parer. 408. Indeed the assertion of the right
in the above constitution can only be considered as part of the am-
bitious inroads made, about this period by the papal clergy,
upon secular jurisdictions. Ante, 240. Indeed, these consti-
tutions of Boniface are perhaps bolder in their claims than any
that had ever been ventured on before, and would hardly have
been submitted to by any prince but Henry the Third, in whose
reign they were promulgated. But it has long been clear law,
that if the boundaries of a parish come in question they can
only be tried in the temporal court. Lord Coke gives as the
reason, that thereupon depends the title of the inheritance to
the lay fee, whereof the tithes are demanded. But Lord Hale and
Bridgman consider that the reason why the bounds of parishes
are liable at common law, is because these bounds depend upon
prescription. 3 Keble, 286; Gibs. Cod. 239; 1 Lev. 78.

In the case of Petler v. Gatman, a distinction was made be-
tween the bounds of vills, and of parishes. A prohibition was
prayed for, on the ground that the bounds of two viUs, vtM. D. and

fatidf), 617

S. in the parish of A. were in question ; one party claimed tithes, Boaoda-
as lying in the vill D. and the other in the vill of S. in the same "^

parish ; but the prohibition was denied by the whole court ; for Of Villf.

though the bounds of a parish are not triable in the ecclesiastical

courti yet the bounds of vills in the same parish are triable there ;

which case is given both by Oibson and Ayliffe and Finer 9 Abr.

Prohibition jL. 1, as an authority for the position that the bounds

of vills are triable in the ecclesiastical court. It seems difficult

however to discover any principle on which such a distinction

can be founded. The division of the country into parishes was

for ecclesiastical purposes, but the division into viUs for civil

objects only, 1 Mod. 157 ; it would seem, therefore, that the

boundary of a vill was not in itself, in any way, a matter of

spiritual jurisdiction ; but even if it were, still the reasons for

withdrawing the trial of parochial boundaries from the court

christian apply with equal force to the boundaries of villa.

There seems to be no other authority for the distinction except

the above case, which is reported at greater length both in

Siderfin^ 89 ; and in 1 Keble, 369, under the name of Butler v.

Gateman. The facts are most fully ^ven in Siderjin^ '' HoU

*' moved for a prohibition, for that the libel was for tithes of

*' Butler's close, and the defendant said, that king Hen. 8, by let-

*' ters patent, granted all the tithes of the vill and hamlet of A. to

** the corporation of Abingdon, and that the said close was parcel

** of such hamlet, and not of the hamlet of B. The matter was

" twice moved, and at last it was agreed that no prohibition

" should be granted ; and the distinction is, when the foundation

*' of the libel is for something belonging to the cognisance of

** the common law, and when the thing, triable at common law,

** is collateral to the matter complained of in the libel ; as if the

*' libel had been for tithes of a particular close, and the defend-

*' ant had said the close was the close of another, and not that

** supposed in the libel. The spiritual court might try whether

** it was." Twysden further said, ** it had been adjudged that

** they might try the bounds of a vill in such a case, and for

** that they should not be prohibited ; but if the bounds of the

'' parish came in question, they might be prohibited.'' But the

reporter adds ** QutBre ditersitatem ;" in the report in Keble

the objection to the prohibition seems to be put on the ground

that both parties were spiritual; and Twysden says, according

to Keble^ " that he saw no difference betwixt the bounds of a

" tytbing and of the parish ;" almost the reverse of what he is

reported to have said by Siderfin. This case occurred 14 Car. 2.

The case of Ives v. Wright, Roll. Ab. 3 IS, followed the next

year, which decision is thus stated, " If the bounds of a vill in a

** parish come in question in the spiritual court in a suit between

** the parson impropriate, and the vicar of the same parish^ as

618

fiwiah*

Bounda^

Is8tt€ not
graDtable
by court of
chancery.

€k>nimis-
non to as-
certain
boundaries.

€t

t€

" if the vicar claim all the tithes within the vill of D. within
'' the parish, and the parson all the tithes in the rest of the
" parish ; and the question is, whether certain lands whereof
** the vicar claims the tithe be within the vill of D. or not ;

forasmuch as it is between spiritual persons, vits. the parson

and vicar, although such person be a layman and the par-*
" sonage a lay fee, yet it shall be tried in the spiritual court,
^' and in the above case prohibition was denied." And it is
generally laid down, that in a suit between parson and vicar in
court christian for tithes, prohibition has always been denied,
unless there be other matter, which is determinable at common
law. 2 RoU. Rep. 56.

The ordinary and regular mode of trying the bounds of
parishes is by an action at law. It is not a question upon which
the coiut of chancery will direct an issue. In St. Lute's v.
SL Leonard's f 1 Bro. C. C 40, an application was made to the
court of chancery by bill, to have an issue directed to describe
and ascertain the boundaries between it, and the adjoining
parish the defendants ; after a search for precedents had been
made by order of the court, Lord TAurhw said, " if he should
** entertain this bill he did not see what case would be peculiar
** to a court of law." It appears, by other cases also, that such
applications on the part of parishes have been always denied.
3 Anstr. 887 ; 2 Eden. 837.

The granting commissions to ascertain boundaries is a very
ancient branch of equitable jurisdiction ; but it has been said,
that in all the cases where the court has entertained bills for
establishing boundaries, the soil itself was in question, or there
has been an apprehension that there might be a multiplidty of
suits. 2 Eden, 335. In Wake v. Conyers, 2 Eden, 331, which
was an application for a commission to ascertain the boundaries
of manors. Lord Narihington said, " if we were to make
*' this a precedent, it would be in effect to issue commissions to
** settle boundaries all over the kingdom* For if of manors,

why not of honours, of hundreds, and all other inferior de>

nominations of districts? if the plaintiff were afraid of losing
'* the boundaries of their manors they may preserve them by
** perambulations, as often as they please ; but the court of
^* chancery could not fix tiie limits of a legal right, if any, unless
** the jurisdiction of the court was superinduced by some
^ equitable circumstances."

It appears from Fitssherberi N. B. 133, that where parties
are in doubt about the bounds of their lordships, or of their
towns, in such case they may, by assent, sue a writ directed
to the sheriff to make the perambulation, and to set the bounds
and limits between them with more certainty. Vin. Abrid,
** Perambulation.'*

€f

^tm* Old

There are Bome cases in which the legislature has provided BouimU-
a statutable mode of ascertaining boundaries. "^'

By 17 Geo* % c. S7» it was enacted, that where there shall be
any dispute in what parish or place improved waste, and drained
and improved marsh lands lie, and ought to be rated, the
occupiers of such lands, and bouses built thereon, tithes arising
therefrom, mines therein, and saleable underwood, shall be
rated to the relief of the poor, and to all other parish rates
within such parish and place which is nearest to such lands ;
and if on application to the oiBcers of such parish or place, any
dispute sbidl arise, it is to be determined by the justices of peace
at tne sessions : but this shall not settle the boundary of a parish,
except in cases of relief to the poor*

By the 41 Geo. 3, c. 109, e. 3, commissioners appointed in
or by virtue of inclosure acts, are authorized and required by
examination of witnesses, upon oath or affirmation, and by such
other legal means as they think proper, to inquire into the
boundaries of parishes, manors, hamlets, or districts, and if it
appear to such commissioners that the boundaries of the same,
are not sufficiently ascertained, and distinguished, they shall as-
certain, set out, determine, and fix the same respectively ; and
after the said boundaries shall be so ascertained, &c., the same
shall be the boundaries of such parishes, manors, hamlets, or
dbtricts«

But before they proceed to ascertain and set out the boundaries
of such parbhes, manors, hamlets, or districts, they are to give
public notice by writing, under their hands, to be affixed on
the most public doors of the churches of such parishes, and
also by advertisement, and also by writing to be delivered to,
or left at the last or usual place of abode of the respective
lords, or stewards of the lords of the manors, in which the lands
to be enclosed shall be situate, and of such adjoining manors,
ten days at least, before the time of setting out such boundaries,
of their intention to set out, and determine the same res-
pectively.

And within one month after their ascertaining, &c., the
same boundaries, they are to cause a description thereof, in
writing, to be delivered to, or left at, the places of abode of one
of the churchwardens or overseers of the poor of the respective
parishes, and also of such respective lords or stewards.

And it is provided, ** that if any persons interested in the
said determination of the said commissioners shall be dissatisfied
therewith, they may appeal to the next quarter sessions of the
county."

As many offices in a parish are elective, and many cases Elections

have been decided upon the question of parish elections, it is «n.

fit in this place to notice those cases, and to inquire into the Under deed
mode and manner of conduoting such elections; where the or charter.

620

9ari^*

Electioos
io.

tJmler deed
or charter.

Ungeto
limit the
right.

Ri^ht
limited by
parochial
tneetiiig.

election i8 to be made under a deed or charter, recoorae must
be had to the instrument itself to ascertain in whom the right
of election (a) is vested ; but it firequently happens that the
language used, is deficient, in precision ; in such case, recourse
must be had to usage ; 3 Aik. 677 ; or if there be no usage,
then observing the maxim, ** ut res magis vaUai quam pereat^
courts must, for the purpose of certainty, as far as toey can,
ascribe a distinct sense to such words. 14 Ves. 26L

Speaking of usage, Lord EUton asks '' what is asaee, but a
collection, through a great period of time of the regiuations by
which the parish, has from time to time agreed to put a con-
struction upon an instrument under which their title was derived.
14 Ves, 8; Ambl. 84; 1 Ves. Sen. 413. Where usage is re-
sorted to, to cut down that sense which the words will bear, and
impose upon them a restrictive character, clear evidence ought
to be produced, that the instrument, admitting a larger sense,
has been practically acted upon in the more limited sense,
3 Atk. 577. Still if the usage be satis&ctorily shown, the
election may be confined to the smaller number. 10 VeM. 3S9,
344 ; and vid. 4 East, 327 ; Cowp. 250. In the case of Gi^
V. Handfy, 3 T. R. 288 n, it appeared that an advowson was
eranted to the mayor and burgesses generally, but the usage
had been for the mayor and select body to nominate to the
advowson, without any interference of the commonalty or
burgesses at large ; there was also a supposed bye-law in the case
by which it was said, the select body bad appropriated the
advowson to themselves ; but without reference to such bye-law,
the court said, that the uniform usage was a good construction
of the charter, and that the mayor and aldermen only ought to
have the disposal of the living.

Whether parishioners may by convening a general meedng
upon due notice, limit the number of electors, is not decided ;
in Faulkner v. Elgar^ AfB.SfC. 458, Littbfdate, J., said^ •' Nor
'' it seems have parishioners, at the time they meet for an
' election, a right to restrict the number of electors ; cor-
' porators have a right to make reasonable bye-laws, even to
I restrict the number of electors, but that must be done at a
I corporate meeting convened for the purpose, and of which
^ reasonable notice has been given. I wiU not say whether
^ the parishioners have a right so to do in this case, if they had
, g*ven due notice of their intentions to make it a rule that no
, P®"^on, who had not paid a church rate, should have a right

« i?I^^t* ^"^ ' *°* clearly of opinion they had no riirht to do
" on the spur of the occasion." ®

^arisdr. 021

But assuming that the parbhioners, even at a gena^al meeting, ElectioiM
have no power to fix the right of voting at future elections^ it

€t
*€
€€

€€
«

seemsj that a general agreement of the meeting and of candidates, Agr««.
ia very strong evidence of what is the right, and that an election ™^^^^^
3o made, will not be disturbed by the court of chancery. In nght
The Attorney General v. Parker ^ 3 Atk. 576, Lord Hardwicke
said, " it was proved at the election that all four candidates
signed a paper, in which was the following agreement, that
the poll should begin that day, and that '* housekeepers**
only should vote, (the words of the charter, were *' parish-
ioners and inhabitants/*) It was very extraordinary they
should agree, if they did not think it to be right. It is
expressly, sworn that this paper was read publicly to the
assembly, and universally agreed to in the vestry, before the
" poll began. Can there be stronger evidence of what was the
" right in the parish, than such an unanimous acquiescence
*' previous to the election ?'* (a) It is to be observed that in Webb
Y* Fearon, infra^ GSS, the court seems to have disregarded an
agreement of this sort.

*' Inhabitant," is a word of varying import, to which it is By inhabU
always difficult to assign a distinct meaning; the construction ^^^*
must always be made with reference to the nature of the sub-
ject. 10 k'ee. 339, 34@, 345; 6 Ad. i EL 386; and must be
explained as circumstances allow, sometimes by usage, sometimes
by the context or object of the charter. It cannot be said to
have any fixed meaning.

In the Attorney General v. Parker, 10 Ves* 577, Lord Bypamli.
Hardwicke said, '' Parishioners is a very large word, takes in, ionen.
" not only inhabitants of the parish, but persons who are
*' occupiers of lands, that pay the several rates and duties,
though they are not resiant, nor do contribute to the orna-
ments of the church. Inhabitants is still a larger word, takes
** in housekeepers though not rated to the poor, takes in
persons also, who are not housekeepers.; as for instance, such
who have gained a settlement, and by that means become
** inhabitants." In this case. Lord Hardwicke said, '* it was
*' agreed on both sides that some limitation should be put on
** the liberality of the grant." By the case of Webb v. Pearon,
it seems, that when these two words are found together, they
miMt be construed to mean, " Inhabitants being Parishioners."
It has been decided that where the right of election is in the
parishioners,, a resolution by them, though at a meeting, duly

tt
tt

(a) In parliamentary elections, neither the consent of candidates,
Bor agreement of the electors can limit the right of voting, but there,
the public at large may have a paramount interest.

622

$nriffb^

Eleetiont

in.

*- -

By inhabi*
Untf pay-
ing iCOt
and \oL

convetledi but made with a view to a particular election, that the
votes of persons who had not paid church rates should not be
received, was not a legal resolution. 4 B. # C 455; on^, 600.

In the case of The Attorney General v. Parker, 8 Atk. 576,
the deed gave the rectory to the parishioners and inhabitants
for ever, and the contest before Lord Hardmeke was, whether
those words were to be restricted to inhabitants paying scot and
lot| or extended to all housekeepers in general ; he said, that
if the case had stood without any kind of restriction at all from
usage> he should have thought the limitation to persons paying
scot and lot, not unreasonable; and so he said he was of
opinion, ui The Attorney General v. Davy, S Atk. SIS ; that
case, as reported in Atkyns^ does not state his lordahip's
decision on that point, but from the report of The Attorney
General v. Parker, in 1 Ves. Sen, 41, it appears from what
was said by the court that in the case of The Attorney Creneral v.
Davy, no usage was shown to direct or controul the judgment of
the chancellor. In R. v. Davie, 6 Ad. ^ El. S6&\ \ N. % P. SS8,
where a question as to the right of voting was raised upon this
very charter, the court assuming that the judgment of Lord
Hardmeke, had reference to some particulars which were
before him in that suit, and that he thousht that the restricted
right was sufficiently established from early times, and also, that
according to the affidavits in the case, there was proof of two elec-
tions by rate payers only ; supported the election in the par-
ticular case which had been made by rate payers. This cose,
therefore, does not necessarily adopt Lord Iiardmcke^f view,
that in a case where there is no usage, the restriction of the
word ** inhabitants" to inhabitants paying scot and lot, is not
unreasonable ; for Lord Denman assumes that Lord Hardmcke*s
judgment had reference to some particulars before him in the
suit, and takes into consideration also that the usage since that
judgment had been in conformity with it. Besides, as the
election was actually made, and the party elected in possession,
those who sought to set it aside, ana treat it as a nullity, were
bound to show that those who made it had not the right ; for as
against a party seeking to disturb the election, the two elections
since Lord Hardwicke's judgment, made a primd facie case.

The same question also arose in R. v. Masniter, lN.& P.Sl4r;
6 Ad. ^ El. 163. There the charter gave the right of election of
a justice of the peace, to the tenants and inhabitants of a manor;
the application was for a quo warranto, and consequently the
party claiming to dispossess the person elected, was required to
show a clear right in some one else ; the rule was refused on the
ground that the party claiming to set aside the election had not
so distinctly shewn what was the meaning of the word inhabitant,
as to make it appear that the election was wrongly made. In a

^uriOf. 023

preyious case of Webb v. Fearan^ 14 Fes. SSI, it appeared thai a £l<cti<mt
▼icarage bad been anciently vested in trustees^ to present sucb fit

in.

person as the inhabiianis and parUhiimers should nominate ; tha t Under deed
anch right of presentation had been conveyed to trustees nomi^ or charter,
nated by the inhabitants and parishioners ; and that the heir of
the surviving trustee had in 1684| conveyed the right to other
persons in trust, to present such person, as the inhabitants and pa-
rishioners, or the chief est and disereeteei of them should nominate.
The court seem to have adopted the words of the latter deed as a
sort of declaration of trust, and also as evidence of what the
right was,' at the time that deed was made.

Macdonaldf C. B., in giving judgment, said '* when this ad<
" vowson was, as it appears, purchased from a dissolved monas-
" tery, the instruments, supposing them to have been like the old
'' instruments, that we see now, which rather seems the case,
'' from what has passed since, were clear only in one member
*' of the description ; viM* ' inhabitants and parishioners,' which
** must mean inhabitants being parishioners. It is equally clear,
** that those wcMrds are not to be taken in the unlimited and un-
" confined sense; a restriction which must be expounded, being
^' added, rur. ' tlie major part of the chiefest and discreetest of
'* them.' The use of these words is a strong badge of antiquity.
'' I presume, that formerly a few of the principal people of the
'* parish met, and settled the business themselves ; and the rest
'* of the parish, were obliged to them for taking the trouble on
" themselves, and did not interfere. But now, when it is neces-
** sary, it is difficult to put a construction upon these words,
'' unless by going to the common analogies of the law. The
** degrees of chieiness and discreetness, it is impossible to grasp.
'* What is the meaning of the principal inhabitants ? The dis-
*' tinction of rich and poor has only been determined by paying
'* the parish rates. 1 hat is certainly a much wider range than
was originally intended. As to the point of discretion, that
must be determined by the age of twenty-one. By the want
of any other rule, that can be intelligible, I am driven to
** that. I am satisfied it was not the original intention. It is
'< much wider than the intention ; but it is the only rule that can
*' be taken."

Chraham^ B., in the course of his judgment, said, ** though I
** agree, the original idea was, that the donor meant in the com-
" mon and popular sense, the principal inhabitants ; yet he has
*' done no more, than every illiterate testator, who in his will
^' has used language without any definite idea. But a court of
" justice must take some liberty with the words ; and for the
'' purpose of certainty must ascribe a distinct sense to them.
*' Then the construction of these words must be inhabitants,
*' j, e. inhabitants, being parishioners. Then the other member

€1

624

^Uti^*

Elections
in.

Inhabitaats
aad pariih-
ioneis.

Mode of
election.

" of the description must be takeiij either as explanatory or
" alternative ; it does not signify which. In the first sense it is
'* impossible to refer it to the choice of all ; as an election by
'' the inhabitants and parishioners generally, must create infi-
*' nite confusion; and that probably was not the donor's meaning,
** from the words he has added* Therefore we must refer to
" the other member; which is construed, those who pay to
" church and poor ; as contradistinguished from thoee, who
'' from povertyi are to be presumed not to have a mind of their
** own ; and those who are twenty-one, as contra-distinguished
" from those, who, from infancy or coverture, are in the same
" condition."

Unless the mode of election is regulated by statute or some
ascertained custom, it must proceed upon the principle of the
common law ; which is, in all cases, to resort to a poll where it is
demanded ; the earliest and rudest mode of election was by
voices or shew of hands. Brook ^ C. J., speaks of himself as
having been elected for London by a holding up of hands,
Buckley v. Rice Thomas, Plowd. 128 ; and it would seem from
that case that a poll or scrutiny waa not, at that time, (1^2
P. ^ M,) resorted to even at county elections. Lord Coke,
4 IneL 46, speaking of county elections, says, " if the party of
*' freeholders demand the poll the sheriff cannot deny the scru-
** tiny, for he cannot discern who be freeholders by the view,
*' and though the party would wave the poll, yet the sheriff
** must proceed in the scrutiny.'* The same principle was intro-
duced into borough elections as soon as they became subjects
of popular contests. Serjeant GlanviUe, in bis report (a) of
the Southwark case, says, p, 70, " it was conceived by the com-
** mittee, and so reported to the house, that there being a con-
** trariety of opinions amongst the electors, and the poll duly
'' demanded for clearing the doubt, the truth was not tried out
'* by the poll, which is the only certain means rightly to decide
'* the diflterence in case of opposition." In Faulkner v. Elgar,
Ai B.6i C. 4t55, Bajfley, J., said, " the common law mode of
** election is by shew of hands, or by poll, and the party electing
" is then said to have a voice in the election." In the case of
Anthony v. Seager, 1 Hag. Con. 13, Lord Stowell saidf *' where
** a poll is demanded the election commences with it, as being
the regular mode of popular elections, the show of bands
being only a rude and imperfect declaration of the sentiments^

€t

(a) These reports, though not cited as authority in courts of -law, are
always listened to with respect, not only from the high legal character
of very many of the committee oyer which Glanville presided, hut also
from his own reputation as a constitutional lawyer.

^tiiitfb* t'25

" of the electors." In Campbell ▼• Mmnd, 6 Ad. ^ Ell. 879 ; KiecOons
IN.ifP^ 658, which came before the exchequer chamber on a bill "^'

of exceptions^ Tindal, C J., delivering the judgment of the court, Mode of.

said, " the question, therefoi*e is, whether the right to demand By polu

*^ a poll is by law incidental to the election of a parish officer by

" shew of hands, where there is no special custom to exclude

'* it. And we think such right is, in point of law, a necessary

'' incident, or consequence, to the mode of election by shew of

*' hands, whenever it is not by special custom excluded. Inde-

** pendently of any authority upon the subject, the recourse to

' ' a poll, when the population of the parish is large, appears to

" be the only mode of ascertaining, with precision, the numbers

'* of those who vote on each side, and the right of each elector

" to vote. Again, it is, under the same circumstances, the Only

" mode by which each individual elector can have the power of

** expressing his opinion at all ; for, in the case of populous

'* parbhes no vestry-room can be large enough to contain the

** whole body; still further, where the election is carried on with

*' any warmth of popular feeling, it is the only mode by which a

*' large portion of the community can express their opinion with

" freedom and security. But, in addition to these general

" grounds, we think the authority of Lord StowelFs judgment,

*' in the case referred to in the course of the argument, is entitled

''to the greatest consideration on a matter of this nature."

In Faulkner v. Etgar, 4 jB. ^ C. 455, it appeared that the By tollot.
election, which was ibr a perpetual curacy, was made by the
party intending to vote, giving in a card containing the name of
one of the candidates, but not the name of the voter. It was not
necessary to decide the point whether voting by ballot was a
legal mode of election or not ; but all the three judges, who
decided that case, seem to treat such a mode of voting as im-
proper and illegal. Holroyd, J., daid, '* I have great doubt
'* whether election by ballot be legal : some advantages may
'' accrue from it, such as avoiding ill-will among the parishioners
'* and having the voters uninfluenced, but I think it is the duty of
'* the returning officer to see that the person returned is duly
'* elected, but in case of a ballot he puts it out of his power
" to ascertain, whether the party voting had a right to vote
•' or not."

When trustees have a personal trust delegated to them By proxy.
they cannot execute it by voting by proxy. In Wilson v.
JDennison, Ambl. 86, Lord Hardtticke, giving directions for the
future management of the trust, said, *' there is no evidence of
" proxies being used at any election before this ; there is a dis-
*' cretion to be used by trustees in electing a person to officiate
*' as minister ; and it is a personal trust in them, and no instance
** can be adduced where, in a personal trust, a proxy is allowed.

S 8

626 IfiMiO}.

Elections '^ |f the electioiii had been regular, a proxy by way of letter of

^^ '' attorney had been good to sign a preaentation ; but as to the

Proxy may ** election, the trustees could not delegate their power, and I
sign presen- ** think the proxy being made to vote for a particular person
u mi^i^es it worse ; for it is clear that the trustee determiiied his
** choice for private reasons at home, not at the public meeting
" on a general inquiry into the abilities and qualifications of
*' candidates, and the arguments and reasons of other trustees ;
*' and it is much easier to prevail on any person at home on any
*' private application than at a general meeting where the whole
" conduct of the candidate is discussed." S* C I f^es* Semr.
413, under the name of the Attorney General v. SctUi.
Nomina- It sometimes happens that, under private acts of parliament
tion, or deeds, it is directed that parties should be selected by nomi-

nation ; as in the case of ii. v. the Rector of St. Anne^s^ Soko^
3 Burr. 1877, where the nomination and appointment of parish
clerk was given to the rector by a private act otparliament, but the
consent of the vestry was made necessary to confirm such nomi-
nation and appointment. In that case the nomination was made
under hand and seal. Eighty-nine of the principal inhaUtants
signed their approbation. None dissented ei^pressly, bitf some
demanded a poll on behalf of a Mr. M. The poll was refused
on the ground that there was no election, and therefore could
be no poll. The court held that there was no right to elect,
and consequently the demand of a poll was nugatory. If the
majority was really dissentient, they should have declared their
dissent All that had been done was lost and thrown away, and
it had no more effect than if they had gone away without giving
either assent or dissent.

In R. V. Davie, 6 Add. ^ EU. 374; 1 iS^. ^ P. 328; the charter
enabled certain governors to nominate and appoint a chaplain
to a chapelry, ** unh-cum assenw^* of the m^ority of the inha-
bitants. It was contended that the inhabitants should be parties
to the nomination as wdl as to the election ; that the above
words contemplated an unity of act throughout; that the nomi*
nation ought to have had the assent of the inhabitants in the
first instance, whereas the nomination was by the three gover-
nors apart, and the inhabitants were merely called on to express
their assent or dissent subsequently. The court said it was
more convenient that the present course should be taken than
that the inhabitants should be called upon to aaaent or dissent
at the time of nomination ; they were required to judge of the
party's fitness at the time when they were first made aoqusiinted
with his being proposed ; and that " un&'Cuni* in this charter
did not mean that the assent shall be at the time of nomination,
though it is essential to the appointment, and if not, given the
governors must nominate again.

Ij^ttf* 627

If a parly has been elected or notninated to any parochial Mandamus
office which draws after it any temporal rights or official public ^ ^^^^

dutiesj and is reilised to be admitted to it, or having been ad- ^

mitted is improperly removed^ a mandamus will be granted
either to admit or restore him ;

or, having been elected or nominated, if there are certain
official preliminaries which the party so elected or nominated
is required to go through in order to complete his title, and
he is obstructed in the performance of such preliminary
requisites ;

or, if an office, which is to be filled by election or the nomi-
nation of more than one person, be vacant, and the electors
or nominators refuse to meet for the purpose of making
the election or nomination ;

or, if persons on whom the law devolves any ministerial act
for tbe benefit of the pubUc, refuse to perform it; or, if the
act be judicial or discretionarv, if they refuse to meet for
the purpose of exercising the judgment and discretion with
which they are legally invested ; the court of king's bench
will grant a mandamus, which is a prerogative writ, intro-
duced to prevent disorder, from any defect or fiiilure of
justice ; and is, therefore, resorted to on all occasions where
the law has established no specific remedy, and where, in

W justice and good government, there ought to be one.
rits of mandamus have been granted to admit prebendaries ;
Sir» 159; an apparitor general; Sir. 897; parish clerks;
Cawp. 370; 8 Burr. 1268, 1877; 4 Nev. ^ M 868; 9 Z). ^
JS.234; and sextons; 2Lev. 18; 1 Venir. 14S; 5Ad.fEU.5S9i
to restore a schoolmaster of a grammar school founded by the
crown ; Sir.68 ; Lojffi. 148 ; and formerly to restore to a donative ;
anie, 855 ; 2Bwt. 1043 ; vid. also 7 East, 345 ; 1 T. JB. 396; or
to a bishop to license a lecturer, if possessed of alegal title ;
1 FFJ&.11; IT.R.881\ 2Easi,462;l3Easi,419i 15 East,
117; to swear churchwardens elected by the parish ;8 B. ^ C.
681. So also, since the act of toleration, the remedy by mandamus
has been extended to protect ^lufotff^cf pastors of Protestant dis-
senting congregations. 3 Burr. 1268; 4 Burr. 1991 ; 9 Smiih,SO;
S T. K. 578. So also a mandamus will lie to justices of the peace
to nominate overseers of the poor, although the time mentioned
in the statute 43 EUz. has expired ; because the statutes for the
relief of the poor are to be construed liberally. Str. 1 1 9St. So to
sign and allow a poor's rate ; and in this case they will grant the
noandamus in the first instance, and not a rule to show cause,
for otherwise the poor might starve. Say. 160.

A mandamus has been granted to admit a dissenting minister
to take the oath of allegiance and to subscribe according to the
Act of Toleration, in order to be qualified to teach a dissenting

$ s 2

<!28 #Ari0l^>

Mandamus congregation, the party suggesting whatever is necessary to cn-
^"^ ^^°"^- title him to be admitted. 6 Mod. 310, 228 ; 2 Soli. 572; UEasi,
285. A mandamus has been granted to the ordinary to swear in a
churchwarden, on the ground that until he has been sworn he
cannot act, 8 J5. ^ C. 681 ; 5 Nev. Sf M. 42; 4 Dowt. 15.
So also to swear in a parish clerk, if it has been the custom in
the parish that he should be sworn. 2 Roll, Abr. 234. By
more modern decisions, however, it seems that it is not neces-
sary that a parish clerk should be licensed, and consequently, it
is presumed it is not necessary that he should be sworn ; so that
if it be not a part of his legal title or a necessary confirmation
of it, the court would not, by mandamus, compel the ordinary
to do an unnecessary act, post^ 638.

In another case, a mandamus was granted to the justice and
clerk of the peace of a county, to register and certify a meeting
house ; and objections being taken that it did not appear what
species of dissenters they were, nor in what they dissented, or
that the house was proper to be registered; or that, they
brought themselves within the provisions of the Toleration
Act ; Lord Mansfield said, ** no inconvenience can attend the
** registering this meeting house. The registry and certificate
*' will not prove that they are within the act. They will still be
obliged to shew that they are within the requisite qualifications,
if called upon, notwithstanding the register and certificate,
and if they are not, the justices may return that they are not,
" if they think proper." 4 Burr. 1991 ; 1 W.BlQOG.l Lord
Raynt. 125; Salk. 428; 15 East, 590; sed. vid. 15 East, 285.

It has been said that a mandamus would be granted to com-
pel a clergyman to inter the body of a parishioner, 2 B,Sf Ald^
806 ; but not to bury it in an unusual manner. i%.
Office must But in order to entitle a party to a mandamus, when he
not be tern- founds his claim on the interest which he has in the office, he
^^^^' must shew that the interest itself is of a permanent nature, and
that there are temporal rights and emoluments attached to the
office to which he would be entitled in respect of it ; therefore,
a mandamus was refused in the case of a vestry clerk, JR. ▼.
Croydon^ 5 T. R.T\S\ Lord Kenyon saying, " this is not the
** case of a fixed permanent office, for which a mandamus will
** lie. It depends altogether on the will of the inhabitants,
" who may elect a different clerk at each vestry. Neither is
'' any salary annexed to this situation ; if the fees are paid out
of the poor rates there is an end to all prescriptive right in it ;
with regard to the supposed agreement made by the parish-
" ioners, that this should be an annual office, it could not be
'' obliffatory longer than the parties chose to fulfil it, for it
'' might be revoked at the next vestry ; so when it appeared
" upon the return to a mandamus, that a sexton might be

Sarfeft^ 629

•' remoTecI at pleasure, the return was allowed.'* Cowp. 41S, Mtndamui
and vid. 4 M. ^ S. S24, in which a mandamus to restore a ^° * "*^'
clerk and treasurer of the guardians of the poor was refused.
So in case of a magistrate's clerk as having no permanent inte-
rest in his office. 1 Nev. ^ Man, 591. But where it was
shown that the clerk of turnpike trustees had a valuable inte-
rest in his office, and that his appointment could only be revoked
under certain prescribed forms^ a mandamus to admit him was
granted. 5 B. ^ Ad. 438.

Where the application for a mandamus is made on the
ground of the duties attached to the office, independently of
the temporal interest which the party himself may have in it ;
it is necessary, it is conceived, to shew that the purposes of the
office are puolic, or at least such as the public have an interest
in. 2B.^A.622; 5B.^A.899i 2Ler.l5,18; Vin. Abrid,
" Mandamui* A ; 1 Keb. 5, 549.

Where a party has been improperly removed from his office. To restore.
a mandamus will be granted to restore him ; but, on an applica-
tion for a mandamus to restore, the court has always required
that the party applying should shew a primd facte title, for if
he has once regularly been admitted he has an ordinary re-
medy, which is to bring an action for money had and received,
by which he may try and establish his title to the profits of
the office, and consequently to the title of the office itself.
3 T. R. 678; 5 Ad. % Ell. 589.

Where a party applies for a mandamus he must not only
shew a prima facie title, but also, that when possessed of the
office he is in a condition to exercise the duties of it, because a
mandamus will hardly be granted if the granting it will produce
no certain effect, for the Taw non cogii ad inulilia. Thus, in
the case of a lectureship, we have seen above, ante 49S, that
unless the title of a lecturer depends upon an act of parliament
or immemorial custom, which render him independent of the
incumbent of the parish, he cannot insist, notwithstanding he
lias been duly elected into the office, upon the use of the
parish church, or of any chapel in the parish, where the service
of the established church is performed ; in such a case, there-
fore^ the grant of a mandamus would produce no effect, for
notwithstanding his election he could not exercise the duties of
Iiis lectureship. The rector has, by common law, the right of
refusal ; and if a party claims against such common law ri^ht
he must shew how he claims ; though where the common law
casts the right on a party generally, it seems to be sufficient to
state his title generally. 7 Easi, 350.

Where a mandamus to a bishop was applied for on the ground
that he had refused to license a lecturer, and it appeared that
one lecturer had been chosen by the select vestry, and had

630 ij^nri^.

Mandamus, been approved by the rector ; and that another lecturer had

been chosen by a majority of the inhabitants. It was said by

the court) that where a person appears to have a right, the

court will compel the bishop to grant the license or ahow sood

cause to the contrary, and so it was held by Lord C. J. ^oft,

3 Salk. 67. But on the other hand, where it appears thai the

person applying has no right, he not having been received by

the rector, and that a license, if granted, would have no effect,

this court will not interpose ; the lectureship in question had been

established within time of memory, supported by mere yoluntary

contributions, without lay fee, and gave no temporal right to

any body. 13 Ea$tf 420, in n. ; 1 fViU. IL So, in another

case, where it was not merely a voluntary lectureship, but had

been endowed by a former owner of the impropriate rectory

with £50. per annum ; the vicar objected to the lecturer using

his church, and the bishop refused to grant a license without

such consent; and it did not appear that there was any

custom making the lecturer independent of the vicar; the

court refused a mandamus, and the ground taken by one of the

judges was, that it would be useless to grant such an applica*

tion if the vicar would not consent to the lecturer preaching in

the parish church. S East, 465 ; and vid, 2 Simons Rep^ 520.

This principle was more fuUy established in a subsequent

case, in which it was decided that in cases of applications for a

mandamus to a bishop to license a lecturer, it is necessary for Uie

applicant to shew that the rector has consented to the use of the

church by the lecturer, unless there be a custom rendering such

consent unnecessary. Thus, where a mandamus had been

granted to license a clergyman, who had been duly elected and

nominated by the inhabitants of a township or the major part of

them, to be chaplain or curate of the church or chapel of the

township ; the writ was quashed, expressly on the ground that

it did not state any consent of the rector, nor any endowment or

custom which would entitle the party applying to the use of the

church in virtue of such mere nomination of the inhabitants ; that

the nomination of the inhabitants might supersede the consent of

the rector, but if it did, it should be shewn how it did. R. v.

Bishop ^Oxford, 7 East, S45 ; 4 7. R. 125. But the merely

stating that there was an immemorial custom to appoint without

the rector's consent, will not be sufficient to entitle a party to a

mandamus, if the facts appearing on the affidavits themselves

lead the court to a contrary conclusion ; as in a case where no

instance was shewn of a nomination without the consent of the

rector, and the only entry sworn to, shewed that the rector was

" ^l^"®f'*^"8 party. R. v. Bishop of London, 1 71 R, 331.

11 the law casts a duty on any person, or any number of
persons, to do any act or acts for the benefit of the public, or

J^nrm. 631

in which the public have an interest, they may be compelled by Mandamm.
mandamus to perform such duty. If the act to be done by
them be judidal or discretionary, the court by mandamus will
compel them to meet to exercise their judgment or discretion.
Thus, where visitors of a charitable corporation, having heard
evidence on an appeal made to them, but declined to act on it,
they were compelled to proceed to detemune such appeaL
4fM.^S. 415; and rid Ambl. 83.

A mandamus will also be granted to justices of the peace in
a variety of cases connected with the administration of the poor
laws, to appoint overseers in an extra-parochial place ; 1 Sir. 612;
or to nominate them although the time mentioned in the i&d
Eiiz. c. S, has expired; S Str. IISS; to sign a poor rate;
8 Mod. 335 ; to swear an overseer to his accounts ; 1 Wik. 125;
to grant a warrant for levying the balance of an old overseer's
accounts ; S Str, 992 ; or to receive an appeal against an over-
seer's aocounts. S D. & R. 299.

In like manner, though the court will not grant a mandamus
to churchwardens to compel them to make a church rate, it
being a matter purely of ecclesiastical jurisdiction ; 5 7 • iZ. 361 ;
yet it was granted to the churchwardens of two united parishes
under 10 Ann. c. 11, to assemble a meeting pursuant to j. 24,
for the purpose of ascertaining and agreeing whether it be fit
that a rate should be made ; 4f M, % S, 250 ; for the court will
put in motion their functions in ordine ad, viz. to assemble in
order to inquire and agree whether a rate ought to be made. lb.

Although formerly the court seem to have refused an appli-
cation for a mandamus to the old churchwardens, commanding
them to call a vestry in Easter week for the election of other
churchwardens, on the ground that they could not take notice
who had a right to call a vestry, and consequently they did not
know to whom the writ should be directed. Anon. Str. 686.
Yet in a late case it was decided, on the authority of former
precedents, that a mandamus might be granted to the inhabit-
ants of the parish liable to contribute to the church rate» to
meet and assemble together with the minister, to elect church-
wardens. R. V. Wix, 2 B. ^ Ad. 197; I Nolan, P. L. 44.
So to churchwardens to convene a general meeting of the parish
to establish a select vestry under 59 Geo. 3, c. 12, notwith-
standing the existence of an ancient select vestry in the parish ;
such ancient vestry not being so able to discharge all the func-
tions required to be discharged by the vestry to I^ elected under
the above act 8 B. ^ Ad. 907, 910 ; 2 B. ^ Ad. 506.

Before, however, a mandamus will be granted, it is necessary
to show that the party who is by law required to do the act has
been applied to for the purpose, and has refused.

But a positive and direct refusal is not absolutely necessary.

632 |feu:fs(l^.

Mandamm, If the party does not do the act when applied to^ it k in eflfect

a refusal.
Refusal of A requisition having been made to the churchwardens to oali
rarty to do a mectinff of the vestry for the purpose of electing a sezcoo,
qulr^! ^' ^^^y declined to do 80« on the ground that the mimsler had
refused his consent, alleging the right of election lo be in him*
self. Lord Dernnan said, *' Is it not sufficient, if the church*
'' wardens have refused, and the parties applying have learnt
*' from them that the minister will not consent V and afterwards
the whole court intimated that they felt no doubt of there having
been a sufficient refusal to ground an application for a man*
damus. R. v. Stoke Damerel,5 Ad. isEU. 584; 1 N. % P. 56.
So where a surrogate, on being applied to, declined to swear
newly elected churchwardens until the annual visitation, twenty-
two days after the application ; stating, however, that although
it was customary to wait till the visitation, churchwardens had
sometimes been admitted immediately on their election, he
would do so, if satisfied it was a case of emergencv; but that he
would obey a mandamus. Lord Dennum said, the rest of the
court concurring, '' When a party says, I will wait because
'* there is a custom, he in effect refuses. If there be such a
" custom, he may return it ; and to say he will not disobey the
'' order of the court is a refusal to comply without the order.*'
R. V. Archdeacon of Middlesex, 3 Ad. ^ EU. 615. 5N.&M.
4S4.

But if the party applied to has a discretion and judgment to
exercise upon the application made to him, the court will not
interfere with, or assume to controul, that discretion. Thus,
where a mandamus was applied for to a bishop to license a lec-
turer, and it appeared by the affidavit of the bishop, that upon
a full and deliberate consideration he declared his conviction
that he should be acting in a manner inconsistent with the
duties of his epbcopal function and the trust reposed in him,
if he did grant the license. Lord EUenborough said, *' Can wc
** grant a mandamus to the bishop to say. Approve, though you
** do not approve : take our conscience to guide you and not
*' your own ? There is no instance of such an application for a
** mandamus to a bishop to approve. We can only compel him
" to inquire. We cannot divest him of that function which the
*^ legislature has for wise purposes vested in him and transfer it
*' to ourselves. All that the court can do is to see that that
** function is well exercised by him in whom it is vested ; and
" there never was yet an instance of a mandamus to compel a
*^ bishop to approve and license a lecturer, when the question
** turned on the approbation or disapprobation of the bishop as
'' to the fitness of the applicant." 15 East, 139 ; and 5 D.
% R. 602.

fUtm. 633

Nor wiB the court interfere, upon the further ground that the MaadimiM,
bishop has not proceeded in his inquire in the manner usually
adopted in courts of law ; that is, by a formal production of the
charges made against the applicant in a judicial course, and by
a public and solemn hearing of the several parties, their proofs,
and witnesses ; unless indeed the court have reason to see that
any thing was defectively done in this respect, for then it would
interpose its authoritative admonition. lb. 140.

The word of the statute is " approve,'' and he must exercise
his approbation according to his conscience, upon such means of
information as he can obtain ; and every thing, that can properly
minister to his conscientious approbation or disapprobation, and
fairly induce his conclusion on such a subject, though it might
not be evidence that would be formally admitted in a court of
law, may fitly be taken into consideration. The law does not
say upon what proof he is to act, or that he is to have witnesses,
upon oath, to the facts, by which his judgment is to be guided ;
nor does it seem that he should exclude bis own personal know*
ledge of the applicant, which may perhaps be the most material
thing of all. Ibid. }46.

Where an election, in fact, has taken place, and a party ap- Office h\l
plies for a mandamus, to proceed to an election on the ground by election.
that the preceding election was a nullity, the insufficiency of
such election should be very clearly made out ; 6 Ad. ^ EL 874 ;
2 T. R. ^9 ; and on similar principles where a party applies
for a quo warranto^ on the ground that a party elected into an
office, has been elected by those who have not the right to vote,
it seems not enough to raise a question on the right of those who
have voted, but the party must go further and make, at least, a
clea^tprimd facie, case shewing who have the right. 6 Ad. ^ EU*
153; \N.^ P. 514; 5 Ad. % EIL 590; I N. ^ P. 56. For
those who seek to avoid the election ought to show what was
the character of those whom they seek to introduce under the
claim.

If the question cannot be tried upon quo warranto, and the
court is satisfied that the first election is void, the course is to
grant a mandamus for a fresh election ; but where there is any
other mode of trying the right ; the mandamus ought not to go.
Thus, in the case of a sexton appointed by the rector, who by
the general law is the proper person to make the appointment ;
strong evidence would be necessary to disprove his authority,
and the affidavits to show that the rector had not the right
should at least exhibit a balance of evidence in favour of the
right of those who claim against the rector. 5 Ad. ^ EU. 589 ;
1 N. ^ P. 56. And as any body might raise the question
of the sexton's title in such a case, by refusing to pay his
fees, or by bringing an action against him, if he takes them, there

634 IfUltisfy.

AnMriog is another remedy, and a mandamiu is not abaolotely neeenary.

portioni of. JlfiJ^

But when there is no mode, or no convenient mode of trying the
right, it seems that a mandamus will not be refused. 6 East, S56.

By a late act, I if 2 Vict. c. 106, jr. %, proviaon is made lor
annexing tithinss, hamlets, chapelries, and other places or dis-
tricts, separated from the parishes or mother cbnrdies to which
they belong, and places altogether extra-parochial, to parishes
or districts to wliicn they are contiguous; or for constituting them
separate parishes, for ecclesiastical purposes: and it is enacted,
that when it shall appear to the archbishop with respect to his
own diocese, or be represented to him by any bishop, that any
such tithing, hamlet, cnapelry, place or district, may be advan-
tageously separated from any parish or mother church, and
either be constituted a separate benefice by itself^ or be united to
any other parish, to which it may be more conveniently annexed,
or to any adjoining tithing, hamlet, chapelry, place, or district,
parochial or extra-parochial, so as to form a separate parish or
benefice; or that any extra-parochial place may, with advantage,
be annexed to any parish to which it is contiguous/ or be
constituted a separate parish for ecclesiastical purposes, the
archbishop or bishop may draw up a scheme in writing, describ-
ing the mode in which it appears to him, that the alteration may
be best effected, and how the changes in respect of glebe lands,
&c., and in respect to patronage, and rights to pews may be
made, with justice to all parties interested ; and if the patron con-
sent to the scheme, or to such modification of it as the archbishop
may approve ; and if the archbishop shall certify the same and
such consent to her majesty in council. It shall be lawful for
her majesty in council to make an order for carryim? such scheme
or modification thereof, as the case may be, into emct ; and such
order, beinff registered, shall be forthwith bindingonaU persons,
including the incumbents to be effected therebv, if they shall
have consented thereto, in writing under their hands, but if
they have not, or either of them has not so consented, then the
order shall not come into operation until the next avoidance of
the benefice by the incumbent or surviving incumbent, if more
than one shall have objected.

It wUl be observed in the above, that in case of annexation to
a parish, the words are " to anu other parish to which it may
" be wortf conceniently annexed -^ but in case of annexation to
a division of a parish, or to a parochial or extra^parochial dis-
tnct, so as to form a separate parish or benefice, it must be

- Tr^?^^ ''I'if'^'^'V ^»*^»8' ^**»'^*' chapelry, place or dis-
•• tnct, parochial or extra-parochial." So in case of the annex-

^'Zuh S'^ufu^^^^ P'*^ ^^ * ^^^' i^ must be to a

pansn to which it is contiguous:'

635

$art9l) €lttk.{a

)

By whom appointed.

Incttinbent.

Parishionen by custom.
Need not be licensed.
May appoint a deputy.

Deputy need not be licensed.
Office of, for life.

Appointment may be by parol.
May be deprived for misconduct.

Proceedings to deprive.
Suits for fees.

JL ARISH clerks are said to have their origin from poor By whom
clerks who held the office of aqtue-bcytdaius ; the connexion *FP<>"'^'
between the two offices seems probable, though it is not very
clearly traced, nor does it appear important, except so far as
the right to appoint to the office, may depend upon its origin.

(a) It is said by Oibson^ Cod, 240, tbat parish clerks were heretofore
real clerks ; of whom every minister had at least one to assist under
him in the celebration of divine offices ; and for his better maintenance,
that the profits of the office of aquet hajvlahu were annexed to it by a
constitution of archbishop Bomfaee ; so as in other times aqiuB hajuhu
was only another name for the clerk officiating under the chief minister.
The constitution of Bonifactf as given by Johtuan in his Constitutions
of Boniface, 1261-22, is as follows :—'' We have often heard from our
" ancestors, that the benefices of holy water were, from the b^^ning,
** instituted firom charity, that poor clerks in the schools might be
" maintained with the profits thereof, till they, by improvement, were
" qualified for something greater ; and lest a wholesome institute by
" time run into abuse, we ordain, that in churches which are not above
'* ten miles distant from the schools which belong to the cities and
** castles within the province of Canterbury be conferred on poorer
'* clerks.*' Ayliffe says, that the office of aques ba^ulatus was mean and
vile, even in the Romish church, and that the holder of it might have
been a layman, not in holy orders, though he ought to have been a
person of competent learning. Parer, 409. It is probable that after
the above constitution the aqua b^gukts was usually a derk; but it
would seem, both from the object of the constitution itself, aad from the
authority of AyUffe^ that he was not necessarily so, and vid, Godb, 163 ;
2 BrownL 38.

636 t9ar(^ €\nk.

By whom If parish clerks were acknowledged to be the aqute-bajmli of
'^^''^^ * the early periods of the church, and it also appeared that the
aqucB'bajulus was necessarily a clerk in orders, assisting in the
ministration of church services, it would be strong to shew, that
the appointment of common right belonged to the rector. But
if the aqtue-bdjjulus was not necessarily in orders, but might
have been a layman employed in the menial services of the
church, paid by the alms and contributions of the parishioners,
the probability, of his having been appointed originally by the
parson, would be weakened.

Gibson says. Cod, 240, that all incumbents once bad the
right to the nomination of parish clerks by the common law and
custom of the realm. This claim of right, however, if it be
taken to extend to the aqua-bajulus seems to have been very
early disputed ; for Boniface, in 1261, in the Constitution, partly
cited below n. says, ** and because disputes, which we ought to
" remove, do often arise between rectors and vicars of churches
" and their parishioners about conferring such benefices, (the
'* benefices of holy water); now, we ordain that the rectors and
" vicars, who are more concerned to know who are fittest for
** such benefices, do take care to place such clerks in the
" benefices aforesaid who are best capable of serving them ac-
" cording to their own desires in divine offices, and will be
** obedient to their commands ; and if the parishioners will
*' withdraw their accustomed alms from them in a malicious
** manner, let them be carefully monished to give them ; and
'' if there be necessity, let them be strictly compelled to it by
''ecclesiastical censures.** Johnson's Canons^ 1261,^; Gibs.
Cod. 240.

Godolphin BdLjs, that at a synod 44 Ed. S, it was ordained
that every parson should appoint the parish clerk, Abr. 192;
but Ayhffe Parer. 409, speaks of a book of Canons in Eliza-
beth's reign, in which it is said parish clerks were to be chosen
according to the parish custom, by the votes of the parishioneni
and the minister of the parish, and that their office last only
one year, unless they be re-elected.

By the 91st Canon (1603) it is ordained, that "no parish
clerk, upon any vacation, shall be chosen within the city of
London or elsewhere, but by the parson or vicar ; or where
there is no parson or vicar, by the minister of that place for the
time being, which choice shall be signified by the said minister,
vicar, or parson, to the parishioners, the next Sunday following
in the time of divine service." Upon which, Gibson adds.
Cod. 240, " since the making which Canon the right of putting
jn the parish clerk hath often been contested between incum-
bents and parishioners." But it seems, from the above consti-
lution q{ Boniface, that the right as between the incumbent and

Ifiuvm Cleriu 637

the parishioners was a matter in dispute for centuries before By whom
the making the above Canons in 1603. ^m*^^^^

Eight years after the Canons in the 8th Jac. l, it was de-
cided that the parson^ by colour of a new canon, could not de-
prive the parishioners of St, Alphage of their right to choose
their parish clerk, 13 Rep. 70; Jermyns Case, 21 Jac. 1,
is to the same effect, and vid. Cro. Jac* 670 ; Cro. Car. 589 ;
2 Brownl. 38; Godb. 163. For no Canon can repeal or vary
a custom, ante 136, 137. However, it seems now clear, that as
the parishioners claim by custom, such custom must be proved
to exist in order to deprive the rector or vicar of the right to
appoint the clerk of tne parish, for the court will not intend
such a custom. SaUc. 468. It seems, indeed, most fit, that the
appointment should rest with the incumbent, the duties of the
office itself almost entirely consisting in the subordinate assist-
ance given by the clerk to the minister in the discharge of his
spiritual duties.

In Hartley v. Cooi^ 9 Bing. 7^ ; 5 C. 4r Z'* 441 ; it was PafishM
held, that where two parishes were united, in both of which united,
there had been a custom before the union that the respective
clerks should be appointed, by the parishioners and rector
jointly in each parish, an appointment by the rector alone after
the union was held to be bad.

By the 59 Geo. 3, c. 134, s. 29, it is enacted that with regard 59 Geo. 3»
to all churches and chapels built, or acquired, or appropriated ^ ^^*
under that act, or under the 58 Geo. 3, e. 45, every clerk shall
be annually appointed by the minister of the church or chapel.
Ante, 194. There does not seem to be any similar provision
with regard to churches and chapels built under the provisions
of the 1 ^ 2 Wm. 4, c. 38 ; or the 1^2 Fict. c. 107.

When by a private act of parliament the nomination was in
the rector, with the consent of the vestry, the parties intending
to dissent from the nomination should expressly dissent at the
time of nomination. 3 Burr. 1877 ; and vid. 6 Jdd. ^ EU. 376.

By Canon 91, it is directed that the clerk shall be twenty-one Twenty-
years of age at the least; known to the parson, vicar, or minis- one yean of
ter to be of honest conversation, and sufficient for his reading, ^'^
writing, and also for his competent skill in singing. No part of
this Canon, however, can bind or control a custom, where there
exists one, for the parishioners to choose.

Parish clerks, having been duly appointed or elected, were Admitsioa
usually admitted and sworn before the ordinary. of*

In a case where the ordinary refused to swear in the person
chosen by the vestry, and on the contrary admitted another
appointed by the parson, a mandamus was granted, commanding
him to swear the one chosen by vestry. 2 RoU. Abr. 234;

638 $it(slb Clrrit^

Adminioii s Boc. Abr. 5S1. Bat more modem cates have decided that,
being a temporal officer, he need not be swom or liceued by the
ordinary.

In Peak v. Baumef 8ir» 942, it was held that a parish derk
may execute hia office without the license of the ordinary ; for
the Canon did not require that he should be licensed, and indeed
it would be transferring the right of appointment to all intents
and purposes to the ordinary. A clerk may be appointed ^ato
nresbyiero absque scientid epUeopi. 2 Roll* Abr, S86. As a
license, therefore, is not necessary, it is conceived that a man-
damus would no longer be granted to the ordinary to swear or
license a clerk.

It seems that a parish clerk may appoint a deputy to dis-
charge his duties, and it is not necessary that the deputy should
be licensed by the ordinary. Sir. 94&; 2 Lee, 587. If a
deputy parish clerk be removed, the court will not grant a man*
damus to restore him. Lqffi* 4S4.
Office for A clerk holds his appointment for life, that is, if he demeans
^*^^' himself properly in the discharge of his duties. Anoffieey^ttom

diu ee bene gesserii, confers on the holder, all the privileges of
a freehold office, amongst others, the right of voting at county
elections, if his profits arising out of land, amount to 40t. per
annum.

The right of a parish clerk to a freehold in his offioe, was
established at an early period; S RolL Abr. 2S4; and has since
been recognised by many cases. Sali. 5S6 ; S Lord Jtaym.
1508; Coup. S70; 1 B. ^ Ad.795; 1 N. ^ P. 166. And
although at one time it seems to have been thought that
the appointment must be by deed, in order to give him a per-
manency and a freehold in his office, yet it has long been ^Id
that a parol appointment is sufficient* Salk. 536. In jR.
V. Bobbing, 1 Nev. ^ Per. 166, it was decided that if an
actual parol appointment by the parson be proved, a pubiic
notification of such appointment to the parish is not necessary
to give it validity.

It has been said, that where a clerk applies for a mandamus
to restore him to his office, it should appear by his affidavit that
he was appointed for life ; 2 Chit. 25i ; but guare if this be
necessary ; it is apprehended that, primdfacie, the appointment
is for life ; if the appointment be at will, or annual, by custom, or
under the church ouilding acts, that would properly appear in
the affidavits in answer, or on the return, if the mandamus
were granted.
May be de« If a clerk misconducts himself in his office, he may be deprived
P"'^^' by the same authority that appointed him to the office. 1 Ventr.
148 ; 1 Burr. 367 ; 8 7*. R. 209. But having a permanent

€1
€t

^ntifib €lttk, 63!)

interest in hb office, he cannot be deprited without sufficient ^"T^
cause. In R. v. Dr. Wall, 1 1 Mod. 361, Halt, C. J., said, " If ^"P"^"^'
'' a parish priest put in a clerk he cannot turn him out at
" pleasure, tor he is then the clerk of the parish, and not the
** parson's clerk only.** In A. y. Warren, Cowp. S70. Lord
Mansfield said, '' Though the minister may have a power of

remoring him on good and sufficient cause, he can never be

the sole judge, and remove him, ad libitum, without being

subject to the control of the court.'*

It does not seem to have been determined whether supposing
the clerk to have been appointed by the parish, he can, for
sufficient cause, be deprived by the clergyman; or, having been
appointed by the clergyman, whether he can be deprived by
the parish ; in all the cases in which he has been deprived by
the clergyman, he seems to have been appointed by him. In
Gauday's ease, 2 Brawnl. 88, it was said, that d clerk ou^t to
be deprived by those, that put him in, and no others, and that
if the ecclesiastical court meddle with the deprivation of a parish
clerk they incur a or^nntfiif re; but in this case the clerk had
been elected by the parishioners, according to a custom ; and
the parson souffht to aeprive him upon the right of election, as
well as for other causes; and the case seems to have been
decided wholly on the ground that the parson could not, by force
of a Canon, supersede the customary right of the parishioners
to elect. 13 Jtep. 70 ; Godb. 163.

Supposing, therefore, that a clerk can only be removed by
the same authority that appoints him, it becomes important to
consider whether, when the clerk has been appointed by the
parishioners, the parson not being able of his own authority to
remove him, can procure his deprivation by proceeding against
him in the ecclesiastical court; for it may happen that the
parish may refuse to do so, notwithstanding misconduct on his
part It appears to be the better opinion, that being merely a
temporal officer, the spiritual court has not jurisdiction to de-
prive him. (a) In Barton v. Askton, 1 Lee, 533, Sir Q. Lee, it

(a) It has been discussed in many cases, whether the office of
a parish clerk be spiritual or temporal ; in Barton v. Ashton and
Grayt 1 Lee, 350, it was said by Sir G. Lee, that where the clerk
was appointed by the parishioners by custom, he had been held to be
a temporal officer, but where he was nominated by the parson, he was a
apiritoal officer ; as the office is the same in both cases, it seems difficult
to see how the nature of the office can depend upon the right of appoint-
ment. Suppose the common law right to have been in the parson,
but superseded in a particular case by a right acquired by the parish-
ionersy the transfer of the right of nomination could work no alteration

640 JiUtrialb Cleriu

^'*y> 18 true, that articles, agaioat a parish derk, vUch daiged
^'^"^^ * immoralities and neglect of duty were admitted, in order to hafc
the clerk's license from the ordinary revoked, and with a view
of ultimately depriving him." In TotMshemd ▼• Thorpe, Sir.
776, but more fully reported, 2 Lord Ragm. 1507. Tbe
clerk was libelled in the ecclesiastical court for vary gross
and detestable offences; tbe suit was both for panbhineot,
and to remove him from his office* The coort in this case
seemed to consider him as a spiritual officer, and decided
that the prohibition should stand as to all, bat the proceeding
for deprivation, and as to that a consultation should go. In both
the above cases, the appointments were made by tbe incambests.
Afterwards in Peak v. Bour$$e, Sir* 942, the court said, the
opinion they had expressed in the former case, that the clerk
was a spiritual officer, was a hasty opinion ; but it does not
appear that they withdrew from the main decision in that caie,
as to the power of the ecclesiastical court to proceed to depri-
vation. But in Fee v. Bourgoyne^ 405, Abbott, C. J*, speaking
of the above case of Towmhend v. Thorpe, said, ^* that vas »
'' proceeding against a parish derk, who was charged vith
** several offences punistiable in the temporalt and not in
" the spiritual courts, yet it was held, that were might be pro-
'' ceedings against him In the spiritual courts, to deprive him of
*' his office, and as to that a consultation was granted. Objection
'' has since been made to that case, on the ground that tbe
<< ecclesiastical court had no authority to suspend or deprive a
'* parish clerk ; perhaps that objection is well founded, but tbe
''rest of the case has never been questioned, . and is so
'' authority for our present decision,*' and vid* 1 Burr. 367.
Puntthad But it is said that if the clerk misdemean himself in his office,
or '^t- )ie may be sentenced in the spiritual court to excommunication,
theiplritual though not to deprivation. 2 Bronml. 38 ; 2 RoU. Abr. 324.
court, It is clear, however, that the spiritual court cannot proceed on
quart, articles for offences cognizable in the temporal court, ia ori^^
to ecclesiastical punishment; nor if he be a mere lay officer,
can they proceed against him in order to correct him,'D<^'
as it seems, to deprive him, for misdemeanors in his. office,
though such misdemeanors may not amount to offences cogni-
zable in tbe temporal courts. Quare, however, whether it nc-
cessarilv follows, that because the office is a lay office, the eccle-
siastical court has not cognizance of the conduct of tbft person

in the office itself, nor could sul^ect it to eodesiastieal jaris&tioa ^
not before subject ; nor exempt it from such jucisdiotioa if not previously
exempt.

IfUaciO) €\tttu 641

holding ity when it is an oflSce connected with the discharge of Proceed-
spiritual duties. 1 P. Wms. 29. pn^J^""

Formerly, it seems, that the ecclesiastical court was resorted

to not only for the purpose of proceeding in order to deprive, la eccle-
but also in order to restore, when deprived ; but upon this being >>*^<^^
suggested to the court of king's bench, a prohibition was granted.
1 Burr, 367. In a previous cilse, a clerk bad been turned out by
an incumbent, who also exhibited articles against the clerk in the
ecclesiastical court, and prayed that his license might be re-
voked; which articles having been admitted, the clerk ap-
pealed against such admission, and prayed that he might quietly
possess his office till sentence was given against him ; and also
applied for a mandamus to be restored. The ecclesiastical
court put him to his election either to proceed in the appeal or
on his mandamus. 1 Lee^ 460.

If an incumbent proceed to deprive a parish clerk appointed
by himself, as it seems admitted he may, he must be careful to
proceed regularly. Thus he should summon him to answer the
charges made against him ; 3 DowL 327 ; and in R. v. Gaskin,

8 T, IL 209, where it did not appear upon the return to a
mandamus to restore a parish clerk, that he had ever been sum-
moned by the parson to answer the charge against him before
he was removed ; the court awarded a peremptory mandamus to
restore. Lord Kenyan^ however, said, '' notwithstanding our
** decision, Dr. G. will be perfectly justified in renewing his
'' accusation against this person, and in removing him from his
^* office in a more formal manner, if the charge be true."

So also it should appear upon the affidavits in opposition to
a mandamus to restore, or upon the return to such a man-
damus, that there was suflScient cause for the removal. Thus,
affidavits, stating that a clerk had been guilty of divers acts of
intoxication, without specifying a single instance, or without
stating that he was unable, through intoxication, to discharge
his duties, were held insufficient to justify a removal, and a man-
damus to restore was granted. R, v. Neale, 4 Nev. Sf Man.
Indeed, in one case it was held, that the court will not judge of
the justice of the cause of removal, upon the ex parte statement
of the minister, he must state it in bis return to a mandamus,
and give the clerk opportunity of answering it. R. v. Davies,

9 2). ^/2. 234.

It seems to have been thought that a parish clerk may sue Suit for
in court christian for his fees, which are called largitiones ^^^
c/iaritita. 2 RoU. Rep. 71 i Fin. Abr. ''Parish Clerk;'*.
These largtiiones probably had their origin in the ** accustomed
alms," sp^en of in the constitution of Boniface^ ante, which
were, as stated by him, " to be strictly compelled by ecclesias-
tical censures.'*

T T

642 Ij^riih €Utk.

Suit for TheQlst Caiiicm provides, ''that the derka 80 chosen shall

^^' have and receive their accustomed wages, without fraud or dimi-

nution, either at the hands of the churchwardens at such tiroes
as hath been accustomed, or by their own collection according
to the custom of the parish." And Gibson adds. Cod. S41,
that in the register there is a consultation provided in a case of
the same nature, for what the writ calls largitio charUiva,
which by parity of reason may be extended to the present
case.

But whateyer rights parish clerks may have in respect of this
provision, they cannot be enforced in the spiritual court, for as
it is founded on custom, it is by consequence triable at common
law ; if there be such a custom, it has been said that the course
for the clerk to take would be to bring his action on the case
against the churchwardens, for neglecting to make a rate and
levy it ; or if it had been levied, that they had not paid it.
3 Salk. 87 ; 6 Mod, 252, So a prohibition was granted in a
suit by a clerk, suing in the ecclesiastical court, for one shilling
and fourpence assessed on a house at a vestry in 167S. For it
was said that the clerk is a temporal officer ; or if no^ still he
could not sue in the ecclesiastical court for such a rate ; for if it
be due by custom he may maintain assumpsit ; if not, a qua$ttum
meruit, or a suit in equity. Sir* 1108.

As to the assignment of a stipend to the clerk under the
church building acts, 58 Geo. 3, e. 4w5, ss. 63, 64 ; 59 Ge^. 3,
e. 134, w. 6, 10; 1 ^ « Vict. c. 107, s. 2 ; ante, 206, 207. As
to apportionment of fees, ante, SOS.

643

$e(ultar)S.

1. Royal.

2. Of arcbbishops and bishops.

out of their dioceses,
in their dioceses.

3. Other Peculiars by composition.

Aecumulativi.
Privativi.
Provisions in respect of, by 1 ^2 fT. 4, e. 61, and

1 4* Fiet. e. 107.
Report of commissioners on the subject of peculiar
jurisdictions.

A PECULIAR, in the ecclesiastical acceptation of the word,
is a district exempt from the iurisdiction of the ordinary of the
diocese. These are not called exempt jurisdictions, because
they are under no ordinary, but because they are not under
the ordinary of the diocese, and have an ordinary of their own.
AyKffe Pater. 417 ; S PhilL 244.

Peculiars seem to be generally of three sorts : 1. royal Pecu*
liars ; 2. Peculiars of archbishops and bishops ; S. Peculiars
depending upon composition with bishops, &c.

1. Royal peculiars, which are the King's free chapels, are Royal Pe«
exempt, not only from the jurisdiction of the diocesan, but ^^^^^*
from the provincial jurisdiction of the archbishop. Formerly
they were immediately subordinate to the see of Rome, but by
the effect of the 25 Hen. 8, they were placed at once under
the jurisdiction of the crown. A royal peculiar, though situated
within the province of Canterbury, is as distinct from it in mat-
ters of jurisdiction as are the provinces of York or Dublin. In
such a case, therefore, an appeal does not lie to the archbishop's
court, but to the king in chancery, which formerly was in fact
to the high court of delegates, which is now, by 2 ^ 3 ff^. 4, c. 92,
and 3^4 ^. 4, c. 41, transferred to the judicial committee of
the privy council. 1 Add. 4d8, m., 44, ante^ 43,

It was therefore held, in one case, that the process of the
prerogative court did not run into a royal peculiar, and can
only be served by letters of request ; Crowley v. Crowley ^
3 Hag. 758, n. ; and in another and subsequent case, that royal
peculiars being altogether independent of the archbishop, the
will of a deceased person who left goods in two royal peculiars,
in one of which he died, and other goods in one diocese only

T T 2

644

^tmlfars.

Jiop] Pe-
culiar.

Of Archbt-
•hopt and
b'uihopt.

Within
their own
diocetes.

By coropo«
flition.

within the proTince, is rightly proved in diercyya] pecofiar where
he died. Smith v. Smith, 3 Hag. 757. So also, if the deceased
died in a royal peculiar, and left bona notabiSa id two dioceses
within the province, the prerogatire court of Camierbmy must
grant probate on an office copy, or erempUficaiiom of tlie royal
peculiar probate, as in a case where probate had been taken in
the province of York,

2. Peculiars of archbishops and bishops are generally districts
which are exclusive of the bishop of the diocese where they are
situated ; of which sort the bishop of London has four parishes
in the diocese of Lincoln ; and every bishop who has a boose
in the diocese of another bishop may therein exercise episcopd

{'urisdiction ; and therefore, as Lindwood remarks^ the word
>i8hoprick is more extensive in its meaning than the word dio-
cese, because a bishoprick may extend into another bishop*s
diocese by reason of a peculiar jurisdiction therein. 3 Burnt
E. L. 73.

It was said by Eadmerus, that wherever an archbishop had an
estate, he had the sole jurisdiction as ordinary. Within the dio-
cese of Canterbury there are more than one hundred peculiars.
There are some churches which, though situate within the

Srecincts of an archdeaconry, yet are not subject to the arch-
eacon ; such as were churches regular of monks, canons, and
other religious houses, and also particular parishes expressir
reserved and exempted by the archbishop from archidiaconal
jurisdiction; of which there are many instances where the
parishes themselves continue exempt, and where the archbishops
and the bishops do exercise an immediate and peculiar juris-
diction. 3 Burris E. L.7S.

As to the former of these, the jurisdiction over religious
houses, the archdeacons were excluded from that by the ancient
Canon law, which determines that archdeacons shall have no
jurisdiction in monasteries, but only by general or special cus-
tom ; and, if the archdeacon could not make out such custom
he was to be excluded from jurisdiction, because he could not
claim any authority of common right. As to the other, viz. the
exempting particular parishes from archidiaconal jurisdiction,
there are not only many instances of such exemptions in the
ecclesiastical records, but the parishes themselves continue so
exempt, and remain under the immediate jurisdiction of the
archbishop, as in other places of the bishop. S Bum*s E. L. 73.

3. Deans and chapters, monasteries, archdeacons, and others
who, by composition with bishops, have obtained exemptions
from ordinary jurisdiction, may, and indeed have their pe-
culiars ; these exemptions, being derived from the bishop, they
are still, it is conceived, subject to the controlling power of the
metropolitan of the province. 5 M. ^ S. 1)9; 3 Hag. 190.

$ftuIiBrs(^ 645

Those which are neither royal nor archbbhop's peculiars, and Bv compo-
iKrhich are exemptions from ordinary jurisdiction, and have been ""^°'
obtained by composition with the bishop, seem also, according
to Godolphin, to be of two sorts ; for he says,

** The jurisdiction of peculiars is various, more or less, ac-
*' cording as it was first indulged. It is generally accumulativS Aeeumuia-
** cum episcopOj or privative. If the power is acquired only «««^-
** accumulatively, then they have at most but an archidiaconal
** power, and the bishop hath a concurrency with them. If their
" jurisdiction is acquired privative, that If, excluding the bishop. Privative,
** which is the common sort of peculiars, it ought to be expressed
** in the grant or composition.' GodoL Abr. App. 13.

In Robinson v. Gonsa/ve, 1 Lord Raym, 133, it was resolved,
that where an archdeacon hath a peculiar jurisdiction, he is
totally exempt from the power of the bishop, who cannot enter
and bold court there ; and in such case, if a party be sued in
the bishop's court, a prohibition shall be granted ; but if the
archdeacon hath not a peculiar, then the bishop and he have
concurrent jurisdiction, and a party may commence his suit
either in the one court or the other. Ante, 60 ; 1 Hag. 1G9 ;
3 Hag. 199 ; 1 Lee, 398 ; 2 Lee, 8.

The general exemptions enjoyed by peculiars only extend to
the exercise of such powers as the persons or bodies are capable
of exercising ; and therefore, if under the degree of a bishop,
they cannot, unless there are express words conferring such
special exemption, employ what bishop they choose to do acts
purely episcopal, but must have recourse to the bishop of the
diocese for all such acts, after the exemption as much as before.

By Stat. 1 Geo. 2, c. 10, all donatives which have received DonitiTot.
Queen Anne's bounty shall thereby become subject to the juris-
diction of the bishop of the diocese, and, that no prejudice may
thereby arise to the patrons of such donatives, it is provided
that no such donative shall be so augmented without consent of
the patron under his hand and seal.

Provision has also been made with regard to churches and churchei
chapels built under the authority of the church-building acts, built under
ante, 194, that all churches and chapels built under thatautho- ^^^^^
rity, and all ecclesiastical districts consolidated by the power of acu.
the commissioners shall be subject to the ordinary within whose
diocese they are locally situated.

By 1 ^ 2 W. 4, c. 61, reciting that " by 59 Geo. 3, c. 134, i & j wm.
commissioners might unite and consolidate contiguous parts of 4, c 61 .
parishes and extra-parochial places into a separate and distinct
district for all ecclesiastical purposes, and make grants or loans
towards the building of any chapel or chapels, and constitute
any such district a consolidated chapelry ; and that all such
chapebies should be deemed to be benefices, and be subject to

646 P(raltars(«

1 & 2 Win. the jurisdiction of the bishop and archdeacon within whose
^'^'^^' diocese and archdeaconry the altar of such chapel should be
locally situate : and whereas doubts have arisen touching such
jurisdiction in the case of chapels or districts situated wholly or
in part within exempt or peculiar jurisdictions ; it is enacted, that
every such chapel and district, whether situated wholly or in
part within any exempt or peculiar jurisdiction^ shal] be subject
to the jurisdiction of the bishop and archdeacon within the
limits 01 whose diocese and archdeaconry the altar of any such
chapel shall be localI}r situate, in as full and ample a manner as
it would be if no part of such chapelry were within some exempt
or peculiar jurisdiction ; and in every such case all other eccle-
siastical jurisdiction over the said chapel and chapelry shall
wholly cease, and no other such jurisdiction shall be exercised
in the said chapelry, save and except the jurisdiction of the
bishop and archdeacon as aforesaid ; any law, usage, or custom
to the contrary notwithstanding." Ante, 196, 200,
I ^ 3 Vict. By a late act, I Sf 2 VicU c« 108, $. 108, a considerable alte-
c. 108. ration has been introduced with regard to peculiars, making
them, except in the cases of peculiars of archbishops and
bishops, subject, for the purposes of that act, to the jurisdiction
of the archbishop or bishop in whose province or diocese they
are locally situate, '' who snail use and exercise all the powers
and authorities necessary for the due execution by them respect-
ively of the provisions and purposes of this act^ and for enforcing
the same with regard thereto respectively as such archbishop
or bishop would have used and exercised, if the same were not
exempt and peculiar, but were subject in all respects to the
jurisdiction or such archbishop or bishop.*' If any benefice,
exempt or peculiar, is locally situate within more than one pro-
vince or diocese, or between the limits of the two provinces,
or of two or more dioceses, the archbishop or bishop of the
cathedral church, to whose province or diocese the parish church
of such benefice shall be nearest in local situation, shall exercise
the above jurisdiction, and the same, for the purposes of the
act, shall be deemed to be within the limits of sucn province or
diocese.

And by s, 109, in every case where the above jurisdiction is
given^ it is further provided, '' that all other and concurrent
jurisdiction in respect thereof (except as herein otherwise pro-
vided) shall wholly cease, and no other jurisdiction in relation
to the provisions of this act shall be used, exercised, or en-
forced, save and except such jurisdiction of the bishop and
archbishop under tins act,** any act, law, usage, &c. to the con-
trary notwithstanding. ,
Report of The following extracts from the general report of the com-
commis- missioncrs appointed to inquire into the practice and jurisdic-

nonera*

^eniliarsf. 647

commif-
tionere.

tion of the ecclesiastical courts will show the present condition |^^®P^^)^^^
of peculiar jurisdictions. "

'' The peculiar jurisdictions in England and "Walesj with the
manorial courts, amount in number to nearly three hundred.

** These jurisdictions^ as we have already stated, are of several
kinds.

** Royal peculiars ; peculiars belonging to the archbishops,
bishops, deans, deans and chapters, archdeacons, prebendaries
and canons, and even to rectors and vicars ; and there are also
some of so atiomalous a nature as scarcely to admit of accurate
description. In some instances these jurisdictions extend over
large tracts of country, embracing many towns and parishes, as
the peculiar of the dean of Salisbury. In others, several places
may be comprehended, lying at a great distance apart from
each other. Again, some include only one or two parishes.

'' The jurisdiction to be exercised in these different courts is
not defined by any general law.

" It is often extremely difficult to ascertain over what descrip-
tion of causes the jurisdiction of any particular court operates,
and much inconvenience results from this uncertainty.

" This variety of iurisdiction has proceeded from different
causes connected with the history of the church which it is not
necessary here to specify. The peculiars were always consi-
dered as interfering with the beneficial exercise of the authority
of the bishop of the diocese, and proposals have been advanced
at different times to remove the inconvenience.'*

It was recommended by the commissioners appointed to
revise the ecclesiastical laws in the reigns of Henry 8 and
Edward 6, that the power of the bishop in matters of discipline
should extend to all places within the diocese, notwithstanding
any exemptions or privileges they might enjoy ; and the com-
missioners in their present report conclude with a recom-
mendation that the whole jurisdiction of Peculiars, both con-
tentious and voluntary, should be abolished, and that they
should in all cases be subjected to the bishop of the diocese
within the limits of which they are situate, and that they
should be made a component part of some archdeaconry.

648

Besides the greater ecclesiastical censures, penance was tad
as an ecclesiastical punishment, in the discipline oi Ae churck
afTecting the body of the penitent ; by which he is obliged to
give a public satisfaction to the church for the seandal he liath
given by his ill example. GodoL Abr. App» 79. It was al«o
a punishment for contempt. Oughton^ tit 86^ n. 3. Altfaoogk
it has fallen into disuse as a punishment in many cases, aod
although many of its most degrading forms are dispensed with
in all, it is still considered as a subsisting mode of punishment,
and in the serious offence of incest, as well as the less importaat
Forinceat. one of defamation, continues to be the ordinary judgment
decreed by the ecclesiastical court. In the case of Blackmort
V. Brider and atwther, 2 PhilL 359; which was a cause of office

Sromoted against Brider for having married and cohabited with
I. W. the daughter of his former wife by a former husband;
the sentence of the court was, that the marriage was null and
void, and that the parties must do the usual penance and pa;
the costs of the suit; and the penance enjoined was, that Brkler
should perform a public penance in his parish church, on a
particular Sunday specified, during the time of divine service^ m
the forenoon of the day, and whilst the greater part of the con-
gregation might be assembled to see and hear the same.

In Burgess v. Burgess^ 1 Hag. Con. 884, suit was promotw
at the instance of a nephew against his uncle, for incestuous
cohabitation with a niece ; the court did not decree a public
penance, but condemned the party proceeded against in costs,
with injunctions as to future conduct ; adding, that if obedience
was not given to the order, excommunication and other coih
sequences would necessarily follow.

in Chick v. Ramsdale, in 18S5, 1 Curt. SI, which was a case
of incest, the marriage was pronounced null and void, and the
parties directed to perform the usual penance ; afterwards upon
medical affidavit that the state of health of both the parties ren-
dered it dangerous for the sentence to be carried into eSectt <^^
court. Dr. Lushington, remitted the sentence ; the counsel for
the promoter of the suit concurred in a suspension of the sen-
tence, but the court thought that the allowing the threat of
penance to hang over the heads of the parties for an indefi-

For defa. nitc time, might be almost as detrimental as the actual perform*

mtUon. ance of it.

May be re
mined.

t9(naitre. G49

In Couriail v. Homfray^ 2 Hag. 1, which was a cause of For defm-
defamation, in which the defendant was convicted, the penance '°*"°'^
was thus, ** That Homfray should, after giving twenty-four
hours' notice at least thereof to H. C, (the person defamed,) Mode of.
repair in the day time to the vestry room of the parish church
of C, and there, in the presence of the officiating minister and
one of the churchwardens, (who were to have the like notice,)
and sueh other persons as the party complainant shall bring
with her, audibly and distinctly make the following confession,
viz. to the effect '' that he had defamed Mrs. C«, tnat he asked
for her forgiveness, and that he would not again offend in like
manner.** Upon appeal to the Arches in 1828, this sentence
was confirmed, and the court. Sir J. NichoU^ said, '' the re^
" traction of the defamatory words must be fairly made, and in
'* the form directed.*'

The penance may be totally altered by a commutation of Commuta.
penance, which has been the antient privilege of the ecclesiastical tion of.
judge to admit, that an oblation of a sum of money for pious
uses shall be accepted in satisfaction of public penance. With
regard to the cases in which commutation was to be allowed
and as to the application of the commutation money, great
differences of opinion seem to have prevailed ; regulations on
these subjects were made by the Canons of 1640, and again by
the convocation in the reign of Queen Anne, but none of the
regulations are now in force. 3 Burris Ecc. Z. 80.

By the Stat. o{ Articuli Clerif 9 Ed. S, sh. 1, c. S, this dis-
tinction is made between penance and the commutation of it,
''If a prelate enjoin a penance pecuniary to a man for his
offence, and it be demanded, the king's prohibition shall
hold place : but if prelates enjoin a penance corporal, and thev
which be so punished will redeem, upon their oum accord^ such
penances bv money, if money be demanded before a spiritual
judge, the king's prohibition shall hold no place-
So also by s. 3, of the same statute, '' If any lay violent hands
on a clerk, the amends for the peace broken shall be before the
king, and for the excommunication before a prelate, that cor-
poral penance may be enjoined; which, if the offender will
redeem by his own good will, by giving money to the prelate,
or the party grieved, it shall be required before the prelate,
and the king's prohibition shall not lie."

With regard to the commutation money, it seems that it is to Commntii.
be given to the poor of the parish where the offence was com- tion money,
mitted, or applied to other pious uses, at the discretion of the
judge. Oughtoni 213.

In 1735, the bbhop of Chester cited his chancellor to the me-
tropolitan court at York, to exhibit an account of the money

650

fnmmt*

Commuta-
tioo of.

Sentence

tobecer-

tftin.

received for eotninulations, and to show cause why an inhibition
should not go against him, that for the future he should not
dispose of any sum or sums received on that account, without
the consent of the bishop. But the archbishop^s chancellor
refused to grant such inhibition, and held that the bishop could
6nly oblige an account, and so dbmissed the chancellor without
costs. 3 Burn*s E. L. 81.

In the case of R. v. Mabejff S D, % R. SIO^ a question arose
as to the sufficiency of a decree of the ecclesiastical court; that
the defendant, who had been pronounced guilty of defamation,
should ''perform the usual penance;*' on his refusal to submit, a
writ de eontumace capiendo had issued, upon which he had been
committed to gaol, and on being brought up on habeas corpus,
one of the objections to the significavit, the only one argued
was, that the sentence was uncertain, inasmuch as it did not
appear what the usual penances were, which the defendant
was required to perform before he became in contempt, which
ought to have been specifically set out. On showing cause an
affidavit was produced, shewing, that according to the practice
of the ecclesiastical court, the nature of the penance could not
be stated in the significavitt inasmuch as before the schedule of
penance could be extracted, the defendant should have paid the
costs of the suit, and when that was done, the schedule would
have been handed to him. In point of fact, at the time of sen*
tence, the schedule of penance was made out, and it fully de*
tailed how, where, and when the penance was to be performed ;
but the payment of costs was a condition precedent to the
delivery of the schedule. This was the invariable practice of
the court, and it was argued that this was an answer to the ob-
jection as to the uncertainty of the decree, as stated in the
significavii*

Abbott, C. J., said, " I am of opinion, upon the aflSdavit ad*
'' duced in answer to this motion, that we ought to discharge
*' this person out of custody. Taking the affidavit altogether,
*' it appears that an imperfect decree has been pronounced.
** The decree is, that he is to perform ' the usual penance/
** What the usual penance is does not appear. The aflidavit
" shews that something more was to be afterwards done by the
" registrar, namely, to specify in the schedule what the penance
** was to be, as to time, place, and manner of performing it.
*' The defendant ought to nave had the decree exhibited to him,
'' in its most perfect form, before he could be considered
'' in contempt for disobeving it. There is nothing said
'' in the signlficavii about the payment of costs. The contempt
" is not said to be for non-payment of costs, but for not per*
" forming the usual penance. The defendant ought to have

'' been distinctly told what the penance wasi and not left to find
*' it out after be had done something elsef namely, paid the
" costs."

In Kington v. Hack, 7 Ad. ^ EIL 708^ an application was made
to set aside a writ de coniumace capiendo, on the grounds that the
defendant had not been admonished to take out a schedule of the

Eenance ; that he was sentenced to do penance in the minister'^
ouse, which might have subjected him to an action of trespass
if he had entered it; for the sentence could give him no au-
thority to enter the house. It, however^ appeared, that there
was an order for the party to pay costs, for the not doing which
be was in contempt, and for which in fact the significavit had
issued. Lord Denman said, ** if the sentence be sufficient in
** one distinct part, this application cannot be granted. Now,
** it appears that the sentence awarded payment of a precise
'* sum, £25 for costs. Whatever objections may be raised as to
" ordering penance at the minister's house, or on other points,
*^ yet if we ecclesiastical court bad power to impose costs the
*^ defendant is liable for them ; that is an independent subject
*^ matter, and I do not see how the costs can have been de-
** creased by any defective proceeding of the court as sug-
*' gested ; the application must be therefore refused."

652

$Uatiin0.

Cauiet*

Plenary.
8ttmmary<

Admissibility of any plea Diay be objected to.
Contestatio Utis*
Personal answer of party.
Allegations, responsive or rejoining.

Whole case to be brought forward at once.
Supplemental allegations.

After publication.
Criminal charges.
Form of.

Libel.

What it ought to contain.
Sufficient legal charge.
Need not be minute.
Articles.

Should be specific.
Allegations in answer.

Must shew a legal defence.
In criminal cases.

Latitude allowed.
Rejoinders.
Irrelevant matter.

History of case allowable, when.
Explanatory ctreumstances, when.
Felonious acts, how pleadable.
Verdicts at law.
Law, when to be pleaded.
Written documents.

Causes in the ecclesiastical court are divided into plenary
and summary ; this distinction is necessary to be notieed, though,
in modem practice, it is apprehended there is subsUntially
but little dinerenoe in the form of proceeding.

All causes in the nrerogative court, and all proceeduigs in
appeals befwe the delegates, whaterer may have been the cha-
racter of the original cause (and now it is conceived before the
judicial committee of the privy coundl) are summary ; sdi other
causes, whether criminal or ciril, are plenary. Ovgt^ath '^* 7»
SIS I jRep. EocL Cwmn. 16. Plenary causes are tbose in which
the order and solemnity of the law is exactly to be obsenred, so
that if there be the least infringement or omission of tbat order,
the whole proceedings are annulled; and in these there must be
a contestation of suit, a term to propound all things, and a term

yitaMng. 653

to conclude. Summary are those in which auch order is dis- Camei.
pensed with, although in these, if you proceed plenarily, the s^^^j
proceedings are Talid ; hut if any proceed summarily in a pie- ^*"" ^'
nary cause, all the proceedings are immediately nulL Conset,
22.

Ayliffe says, according to BalduSf when the party may pro-
ceed summanly, and he chooses the ordinary way of proceeding,
the cause is made plenary ; and when a cause is made plenary
by the act of the party it ought to be determined plenarily,
Parer. 152 ; wherefore, Qushton recommends, that if a proctor
doubts whether a cause is plenary or summary let him proceed
plenarily ; and then, although the cause should be summary, he
will avoid having his proceedings set aside for nullity. Tit. 7.

The first plea bears different names in the different descrip- Libel or
tions of causes. In criminal proceedings it is termed the articles^ articlef.
in form, it runs in the name of the judge who articles and objects
the facts charged against the defendant. In plenary causes, not
criminal, the first plea is termed the libel^ and runs in the name
of the party or his proctor, who alleges and propounds the facts
founding the demand. In testamentary causes the first plea is
termed an allegaiion.

In summary proceedings, strictly speaking, there seems to
have been no necessity for a libel, a party might declare his
intention vitd voce^ Oughton, tit, 57, 58, n. a. ,* but Oughton
himself, though he states this in a note, devotes a title to the
mode of giving in a libel in a summary cause. Tit. 58.

Upon giving the libel or articles, the proctor must pray that
it be admitted, and the adverse party may object to its admission
either in the whole or in part.

Every subsequent plea in all causes, whether responsive or
rejoining, and by whatever party given, is termed an allegation.
Rep, Eccl. Comm. 17.

£ach of these pleas ought to contain a statement of the facts
upon which the party founds his demand for relief, or his de-
fence ; resembling a bill and answer in equity, except that the
allegation is broken into separate positions or articles^ The
facts are alleged under separate heads according to the subject
matter, or the order of time in which they have occurred.
Upon this form of pleading the witnesses are produced and ex-
amined only to particular articles in the allegation, containing
the facts within their knowledge. Anie^ 382, 884.

A notice or designation of witnesses should be delivered to
the opposite party, who is thereby distinctly apprised of the
points to which he should address his cross-examination of each
witness, as well as the matters which it may be necessary for
him to contradict, or explain, by counter-pleading. Ante, 386,
396.

654 pieaHiiiff*

Libel or aU Before a plea of any kind, whether articles, libel, or allegation,
aJ^iifisioD ^^ admitted, it is usually submitted to the inspection of the counsel
of. of the adverse parties ; and if it appears to them objection-

able, either in the whole or in part ; in form or in substance,
they may oppose the admission of it. It may be opposed in the
whole, if the whole substance of the allegation be objected to,
that is, when the facts altogether, if taken to be true, will not
entitle the party giving the plea to the demand which he makes,
or to support the defence which he sets up; in part, if any of
the facts pleaded are irrelevant to the matter in issue, or could
not be proved by admissible evidence, or are incapable of proof.
Rep. Ecci. Comm. 17; 1 Phitt. 1, in noHi; 1 Hag. 11;

These objections, which somewhat resemble a demurrer at
law, are argued before the judge, and are decided by him, and
his decision on them may be appealed from.

For the purpose of the argument ^ the facts in such pleading,
and which are capable of proof^ are generally assumed to be
true; to what extent, however, that position is to be taken, will be
understood by the following observations of Sir John Nie/koU, in
Montefiore v. Montefiore^ 2 Add, 354 : the learned judge said,
'* The cause at present stands merely upon the admission of the
" allegation, the testamentary paper ; but should the court reject
'' that allegation there is an end of the cause itself. For the
** principle upon which the court rejects any allegation is, its
** madequacy (assuming its truth) to make out the case laid in it.
'* If the court then rejects this allegation, it must be, that it
*' thinks it insuflScient, assuming it to be true, to sustain the paper
" which it propounds as a will ; so that in that event, as already
" said, there is of course an end of the cause. The cause must

proceed, indeed, should the court admit the allegation, in

order to its being proved ; as it only assumes the allegation
" to be true, for the purpose of determining whether it he ad-
** missible ; its final avail and efficacy in the cause, obriously
** depending upon whether, and to what extent, the allegation is
** proved, after being so admitted.

But the court will not adopt all the averments in the
allegation even for the limited purpose of the argument
'' For," adds the learned judge, '' in assuming, an al-
" legation to be true, for the purpose of determing its
" admissibility, the court only assumes to be true those facts
** pleaded in it capable of satisfactory proof; and not by any
'' means all the several averments, which may stand in the alle-
** gation, which, in effect, are mere inferences^ deduced somehow
" or other, from those facts. The averments in a plea, are to
*' be taken for true, so far only as the facts pleaded, justify in*
" ferences to the effect of those averments, which, whether tiiey

" do at all, and if bo, to what extent, it is for the court to deter- j^^^l^^J *'■
'' mine. For instance, in this sort of allegation, 'intention' on a^^ission

" the testator's part to do so and so, is always averred, but such ot

" averment goes for nothing, unless the court can infer from the
" facts pleaded, that the testator's intention was as averred.
" So, when again in a plea of this same description, the testators
" capacity, at the time of doing the testamentary act, is averred,
'' as it always is ; the truth of that averment is only assumed by
'* the court, even in deciding upon the admissibily of the plea,
'' to what extent it thinks that the facts and circumstances of
*' the transaction, as pleaded, warrant an inference, that he was
*' of capacity at such a time; and so in other matters.** Vide
also to the same effect the judgment of Dr. Lushington in
Neeld v. Neeld, 4 Has. 266.

If, therefore, the plea be admitted, the party offering the
plea is no less bound afterwards to prove the facts ; and the
party who has objected to the admissibility of the plea, on the
necessary assumption that the facts are true, is not the less at
liberty to object to such facts.

This mode of proceeding enables parties to take the opinion of
the court without expense and delay, and if there be candid
dealing between the parties, the facts may be so stated in the

1)lea, as they would be in a case for the opinion of a court of
aw; where the question between the parties is altogether,
or at least in great measure, a question of law arising out of
the facts stated and not disputed, (a) Croft v. Crafl^ 3 Hag.
311.

But the court will not, in all cases, especially in cases of doubt
or difficulty, at once reject an allegation and undertake to decide
that the facts stated, if proved, do or do not amount to a full
legal defence. Thus in bew v. Clark and Clark^ 1 Add. SS2,
where the question arose on the admissibility of a plea, respon-
sive to an allegation, propounding a will ; Sir J. rfichoU said,
** The present case is of a singular complexion, but it is one
" which I am not disposed to stop in limine^ by repelling this
'^ plea, especially as it is setup on the part of an only child. The
** case is one, in substance, of partial insanity, of insanity quoad
** hanc the deceased's daughter. It is alleged in this pfea, that
" the deceased conceived a dislike to this only child, founded
** purely on illusion ; and it is inferred that he was actuated solely
'' by that illusion to dispose of his property, in the way in which
** it is purported to be conveyed by the will propounded in the

(a) In pedigree cases the rule seems somewhat different, for there a
party has no right to see the adverse plea till he has set out his own
pedigree. Rutherford v. Mauh^ 4 Hag. 238,

G56

^ItB^Hinfi*

Libel or al-
legation,
admissioQ
of.

ContetUUio
lUU,

Pwrwnal
answer of
defendant.

t€

€€

" allegation, to which this plea is re8|K>nsive* Now the possi^
" ble occurrence of such a case of partial insanity, and that
" proof of it may invalidate a will, which is fairly presumable to
** have been made under its direct and immediate operation,
" must be admitted on the authority of Greenwood's case, (vide
'^ that case in notCf 1 Add, 283,) though the last verdict in that
" case, if I remember, established the will. This being so, I
" am by no means prepared to say, that no case made out in
*' evidence, taken upon the plea as now tendered, could induce
** me to relieve the party who tenders it, against the operation
" of the will, sought to be impeached. At the same time, I
** must observe, first, that the plea is one of that sort to which
" it is not very likely that the proof will come up ; and secondly,
even if it does, I by no means pledge myself to pronounce
against the will. Being a case, however, which I cannot
^' determine satisfactorily to my mind against the party who sets
it up; in this stage of it, I think I am bound to admit the alle-
gation, as by so doing I give the daughter the option of pro-
ceeding with the case if she thinks proper/' (a) Fid. also
Molony v. Molony^ 2 Add. 249, apparently decided on similar
principles. Arbery v. Ashe, 1 Hag. 218.

If the libel or articles are admitted, the defendant may contest
the libel affirmatively or negatively. Ante^ 381. If he is not
minded to contest the suit negatively, he may confess the libel
and contest the suit affirmatively, and submit himself to the
judge, and offer what charges are to be taxed ; Conset, 86 ;
or he may contest the suit negatively, by denying it ; Cansetf ib.;
and this is what is called contestatio liiis^ or contesting the
suit, upon which the defendant is assigned to answer thereto.
If the plaintiff consider that he may be better relieved by the
answers of the party principal, he may, upon prayer to the
court, obtain a decree for sucn answer on oath. Conset^ ib.

The personal answer of a defendant is not required in causes
of defamation till after the defamation charged in the libel is
proved. In causes of adultery, proceeded against by libel quoad
petendum divortium, the defendant's answers may be, though
seldom are, taken to such parts of the libel as involve no direct
or implied charge of adultery. But if adultery be prosecuted
by articles quoad pcenam leaalem, his answer may not be taken,
not even to such parts of tne articles as involve no charge of
adultery either direct or implied. So also, in all other criminal
suits by 13 Car. 2, c. 12, the answers on oath of the defendant
are not to be required. An issue negative or affirmative is the

(a) The will was eventually set aside by the learned judge whose de-
cision was confirmed on appeal to the delegates.

^lea^tng. 657

only answer, and the calling for any other is an appealable Personal
grievance. SckuUes v. Hodgson, 1 Add. 105 ; 1 Lee, 620 ; ^"^^^^^'
1 Sid. 374; vid. tit « Oatksr

A personal answer ought to have three qualities : First,
It ought to be, pertinent to the matter in hand. Secondly/,
Absolute and unconditional. Thirdly, Clear and certain. Ayliffe
Parer. 65.

Where a libel had been given in and answers taken upon it,
no witnesses examined, but the answers read, it is only from the
admissions contained in the answers that the court can take the
facts of the case. 2 PhilL 339. If the facts stated in the alle-
gations are admitted by the answers, the cause proceeds to
judgment. lb. S67. In many cases, especially in tithe causes,
the facts are exclusively within the knowledge of the defendant,
and there can be no other mode of proof. lb. 584. There-
fore, in an answer to a libel, in a suit for substraction of tithes,
it is not enough to state general deductions. They must be
specifically set forth. lb. 389. Answers are not confined to
being mere echoes of the plea, but may embrace all such matter
as is necessary to put the transaction in its true and proper
light. 2 Add. 40. An answer only becomes evidence in a
cause, if read by the adverse party. lb. Where answers are
not read, the court will presume that they do not operate
favourably for the party calling for them. 2 PhilL 383. In
important cases the court will exercise a right not possessed by
the advocates, that of looking into the sworn answers of the
parties, though not read as evidence. 2 Hag. Con. 121, 259 ;
2 PhUl. 169. But the registrar, it seems, will not be permitted
to look into depositions. 4 Hag. 144.

In criminal cases, answers, though not on oath, are not to
be required even to those points which are not in themselves
criminal. 1 Add. Ill ; 13 Car. 2, c. \2, s. 4. And if the
spiritual court proceed to compel answers in such a case, prohi*
bition lies. 1 Sid. 374. An issue, negative or affirmative, in such
cases, is the only answer, and the calling for any other is an
appealable grievance. 1 Add. 110. Service of the decree for
answers on the proctor is sufficient for many purposes ; but in
order to bring a party into contempt for not answering^ sl personal
service of the decree is necessary, and service on the proctor is
not enough, vid.'^ Process.*' I Add. Mi. Ifa party does not give
in his answers on the day of the return of the decree personally
served, he will be pronounced contumacious ; 1 Hag. 33 ; but
a party cannot be pronounced in contempt at the same time
that his answers are held to be insufficient. 2 PhilL 582.

The decree or assignation is for the party to give in his
answers on oath to his knowledge or belief of the facts alleged.

u u

658

pitalitits*

Personal
■atwer*.

Allegation
respoosive.

Allegation
rejoining.

Supple-
mental alle-
gationt.

The use and object of requiring the answer of tbe defendant
on oath is to save the necessity of going into eridence. Causes
are sometimes, therefore, heard upon rae answer of the defend-
ant only. Clutian y. Cherry, 2 PhiU. 385; ib. 266 ; #& 58S.

It has occasionally happened in the country courts that the
sworn answers of the defendant have been treated as responsire
allegations, and witnesses examined on them. This is a con-
fusion between the answer and the plea. 2 PAiil. 394, 584.

The defendant may, if he thinks proper, proceed at once to
counterplead to the charge in the libel ; or he may wait until
the plaintiff has examined his witnesses, before he gires, on his
part, an allegation controverting his adversary's charge. This
IS called a responsive allegation, and is proceeded on in tbe
same manner as the libel or articles* Objections to its admis-
sibility may be taken, answers to it on oadi required, and wit-
nesses examined on it.

The plaintiff may again, in his turn, in like manner rejoin by s
further allegation, and on that or any subsequent allegation tb«
same course may be pursued. The general rule upon which
these subsequent pleadings are framed is laid down by the court,
in Dew v. Clark, 2 Add. 103, that in a rejoinder to, or upon, a re-
sponsive allegation the only facts strictlv, and dejure, pleadable,
are those either contradictory to, or explanatory of, facts pleaded
in the plea or allegation to which it rejoins, and those noriier
perventa newly come to the proponent s knowledge. But the
court may and does in its discretion permit facts to be pleaded
which do not fall within either of those descriptions, /o.

In answer to a libel, the defendant may either deny the fiicts
stated in the libel, or he may counterplead facts which, assuming
the libel to be true, offer a legal defence to the charges contained
in it. But it is not necessary that he should always distinctly
deny or traverse the facts in the libel. He may state Uie facts in a
different manner, so as to give them a different legal character
and effect. In Stvi/t v. Smft, 4 Hag. 144, it was said by tbe
court, that each party might state the circumstances his own
way, and was entitled to do so.

As a general rule, the court is bound to compel parties to
bring the whole of their substantive case before the court at
once, where it is possible, which is not always the case ; for
the knowledge of facts, or the proof by which those facts may
be supported, may not always be in the power of the party, and
thus additional articles to a libel or other allegation may be given;
but it must clearly appear that they could not have been given
in before ; this is a rule especially necessary to be observed in
matrimonial suits, where the wife seeks to introduce fresh articles,
because one party pays the expenses on both sides. S Hag.

^aliiii0« 669

97» 788. So also where a rate payer in a defensive allegation Supple-
to a suit for substraction of church rate, objected to his as- |^|||)'„^|'
sessment, on the sole ground of his being overrated , as compared .
with two others; he is not to be permitted in additional articles
to introduce, as a fresh objection, that a railway passing through
the parish had not been assessed* 4 Hag. 91.

In cases of adultery, however, a partv is not bound down to the cases of
charges in the original libel. It is said to be every day's practice adultery.
to introduce charges of adultery committed since the institution
of the suit. In many cases, it has been held, that fresh acts of
adultery may be supplied supplementarily, and that a sentence
may be obtained on facts not existing at die commencement of
the suit. Publication operates generally as a bar to prevent
the right of further pleading, but the court will, in its dis-
cretion, in such cases, allow fresh pleading after publication.
2 Hag. App. 1S6; 1 Hag, 349. So also, adultery com-
mitted by either party, (husband or wife,) at any time before
sentence, will bar a sentence of separation at the suit of the
other party, or will compel the court to dismiss both parties,
adultery being mutually and reciprocally charged in the cause ;
and courts must permit either of the parties to plead such
adultery in any state of such a cause, it being certified to be

E leaded within a reasonable time after it came to the proponent's
nowledge. 2 Add. 289, ante, 333, 404.

So where the pleadings in the cause raises a strong suspicion, After pub-
though not necessarily leading to the conclusion of adultery^ the ^^c^^^n.
court will» on aflEidavit, rescind the conclusion of the cause, and
allow a fresh allegation to be given in. 2 Hag. S4.

Generally, however, when the court has decreed publication,
and the depositions have, in consequence, become known, the
€H>urt will assign the cause for sentence, upon which there is an
assignation as to exceptive allegations; and neither party is
entitled, as of right, to plead any further plea, otherwise than
in exception to the credit of the witnesses examined in the
cause. Ante, 403. But though a party cannot insist on
a right to plead any further plea at such a stage of the cause,
yet the court, in its discretion, will rescind the conclusion of the
cause, and allow a party to plead fresh facts or exhibits, upon
an affidavit that the facts sought to be pleaded, are noviter
perveiUa, newly come to the proponent's knowledge ; the court
being satisfied that the party has used due diligence and
activity in the early stages of the cause, and that the late
knowledge of the facts proposed to be pleaded is not ascribable
to his own laches. Clement v. Rhodes, 3 Add. 41 ; 1 H€tg, 88,
2M, 359 ; 2 Hag. 134, 140, '< SunpUmentr

Strictly speaking, also, the allegation pleading those facts

u ug

660 ^l^aHins*

Supple- should be tendered at the time of makine the appKcation to the

r^^ol'- court. 1 Hag. 88.

— In one casCi an attempt was made to add an additional al-

licatioD. ~ l^g^^ion, on the ground that the facts were in the subsequent
allegation pleaded more circumstantially than they had been
before, but the court would not allow facts to be thus split, and
made more minute ; when a party states facts, he is required to
state the circumstances, and is not allowed to state them se-
parately ; 3 Hag. 98 ; and in a case before Sir 6. Lee^ such
an allegation was rejected, on the ground that the substaoee of
the facts had been pleaded and examined to before, and it
would be dangerous to allow a second examination to the same
matter, only diversified by circumstances. 1 Lee^ 568.

If a fact material to the issue has been pleaded without
such specification as would enable a party to apply his de*
fence to it, by way of counter-plea, and he is therefore, in
some degree, taken by surprise on the particulars stated in the
depositions of the witnesses, it is in the discretion of the court,
under great caution, to allow him to give in a defensive plea
after publication ; I Hag. 101 n.; 2 Hag. 60; but it would
be extremely dangerous to allow the matter to be subjected to
re-examination, merely because a witness deposed drcum-
stantially, and was contradicted on incidental points ; therefore
where matter is originally pleaded with due specification, a
contradictory plea is not admissible after publication. 1 Hag.
101 II. Thus, in a suit for divorce, by reason of adultery, if
general familiarities are pleaded, and under this head, an im-
portant specific fact is introduced, which the party can have had
no opportunity of contradicting before publication, then it may be
allowed for the purposes of fresh defence, to shew, after pub-
lication, that it is untrue. Halford v. Halfard, S PAUL 98.
If, however, a plea be sufiiciently precise to open the means
of defence, it is enough, it would lead to an inconvenient and
oppressive length, to include all particular facts. Maclean v.
Maclean, 2 Hag. 605.

With regard to criminal proceedings, (a) it is laid down that

Criminal

charges. __..«_««_«_^^______«_-__«__«_-«__-.^__^..»______^«_-.^

(a) In Burgoyne v. Free, the citation (which was in a criminal suit,
against a clergyman for incontinency and neglect,) was returned on the
9th of November, 1824, Sir J. Nicholl said, " It may be proper here
" to state what would have been the regular course, if the defendant,
" relying upon his innocence, had fairly met the charge ; the articles of
" charge would have been admitted in that term, the witnesses, in
" support of them, might have been examined during the Christmas
" vacation. The defensive allegation brought in, in Hilary Tenn, the

^leiOiutg. 661

the articles must be brought in the court day immediately sub- CrimiQ«l
sequent to that on which the defendant has appeared. In ^ ^^^^'
Dobie Y. Masters, S PhiU. 175, the judge said, that in criminal
' suits^ the rule was always observed, that articles should be ex-
hibited on the next court day after they had been prayed ; and
that, when brought in, they contain the charge, and the whole
charge ; when brought in, they may be reformed and amended
under the direction of the court, prior to their actual admission;
but when once admitted, and issue joined, both parties, it
seems, are bound by them. The promovent is not at liberty to
drop in with charges one after another; with perhaps the single
ezc^eption, that onences, ejusdem generis, if subsequently com-
' mitted, may be pleaded in further articles ; but further articles,
- containing fresh criminal charges, or even advancing collateral
facts and circumstances in proof of articles originally admitted,
and in themselves directly criminatory, ought not to be admitted.
1 AM. 821.

In a subsequent case, the court permitted a material averment
in the articles, and which had before been stated only in-
ferentially, to be pleaded distinctly and affirmatively ; I CurL
88 ; but in that case, the articles had been admitted in the
<H>urt below, against which determination there was an appeal
to the Arches, and it was on the argument on the appeal that
the court gave permission, stating however, that it was for
Its own satisfaction that it gave such permission, and noticing
the fact that the articles had not been actually admitted, and
consequently that issue had not been joined. So also, an
additional article, or articles, especially if they contain ex-
hibits only, may be admitted, in supply of proof of some articles
already admitted, provided such articles neither contain new
criminal charges, nor even adduce collateral facts and cir-
cumstances, in support of former articles. 1 Add* 319, 325.
Some latitude in pleading, in respect to exhibits, being allowed
in all suits.

The libel being the first step in pleading, is first to be con- Libel.
sidered. Aylfffe's definition of a libel is, '* the plaintifi^'s pe-

'* defendant's witnesses examined during the Easter vacation, and the
" cause heard in the Easter, or at the latest, during the Trinity Term oi
** 1825. Thus, ]f each party had heen disposed fairly to have pro-
•• ceeded in the investigation of the truth or falsehood of the offences
" imputed to Dr. Free, the constitution of the court, and the course of
*' its proceedings would have afforded the means of arriving at the
*' justice of the case in three or four terms, occupying seven or eight
'* months at no very considerable costs. 2 Hag, 481.

662 ^attuig^

^<^"" ^' " ^^}^^ o' alleffation, made and exhibited in a jndKcial process,

Libel ** ^^^^ some soleinnity of law ;** and, again he calls it, '* a dioit

" and welUordered writing, setting forth, in a clear manner, ts

'* well to the judge as to the defendant, the plaiotiff or aociuers

" intention in judgment ; so that a Hbel ought to be riiott tad

** not verbose, for the law abhors a prolixity of words.* *' Emj

** solemn libel," he adds, '' ought to contain five things ; first,

'' the name of the plaintiff who makes a demand by bringing Ui

action; secondly, the thing itself in demand or ixmlroTersj;

thirdly, the name of the defendant from whom the demaod is

" made ; fourthly, the action whereby the demand is made ami

*' the defendant sued ; and fifthly, it ought to mention the

*' judge or person by whom judgment is given, with a descrip-

^' tion of his power and commission ; all which things are (bos

summed up in Latin, qms^ quid, a quo, quatiier, ei coram ^

petatur:' Parer. 346. (o)

What it The libel or complaint of the plaintiff is generally limited br

ought to iiig citation, beyond which it cannot be extended; where t

!.-. citation or decree was expressly limited to the inequalitj of s

church rate, that was treated as the only issoe, to which the
party must be strictly confined. 4 Hag. 89.

In every libel there must be a distinct averment of tbegrootid
of complaint ; thus, in a suit for divorce, the libel must plead (be
conclusion of adultery, because, unless it is pleaded, n&n co^
stai, that it may not be a mere action for solicitation ofchastitj;
but if the party does aver it, but proves only proximate acts, he
proves the averment of the libel. 1 Hag. Con. 278. Where,
in a suit for the perturbation of a pew, the defendant pleaded
that the pew had, from time immemorial, been annexed to
his house; that was held to include the averment, that the pev
had been used, occupied, and repaired from time immemorial)
by the owners of such house. I Phitt. 3S0, 897 ; 1 Ld. Baym.
435 ; Bac. Abr. Prohib. L. In a suit for ** quarrelling,
chiding and brawling," under the statute 5^6 Ed. 6, c. 4, s. \,
the words used should be so charged as to satisly the coart

(a) Conseti 402, in his Discourse on the Libel, describes theae fi^
qualities in verse, thus,

Quis, quid, coram quo, quo jure petatnr, et k quO|
Rectd compositus quique libellus hahet
Of which he gives this English translation-
Each plaintiff and defendant's name,
And eke the judge who tries the same ;
The thing demanded, and the right whereby
You urge to have it granted instantly :
He doth a libel right and well compose^
Who forms the same, omitting none of those.

^Iraliutg. 663

that a legal and statutable offence has been committed. 1 Hag. ^0"" of'
Con. 186; 3 Hag. 856. Libel.

A libel or plea can only be rejected on one of two grounds ; what to
ftrst, that the story, on the face of it, shows a false case, which contain.
cannot be proTed; improbability is not sufficient, it must be
shewn that it cannot be proved by any possibility; or, secondly,
that it appears evidently from the facts pleaded, that the party
complaintng has barred himself. 1 Hag. 766.

But, if a legal ground for the suit appear on the face of the Need not
libel it seems sufficient to state the legal facts upon which the ^ minute.
suit is founded, without particularity or specification. Thus, in
a libel for restitution of conjugal rights, it is not necessary to
plead specifically that the parties were twenty-one years of age
at the time of the marriage, provided it is averred that the
marriage was lawfully solemnized in consequence of a license
duly obtained. 2 PhiU. 1 19 ; 1 Hag. 776. The object of spe-
cification is to give the party charged the means of repelling
the charge ; therefore, in a suit of divorce against a husband
for cruelty and adultery, where the libel charged him with
keeping certain specified houses, ** to which he took divers
women from 1790 to 1793." It was held, that the want of speci-
fication as to time was supplied by the specification as to places ;
that the places being pointed out, the scene of guilt was specified,
and the husband would have the opportunity of calling servants
to shew that he did not habitually carry home loose women to
these places ; and vid. 1 Hag. Con, 14S ; I Hag. 777 ; so where
the husband's adultery is to be proved by the pregnancy of
women with whom he is charged to have had intercourse, and
acknowledgment of children by him, particular acts need not be
pleaded. Ibid. 746.

In a proceeding to annul a marriage, the nature and charac- in nullity
ter of the alleged marriage, sought to be set aside, should be of marriage.
distinctly pleaded. In Nokes v. Milward, 2 Add. 386,- in the
Consistory court of Rochester, which was a proceeding to annul
a Gretna-green marriage, by reason that the female was another
man's wife at the time of celebration. The fourth article of the
libel pleaded that a marriage between the parties ** was had
solemnized, or rather prophaned, at Gretna, in the parish, &c."
in Scotland, and that the said parties acknowledged each other
as husband and wife respectively, in the presence of divers
credible witnesses, who, together with the said parties, signed
their names to a certificate of the said marriage ; and it then
pleaded a certain exhibit to be that '' certificate." The learned
jtid^e, Dr. Swabey, said, ** I would first observe, that the
*' pTeadinffs themselves, as to this essential part of the case, are
'* in the highest degree vague and unsatisfactory. It is first
'* pleaded, that a marriage was had, or prophaned between the

664 ^tejOrtng:.

^-^^^^- " parties — a marriage— but what kind, or description of mar*

What to " riage? whether by, or without, the intervention of any, or if

contain. " of any, of what, religious ceremony, and whether valid, or

" otherwise, by the law of Scotland, and so on, the very pleaJ-

** ings are silent about. It is then pleaded, that the part^

*' mutually acknowledged each other as husband and wife^ in

[>resence of witnesses, at this place, Gretna ; which ackiow-
edgment, the court has been told, of itself constitutes a valid
*' marriage, by the law of Scotland. But the court knows
'' nothing of this, at least, judicially; nor can take counsers
*' word, which is all that it has, for this. It should have been
** so pleaded ; accompanied with an averment, to be sastained
*' by evidence, that such was its effect by the law of Scotland,
" and vid, 1 Hag, 785. It could hardly be that evidence taken
" upon a plea, so constructed in this part of it as the present,
'' could amount to any such proof of the marriage sought to be
" annulled, as would justify this court in proceeding, by its
'' sentence, to annul it.*' 2 Add. 398. It seems also necessary to
plead consummation, cohabitation and mutual acknowledgment ;
for though the fact of marriage celebrated in England in facie
ecclesiiv, by a priest or minister in holy orders, according to
the rights and ceremonies of the church of England, and
perhaps a Scotch marriage, however contracted, may be good,
although not followed by consummation, cohabitation, or
even mutual acknowledgments; yet it is usual that these
should be pleaded. 2 Add, ibid.
Articles. The heading of the articles sets forth the nature of the offences

imputed, and the prcesertim is always construed as setting forth

the nature of the principal charges. The general words which
usually follow the preesertim can only be taken to include subor-
dinate charges ejusdem generis, 3 Hag. 25, 690 ; 4 Hag- 266,
What to W here the citation was for " brawling, and other enormous eccle-
contain. tt giastical ofFeuces," it was held that a charge of smiting could
not be supported. In such a case the words *' other enormous
*' ecclesiastical offences" were mere surplusage. 1 Hag, 14.
So where a citation issued, as in a suit of nullity of marriage, by
reason of a former marriage, and the Ubel charged that the
marriage was void for undue publication of banns, no sentence
could be given. 2 Hag. 598. But where a citation in fact con-
tains two charges, there is no objection to the abandoning one;
unless where the whole makes only one charge, which is not divi-
sible ; and where, therefore, the taking away makes a new charge,
which the party had no notice to defend. 1 Hag. Can. 172.

In criminal cases especially the court cannot go beyond the
particular offence charged. 3 Hag, 50. But where a party
was already before the court in a suit for divorce, by reason of
cruelty, the plaintiff in the suit was allowed, on affidavit, to give

^Iraliing. 665

in an allegation^ pleading acts of adultery subsequent to the Articles.
commeDcement of the suit, the court said, " As the wife will be vvhiTto""
'' clearly entitled to a separation on account of the adultery, if coauio.
" proved, the only question is, whether a fresh citation is neces-
** sary. I think it is unnecessary, since the husband is already
** before the court, and since it cannot be objected that any
'* distinction exists between the proceeding on one ground and
*' the other. It would, therefore, save useless expense to receive
" the allegation, notwithstanding the original citation was only
** for cruelty." Barrett v. Barrett, 1 Hag. 22. In Popkin v.
Popkin, 1 Heig. 767, Sir W, Scott seemed inclined to think that
under a citation for adultery you might not originally plead facts
of cruelty, nor vice versa.

In all cases, but more especially in cases of correction, when
the case is proceeded on criminally, it is due to the defendant,
in point of justice, that the charges should be laid so specifically
as to enable him to defend himself, and to prove them unfounded,
if they really are so. 1 Hag. 43 ; 3 Hag. 25, 693. The ar-
ticles should contain a clear and distinct statement of facts
intended to be proved, not travelling into argumentative or
extraneous matter, and as succinctly drawn as the nature of the
case will allow. 1 Curt* 89.

In a case of office, especially when the suit is promoted' Cases of
by a public officer in the discharge of his duty, but by a ^^^'
private individual for an offence committed on himself, the
whole transaction should be fairly and candidly stated at once ;
in order, first, that the judge may have an opportunity of consi-
dering whether, both parties, being involved in pari delicto, he
ought to allow his office to be promoted ; and, secondly, that
the defendant might, in justice to himself, be enabled to give
an affirmative issue. 3 Hag. 1 74.

But upon argument upon the admissibility of articles the
court cannot assume, from the statement of counsel, that the
articles do not contain a fair account of the transaction and of
the facts of the case, and adopt such statement as a ground for
considering the articles inadmissible. 3 Hag. 359.

When a party counterpleads, or alleges facts in answer to Allegations
a libel, he must aver such matter as amounts to a legal defence, iq answer.
2 Add. 25; 3 Hag. 57. Thus, in a suit for nullity of m^^^^
marriage, by reason of a former marriage, where a woman tain a legal
pleaded, that the second husband, the plaintiff in the suit, soli- <lefence.
cited her and her parents to marry him, and assured her, upon
inquiry, that the first husband was dead, and that in conse-
quence she contracted such second marriage with him, with con-
sent of her parents, that he swore that she was a widow, and that
she had lived with him fifteen years and had eight children by him.
The court. Sir G. Lee, was of opinion that there was nothing

666

I^IeattOig*

Allegaliooi
in answer.

Must con-
tain a legal
defence.

When con-
tradictory
allegation
unneces-
sary.

relevant in the plea, and therefore rejected it; the singie question
being, whether the first husband was living at the time of the
second marriage ; and that there was not a word in her allega-
tion to show the first husband dead. At the same time, as the
case was a hard one« time was given to enable her to disco?eri
if possible, if the first husband was dead ; in order to give ber
an opportunity to plead that fact. Bell v. Bell, 1 Lee, 5S\ ;
and vid. Wciier v. Montague and another, 1 Curt. ^;

4 ^TajT. 266; 2 Add. S6l.

A wife, when sued for divorce by reason of adultery, cannot
plead the cruelty of the husband as a bar to his legal remedy;
1 Hag, Con. 45^ ; nor solicitation of chastity by him ; 3 PitIL
508 ; though adultery by him pleaded by her in recrimination
would be a bar to the husband's suit. Ante, 336. So also in a suit
for restitution of conjugal rights a plea of adultery by the plaintiff
b a sufiicient answer. 1 Add. 41 1. In a suit for perturbation
of a seat in a church, a plea, alleging that the party was placed
by the churchwardens in the pew occupied by £• B., and which
had been always appropriated to the use of the owner and occu*
pier of the said estate and premises, and that he is now building
a mansion house for his own residence on the site of the house
formerly occupied by £• B. seems admissible^ as fairly stating
a consideration addressed to the consideration of the church-
wardens ; for if a house always has had this pew, it may be a fair
ground for the churchwardens to put the proprietor of it there*

5 PhiU. in ; 3 PkiU. 537 ; and vid. 1 Add. 541.

Where a libel was admitted, pleading a church rate, inchiding
stock in trade, an allegation responsive, suggestinff, Ist, that
parishioners were omitted for shipping; and, Sdly, that several
parishioners possessed of stock in trade were altogether omitted
to be rated, and, consequentiy, that the rate was invalid^ was
admitted to proof. 2 Add. 80 ; 3 PhiU. 640.

In a suit for separation, by reason of the wife's adulteryi con-
nivance on the part of the husband may be pleaded by the wife con-
sistently with a denial of her own guilt. 3 Hagm 91» ante^ 340.

It has been said, that generally speaking it is at best useless
to contradict in detail any statement which can only be spoken
to by witnesses vouched to sustain it in the adverse plea. The
party pleading in such a case either does or does not make his
vouchers witnesses. If he does, the other party can get at their
evidence much more usefully to himself by cross-ejEamining
them, than by reproducing the same witnesses, to prove hb
counterplea, and merely to counterplead without reproducing
them (these being supposed the only capable witnesses to the
statement,) could answer no end. If, on the other hand, the
party pleading does not make his vouchers witoessesi still the
omission of a formal counterplea as to the particular statement

Pl^aftttlff. 667

can do no injury) generally speakingi to the other paHy $ for if A'*^ ^^^
persons are vouched in a plea without being made witnesses, "* *°*^*'''
the party vouehing them not merely fails in proof, but the ordi«
nary inference is, that the persons vouched would, if made wit-
nesses, have contradicted the plea. This seems to be the
general rule, liable of course to exceptions. Lock v. Detmert
1 Add. 864.

It seems, however, that in criminal cases, the accused party Criminal
is allowed a greater latitude of defence, and to state all caseajmii-
circumstances in order to examine witnesses to them, which can l^^]'
in any degree bear upon the ultimate decision of the matter
charged and its consequences; especially if such circumstances

E've the transaction a character quite different to that to be col-
cted from the articles of charge. S Add. 177.

Thus, a defensive plea, tending to shew the promoter's motives Motives of
to be malicious and vindictive, has been held to be admissible, promoter.
as bearing, not only on the question of costs, but on the credit
of the witnesses ; but in order to make such a plea admissible it
must be specific and confined to his conduct with regard to the
defendant. 3 Hag. 17,362. But such plea. being admitted
tor the defendant, the court is bound to admit a counter-plea to
repel the charges of malice ; and consequently where a charge
was made against a clergyman for irregularity and neglect, in
the discharge of his functions, and he, in his defence, charged
the churchwardens, who promoted the suit, with vindictive
motives, they were allowed in return to plead presentments of
the clergyman's misconduct by former churchwardens, and a
vestry summoned for the purpose of taking such misconduct
into consideration. lb. 19.

In a rejoinder to, or upon, a responsive allegation, the only Rejoinder.
facts strictly pleadable^ are those to which are contradictory, or
explanatory of those set up in the previous allegation, to which
it responds. 2 Add. lOS.

If, in answer to a libel for divorce, on the ground of adultery,
where the parties were living apart at the time the adultery was
charged to have been committed, the wife set up a case of de-
sertion by the husband without any provocation on her part ;
the husband might, it seems, fairly rejoin her ante-nuptial incon-
tinence as a justification for separation, but the husband is not
at Kberty to make such a statement a part of his original libel.
1 Add. 1.

Matters not directly bearing on the direct object of the suit. Matters ir-
ought not to be introduced into the libel ; thus in a suit for reUvaat.
divorce by reason of adultery, where the parties are living sepa-
rate, the husband may not introduce into his libel a statement
of the ante-nuptial incontinence of his wife for tlie purpose of
accounting for the separation, though the fact of their living

668 pi^aliitts^

irreievaat apart at the time of the adultery charged oughts it aeema, to be
'"'"^"' stated. 1 Add. 1 ; 2 PhiU. 5 n. At the same time, in snch a
case, the husband is not to be debarred from pleading circum-
stances that make the history of the transaction, and of his own
conduct consistent and natural ; for a party ought not to be
forced ultimately to depend for the explanation of his conduct,
on the ingenuity of his counsel, or the discrimination of the
court. 3 Hag, S\2.
Matters ex- In one case, a preliminary history of the parties was stated
planatoiy. j^ the libel, in order to account for delay on the part of the
husband in bringing the suit; on objection, it was allowed tore-
main, it was said, however, that the court would not expect such
part of the case to be examined to, unless the wife should set
up such a defence as made it necessary, in order to Uie husband's
justification. 1 Hc^, 6. So for the purpose of explaining the
history of the transaction, cruelty may be added to an allegation
of adultery, pleaded by the wife in answer to a suit for divorce
against her, by her husband by reason of adultery ; for though
cruelty is not, per se^ any answer to a charge of adultery, yet as
introductory and explanatory of the husband's adultery, it is ad*
missible in the allegation. 3 PhiU. SOO. So where a husband
was sued for a divorce on the ground of cruelty, and the libel
entered into a detail of family circumstances, the court allowed
the husband, in a responsive allegation, to plead circumstanoes
explanatory of the general character and complexion of these
family quarrels, though the matter they contained might not be
strictly evidence. 3 PAiU. 97.

So in a case, where a widow opposed a will on grounds of a
mixed nature, rt». insanity and dislike, habitual dninkerniess,
weakened capacity, fraud, control and custody ; it was objected,
that other articles which pleaded delusion respecting bis wife
and children, who, he fancied, were engaged in a consfHracy
against him, were irrelevant ; to this it was answered that die
articles were historical, and intended to account for the fiict that
the deceased lived separate from his wife, which would probably
be urged in a future stage of the proceedings; and might be
injurious to the widow's case if it were not shewn to arise from
an insane delusion. The court said, in such point of view the
articles were important, though the facts pleaded certainly
would not have been alone of sufficient weight and stringency
to invalidate the will, if the testator had died as soon as the will
had been executed. 1 Hag. 79, and vid. 1 AM. 285, S5&
Fraud im- So, where fraud is imputed, considerable detail of minute (bix^
puted. Js allowable, still in such a case the court wiU not permit
a minute investigation of distant and remote facts which
only bear by inference on the point in issue ; whilst in respect

pltabmiaf. 669

of those* which bear directly on, and are more nearly connected Irrelevant
with it, greater latitude is permitted. 1 Hag. 185. "'^^"•

ma-

in a case of fraud, it is difficult to say, that any facts bear too Fraud
slightly, which bear at all on the point in issue. 1 Add, 357. puted.
Soy as a plea of connivance to a charge of adultery must gene-
rally be circumstantial, or consist of many facts, trifling, when
t^iken separately, but altogether convincing, the court must allow
considerable latitude. That the husband entertains such a de-
sign must be a matter of inference, for it can hardly be sup-
posed that a man who frames a project against his wife's honor,
will avow it, or betray his purpose, by any single broad unequi-
vocal act. 3 Hagn 93. In considering the admissibility of
pleas, the court must be cautious not to exclude matter essential
to a due decision, nor allow proceedings to run to an unneces-
sary length, but if any serious doubt arise as to the ultimate
efiect of any averment, it should be admitted. 3 Hctg. 31 1.

In Ncuh V. Niuh^ 2 Hag. Can. 140, which was a case of Felonious
adultery, an objection was taken to an article, pleading a mar^ *^'^'
riage between the party accused of adultery, and a certain
person with whom she was stated to cohabit in an adulterous
intercourse, under the assumed character of wife, and to have
so done for a considerable time; and it was said, that the crime
of bigamy, being a felony, was improper to be pleaded before
an ecclesiastical tribunal, where it was not triable; and that the
€X>urt could not inauire into a felony directly, even where a
clergyman is sued for the purpose of deprivation : and in the
case of Cummins v. Mayo^ the allegation, which was exceptive
to witnesses, a species of plea upon which the court always
entertains some jealousy, charged a witness with felony in direct
terms, and was properly on that ground rejected. But it was
said by the court to be very frequent, and has occurred in the
course of practice, to admit a fact, in itself criminal to be
pleaded, as a necessary fact of the evidence in a civil suit.
Such is the case in causes of nullity of marriage, by reason
of a former marriage ; and that there was a case, where the
parties were married, and signed the entry of marriage by
fictitious names, which it is felony to do ; yet that consideration
was held not to bar the right of the party to proceed to a sen-
tence of nullity in a civil suit, though it would, equally with the
present case, have subjected the party to a prosecution by
statute for the felony. There was another case of a person
who had been guilty of altering a license, which would
have amounted to the crime of forgery. The marriage, in
Nash V. N€ish^ though amounting, if criminally prosecuted, to
what the law describes as felony, would afford a strong pre-
sumption, and go in corroboration of the other evidence that
might be offered as to the charge of adultery ; for, if the parties

670

pieaiifttg<

FeloDious
acts.

Verdict! in
courti of
law.

Law, gtne-
ral.

Foreign or
customary.

had gone so far as to perfonn the ceremony of marriage in a
church, and had since lived together ostensibly as man and
wife, that fact, so assisted hy the subsequent cohabitation, would
be strong presumptive evidence of an adulterous intercourse, and
will fix it ; it was, therefore, proper to be pleaded.

As the ecclesiastical court must decide upon its own evidence, it
seems, that verdicts of courts of law are not admissible in
pleading in support of the main question in the cause, ibr
the court cannot see the evidence on which such verdicts were
founded ; but it seems that verdicts may be brought in at any
time, as an exhibit, bearing on the conduct of the suit,
and of the parties themselves, and consequently material in the
question of costs, which are always discretionary in the ec-
clesiastical courts. S Hag. S60, 964, S7S. Verdicts are, how-
ever, admissible in divorce causes, though they were long
resisted, anUj SSSt, So also in testamentary causes, inquisitions
under commissions of lunacy, and before the corona, are re-
ceived. But in Grindall v. GrindaU^ S H€Lg* 9S9, wUch arose
on the validity of a will, a verdict in ejectment was pleaded,
together with the opinion of the judge, who tried the cause,
that he approved the verdict; Sir J. NiehoU refused to admit the
allegation, saying ''This allegation would tend to expense and

delay, and if one party is entitled to plead, that the judge ap-

E roved of the verdict, the other party is entitled to plead that
e disapproved, and then this court would be called on to try

the propriety of the verdict, and the judge might be called
'' on to be examined as to his opinion."

Where the general law is relied on, it is not necessary that
it should be pleaded. 1 Hag. Can, 112. But where
a law peculiar to any class or sect is put forward to support
or justify an act done, such law or custom should be dis-
tinctly set forth and pleaded; as where in a suit for
divorce, by reason of adultery, the husband and wife being
Jews; it was attempted to justify the adultery charged on
the husband by the Jewish religious regulations, which allow
concubines, the court said, " if there be any privilege at present
" received among the Jews themselves, it would be a great
** question how it could be attended to in a Christian court, and
" 1 think it could not; and even if it could be noticed, it pught to
'' have been specially pleaded.'* 1 Hag. 785.

If a case depends upon foreign law, that should be pleaded ;
where a Gretna Green marriage was set up, and the cir-
cumstances set forth constituting the marriage, the court cannot
take notice judicially that such circumstances are, in themaelves
sufficient to constitute a valid marriage in Scotland. It should
be so pleaded, accompanied with an averment to be sustained by

€i
tt

|9Iea«6ig« 67 1

evidence that such was its effect by the law of Scotland* S Add^
319 ; 1 Hag. Can. 819; 2 Hag. Can. 371» 431, ante, 664.

In pleading deeds or other documents of length, it is not ^^* ^^
necessary to set them out, but in order to avoid prolixity and ^J^J^^ts. ^'

expense, it is only necessary to recite, in the plea, the material

parts ; and to refer to the deeds as deposited in the archives of
the court: the deeds themselves being brought into the registry.
1 Hag. 69. Where a letter is pleaded to be in the possession
of the opposite party, the contents may be set forth at length,
leaving the other party, if he thinks it to his advantage, to pro-
duce the letter. 3 Hag. 317. But unless a written document
be in the possession of the opposite party, or is destroyed or
lost, the contents cannot be pleaded. 2 Hag. 608. The
contents of written documents, or extracts from them, must not
be pleaded without annexing the documents themselves, or, as
it seems, where they are very long, referring to them as de-
posited with the registrar ; and if the counsel abstain from
taking the objection, the court itself will do so, for it cannot
adjudicate a case on that which is not legal evidence.
4 Hag. S72.

^luralitp.

In (a) the earlier and more simple ages of the church,
pluralities seem never to have been contemplated ; priests were
forbidden to desert their own churches ; if anv did so, they
were ordered to be removed from their office till reconciled to
their own church. Answers of Ecsbrtht^ (6) A. D. 734,
Ans. 6. In the Excerptions of Ecgbriht, A. D. 740, it is
directed ** that no priest go from the see of the Holy church
under whose title he was ordained, in order to remove to a
strange church, but there devoutly remain to the end of his life."
As the church crrew richer, and the clergy more ambitious, the
system of pluralities began to prevail, and both the Lateran

(a) Although the law of plurality seems now to rest entirely on the
late statute, 1 4* 2 Fict. c. 106, it has been thought right to give a short
sketch of the law on the subject.

(b) Eegbriht was archbishop of York in 734. The Excerptions of
Ecgbrihi are given both by Johnson and Sir H. Spehaan.

672 pittralitp^

council which sat in 11 79y as well as that which sat in 1215,
made provisions against the practice. Othobon, by his L^^tioe
Constitutions of 1237| endeavoured to introduce the provisions
of those councils into this country, but they seem not only to have
been neglected, but to have been boldly and openly opposed.
Johns, Can* 1237, 13. Archbishop Peckham, at a provincial
Synod, held at Readings in endeavouring to enforce the above
Constitutions, said "ye have heard my brethren the tenor of
" this constitution; ye know the Canons of the fathers, published
'' in this respect, in the council of Thoulouse and Rome, and the
" decree of Dionysius, all which forbid a plurality of benefices
** with cure, to one man ; requiring a single priest to every church,
" as did the Lateran council of pope Alexander the Third, and
" the other general council there under Innocent the Third,**
1279, 1. But the offence contemplated by these Canams was not
so much the holding more than one benefice, whereby the peopk
were deprived of a resident priest, as the holding them without
dispensation, dispensations having now become a plentiful source
of emolument*

Gibson says. Cod. 945, By the council of Lateran, under
Innocent the Third, (which council is not only acknowledged to
have been received in England, but is said to be as forcible as
an act of parliament,) and also by the confirmation of it by
archbishop Peckham ; that of whatever value soever the first
benefice was, the incumbent, by taking a second, was, by the
laws of the church, ipsojure^ deprived of the first, and that the
benefice became void, so as the patron might present without
any sentence of deprivation. In Alston v. Atlay, 7 AiL ^ EL
Sll, Tindal, C. J., in giving judgment in the exchequer cham-
ber, after a review of all the cases, says, '* The result of all
'' these authorities is that upon institution to the second Uving,
** the first is void as to the patron, but not so as to incur a lapse
*^ without sentence and deprivation, and notice by the ordinary ;
" or at least until notice by the ordinary ;** and Gibsan, in
addition to the above says, " So far the Canon and the common
"law agree; but whereas by the aforesaid constitution of
" Lateran^ lapse was to incur if the patron did not present
'' within six months, we are told that by order of the common
" law, thouffh the patron may present if he will, yet no lapse
** incurs, if he do not present, unless the bishop void the church
'* by sentence declaratory ; and give notice thereof to the patron ;
" and then it is agreed on all hands that the patron must pre-
" sent, at his peril, within the six months."

By the common law, therefore, which has been considered to
have adopted the Canon of the council of Lateran, the accept-
ance of a second living, as against the patron, actually avoided
the first living ; it did not merely confer upon the patron of the

piaral% 673

first living, the right to avoid the interest of the incumbent by
some specific act, and then to present ; or to avoid it by the act
of presentation per se, the interest of the incumbent in the
living being valid, and the church full, as to the patron in the
mean time ; but it conferred the immediate right of presenta-
iion on the patron, without doing anything previously to avoid
the interest of the then incumbent.

This question has been much agitated in the recent case of
AbtM V. Atlay, 7 Ad. A EL S89 ; 6 Nev. ^ Man. 686. In that
case it appeared that whilst the plaintiff was incumbent of C.»
which was under the value of £8., he accepted the living of 0.»
with cure of souls ; afterwards the patron of C. sold the advow-
son to L., and L. presented his clerk W., who was instituted
and inducted. The plaintiff brought an action on the statute,
against an occupier of lands, in the parish of C, for not setting
out his tithes ; the defendant pleaded nil debet, and proved that
he had paid his tithes to W., and the question arose on the
conflicting titles of the plaintiff and W., to such tithes, whether
in fact the living of C was actually void, as to the patron, by
the acceptance of the second benefice, and the right to present
to it severed from the advowson, so that it would not pass to
the vendee of the advowson by the sale ; or whether it was
voidable only, and the church full till some act was done to
avoid it; and consequently that the right to present not being
actually disannexed, passed by the sale, and that W«, was the
rightful clerk on the presentation of L. The court of Kind's
bench held, that the living was voidable only, and that the
purchaser took the next presentation ; but the court of Exche-
quer chamber reversed that judgment, and held, that the living
was void, as to the original incumbent, and that the right to
present had become a personal chattel, vested in his person
before the sale, and consequently could not be assigned to the
vendee ; and that the want of knowledge of the vacancy in the
patron made no difference, for it could not alter the quality of
the right ; it could not make a personal thing real, nor annex it
to the advowson, Cro. EUx. 601, 811 ; 4 Kep. 75 a. : Latch*
243 ; Hetley, IS5 ; Hob. 166 ; Cro. Car. 856 ; 1 Wm. Jones,
404.

The dispensing power of the pope enabling persons to hold Dispensa-
many benefices had become as great, if not a greater evil ^®'^*
than pluralities themselves; the stat. SI Hen. 8, c. 13, there^ 2i Hen. 8,
fore was passed with the double object of rendering more ^* ^*'-
stringent the law against pluralities, and also to put some limit
upon the then boundless latitude of dispensation. By s. 9, it
enacted, that if any person, having one benefice with cure of
souls, being of the yearly value of £8. or above, accept and take
any other, with cure of souls, and be instituted and inducted in

x x

674 9IuraICt{>.

Dkpensa- possession of the same ; then^ and immediately after such pos-
tioni. session had thereof, the first benefice shall be adjudged in law to

21 HeQ.8, y^ void; and by tf. 10 ; that it shall be lawful to every patron
- — - — T- having the advowson thereofi to present another ; and the pre-
sentee to have the benefit of the same in such Uke manner and
form, as though the incumbent had died or resigned; any
license, union, or dispensation to the contrary notwithstanding ;
and every such license, union, or dispensation to be obtained con-
trary to this present act, of what name or quality soever they be,
shall be utterly void and of none effect. And by #. 11, if any
person or persons, contrary to this present act, shaQ procure
and obtain at the court of Rome or elsewhere, any license,
union, toleration, or dispensation, to receive, and take any more
benefices with cure than is above limited; such person or
persons, so using for himself, or receiving and taking such
Denefice by force of such license, union, toleration, or dispensa-
tion ; that is to say, the same person or persons only, and none
other, shall, for everv such default, incur the penalty of £20.,
and also lose the whole profits of every such benefice or bene-
fices as he receiveth or taketh by force of any such license,
union, toleration, or dispensation ; half to the king, and half to
him that will sue for the same in any of the king's courts^

This act, however, was not niggardly in its allowance of dis-
pensations, for by s, IS, it permitted persons, having four bene-
fices, to continue to hold them, and only avoided so many as
exceeded the number of four; and by s. 13, it enabled all
spiritual persons, being of the king's council, to purchase license
or dispensation to hold three benefices ; chaplains of the king,
queen, and royal family, but being sworn of the council^ to
purchase dispensations for two ; and further enabled peers and
others, principal officers, to have a certain number of chaplains,
according to their respective ranks ; each of whom was entitled
by that act to purchase licenses or dispensations to keep and
hold two benefices with cure of souls; also, by s. 23, doctors
and bachelors of divinity and law, not being admitted to their
deffrees by grace only, might purchase licenses,
57 G. 3, This act, which had for its further object, to prevent spiritual

^* ^' persons taking lands to farm, and to enforce residence, as well
as to regulate pluralities, was repealed as to so much as re-
garded the two former objects by the 57 Geo. 3, c. 99, and the
remaining part of it, which regulated pluralities, has since been
repealed by 1 ^ 2 Fid. c. 106, which has made fresh provisions
on the subject, which provisions, as they apply generally, to all
persons and benefices, without distinction of value, not only
repeals the former statutes, but supersedes the Caman of the
council of Lateran, which, as stated above, had been ingrafted
on our ecclesiastical common law.

pinralCtp^ 675

The 1 ^ 2 Vict. c. 106, by *. II, the first branch of which i &« Vict,
applies to persons already holding one benefice or cathedral ^' ^^'
preferment, enacts that " if any spiritual person holding any Holding
cathedral preferment or benefice, shall accept any other cathe- one bene-
dral preferment or benefice, and be admitted, instituted, or ^^*
licensed to the same contrary to the provisions of this act, every
cathedral preferment or benefice so previously held by him,
shall be and become ipso facto void, as if he had died or re-
signed the same, any law statute, canon, usage, custom, or dis-
pensation to the contrary notwithstanding.

The second branch of the above section applies to cases of HoldiDg
persons already holding two or more benefices or cathedral pre- ^^^ ^°®'
ferments, and enacts, that if any spiritual person, holding any two ^^*
or more benefices, shall accept any cathedral preferment or any
other 4>enefice ; or if any spiritual person holding two or more
cathedral preferments shall accept any benefice ; or if any Optioii.
spiritual person holding cathedral preferment or preferments
and benence or benefices, shall accept any other benefice, he
shall, before he is instituted, licensed, or in any way admitted
to the said cathedral preferment or benefice, in writing under
his hand declare to the bishop or bishops, within whose diocese
or dioceses any of the cathedral preferments or benefices
previously holden by him are situate ; which cathedral prefer-
ment or benefice, or which two benefices (such two benefices
being tenable together under the provisions of this act) he pro-
poses to hold together; and a duplicate of such declaration
shall, by such spiritual person, be transmitted to the registry of
the diocese and be there filed ; and immediately upon any such
spiritual person being instituted, licensed, or in any way ad-
mitted to the cathedral prefeiment or benefice which he shall
have accepted as aforesaid, such cathedral preferment or per-
ferments as he previously held, and as he shall not have de-
clared his intention to hold, or such benefice as shall not be
tenable under the provisions of this act, with such newly ac-
cepted benefice shall be and become ipso facto void, as if he
had died or had resigned the same; and if such spiritual person
shall, in any case, refuse or wilfully omit to make such declara-
tion as aforesaid, every cathedral preferment and benefice,
which he previously held,' shall be and become ipso facto void
as aforesaid. Provided always, nothing shall be construed to
afiect the provision hereinbefore made, vid, post 676, with re-
spect to archdeacons ; or with respect to spiritual persons hold-
ing, with any cathedral preferment, and with or without a
benefice, offices in the same cathedral or collegiate church.'*

It will be noticed, that, by the above provision, the first bene-
fice is made ipso facto void upon the institution to the second,
'* as if the incumbent had died or resigned the same," it has

X x2

676

9IuraI%

1 & 2 Vict.
c. 106.

Proviso in
cases of
arcbdea-

CODS.

Offices in
cathedrals.

Beoefice
witbiD 10
loiles.

Distance
how com-
poted.

been seen by the case of Alston v. Aitlay^ supra, 673j that
plurality by the Canon and common law bnly made the benefice
void as against the patron, and, therefore, if he did not take
advantage of the avoidance the incumbent might continue to
hold the benefice, unless the ordinary proceeded to deprive ;
but the 1 ^ S Vict. c. 106, puts the incumbent in the condition
of a person who has died or resigned, consequently the living
is not only void as against the patron, but absolutely void to all
intents and purposes; and, if the patron does not present
afresh, lapse will be incurred, and that too without notice, for
in the case of death or resignation no notice to the patron is
reouisite, ante 490.

The 1^2 Vict, c. 106, begins, 8. 1, by repealing the
21 Hen* 8, c, 13, and the 57 Geo. 3, e. 99 ; but does not exempt
any persons from penalties which they may have incurred under
the former acts, or affect any proceedings, whether commenced
or not, before the passing such act; or affect any license pre-
viously granted. By «• S, it enacts, that no spiritual person
holding more benefices than one, shall accept, take, to hold
therewith, any cathedral preferment or any other benefice;
or,
holding any cathedral preferment, and also any ben^fice^
shall accept and take to hold therewith^ any other cathe-
dral preferment or any other benefice ; or,
holdinff any preferment in any cathedral or collegiate church »
shall accept and take to hold therewith, any preferment in
any other cathedral or collegiate church,
any law. Canon, custom, usage^ or dispensation to the con-
trary notwithstanding,
Provided, that nothing shall be construed to prevent any
Archdeacon from holding, with his archdeaconi^, two bene-
fices, (subject to the limitations of the act in respect to
distance, value, and population,) one being within the
diocese of his archdeaconry,
or, any spiritual person, holding any cathedral preferment
with or without benefice, from holding therewith any
ofiice in the said cathedral, the duties of which are
statuteably, or accustomably performed by the spiritual
persons holding such preferment.
By s. 3. No spiritual person
holding any benefice shall hold therewith any other be-
nefice, except it be within ten statute miles. And by #• 129,
this distance is to be computed from church to church ; or
if two churches, to the nearest, by the nearest road or foot-
path or accustomed ferry ; if no church, then as the bishop,
in whose diocese the second benefice is situate, shall direct.
Or by Sn 4. Holding any benefice with a population of more

piuraMtg^ 677

than 3000, shall hold therewith any other benefice, with a ^ & ^ Vict
population of more than 500, at the time of his institution ; *^*^^*
or, holding any benefice, with a population of more than Population
500, shall hold therewith any other benefice, with a po- ^^'
pulation of more than 3000 at the time of his institution ; ^^^
or, shall hold togeiher two benefices, if at the time of his .^ * .
institution, &c. to the second, the joint yearly value iooo/»
shall exceed £1000.
By Sm 5. Where two benefices are within ten miles, but Value 150/.
which, under the above provisions, might not be holden populatioii
together; one of which shall be below the yearly value of ^^^'
£150, and the population exceed SOOO; the bishop or
bishops, to whom such benefices shall be subject, may, upon
application to him or them by the incumbent, state under
his or their hands, his or their reasons why such benefices
should be holden together, and in such case such incum-
bent may hold such benefices together. Provided^ that
the bishop of the diocese in which the benefice, with a
population of SOOO, is situate, may require, by order under
his hand, that such incumbent should reside on, and per-
sonally serve such benefice, for nine months in the year ;
and if he do not so reside on, and personally serve the
same, he will be liable to all the penalties of non residence, Rendence.
notwithstanding any legal exemption, permanent or tem-
porary, from residence ; or though he may be resident on
some other benefice, or be performing the duties of an
office, which might, in other cases, be accounted as resi-
dence on some benefice.
Provided that such spiritual person may appeal against such Appeal.

order to the archbishop.
But in order to enable any spiritual person to hold two bene-
fices, be must obtain from the archbishop of Canterbury

A license or dispensation to hold them. License or

' To obtain which it is required by dtspensa-

S* 7. That the incumbent applying for such license must ^^
deliver to the bishop or bishops in whose diocese or
dioceses such benefices are situate, a siatement under statemenL
his hand, verified as such bishop or bishops may re-
quire, according to a form to be promulgated by the
archbishop and approved by the queen in council.
In such statement he is to set forth, according to the best of
his belief,

IsL The yearly income of each benefice separately, on an income.
average of three years ending the preceding ^th of
September, and the sources from which such income is
derived.

678

^Ittralttp^

1 & 2 Vict.

c. 107.

Charges,
Popula-
tion.

Distance.

Bishop may
inquire.

Certificate.

Grant of
license or
dispensa«
tion.

Fee.

Stamp.
Caution.

Appeal to
pnvy coun-
cil.

Certificates
evidence.

Annual
value how
computed.

2dly. The yearly amount of taxes, rateBi tenths, dues* and

other permanent charges, and outgoings.
Sdly» The population of each of such beneficesi to be com-

£uted according to the last parliamentary returns,
fy. The distance between the two benefices to be com-
puted as ante, 676, vid, s. 1^.

Each bishop may make inquiry of the correctness of the
statement, as to the benefice within hb diocese.

Within one month he is to transmit to the archbishop of
Canterbury a certificate under his hand.

In which certificate he is to set forth or annex thereto a
copy of the statement delivered to him, and shall certify
the amount at which he computes the annual value, and
the population of the benefice or of both benefices, if both
are within his diocese, and the distance from each other.

When both or either of the benefices are within the dio-
cese or jurisdiction of the archbishop of Canterbury, a
certificate shall be made out by him in like manner, and
retained by him.

By s, 6, upon being satisfied of the fitness of the person
and of the expediency of allowing such two benefices to
be held together. The archbishop of Canterbury is
empowered to grant a license or dispensation under the
seal of his office of facidties.

Fee to registrar, 30«., and to seal-keeper, 2s.

No stamp duty or other fee.

No caution or security by bond or otherwise before the
grant.
If the archbishop shall refuse to grant such license, her
majesty, by the advice of her privy council, may, upon appli-
cation of the person refused, enjoin the archbishop to grant
such license or dispensation or show cause to the contrary.

By s. 9, the certificates to be transmitted to the archbishop
are to be deposited in the office of faculties.

If the dispensation is granted, these are declared to be, for
the purposes of the act, conclusive emdenee of the annual
value, population, and distance.

The registrar of the faculties is to produce them, when
required to do so, for inspection.

By s* 8, the annual value for the purpose of such certificate
is to be taken by deducting from the gross yearly income,
taxes, rates, tenths, dues, and other permanent charges
and outgoings. But not deducting

Stipends to curates, tenant's or occupier's taxes or rates, in
respect of house or glebe, nor for monies expended in
repair of improvement of house, buildings, or fences.

9IaraI% 679

By s. 124, eaihedraf preferment is to comprehend deanery, i & ^ Vict.
archdeaconry I prebend, canonry, office of minor canon, ^* ^^^'
priest vicar, or vicar choral, havine any prebend or en* Cathedral
dowment belonging thereto, or belonging to any body preferment.
corporate of persons holding such office.
Precentorship, treasurership, subdeanery, chancellorship,

or other dignity or office in any cathedral, &c.
Wardenship, mastership, and fellowship in a collegiate

church-
Benefice is to be understood to mean benefice with cure of Beaefiee.
souls, unless by the context it is otherwise, parish and
perpetual curacies, donatives, endowed public chapels,
parochial chapelries, and chapelries or districts annexed
to any church or chapel.
The same statute, by s. IS, saves the right of possession
in any benefice, &c. to which any spiritual person " shall have
been collated, admitted, instituted, or licensed, or which shaU
have been otherwise granted to any spiritual person before the
passing this act, unless he shall, after the passing the act, accept
and take some cathedral preferment or benefice contrary to the
provisions of the act."

By s. 13, this protection is extended further; that section
enacts, " that nothing in the act is to be construed to prevent any
spiritual person, possessed of one, or more than one, benefice
at the time of the passing of this act, and to whom, or in trust
for whom the advowson of, or the next presentation or nomi«
nation to, any other benefice has been conveyed, granted, or
devised by any deed or will, made before the 2Sd Dec. 1837,
from taking the said last-mentioned benefice, and holding to-
gether such benefice, and any one such first-mentioned benefice,
(although the benefices to be held together be not within the
limits nor under the joint yearly value, nor the population
thereof under the amount, prescribed by this act) but so never-
theless that the said two benefices be such as might have been
held together before the passing of this act, by dispensation
duly granted and conformed ; and the bishop of the diocese in
which such second or other benefice is situate shall and may,
after a license or dispensation shall have been obtained by such
spiritual person as is by this act required for holding two bene-
fices together, admit, institute, or license such spiritual person
thereto, any thing therein contained to the contrary notwith-
standing ; unless such spiritual person, after the passing of this
act, and before he shall be so admitted, instituted, or licensed
to such second or other benefice as aforesaid, shall have ac-
cepted and taken any cathedral preferment, or any other bene-
fice, the holding of which, with such second or other benefice,
would be contrary to the provisions of this act.

680

$roceiS0«

Gtation.

Mandatory
only.

With inti,
matioD.

Citation.

Service of, in ordinary cases.
Fits et modh.

Party out of the kingdom.
Appearance to*
Absolute.
Under protest.
What to contain.
Wrong description, of.
Name of judge.

of parties.
Residence of party.
Nature of complaint.
How obtained.

Original or primary. ^
Decrees with intimation.
Inhibitions.
Party not to be cited out of jurisdiction.
Stat* of citation, 23 Hen. 8, e, 9.
Process in order to obtain an attachment*

Personal service necessary for ngmfieamt.
Monition, service of.

IHE usual mode of commencing a suitj and bringing the
parties before the ecclesiastical court, is by a citation or sum-
mons, containing the name of the judge, the plaintifiT, and the
defendant, the cause of action, and the time and place of ap-
pearance. There are, however, other modes of commencing a
suit in testamentary causes.

The citation, or ^' in jus tocatiOf' is a judicial act, whereby
the defendant, by authority of the judge, (the plaintifiP* requesting
it,) is commanded to appear, in order to enter into suit, at a
certain day, in a place where justice is administered. Conset* 26.

A citation merely mandatory, being only a summons for
appearance, is obtained, as a matter of course, from the registry
of the court, and under its seal. Consei, 27, post 687*

In special cases, the facts are alleged in what is termed
an act of court, and upon those facts, the judge or his
surrogate, decrees the party to be cited ; to which, in certain
cases, is added an intimation that if the party does not ap«
pear, or appearing, does not show cause to the contrary, toe

yrocmst. 681

prayer of the plaintiff, as set forth in the decree, will be Citetion.
granted. 3 Hag. 1 1 . These, therefore, though called decrees,
seem to be only citations issued under the sanction, and by
the express authority of the court, and are sometimes calledi
therefore, citatory decrees, post 687, 6S8.

In addition to these which are usually original and primary l*o ne pro-
citations, there are other intimatory citations and decrees, which ^^^"S'*
are generally of an interlocutory and collateral nature, such as
citations and decrees to see proceedings, post 688.

Neither of these is a compulsory process, menacing parties
with any penalty on non-appearance, it merely invites them to
become parties to the suit if they deem it their interest to be
so, with mtimation that otherwise the suit will proceed in their
absence ; such citations are, therefore, merely intended to give
parties notice of the suit and make them legally privy to it*
1 Add. 11, 16, 469 ; 2 Hag. Com. £63, 137 ; 3 Phill 593, 600.
Decrees of this kind are usually granted on motion of counsel,
and not as a matter of course, 1 Add. 5 ; 2 Add. S72; 2 Phitl^
18, post 687 ; unless a sufficient interest is shewn the court will
not embarrass the proceedings by the introduction of un-
necessary parties. 2 Add. 372.

These processes may be served by any literate person who can Service of.
read anything that is written or printed, though he understand 3 whom.
not the Latin tongue ; who is called the Mandatory, as being
the person appointed to execute the Mandate. Conset, 28.
In practice, process is generally served by the Apparitor of the
court, if distance will allow ; whose title of Apparitor arises
from his principal business being to sumnfon parties to appear*
AyUffe Parer. 67. His duty is to shew the original under the Mode of
seal of the court, and deliver a copy of it to the defendant* w^ice.
A certificate of the service is endorsed on the citation, verified
on oath by the person who has served it, and returned to the
registry. Formerly, it seems it was not the practice to leave
copies, but it is necessary to do so now ; and as the party
cited looks to the copy, as the instrument by which he is cited,
care should be taken that it be correct. 1 Hag. Com. 3. If Citation,
the person to be served cannot be found, a return to that effect ^* ** "^
is made and certified, and the plaintiff ought to petition that
the defendant may be cited personally to appear (if he can be
cited) to answer the contents of the former citation, and if not
personally, then by any other ways and means, so as the pars
reOf or party to be cited, may come to the knowledge thereof;
and this is it which is called dtatio viis et modisy or citatio
pubUca. Conset, 28. This is also to be served personally, if
possible, otherwise on the door of the last residence of the party,
or upon the door of the church of the parish where he last
resided, if he has not any known residence. Conset^ ibid.

682 yrocnw^

Service of. If an appearance is not obtained to this last citation the party is
put in contempt, and the proceedings may be conducted e«-
parte^ in poenam contumaeuB. Report EccL Com, 15; 1 PhiU.
176; 8 Hag. Com. 863, 869.

It is said that the usual mode of publishing the citation by
proclamation, is to affix it to the door of the private dwelling
of the party on the doors of the parish church, during divine
worship, 2 Salk. 6S5. When a person is beyond sea, the usual
mode of publishing the citation by proclamation is by affixing the
decree on one of the pillars of the iloyal Exchanffe. 1 H€tg. 55.
If a party lies under legal incapacity, as in the case of mi-
nority, a mere certificate of personal service is not enough,
the court requires a certificate of its having been served in the

f>resence of the natural or legal guardian of the minor ; or at
east in the presence of some person upon whom the actual
care and custody of the minor, for the time being, had properly
devolved. 8 Add. 454, vid. also 1 Add. 19. For an account
of the ancient mode of executing a citation, viis et modis, or
citaiio publican vid. Consei. 35.

There is a diffisrence between personal service and a service
viis et modiSf or public citation, which latter is a constructive
service only ; the former concludes both the party and the
court ; the latter concludes the party, but not the court, which
may, on good and sufficient grounds, open proceedings to get at
the substantial justice of the case. 3 Phitt. 512. But a party
may be put in contempt by a public citation only. 1 PhilL 176.
The party cited in the cause may object that the citation was
not properly executed ; but it seems that it is not competent for
a party cited to see proceedings to do so. 3 PAitf. 596.
AppMr- ^y ^^^ ^^^ practice, the usual day of appearance was the

BQce. third day after service of the citation, if the party live in Lon-

don or its suburbs, or was there at the time of the execution of
the citation ; if a party was living out of the city of London
or its suburb^, on the fourth or sixth day, depending on the
distance of tbe^ place, with the addition of these words ** if it
" be a court day, otherwise on the next court day, on which
** the court sits at the usual hour." The practice now seems alike,
both in civil and criminal cases. In Hutckins v. Denziioe^
1 Hag. Con. 170, which was a criminal proceeding promoted
by a licensed curate against churchwardens, for interference
with the church service, the citation served on them was to
appear on the first day of the session ; one of them appeared in
court, and prayed that articles should immediately be exhibited
against him. The promoter prayed for a continuance till next
court day. The court said, '' although the cause began in
'' vacation and there may have been time for the articles to be
" prepared, yet, as the practice of the court has been under-

^OttM. 683

" stood to be otherwise, and as the party could not know what Appear.

" appearance would be given, the continuance was allowed.*' In ^^

demmation causes the practice is different, in those the articles
must be delivered on the day of appearance. Ibid. But in
DoUe y. Masters, 8 PhiU. 175, the suit was dismissed because
articles were not exhibited the next court day after they were
prayed, /Mw^ 661, 689.

A person ought to appear, on whatever account or in what-
ever court he is summoned, before the judge ; and if he has any
exceptions either against the judge or his jurisdiction, he may
then allege the same under a protestation '' de non consentiendo
in dominumjudicantem" and then it may be argued by counsel
whether he be obliged or not to abide by the person or jurisdic-
tion of the judge. Ayliffe Parer. 175 ; 1 Hag. Con. 5 ; 2 Add*
276; 1 PhilL 247; 2 PhiU. 431 ; 1 Haff. 743.

A party may, therefore, appear absolutely or under protest ; und«r pro-
for though there are not the same terms of pleading to the tesu
jurisdiction in the ecclesiastical court as in the courts of law,
yet the same principle to some extent must prevail, and there-
fore a party may appear for the very purpose of denying juris-
diction ; if, however, a party appear absolutely, he waives any
objection, so far as regards the formality of the citation ; the
citation itself is not essential to the proceedings, the object of it
is to bring the party before the court ; if it is irregular, he may
appear and object; if not served, he need not appear at all,
pogt 693, 711. Therefore, when a party appears by his alleged
proctor, prays articles, joins issue, goes on to a hearing, ap-
peals, and gives a new proxy in the court of appeal, he has
healed any informality in the citation, and bound himself to
subsequent proceedings, 1 Hag. 185 ; 3 Phitt. 596.

If he appear under protest, the court may assign him " to Extension
** extend his protest," that is, to state the groundfs of his exception of proteM.
to Uie jurisdiction of the court, in a sort of informal plea, which,
in the ecclesiastical is termed ''an act of petition.'* The object
of which assignation is, that the grounds of exception be stated
specifically and distinctly, so that both the court and the adverse
party might be duly apprized of them ; and in order that the
other might furnish, if able so to do, a counter-statement upon
any matter either of fact or of law. 1 Add. 10.

Id Bowler v. Harvey ^ 4 Hag. 241, a party called upon an Under pro-
executor for an inventory, and account of an insolvent estate, <«•<•
after the lapse of thirty-five years. The executor appeared
under protest. It was contended that the appearance under
protest, was irregular, and that the usual course was to appear
absolutely, and pray to be heard on petition, and that it was
part of an executor's oath, in taking probate, to render an inven-
tory and account ; but the court considered it a vexatious pro-

A84

ifirottus!*

Appear-
ance.

Under pro-
cess.

Citations.

Different
kinds of.

Variance.

TiUe of
judge.

ceedingy and that it was a fair ground of protest ; that the cr*
ecutor was not, after such a lapse of time liable to be called on ;
and being of opinion that such proceedings ought not to bare
been commenced, dismissed the executor with his costs.

Citations are either mandatory, that is, where they contain
merely a command or direction for a defendant to appear, as in
the case of all original and primary citations; or they are

Mandatory and inhibitory as in the case of appeals, whether
from definitive sentences or grievances ; in these the defendant
is not only warned to appear, but the judge a qttOf that is the
judge from whom the cause is appealed, is forbid to proceed
further. Oughion, tit. 19; CoMet.97.

Citations may also be mandatory and intimatory, as where it
is intimated, that if the parties do not appear, or appearing
do not shew cause to the contrary, the prayer of the ptaintifiv
as set forth in the decree, will be granted.

Citations may be also general, as where the defendant is cited
to see the whole course of the proceeding ; or

Special, as where the defendant is only cited, to do or per-
form some particular act in the course of the proceedings.
Conset. ibid.

It is said by Oughtan, tit. £0, who appears to adopt Conset.
27 f that in every original citation, there ought to be inserted
1st. The name of the judge, and his commission, when, not
with an ordinary jurisdiction, but a delegate with special
powers ; thus in a primary citation with inhibition from the
supreme court of delegates, the substance of their commis-
sion, was always inserted.
Snd. The name of the actor or plaintiff.
3rd. The name of the reus or defendant.
4th. The cause of action.
6th. The day and place of appearance.

A wrong description of the judge either by his name or title,
is fatal to the citation, and to all proceedings founded on it ;
especially in criminal proceedings, in which a greater degree of
strictness is required than in civil suits. Thus, where in the
citation the party was called on to appear before Sir W. Scott,
and the original articles were conformable to this citation, but
in the copy delivered to the proctor of the defendant, the pro-
ceedings were described as being in the name of Sir W. Wymte ;
the learned judge, Sir W. Scott held, that " if this mistake had

been made in the original citation, it would have been a

ground of nullity, and therefore as an error in the copy had,

quoad the defendant, the same effect as if it had been

a mistake in the original, the party cited was entitled to
" be dismissed." Williams v. Bott, I Hag. Con. 1 ; Ayltffe
Parer. 176. So, where in articles, the office of the judge wa»

yrOCM04 685

wrongly described, as vicar general, instead of official principal, Citatwii.
and it was doubtful whether, as vicar general, the judge had variaLct.
jurisdiction. Ibid* in nota.

But where the office of the judge is rightly described, the Title of
mere addition of a wrong name seems immaterial, for the des- judge*
cription of the office being sufficient, the name might be surplus-
age» Ibid. Where the citation ran '' to appear before the
** archdeacon, his surrogate or other competent judge," and it
appeared that the archdeaccHi of the diocese being dead, and
the archdeaconry vacant, the cause, by decree of the consistorial
court, was brought into that court, and there proceeded on.
It was held, that as the archdeacon's authority was rather given
to relieve than to exclude the bishop, if he die, it is for the
benefit of suitors, that all proceedings should be immediately
moTed into the episcopal court, and the business go regularly
forward ; and that if by the death of the archdeacon, the chan-
cellor had authority to proceed, he became the '' competent
judge," and that there was no irregularity, nor nullity in the
episcopal court, invoking the cause and becoming a competent
jurisdiction. 1 Hag, 169^ But it was said, in the above case,
that different dioceses have their peculiar usages, and that it
was well known that those usages, in respect of the exercise of
jurisdiction, pretty much constitute the law in the particular
case, unless they be contrary to the general policy of the law,
and to justice. Ibid, 189.

A citation ought also to be certain in respect of the person Name of
cited, for if such certainty be therein omitted a good excep- P^^jcit^d.
tion lies against the same, and such citation is rendered invalid.
AyVffe Parer, 176. Such an objection, however, is generally
an objection in abatement of the citation, and should be taken
before issue joined. Thus, in Barwood v. Lark, 2 Lee, 518 ;
Barwood was cited by the name of Burwood and was dismissed
for the misnomer. In the case of William Becker ; Kenrick,
a creditor, cited the widow to take administration, she ap-
peared and alleged that the deceased made a will and ap-
pointed John Ayres, executor; Kenrick cited him by that
name, he appeared under protest, and alleged his name was
Eyre, and was dismissed with costs. But in Powell v. Burgh,
ibid, where Emmy Powell described as wife of John Powell,
Esq., and daughter of G. H., ofW.G., in Gloucestershire,
appeared under protest, alleging that her name was Amy,
and not Emmy, the protest was overruled and an absolute ap-
pearance decreed ; for the court said, it was doubtful whether
Amy and Emmy were not the same name, but that the descrip-
tion left no uncertainty as to the person meant, and that if a
nobleman be cited by a wrong christian name, yet if his title of
honour is right, it is sufficient, for that is a sufficient description.
Ibid,

686

Jf^Ott»i*

Citation.
Variance.

Residence.

Corpora-
tion.

Cause
for which
the sail is
to be com-
menced.

A wrong description of residence is only material where it may
lead to a mistake of identity and to a proceeding against a wrong
person ; therefore, where the defendant was described as of the
parish of St. Andrew^ Holbom, and he alleged that he lired in
St. Mary^ Wardrobe^ but it appeared, by affidavit, that he was
the party designed, the objection, on the ground of the false ad-
dition, was overruled. Barham v. Barham, 1 Hag. Con. 7.

The master and wardens of a corporate company being cited
by their names of baptism and surnames, with the addition of
'' master and wardens, &c.," moved for a prohibition that
they ought to have been cited in their corporate character,
but the court held the citation good, because a body politic
could not be cited, and there was no remedy but in this way.
Skin. 27.

And as stated above, a false addition, describing a party
of a wrong parish, is an objection that can only be supported
on the ground of danger, that the wrong person may be cited ;
where, therefore, the identity is proved to the satisfaction of
the court, and where the jurisdiction is the same, the court will
hold the party bound by the citation. 1 Hag. Con. 6.

By the l^h Canon^ no bishop, chancellor, archdeacon,
official, or other ecclesiastical judge, shall suffer processes to
be sent out of his court, except the names of all to be cited,
be first expressly entered by the hand of the registrar or his
deputy under the said processes, and the said processes and
names be first subscribed by the judge or his deputy, and his
seal affixed thereto. By the Canon also, not above three or
four were to be drawn into judgment by one citation.

The cause for which the citation is issued should also be
faithfully stated. Conset. 26. Therefore, where the citation
described the cause as a suit of nullity of marriage, by reason
of a former marriage ; but the sentence which the court was
called on to pronounce by the libel, was a sentence of nullity
by reason of an undue publication of banns, the variance be-
tween the citation and the sentence prayed, was considered
fatal. 2 Hag. 598.

But it is not a eood objection, that if there be two charges
in the citation, only one is subsequently proceeded on ; nor
that a part of a general charge only is proceeded on, if the
charge be in itself divisible. 2 Ha^. Con. 172. A citation
calling on a party to bring in administration, and shew cause
why another should not be granted, is good, although it does
not also say ** to show cause why the original administration
should not be revoked," for it is revoked as to the party when
brought in. 1 Hag. 348. Where the citation or decree was
expressly limited to the inequality of a church rate, the party
will be strictly held to such an inquiry ; and therefore, articles

yrocM». 687

not bearing on the question of inequality, will be rejected. C'^^°'

4 Hag. 89, ante 659. Variance.

So also where the original citation was by a wife against her

husband for a divorce by reason of cruelty ^ which was returned
on the second session of Michaelmas term, 1826. On the ad-
mission of the libel the cause was appealed, and on the by day
after Trinity term, 1827, the appeal was pronounced against ;
but the court, at the petition of both proctors, retained the
cause. The husband afterwards confessed the marriage, but
otherwise gave a negative issue, and the wife was assigned to

Erove the issue ; it was afterwards moved to add articles to the
bel, pleading acts of adulteri/ subsequent to the commencement
of the suit. The court said " the only question was, whether
'* a fresh citation was necessary, the husband being already
*' before the court ; and that as no distinction existed between
" the one proceeding and the other, in order to save useless
*' expense, the articles should be received, though the original
** citation was for cruelty only." 1 Hag. 23, ante 665.

A day and place for the defendant to appear should be in- Adaytp*
sorted, which day ought either to be expressed particularly to P^''^'^
be such a day of the week or month, or else tne next court
day (or longer) from the date of the citation, in which the judge
sits to administer justice ; and the time of appearance ought to
be more or less, according to the distance where the parties
live. Conset. S6. By a constitution of Pecham, 9 Ed. 1, 1281,
it was provided that the person cited should have sufficient
time to appear, either personally or by his proctor.

It is said that in cases of defamation, a party cited is entitled Caaes of
to demand articles, on the day of appearance, in compliance with defamttioo.
the mandatory part of the citation, and if not delivered, that he
is entitled to be dismissed ; this, however, seems to be an ex-
cepted case ; in all civil cases the rule is clearly otherwise, the
promoter being allowed till the next court day ; in criminal cases
certainly the court will expect all reasonable expedition. 1 Hag.
Can. 170, vid. ante 683, 683.

Primary, or original citations being mandatory, and only Decreet
intended to compel appearance, or enable the party to pro- ^^^^'
ceed in default of appearance, issue under seal without the
judge's interference. Oughton, tit. 19, note c ; and they are
obtained as a matter of course ; the mode being as stated by
Oughton, tit. 19, and Canset. 27, for the partv, or his proctor,
to go to the judge, (now the registrar,) with tne citation ready
written, and fit for sealing, and to request the registrar to
seal it, who, thereupon, affixes the official seal.

In cases where any special allegations are to be inserted in
the citation, it can only be obtained by a special decree of the

688

^romsL

With iori
mation.

Decrees
with iati-
matioot.

((

Citation, judge, or his surrogate; for obtaining which decree, it is
directed by Oughton^ tit. 19, it. c. S, 3, that the proctor g;o
before a registrar or some other notary public, to exhibit his
proxy, for the person at whose instance such citatory decree is
sought, and to make himself party to the same, and to allege
all the material facts of the case, upon which the (dtatkm is
decreed. These proceedinffs should be regularly attested by
the registrar or notary, as if they had been done by an act of
court, held by adjournment, and such a decree is technically
termed an act of court, and it should be endorsed, so as to make
it agree with the other acts of court, and the registrar, putting
his signature at the bottom, it is perfected by adding the seal of
office. In EUiot v. Gurr, 2 PhiU. 18, Sir 3. NichoU said, *' I
desire in future, that no decree of a novel kind issue without
being consulted in Camerd^ or moved in court. It is of con-
sequence, because these instruments of the court are presumed
** to declare the law of the court."

Citations or decrees with intimations, are those to which an
intimation is added, that if the party cited does not appear, or
appearing, does not show cause to the contrary, the prayer of
the plaintiff* or applicant, as set forth in the decree, will be
granted.

In Pearce v. Rector of Clapham, 3 Hag. 11, which was an
appeal against the rejection of a motion by the commissary of
Surrey, for the grant of a faculty ; the court. Sir W. Wjftme,
speaking of those decrees, said, '' The ordinary practice is said
to be, for a decree of thb nature to issue, as other citations
and decrees, without motion of counsel ; and, on the return
'* of the decree, the court has formed its opinion, considering
" the issuing of the decree as not binding on the court, even
** if no one appeared to oppose ; but that the court might look
" at all the circumstances, and if it thought the application
** improper, would refuse it. In the present case a different
'^ method has been pursued, and I think one that is more
'' regular, because, in these decrees, an intimation is inserted,
'' that if no one appear to show cause, the faculty shall go,
'' which looks like an engagement to grant it, unless an objection
'' be taken. I, therefore, think it is more proper for the court to
'' take the objection in the first instance," ante 441. In Montagu
Tosee pro- y. Montagu^ 2 Add. 372, which was a cause of divorce, for the
^^^^*^*' adultery of the husband, an application was made for a decree
to cite the husband's two sisters who had an expectant estate in
considerable landed property, of which, the husband was said
to be tenant for life, and which were entailed or limited, first,
on his owti issue male; on failure of such issue, and provided he
did not dispose of such estates by deed or will, then upon bb

yrorn». 689

sisters ; the application was founded on the anticipation that Citation.
the husband's defence might possibly be a denial of the mar- .< ^^ ^^
riage ; the effect of which would be to bastardize the issue, and proceed-
the form of the citation prayed was, that the sisters should be '°s>-"
citedy to *^ see proceedings" in the cause, as far as related to
the marriage pleaded to have been had between the parties ;'*
the judge rejected the application as having been prematurely
made, (it was made on verbal suggestions of family settlements,
and before the admission of the libel,} but added, *'he should
'^ probably be inclined to accede to it, if duly repeated in a
'* proper stage of the cause, especially in the event of the
** husband giving a general negative issue to the libel, and con-
'' sequently denying the marriage."

A next of kin, contesting a will propounded by the executor,
may take out a decree, citing all persons interested in the will
'* to see proceedings. ** 1 Hag, 107.

In the case of a citation mandatory and inhibitory, that is, in inhibitory.
case of an appeal, where a judge d quo, is warned by an
inhibition not to proceed any further in the cause, it is required
by the 96th Canon, that none such should issue, without the
signature of an advocate ; and by the 97th that it should be
exhibited to the judge. ** The signature of an advocate may

not be called for in ordinary cases ; but it may be, and is

specially required by the Canon, and what is expressly required
'*by the Canon, is not repealed by disuse." Per Sir John
NichoU, 2 Phill. 433, vid. ante, 477.

But the above rule, it would seem, does not apply to cases of
appeals from definitive sentences and interlocutory sentences in
the nature of definitive sentences, but only to the cases of appeals
against interlocutory sentences simply so called. Ante, 50.

Ayliffe Parer. 298, notices this distinction between an appeal
against a definitive sentence, or against a simple interlocutory
sentence. In the first case, he says, "an inhibition is immediately
** granted, whether the judge, h quo, be wont to proceed to an
** execution, or not;" but in the other case, it ought not to be
granted any otherwise than after such time as he has taken
cognisance of the cause of appeal. " In the imperial chamber,
'' as well as in other courts," he adds, " when it is appealed from

a definitive sentence, or an interlocutory, having the force of a

definitive sentence, the inhibition is granted on the appellant's
" motion, together with a citation of the party appellate, and an
** intimation to the judge, d ^t^o, commanding him to transmit the
** process or acts done in the inferior court, to the judge, ad quern ;
** and it is to be observed that such intimation may, and ought to
'* be issued of common right, because an appeal from a definitive
^' sentence, or an interlocutory having the force of one, devolves
'^ the cause immediately to the judge, a</ quern, and reduces it to

Y Y

690

Ij^tHWUi

Inhibition.

Statute of
citations.

Citation.^ << that state in which the principal came was after contestation of
^* suit." But of appeals in the cases of grieyances, he says, '' Nor
" ought an inhibition, together with a citation to be decreed, and
** granted immed lately, in an appeal from an interlocutory seatence,
simply so called, though the same be appealable; because, in
respect of an inhibition, a judge ought to have a coiuto^ of the
" grievance, that he may know the truth thereof; for the causes
'' of a grievance ought not only to be expressed in the instrument
'' of appeal, but also the truth of the grievance ought to be
'' verified from the acts of the inferior judge ; and from hence,
'' the judge, ad quem^ ought to consider whether the cause be
" devolved or not.'' In Herbert v. Herbert, 2 PhUl. 430, which
was an appeal to the arches from an interlocutory order or
decree of the consistory court, by which leave was given to
Lady Herbert, for her cause under the peculiar circumstances
of that case to stand over upon the admission of the libel and
exhibits, and to examine witnesses, de bene esse; and in pain of
Lord H.*8 non-appearance admitted a witness to be produced.
Against this order Lord Herbert not having appeared absolutely,
but only under protest, entered a protest of appeal, and prayed
an inhibition in the court of arches before a surrogate, which was
decreed ; but on applying to have it sealed, it appeared that a
caveat had been entered against it by Lady Herbert, who had
been warned before a surrogate ; the surrogate, therefore, declined
making any order, and referred the matter to the judge. It was
contended for Lord Herbert, that the judge of the court of arches
had no discretion, and could not refuse to allow the inhibition
to be sealed ; that the practice had been invariable to consider
the signature of an advocate sufficient; that there was no pre-
cedent of a refusal, and that there was no instance before this,
of a caveat having been entered against the issue of an inhibition ;
But the court said, however averse it might feel to any in-
novation in practice, (for in modem times, an inhibition had
issued almost as a matter of course,) it by no means followed that
under particular circumstances, it might not be right and proper
for the judge to consider and decide judicially whether he should
decree an inhibition ; that the signature of an advocate is not
sufficient, that it must be exhibited, in order that the judge may
be informed of the quality of the crime, and the nature of
the grievance, to see whether it is such a grievance as would
justify him in tying up the hands of the court below ; thoush
it would only be in extraordinary cases that the court would
refuse it. Ante, 478.

Both the Common, the Canon law, and the Statute law,
forbid the citing parties out of their jurisdictions, which
jurisdiction depends upon inhabitancy. But a party may have
two domiciles, and in the case of a married woman, primd

fitnttist. 691

Jlaeie at least, the husband's actual, and the wife's legal ^'^*^°'
domicile, are one, wherever the wife may be personally resident, stttute of
1 Add. 19. In some cases the jurisdiction depends by the dtations.
statute itself upon the subject matter of the suit, as in suits for
substraction of tidies, 1 Lev. 96 ; Lard Raym. 534 ; Salk. 549 ;
and in cases of bona notabilia, S Hag. 199.

The S3 Hen. 8, c. 9, called the oill of citations, is merely
aflBrmative of the common law, and was intended to give
aid to the principle of the common law by penalty and for-
feitures; the Canon law had long previously established, and
acted upon, similar principles. 3 Phill. 606.(a) This sta*
tute, like many others of the same tenor, was repealed by
the 1 ^ S Phil. % Mary, c. 8, and revived by the 1st of Eliz.
c. 1 ; and its provisions were enforced by the 94th Canon,
A.D. 1603, by a punishment of three months* suspension of any
ecclesiastical judge offending against it.

The statute enacts, that no person shall be cited out of the
diocese or peculiar jurisdiction where he shall be inhabiting at the
awarding tne citation, except in the following cases :

1st. For any offence committed or omitted by any spiritual
judge, &c., or by any other person within the diocese where-
unto he shall be cited.

Sndly. Upon matters of appeal.

(a) In the case of Donegal v. Donegal, 3 Phill, 605, the vice-chancel-
lor, Sir J. Leach, expressed an opinion, " that it appeared to him that it
could hardly admit a question, that a court of limited jurisdiction,
(limited as an ordinary court is), on the plainest principle of the com-
mon law, can never have jurisdiction beyond its own local L'mits.
That it was not the statute of the 23 Henry YIII. that created
this objection: the objection is inherent in the nature of a limited
jnrisdiction ; the 23 Henry VIII. seems to have had in view, only
to enforce the principle of the common law, by imposing a penalty
and forfeiture against those who should act against its principles.
That it seems, by the recital of the statute itself, that it had be*
come necessary, in respect of the practice which had been adopted
by the archbishop and others, as the recital seems to import, in
drawing within their superior jurisdiction persons who were not
locally resident there; that the statute was merely affirmative of
the general principle of the common law, and gives aid to that
principle, by the enforcement of the penalty and the forfeiture. The
Canon law considered it in the same way, and as declaring the
principle of the common law ; and it declares, namely, that he who
in respect of an office, which has a limit and local extent as to judi-
cial jurisdiction, is necessarily, by the principle of the common law,
limited in that jurisdiction, according to the extent and locality of his
office."

Y Y 2

692

promts

Citation.

Sutate of
citations.

Jurisdic-
tion.

London.

Diocese
vacant.

Peculiar.

Inhabiting.

Occupation
an inhabi-
tation.

Substrac-
tion of
tithes.

* 3dlv. In case the bishop or other immediate judge dare not,
or will not, conyent the party to be sued before him.

4thly. In case the spiritual judge be party, directly or indi-
rectly, in the suit.

5thly. In case the bishop or any inferior judge mate reqnest
or instance to the archbishop, or other superior, ordinary, or
judge, to determine the matter before him and his substitutes,
and that to be done only in cases where the law, civil or canon,
doth affirm such request, or instance of jurisdiction, to be lawful
or tolerable.

By this statute none are to be cited out of the diocese. It was
originally doubted whether the archbishop was not at liberty,
notwithstanding this act, to cite the inhabitants of London and
other places of the same diocese, into his court of arches, which
could not be called a citing out of the diocese, since the court
of arches was held within the diocese of London. But the
court held, that the excusing the subject from travelling into
different dioceses, was not the only benefit intended by the
statute, but also the benefit of appeals, and that by diocese
in the statute must be understood jurisdiction. S Zee, S87,
317.

The same rule applies, although the diocese be vacant and
the jurisdiction devolved upon the metropolitan ; he must hold
his court within the inferior diocese for such causes as were to
be holden before the inferior ordinary. S Burns Ece. L.
So also a man must be cited within his own peculiar, if he live
within the jurisdiction of one, though it lie out of his diocese.

2 Salt. 549 ; ante, 643.

As a general rule, all jurisdictions are limited in their autho-
rity in grants of probate and letters of administration, to property
locally situate within their limits. The archbishop to his pro-
vice, the bishop to his diocese ; the archdeacon to bis archdea-
conry. 3 Hag, 199 ; as to peculiars or exempt jurisdictions,
vide ante, 64^ ; Lord Raym, 534.

The words of the statute are, that no man shall be cited, &c.,
to appear before any ordinary, &c., out of the diocese or pecu-
liar jurisdiction, where he shall be inhabiting at the time of the
awarding the citation. The question of jurisdiction, therefore, de-
pends upon the inhabiting of the party to be cited, and not upon
the locality of the subject matter. 3 PhiU. 61 1 ; 1 Lev. 96 ;

3 Brouml. 27. It seems that the word inhabitant in this statute,
is not to be taken according to its more limited, but according
to its more extended signification, therefore the occupation of
land in diocese has been held sufficient to constitute inhabitancy.
1 Salk, 164. The being in prison in a diocese makes inha-
bitancy there. S Lee, 318. A suit for tithes is local, and not
within the statute ; and, therefore, that a party must be cited

ij^rottii. 693

before the ordinary where the cause of action arose. 2 Salk. Citation.
549 ; 1 LordRaym, 452, 534 ; 1 Lev. 96 ; 2 BrownL 27. juriklic-

But a party described as resident within a particular juris- tion.
diction, when in fact that is not the case, may, by appearing to Appear-
the citation, waive the objection ; for the statute being made in ^^^'
ease of defendants, they may waive the privilege, if they choose ;
and having once waived it by appearing and submitting to the
suit, are bound to the jurisdiction, and can never recede from
the admission. 1 Add. 17 ; 1 PhilL 251 ; Shelley, 12 : 1 Ventr.
61; Carth. 33; Show, 161; and per Sir J. Jbeach, 3 PhilL
609; ante, e%B\ post, 111.

But if it appear, upon the face of a citation, that the party
cited resides out of the jurisdiction, then at any time the pro-
ceedings might be set aside in respect of the want of juris-
diction appearing on the face of the record. 3 Phill. 599 ;
1 Hag. Con. 6 ; Sed. vid. 2 Salk. 549 ; 2 Lord Raym. 835.

In Cotterell v. Mace, 3 Hag. 743, the consistorial court J«dge re-
liad refused to grant a monition to two churchwardens of the '^"fj"
foreign of Walsall, to show cause why they should not join in
making a general and equal rate upon all the inhabitants of
the parish, for the repairs of the church ; upon appeal to the
court of arches, the two churchwardens were cited, and they
appeared under protest. It was contended that, although by
the second exception, in the bill of citations, a party might
be cited out of his diocese, after a cause had begun, yet in this
case no cause had begun, and that the third exception, *Mn
*' case that the bishop or other intermediate judge or ordinary,
** dare not or will not convent the party to be sued before him,**
could not be taken advantage of, even if it applied ; for in
order to come within the operation of that provision, the proceed-
ings ought to have been different. The judge below should have
been a party to the appeal, or the respondents should have been
cited in an original suit, on the ground that the ordinary would
not convent them. The court, however, said, that the third
exception was directly in point, and the party was, in the case
before the court, properly cited, and that there was no autho-
rity to show that any different course had been adopted in other
cases.

For enforcing the original process in the suit, and for ob- Attach.
tainihg judgment, where no specific act is required to be '°^"^'
done by the party cited, it is generally sufficient to proceed
in pcenam. 1 Add. 469, 480. But it frequently happens
that, for the purpose of enforcing the judgment or decree
of the court, after judgment is obtained, or tor the enforcing
some collateral and interlocutory decree, it is necessary to resort*
to compulsory process and to the proceedings by attachment and
imprisonment ; in such cases there must be personal service.

694

^oce9».

AtUch-
menL

Monition
not abso-
lute in fint
instance.

Second mo-
nition may
issue.

Decree for

personal

anawers.

The mode of enforcing all process in case of disobedienGe» is
by pronouncing the party cited to be contumacioiis, and if the
disobedience continues, and no sufficient cause shown for it, a
tignificavit issues, upon which an attachment from chancery is
obtamed to imprison the party till he obey. Amie, 40&

This compulsory mode of proceeding is necessarily adopted
to enforce the performance of some act by the party cited, which
the court has directed to be done. Ante, 249.

Thus, where a husband neglects to pay alimony oAMfen/^/f/e;
1 Hag. 24 ; where a wife refuses to return to her husband,
though directed to do so by a decree of the court ; 1 Add. 901 ;
where a party did not pay costs ; 2 Hag, 653 ; 1 Add. SOS ; or
in any other case where the personal intervention of the princi-
pal is requisite to the act to be done, the practice is to take a
monition against the party which must be personally senred ;
1 Add, 121 ; and it is upon disobedience to this monition that
the party is pronounced contumacious. 1 Add. 808.

This monition is not absolute in the first instance, but is in
the nature of a rule to shew cause, and its issue is by no means
conclusive, upon its return, the party monished may appear and
pray it to be superseded. 1 Add. 311 ; S M.SfS. AStA^. Thus,
where the inability of a husband to pay alimony and costs was
shewn, the significavit was suspended. 2 Lee, 263. Nor will
the court pronounce a party in contempt for an informal com-
pliance with the monition, if he have virtually complied with or
IS ready to obey the monition. 1 Hag. 23.

If a party apprehended on a writ de contum. cap. be dis-
charged on account of an irregularity in the significapitf before
the costs are paid, a second monition on the original disobe-
dience will be granted, and a new writ de contum. cap. issued,
upon which the party may be recommitted. 1 iicM.311, and
in notia, ante, 431 •

In cases of a personal answer required from the party
himself, it is for many purposes sufficient that the decree
for the answer should be served on the proctor. But in
order to justify the court in putting a party in c(Hitempt,
and proceeding to signify him in order to his imprisonment
under the statute, (53 Geo. 3, e. 127,) for a disobedience of a
decree of the court, that decree under the seal of the court
must be personally served on the party, 1 Add. 122, and all
prior proceedings must have been conducted with the utmost
regularity. lb. 121. Whatever steps are to be taken by the
proctor merely, a mere assignation on the proctor suffices, he,
quoad hoc being dominua litis; but whatever is to be done per-
•sonally by the party, absolutely requires in strictness a personal
service of the notice or decree for doing it, on the party.
lb. 120;f?o.''/, 704,

^rott^m. €95

Sir J* NichoU, in an elaborate judgment on tbissubjecty said, Decree for
'' It is true, indeed, that Oughion, in his 62d title^ refers to a ^^^
** note on title SI, {Obs* 9,) by which, it seems, that a decree service of.
" for answers of the party, principal in the cause, may be served
*' on his proctor. But this can only be," he observes, ** under
** the special authority of the court, in virtue of a special clause
** inserted in the decree itself; and, consequently, it forms no
exception to the rule, that, in ordinary cases, the decree for
personal answers of the party principal, must be personally
served upon the party principal. Oughton*s whole 62d title
represents, under ordinary circumstances, the decree for the
personal answers of the party principal as a formal process,
under seal of the court, against the party principal, and re-
quired to be served personally upon the party, as contra-distin-
*' guished from any mere assignation or notice to be served
upon the proctor. And this, I conceive, to have been inva-
riably the old practice, except as excepted in the 9th Obs. on
Oughton's 21st title^ an exception, not at all applicable in or-
dinary instances.

So stood the old practice, a practice, I must also remark,
both perfectly reasonable in itself, and perfectly consonant
with the practice of the court in analagous cases. For the
reasonableness of the practice is too obvious to be insisted
upon ; and for its consonance with analogy, we all know, that
whatever is to be done, personally by the party, absolutely
requires, in strictness, a personal service, of the notice or
decree for doing it, upon the party. Where steps are to be
taken by the proctor merely, a mere assignation upon the
proctor suffices ; he, quoad hoc, being dominus litis. But,
** where the personal intervention of the principal is requisite to
" the act to be done ; as it is, for instance, where costs arc
*' taxed against him, or where sums are decreed to be paid by
** him on account of alimony, the practice is to take out a moni-
tion against the party, not merely to serve a notice on the
proctor ; which monition must be personally served upon the
party, in all cases, that is, when it is requisite that proceed-
" ings should be conducted with any semblance of regularity.

It must be conceded, however, in this matter of personal Service on
answers, that the modern practice has been to serve the de- proc^of-
cree on the proctor only, and not on the principal. This may
** have arisen, partly perhaps from the two species of personal
answers already alluded to, (the latter, for obvious reasons,
** now obsolete,) being confounded in modern practice, and
partly because persons seldom hang back in tnis matter of
'' answers, which are to be obtained, in most cases, without any
'' sort of difficulty. Being the practice, however, I should be

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696

pro(ts(fiL

Decree for

pereooal

answers.

Service on
proctor.

Writ de

contumacy

capiendo.

63 Geo. 3.
c. 127.

" disposed to admit, that a service of the decree for answers,
'* though merely upon the proctor, might be sufficient service of
'' the decree for many purposes. For instance, if after sacfa
'* service, the party *8 answers to an allegation of faculties were
" not brought in within a fit and reasonable time, it might jus-
** tify the court in allotting sums on account of alimony, (the
** marriage, that is, being proved or confessed) in proportion
** to the full extent of the faculties alleged, and so on.

'* But it is a very different question, whether such a service
^' would justify the court in putting the party in contempt, and
" proceeding to signify him, in order to his imprisonment under
*' the statute; a measure, which I conceive, the ecclesiastical
** court to be only warranted in adopting, where the prior pro-
** ceedings have been conducted with the strictest regularity.
** Nor, would it vary the case, in this view of it, to my appreben-
** sion, what notice of the decree should have been served on
'' the principal, or that the proctor should have appeared to the
** decree, and prayed further time and so forth.

'* Such being the old practice, and being so, as it is, consonant
'' both to reason and analogy, it remains only to inquire whe-
** ther it has undergone any authoritative alteration in later
** times. Nor do I conceive that the inquiry can be attended
'* with any sort of difficulty. Is there any adjudged case pro-
*' duceable, wherein his court has proceeded to enforce decrees
" of this nature, by its compulsory process, in the absence of
'' personal service ? I am confident there are none. Can it
" even be shewn that such decrees hftve been so enforced,
^' unless, after a personal service the whole matter passed sub
** silenlio ? I am nearly as confident that this has not oc-
*' curred, for the court is always (or means to be) satisfied
^' that there has been a personal service, before issuing its
'* compulsory process, in this description of cases. The re-
^' suit, therefore, of the whole inquiry, which is almost too ob-
'* vious to be stated in terms, is that the old practice in this
" matter of personal answers, being both perfectly reasonable,
'' and perfectly analogous to the correct practice in similar cases,
^' should, and must, in all cases, stricti juris, be the practice of
'' the ecclesiastical courts at this very day.*' Durani v. Uuraniy
I Add. 118.

When the court is satisfied that the party disobeying the
monition ought to be pronounced in contempt, it signifies the
contempt to the court of chancery. According to the provisions
of the 53 Geo. 3, c. 1S7, s. 1, which substituted the writ de
CQfiiumace capiendo for the o\d writ deeaceonimuiUciUo capiendo,
and provides, that " when any person having been duly cited
** in any ecclesiastical court, or required to comply with the
^* lawful decrees or orders of*, as well final as interlocutory of

protnifi(. 697

** any such court, shall neglect or refiise to appear, or neglect or ^*'»* ^
" renise to pay obedience to such lawful orders or decrees, or ^J^JX!'
" when any person shall commit a contempt in the face of such 53 Geo. 3,

court, no sentence of excommunication shall be given or pro- c.i27.
** nounced, (saving in the particular cases thereinafter specified.)
** But, instead thereof, it shall be lawful for the judges or judge
'* who issued out the citation, or whose lawful orders or decrees
** have not been obeyed, or before whom such contempt in the
" face of the court shall have been committed, to pronounce
" such person or persons contumacious, and in contempt ; and
*' within ten days to signify the same in the form to the act
** annexed to his Majesty in chancery, as hath been heretofore
** done in signifying excommunications, and therefore a writ
'* de contumace capiendo in the form to the act annexed, shall
'* issue from the court of chancery, directed to the same persons,
** to whom the writs de excommunicato capiendo have heretofore
** been directed ; and the same shall be returnable in the like
** manner, as the writ de excammunicaio capiendo^ hath been
** by law returnable heretofore, and shall have the same force
** and effect as the said writ ; and all rules and regulations not
** hereby altered, now by law applying to the said writ and the
** proceedings following thereupon, and particularly the several
*' provisions contained in a certain act passed in the 5th year of
** queen Elizabeth, intituled ' An Act for the due execution of
** the writ de Excommunicato Capiendo^* shall extend and be
^ applied to the said writ de contumace capiendo^ and the pro-
'* ceedings following thereupon, as if the same were therein
*' particularly repeated and enacted. And the proper officers
'* of the court of chancery are hereby authorized and required
" to issue such writ de contumace capiendo accordingly ; and all
** sheriffs, gaolers, and other officers are hereby authorized and
*' required to execute the same, by taking and detaining the body
** of the person against whom the said writ shall be directed
•* to be executed,"

The statute proceeds to provide, ** That on the due appear- Upon ap-
** ance of the party so cited, and not having appeared as afore- ^^f^°^'
** said ; or the obedience of the party so cited, and not having ^^ submit
'' obeyed as aforesaid ; or the due submission of the party so sion the
" having committed a contempt in the face of the court ; the P?^7 ^^
'' judges of such ecclesiastical court shall pronounce such party \^ J;^
** absolved from the contumacy and contempt as aforesaid, and charged out
** shall forthwith make an order on the sheriff, gaoler, or other of custody.
** officer, in whose custody he shall be, in the form to the act
** annexed for discharging such party out of custody ; and such
** sheriff, gaoler, or other officer shall, on the said order beine
** shewn to him, so soon as such party shall have discharged
'^ the costs lawfully incurred by reason of such custody and -con-
<' tempt, forthwith discharge him." Ante^ '* Excommunication^

698

^roctjsef.

Writ d€

contumaee

capiendo,

Significavit
must shew
jurisdiction
of ecclesi-
astical
court.

Monition.
Service of.

€t

The significavit or warrant to the court of chancery shouKI
correctly state the cause in which the decree or order of the
ecclesiastical court was madci and if it does not, the court of
king's bench will quash the writ founded on it ; 7 Mod. 56 ; S Lord
Raym.%\l\ at least, it must sufficiently appear that it was a
cause in which the ecclesiastical court had jurisdiction. 1 Salic.
993, 294, 350 ; 2 Stra. 1067. Thus, where the warrant stated,
that ''the defendant was attached for non payment of coate in
'' a case of appeal and complaint of nullity, lately depending in
*' the arches court of Canterbury, the court of K. B. quashed the
writ, for not stating with certainty the nature of the cause, so
as to show that it was apparently within ecclesiastical jurisdic-
tion, I D, & R. 460; 5 A ^.^. 791 ; though that process was
" in the usual form as taken from the court books." 1 Ad(L 310.
So, where the writ styled the defendant a trustee, for the
ecclesiastical court has no jurisdiction over a trustee. I B.^C.
655; 3D. ^ 72. 41. But where it was stated to be a cause
of " defamation and slander merely spiritual," it was held suffi-
cient. 7 T.R.15S; ante, 428.

In Green v. Cobden, 2 Bing. N. C. 627, an inquiry took place
as to the service of a monition on the vicar, under the 57 Geo. 3,
c. 99, for the purposes of a sequestration. The mode of ser-
vice pointed out by the statute was, '' by delivering such moni-
" tion to such spiritual person, or leavincr the same at his then
'' usual or last place of abode ; or if not there to be found, with
the officiating minister, or one of the churchwardens, and also
a copy thereof at the house of residence, (if any such there be,)
belonging to such benefice." The facts were these : — ^The
vicar had left the vicarage house where he left his daughter who
had lived with him, and went to live at a house within one hundred
yards of the vicarage, where a copy of the monition was served.
She lived in the vicarage house at the time of the trial. The
vicar never kept a servant, his daughter was his servant, and a
servant girl used to wait on her. About a week after the copy
of the monition was served, the curate directed the clerk to
make inquiries of the daughter where her father the vicar was ;
he did so, but could procure no information. The clerk was
then directed by the vicar to serve a copy of the monition, and
to lay it in the vicarage house, he took it accordingly to the
vicarage house, and laid it on the mantel shelf, in the front
parlour, which was the room that the vicar frequented when in
the parish. The front door was open, and when the clerk took
the copy nobody let him in. A fisherman's family occupied the
back parlour.

Tindal, C. J., said ** Three distinct modes are pointed out,
" in which the monition may be served : by actual delivery to
'' the party ; by leaving it at his place of abode ; or by leaving
** it with the officiating minister, and a copy at the house of

€S

^rotesK* 099

residence belonging to the benefice. There was no personal Monition.
delivery here ; and it would be difficult to say, that the serrke!^ ~
** vicarage house was then the last and usual place of the in-
*' cumbent's abode. However, I am not quite prepared to say,
'* if it stood on that alone, that the vicarage was not under the
circumstances the last usual place of the incumbent's abode.
But on the third species of service, there can be no doubt, for
the evidence is, that the clerk made inquiries of the daughter
to no purpose, he might, therefore, be fairly driven to the
house of residence belonging to the benefice. Accordingly,
one copy of the monition was delivered by the curate to the
clerk, and left by the clerk on the mantelpiece of the parlour
*' of the vicarage. The evidence clearly shews there is a vicar-
'^ age, in which the incumbent lives, when he is in the parish ;
*' his daughter did live there at the time of the trial, and the
'* house was not abandoned, why then are we to say that it was
'' not the house of residence belonging to the benefice. It seems
" to the court that the service contemplated by the statute has
** been complied with."

ti
tt
it
tt
tt
tt

Jj^xottox*

How appointed.
Proxy.

General.
Special.
Authority of.
Not essential.
By whom it may be given.
Married women.
Infants,

Husband without wife.
Extent of.
Bills of costs of.

How admitted.

T^HE procurator judieialis or judicial proctor, is an officer, Proctor.
who has the management of another man's business committed
to him by the warrant and authority of his client or principal ;
which warrant is in English called a proxy, and corresponds
to a letter of attorney. Ayliffe Parer. 4^1.

A proctor may also be constituted apud acta curia, or before How con-
a notary public and witnesses. Conset, 30. stituted.

A proxy is said to be a power or mandate given to the proctor

700

protton

Proxy.

Whatu.

General*

Special.

Extent of*

Revocation
of.

Not
tial.

by his client to appear for hiniy and to do all things for him
which he might possibly do, if he were personally there himself;
with power to substitute another in nis stead so often as be
shall be absent upon urgent occasions. And, that it may be valid
and authentic, it ought to contain the name of the party con*
stituting ; the name of the proctor constituted ; also against
whom, in what cause, before what judge, and to what acts he
is constituted to act ; to offer or receive a libel ; to except, contest
suit, produce witnesses, and hear sentence ; in which respect
these mandates or proxies may be said to be either general, giving
full power to prosecute the whole cause, while it is in controversy ;
or special, which gives power only to do, or perform, some
particular act. Conset^ib,; Constitutions of Otho^ A. Z>. 1237,
25 ; vid. form of a proxy, 1 PhiU. S73 ; as to effect of recitals
in, ib. 275.

A proctor ad lites may commence or propound an action, ex-
hibit a libel, give in exceptive matter, conclude the cause^ hear
sentence and appeal from it, &c. But he cannot enter into
references, and executive contracts, nor pray restitution in
integrum^ nor give, nor receive an oath, &c., because in these
and the like cases, he ought to have a special proxy. There-
fore, if he acts, in such anairs as these, he shall be said to ex-
ceed the bounds of his commission, and consequently his client
is not bound to ratify his proceedings therein. AyUffe Parer.
426.

As a proxy is only a personal appointment, the authority of a

Eroctor ceases on the death of a party in the cause, by whom
e was appointed, and by whose death the cause abates. 1 Hag.
874. So if the party appears personally. 12 Ves. 346.

Where a proctor gave an appearance for several executors,
and then declared that he proceeded no farther on the part of
one of them, he is entitled to obtain the dismissal of that executor;
1 PhilL 213; and where in that case having appeared for the
executors, he had admitted the interest of the party opposing
the will, it was held that he was not at liberty to retract such
admission, and put the party to the proof of his interest. Ibid,
After contestation of suit a proxy cannot be revoked without
just cause given. Ayliffe Parer. 428. So, at common law a
party cannot change his attorney without leave of the court.

By modern practice a proxy is not essential, except to secure
the adverse party, and to protect the proctor himself; because,
supposing there was no regular proxy at all, that would not
render the proceedings of a proctor null and void, unless it could
be proved that there was no authority de facto, and that the
principal was ignorant that the cause was in progress, and had
thus lost the opportunity of defending himself. Per Sir cA
NichoU, I Hag. 186. Indeed, the exhibition of letters of

^rotton 701

administration bitve been held to amount to a proxy. 2 Lee^ 33 1 • Proxy.
Regularly, however, and according to the provision of several ~"

Canons. Can, 129; Athon, 61 ; Lind. 76, none shall proceed
in any cause whatsoever, unless he be thereunto constituted and
appointed by the party himself, either before the judge, or by
act in court ; or unless in the beginning of the suit, he be by a
true and sufficient proxy thereunto warranted and enabled.
We call that proxy sufficient which is strengthened and con-
firmed by some authentical seal, and party's approbation, or at
least his ratification therewithal concurring. Can. 129.

In Fullerton v. Dixon, 4 Hag. 402, the proctor of one of
several executors, having been cited to take probate, and he
having alleged that he was ready to do so ; it was objected that
he had no proxy. The court said, " What need is there of a
" proxy authorizing the proctor to allege this ? It would be a
'* singular thing for the court to require such a proxy. The act
" of taking probate will be the best confirmation of the proctor's
" allegation."

As to the persons by whom a proxy may be given, it has By whom
been decided that a woman, though married, may, under cir- t^^^^
cumstances, give a proxy, thus : —

Mary Slater being named sole executrix, was permitted to Married
appoint a proctor, in the absence of her husband, in order to women.
her proceeding to prove in solemn form of law the last will and
testament of J. R., in which she was named executrix, upon an
affidavit, which stated in substance, that her husband had left
this country for the Cape of Good Hope, where, she believed,
he had now taken up his permanent residence eleven years
since, from which time she had received no pecuniary assistance
from him ; that there was no probability of his return to this
country, and that he had refused to execute the necessary
documents to enable his wife to proceed in this cause. 2 Add. 1 50.

But generally, in cases of married women, there must be some
security for costs, and the husband must, therefore, join in the
proxy, especially where the parties are in low circumstances.
1 Hag. 219.

In ShadboU v. Waugh, 3 Hag. 570, in n., where one of
the parties claiming as a legatee, was a feme coverte, living
apart from her husband, on her separate property, the court,
on security for costs being given, accepted her sole proxy.

It seems to have been decided, that the guardian of a minor Minor and
instituting a suit, cannot be condemned in the costs, incurred guardian.
after a proxy has been exhibited, the party having become of
full ap. 1 Hag. 337.

Where an administratrix, cited by the next of kin to exhibit Husbands
an inventory and account, and to see portions alloted, appeared |^f,^^®*'
to the citation, and called for a proxy from the next of kin ; a

wives.

702

^^toctor

Proxy,

Extent of.

Substitu-
tion of.

Dominus
litis.

Bilk of
cost! not
regularly
taxable.

proxy signed only by the husband, the wife next of kin,
refusing to give a proxy or appear, and living apart from ber
husband, was held sufficient. 2 Lee, S88, 467.

Where a proxy was given to appear in the archidiacoDal
court, and where, in consequence of the death of the arch-
deacon, the proceedings were moved into the episcopal court,
and there went on to sentence, no new proxy was necessary for
the proctor to enable him to proceed in the episcopal court, tk
client being aware in fact that ne was so proceeding. 1 HagA&»
So, where a proxy was given by a husband in India to institute
proceedings in the court of jE^e/^ against his wife; it was held,
that the wife having changed her residence before the com-
mencement of the suit into another diocese, that the court migbt
proceed under letters of request from that latter diocese, without
a new proxy. 1 Hag. 194.

Though a proctor has power giv6n by his proxy to substitute
any other in the cause, so often as he shall be absent frt>iii the
court, yet he cannot substitute any proctor before the contestio;
of suit, called the tiiis contestatiof because he is not, tiB then,
either dominus litis , lord of the suit or controversy, nor can it
properly be called a suit. But after the Utis contestation or con-
testing of suit, all things whatsoever acted or done by the sub-
stitute proctor are valid and ffood in law, as if done by the
original proctor, Consetf 31 ; AyL Purer. MS& ; nor, after con-
testation can a proxy be revoked without a just cause given.
Ayl. Parer. 423.

When the proctor is once the clominus litis, and therefore
responsible to the court for the propriety of the proceedings;
the interests of the suitor are solely intrusted to nim, and the
ecclesiastical court can take no notice of attomies or solicitors)
the whole responsibility devolves on the proctor; statutes haie
passed to protect him in the exclusive practice of his profession,
nor can any person use his name, nor participate in nis profits.
2 Hag. 196 ; 2 Add. 272.

It is said, that when a proctor obtains sentence for his client,
and the adversary appeals, both proctors are deprived of their
office; but that it is otherwise in appeals from grievances,
because proctors cease not to be proctors from such appeals, for
the proxy is in force till definitive sentence is given. ConsetfSS'i
Ayl. Parer. 428.

Except in the cases of extortionate bills in respect of what is
called common form business, in which the proctor is acting
more in the character of an officer of the court, and for which
there is a table of established fees, and which is, therefore, sub-
ject to a more direct control ; the court has, of its own autho-
rity, no power to decide what is due in respect of costs between
proctor and client incurred in a contested suit, nor to enforce pay*

?rorton 703

ment, for there are no statutable proTisions in the ecclesiastical Bills of
courts corresponding to the 2 Geo^ 2, c. 2S« It is true that "^^'
where costs are given against a party, the court, in order to
carry its sentence into execution, is empowered to tax costs and
enforce payment. But as between proctor and client, it can
neither decide on what shall be received, nor what shall be paid,
nor can it enforce payment. The proctor can onlv recover his
charges in a court of law. The court, indeed, will, on applica- Bill may be
tion of the client, refer the proctor's bill to the registrar for wfe"«d.
examination ; and one reason for doing this is, to enable the
suitor to judge what he will pay or tender, before bringing the
suit into a court of law for refusal of payment. But this is not
properly a taxation of a bill : the registrar does not report the
bill to the court, nor does the judge tax the bill, on the proctor
making oath that the sum reported has been necessarily ex*-
pended ; nor does the court issue a monition for the payment
of the sum taxed ; the reference to the registrar is merely in aid
of justice and for the benefit of suitors. 1 Hag. 686 ; 3 Hag.
287; 1 Salk. 333; Lord Ratjm. 703; 5 Mod. 240; post, 713.

But when an exorbitant and extortionate proctor's bill is if bills ex-
complained of, the ecclesiastical courts, under the authority tortionate,
inherent in every court, over its practitioners, is bound to listen JJ^*^
to, and examine complaints made against the conduct of proctors, punished.
and will refer their bills to the registrar for examination, and will
correct them by suspension or otherwise, as the justice of the case
may require, if the complaints be well founded. 1 Hag. 687 ;
3 Hag. 255, 286, 350 ; I Jacob. 305 ; 4 Bro. C. C. ; 3 Mod. 332.
Thus, where a proctor having charged £88. 4f. M. for taking
out probate in common form, the bill was referred to the regis-
trars, who reported the proper charge to be £52. 15^. 8£f.
The court suspended him for three months, and condemned
him in the costs occasioned by reference of the bill to the
registrars, taking into its consideration that this was the first
complaint ever made against the proctor in question, ih. 256.
So also, where £10. 14^. %d. was taken off from a charge of
£19. 14f. 4c/. and no satisfactory explanation given, the proctor,
making the charge, was suspended for a year. 1 Hag. 687, in
noth.

The court expects that a regular and detailed bill of costs
should be furnished by a proctor to his client, in order that the
latter may ascertain the truth and fairness of the charges ; and
if such bill is not furnished, the court will refer an account to the
proper registrar for examination, although it had been actually
paid and settled three years before ; under such examination
the various charges made will be considered and proved by
proper vouchers, in order that the party may recover the
amount of any sum overpaid by action or otherwise. 3 Hag. 298.

704

9r0(tot«

Billtof
coita.

Must tike
the advice
of an advo-
cate^

No manda-
mus to re-
store.

To restore
deeds.

Punished
for miscon-
duct.

Answers
by.

The ecclesiastical courts haye expressed a strong opinion
against the practice of a proctor undertaking a cause upon con-
dition of sharing in the effects, or of receiving any thing beyond
the payment of his fair and regular bill, as a practice most
dangerous to public justice, and as exposing the adverse parties
to the harassment of most vexatious litigation, 3 Hag, £90;
18 Ves, 120; so the court seems to discountenance ofiera on the
part of a proctor to accept disbursements out of pocket only,
instead oi regular charges, 3 Hag. 293.

By Canon 130, it is ordained, that no proctor shall entertain
any cause whatever, and keep and retain the same for two court
days, without the counsel and advice of an advocate, under
pam of suspension of his practice.

In Leigh s case, he having been fined 10«. for disobeying this
Canon, and refusing to pay it, was suspended from his oflice,
whereupon he prayed a mandamus to be restored, but was
denied. Gibs. 995; 3 Mod. 332; 3 Bum's E. L. «13; Canon
131, ibid.

As soon as a proctor has finished his oCBce or business, an
action ex mandato lies according to the civil law, in order to
compel a restitution of whatever he has received from or out of
the suit, though received by mistake or by the iniquity of the
judge. He shall, likewise, hereby be compelled to restore* all
such writings and instruments as he had concerning the cause,
and be obliged to make good whatever damage his dient has
sustained by his neglect or deceit. Ayl. Parer* 427.

So the court is bound to afford every suitor summary protec*
tion against any misconduct of the practitioners of the court,
and will punish such misconduct, when clearly brought home to
the party charged, by suspension or otherwise, as the justice of
the case may require, 1 Hag. 687; 3 Hag. 297; 3 PhUL 311 ;
for the judges, or those who have the supreme authority in such
courts, are the proper parties to censure the behaviour of their
own officers, nor will a mandamus be granted to restore a party
suspended from his office of proctor, because it is an ecclesias-
tical office, and the matter of the suspension is properly and
only cognizable in that court. 3 Bac. JLbrid. 531 ; GtAs.995;
3 Mod. 332 ; 3 Burns E. L. 214.

Where steps are to be taken by a proctor merely, a mere
assignation on the proctor suffices, he, quoad hoc, being
dominus Utis, and if answers are required from the proctor,
notice of such answers being served on the proctor is
sufficient. Oughton, tit. 61, points out the suits, in special
in which the proctor's answer may be required, and the
uses to which they are capable of being made subservient
in those suits, 1 Add. 185; ante 695, when in a case call*
ing on an executor, to exhibit an inventory of personal
estate abroad, a proctor was called on to answer to the suf-

€4
€€

^tOttOt 705

fidency of the seal of a foreign court. The court. Sir O. Lee, Antwen

said, " as to the prayer that the proctor should answer to the ^J^

** seal of the court of Hernhutt, and to the notarial seals and

subscriptions, &c., I rejected that, being of opinion that a

proctor is not obliged to answer to foreign seals, and to the
*' subscriptions and seals of foreign notaries. The rule of a
** proctor's answering, extending to the seals of courts in Eng-
** land, and to the seals and subscriptions of English notaries,
** with which the law supposes him acquainted, but does not
" suppose him to be acquainted with the seals of all the courts
** and notaries in the world. 2 Lee^ 655.

In order to entitle a person to be admitted to practise as a How td«
proctor, he must have served a clerkship of seven years, under °"^^'
articles, with one of the thirty-four senior proctors, who must be
of five years' standing ; and who, by the rule of the courts, is pro-
hibited from taking a second clerk, until the first shall have served
five years; except, in the event of the death of a proctor, to whom
a clerk may have been articled, before the term of his clerkship
is completed. In this case any other of the thirty-four senior
proctors may take such clerk for the remainder of the term,
although he himself may have at the same time a clerk of less
than five years' standing. Before a clerk is permitted to be
articled, he is required to produce a certificate of his having
made reasonable progress in classical education. When the
seven years is completed, the party is admitted a notary, by a
faculty from the archbishop of Canterbury ; a petition is then
presented to his grace, accompanied by a certificate, signed by
three advocates and three proctors, that the party has regularly
served his clerkship to a proctor for seven years. Upon this
certificate the archbishop issues his fiat, and a commission goes
to the dean of the arches, by whom he is admitted a super-
numerary, with similar ceremonies to those on the admission
of an advocate. Fid. tit, *' Advocate" ante 2.

A proctor may carry on business immediately on his admission,
but is not entitled to take a clerk till he shall have been for five
years within the number of the thirty-four senior proctors.
Rep. EccL Commission^ 14. As to his recovery of nis fees, Rocovering
pid. post, 718, 725. '«»•

By 55 Geo. S, c. 184, sehed. Admission to the office of proctor stamp on
is to be on a £25 stamp, and every proctor is to take out a admunon
certificate annually, upon which will be charged, if he reside in ^'
London or Westminster, or within the limits of the twopenny ^^jj^i,
post, and admitted three years, £12 ^ if not so long, £6. If of.
he reside elsewhere, and admitted three years, £8 ; if not so
long, £4. If he have a certificate as an attorney, solicitor,
notary, or agent, he is not required to take another certificate
as a proctor.

z z

706 ^roitor^

May not By 5 Oeo, S, c. 18» he is prohibited firom being a justice of

ticeof^*^ the peace within any county in England or Wales, daring soch

peace. time as he shall continue in the business of a proctor, under a

penalty of £100.

Exempt It seems that proctors, as well as advocates, are exempt from

ciiiTi and ' ^^■'^^"S ^^^ office of Constable, or other inferior oflSces, in the

peace same manner as counsellors, attomies, registrars, and others,

offices. belonging to the courts at Westminter.

$ro]bi^ttion.

History and nature of the writ.
When granted.

1 . Pro defectu jurisdiciionis.

In respect of the court.
In respect of the matter of the suit.
Matter merely temporal.

Matter ecclesiasticid, but, wholly or in part, beyond
the ecclesiastical jurisdiction.
Civil cases.
Criminal cases.
Cases of defamation.
Matter, originally within ecclesiastical jurisdiction,
resolving itself into a mere temporal question.
Freehold, offices, ways, boundaries, &c.
Contracts, trusts, 8cc,

2. Pro defectu triationis.

Customs, prescriptions, &c.
Where custom, &c. bad.
8. For proceeding as the law does not warrant.
In handling temporal incidents.
By refusal of a legal defence.
By an erroneous construction of statutes.
Prohihitions Qvouique.

QuaadM
When grantable.

Generally when an unauthorized step taken.
After sentence.

Original defect of jurisdiction.
Error in handling matters temporal.
Not pro defectu triationis.
Nor for citing out of diocese.
After execution.
After appeal.

^romtUm* 707

Mode of obtaining.
Proceedings in,

Pleadymg.

Verdict.

Damages.

Coats.

Judgment by default.

Amendment.
Out of what court issuable.
Who may join in.
Disobedience of.

X HE writ of prohibition to the ecclesiastical courts is very History of
ancient4(a) two several writs are noticed by GtanviUe^ who ^^^^^^* ^
wrote about the Slst Hen. 1, and the subject is very fully
treated of by Bracion, whose book was written about the
52 Hen. 3 ; Glanv. lib. 12, c. 21,22; Bract. 402, 6 ; 12 Rep. 42.
The constitutions of archbishop Boniface, A.D. 1261, ante,
240, 616, had urged the clergy to resist the jurisdiction of
the temporal courts, and threatened them with ecclesiastical
punishments if they submitted ; such a direction led to fre-
quent contests between the temporal and ecclesiastical juris-
dictions, and caused the writ of prohibition to be repeatedly
brought into use about the period when Bracton wrote, and the

firinciples on which it was grantable to be more fully discussed,
n the year 1267, Boniface, with the rest of the clergy, made a
formal complaint to parliament, and exhibited many articles as Articui
grievances, called ar/fcu/f cleri; for the judges, notwithstanding ^^'*
the greatness and power of the archbishop, and although many
of them were of the clergy, and although all the great officers of
the realm were prelates, had, nevertheless, proceeded according
to the law, and still kept, though with great difficulty, the
ecclesiastical courts within their just and proper limits. These
articles of complaint are not extant, but we are partly made
acquainted with their contents by some of the answers collected
from the fragments of the parliament roll of the 51 Hen. 3»
2 Inst. 599.

What the residue of the answers were may be collected from
the act, entitled " Prohibitio formata de statuto articuli cleri,'^
made about the beginning of the reign of Edward the first, in
which, it mav be observed, that there are many things whoUv
opposed to the claims put forward in the constitutions of Bom*
face. 2 Inst. 600.

(a) The writ of indicavit seems to have been the most ancient form
of the writ of prohibition. 1 Reeve Hist, Com. Law, 141 ; Vin. Abr.
Prohih. 3, 7 ; and vid. Com. Dig, Prohib. A. 2 ; Degge, 322 ; 2 Inst. 362.

z z 2

708 ^rof^Oiftion.

Histo/y of After thiS) at a parliament in the same reign, the clergy again

^^^^!^ preferred articles, entitled " AriicuU coniri prohtbitionem

ArtieuU regis,*' fearing lest, by reason of some general words used in

^mtnemi *^® Statute, they might be prohibited in causes which of right

belonged to the ecclesiastical jurisdiction. 2 InsL 600.

In the thirteenth year of that prince's reign, the clergy ob-
tained the statute " circumspecte agatiSf' so called from the
.preliminary words. This, which is called a statute, is in the
form of a writ from the king to his justices, concerning the
bishop of Nortcich and his clergy, without any mention of the
concurrence of parliament. But it has always been considered
to have the force of a statute, and indeed is referred to by a
subsequent parliament as such.
Cirfum'^ This act was designed to ascertain the boundaries of ecclesi-

*J^ar astical jurisdiction in some particulars; for which purpose it

^iLH: directs, that the bishop of Norwich and his clergy, (a contest

with whom might, probably, be the immediate occasion of this
act,) should not be punished, if they held a plea of such things
as were meri spiritualia ; as for instance, of penance enjoined
by prelates pro mortali peccato, as fornication, adultery, and
the like; in which cases sometimes a corporeal, sometimes a
pecuniary pain was inflicted, especially if the person offending
therein was a freeman ; also, if prelates punished any one for
having a churchyard uninclosed, a church uncovered, or not
decently ornamented; in which cases none but pecuniary penal-
ties could be imposed. So, if a rector demanded parochial
oblations and tithes, due and accustomed ; or claimed agminst
another rector, tithes, whether large or small, so as they did
not amount to the forth part of the value of the church ; or,
if a rector demanded a mortuary in places where it was cus-
tomary ; or if a prelate of any church, or patron, should demand
from the rector a pension as due to him ; it was ordained, that
all such demands should be made in the ecclesiastical court.
As to the laying of violent hands upon a clerk, and causes of
defamation, it was, says the statute, heretofore allowed, that
suits of that sort should be heard in the court christian, if money
was not demanded, and they went merely ad correcticnem
peceatL The like of suits de Jidei kuione. In all the above
mentioned cases, says the act, the ecclesiastical judge had juris-
diction, regid prohibitione non obstante.
^"^ lu- Such is the adjustment made by the statute of circumspecte

tion." ' agatis. In the twenty-fourth year of this kinff, there was
another statute upon the subject of ecclesiastical jurisdiction,
called the statute of the Writ of Consultation. It seems the
writ of prohibition had been resorted to very frequently, in
cases where no remedy could be had in the king's oourt, by
writ out of chancery, so that persons, who could obtain no

^rol^Aftton* 709

remedy in the temporal courts, were deprived also of such as ^"* ®^
might be procured in the spiritual. A representation on this uoq,

subject was made to the king ; and it was now ordained, that,

in future, when the ecclesiastical judge was stopped by a prohibi-
tion, the chancellor, or the king's chief justice, for the time being,
upon sight of the libel in such case, at the instance of the com-
plainant, if he saw there was no remedy in such case by a writ
out of chancery, but that it belonged to the ecclesiastical court
to determine it, should write to the judges before whom the
cause depended, quod in causd procedant, non obstante prohibit
Hone regid ribi prius inde directd. 2 Reeve's Hist. Common
Law, 216.

Prohibition is commonly said to be a charge by the king's ?'*****J^"^
writ directed to the spiritual court, forbidding them to proceed j^ \^
further in any cause there depending, upon a suggestion that
the cognisance of the cause does not belong to them ; or that
they are dealing in some point beyond their jurisdiction, or
otherwise than the law warrants. Ayliffe Parer. 435 ; Wood
Inst. 570.

Lord Coke says, " It was resolved, where there is any
*^ question concerning what power or jurisdiction belongs to

ecclesiastical judges, the determination belongs to the judges

of the common law ; for if the ecclesiastical judges should
** have the determination of what things they have cognisance,

and what not, they will make no difficulty ampliare jutisdic-

tionem'' 12 Rep. 42.

The writ is founded on information that the spiritual court is

Proceeding on matters, the determination of which belongs to the
ing's courts ; by which it is not meant that the spiritual courts
are not the king's courts, but only that the cause is drawn ad
alium examen from what it ought to be. {a) 2 Inst. 602 ;
8 Bulst. 120; Bac. Abrid. Prohib.

The object of prohibitions in general is the preservation of
the right of the king's crown and courts, and the ease and quiet
of the subject ; for it is the wisdom and policy of the law to
suppose both best preserved when every thing is in its right
channel, according to the jurisdiction of every court ; for by the
same reason that one might be allowed to encroach, another
might, which could produce nothing but confusion and disorder
in the administration of justice. Show Pari. Cas* 63 ; Bac.
Abrid. Prohib. ; S Bl. Com. 112.

The courts ofWestminster Hall, having a general superin ten-

(a) It seems that the Bishop's Consistory Court, the Arches, and
Court of Delegates are superior courts. A B. i^ Adol. 440.

710

pmliAtttoik

What it

Pro drfeetu
JuritdiC'
tionit.

In respect
pf the court.

dency over all other courts, will gnnt prohibitions to stay the
proceedings of an inferior court, either
I. Pro defectujurisdictionis.
8. Pro defeeiu trktiionU.
3. Or, for proceeding as the law does not warrant.

As to this third cause, for which prohibitions are grantable,
the rule is, that when the ecclesiastical court proceeds in a
matter merely spiritual, if they proceed in their own manner,
though that is different from the common law, no prohibition
lies; as in probate of wills if they refuse one witness; but where
they have conusance of the original matter, and an incident
happens which is of temporal conusance, or triable at common
law, they must try it as the common law would ; as in a suit for
a legacy, if the defendant plead a release or payment, they must
admit the evidence of one witness ; but if they admit the proof,
they are to judge whether he be credible or not; therefore, if
they determine against his evidence, the party has no remedy
but by appeal. Btdt. N. P. 214 ; Avlife Parer. 4S8.

The objection on the ground of defect of jurisdiction may
arise either, because not being a matter of spiritual cognisance,
no spiritual court can entertain the suit ; or being a matter
generally of spiritual cognisance, the particular court, in which
the suit is brought, cannot entertain it. In the latter case though
the temporal courts cannot entertain the suit, and consequently
cannot afford the party any remedy, yet, in order to maintain
inviolate the bounds of limited jurisdictions, the temporal court
will interfere to prevent disorder and confusion. Thus, if the
lord of a manor have probate of testaments within his manor, if
any such will be proved in the ecclesiastical court, prohibition
lies, because the jurisdiction belongs to the other. Pin. Abrid.
Prohib. C. a. 1 . So if the councu of Marches in Wales hold
plea in an ecclesiastical matter. Fin. AMd, f6«; Cro, Car.
631, 558, 595, 596. So if a parson in London sues for tithes
of a house in the ecclesiastical court, for bv the stat. 37 Hen^ 8,
the jurisdiction of this suit belongs to the mayor of London.
Vin. Abrid. ib. ; Cro. Car. 596.

By the 28 Hen. 8, e. 9, and by the Canon, Gibs. Cod. 1004,
no person shall be cited out of his diocese, or peculiar, if he
live within the jurisdiction of one; ante 645, 690; 1 Add. 17 ;
which statute is but a law declaratory of the andent Canons,
and of the true exposition of them. 13 Rep. 7,

Therefore, before appearance, any one, cited contrary to the
provisions of this statute, may have a prohibition. Cro. Car.
162; Saif, 158; 8 Mod. 374. But where a party has lived
within the diocese up to the day of citation, a prohibition, on a
suggestion that she lived out of the diocesei was refused.
12 Mod. 610,

^tohfbttiotu 711

The above statute, as appears by the preamblei was intended Prodrf^ctu
for the benefit of the subject, a party, therefore, might avail 'JJJJ^'^**''

himself of it, by pleading to the jurisdiction in the temporal — '-

courts, or by appearing under protest in the ecclesiastical
courts; but, if on being cited, he once waive that privilege
by appearing unconditionally, and without protest, and submit
to the suit, he becomes bound to the jurbdiction. 3 PhiU, 586,
606; 1 Add. 17; 1 Veni. 61; Carth. 33; Show. 161; for
^* quilibet potest renunciarejuri pro se introducto,*' Mar. 127,
mte 683, 698.

The second general ground for granting the writ of prohibition, In respect
pro defeetu jwrUdictionis, is the want of jurisdiction, in the o''.°»*t*e' «'
court, to be prohibited, over the subject matter of the suit. And '^'*
a court may be prohibited as well, where it exceeds its jurisdic-
tion, and extends it beyond its proper limits, as where it pro-
ceeds without any iurisdiction at aU. BM. N. P.2\9 \ S T. R.S\
2 T. jR. 473. The ecclesiastical courts of this country derive
their jurisdiction either from statute or custom, and sometimes
partly from one and partly from the other. Of the ecclesiastical
(courts, Lord Coke says, in his commentary on the statute cir-
cumspecte agatie, *'The ecclesiastical judges derive their
''jurisdiction therein by parliament, and the custom of the
** realm, and not from any foreign power." 2 Inst. 486. And
again, the second objection made by archbishop Bancroft and
the clergy to the mode of granting prohibitions, the judges
answered, '' It is true that both the temporal and ecclesiastical
''jurisdictions were ever de jure in the crown, though the one
" was sometimes usurped by the see of Rome; but neither in
" the one time nor in the other hath ever the form of prohibi-
" tions been altered, nor can be but by parliament, and it is
" contrh eoronam et dignitatem regiam for any to deal in that
" which they have not lawful warrant from the crown to deal in,
" or take from the temporal jurisdiction that which belonged to
it. Prohibitions do not import that the ecclesiastical courts
are Mud than the king's, or not the king's courts ; but do
import that the cause is drawn into aliud examen than it ought
" to be ; and, therefore, it is always said in prohibitions, (be the
" court temporal or ecclesiastical to which it is awarded,) if they
" deal in any cause which they have not power to hold plea of,
" that the cause is drawn ad aliud examen than it ousht to be,
" and therefore contra dignitatem et eoronam regiam.^ 2 Inst.
601.

If the suit concerns matter merely temporal, prohibition goes Matter
as of course; as if one be sued in the spiritual court for a lay merely
fee, which is lands or tenements, &c., he shall have prohibition ^^'"P°''* •
to the court, and may have another writ to the party himself. Freehold.
F. N.B. 40; Vin. Abrid. Prohibition, E. 7, A. a. 8, F. 1 ;

712 fjhcomitUuu

Mtttef Com. Dig. Prokib. F. 2 ; Mirror of Juitiee9, c 2, t. IS;
temporal. ^^ ^^^^i^diction, pi. 41 ; and, indeed, if a party sue b the

spiritual court for that which appertains to the common law,

yet he himself, against his own suit, may pray a prohibition and
shall have it. Vin. Abrid. ProAib. S, 11 ; ^. a. 4, 6; Cro.
Jac. 351 ; Lee, \30 ; 7 Ad. ^ EU. 718. By atot. Ed. 1, " Conu-
sance de rebus et causis pecuniarum, et aliis debitis el cataOis
quee non sunt de testimonio aut matrimonio/' belong to the tern*
poral court, and shall not be drawn before a spiritual judge, and
if they are, prohibition lies. Com* I^ig* Prokib. /^. 6 ; 2 /«*<.
600; F.N.B. 40.

If one sue another in the spiritual court for a trespass, though
on his glebe, prohibition lies for the kinff or the party, unto the
judge or the party. F. N. B. 40 ; ib. 47. (a)

So if one sues another in the spiritual court for a chattel or
debt, prohibition lies. F. N. B. 40; 2 Lee's Rep.^ 17 6.
Eccletiatti- In the preceding cases the ground for prohibition would be,
cai mattera. j>\^^^ j|jg spiritual court was proceeding in matters merely tem-
Outofthe poral, over which it had no jurisdiction at all; but it may also
joriadic- (^ prohibited from proceeding in things generally of apirttoal
cognisance, if the immediate subject matter of the suit be cog-
nisable in the temporal courts. Br. Prokib. pi. 14; Contelr
iaiiotim^ pi. 6. But a mortuary, pension, or oblations may be
sued for m the spiritual courts. Com. Dig. Prokib* G. H* by
the express words of the statute circumepecie agaiie, 5 Rep* 9 a. ;
although in case of a pension, annuity lies for it, for it may
be sued for in both courts. Cro. EUm. 675. Bat if a vicar
sue the parson impropriate for damages, for cutting tlie trees
growing in the churchyard, a prohibition will be granted,
because if the trees belong to him he may have trespass at
common law. f in. Abrid. Prokib. A. a. 2; S BoU. Rqf. 2b5;
1 Lord Raym. 212 ; Bunb. 229 ; or if churchwardens sne for
taking bells out of the steeple, 2 iSatt. 647 ; or for breaking
open a chest in the church, and taking the title deeds of the
advowson out of it, for trover or trespass would lie, 4 T. & 351.
If a churchwarden have made up his accounts and had tbem
allowed at vestry, and there be a libel against him relating to
these accounts, prohibition will go. Bac* Abrid* Prokib. L.
Bunb. 247.

ii there be a suit for tithes in court ohristian for tilings not

(o) So if bailiffs or others, who have jurisdiction to arrest a man on a
plaint before them, or to attach his goods, do arrest for trespasa or con-
tract not within thew jurisdiction. F. N. B. 48. So, if a man be lacd
in a court baron or other court, not of record, for charter concerAiDg
inheritance of freehold. F. N. B. 47.

fcnmitiotu 713

titheableper legem terra,- Degge. S14; 1 Roll Rep, 379; ^ccl^mtti.
Com. Dig. Prohib. />. 8 ; or for any goods or chattels, though "^^^^'
they belong to the church, prohibition lies, 2 Inst. 492; as for Out of the
a Bible, service book, or chalice, t6., or for an organ taken out {^^^^ ^'
of a church, R. RoU. 57. But it seems that a suit in the
spiritual court might be supported for restitution of the thing
taken, although for the temporal damage sustained in the loss
of the thing taken there might be also an action at law. Vid»
Bac. Abrid, L. 5.

Prohibition lies to stay a suit for fees of an apparitor, a Eccletiasti-
proctor, a registrar, or a parish dark. 1 Mod. 167; 1 Lord ^^^^^^
Bajfm.703; lOMod.mi; l2Mod.60S; I Salk. 333 ; 4 Mod.
254, poet, 725.

When the power of the ecclesiastical court is created by JanAiiitn
statute, it seems to be restrained to a very literal and limited ^^ '^^^'
exercise of the power; thus, the stat. 21 Hen. 8, c.5, #. 4, only
requires an executor *' to make a true and perfect inventory,"
and deliver it into the keeping of the ordinary. A prohibition
was granted, on the ground that that court were proceeding to
hear exceptions to the inventory. It was shewn by affidavit
that the practice of the consistory court, from 1636 to 1812,
had been to hear such exceptions ; but the court of king's
bench said, that as the bishop was ordered to receive the in-
ventory, under a penalty of £10 for his refusal, his office in
receiving it was merely ministerial, and that if the statute had
intended more it would have said so. Henderson v. Freneh,
5M.^S.406i vid. 5 Ad. SfEU. 623; 3 Burr. 1922.

If the claim made be in the cognisance of the spiritual Eccletiasti-
court, it is no ground for prohibition that it is founded on a cal suit
right, which can only be ascertained and determined in the ^^^^
temporal courts, provided the right be not disputed. Thus a righu
parson may sue for tithes in the spiritual court on a modus ded"
mandi^ if the modus be not denied, for it is in the nature of
tithes. Hoh. 147, 314; 11 Rep. 16; 13 Rep. 44; 1 Lord
Raym. 437, 578 ; 3 BuUtr. 241 ; 2 SaUc. 551 ; 10 Mod, 440.
But if the custom be denied, then a prohibition will be granted,
for the spiritual court cannot try the existence of a custom,
2 Lev. 186; Noy, 81 ; Latch. 125, unless the party insisting on
the custom permit it to be tried in the ecclesiastical court, and
then he cannot, if the custom be found against him, obtain a
prohibition to stay the ecclesiastical court from executing their
sentence. 1 Lord Raym. 435 ; Cowp. 425.

So also, if the defendant suggests that the parson has mis-
taken his modus ; because the ecclesiastical court cannot try
which is the right modus. 3 Bulstr. 241 ; Hetley, 138 ; 12 Mod.
260 : 1 RoU. Rep. 419.

But a party may be sued pro raiionabili parte bonorum in

714 pro^ftftiom

EccMasti- the spiritual court, according to the custoni of the province of
^*' '"*"^' York, 2 Lev. 128; or for a pension claimed by prescription,
£cci««>arti. F. N. JS. 51 ; ] Sid. 146; 1 Salt. 58; 2 Lev. 128; thoogh
founded on ^^^^ Coke seems to consider the law to be otherwise, 2hsi.
a temporal ^1 9 and even» although the prescription be alleged as is usual
right. in the ecclesiastical courts for forty, fifty, or sixty years. Cro,

Jac. 666 ; Cam. Dig. Prokib. G. 1 1 ; but, if the preseription
be denied, the spiritual court cannot try it 1 Ven4r.265; Ct>si.
Dig. ibid. The rule has been thus laid down : where the spi-
ritual court has jurisdiction over the subject matter, it will have
jurisdiction equally, whether the claim is founded upon pre-
scription or any other right, it is only where the spiritual coort
is proceeding towards the trial of the prescription that a clsim
by prescription furnishes ground for a prohibition. Byerley v.
Windus, 5 B. f C. 21, post, 788.

If the prescription be admitted, the spirituid court may goon
with the cause, ib. ; 2 Salt. 551; 2 LordRaym. 755 ; 1 Burr.
314. So it seems, that though the construction of statutes
belongs to the common law, yet a suit founded on a statute may
be entertained in the spiritual court. Vin. AbridL PrMb.
CIO; 6 Mod. 188.
Exceeding The Spiritual court has a general jurisdiction over matters
their juris- testamentary ; but where a suit was instituted to obtain general
probate of a will, made by a woman during coverture, with the
assent of her husband, and she survived him, a prohibition was
granted; for by granting such a probate, the spiritual court
would be giving effect to a will, which by the general rules of
law could not have effect, for the husband could not by any
assent enable his wife to dispose by will, made during covertttre»
of property which she might acquire after his death, but only of
property over which he himself bad a disposing power* Scammel
V. Wilkinson, 2 Ecut, 552. In this case, that the eccleoasticil
court had not jurisdiction over the entire subject matter of the
application, the will being inoperative as to the effects acquired by
the wife after the husband's death. And Lawrence, J., in giring
judgment, puts the case on that ground, *' Formerly, where the
' will was not only of personalty, but also of lands, prohiUtion
^ used to be granted quoad the lands. 2 RoUn Abr.8l5, 1. 10.

* But that is not so done now ; as the probate, as to the lands, is

* no evidence either way, being a proceeding coram nonJntSce.

* Salk. 552. So that where the matter is partly within their juris-
' diction and partly not, a prohibition may be aranted as to tbst

* which is not, if it will answer any purpose. How then does this

* case stand, as to the will, quoad the husband's effiscts, and
' those of William Stevens, a limited probate or administratioii
' cum scripto annexo may be granted ; but not aa to the effects
' acquired subsequent to the husband's death ; and if the eccle-

l^roff&iitUnu 715

" siastical court should grant it, it will not be in vain, as being ^^lenasti*
" upon the face of it a proceeding coram nonjudiee, as in the ^^^°'*^"'
'' case of lands, and, therefore^ the prohibition is not unne* Ezceedioj^

" Cessary." their juris-

The spiritual courts have no jurisdiction in crimes so as to ^";*^"'
punish persons guilty of treasons, felonies, or misdemeanors, ^""'"*^
cognisable in the temporal courts. 2 InsL 600; Keilw. 181 ; ^'"^- —
Cro. Jac. 480 ; Com. Dig. Prohib. F. b. ; which principle ap-
plies where a case previously of ecclesiastical cognisance is made
treason or felony by act of parliament, the spiritual courts by
such alteration lose their jurisdiction ; not only over the principal
case, but also over any defamation arising out of it, (unless
indeed there be a saving of their jurisdiction.) Jon. 320 ; Bac.
Abrid. Prohib. L. 3; Com. Dig. Prohib. F. 6. 8; Co. Lilt.
96 b. Prohibition has been granted where proceedings have
been taken in the ecclesiastical courts for writing a libel, for
that is an offence at common law and punishable in the temporal
courts. Comb. 71 ; Bac. Abrid. ibid.

If presentment be made in the spiritual court that a man is a
railer or sower of discord, prohibition lies, for that belongs to
the leet, unless indeed it be stated to have been done in the
church. Hob. 31 1. So the charging a woman with keeping a
house of ill fame, for that is also punishable in the leet. Noy^
in, ante, 396.

If one be sued in court christian for laying hands on a clerk
in orders ; the party being an officer or constable, may suggest
that the plaintiff made an affray on another, and that he, to
preserve the peace, laid hands on him, and so have a prohibition.
Cro. Jac. 367 ; Cro. EUz. 655 ; Moor, 916.

Where a clerk was prosecuted by articles in the consistorial
court, some of which were for matters cognisable in the ecclesi-
astical court and some not ; and upon a hearing, the clerk was
sentenced to be suspended for three years from his clerical funcv-
ons, and from preaching; from which sentence he appealed to
the court of arches, and afterwards applied for a prohibition, on
the ground that the sentence referred to all the articles. It was
refused, the court saying that it was quite consistent with the
sentence that the ecclesiastical court acquitted on those articles
over which they had no jurisdiction. 5 Ad. & EL 602.

But where proceedings are instituted in the spiritual courts where for
upon matters upon which an indictment or action might be correction
founded, not with a view to the direct punishment of the offender ®°^^*
or to the recovery of damages to compensate a party injured,
but pro ^ute animof or reformatione morum of the offender,
ante, 905,640; S Imi. 49» ; 2 BuUi. 183; 12 Mod. 419; or for the Or depriva*
purpose of depriving him of his ecclesiastical benefice, in order ^^°*

716 ProJ^Afttom

Criminal that the ecclesiastical body may be purged of unworthy membersi
^^^^' then proceedings in the spiritual court being ahogether alio

Proceed- intuitu^ and not directed to the same objects as they would be if
ings for instituted in the temporal courts iipon the same transaction, are
or deprita- "^^ prohibited, on the ground that the matter is cognisable in
tion. the temporal courts.

Lord Coke^ says ** the proceedings of the spiritual judges
are for the correction of the spiritual inner man, and pro salute
animaSf to enjoin him penance ; and the judges of the common
law proceed to give damage for the wrong and injury done; as,
if one lay violent hands on a clerk, the spiritual judge, pro sahite
afiim€B, shall enjoin him penance ; and the clerk may have his
action of battery, and recover damages for the injury done him-**
2 Inst. 628.

To the same purpose was the reasoning of the court, 6 Joe, 1,

in BoUes's case, where the vicar sued in the spiritual court

*^ for defamatory words," and a prohibition baring been granted,

the great argument against a consultation, (which, yet, in the

end, the court unanimously granted,) was this, that the party

might be punished by the temporal judges and justices for the

words. To which the reply was, that although it might be

so, yet the party might sue for the same in the spiritual court

Proceed So, if a man were a drunkard, he might be sued in the ecclesi-

ingsia both astical courts for his drunkenness ; and yet be bound to his good

courii, behaviour for the same by the justices. Godol. Abr. 447.

Thus, where a layman forged orders, and thereby obtained a
benefice, he was prosecuted in the spiritual court, in order Xo
deprivation ; and he prayed a prohibition, because forgery is
triable at common law, but the prohibition was denied on the
ground that he was sued there for deprivation only. Lev. 138 ;
Sid. 217; 5 B. %C, 400. So a nuisance in the churchyard
being a matter of ecclesiastical cognisance maybe prosecuted in
the spiritual court, and a suggestion that it is a lay fee shall not be
ground for prohibition. Vin, Abrid. Prohib, B. a. 13. A parson
presented to a benefice was libelled against, for that he was not
twenty-three years old when made a deacon, nor twenty-four
when he entered into priest's orders, the statutes requiring
that none should be a minister or permitted to preach under
that age. It was suggested that this was a matter triable st
law, because, if true, a temporal loss, 9t»- deprivation might
follow. But the court denied the prohibition, and compared the
case to that of a dmnkard or ill Kver, who are usually punished
in the spiritual court, though a temporal loss may ensue. 8 Mod*
67 ; Fin. Abrid. PtoMb. C. 9, ante, 242, 306.

So where a statute makes a thing a temporal oflFence, which is
punishable by the Cqmioh law, they may also proceed to depri-

9rol^fiift(otu 717

▼atioDy but not to punish as a temporal offence. 12 Mod, 239; Criminal

Vin. Abrid. Prohib. B.a.H; Burgoyne v. Free, 6 5. * C. 400; ^.!!!!:

2 ItordRaym. 1506, ante^ 640*

So although suit in the ecclesiastical court by the church-
wardens, for taking away bells, would be prohibited, ante, TIB,
yet there may be proceedings there against churchwardens for a
sacrilegious taking. Sid. ^1 ; 4 71 /{. 351. Where there was
a suit in the ecclesiastical court for teaching school without
license, in contempt of the Canons, a prohibition was granted
nisi causd, but afterwards, upon argument, a consultation was
granted ; for though the act of uniformity gives a £5 penalty in
such case, for which the suit must be at common law, yet that
does not take away the jurisdiction of the spiritual court when
they proceed upon the Canons, and not upon the statute for the
penalty. 2 Lev. 222 ; 1 Vent. 41 ; Comb. 324. So if a town
erect a common school and give allowance to a schoolmaster,
the bishop cannot remove the schoolmaster at bis pleasure, but
if he be a recusant he may remove him. Fin, Abrid. Prohib.
F. 7, and vid. ante, 640, 641 .

This rule, it seems, does not hold in capital crimes ; but even Capital
in such cases the infliction of ecclesiastical punishments is not ^^^* ^
wholly excluded ; as appears by the case of one Scarl, an incum- ^^^
bent in Essex, \2 Jo^. 1, who having been been found guilty of
manslaughter, and allowed his clergy, was afterwards sued in
the spiritual court, in order to deprivation. In that court he
desired to be admitted to his defence (that he was not guilty)
contrary to the verdict; and the judge of the spiritual court,
doubting in what manner to proceed, advised privately with
Hobart, C. J., and they agreed, as follows :— That felony, or
other capital crimes, are not examinable in the ecclesiastical
courts ; no, not for purposes that are examinable there, as in
this case of deprivation; and, therefore, they may not originally
examine such a crime, to prove a man crimonous ; much less
when he is so proved in the proper court, may they impeach the
sentence in a court improper ; but they may build a sentence of
deprivation upon such conviction. This method beins pursued
in the spiritual court, prohibition was prayed in behalf of Scarl,
but it was denied by the whole court, because it appeared, upon
the libel, that the spiritual judge did not proceed against him
as an homicide, hnt b& convictus de homiddio, and, by proceeding
to deprive him by reason of his conviction, they of the spiritual
court were so far from impeaching, that they affirmed the ver-
dict in the temporal court. Hob. . 121.

In some cases the jurisdiction of the ecclesiastical courts is Perjury.
limited by the circumstances of the case on which the libel is
founded, as in cases of perjury, defamation, or breach of an
oath, kesione Jidei.

Thus, if perjury be committed in the spiritual court in a

718

^fOl^Atttoiu

Criminal

Perjury.

Heresy.

Inconti
nency.

Defama-
tion.

Matter
fmrtl V tpi-
ritual and
partly tern*
poral.

cause of matrimony, tithes, testamenti or legacy, or of any
other, the conusance of which belongs to their jurisdiction, no
prohibition lies. Jenk. 184; f^in. AbriJL Prokib. F. 10; JR. 8;
Keilw, 39, b. But if indictors in a case of felony are peijared,
et if they are sued for it in the crimnial court, a prohibition
ies, for this perjury arises in a temporal cause, ib. So if a jury
give a false verdict between parties, si.

If a man be proceeded against as a heretic in the spiritual
court, j9ro salute animnB, and thinks himself aggrieved, his proper
remedy is by appeal, and not by prohibition to a temporal
court, which cannot discuss what is heresy. Htxwk. PL C. 4,
c. S, #. 9. So in case of a lewd woman, who hath a bastard
chargeable to the parish, though by stat. 7 Jac, 1, c. 4, she
may be sent to the house of correction, yet she may be pro-
ceeded against for incontinency in the spiritual court« Bac.
Abrid. Prohib. L. 5 ; 7 Mod. 80.

The jurisdiction of the spiritual court, in cases of defamation,
is expressly reserved by the statute circnmspeeie agatis, ** when
money is not demanded, but a thing done for punishment of
sin ;" upon which Lord Coke remarks, '' that the defamations
'' granted to the ecclesiastical court ought to have their inci-
** dents ; first, that it contains matter merely spiritual as to call
'' a man heretick, schismatic, or the like ; secondly, that it coo-
** cerns spiritual matter only, and is not mixt with any matter
" determinable at common law ; thirdly, that the suit be not for
^* amends or damages, but for correction of sin pro sabtte
** anima, and they must express in particular the defamation
*' in their libel in court christian." 2 Inei. 49S.

Thus, where a prohibition was prayed in a suit for defama-
tion, it was refused, on the ground that the words complained of
were not actionable at law, but if they had been actionable or
punishable by indictment, prohibition would have been granted.
Cro. Car. 229; 2 Salk. 548; 11 Mod. 193; Fin. Abrid. Pro-
hibition, N. 12, 13, 16, R. 12; Skinner, 86; Cro. EUz. 753;
Sid. 217 ; 2 T. R. 473. But where one said of a parson that he
preached nothing but lies and malice in the pulpit, prohibition
was refused, for that these words concerning and relating to an
ecclesiastical person and matter, the suit was proper for the
ecclesiastical court. 3 Lev. 17, ante, 297.

If part of a sentence contain words actionable at com-
mon law and other words cognisable by the spiritual court, it
shall not be divided, but the common law jurisdiction will
override the whole. 2 Salk. 552; 2 Roll. Abr. 295; 2 Lord
Raym. 809, 1 101 ; 2 Imt. 483; Sid. 408,(a) ante 298.

(a) If there be several contracts between A. and B. at several times
for several sums, each under forty shillings, and they do all amount to

|^ro{)fl)ittom 719

So where solicitation of chastity and an assault, are one Matter
entire act^ the spiritual court cannot divide them. 1 Lard ^^f a*Bd'
Raym, 809 ; ^ Salk* 552. partly tem-

** It is not sufficient merely in the case of defamation, that porai.
'' the words impute an ecclesiastical offence, it must be an
*^ offence which will not be punishable at common law, if the
** words are that such a person is a bawd, suit lies in the eccle^
*' siasttcal court, but if they are that such a person keeps a
*' bawdy-house, they are out of the jurisdiction of the court,
** because it may be the subject of an indictment; and thouffh the
" latter cannot be charged without charging the other luso by
** inference, it has always been held a ground of prohibition ; as
'* the courts of common law have determined that there can be
'' no suit for defamation in the ecclesiastical court where an
'' action would lie at common law." Per Sir W. Wyrnie^ Har^
ris V. Butler, 1 Hag. Consist. 463, n.; 2 Salk. 682, ante, 296.

But whenever the jurisdiction of the spiritual court extends Coacurrent
to the whole matter of the issue, prohibition will not lie, on the jarisdic
ground that the matter is also triable in the temporal court ; in ^^^'
such case, it seems, the courts have concurrent jurisdiction. For,
as said by the court, 3 Lev. 17, it is no certain rule that a thing
triable at law is not triable in court christian, vid. also 2 Lord
Raym. 101 1 ; 2 Lev. \2.

Nor, if the spiritual right remains unimpeached, will a pro-
hibition be granted, merely because the party suing has acquired,
by the act of the other, or by operation of law, a right to sue
for the subject matter in the temporal courts. Thus, a party
may sue the occupier in the spiritual court for tithes after
severance, although by such severance they are become lay
chattels, and the parson may also have his action of trespass.
Cro. Elix. 843 ; Fin. Abrid. Prokib. N. 27, G. 14. It seems for-
merly to have been decided otherwise. Vin. Abrid. Prohib. F.
41. So where executors gave bond for a legacy the obligee
was not debarred by accepting the bond from suing in court
christian for the legacy, for the bond had not altogether de-
stroyed the nature of the legacy. 2 Roll. Rep. 160, post, 727.
So where one brought suit in the spiritual court, pro rationabiU
parte bonorum, according to the custom of the province of York,
prohibition was denied, although there was a remedy at com-
mon law. 2 Lev. 128. (a)

a sum sufficient to entitle the superior court, they shall there be put in
suit, and not in a court which is not of record, 2 Ventr. 63, much less
can an entire contract be divided into small sums to give an inferior
court jurisdiction. Vin. Ahrid. Prohib. B. 2.
(a) As the temporal courts exist for one purpose, and the spi-

720 proj^ftfttom

P^.^^^'''^^^ So a suit may be entertained in the spiritual court for a
tioD. ^' pension, though proceedings by annuity may be had in the

temporal courts, for it may be sued for in both courts. Cro.

EUm. 675; Com. Dig. Prohib. G. 11, anie, 712.
Matter ec- The cases hitherto noticed have been those where the eccle-
quetiio"^* ' sift^tical court had no jurisdiction to entertain the suit, or had
temporal, exceeded its jurisdiction, and in which, ffenerally speaking, the
defect would appear on the face of the libel ; such caaea, how-
ever, now that the bounds of the temporal and spiritual jurisdic-
tions are well defined, are not of frequent occurrence ; a more
common class of cases is that where the spiritual court has full
jurisdiction over the immediate matter of the suit ; but where the
temporal court is informed by suggestion or affidavit ; or where
it appears, by the plea or answer or other proceedings in the
spiritual court, that the effect of the suit is to bring in issue some
right or question not determinable in court christian, and which
is, consequently, not within their jurisdiction to entertain. This
class of cases is thus described by AyUffe^ Purer. 436, ** But a
'' prohibition lies where a matter, which is originally of ecclesias-
'' tical cognisance, at last brings a mere temporal matter with it
'' into debate to be determined in the spiritual court. Therefore,
'' it was held that as soon as it appears, that the right to tithes
** comes in debate, the lay court shall cease and be ousted of its
''jurisdiction; 13 Rep. 17, post; the same law is of the
spiritual court ; for when it appears that the right to the ad-
vowson may come in debate, the spiritual court must surcease,
though it did not appear at first. This may happen (for ex-
ample) when a suit is commenced at first, for right of tithes,
and it falls out by depositions or otherwise, that the tithes
demanded amount to the fourth part of the yearly profit of
the benefice. In which case it is adjudged, that the temporal
court shall have cognisance in the same manner as if the right
to the patronage was principally in demand.** Com. Dig.
Prohib. G. 5 ; Stat. IS Ed.l; 9 Ed. S, jr. 1.

€C

€t

*t
it

€€
€€
€i

ritual for another, it is difficult to say that they have a concuirent
jurisdiction. The same fact of adultery may be the subject of an action
for damages at common law — of proceedings in the spiritual court to
divorce the wife, or to punish the adulterer ; but although the same fact
may be entertained in both courts, it is so for distinct purposes in each,
and pursued by different proceedings ; the same purposes and the same
proceedings never can be entertained in both courts, whether on the
same or on different facts. So a prohibition will not be granted for uiy
nuisance or other matter in the churchyard, upon a suggestion that it is
a lay fee, for a nuisance there is properly of ecclesiastical oognisanoe.
Carth. 152 ; Vin. Abrid. Prohib. B. a. 13.

l^mitioiu 721

In thia class are not included those cases where a modus, ^^^''5^-
prescription, or custom arises incidentally in the course of the q^^^ '
suit. In those cases, the particular issue being properly triable temporal.
at common law, the trial is withdrawn from the spiritual court,
but the suit itself is not determined, the ground of prohibition
being not pro defeciu JurisdicHonis^ but jvro defectu triaiionhf
Cawp* 424 ; 1 Salk* S3S ; it is not that the spiritual court has
no jurisdiction to entertain and decide the main and ultituate
question in the cause, but that it is incompetent to try the par-
ticular issue incidentally raised. 1 Burr* 314. The prohibition
pra defeetu jurisdictionis extends to the whole cause, and its
object is to put an end to it altogether ; prohibition pro de^
fectu iriationis only extends to a particular issue, and its
object is rather to facilitate the proceedings, by sending the
trial of that issue to a court better adapted for the inquiry ;
and somewhat resembles the power formeriy exercised by the
temporal courts, to send to the spiritual courts for them to
return their certificate. Vin. Abrid. Prohib. A. 13; pro*
hibitions for pro defectu iriaHonis have been called prohibitions
granted for the sake of trial, Cotop. ASAf ; 5 E(Mt^ S63, and
are distinguishable from those which are granted to prevent
trial.

Although generally a suit in the ecclesiastical court lies to try institutioii.
the validity of a parson's institution, yet if the parson has been *ftCTin«>»c»
inducted, prohibition will be granted, for the very title of the ^^'
patronage may come in question. 1 BulH. 179; S Leon* 168;
Fin. Abvid* Prohib, F. 5. And it matters not that the institu-
tion took place after a catecU not to institute, for this does not
make the institution void. Poph. 133; LUi. Rep. 165; Vin.
Abrid. Prohib. /^. 4, M. 14; 1 RoU. Rep. 9S». By the induc-
tion the parson has the church as a lay fee, and therefore the
common law shall be preferred to the spiritual law, and shall
draw the trial of the whole to it. Poph. 1 33 ; Holt's Rep. 599;
Fin. Abrid. Prohib. F. S, M. I ; Hob. 15. If there be a suit
in the spiritual court before induction to repeal the institution,
no prohibition will be granted ; but induction, though it be after
utterly void, yet inasmuch as it is a temporal thing, it cannot
be frustrated by the spiritual court. Hob. 15; Litl. Rep. 163 ;
Fin. Abrid. Prohib. M. 13; so if the question be parson or not
parson, which comprehends induction, it is only triable by the
common law, 1 Roll. Rep. 228 ; or if it be concerning the right
of presentation, 1 Roll. Rep. 379; Com. Dig* Prohib. F. 3.

So if the question turn on the construction of a real com-
position for endowment of a vicarage, it can only be expounded
by judges of the common law. Litt. Rep. 263. But in another
case prohibition was denied on suggestion of a composition, the

AAA

722 ^dfllttlOlt.

Matter ee- oouit nying the law had been taken to be otherwiae. Show. 81,

q^ • and «^. 2 Lord Raym. 1161.

temporal. Where the real issue in the case continues to be spiritual,

there the jurisdiction is retained ; as if upon a resignation of an

incumbent another be presented and instituted, and after, he
who resigned Hbels in the ecclesiastical court against the new
incumbent, and makes a lease, pretending that he did not
resign, upon which issue is joined whether he was parson
at the time of the lease made ; jet no prohibition shall be
granted, because the question is only on the resignation, which
properly appertains to the ecclesiastical court. Vim. Abrid,
Prokib. M. II.

Faculty. Nor will a prohibition be granted to prevent the spiritual

court from granting a faculty to enable a parishioner to stop up
a window in the body of the church, for the purpose of erecting
a monument there against the rector*s consent; such a faculty
being only a licence from the ordinary, and would not bind the
rector, if his consent was necessary : if the faculty were im-
properly granted it might be the subject of an appeal ; but not
ground for a prohibition, no common law right of the rector
being affected by the question. Baker v. Sail, 3 East, 217,
ante 440.

Right to If there be a suit for tithes in the ecclesiastical court, and the

tenant plead that the party suing is not incumbent, but that
another is; this plea goes to the right of the incumbency, and,
therefore prohibition lies ; for the tenant might otherwise be twice
charged for tithes. Bac. Abrid. Prohib, L. ; Cro. Elin. 2S8.

Between When the trial of the right to tithes comes in question

two par. between two parsons, no prohibition lies; Cro. Eli», 251;
13 Rep. S9; 2 Bulstr. 157; 1 Leon. 94; Com. Dig. Prokib.
G. 6 ; and it is said, that in a suit between parson and vicar in
court christian for tithes, prohibition has always been denied,
unless there be other matter which is determinable at common
law ; 2 RoU. Rep. 55 ; indeed it is said, that if the right to tithes
between two parsons comes in question the temporal court shall
be ousted of jurisdiction. Vin. Abrid. Prokib. X. 1, 2; 6. 1,
8, 4, 7, 9. But where two parsons were of several parishes,
and the one claimed certain tithes within the parish of the
other, and said that he and all his predecessors, parsons of D.,
had used to have tithes of such lands within the parish of S.,
and that was pleaded in the spiritual court ; prohibition was
granted, this being a claim for a portion of tithes made on the
ground of prescription, and not merely as parson, or by reason
of the parsonage, but by a collateral cause, viz. by prescription ;
and then it is not material that it is between two parsons.
OodoL 45 ; Vin. Abrid. Prokib. X. 2. Where trespass was

iitllC3.

SODS.

^rofntttiotu 723

brought by a parson against a layman, who claimed by lease by Matter ec-
the parson of D., who had two parts of the tithes, and the q^^on^ '
plaintiiF the third part, it was said that the temporal court temporal.
should be ousted of jurisdiction, because it was of tithes; but
a case was cited in which it was adjudged that the king's bench
should have jurisdiction, because it was between a layman and a
parson, for it was said that by the articuU cleri^ the tithes by
contract passed into chattels, and therefore the lay court should
have jurisdiction. Viun Abrid. Prohib, Y. 5, 6.

If the ecclesiastical court proceed, though indirectly, to try Right to
the riffht to an office in which the holder has a freehold interest, ^^^^*
as holding it for his life, prohibition lies. For conusance of
pleas of oflBces belong to the king's courts, and ought not to be
drawn before a spiritual judge. 2 Inst, GCK). Thus, in Doctor
Barkers case, 2 Roll. Rep. 306, the bishop of Oxford, having
granted to him for life the office of commissary and vicar
general, with all fees, and having afterwards inhibited the
registrar from entering acts by the doctor or paying him fees, a
prohibition was granted for a disturbance of the freehold ; in
Skinners and Mingay's case. Fin., Jbrid. Prohib. F. 37, in
which there was a question between two several grants, as to
who should be registrar of the bishop's court ; it was held that
this should not be tried by the spiritual law, for though the
subject circd quod be spiritual, yet the office itself is temporal ;
see also Kifl v. Bridgman and Roboitoms case, ibid^ and vid.
Raym, 88. So prohibition lies, if on^ be sued in the spiritual
court for the collation to a grammar school, F. N. B. 40 ; Vin.
Abrid. F. 36, 64, and D. 10; Lev. 125; or for fees of a regis-
trar ; for as the office is a freehold, a denial of reasonable and
usual fees would be a disseisin of the office, 12 Mod. 608 ;

1 Scdk. 333 ; or if it be a question who is chaplain, and the
right to appoint come in question. HoU^ C. 36. 8o also,
though the suit be on a supposition that a prior grantee for-
feited his office for recusancy, for the freehold comes in debate.

2 RoU. Rep. 285 ; Com. Dig. Prohib. F. 4.

The office of canon residentiary is a freehold, and if a bishop
claim a right to present by lapse, and the right of election
thereto be in the dean and chapter, prohibition will be granted.
1 T. R. 650. Prohibition lies also to stay a suit for removing
a chancellor as not qualified, he having been allowed ; Comb.
305 ; Cro. Car. 65 ; or the master of a free school being
licensed, ib. 324; or the right of a lecturer, though the bishop is
judge of the fitness. Holt, 41 8 ; 13 East, 419 ; ante, 458, 494.

But, as seen above, the spiritual court may proceed against
spiritual persons for the direct purpose of depriving them of
their offices or benefices, if they have been guilty of offences,
which by the ecclesiastical laws are sufficient for deprivation,

A A A 2

7S4

^roliaitiom

Matter ec*
cletfitfttical,
que»Uon
ti'inporal.

Temporal

matter

generally.

Ways.

Modus.

Heir.

Boundaries
of parishes.

the direct object of the suit being within the jurisdiction of the
spiritual court, it is not to be prohibited ; nor is it material
tnat the offences charged are cognisable by the temporal
courts, if the suit be merely for the sake of correction, 5 B.
^ C. 405, ante 242, 305, 640, 717.

So in all cases where the question in the spiritual coart
resolves itself generally into temporal matters, it may be pro-
hibited ; as in the case of Wartes v. CUfton^ Cro. Jac. 350,
more fully reported, 1 RoU. Rep. 61. CUfton sued WarieM for
tithes in the spiritual court by force of a lease made to him by
the parson, and Worte^ made claim to them by a former lease
by the same parson, and the question was, which lease should
be preferred ; here the whole matter having become temporal
prohibition was granted. So if the question be, whether a
church be a parochial church or a chapel of ease. Bae» Abrid.
Prohib. L. ; 2 Roll. Abrid. 291. But if a covenant, &c. be
mentioned only as an incident^ but the libel is founded on an
endowment, prohibition does not lie. 1 Leon. 10; Com* Dig.
Prohib. F. 5.

If a church way be libelled for, prohibition will be granted, if
it be surmised that it is a common highway. Vin. Abrid. Prohib.
F. 47, 48 ; Mar. 45 ; 1 Bulsir. 67 ; 2 Roll. Rep. So, although
a parson may sue in the spiritual court upon a modus decimandi^
such modus not being denied or disputed, yet if it be suggested
or pleaded that this is not the right modus^ and the question
arises as to which is the right modus, that cannot be tried in
the spiritual court. 3 BuUt. 241 ; Roll. Rep. 419.

If a man who has lands by descent sues another in court
christian for calling him a bastard, prohibition lies, for it tends
to temporal disinheritance. Vin. Abr. Prohib. L. 220. So
where plaintiff exhibited a bill in court christian, suggesting
title to a portion of tithes as heir-at-law, and that the lands out
of which they issued were so obscure that he could not know
where to resort, and prayed that the defendants might set out
the boundaries of the lands and discover them to the plaintiff,
the answer was, that the plaintiff was not heir, and prohibition
granted, for that court could not try who was heir. 3 Nelsons
Abrid. 294.

If there be a suit for tithes, and the answer be that the

f>lace for which tithes are sued, is in another parish, a prohibition
ies, for the boundaries of parishes are triable at common law.
Fin. Abrid. Prohib. E. 2, 3 ; 1 Roll. Rep. 332 ; Cro. EUss.
228; Lev. 78; 13 Rep. 10, L. 7 ; De^g. 313 ; but it is said if
both the parties in such a suit be spintual persons, prohibition
shall not be granted, ib. A. a. 7, ante 616, 617.

So on a libel for not frequenting his parish church, it was
pleaded that it was not his parish church, Bulst. 159; and pro*

^rol^tbttton. 725

hibition was granted, for that the issue depended on the boun- Mauer et>
dary of the parish. ''ST*''

But it is said, that though the bounds of a parish are not temporal.

triable in court christian, the bounds of a vill in the same parish

are triable. 1 Lev. 78 ; Fin. Abrid. Prohib. L. 1 ; Sed. Qy.
ante 617.

If a man be sued in the spiritual court for breach of his oath, Contracts.
the jurisdiction over which is reserved to court christian by the
statute circumspecte agaiisy and if his oath was to pay debts or
to make feoffment, prohibition lies ; for otherwise, if he were
compelled there to perform his oath, lay contracts would be de-
termined in court christian ; fin. Abrnd. Prohib. F. 11, Q. SO,
31 ; but, if the ordinary in such a case were to enjoin him to
penance only, then after sentence there would be no ground for
prohibition. Vin. Abrid. Prohib. F. 12, IS; ante 1X1.

So where a proctor libelled for his fees, it was said, that Proctor'i
although no court can better judge what fees have been usual ^^^^
than the spiritual court, especially as to those which are appointed
by the constitutions provincial, yet as some of the fees were of
temporal cognizance, a prohibition should go as to them ; and
one of the judges said, that if there had been an actual contract
upon the retainer, the plaintiff* ought to have sued at law, Vin^
Abrid. Prohib. D. ]2. For as said by Holt, C. J., 4 Mod. 254.
If a proctor might sue in the spiritual court for his fees, he might
avoid the statute of limitations, and vid. Lord Raym. 70S;
Dotigl. 629. In a subsequent case it was held that the re-
tainer, being an implied contract, an action at law would lie
upon it, and consequently that a prohibition should go. Johnson
V. Oxendon, 4 Mod. 254 ; ante, 703. But costs recovered in the
spiritual courts may be sued for there. Com. Dig. Prohib. F.5.I.

So where a rector agreed with his curate to serve his cure at Curatc'i
a certain stipulated salary, which was afterwards, on application stipeod.
by the curate to the bishop, increased, the curate libelled the
rector for the increase. But a prohibition was granted, for
although it was contended, that being an allowance by order of
the bishop, it was properly suable in the spiritual court ; yet it
was answered that here was a contract between the parties
which could only be sued in the lay courts. Freem. 70 ; Dougl.
137 ; Cowp. 437, ante 282.

8o where there was a suit for tithes by virtue of a lease made Leaw of
by the vicar of T., the defendant claimed to be discharged of *>^««*
the tithes by a former lease and composition by deed. Prohi-
bition was granted, on the ground that the spiritual court ought
not to meddle with the trial of leases or real contracts, for the
lease is not merely accidental. Cro. Jac. 350 ; 2 Bulst. 283.

But it is said that suit may be had in the spiritual court upon
a bond given in the spiritual court, for a matter testamentary or

726 ^Ot^ftittOlt

Matter ec- matrimontal. F. N. B. 41, jB* Or for the profits of a benefice
clcsiMiical, ^Yen in time of sequestration. 2 RoU. Rep. 293. Or for
temporal, procurations or synodals. Raym. 360 ; Com. Dt^. Prohib. F. 5.

r : The ecclesiastical court has properly jurisdiction over legacies,

legacies. ^^^ ^ legacy is not a debt, but due only by the will, and no pro-
hibition goes. Grignion v. Grignion, 1 Hag. 536 ; F. A\ B. 50,
0.51; 1 FenL 233; Com. Dig. Prohib. G. 17. Though the
legacy be a chattel real as a ward, term, &c. Com. Dig. ib.

So if a testator devises that his executor pay his debt to his
creditor, it is a legacy for which the creditor shall sue in the
spiritual court. Com. Dig. ib.
Out of If lands be devised to trustees to be sold for payment of debts,

laorl. ^„j (iig same persons are executors, the effect is to create

a charge upon the land to the amount of the debts, and
that when sold the proceeds in the hands of the executors are
equitable, and not legal, assets, and consequently a legatee
entitled to a portion of such assets cannot sue for them in the
ecclesiastical court. Barker v. May, 9 B. ^ C. 489 ; Hob.
265. Nor can any sue in the ecclesiastical court for a legacy
payable out of land. 2 Show. 50. Nor in any case can tliat
In equity, court hold plea of a legacy in equity, but only where it is a legacy
at law, for they must hold their pleas by law as the common law
courts do. Hob. 265. In all cases of legacies, courts of equity
exercise a concurrent, 3 Atkynsy 346 ; 3 Ridg. P. C. 2A3 ; and in
some cases an exclusive, jurisdiction. The cases where the eccle-
siastical court is ousted of jurisdiction in cases of legacies are
generally where there is an unfinished trust. 1 Has. 5S5. As
where a husband claims a legacy in right of his wile, because
in equity he is compelled to make a settlement. I Aii. 491.
Or where there are proceedings in account to ascertain assets
and a bill of discovery has been filed. ^m6/. 331,55; 2 Ves.
Trutts. 106. Neither can the ecclesiastical court in any case compel
an executor to make a distribution of the residue amongst the
next of kin, because the claim upon him is as a trustee for the
next of kin, and that court cannot enforce the execution of a
trust ; ex parte Jenkins ^ I B. 6i C. 655 ; 1 P. fVms. 659 ; or as
it hath been said, anything in the nature of a trust. 3 Atkyiu^
346. But where a sum of money was left to executors in trust
to invest and pay the interest to A. for life, and after A.'s death,
to divide the principal amongst his issue, respectively attaining
the age of twenty-one^ with benefit of survivorship till that age.
A. being dead leaving three children, two attained twenty-one,
and their shares were paid over ; the ecclesiastical court will
proceed in a suit for substraction of legacy against the ex-
ecutor, to enforce payment of the third's share, holding that
the character of trustee was at an end, and that of executor
alone subsisting. Grigfuon v. Grignion, 1 Hag. 535.

^ro&atttom 727

In a case wliere. an executrix was sued in the spiritual court W*tter €c.
for distribution of certain bonds^ it was suggested that some qi^ticm ^ '
of these were held in trust, and a prohibition upon that and temporal.
other grounds was moved for. The court were of opinion Z '
that a prohibition should go for so much as was the subject of
any trust, for a trust is not examinable in a spiritual court, which
is not a court of equity. Millar's case, Freem. £83.

But in another case, where a trust was suggested as a ground
for prohibition, it was refused, because the common law courts
take no notice of a trust, but if it were proper to move for a trust,
anywhere, they must go to chancery, for the execution of a trust
belongs to them. Sir O'B.'s case, Freem. 282.

But if in a suit against executors for a legacy, any matter of
title come in question, the spiritual court will be prohibited.
2 Show. SO. But for a legacy or marriage portion suits may be
had in the spiritual court. Com. Dig, Prohib. F. 5.

If executors give bond for payment of a legacy, it was
held by Dodderidge, that the obligee might sue in both court
christian for the legacy, and at common law on the bond, for
taking the obligation had not totally destroyed the nature of the
legacy, 2 Roll. Rep. 160; Vin. Abr. Prohib. JB. 10; sed vid.
Yeh. 38 ; 2 Vern. 31, ante 719.

If there be a suit in the spiritual court for rent reserved on a
lease of tithes or offerings, prohibition will be granted, for it is a
lay rent. Vin. Abrid. Prohib. F. 55 ; ibid. B. a. 3, 1.

Having seen in what cases a party, proceeded against in the ^^ drfeetu
spiritual court, is entitled to a prohibition, pro dejecta Jurisdic- ^*''°^'^'*'
ttanis, as well where the want of jurisdiction is brought to the
knowledge of the superior court, by the suggestion of the de-
fendant, as where it appeared upon the libel of the plaintiff, or
answer of the defendant. The next general ground for prohi-
bition is pro defectu triationis ; the party applying for a prohi*
bition on this ground necessarily assumes that the spiritual court
has general jurisdiction over the subject matter of the suit, but
insists that an issue has arisen incidentally in the cause, on some
fact merely of a temporal nature, which is so essentially triable
at common law, that a prohibition ought to be granted to enable
the party to bring such temporal matter in issue before a
jury; as where the parties are at issue on a prescription or the
like, (a) But in these cases, as the prohibition is granted for the

(a) From the distribution of the business which properly belongs to
each court, it has been said, that it seems to follow, not only that they
are equally obliged to confine themselves to the causes respectively
assigned to them, but also that if matter of a temporal nature is incident
to a spiritual cause, or matter of a spiritual nature to a temporal cause,

728 $ri)()fl)tttom

Pro drfeetu sake of enabling the party to try the custom or prescription ac-

trmtumii. eording to the forms and principles of the common law, if he

prefer such mode of trial ; yet if he submit to trial in the spiritual

court) he cannot, after sentence, obtain prohibition ; the apiritnal

court having general jurisdiction, and a defect in trial being

no ground for prohibition after sentence. Cawp. 422 ; I T. K*

556; 10 Mod. 12; 5 Ad. ^ EU. 591 \ T Ad. % EU. 880.

Moduli, Thus where a modus, prescription, or custom is set up by a

prescrip. plaintiff, or pleaded in answer by the defendant, the spiritual

lion, &c. court will be prohibited to try it, by reason that the rules of

trial in the spiritual court differ from those in the temporal

courts, for though it is a rule, which is established by numerous

authorities, that if the spiritual court have cognisance of the

principal, it has cognisance of, and can try, the incident, though

it may be a matter generally of temporal cognisance. Cro. Jac.

234, 269 ; Hoh. 188 ; Cro. Ettz. 642, 659 ; 3 Lev. 72 ; Yeh.

172; Freem. 290; yet that rule must, it is apprehended, be

understood with this limitation, that the incident is a matter

each jurisdiction ought to afford equal assistance to the other. And
this can only be done in one of two ways, either by a mutual agreement
that each court has a right to transmit to the other, such incident point,
to be judged there, and then returned, that so the court which needs the
assistance may be able to proceed ; or that such incident matter (as par-
taking of the nature of the principal) is triable by the court which has
the proper cognisance of the principal. According to the first of these
rules, the temporal courts used to write to the spiritual, to try the par-
ticular points of matrimony, bastardy, &c., when they were incident to
causes of inheritance, or the like ; and as the spiritual courts obey, and
judge that point, and make return of the judgment, without intermeddling
further ; so, upon that return the temporal courts proceed, and make
use of it accordmg to the influence it has upon the principal point, and
then give a final judgment of their own. But this assistance is not
mutual, f . e. the spiritual courts have no such relief from the temporal ;
but instead of being allowed to write to the temporal courts, and entitled
to a helping hand on such occasions ; the incident point is, in many
cases, separated from the principal, and wrested out of thdr hands, and
sometimes draws the principal along with it. And as to the second
rule, viz. the trial of the incident matter by that court which hath the
proper cognizance of the principal ; the maxim is cognitio accessarii in
cv.rid ckrisiianitatis non impediturj ubi cognitio causae principalis ad
forum ecclesiasticum noscitur pertinere^ 13 Rep, 38 ; but the very denial
of a right in the spiritnal court to write to the temporal on such occa-
sions, evidently infers a right to try all incidental points by their own
rules ; because, otherwise, they would be left without remedy, and their
proceedings unavoidably at a stand. 1 3 Rep* 67 ; 5 Rep. 67 ; Vm.
Abrid. Prohib, a. 13, post 734.

^ro^rtbttiom 729

which though temporal, in its nature, can be tried in the spiritual Pro drfutu
court, whereas it is said of rooduses, prescriptions, customs, and ^*''°^'^""'
the Uke, that the spiritual court has no capacity or means of Modus,
trying them. 3 T. iJ. 4 5 1 Salk. S33 ; VenL 274 ; Hob. 247. g^^^P-
One reason given being, that a prescription ought to be tried ^^°' ^*
by a jury, which cannot be in the spiritual court. Vin. Abrid*
Prohib. F. 16.

It is said, however, that if a custom be certified to be an
ancient custom of the church of England, a prohibition will be
denied to the party opposing the custom. Palm* 296, posU

But the reason, as stated by Lord HoUy why the spiritual
court ought not to try customs, is, because they have different
notions of customs from those which the common law has, for
in some cases the usages of ten years, in some twenty, in some
thirty, make a custom in the spiritual court, whereas by the
common law it would be for time immemorial, and therefore
since there is so much difference between the laws, the common
law will not permit that court to adjudge upon customs by which
in many cases the inheritance of persons may be bound. Vent,
274; 10 Mod. 272, post 733.

Lord CokCf says, " the customs of the realm are part of the
'' laws of the realm, and therefore they shall be tried by common
" law." 13 Rep. 18, citing 7 Ed. 6; Dyer, 79 ; and 18 EUz. ;
Dyer, 349. The opinion of nil the justices. And vid. 5 B. ^
C I. Of custom by the civil and canon law and of the force
and effect thereof, Ayliffe Parer. 194.

Again it is said, in any plea in the spiritual court, where a
custom is alleged and denied, a prohibition shall be granted.
Laich. 48; Vin. Abrid. E. 13.

In a case where churchwardens claimed a payment by custom
for burying in the body of the church, and a prohibition
was prayed on a suggestion denying the custom ; although the
court thought such a custom must be good, as the charge of
making good the church floor lay upon the parish, yet as the
existence of the custom was denied it was to be tried at law, and
therefore a prohibition was granted. Anon. Vent. 247, and
Colebaten v. Baldwin, 2 Lutw, 1032, 1047. If the parishioners
of a parish have a custom to elect one churchwarden and the
vicar another, and after a canon is made that the vicar elect
both, and he does so accordingly, and the parishioners elect one
according to the custom whom the ordinary disallows, and esta-
blishes the two elected by the vicar, a prohibition shall be
granted. Vin. AbriJ. Prohib. P. 50; Butfs case, Noy.3\,
ante 217. And in a similar case, Noy, 139, in which prohibition
was also granted. Coke, C. J., said, that a convocation hath
power to make constitutions for ecclesiastical things or persons.
But they ought to be according to the customs of this realm.

730 ifiromituttu

Prodrfectu Ante 137. And in Carpenter's case, Raym. 439, where a »pi-
V'^ ^*^'*' ritual officer had hesitated to swear in a churchwarden chosen by
Custom. ^^^ parishioners who claimed by custom to swear both, the parson
claiming to appoint one by the canon, a mandamus was granted,
because the ecclesiastical court cannot try the custom of choos-
ing churchwardens. Cro. Car. 569 ; 2 Roll. Abrid. ^1, F.
pL 51. So with regard to the election of a parish clerk, if a
custom by the parishioners to elect he surmised and denied,
prohibition will go. Cro. Jac. 670; Cro. Car. 589; ante6Sll.

But in order to oust the jurisdiction of the ecclesiastical or
other inferior court it should appear, that the parties were
at issue on the question, or at least, that the spiritual court
is proceeding to try it. Phillips v. Slacke^ Noy, 147. It was
said by the court that a prohibition should not be granted, upon
a bare surmise that the party applying for the writ was sued
for tithes by the parson of D., of lands in the parish of S«,
unless it appear in the pleadings in the ecclesiastical court.
So also in 1 Vent. 335, there is an anonymous case to the same
effect. lb. 308 ; 8 Mod. 338. In Dike v. Broum, 2 Ld. Raym.
Noy^ 147, the court refused the prohibition, because they said
that where the ecclesiastical court has general jurisdiction, if any
special matter arise to deprive them of it, it must be pleaded
there. In an anonymous case in 2 Salt. 550, Holt, C J., said,
'' if a modus he pleaded in the court below and admitted, no
prohibition shall so ; but if the question be modus or no modus,
a prohibition shall go ; and so is the law wherever the matter
which you suggest for a prohibition is foreign to the libel, you
must plead it below before you can have a prohibition, otherwise
where the cause of prohibition appears on the face of the libel.**
In Dutins v. Robson, 1 H. Bl. 100, the libel stated an imme-
morial custom for the rector to receive a composition for the
tithe of milk. But as the defendant had not in his plea denied
the custom they denied the prohibition, andvid. Cro* EUz. 88;
Cro. Jac. 269.

Bishop Gibson, says. Cod. 1073, " The plain meaning of the
rule, that the cognisance of the accessory follows the jurisdiction
of the principal, should seem to be, that the temporal matter,
by being accessory to a spiritual, doth in such case derive from
the principal a spiritual nature and capacity, and therefore be-
comes cognisable in the spiritual court, and by conseauence, by
the rules of that court. And in this latitude was the maxim
understood for many years, as may appear by what hath been
said in the last title concerning the refusal of one witness for
proof of payments, releases, and the like circumstances of a tem-
poral nature, when they are incidental to spiritual matters. And
whereas, it is said, in this and the Uke cases, that the spiritual
court may proceed to try such incidental matters, if they will

^roDiMtoiL 731

admit the pleas ; this is, in effect to say, that they shall not try P^« drftcm
them ; since if they do try them at all, it must be by their own **'"'*'^"*
rules, and by those rules, the pleas are known beforehand not
to be admissible. For which reason it is not to be interpreted
any respect to the jurisdiction of the spiritual court, that before
prohibition is granted, such pleas must be ofiered in that court,
and refused there ; nor would Twisden, in the case of Parker
and Williams, 1 Sid, 100, allow it a good cause to deny pro-
hibition, that the plea had not been offered in the spiritual
court ; but said plainly, (as he well might,) that it was a vain
thing to plead matters there, which they could not try."

But where the claim in the spiritual court appears on the &ce Prescrip-

~ " tion ir

libel.

of the libel to be founded on a prescription or custom, and from ^^^ ^^

the proceedings in that court it further appears that the party
promoting the suit is going on to the proof of such prescription
or custom, the party libelled against is not bound to incur the
delay and expense of putting in his personal answer or plea, but
may, as soon as it appears that the spiritual court is proceeding
towards the trial of the prescription, come at once to the
court of common law and have a writ of prohibition. If the
prescription or custom be admitted, it is obvious that there is no
ground for prohibition ; but if before answer or plea it be made
to appear to the superior court that the parties are at issue on
a prescription, and that the court is proceeding to try it, a pro-
hibition will issue at once. Byerley v. Windus, 5 B. ^ C 1.

Nor, where the modus or prescription is set up by the de- 1° personal
fendant in the spiritual court, is it necessary for him to plead it, *^^^^^*
it is sufficient if it appear by his personal answer in the spiritual
court, even although his suggestion for prohibition has not been
verified by affidavit. French v. Trasker^ 10 JSaW, 348.

Where a rule for prohibition is granted, by reason that the
spiritual court is proceeding to try an issue which is not triable
by their law, the rule is not absolute for a prohibition, but only
to declare in prohibition, so that the fact may be brought to
issue in the temporal court ; if the finding be for the plaintiff in
prohibition, then the judgment is, '^ quod siei prohibitio" when
for the defendant, then the judgment is, '' quod eat consul^
taiior Het. 133 ; Hob. 24^7 ; I T. R. 556.

Where it appears to be a bad custom, and one which cannot Custom
be supported in law, then it would seem that no prohibition ^^^•
ought to be granted, for as the only ground of prohibiting the
inferior court is, that by the principles and rules by which it
acts, it is incompetent to try such matters which are only triable
by the rules of the common law, then if a trial be rendered
actually unnecessary by the admission of the fact, or virtually so
by its appearing that if the modus, prescription, or custom
were established in fact, it could not be sustained in law, to

732 9ri)l)(i)tttom

Pro drf^etu grant a prohibition would be unavailing. Thus in Boaikby
IHLIJ— v. Bailey^ Hob. 69, the surmise for a prohibition was, that
Custom Sir B. W. and those whose estate he hath in the same, had
^^^* used, time out of mind, to have a peculiar pew in the body of

the church ; the court held tiiis to be an insufficient prescrip-
tion and denied a prohibition ; but they said, if it had been pre-
scribed that Sir B. W. had used, time out of mind, at their
only costs to maintain that pew, and had, therefore, the sole use
of it, the prescription might have stood and been a warrant for a
prohibition (a), vid, also Dawson v. Fowle ; Roberts v. Wil-
Hams; \2 East, S3 ; Hardr. 378; Anon. Fentr. ^74; S Keble,
606, 609 ; ante 173 ; sed. vid. 5B.^ C.l.

By the following case it seems to have been decided, that if
the spiritual court find against the custom, they shall not be pro-
hibited, because if they have found against the custom, A/ortiori^
a jury would. Churchwardens libelled against the rector, thai
there hath been time out of mind, and still is, a chapel of ease
within the parish ; and that the rector of the parish, time out of
mind, hath repaired and ought to repair the chancel of the said
chapel ; and tnat the chancel being out of repair, the defendant,
being rector, hath not repaired it. The rector denied the cus-
tom in the spiritual court, and a decree was made for the rector,
that there was no such custom, and costs were taxed there for
the rector. The churchwardens moved for a prohibition, and
it was argued for the prohibition, that it ought to be granted,
because it appears that the libel is upon custom, which the
defendant hath denied ; and it may be, the question was in the
spiritual court, custom or not, which is not triable there, but at
the common law ; and then it appearing upon the libel, that
the court hath no jurisdiction, a prohibition may be granted
after sentence. But all the court held the contrary. For, by
Holt, C. J., the reason for which the spiritual court ought not
to try custom is, because they have different notions of customs,
as to the time which creates them, from those which the com-
mon law hath ; for in some cases the usage of ten years, in
some twenty, in some thirty years, make a custom in the spi-

(a) Where a person is sued in the spiritual court for a seat in a
church, if he would obtain a prohibition and oust the ordinary of the
trial, he must shew such a legal title as cannot be tried in the ecclesias-
tical court, which can only be by prescription, and prescription can in
such case be no otherwise proved than by showing repairs ; therefore, in
a declaration in prohibition, the plaintiff ought regularly to set out a
custom of repairing ; but if he do not, and if the defendant do not de-
mur, but go to triaJ, it will be aided by the verdict ; for the plaintiiT
ought not to have a verdict unless he prove a custom to repair. N» P.
215 ; Bac. Abrid. Prohib.L. ; Com. Rep. 368 ; ante 176, 193.

$ro()if»t(om 733

ritaal court ; whereas by the common law it must be from time ^^ defieta
immemorial. And, therefore, since there is so much difference ^"^*'^"-
between the laws, the common law will not permit that court to
adjudge upon customs, by which in many cases the inheritances
of persons may be bound. But in this case that reason fails ;
for the spiritual court is so far from adjudging that there is
any such custom which the common law allows, that they have
adjudged that there hath not been any custom allowed by their
law, which allows a less time than the common law to make a
custom. And the plaintifFs having grounded their libel upon a
custom, which was well grounded if the custom had not been
denied, (for libels there may be upon customs), but the custom
being denied and found no custom, it is not reason to prohibit
the court in executing their sentence against the plaintiffs ; for
the design of this motion for a prohibition is only to excuse the
plaintiffs from costs. And there is no reason but that they
ought to pay them ; since it appears that they have vexed the
deiendant without cause. Churchwardens of Market Bosworih
V. Rector of Market Bosworth^ 1 Lord Raym* 435; and vid.
Cowp. ^23 ; and 7 Ad. ^ EU. 880.

Prohibition pro defeclu triationis does not necessarily put an
end to the suit in the spiritual court ; if the claim in the libel
be founded on a custom or prescription, which is denied, and
upon trial of such custom or prescription the jury by their
verdict disaffirm it, it is obvious that the claim so founded falls
to the ground ; so, if a custom or prescription, when pleaded by
the defendant, covers the whole of the case of the plaintiff, and
it be found for the defendant, the plaintiff's suit is at an end ;
but if the custom or prescription be found for the plaintiff when
his suit is founded on it, or against the defendant when it is the
ground of his defence, or if found for him, it does not extend
to the whole case of the adversary, then consultation issues as a
matter of course, and upon a return of the verdict to the
spiritual court, that court proceeds with the trial of the case.
Banister v. Hopton, 10 Mod. \2\ Goddin v. Wainwright^
Hardw. 510 ; Broum v. Palfry, 2 Lev. 103; and in such cases,
if prohibition be granted generally, the rule it seems, according
to the modern practice, ought to be amended, by limiting the
prohibition to the trial of the custom. 4fHag. 158.

When a custom or prescription is found by the jury it is
decisive, and it is not open to the ecclesiastical court to con-
sider whether or no the custom, so found, is a valid custom.
4 Hag. 163.

It was stated above, that with the exceptions there adverted Temponl
to, and which have been since considered, it is a general rule, '^^^•^•'*^
that, if the spiritual court have jurisdiction over the principal
matter of the suit, they have the jurisdiction to try all matters

734 ^rotrilitttoiu

Trial of incident, collateral, and accessary to such suit; 3 BuUt. S15;

Snu ^'•^- «^^- ^*' ^^; ^^^' *88; Cro. EUz. 64«, 659; Yeh.
172 ; FriJem. 290 ; 2 B«&<. 227 ; Keilw. 1 10; 2 i^r. 64 ; which

J»ower indeed seems necessarily incident to every jurisdiction,
or otherwise the party might be remediless ; his proceedings
might be stayed in the spiritual court, because they were in-
competent to try an incident of temporal cognisance; and in
the temporal court, because that court was incompetent to
entertain the suit at all, the spiritual court having exclusive
jurisdiction over the matter of it. ArUCy 1917 ^ n. a. ; 730.

In Parker v. Kemp, 2 BuUtr. 2911, the general principle is
thus laid down by Lord Coke, when the original begins in
court christian, although afterwards a matter happens in issne,
which is triable by our law, yet this shall be tried there by their
law, as if one do sue there for a horse to him devised, the de-
fendant there pleads, that the devisor did give this horse to him
in his lifetime, this is triable by our law, yet the same shall be
tried there. In the same manner it is where the original doth
begin here, the same shall be tried here by our law, as in a
miare impedit, able or not able; if it were otherwise they
snould try nothing ; but if they will draw the matter ad alium
examen, as upon proof of a deed, they judge otherwise than
we do. If they will judge in common law matters otherwise
than we do, then we will prohibit them ; vid, also to the same
effect, per Lord HoU, 2 Salk. 547 ; Show. 158, 172 ; and vid.
also 13 Rep. 39 ; Cliflon v. Oates, 2 Bulstr. 283, 316. The
maxim of law is, '' Quia non est consonans rationi quod cognitio
accessarii in curia christianatis impediatur ubi cognitio causae
principalis ad forum ecclesiasticum noscitur pertinere." 13
Rep. 39 ; 2 Inst. 493 ; ante, 727, note (a).

Thus, if goods are devised to B., as son and heir of A.
and B. sue the executors in the spiritual court for the goods,
and the executors say that B. is not the son and heir of A«, and
therefore they were at issue, it was held that the spiritual court
shall have jurisdiction, because it is dependent on the first
matter. Kielw. 110; pL 23. It will be observed, that in this
case no question of the inheritance is brought in issue; ''heir**
here is only designatio persoM^, and the decision of the spi-
ritual court could in no way affect any claim which the heir
might have to matters not within the jurisdiction of the spiritual
court. So in a suit for a legacy in the spiritual court where
the parties are at issue on a point of covin, as touching matter
there alleged, it was held that they had power to determine
the covin which was an accessary to the principal over which
that court had cognisance. 3 Bulst. 314. So where a release
by a testator was pleaded in bar to a suit for a legacy due to
him, and the plaintiff sought to avoid it by shewing that the

fitohibitUitu 735

testator was an idiot, prohibition was refused, because they had Trial of
jurisdiction of the principal matter. Hob. 188. SenSf.

In all the above cases, and indeed in all others, where the -

subject matter is wholly of spiritual cognisance, if the spiritual
court proceeds irregularly the remedy is by appeal. Freem.
^90; Hawk. PI. C. Book I, c. 2, s. 9.

But if in the handling matters of temporal jurisdiction, over
which the spiritual court thus incidentally obtains cognisance,
they insist upon a mode of proof different from the practice of
courts of law in that respect ; or reject a legal defence ; or put a
construction upon an act of parliament, which a court of law
repudiates, then a prohibition will be granted ; such prohibition
however would not put an end to the cause, but merely, it
seems, stay the judge from proceeding till he submitted to
allow the proof admitted by the common law. Yelv. 92. It is
said by Blackstone, that " Where the question is not properly
" a spiritual question, but only allowed to be decided in those
courts, because accessary or incident to some question clearly
within their jurisdiction; it ought, where the two laws differ,
to be decided, not according to the spiritual, but the temporal
** law; else the same question might be decided different ways,
'* according to the court in which the suit is depending, an im-
** propriety which no wise government can or ought to endure.*'
BLCom.3,\l2.

In Breedon v. Gritf, Lord Raym.22lf HoUy C. J., said, *^ No
'' prohibition ought to go to the spiritual court for admitting
" evidence, which the common law does not allow ; but as to
*^ the course of granting prohibitions for not allowing evidence,
which would be good at common law, the difference is thus : —
When the ecclesiastical courts are possessed of a cause, which
is merely of spiritual cognisance, the courts of common law
'* allow them to pursue their own method in the determination
** of it, but when in such cause collateral matter arises, which is
*^ not of their cognisance properly, then the courts of common
** law enforce them to admit such evidence as the common law
" would allow.' Therefore, in the proof of the revocation of a
'' nuncupative will, if more than one witness be required, the
court of king's bench does not intermeddle. But if in a suit
£9r a legacy payment or a release be pleaded, and they do not
admit proof by one witness, the court of king's bench will
grant a prohibition.*' Ante 730.
In Shatter v. Friend, Salk. 547, it was held, however, that if
the revocation of a will, which is an incident of temporal cogni-
sance be pleaded, it must be tried according to the common
law. But, before the late statute, it seems agreed on all hands,
if they refused a single witness to prove a will, that being a
matter spiritual, appertaining to their court, they cannot be pro-

St
tt

§i

ti
tt

736 $ri)lt)(b(t(om

Trial of hibited. Noy, 12 ; Vin. Abrid. Prohib. Q. 6, 7, 10. So, in an
incldeoto. anonymous case in Freeman s Reports, 290, it was held by three

judges, that where a matter is of ecclesiastical cognisance, if a

matter determinable at common law intervene, they shall try it,
except in the case of a modus, which by law they cannot try ; as
if a legacy be sued, and a release pleaded they shall try this re*
lease, but with this difference that when they try an incident
matter determinable at common law, by reasonof their jurisdic-
tion in the principal matter, they shall be tied up by the rules of
the common law. Therefore, in a case of a release pleaded to a
legacy, and there be but one witness, or else the witness is dead,
and they will not admit of proving of hands, nor allow one witness
for proof, they shall be. prohibited ; for although those matters
come under their cognisance, as incidents, yet being matters
originally of temporal cognisance they shall go according to the
rules of the common law; and vid» Cowp. 424; Hob. 247;
Hetl. 87.
Proof by Thus, in a suit for substraction of tithes in the spiritual court,

one witness, if the defendant pleads that he set them out, and offer to prove
his plea by one witness, in such a case, though they admit the
plea, yet refuse such proof, their practice requiring two wit-
nesses to every fact, a prohibition will go ; for the setting out
tithes is of temporal cognisance, and proof by one witness there-
fore is sufficient. 2 Salt. 547. So, if payment of tithes be pleaded,
and the proof by one witness rejected. 1 RoU* Rep. 12; 2 Roll*
Rep. 42; Hetley, 87 ; Cro. EUs. 666; Cowp. 4«4.

But ill all these cases, it must actually appear that the
spiritual court has refused to admit the proof proffered. In
Roberts's case, 12 Rep. 65; Cro. Jac. 269, prohibition had
issued, on a surmise that the defendant in the spiritual court
had but one witness to prove a demise; but a consultation
was granted, for if such a surmise were allowed them in
every case, such a surmise might be made for mere delay, for
he who was plaintiff" in the spiritual court, cannot deny that
where it is surmised that he hath one witness, that he hath two
or more, for then he affirms matter against himself. So in
Bagnall v. Stokes, Cro, Eliz, 88, it was surmised that the
defendant had sued him, being an executor in the spiritual court
for a legacy, whereas he the plaintiff* had a release, but had
only one witness to prove it. A consultation was granted ; but
if he had surmised that he had pleaded this release in that
court, and produced his witness, and that they would not allow
it because it had not two witnesses, this had been a good sur-
mise, sed. vid. ante 731. In the third resolution in Shatter v.
Friend, 2 Salk. 547, it was said, " a bare suggestion that the
defendant has but one witness, and that they take exceptions to
his credit and reputation is no cause for prohibition ; for if

^ro^fbttion. 737

tliey admit the proof of one witness, whether he be a credible Trial of
witness or not, they shall judge, and the party has no remedy ^™?^^
but by appeal, and vid. Hob. 1 88. L

Indeed, the rule is general, that although where matters of
temporal cognisance arise in the pro|p*e88 of a suit, the spiritual
court must try them by the rules of the temporal courts, and
not by their own rules* Yet in matters of ecclesiastical cog- Judges of
nisance they are judges of their own law and practice ; and if a ^^ ^^^
party think himself aggrieved he may appeal to a higher spiritual p^ctice.

court, but cannot have a writ of prohibition. Hawk. PL C. —

6k. 1, c. 2,8.9; Freem. 290.

Thus, a woman divorced may sue as a feme sole for defamation.
1 RoU. Rep. 426. And by the ecclesiastical practice generally,
it is said, that a married woman may sue alone in cases where
she is executrix, or administratrix, or legatee, or legatory, or
defaming, or defamed. 10 Mod* 64; Vin. Abrid. Prohib. P.
1,3. So it is said also, that if a custom be insisted on as an
ancient custom of the church of England, and is certified as
such by the ecclesiastical authorities, a prohibition will be denied
to the party opposing the custom. Palm. 296. But it is appre-
hended that no ecclesiastical custom or canon would be allowed,
if the temporal courts considered it as unreasonable in itself, or
inconsistent with the temporal law. Noy. 139; Vent. 267. So
where one libelled for tithes, and died, and his executors re-
vived the suit, Dodderige, J., said, " the suit being lawfully
'* commenced shall continue, for by the civil law the death of
** plaintiff or defendant is not an abatement of the libel." Cro»
Jac. 483 ; Vent. 335 ; 10 Mod. 261 , 264.

So if a man libel another in the ecclesiastical court, for saying
certain words, (naming them), or to the like effect, though
such a loose mode of allegation might be bad in a declaration
at law, yet being held sufiicient in the spiritual court, no pro-
hibition would be granted. Freem. 285, 295; 2 Lev. 164;
sed vid. Hardr. 364. So, as has been stated above, in the case
of a nuncupative will, which is merely spiritual, and is null by
that law, unless proved by two witnesses at least, no prohibition
shall go, though they disallow the will, because proved by one
witness only ; but if the revocation of such a will be pleaded and
refused, because proved by one witness only, prohibition shall
go. Carth. 143. And in a very late case, where a writ of

Erohibition was applied for, on the ground that the court below
ad improperly, as contended, decreed an absolute appearance;
the court said, '' whether they are right in so decreeing or not
is a question of practice, not of jurisdiction. The temporal
courts cannot take notice of the practice of the ecclesiastical
** courts, or entertain a question, whether in any particular case
" the practice has been regular. The only instance in which

BBB

€€

> ««

uJU'^* <^^ << the temporal courts can interfere by way ot prohibiting any
'^" '^^^ ** particular proceeding in an ecclesiastic^ suit, are diose in
'* which something is done contrary to the general law of the

land, or manifestly out of the jurisdiction of the court*" Per
Cur. Exparte Smyth, S Ad. ^ EL 724; and 0id. the same case
in the court 6f exchequer, where the prohibitioB waarefiiaed on
the same grounds. Tyrwh. % Crr, 322.

So a suggestion that the spiritual court decided on the credi*
bility of a witness is no ground for prohibition, for they are the
proper judges of the credit of a witness. Corf A; 148 ; 2 SoUl 547.

Where a man was sued in the high coiamission coort aHhutim
titan partis, for incest, and there it appeared that there-was a (act
committed, and a fame, and one witness that the defisndaat was
guilty ; yet because there were not two witnesses, he waa put to
his purgation, because there a man cannot be coDdemned by
one witness, and he* purged himself accordingly; and yet,
they gave costs to the party who proaecuted the suit aooording
to their usage in such cases ; no prohibition was granted^ fijr
though he escaped the censure of their court by the atrictnesB
of their law for the want of a second witness, yet for the pre-
sumption he was guilty, th^y might weU gire costs aixording
to their law. Ftn. Abrid. Prohib. P. 4. So where, baion and
feme were sued for polygamy, and it appeared that the fisne
was married before to J. S., within die age of eonseol, and
after disagreed at the age of consent, and married the defendant;
yet if they tax costs to the plaintiff* no prohibidon shall be
granted, inasmuch as they have jurisdiction of the cause, and it
IS their usage to tax costs where the plaintiff had eautam Sii-
gandi. Fin. Abrid. Prohib. P. 6, iS. 1 ; Freem. 1129; 4 Mod.
S54; Cro. Jae. 169; ante, 856, 860. Broumlow, howerer,
in his report of this case, says that prohibidon was granted,
for that It was injustice to allow costs to one that had rexed
without a cause. 2 Brouml. 86. But if in airr case, the eccle-
siastical court proceeds in a manner actually forbidden by law,
though it be within their jurisdiction, prohibitioni lies, aa where
that court proceeded to compel answers in a cnnhial case;
1 Sid. 874; 1 Ad. 110; this is also an appealable grievance.
1 Ad.UO; ante, 657.

So if a married woman be sued in the spiritual coort for
scolding in the church-yard, and condemned, and <:osts taxed,
the baron not being party to anything thereof, yet beeause it is
the custom of that court, no prohibition shall be granted* Fim.
Abrid. Prohib. P. 3, n. S4f. If a married woman speak scan-
dalous words of B., another married woman, and afkerwarda idie
husband of B. releases this to the husband of A., and B« sues
A. in court christian for this defamation, to restore her to her
credit, and then the release of the husband of B* is pleaded,
notwithstanding which sentence is given for B., and costs taxed.

proj^ttfottt 739

and thereupon ah appeal; no prohibition lies as to the matter of ^^^^^^
the suit; because they have jurisdiction of the cause, and also of ]g^^ ^q^
the manner of the proceeding ; but a prohibition lies for the <;o6t8. practice.
fin. Abrid. Pro/lib. Q. 12, In the report of the- same case,
Cro, Car. 222y it is said, the court conceived the release of the
baron cannot be a bar to this suit, quoad reformationem morum,
for the feme being scandalised, may sue in the spiritual court to
be repaired therein, and the court may sentence the defendant
to a submission or corporal satisfaction, which the baron cannot
release ; but for the releaseof the costs, the baron may well do it*
So where it was suggested that an execut<Nr was sued in the
sjHricnal court for double damages, which suit doth not lie against
an executor, £e/yN^, J*, said, if by common law an executor
ahall not be charged, if the spiritual court will sue him, prohibi-
tion lies, because it exposes him to a devastavit / but the reason
afKel^g was disallowed; and a prohibition denied. Raym. 95.

There is another class of cases in whipb» although • the Refoung
spiritual or other in&rior court has original jurisdiction over j.^ ^'
the subject matter, yet if they refuse to' receive a plea con- ^^^'
taining temporal matter, which would bci a good defence at law,
prohiMtton lies. Vin, Abrid.PnMb. F» ; Degge, SI 4w Thus,
if a man be libelled in eourt christian for words spoken by him
as a winess in a cause, and that court were tx> refuse such a
drfence, prohi)l)ition would be granted. Anfield v. Tever^
hUl, 2Bttlstr. S64<; 1 Rott. Rep. 61 ;2Inst. 408; Cro. Jac. 535;
ib. 6fS5. For, as was said by Cokef C« J., in that case, a man
shall not be punished by way of action on the case, droth^-
wise, for prosecuting, a mtitter against another in a legal way
and course of justice. 1 jKo0. Rep* 61 ; 2 Roll. Kep^ 8^ ;
F. N. B. 4fi, (F); Vin. Abrid. tit. Prohibition Q.I; R. 1,3,
6, 6^ 7. Indeed, the 1 Edw. 3, stat. S, c. 11, which is entitled
^< No suit shall be made in the spiritual court against indictors ;*'
enacts, if persons indicted before sheriffs in their touns sued such
, persons in the spiritual conrt for defamation, the party grieved
sbonld have prohibition ; that statute indeed provides for indictors
. in the toun only, but it is said by Lord Coie^ 12 Rep^ 43»
to be only in aflSrmance of the common law, for he adds, ''as
** well all indictors in other courts, and all witnesses, and all
'* others, who have affairs in the temporal courts, shall not be
** su^d or molested in court christian." Freem. 283.

Where a man was prosecuted ear officio for not frequenting
his parish church, and pleaded that this was not his parish, but
that he had nsed to firequent another parish church, and the spi-
ritual court would not receive his plea, prohibition was granted,
on the ground that the ecclesiastical courts have no power to
' intermeddle with the precincts of parishes, nor are they to
judge what shall be said to be a man's parish church. 1 BuUtr.
B B b2

740 ^roftftftfoiu

S^'t dif ^^^- ^" ^'^** ^- ^^^*' ^''^- •'^^^ 435, 625 ; 2 iioflL iZep. 82,
fence. ^ Cook had sued Webb in the spiritual court for saying he bad
had a bastard : Webb alleged that Cook was adjudged father
of the child by two justices, according to the statute 18 Elix.f
whereupon he spoke the words; a prohibition was granted,
because that court had accepted his confession, but would not
allow his justification. But according to the report in Rolle,
Houghton^ J., says, '' the prohibition was granted, because the
*' spiritual court refused a plea of his conviction ;" adding, *' that
" if he had justified merely, and offered to prove his justifica-
** tion, and the court had refused his plea, his remedy would
"^ have been by appeal." So if a man sue another in the eccle-
siastical court for calling him a bastard, and the defendant
there pleads that he was born after a contract between hb
father and mother, but before any marriage, and such plea is
there refused, because they, by the ecclesiastical law, hold such
legitimate, which by the common law is a bastard, prohibition
will be granted, Vin. Abrid. Prohib. Q, 20.

So if they refuse to allow a plea, of a lease of his tithes to the
parishioners bv the parson, in a suit for tithes against the
parishioners, rin. Abrid. Prohib. Q. 23 ; or refuse a plea of a
modus, Cro^ Elix. 257. So, if an executor being sued for a legacy,
plead that there is an obligation forfeited, which ought first
to be satisfied, and this plea be disallowed. Vin. Abrid. Prohib.
Q. 25 ; or if an executor plead that he has fully administered
all that he had, but that there are some desperate debt$ which
he offered to the plaintiff*, and to make letter of attorney
to him to sue in the name of the executor, and the court chris-
tian refused such plea, prohibition was granted. Fin. Abrid.
Prohib. Q. 26.

Or, if in a suit for tithes, defendant in the spiritual court
pleaded that the tithes belonged to another, who was rector, and
not to the plaintiff, and the plea was refused, prohibition was

f ranted. Bac. Abrid. Prohib. L. ,• Cro. Eliz. 228 ; Fentr. 248.
tut if tithes be sued for in the spiritual court by a parson, and
the defendant plead a modus to the vicar, as this modus must
be determined between parson and vicar in the spiritual court,
and cannot come in issue between either, and the parishioner,
prohibition it seems would not lie. 2 Bulsir. 167 ; Cro. Eliz.
136; Ccue 5, 251, 317 ; vid. contri, Cro. Eliz. 136; Case*;
Siderf. 332 ; Fin. Abrid. Prohib. A. a. 6, 7, 8. Where a pa-
rishioner had paid \2d. and no more yearly, for the tithes of a
close for sixty years^ and the tithes were sued for in kind, and
the court refused a plea of this payment, and gave sentence for
the lessee ; upon suggestion that this plea was refused, prohibi-
tion was denied, notwithstanding this rent of \2d. issued out of
land, so as an assise lay thereof or that it might be distrained
for. Fin. Abrid. Prohib. Q. 31 ; Cro. Eliz. 228.

• IVhere B. sued for tithes^ and the parishioners pleaded that Refosmg
there was an act of parliament that settled those tithes upon jr^^ ®"
W. and the spiritual court refused the plea, prohibition was '
granted. Biron's case, Freem. 67, differently reported, 2 Let,
64. In the report in Freeman^ the case is stated as where
a parson sued for tithes, and the parishioners pleaded that
he had not read the articles within two months, and the spi-
ritual court having refused to allow the plea, prohibition was
granted, and vid. Cro. Eliz. 8.

But in a suit for tithe apples, the refusal of a plea of an
award to pay so much for tithe was considered as not being
sufficient ground for prohibition. 2 Bulstr. 227. It seems
doubtful upon what ground the prohibition was refused in this
case. 1 Roll. Rep. \2\ Vin. Abrid. Prohib. Q. 24; n. 10.

In order to obtain a prohibition for refusing a legal defence it
would seem that the matter of the plea must be of temporal cog-
nisance, for if it contain spiritual matter, then as judges of their
own law and practice they are not to be prohibited for re-
fusing it. In the case de modo decimandi and of prohibitions de-
bated, 13 Rep. 44, it was resolved, that if the spiritual court
ought to have the trial de modo decimandi, then the refusal of
such plea should give cause for appeal and not of prohibition ; as
if an excommunication, divorce, heresy, simony, &c. be pleaded
there and the plea refused, the same gives no cause of pro-
hibition ; for the denial of the plea is cause for a spiritual appeal,
and no prohibition lieth ; and it is added that from the beginning
of the law no issue was ever taken on the refusal of the plea in
causdmodi decimandi, nor any consultation ever granted, because
they did not refuse, but allowed the plea, and vid. 1 Roll. Rep. 1 26.
So where an executor pleaded no assets to discharge the debts of
the testator, and the spiritual court would not allow the allega-
tion ; yet the opinion of the court was, that no prohibition
should be granted, for the legacy is a thing merely determinable
in the spiritual court, and this is in the discretion of that court.
Win. 78 ; Vin. Abrid. Prohib. Q. 26. But where it was pleaded
by an executrix that a part of the goods of the testator included
in her inventory given in the spiritual court had been given
away, and disposed of by him in his lifetime, and such plea
was rejected, prohibition was granted, because as to such par
ticular goods the plea was a sufficient answer in law. James v.
James, 2Bulstr. 315.

If the court see that the plea tendered to the spiritual court,
though containing matter of law, be bad on the face of it, pro-
hibition will be refused ; as where a prohibition was prayed for,
that the court below had refused a plea of a modus ; but the
plea stated an uncertain modus there being an option to
take the tithe either in kind or in money. 12 East, 33. So

742 9rolbfl>tt<ott

/^^i^Ta"^ where it appeared that a modus was void, as being an uncertain
(eucti« ^ recompence tor a certain duty, prohibition was refused. S Lord

Ravm. 1162.

Krroiieout "OW far the spiritual or other inferior courts are to be pro-
cuiutruc. hibited for the misconstruction of a statute incidentally coining
Uoii of iita* before them in the trial of a case within their jurisdiction, seems
" ^* to have been the subject of much discussion and doubt.

In some of the early cases, the doctrine is broadly laid down
that such a misconstruction is a good ground for prohibidoni as
in IVheeler^B casCf GodoL 218, which was a question upon a
statute within the jurisdiction of the ecclesiastical court, and a
prohibition was granted, on the ground that '*it was for the judges
to say whether a holiday created by act of parliament were
broken or not, and vid fin. Abrid. Prohib. Q. 27, 28; and in
Matinghjf v. Martin, Jo. 259, it was held, that in licences to
marry, granted by the ordinary, no prohibition lies, but the
remedy is by appeal ; but it if comes in question in the ecclesfastl-
cal court, whether the words of the act of 25 Jffen. 8, give suffi-
cient power to the archbishop to grant licenses, there, if the
ecclesiastical court judge against the power, prohibition Ues, but
not otherwise ; and the case of Juxon y. Lord Byron, 2 Lev. 61,
is to the same effect ; so also in the answers to all the judses to
the complaint exhibited by archbishop Bancroft in the mgn of
JameSf the same point was laid down with great distinctness :
the first objection was, that the judges, under colour of autho-
rity, to interpret statutes in favour of their prohibitions, made
causes ecclesiastical to be of temporal cognisance, but the
answer was, *' As for the judges* expounding of statutes that con-
cern the ecclesiastical government or proceedings, it belongeth
to the temporal judges." 2 Inst. 614; 13 Rep. 42; I H. Bl
164. But in the case of Sir Thomas Luctf v. Dr. Lucff Vin*
Abrid. Prohib. U. 23, which was a suit ror tithes asamst B.|
who pleaded a lease for years by the parson ; and the parson
replied that he was non-resident, and absent fi-oto his benefice
eighty days in the year, and so the lease void. It. was said no
prohibition should be granted, though the plea was grounded on
13 £/ur., and it was considered that the spiritual judges should
have the exposition of the statute, for inasmuch as they haye
jurisdiction of the original cause, they Lave power to try this,
which incidently arises thereupon. Which decision seems cor-
rect, for they are not denied the exposition, but if they expound
wrongly, they may be prohibited.

• In the case of Home v. Lord Camden, 1 H. BL 476, two
questions arose, 1st, whetherthe commissioners of prize appeals,
had rightly construed the prize act 21 Geo. S, c. 16, and 2ndly,
if they had, whether the misconstruction of the act, was a suffi-
cient ground for a prohibition. This second question was rsifed

4t
€€
€€

lo terms^ upon the face of the pleadingsj hut did not .occupy ^^"JJ^"*
much of the argument, and is hardly noticed hy Loi'd Xotfgr. ^J^^fg^.
borough^ \xi giving the judgment of the court of common pleas ; tates^
but» as the prohibition was granted, the judgment necessarily
assumed that the misconstruction of the pri^ act was a sufficient
ground for a prohibition.

That judgpient was removed by writ of error, first to the king's
bench, and eventually to the house of lords* In the report of
the c^se in the king.*s bench, 4 T. R. 382, Lord Kenjfon s^d,
** The determination of this case does not necessarily involve in
it those questions which have been so much pressed, in what
cases in general a prohibition should be granted to inferior
courts, when they are acting in opposition to an act of parlia-
ment, or when they proceed in a manner different from the
'f temporal courts." And the learned lord gave his judgment
to reverse the decision of the court of common pleas, on the
ground that the prize court had rightly construed the act of
parliament. And Ashursif J., forbore to express any distinct
opiuion upon the general question, adopting the course taken by
l!iord Kenyan. Buller, J., who seems to have, differed from
these two judges, in the construction of tbe.pria;e act, laid down
as ^ general proposition, that as, the prize court had jurisdiction
over the subject, a mistake in their judgment was no ground for
prohibition, but only matter of appeaL Spefdcipg of Wheeler*9
case, GrQdbqUy ^18, cited above, ne smd, ** If that case be cited
as establishiqg this point, that the ecclesiastical courts have
np jurisdiction to qpnstrue the a^qt of parliament, it cannot be
** supported," and at the conclusion of his judgment, he added,
*' the ground, therefore, on which the court of common pleas pro-
*' ceecbd, was this, they tbpught that the court of appeals had
** misconstrued the act of parliament, on which they granted
'^ prohibition. But I am oiopinion that a court of common law
** cannot now examine that question, and therefore that the judff*
'' ment given in the court of common pleas, should be reversed.'*
In the report of the sapae case in the house of lords, 2 H. BL
537, Eyre, C. J., in delivering the opinion of the judges, states
the proposi^n of law, and by his observations on it, it would
appear that his own opinion did not accord with that of
Buller, J., but adds, thi^t Jt was not necessary to require the
opinion of the judaes on that point, because, as they all thought
that in the particular case, the pri^e court bad not contravened
the prize acts, either directly or indirectly, it was not necessary
to express any opinion on the general question, and therefore,
upon that ground only, the decision of the king's bench was
affirmed, reversing the judgment of the court of common
pleas.
Kot long after this the case oSOould v. Gapper, arose in the

744

^rotifbtttom

KrroDMua
conatruc-
tion of bU*
tntflt.

Quotque,

king*8 bench, and is reported, S East, 472, after arga*
ment the court directed the plaintiff to declare in prohibition,
that the rule might be laid down with more precision and cer-
tainty in what cases the court will interfere by prohibition after
sentence, to correct the misconstruction of an act of parliament,
supposing it to have been misconstrued. The plaindff accord-
ingly declared in prohibition, and the defendant demurred, and
the report of the very elaborate arguments of counsel and judg-
ment of the court is reported in 5 East, 345. Lord EUenborougif
in delivering the judgment of the court, went most minutely
through all the cases, saying, that if the question were then to be
considered for the first time, the court might incline to the
opinion of Mr. J. Butter, in Home v. Lord Camden, 4 T. R. 387,
above cited, that the misconstruction of an act of parliament by
an inferior court, in the decision of a case within their jurisdic-
tion, was a matter of appeal rather than of prohibition, yet that
the current of authorities from the earliest times was decisive to
shew that the courts of Westminster hall interfered by prohibi-
tion where statutes have been expounded, otherwise than the
courts of common law would expound them. It does not appear
that this case was taken to a higher tribunal, or that the doctrine
established by it has ever been questioned since, indeed, it
seems to be adopted by the ecclesiastical court themselves.
Burgoyneyf.Free, 2 Addams, ^\S,per Sir J. NicholL It will be
observed, also, that both in the cases ot Home v. Lord Camden
and Gapper v. Gould, the prohibition was applied for aAer
sentence. In Blackett v. BUzard, 9 B. ^ C. 851, where the
ecclesiastical judge admitted a libel, thereby deciding that the
plaintiff in the eccfesiastical court had a right to sue the defendant
for a church rate made by a vestry, acting under the powers of
the 58 Geo. S, c. 45, and 59 Geo. 3, c. 30, and the court of king's
bench thought the rate bad, it not having been made by a
majority of the vestry, and that the ecclesiastical judge had,
therefore, put an erroneous construction on the act of parlianient,
prohibition was granted in that stage of the cause. But where
it was suggested only, that in the course of the proceedings, the
ecclesiastical judge would have to decide on a statute, prohibi-
tion was refused, on the ground that it was not to be presumed
that the statute would be wrongly construed, but if eventually
a wrong construction should be put, prohibition might then go.
HaU v.Maule, 7 Add. % EU. 726.

Prohibitions are either absolute and general; or temporary, as
a- prohibition quousque, and limited, as a prohibition quoad.

A general prohibition (before the stat. 1 Wm.4f, c.2l,) tied up
the inferior jurisdiction, till a consultation was award^ ; and
now, except when granted for sake of trial, it altogether with-
draws the case from the prohibited jurisdiction ; but a prohi-

Jfitamitiotu 745

bition quousque only restrains the inferior court till they do the Qwiu^e.
thing, the refusal to do which was the ground of prohibition,
which being done, the prohibition quousque ia ip»o faeto dis-
charged ; and, as well before the statute as after, was so
without a writ of consultation* Bae, Abrid, Prohib. F.

Thus, if the spiritual court reiuse a copy of the libel which Refusing of
is required to be delivered to the defendant by S Hen. 6, «. 3, Jl^y of
a prohibition will go to stay proceedings till it is delivered ; and
though it was formerly held that if the proceedings yrere ex officio,
the spiritual court was not bound to give a copy of the articles,
the law is now decided to be otherwise, and in such case, if a
copy be refused, a prohibition quousque will go till it be de-
livered, Bae. Abrid. ib, ; 3 Lord Aaym. 991 ; Salk* 553*
Where the suggestion for the prohibition was, first, for refusing
a copy of the Ubel, and secondly, pro profanaiione etemeierue in
the case of a coroner, for digging up a corpse for a view.
HoU, C. J.J said, *' These matters ought not to be joined, and
** are grounds for prohibitions of different natures, the first is
" for a prohibition quousque, after which they cannot proceed
** till they give a copy of the Ubel, and then to have a prohibition
** on the merits, there must be a fresh suggestion." 6 Mod. 308.

A prohibition which issues for purpose of trial, though in
effect it is only quousque the trial, is yet different from a prohi-
bition quousque, properly so called : as where a party libels for
tithes, and the defendant sets up a modus, ot any other defence
not triable in court christian, the plaintiff in prohibition declares,
and upon the pleadings in prohibition the existence of the modus
is brought in issue, if the jury find against the modus, a con-
sultation issues as a matter of course. 1 T. JR. 556 ; 10 East, 350.

So also, if in trying temporal incidents, they reject a mode of
proof sufficient at common law, they may be prohibited quousque
they submit to a legal mode of trial. Yelv. 92, ante, 735.

In Nicholas Fuller's case, 12 Rep. 44, it was resolved, that Qut>ad,
when any libel in the ecclesiastical court contains many articles,
if any of them do not belong to the cognisance of court christian,
a prohibition may be generally granted, and upon motion made,
consultation may be made as to things which do belong to the
spiritual jurisdiction, for the writ of consultation with a quoad is
frequent and usual, but a prohibition with a quoad is rara avis
in terris. (a) Formerly, however, it seems, that where a will

(a) Notwithstanding what is said by Lord Cokef prohibitions quoad
seem to have been in common use, wherever a suit was mixed with
matter over which the court had not jurisdiction. Com. Dig, Prohib.
F. 17 ; upon an appeal from the commiraioners of excise to the com-
missioners of appeids, the commissioners of appeals offered to proceed

746 }jMbiOiiUusi

Q***"^' was not only of personidty, but of iandbyipoilliibitian used to be
ranted quoad th(s lands. 2RoU. AbridMS, b. IQ; Fin. Abrid.
^rohib. E. a. 3 ; 2 JB«/, 567.

After issuing a consuilation auoad the probibitiQii which was
before genera^ became^ . by toe writ of eon8ultation» liinted
to such objects as were not without the spiritual jurisdiction.
5 Rep. 68. Thus, where, a cIei)gyniaQ wva proceeded against in
the spiritual courts both for reformation of manners and for
deprivation, on the ground of .fotiikiatioii,and theoourt of king's
bench were of opinion th^ the • suit for the purpose of reformation
of manners was brought beyond the time limited by the stat.
27 Geo. 3; c. 44 ; and, therefore, that .the .prohibition should
stand as to proceeding upon the charge of fprnication^ with a
view to reformation or the souFs health; but that there should
be a consuitation mb to proceeding upon that charge for the
purpose of deprivation. Fr.ee v, Burgoym^ 5 B.% C. 400;
% LordRaym. 1507; Hardr.SGi; 2 Mod. 118; Vent. U4, 127.
whenit ^ prohibition may be granted upon «a sum^ition made to the

pi^ fon^ temporal court, tiiat the ecclesiastical couitf has exceeded its ju-
risdiction, or is in direct progre^ tto do^ so.; and this appHcatkm a
party is entitled to make at .any time, jprovided.he has not waived
the.objection. Where the application is.made, <m;tbe ground that
the ecclejiia^tical camrt is proceeding to try mattets* which are
only triable at common law ; a motkm may be made for a pio-

upon the examination of tlie former sentenoe upon the dsposUions
taken on the former hearing ; opon an appiioation Isr a prohibition it
was suggestsd that tibe^^ommbtioaen of iqppeab oauU only piooeed by
examination qn oath aooordiog to the /itatalo, sad themupon a pnrii^-
bitlon was granted quoad the admitting theae depositioos. Brediom y.
Gill, 1 Lord Raym. 222. So w^r^ a party had libellad tw tithes and
agistment to several values, he was prohioited» after senisnoeygsiMMf idl hot
the tithes. Vin, Abrid. Prohih. E, a* 7. So» in the bishop of Sl Daaid^t
case, where the party was libelled for many diings cognisable in the tern*
poral courts, a prohibition quoad these matters issued. 5 Mod, 433, and
vid. 12 Mod* 239 ; 2 Show. 460. So, in a suit for incest, after the death
of one of the parties, prohibition issued as to annulling the marriage and
bastardizing Reissue, but not as to punishing for incest. 2 Salk, 548.
In a salt, for saying of a woman that she had a bastard, prohibition was
granted as to the Imstaidy only. ^. 87S. • But on a motion for pro-
hibition, because of a proceeding to prove a will of lands and goods.
HaU^ C. J., said, their proving ihe will signified nothing as to the land,
and the will is entuet po th^ prc^bition was reftiaed. Vuu Abrid*
Prohi^. F. a. 3. from thesct and nttsneroas other cases in the Digesti
and Abridgmenia it woi^d appear that a prehibitioa fuood was not
unusual ; and since the ^U^tut^ 1 fVm» 4; c^ 21, it is ocmeeived that it is
the proper course.

bibtitionj u iK)on as it appears ftom the pleidinffB or proceedings Whan H
(hat the parties are at issue upon a point which the spiritual pij^for?^

court cannot try ; thus, where a right io seats in a church was

claioaed by prescription, and the personal answer of the defend-
ant in that court, without admitting, did not directly deny the
prescription, but witnesses w«re tendered and sworn, gener^ally
to the whole of the libel, the prohibition was granted, the court
observing, *' That when once it appears by the proceedings in
** the spiritual court, that the prescription, instead of being ad-
** mitted, is disputed, and that the parties are in progress to
" bring its existence to trial, the courts of common law are not
*' bound to wait till the parties have incurred the expense of
** putting it in issue ; but the prohibition. is grantable at once«"
Again, ''it appears sufficiently upon the pleadings in this
cause that the court below is in progpress towards the trial of
the prescription, why otherwise did the pliuntiff below tendc;r
*' witnesses to be sworn and examined conoeming the libel? Why
was the defendant required, at thqir instance, to give his per-
sonal answer to the several positions or articles of the libel ^ If
the prescription were admitted, why should witnessea be tea"
** deved to be sworn and examined generally to the whole of
*' the libel? Why nhould the defendant be required to state
his personal answer generaily to all the positions and articles t
If the prescription were admitted, there couid.be no occasion
for a general examination or a general answer to the whole of
'* the libel, the examination and answer would be limited to
*^ such parts as were not admitted.*' Byerley «• Windus, 6 B.
§> C.21. So also, a prohibition was granted on affidavit that
the defendant, to a libel for tithes in kind in the spiritual court,
answered on oath or pleaded a modus, without its appearing
that the modus was actually pleaded below, so as to put it in
issue there, for, as sidd by Lord EUenborough, and the rest of
the court agreed, " it appeared there was nothing to try in the
** court below, but the modus insisted on in the defendant's
" answer.- French v. Tr^ske, 10 East, 350.

But until the court below has done somQ act» or taken some
step exceeding its jurisdiction, a prohibition will not be
granted, on a surmise that they are sbput . to do so. Thus,
where a t^tsitor died indebted to an a|;tomey for law expenses,
including the piakiog his will, whiqh wa^ left in the cus-
tody of the. attpruey, the prerogative owrt baling cited the
attorney, at the instance of tpeperswal representatives, to bring
in the will, and leave it in the x^gistry of that- court, the court
of king's bench refused to interfere, op the suggestion that the
court below was about to try the question of lien. 2 Add. ^
EU. 46, and fid. Chesterton v. Farlar, 7 Ad. % EU. 713.

748 ij^rolfibitioxu

When it So where the ecclesiastical court were proceeding to a decision
pirid^for!^ upon a statute^ the court said, that the party was not entitled to

^ a prohibition until an erroneous judgment nad been given, for

it was to be presumed that they would give the statute a correct
construction. 7 Ad, ^ EIL 7S1 ; ante, 744.

It seems also, that where a case is once ripe for prohibition,
it may be applied for at any time before sentence, for it is not
necessary for a party to apply in the first instance. Per BuUer,
J., 1 T. R. 556. Except, in such cases where the not ap-
plying in the first instance amounts to a waiver of the objection.
Prohibitions are granted after, as well as before sentence ; but
the principles upon which they are grantable, differ according
to the grounds on which they are prayed.
After sen. If the spiritual court has not jurisdiction over the subject
««ace. matter of the suit, it is never too fate to apply for a writ of pro-
hibition ; nor is it necessary that the defect of jurisdiction should
appear on the pleadings, if it can be collected from the whole of
the proceedings ; for if it be brought to the knowledge of the
temporal court, by suggestion, that the spiritual court has
passed sentence in a case altogether out of their jurisdiction,
It is the duty of the temporal court to restrain and stay the
encroachment. 5 East, 968; S T.R.S\ 4 jff. ^ C. 314.

So also, if in the trial of a temporal incident occurring in the
course of a cause, the ecclesiastical court has proceeded in the
handling of such temporal matter in a way which the general
law does not warrant, the temporal court will grant a pro-
hibition on a suggestion to that effect. Shotter v. Friend^
2Salk. 547, more fully reported, Show. 158, 17S. On the
same principles, if the ecclesiastical court has put a wron^ con-
struction on an act of parliament. 5 East, 345. In neither of
the above cases could the objection appear on the face of the
pleadings, and in the latter the objection would not arise till
after sentence, for till then it could not be known, and it would
not be assumed that the ecclesiastical court would construe the
act erroneously. 7 Add. ^ EU. 713, ante. But it is said, that
where the prohibition is sought nro defectu triationis, in
such case, unless some defect of jurisdiction appear on the
face of the pleadings, it will not be granted ; for the party
might, if he nad chosen it, have withdrawn the trial from the
spiritual court ; and not having done so, but having elected to
try in the spiritual court, and having taken his chance of a
favourable decree, the court will not allow him, who has
voluntarily submitted to the jurisdiction, to deny and repudiate
it afterwards. Bunb. 17 \ & Ad. ^ EU. 441.

The cases, in which prohibitions have been granted after
sentence, are

9n)()tb(t(otu 749

1. Where there is a defect in the original jurisdiction. ^^^ *«<>-

2. Where, though there is general jurisdiction^ it can he ^^^^'
shewn from the proceedings in the spiritual court that such
court has proceeded in a way which the law does not warrant
either in the

Extent of the inquiry.

In the handling of temporal incidents*

In the construction of acts of parliament.

Where the ground of prohibition is, that the ecclesiastical Defect in
court has not jurisdiction over the subject matter, the proceed- ^n^U^*
ings will be stayed after sentence, whether the defect appear on ^^^'
the pleadings or proceedings, or is brought to the notice of the
court collaterally by affidavit; Freem. 78,299; for a party
never comes too late when there is an original want of ju-
risdiction. 4 1?. ^ C. 314. And it is said to have been ruled,
that if the suit did not originally or properly belong to the
ecclesiastical court, a prohibition will be awarded, as well as
to costs as to the principal suit. Noy^ 437 ; Fin. Abrid. Prohib.
L. a.S;2 Burr. 813. Lord Coie says, *' The king's courts may
award prohibitions, being informed by the parties themselves,
or by any stranger, that any ecclesiastical or temporal court do
hold plea of that whereof they have not jurisdiction, as well
after judgment and execution as before, and so resolved by all
the judges of England and barons of the exchequer." 2 Inst. 619*

If, however, the spiritual court have general jurisdiction vvherethe
over the suit; the defect of jurisdiction must appear on the court hu
pleadings. Com. Dig. Prohib. D. For a suggestion of matter ^^^^ J^"
foreign to the libel is in such a stage of the cause not a suf- ^^^
ficient ground for a prohibition. Thus, if a suit be in the
spiritual court on a modus, and the defendant there pleads
payment, he comes too late after sentence to plead, or to sug-
gest that there is no modus, because he has admitted the ex-
istence of the modus by pleading payment of it. 6 Mod. 252 ;
1 1 Mod. 200 ; Fin. Abrid. Prohib. L. a. 2; Godb. 164 ;
Freem. 78. So, if there be a libel for non-payment of a rate for
the reparation of a church, a prohibition shall not go upon a
suggestion that foreign disbursements are included in the
rate. Luiw. 1022.

Although the spiritual court have general jurisdiction over
the subject matter, yet if it appear that they extended their
inquiry beyond the point to which their jurisdiction extended,
they may be prohibited after sentence.

Thus, though the spiritual court have jurisdiction to compel Extent of
churchwardens to deliver their accounts, yet if they take any ii^qoiry*
step afterwards, as for instance, to proceed to decide on the
propriety of the charges contained in them, they exceed their
jurisdiction, and may be prohibited aftier sentence. 3 T. R. 3.

760

^Ot^f&ftdMl*

After sea-
tance.

Trial of

temporal

incidents.

Wrong
construc-
tion of act
of parlia-
ment.

In which case Lord Keayon said, '*'wkh resfpect to the conn

pelling chorchwanlens to produce theif accounts, the spiritual

court had exclusive jurisdiction, but there their authority
*' ceased, and every thing they did afterwards was an excess of
" jurisdiction, for which they may be prohibited after senteDce,"*
and vid. Fin. AbridU Prohib. R. 8. If a party libel for tithes
and agistments for several values, a prohibition was granted
after sentence quoad all but the tithes. Hn^ AMd. Prokib.
E. a. 7.

But aft;er sentence, it is necessary that the ptrty atpplyii^ for
the prohibition should shew very clearly that the spii^ual
court had not jurisdiction. 2 71 li. 476. ,

Where the ecclesiastical court has jurisdiction on some of the
matters charged in the libeU although diere may be odier maMen
charged over wluch their jurisdictioffis^oubtfulafter seoteace,
it must be expressly shewn that diat «ourt has proceeded on
the articles over which it had not jurisdiotidn, in order to lay a
ground for prohibition ; for it- seems &at it will 'be presamed
that the eccleriastical court acquitted 4m those charges over
which they hadno jurisdiction, unless the contrary be sl^wn ; for
by the sentence, the omti haa shift^d^ and the party objeeting
has to shew that tfa!e eoclesitetteal court aetualiy proceeded on
the objectionable articles. 6 Ad. if EU. 60S.

In Shatter r. Fnend^ 2 Salk. 647; ShouK 158, ITS, it was
decided, that where an incident occurs in the spiritisal court,
which is of temporal cegnisanee, they shall tiy the iaddent, but
must try it as the common law wouM ; and- It being si^^gested
that an executor, who was sued in this case for a legacy^ pleaded
payment, and offered to prove it by one witness, w^ieh the
judge refused, and gave 'sentence against himv prohibition was
fftanted; and it bmig'ftirther objected, thast tbe-iipplioatioQ
for prohibition came too laKte*afl»r sentence^ it was held thutit
did not, for the sentence >was the grievance. So, where it was
surmised that the ^iritual eotfrt reftised to receive a plea triable
at common law. Vro. Elix. 656, tid. ante, 7S9.

Where a spiritual court incidentally misoonstmes an* act of
parliament, contrary to the rules of common law, a prohibition
lies after sentence ; for till after sentence the couirts of common
kw have no reason to suppose that the eedesiastical court will
determine wrong, and- the misconstruction is matter of pm-
hibition and not of appeal. 1 H. JB^476; » H. Bl. SSni;
^T.KSdl ,5 East, 3*5; 9B.fC.86li lAd.^EU.79SL

Where the ground cf prohibition is not pra d^edmyuris-
dictionis, but pro de/betu trioHoms, the objection must be
taken before final sentence; for, as said by the eoortin JUefaf^f
V. Bodenkatn, 4 Add, ^EU, 441, a party neglecting to contest
the jturisdiction inthe first instance^ and taking hia ohanoe of a

favourable decree, shall not be allowed after sentence to allege After len-
the want of jurisdiction to try as a ground of prohibition, unless ^^°'^^'
the defect appears on the face of tbe.pleadings* The justice of the Pro drfectu
rule is Tery apparent, and the propriety of the exception scarcely triationu.
less so, for it is the duty of this court to restrain any encroach-
ment of jurisdiction in the inferior courts, and therefore it
interferes for the sake of the public, and not'of the individual ;
but where the want of jurisdiction appears on the face of the pro»
ceedings the case might become a precedent, if allowed to stand
without impeachment.

In Full ▼• HuichmgSf Cowp* 4S4, hord' Mai^field thus lays
down the principle where matters are properly and essentially
triable at common law : " If the party comes for a prohibition
before sentence, this court will grant it for thlesidce ofth^
trial, bnt if the party submit' to trial he is afterwards too late.
The distinction in respect of cases where a prohibition does
or does not lie after sentence, is this» if it appears on the &ce of
the libel, that the ecclesiastical court has no jurisdiction of the
cause, a prohibition shall go ; because there itderest reipubKca
that tiiey should Hot encroach upon the jurisdiction of the tem-

?oral courts; and in such ^case their aentfen^e is a nullity,
'herefore, in the case «>f' Paxiom w. KnigAt, I Burr. 314, the
court, though against thfeir inclination^ eranted a probibitioD,
because it appeared on the face Of ihefibeTthat the ecclesiastical
court had no jurisdictioo. - This doctrine and distinction is
fully setded and established in a case reported in 10 Med, 12,
Bamsier ▼. Hoptotu There,, upon ; a motion after wntence
for a pr<^ibition< ta the spiritual court, upon a question of
preaaiption, the court held^ that though ;it were, a matter
triable at common law, yet if the party submit to trial it will
be too late for a prohibition after sentence. ' In the margin
of that case is cited, • £ Salk^ 548, which is cited for the true
distinction where a prohibition shall or shall not lie after sen-
tence ; and there it is said, that if it appear in the libel or
proceeding in the cause, that the cognizance of the cause
does not belong to tiie spiritual court, a prohibition shall go
even after sentence. It shall go where they have no cog-
nizance of the cause, not where there is only a defect of triiu.
There is another case fully in point to the same distinction ;
the name of it is. The Churchwarden of Market Bosworih y.
the Hector of Market Bo9worth^ 1 Lord Baym. 4S5. The
libel in that case was founded upon custom, * which the defend-
ant denied ; and the decree was agbinst the custom ; a pro^
hilntion was moved for, because, custom or no custom, is a
matter triable at law, and this appearing* on the Kbel, the court
had no jurisdiction ; therefore, it was contended, that prohi-
bition ought to go, though after sentence. But the whole court

762

fhajlbibitjittiu

After

fence.

Pro defectu
trialionis.

Citing out
of the dio-

Ltstten of
bequest.

After ex-
ecution.

After tp-
petl.

held the contrary^ And the reason given was: that the pkin^
tiffs, having grounded their libel on a caatoniy which would have
been well grounded if the custom had not been denied, shall
not, after the custom is found against ^em, prohibit the eourt
from executing their sentence. For the design of the pro-
hibition is only to excuse the plaintifis from costs. But, the
court said, *' there is no reason why they should not pay than,
since it appears they have vexed the defendant without caote,
and therefore denied the prohibidon.**

The citing out of the diocese is not a ground for prohilndoD
after sentence, although it is expressly forbidden by the atat.
eSHen. 8, c. 9, anie, 691, 710, for the court has a natural
jurisdiction of the thing, and is only ousted by the statute
23 Hen. 8, c. 9 ; therefore, in order to obtun a prohibition, the

1>arty must come in the first instance ; for after pleading» and
itigating the matter in the ecclesiastical court, the party admits
the jurisdiction of the court below, and it would be hard and
inconvenient in such a case to grant a prohibition. 2 Show* 161 ;
2 Sali. 549; 2 Lard Raym. 835; Cro. Car. 97 ; Bac. Abrid.
Prohib. H. I 3 PhiU. 599; 1/1^. Con. 6. For, as it has been
said, the cause belongs to the spiritual court, and though not to
that spiritual court, yet to. some other spiritual court, and not to
the king's temporal courts. jSatt. 549.

But if the party applies before sentence^ prohibition will go
as a matter of course, except when the cause is transmitted oa
the request of the inferior judge to his immediate superior, for
to the prohibition such transmission may be pleaded, Cro. Car,
162; and it is sufficient that it was an ecclesiastical cause, with*
out saying what cause in particular, and that it was removed on
request, without saying the request was under seaL Cro^ Cair*
ibid. If the objection appear on the face of the citation^ the
proceedings on such citation may be reversed at any time in
the ecclesiastical court. Donegal v. Donegal, 3 PkiU. 589;
1 Hag. Con. 6.

But after sentence and execution, when nothing is left to be
done, and the cause is completely out of the court below, when
there is nobody to be prohibited, and nothing to be prevented,
the superior court will not interfere. 1 Sid. 166; 1 2^. ii.552;
5B.^ Ad. 687.

Although it seems to have been formerly held, that after an
appeal a party could not have prohibition, because it was con-
sidered that by the appeal the party aflSrmed the jurisdiction;
yet it is now considered that an appeal cannot vary the rights of
the parties ; if the spiritual court is deficient in general jurisdiction
an appeal cannot confer it ; neither if the detect be apparent on
the pleadings, can it begot rid of by an appeal. Brabiny. Tri^'
man, 2 Boll. Rep. 24. In Darby v. Coient, 1 T. R. 55&, pro-

|irot)itntion4 753

hibition was grantedi after the suit upon appeal had been
remitted to the court below, and costs had been awarded to the
appellant. So, on a libel to charge a man to repair a church in
respect of a lighthouse, prohibition was granted after sentence,
and on appeal to the delegates. Bunb, 8K and rtc/. Hutton*s
case. Hob. 2S ; Fin. Abrid. Prohib. H. a. 4.

Previously to the passing the above statute, 1 ^. 4, c. 31, Howob-
which has introduced important alterations into the prac- **"^^*
tice of obtaining writs of prohibition, the mode of applying
for a prohibition to the spiritual court was upon a sug-
gestion and affidavit, (where the matter suggested was foreign to
the libel) either that the cause originally, or some matter arising
collaterally therein, did not belong to the jurisdiction of such
courts which suggestion, however, it was never necessary to
prove with precision as to all its circumstances ; but it was con-
sidered sufficient, if enough were proved to shew that the spi-
ritual court had not jurisdiction. Cro. Eliz. 736 ; Bac. Abrid*
ProhiL F. Where, however, the want of jurisdiction was ap-
parent on the face of the libel no suggestion was considered
necessary even before the statute, 2 SaUc. 549; 1 P. fVms.617 ;
Bac. Abrid* Prohib. E. ; but now, by the above statute, s, 1,
this preliminary proceeding, by suggestion, is rendered unneces-
sary, and the application is made upon affidavit only, in which
the ground or ffrounds are stated, upon which it is sought to
restrain the further proceedings of the ecclesiastical court.(a)
That statute enacts, that*—

" Whereas the filing a suggestion of record, on application i w. 4,
for a writ of prohibition is productive of unnecessary expense, ^* ^^'
and the allegation of contempt, in a declaration in prohibition
filed before writ issued, is an unnecessary form ; and it is ex-
pedient to make some better provision for payment of costs in
cases of prohibition, be it enacted, that it shall not be neces-
sary to m^ a suggestion on any application for a writ of pro-

(a) By the stetute, 2 ^ S Ed. 6, c. 13, it is provided, " that upon
a prohibition being granted for matters rehearsed in statutes, 27 Hen. 8,
c. 20 ; 82 Hen. 8, c. 7, in case the suggestion was not proved true
by two honest and sufficient witnesses at the least, in the court where
the prohibition was granted, within six months next after it was granted,
the party, hindered of his suit in the ecclesiastical court, should, without
delay, have a consultation granted, and recover double costs and damages
against the party that pursued the prohibition. The matters said to be
rehearsed in the above statutes were tithes and offerings, which tithes
were held to mean small as well as great tithes. Yeh. 112; Lord
Raym. 1172. The six months were reckoned by calendar months.
2 Tidd^s Prod. 948. This statute was repealed by the 1 FT. 4, e. 21 , «. 2.

c c c

764

^rot^Mtfoiu

How ob«
tained.

Tw. 4,"
c. 21.

Practice
before the
statute.

hibitioiiy but such appUcation may be made on affidavit only ;
and in case the party applying shall be directed to declare in
prohibition, before writ issued, sudi declaration shall be ex-
pressed to be on behalf of such party only, and not as hereto-
fore, on 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 decla-
ration the party defendant may demur, or plead such mat-
ters, 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 applica-
tion 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."

Before this statute the declaration in prohibition was founded
on a supposition or fiction, which was not traversable, that the
writ of prohibition had already issued, and that the party had
proceeded in the suit below, notwithstanding such writ, and the
action was in form qui tam^ the king being made a party to the
proceedings ; that form is, however, now no longer necessary,
and the declaration must be framed in the mode suggested by
the statute ; so also, inasmuch as the declaration was founded
on a supposition that the writ of prohibition had actually issued,
if the issue either of law upon demurrer, or of fact upon trial,
were found against the plaintiff in prohibition, it was necessary
that tl^ere should be a formal judgment of quod eat consuliaiio,
in order that upon the face of the proceedings the cause should
appear to be restored to its originaljurisdiction; butnow, by the
above act, as the declaration is not founded upon the sup-
position that a writ of prohibition has issued, but, on the con-
trary, prays that a writ of prohibition may issue, no such
judgment, it seems, is required to be given; but the judgment,
if in favour of the plaintiff, would simply be, according to the
prayer of the declaration, that a writ of prohibition do issue, or
if for the defendant, that it do not issue.

The declaration in prohibition should contain a venue.
2 Show. 146 ; Raym. S87. If there were a variance between the

^o6ttifttem 755

count and the suggestion^ the declaration was nausbt, and for- ^P^<^^~
merly a consultation would have issued, for it would have been *"
a discontinuance. 1 Mod. 113; 1 Leon. 128.

A declaration, which shews a prescription for discharge of Declara-
tithes, ought to shew that the matters for which the libel is in the ^ion.
spiritual court are within the prescription ; as if the prescription
be, to be discharged for tithes of cattle reared for the plough,
it ought to allege that the libel was for tithes of such cattle.
1 Roll* Rep. 62 ; Com. Dig. Prohib. I. Two persons cannot
join a declaration where the cause of complaint is several. Cro.
Car. 162.

Under the old law there could be only one plea pleaded, Plea.
because the king was considered as a party, and he would not
be bound^ by the statute of 4 ^»n. c. 16, s. 4, not being named
in that statute; but as the act 1 W. 4, c. 21, s. 1, enacts, that
the declaration in prohibition ^' 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," the reason of the former rule
fails, and prohibition is now like any other action, and several
pleas may be pleaded as in other cases. Hall v. Maule, 4 Ad.
^ JS«. 283.

The issue in prohibition being a proceeding to inform the Damages.
conscience of the court, the jury, it seems, by 8 (^ 9 1^. 3, could
give only Is. damages for the contempt on a verdict for the plain-
tiff, 1 £. 4r Adol. 154; but the statute 1 fV. 4, c. 21, enacts, that
it shall be lawful for the jury to assess damages, for which
judgment shall be given. It was said, that before the statute,
that though a plaintiff, succeeding in prohibition, could not
obtain damages in that proceeding, yet he might by action
on the case. Bac. Abrid. Prohib. F.

By the common law there were no costs in prohibition, nor Cosu.
could costs be recovered by the statute of Gloucester^ that
statute only applying to cases where damages were given ; but
the only damages which could be recovered in prohibition
would be for the tontempt of the defendant in proceeding in
the ecclesiastical court after the prohibition issued. \ B. S^
Adol. 157 ',6B.%C. 538 ; but by 8 * 9 W. 3, c. 11, s. 3, it
was enacted, '^ that in all suits upon prohibitions, the plaintiff
obtaining judgment, or any award of execution on plea pleaded,
or demurrer joined therein, shall likewise recover his costs of
suit; and if the plaintiff shall become nonsuit, or suffer a dis-
continuance, or a verdict shall pass against him, the defendant
shall recover his costs and have execution for the same by ca.
sa.^Ji.fa. or elegit.'' Therefore, on that statute it was held that
where a plaintiff succeeded after plea pleaded, or demurrer
joined, he was entitled to have his costs from the time of the
suggestion or first motion for prohibition, and all costs subse-

c c c 2

c. 21.

766 proJ^Cbitiom

Corta. quent. 1 Sir. S2;2do. 1062 ; Cos. temp. Hardw. 895 ; Andr. GZ^
&ut where it was made a term on enlarging a rule for a pro^
faibition that the party applying should declare, and the de-
fendant, instead of pleadirfg, obtained a judge's order to stay
proceedingSi on payment of costs incurred since the rule to
declare ; upon motion to set aside such order, it was held that
the plaintiff in prohibition was not entitled to any further costs.
1 B. % Add. 164.

By I W.4, By the late statute, 1 JF. 4, c. 21, however, which by its
preamble states, ''that it is expedient to make some better
provision for payment of costs in cases of prohibition*** See. I ,
provides, "that 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. It would seem, therefore, that whenever a plaintiff
is put to declare in prohibition, the party succeeding, whether
plaintiff or defendant, (the former statute only gave costs to
the plaintiff,) is entitled to judgment on his declaration, and
is now entitled to costs, whether the defendant in prohibition
has pleaded or demurred, or not; and in some instances
considerable damages have been recovered. But where a
party has his rule made absolute for a prohibition, and is not put
to declare, there the case is not within the statute. 1 DowL P, C.
440. Neither when a prohibition is granted for the sake of trial,
as for the purpose of trying a parochial boundary, and the plain-
tiff in prohibition obtains a verdict, and consequently the pro-
hibition issues, can he get the costs incurred in the ecclesias-
tical court previously to the prohibition. 5 J3. ^ AdoL 458.

A judgment for prohibition as to some of the objects and pur-
poses of the libel, but not as to others, seems to have been a
casus omissus out of the 8 ^ 9 ^. 3, and not provided for by
1 W. 4, c. 21. Where indeed a plaintiff obtains an absolute judg-
ment in prohibition, thoueh only upon a part, he was held, under
the 8 ^ 8 W. 3, to be entitled to costs. Middltton v. Crojt, 2 Sir.
1063; which seems to have been decided on Dr. Btntley*s
case, where the matter was under consideration in the House of
Lords, and in which costs were given ; the prohibition standing
only as to some of the articles, but a consultation as to the rest.
But where there was a judgment that a prohibition should
issue {qy. " should stand, ' this case being before 1 W, 4,) as to

S^roceemng against the plaintiff for fornication or incontinence,
or the purpose of his souFs health and the reformation of bis
manners, and that a writ of consultation should issue as to
proceeding against the plaintiff for those offences, for the pur-
pose of suspension or deprivation, or other punishment merely
clerical ; and as to all other matter against the plaintiff in the

if^romttion. 757

libel in the court below, there being no judgment for the Coets.
plaintiff in prohibition, so as to prevent the defendant from pro-
ceeding in the ecclesiastical court in every article in the libel for
punishment in a qualified mode, the court inclined to think the
case not within the statute 8^9 W* 3* Free v. Burgoyne,
6 B. ^ C. 528. Nor does there seem to be any provision made
for such a case in the late statute 1 W* 4, c. 21, although it
is provided that a jury may assess damages, yet it is also
provided that *' such assessment shall not be necessary to en-
title the plaintiff to costs." There is a proviso in the 8^9 FT. 3,
that it shall not extend to executors and administrators, hence it
has been determined that they were not liable to costs. 3 Ectsi,
202; this provision seems not continued in the late act.

In prohibition both parties are actors, and may take traverse Usue.
upon traverse. Fort. 350, 1 TidtTs Prac. 700, 734. Refusal of
a plea is not traversable. Sir. 483. The court will not compel
parties to take issue on a suggestion, where, upon examination,
they find it to be false. 2 Mod. 223.

In actions of prohibition, as in quare impedit^ the defendant
being considered an actor, the issue may be made up by him as
well as by the plaintiff, 2 TicUTs Prac. 734; and upon the
same principle the defendant may have a trial by proviso,
without any laches of the plaintiff. lb. 760.

By 8 ^ 9 W.3f the jury could give a verdict for no more than Verdict
Is. damages, as upon an issue to inform the conscience of the
court; but the plaintiff might have an action on the case and
damages. Bac. Abrid. Prohib. F. But now substantial damages
may be given, ante, 755.

If a plea be ill pleaded, and the question not properly raised, Amend-
the court will direct it to be amended. 7 Mod. 70. So, after "*"^
a nonsuit set aside, the plaintiff had leave to amend his declara-
ration. 1 Tidd's Prac. 697, sed vid. HaU v. Maule, 7 Ad. Sf
EU. 729.

When the defendant allows judgment to go by default, the Jadnnent
plaintiff is entitled, at common law, to a writ of inquiry; upon ^J defcult
which, if the jury found damages, he was entitled to costs within
the statute of Gloucester. BuU. N. P. 331 ; Bac. Abrid.
Prohib. E. ; Tidd*s Prac. 948 ; and now by the express words
of 1 fF. 4, c. 21 ; but before that statute, unless the defendant
proceeded in the spiritual court after prohibition issued, there
would be no contempt, and a jury could give no damages. Pew-
tress V. Harvey, I B. ^ Ad. 157.

On a motion for a writ of prohibition before the statute How
I W. 4f, c.21, and there seems nothing in the statute to alter granted,
the practice, it was usual to grant a rule to shew cause why a
prohibition should not issue. Lord Raym. 236 ; Bac. Abrid.
Prohib. F. If the question were too nice or difficult to

758

pr0t)fiifttott.

How
graDted.

By what
court.

Who may
have.

decide on motion, and the court inclined to the prohibition, lesre
was granted to the plaintiff* to declare, 1 fV. Black*81 ; 2D<mgL
613; 1 Burr. 198; Cro. EUx. 736; ^ Mod. 151; 1 Lev. 125;
and thereby, the question, if it were one of law, might be put on
the record and solemnly argued on demurrer, and, if necessary,
carried to the highest tribunal. If the question be one of fact,
which the spiritual court is incompetent to try, then issue is taken
on such fact, and atrial had before a jury ; if, formerly, the jury
found in favor of the plaintiff* in prohibition, the judgment of the
court in such a case was quod stet prohibitio ; if against the
plaintiff* it used to be quod eat consultaiio. 8 T. R. S.

The superior courts of Westminster having a superintendency
over all inferior courts, may, in all cases of innovation, &c.,
award prohibitions; 4 Inst. 71; Bac. Abr. Prohib. A.; and
it is said that it is the proper power and honour of the court of
king*s bench, to limit the jurisdiction of all other courts.
2 Roll. /J. 471. Blackstone Comm. 3, 1 12 says " that the writ
" of prohibition is issuing properly only out of the king's bench,
" being the king's prerogative writ ; but that for furtherance of
^' justice it may now also be had, in some cases, out of the courts
" of chancery, common pleas, or exchequer." Lord Hardwicke
is reported to have said, " that where the ecclesiastical court
proceeds to try a custom by different evidence than that which
the common law courts would have done, no other court has
cognizance of it but the court of king's bench." 3 Atk, 628.
But it seems settled that the court of common pleas may issue
a writ of prohibition to the spiritual courts; 12 Rep. 59; Faugh.
157; A/oor.86l; Hobart, 15; Noy.77 ; Bac. Abrid. Prohib.
A. ; Fin, Abr. Prohib. H. a ; or the exchequer, in particular
cases ; Palm. 525 ; Leon, 39 ; or the court of chancery in
vacation as well as in term time. 4 Inst. 81 ; 7 Ves. 254; 2 Sch.
&Lef. 136; Donegalv. Donegal, 3 Phill. 58*; I Add.l9,(n)a;
Tyrwh. ^ Gr. 46, 222.

Where spiritual the court has no jurisdiction, a prohibition may
be granted, upon the request of a stranger as well as the defen-
dant himself. 2 Inst, 607. So also upon the motion of the plaintiff*
himself, though he exhibited the libel. lb. 2 Roll. Abr. 312;
Leon. 130 ; 7 Ad. ^ Ell. 712. If a vicar sues a parishioner for
tithes in the spiritual court, and the parson appropriate appear
there pro interresse suo, and prays a prohibition, it shall be
granted. 2 Roll. Abr. 3)2 ; Cro. EUz. 251 ; KeUw. 110. If
lessee for years is sued in the spiritual court for tithes, he in
reversion may have prohibition. Moor. 915 ; Cro. EUz. 55.

But none is entitled to a prohibition unless he is in danger of
being injured by some suit actually depending, and therefore upon
a mere petition to the archbishop or other ecclesiastical judge, no
prohibition quia timet lies. AUen, 56 ; Bac. Abr. Prohib^ C. If a

prol^Aftiotu 759

wife libel to recover her fame, prohibition^ it is aaidt shall not be
granted on motion of the husband. Sir. 576 ; Com. Dig.
Prohib. B.

If several libels be exhibited against A. and B. in a matter who may
in which the court .hath not cognizance, A. and B. cannot join join in the
in a prohibition, and so if the complaint be several. Cro. Car. ^"^*
I6£; Leon.SS&\ Noy. 131. But where one libelled several
for tithes, who joined in prohibition, suggesting a modus^ though
the court held the prohibition not regular, being in all their
names, whereas the libels were several, yet, inasmuch as this
was on a custom, and matter triable at common law, in which
the court below was properly prohibited, though not in exact
form, they refused to award a consultation, but directed that
the parties should put in several declarations, as if there had
been several prohibitions. Yelv. 1^8; Owen, 13; and where
two or more are allowed to join in prohibition, and one dies, the
writ shall not abate, because nothing is to be recovered, but they
only seek to be discharged. Owen, 13.

A rule for a prohibition is not in general grantable the kut
day of term, but a rple to stay proceedings till the ensuing term
may be had. Latch. 7 ; 2 Roll. Rep. 456 ; 1 Tidd, 498. But
in one instance a rule for a prohibition was granted on the last
day, leave having been granted the day before. 3 Burr. 1922;
Tidd, ib.

It is said to have been laid down by Hobart, 67, that though
a surmise was a matter of fact, and triable by jury, yet it is in
the discretion of the court to deny a prohibition; this authority
has been, however, denied ; but it seems, that in all cases the
court may exercise a legal, though not an arbitrary discretion, in
granting prohibitions. Lord Raym. 220, 578.

It has been decided that no writ of error will lie from the king's Writ of
bench to the exchequer chamber, upon refusal of a prohibition; ®"^''
if it is awarded, it is with an ideo consideratum est, and then a
writ of error will lie, but not to the exchequer chamber, for
prohibitions are not within 27 EUx. c. 2S ; Lord Raym, 545 ;
5 B. & C. 765 ; and the writ of prohibition is an original writ
out of chancery. \ B. ^ P. 121 ; 1 Saund. 136, (1); 2 Saund.
101, (1). A writ of error, allowed, after a writ of consultation
has been delivered to the court below, is not a supersedeas. If
the writ of consultation is sued out after allowance of a writ of
error, the court might quash it, quiii improvide emanavit ; or if
delivered to the court below after the writ of error issued, it
might be misprision. 6 B.& C. 27. For cases of error in granting,
vid. 4 T. R. 381 ; 2 H. JBl. 533.

The disobeying a prohibition is a contempt of the superior contempL
court that awards it, and punishable by attachment, which issues
against the judge and party for proceeding after such pro-

760 ifMbMunu

bibition, and for wbicb tbey are subject to fine and imprisoa-
ment F. N. B. 40. Such attachment may be awarded agamst
a peer ; Bc^:. Abr. Prohib. Af. ; and not only an attachment
lies for proceeding in the same cause pending a prohibition, but
also for instituting a new suit for the same thing, as if a parson
libels for tithes, and a prohibition issues, and he libels for
tithes for another year, the first not being determined, an at-
tachment shall be awarded. lb. 599; Lean* 111.

J^vMit Wioxf^ij^.

LlISTASTE for the gorgeous and burthensome ceremonies of
the church of Rome co-operated with other causes in leading to
the Reformation; and the more strongly, as by the zealous
Reformers many of those ceremonies were traced to a pagan
origin. Moskeim says, that *' no sooner had Constantino the
Great abolished the superstitions of his ancestors than magnifi-
cent churches were everywhere erected for the Christians, which
were richly adorned with pictures and images, and bore a
striking resemblance to the Pagan temples, l^th in their out-
ward and inward form. The rites and institutions by which
the Greeks and Romans, and other nations, had formerly
testified their veneration for fictitious deities, were now adopted,
with some slight alterations, by Christian bishops in the service
of the true God. Hence it happened, that in the third and
fourth centuries the religion of the Greeks and Romans differed
very little in its external appearance from that of the Christians.
They had both a most pompous and splendid ritual, gorgeous
robes, mitres, tiaras, wax tapers, crosiers, processions, lustrations,
images, gold and silver vases ; and many such circumstances
of pageantrv were equally to be seen in the heathen temples and
Christian churches.** 1 EccL HisL 519, 520.
Liturgy. In the early ages of the church every bishop had power

to form a liturgy tor his diocese ; and if he kept to the analogy
of faith and doctrine, all circumstances were left to his discretion.
Afterwards, the practice was for the whole province to follow the
service of the metropolitan church, and this, according to Lind^
wood, was the common law of the church. 3 Burns Ecc. L. 237.
The Latin services, used in England before, continued in
Henry the Eighth's reign, without alteration, save some collects
for the pope, Thomas Becket and other saints whose days

public tSRonibtg. 761

werei no more to be observed ; but those rasures were so few, Litorgy.
that the old mass-books, and rituals, served without new im-
pressions. Burns Eec. L. 237 ; Gibs. Cod. 239.

In the second of Edward the Sixth, a liturgy was esta-
blished bv statute; but because some things were contained
in it whicn shewed a compliance with the superstitions of those
times, exceptions were taken to it by learned men at home, and
by Calvin abroad, therefore it was reviewed, in which review
Martin Bucer was consulted, and alterations made in it ; and
this liturgy, so reformed, was established by the act 6^6
Ed. 6, c. 1 ; 3 Bum's Ecc. L. 239. (a)

The 2 is 3 Ed. 6, c. I, notices in its preamble, that in different
dioceses different forms of prayer had been in common and
ordinary use; but proceeds to enact, that in future every
minister in cathedrals, parish churches, and other places, shoula

(a) /Tey/m, in his Eeelesia Restawata^ p. 65, however, says, " That
those who had the chief directing of this weighty business were, before-
hand, resolved that none but English heads and hands should be used
therein, lest otherwise it might be thought, and perhaps objected, that
they rather followed the example of some other churches, or were
swayed by the authority of those foreign assistants, than by the word
of God, and the most uncorrupted practice of the primitive times.
Certain it is, that upon the very first reports of a Reformation here
intended, Calvin had offered his assistance to archbishop CranmeVi as
himself confesseth ; but the archbishop knew this man, and refused the
offer. And it appears, by one of bishop Latimer's sermons, about this
time, that there was a report of MelancthorCs coming, but it proved
only a report ; and though it was thought necessary, for the better
seasoning of the universities in the Protestant reformed religion, that
Martin Bucer and Peter Martyr^ two eminent divines of the foreign
churches should be invited over, yet the archbishop's invitation to
Martin Bueerwta not written till the 12th October, 1548, at which time
the liturgy then in hand, being the chief key to the whole work of
reformation, was in very good forwardness, and must needs be com-
pletely finished before he could so settle and dispose his affairs in
Germany, as to come to England ; and though Peter Martyr came
many months before Martin Bucer, yet we did not find him here till the
end of November, when the liturgy had been approved by both Houses
of Parliament ; nor was it likely that they should make use of such a
man in composing a liturgy wherein they were lesolved to retain a great
part of the antient ceremonies ; who, being made canon of Christchurch
in Oxford, and frequently present at divine service in that church,
could never be prevailed with to put on the surplice."

Cranmer*9 letter inviting Bucer, as given in Strype, is dated 2nd Oct.,
Strype Memorials, App, 116. According to Sirype, the Common
Prayer was ratified on the 25th December, 1549, and neither Bucernot
Martyr came to England till the April after. Mem, 194, 197.

762 pnblir WOavifbi^^

^^''gy* be bound to say and use the matins and eTensong, celebration
of the Lord's Supper^ commonly called the Mass, and adminis-
tration of each of the Sacraments, and all their common and
open prayer, in such order and form as is mentioned in a book
called '* The Book of the Common Prayer and administration
of the Sacraments and other rites and ceremonies of the Church,
after the use of the Church of England." 2^3 Ed. 6, c. 1, ^. 1 ;
1 Haff. Com. 176; 3 PhilL S68; 4 Reeves' Hut. C. L. 441.
The form therefore contained in this book was the first liturgy
and rubric of the reformed church of England, and was fol-
lowed by a second and amended liturgy, or form of prayer, in
the 5^6 Ed. 6. With the accession of Queen Mary, came also
the overthrow of all the reformed institutions ; but in the first
year of Elizabeth, 1559, the form given in the 5 ^6 Ed. 6, was
re-established with some slight and unimportant alterations.(o)
James the First made several alterations and enlargements of
this Liturgy, as in the office of private baptism, and in several
rubrics and other passages, and the book of Common Prayer so
altered, continued in force from the first year of king James to
the IS ^ 14 Car. 2, c. 4 ; 3 Burn's E. L.

Immediately upon the Restoration, in 1660, the book of Com-
mon Prayer was revised, an attempt being made to render it
satisfactory, not only to the church itself, but to those who db-
sented from the church, particularly the Presbyterians; and for
that purpose conferences were held at the Savoy, but one party
requiring an entire new Liturgy on an entire new plan, the con-
ference broke up without success. The Liturgy was then revised
by the two houses of convocation, approved by the king, pre-
sented to the parliament, and confirmed by the 13 ^ 14 Car. 2,
c. 4, the last act that has passed on this subject ; and thus
it remains to the present day, except so far as it may have
been affected by the Toleration Act, or other subsequent
statutes. The Common Prayer, therefore, and the Rubric, form
a part of the statute law of this kingdom. 3 PMIL %9, S91 ;
Gibs. 275.

By sect. 26th of this last act it is directed, *' that a true
printed copy of the book of Common Prayer shall, at the costs
and charges of the parishioners of every parish church and
chapelry, cathedral church, college, and hall, be provided
before the feast of St. Bartholomew, 1662, on pain of £3 a
month, for so long a time as they shall then after be unprovided
thereof."

(a) All the spiritual peers, present in parliament, dissented from them,
and all notice of the spiritual peers, is omitted in the act D*SweSf 28 ;
GUfs. Cod. 305.

fublit WRwa^tfif 763

By s. 25, it is provided, that in all those prayers, &c. " which ^^m*
in any way relate to the king, queen, or royal progeny, the
names may be altered and changed from time to time, ana fitted
to the present occasion, according to the direction of lawful
authority,** which is (according to practice) of the king or queen
in council. Gibs, £80.

Uniformity in public worship is one of the leading principles Unifonnity.
of the church of England, nothing is left to the opinion of
individuals; if every minbter were to alter, omit, or add, accord-
ing to his own taste, he might, from beginning with trifling
changes, extend his views to alterations of even the Scriptures
themselves, under a notion of giving a more correct version.

By the 2 ^ 3 Ed. 6, c. I, and 1 EUss. c. 2, if any parson, vicar,
or other whatsoever minister, that ought to sing or say common
prayer, or minister the Sacraments, refuse to do so in such order
and form as set forth in the book of Common Prayer, or shall
wilfully and obstinately use any other rite, ceremony, form, &c.
of celebrating the Lord's Supper or other open prayer ; or shall
preach or speak anything in the derogation of the said book,
or anything therein contained, and be thereof convicted, either
by verdict of twelve men, by his own confession, or by notorious
evidence of the fact, he shall forfeit (if the prosecution is upon
2 Sf S Ed, 6), for his first offence, the profit of such a one of
his spiritual benefices as it shall please the king to appoint, and
also be imprisoned six months ; and for the second offence, be
imprisonea for a year, and be deprived of all his spiritual pro-
motions ; and for the third offence, be imprisoned for life. If
he shall not have any spiritual promotion be shall, for the first
offence, be imprisoned six months, and for the second, be impri-
soned for life. If the prosecution be made under the 1 Eliz, c.2,
then, for the first offence, he shall forfeit to the king the profit
of all his spiritual promotions for one year, and be imprisoned
six months ; for the second offence, as by 2 A* S Ed. 6 ; for the
third offence be deprived of all his spiritual promotions and be
imprisoned for Ufe ; and if he have no spiritual promotion, then,
for the first offence, imprisonment for a year ; for the second,
imprisonment for life.

Independently of the statute law, which affixes such heavy
penalties, the ecclesiastical court will punish in this case by
admonition, such power being expressly reserved to them by
the act. 2 Roll. Abrid. 222 ; Cawdrey's case, 5 Rep. In
Newberry V. Goodwin, 1 Phill. 282, the fourth article pleaded,
" that on the preceding Sunday the defendant (the clergyman
officiating) omitted a part of a verse in the first lesson." The
court said, if the facts had happened simply (though, strictly
speaking, not legally justifiable to omit any part) yet probably

t€

764 pttbltr JSBiov^tfi.

Uniformity, this suit would not have been brought ; but the article pro-
ceeds to state, that after he had omitted the verse, he looked
round to the pew of the plaintifT, and said, ** I have been ac-
*' cused by some ill-natured neighbours of making alterations
** in the service : I have done so now, and shall do so again
" whenever I think it necessary, therefore, mark.** The court.
Sir J. NichoU, observed, ''this gives a different colour and
*' complexion to the act, the omission seems to have been
** made, not from mere feelings of delicacy, which, though not
" a legal justification, would greatly extenuate the omission ;
but the omission seems to have been selected as affording a
favourable opportunity of asserting a general right, and even
** of reflecting in the midst of the service upon those who
questioned the general right. If this article should be proved,
it will not only subject the party to admonition, but further,
'' to the payment of costs/'

Though a parish clerk may give notice of a vestry during
divine service, yet the proclamation of the result of a vestry
is unnecessary and improper. Thompson v. Tapp, S Bum*s
E. L. 254, II. 9, vid. post, 767.

Indictments upon the statutes must be preferred at the assizes
next after the committing the offence.

And justices of assizes are empowered to try and sentence
persons convicted in the same way as they may in cases of in-
dictments for trespass, provided that every archbishop and
bishop may associate himself to the said justices of assize for
the inquiring of, hearing, and determining the same.

Municipal officers of towns to which the justices of assize do

not commonly repair, shall have power to try these cases as jus-

tices of assize may do within fifteen days after the feast of

Easter and St. Michael yearly.

Eccleeias- In the saving of all ecclesiastical jurisdictions for the trial and

tical pa* punishment of these offences, it is provided that those tried

nisbmeDt. ^^ j punished by the ordinary shall not again be tried for the

same, by the justices, nor shall those tried by the justices be

again tried for the same by the ordinary.

In Burnett v. Bonaker, 2 Hag. 27, it was held, that the
church service, according to the form prescribed in the book of
Common Prayer, is to be regularly performed everv Sunday in
the morning and evening. If less duty is required, any relax-
ation must be adopted with the approbation of the diocesan,
who is to judge of the degree to be allowed, and the minister
must strictly adhere to. the terms prescribed, and not vary them
for his own convenience.

By 1 4r2 f ict. c. 106, s. 60, bishops may order that there shall
be two full services on every Sunday throughout or during part of

the year ; each, if bo directed, to include a sermon or a lecture, ^J^^^Jjf
whatever may be the annual value or population of the parish. *

Where a benefice is composed of two or more parishes or
chapelries, in which there shall be a church or chapel, the
same order may be made, if the annual value amount to 150/.
and the population to four hundred.

By the same act, s. 106, it is provided, that no spiritual person Not more
shall serve more than two benefices in one day, unless in the *!j" ^'^^^ '**
case of unforeseen and pressing emergency ; in which case the ^ ^ ^^'
spiritual person who shall have so served more than two bene-
fices, shall report the circumstance to the bishop.

By S ^ 3 Vict. c. 30. In benefices where there are more than
one spiritual person instituted to the cure of souls, the bishop
may apportion the duties ; and in case of disobedience of his
order, tne bishop may proceed as in cases of negligence of spi-
ritual duties of a living subject to an appeal.

The Rubric directs the manner of church service, yet many church
matters are left to the discretion of the minister, subject to the music.
ordinary. In Hutchins v. Denziloe and another^ I Hag. Con.
170, it was decided, that although by general wage chaunting
parts of the service is limited to cathedrals, and singing in the
ordinary parochial service does not generally extend beyond a
plain congregational melody, yet, in point of law there was
nothing to prevent the singing or chaunting a part of the service
in a parochial church, a clergyman, therefore, who had directed
it to be done, had not been guilty of irregularity, though the
discretion of such an order might, perhaps, be questionable^
yet an interference and countermand by the churchwardens
was illegal, and punishable.

An indictment for using other prayers ^ and in other manner, Form of in-
seems to have been judged insufficient, because the prayers (lic^^Q^
used may have been upon some extraordinary occasion, and so
no crime ; and it was said, that the indictment ought to have
alleged that the defendant used other forms and prayers
instead of those enjoined, for otherwise any person may be in-
dicted that useth prayers before his sermon, other than such
which are required by the book of Common Prayer* 3 Mod. 79 ;
3 Burns Ecc. L. 2S7.

It is directed by the 14/A Canon that the Common Prayer
shall be said or sung distinctly and severally upon such days as
are appointed to be kept holy by the book of Common Prayer
and tlieir eves, and at convenient and usual times of those days,
and in such places of every church as the bishop of the diocese
or ecclesiastical ordinary of the place shall think meet for the
largeness or straitness of the same, so as the people may be
most edified. All ministers, likewise, shall observe the ordersi
rites and ceremonies prescribed in the book of Common Prayerj

766 public monelqi^

UmfeHmty. as well in reading the Holy Scriptures, and saying of prayers as
in administration of the Sacrament, without either diminishing
in regard of preaching, or in any other respect, or adding any-
thing in the manner or form thereof.

By ^th sec. of the 13 % 14* Car. 2, c. 4, it is enacted, '' that
in all cases where the proper incumbent of any parsonage,
vicarage, or benefice with cure, doth reside on his living, and
keep a curate, the incumbent himself in person (not having
some lawful impediment to be allowed by the ordinary of
the place,) shall once at the least in every month openly and
publicly read the Common Prayers and service in and by the
said book prescribed ; and (if there be occasion) administer each
of the Sacraments and other rites of the church in the parish
church or chapel belonging to the same in such order, man-
ner and form as in and by the said book (of Common Prayer)
appointed : on pain of 5/. to the use of the poor of the parish,
for every offence upon conviction by confession, or on oath of
two witnesses before two justices of the peace ; and in default
of payment, to be levied by distress and sale by warrant of the
said justices, by the churchwardens or overseers of the poor
of the said parish.'*
Habit of By Canon 58. Every minister saying the public prayers or

minister. ministering the Sacraments or rites shall wear a decent and
comely surplice with sleeves, to be provided at the charge of
the parish ; any question arising upon the decency or comeliness
thereof, to be decided by the ordinary.

Ministers, being graduates, shall wear upon such surplices
such hoods as by the orders of the universities are agreeable to
their degrees, which no minister, not being a graduate, shall
wear on pain of suspension.

But ministers not being graduates may wear on their surplices,
instead of hoods, a decent tippet of black, so it be not silk.

By 1 Eliz. c. 2, however, it was directed that the ornaments
of the church, and of the ministers thereof, shall be retained
and used, as were in the church of England, by authority of
parliament in the second year of Ed, 6, and by the Rubric
before the Common Prayer of 13^14 Car, 2, the same direction
is given. 2 Ed, 6, directs, '' that in the saying or singing of
matens and evensongCf bapiyning and burying^ the minbter in
parish churches and chapels annexed to the same, shall use a
surpless ; and in all cathedral churches and colleges, the arch-
deacons, deans, provosts, masters, prebendaries, and fellows,
being graduates, may use, in their quiere^ besides Xheir surplestet^
such hoods as pertaineth to their several degrees which thev
have taken in any university within this realm. But in aU
other places every minister shall be at liberty to use any ** sur^
pless'' or not. It is also seemly that graduates, when they do

^mu moxi^i94 767

preach, should use such hoods as pertain to their several Unifomuty,
degrees.*'

The clergy, however, in practice, usually adopt the ahove
canon as to their habit.

The order for morning and evening prayers used to begin with
the Lord's prayer, and end with the third collect for grace ; the
other five prayers, that now follow, having been added since.
Gibs. Cod. 300 ; 3 Bum. Ecc. L. 266.

From which, and other observations which follow, it will
appear that besides the several offices being now generally put
into one, which, at first were distinct and separate, they are
now become much longer than originally they were by additions
from time to time thereunto made. 3 Burn Ecc. L. ibid*

The psalter is according to the Hebrew division ; and the pgaims
translation of the great English bible as set forth,- and used in and Bible.
the time of Hen. 8, and Ed. 6.

Of the prayers and thanksgivings which now stand at the Pnyen
end of the Litany service : the first two prayers (for rain and and thaaks-
fine weather) were at the end of the Communion service in the 6^^"^^*
book of 2 Ed. 6. To which were added in the 5 Ed. 6,
these prayers: — In the time of dearth and famine; in the time
of war ; in the time of plague and sickness. The prayer to be
used after any other ; and the thanksgivings for rain, fair weather,
plenty, and deliverance from enemies, were brought in by James
the First. The prayers in the ember weeks — For the par-
liament and all conditions of men, were added in 1661 ; as were
also the general thanksgiving, and the thanksgiving for peace
and for deliverance from the plague. Gibs. Cod. 301 ;
3 Bum. Ecc. L. 266.

The publication of banns of matrimony, after the second PublicatioD
lesson, has been prescribed by the various marriage acts. Vid. of matters
ante J 509. By the Rubric also, some publications and notices " church.
are directed to be made and given after the Nicene creed ;
and by various acts of parliament and customs, publications and
notices have been directed to be given in temporal matters, but
by 1 Fid. c. 45, the law in that respect is now altered ; which
hy s. 1, reciting that by 58 Geo. 3, c. 69, notices of vestry
were directed to be given during, or immediately after divine
service, that by 31 Etta, proclamations of outlawry were di-
rected to be made at church doors immediately after divine
service on a Sunday ; and that by divers acts relative to the
assessing and collecting of highway and poor rates, and land
tax, and other matters, it is required that public notice should
be given relating to such matters, in the parish churches and
chapels during divine service ; and that by antient custom notice
is usually given in churches, and during divine servicei of the

768

^ublir Wotf^i^

Pobliettion
of matters
in church.

Disconti-
nued.

Mode of
giving no-
tices by
I Vict,
c 45.

Ezceptioni.

Behaviour
daring di-
vine ser-
vice.

times appointed for holding courts feet, courts bartm, and
customary courts ; enacts^ that no proclamation or other public
notice of a vestry meeting, or any other matter, shall be made
or given in a church or chapel, during or after divine service,
or, at the door of any churcn or chapel, at the conclusion of
divine service.

By s. 2, it is further enacted, *' that all proclamations and
notices, which, bv law or custom, have heretofore been made
or given in churches during, or after divine service, shall be
reduced into writings and copies thereof, either in writine or in
print; or partly in writing and partly in print, shaU, pre-
viously to the commencement of divine service on the several
days on which such proclamations or notices have heretofore
been made or given in the church, &c., or at the door of any
church, be aflSxed on or near to the doors of all the churches
or chapels within such parish or place ; and such notices, when
so affixed, shall be in lieu of, and as a substitution for, all the
several proclamations and notices to all intents, &c. '*

By s. 4. No decree relating to any faculty, nor any other
decree, citation, or proceeding whatsoever, in any ecclesiastical
court, shall be read or published in any church or chapel
during, or immediately after divine service.

Publication of banns of matrimony.

Notices of the celebration of divine service or sermons.

Declaration of holidays and fasting days in the week fol-
lowing, by the curate in pursuance of the rules in the book of
Common Prayer.

Proclamation or publication of what is prescribed by the
rules of the book of Common Prayer or enjomed by the queen
or ordinary.

Are especially excepted out of the operation of the act, by
«• 5.

The duty of maintaining order and decorum in the church,
lies immediately upon the churchwardens ; and if they are not
present, or being present, do not repress any indecency, they
desert their proper duty. Per Lord StoweU^ 2 Hag. Con. 141 •

By Canon 19, they shall not suffer any idle persons to abide
either in the churchyard or church porch during the time of
divine service, but shall cause them to come in or depart.

In Glover v. Hindf 1 Mod. 168 ; S Bum. Ecc. L. 262, it was
declared, that at common law a person disturbing divine service
might be removed by any other person there present, as being
all concerned in the service of Grod that was then performing ;
so that the disturber was a nuisance to them all, and might be
removed by the same rule of law that allows a man to abate a
nuisance.

By the 1 Wm, S, c. 18, If any person shall willingly, and of
purpose, maliciously or contemptuously, come into any cathedral
or parish church, chapel, or other congregation permitted by
this act, and disquiet or disturb the same, or misuse any
preacher or teacher ; he shall, on proof thereof, before a justice
of the peace, by two witnesses, find two sureties to be bound
by recognizance in the sum of £50, and in default of such
sureties shall be committed to prison, there to remain till the
next general or quarter sessions; and upon conviction of
the said offence at such session, shall suffer the penalty of
£20.

^9ti vide Appendix.

b b n

770

3EUjSU(ter.

Ecclesiastical register of birlhs and deaths.
By the Canon law.
By 62 Geo, 8, c. 146.

Register books transmitted to parochial deigj.
Entries in.
Copies of.
Registrar to report.
Alphabetical list of names and places.
Search of.
Penalties.
Disposal of.

Amending erroneous entries.
Civil register of births, deaths, and marriages.
By 6 i^ 7 Wm, 4, c. 86, and 1 Fict. c, 22.
Registrar-general.
Registrar's districts.

Superintendent and district registrars.
Register boxes.
Raster books.
Registry, of
Births.
Deaths.
Marriages.
Quarterly account of district registrars to auper^

intendents.
Copies to superintendent.
Searches and certified copies.
Evidence.
Penalties.

Appeal.
Punishments.
Amending erroneous entries.

A PARISH register is a book in which all the christenings,
marriages, and burials of the parish are recorded. It is said to
owe its origin to Cromwell, Lord Vicegerent, SOth Hen. 8,
1538; God.Abrid. 144. Edward 6th, and Elizabeth, each in
the first year of their respective reigns, strictly enjoined atten-
tion to the preservation of parbh registers, and in the 39th of
Elixabeth, 1597, a Canon was made for the purpose, which was
afterwards ratified and confirmed by the 70tb Canon, 1 Jac, I,
1607, whereby it was provided,

1. That one parchment book shall be provided at the charge

^tSiiUt. 771

of every parish, wherein shall he written the day and year of Ccdenas-
every christening, marriage, and burial* leTlrSe

5iMly. That for the sole keeping of this book, the church- Caaoa.
wardens, at the charge of the parish, shall provide one sure
coffer and three locks and keys, whereof one to remain with
the minister, and the other two with the churchwardens
severally ; so that neither the minister, without the two church-
wardens, nor the churchwardens, without the minister, shall at
any time take that book out of the said coffer.

3dlv. That upon every Sabbath-day the minister shall make
the aK)resaid entries in the book, and at the bottom of every
page, when full, the minister and churchwardens shall subscribe
their names.

4thly. That the churchwardens shall, once every year, within
one month after the S5th of March, transmit to the bishop a
true copy of all the entries in the register, signed by the
minister and churchwardens ; which certificate shall be received
without fee.

The provisions of this Canon have been since recognized and Knfoiced
enforced by several acts of parliament. ^y statute.

By 6 ^ ? Wm, 3, c. 6, s. 24, persons in holy orders are
directed within their respective parishes and places, '' to keep
a register in writing of every person married, christened, or
bom therein, or buried in the common burying places where
parishioners are buried,*^ and ''all parties concerned shall have
free access at seasonable times without fee.**

The law on the subject of ecclesiastical parish registers was
consolidated and amended by the 52 Geo, 3, e. 116; which was
entitled '* an act for better regulating and preserving parish and
otfier registers of births, baptisms, and burials in England.^'
That act, toffether with the 4 Geo. 4, c, 76, has been> indeed^
repealed, so far as they related to the registration of marriages,
by the late act 6^7 fVm. 4, c. 86 ; but, for the purpose of an
ecclesiastical register for births and deaths the law is not
altered ; indeed it is provided by the 6^7 Wm* 4, c. 86, «. 49,
** that nothing therein contained shall affect the registration of
baptisms and burials as now by law established, or the right of
any officiating minister to receive the fees now usually paid for
theperformance or registration of baptism, burial, or marriage.'*

The 52 Geo* 3, c* 146, s, 1, enacts that registers of public 5^ Geo. d»
and private baptisms, marriages, and burials, solemnised ac- c. 146.
cording to the rites of the united church of England and j^ ■ ^^^
Ireland within all parishes or chapelries in England, shall bo<^toba
be kept by the rector, vicar, curate^ or officiating minister, of ^^?^
every parish or chapelry, on durable paper, to be provided by
the king's printer, at the expense of the parishes, &c. ; every
entry to be numbered progressively, and divided from the next,

D D D 2

772

SUs(0ter.

62 Geo. 3«
c. 146.

Books to be
transiDitted
to parochial
clergy'.

Entries to
be made.

If ceremo-
ny out of
parish
church.

Books to be
kept by
rectors, &c.

Copies of
entries to
be sent to
registrar of
diocese.

entry by a printed line, according to the forms in the schedules,
and every page numbered progressively.

By «. 2, a printed copy of the act, with one book, prepared
in conformity with the forms in the schedules, to be transmitted
to the officiating ministers of the several parishes in England ;
which books also are to be proportioned to the population of
the several parishes, &c* according to the last returns ; other
like books, when necessary, to be furnished by the church or
chapel wardens, at the expense of the parish, &c., whenever
required by the rector, &c., and shall be also of paper, unless
required to be of parchment by such church or chapel wardens.

By s. 3, such registers are to be kept in separate books, and
the officiating minister, &c. shall, as soon as possible, (and never
later than seven days, unless prevented by sickness or unaToid-
able impediment), after the solemnization of every private or
public baptism or burial, enter, in a legible handwriting in the
proper register book, the required particulars, and sign the

same.

By s. 4, whenever the ceremony of baptism or burial is per-
formed in any other place than the church or churchyard of a
parish or chapel, or chapelyard of any chapelry, providing its
own distinct registers, by any other minister than the rector,
curate, &c. thereof, the minister performing the same shall, ou
that or the next day, transmit to such rector, &c., or his curate,
a certificate of such baptism or burial, as in schedule D«, who
shall thereupon enter the same in such book, adding to such
entry, " according to the certificate of the Rev. ,

transmitted to me on the day

By s» 5, the abuve books of entries, and all register books before
in use, to belong to every parish or chapelry, and be safely kept
by the rector, &c., or officiating minister thereof, in a dry well
painted iron chest, provided and repaired at the expense of the
parish, &c., and shall be constantly kept locked in some dry and
safe place in his house, if resident within the parish, &c., or in
the church or chapel; and shall not be removed therefrom
except, for making the above entries, and for the inspection of
persons desirous to search the same, or to obtain copies thereof,
or to be produced as evidence in some court, or for inspection
as to their state, or for the purposes of this act ; and imme-
diately after, to be forthwith returned into the chest.

By s, 6, at the expiration of two months after every year,
copies of all the entries of baptisms and burials in the year pre-
k '"^' ^^^ '^ ^^ made by the officiating minister (or church or
chapel wardens, clerk, or other person under his direction) on
^^!i^ u ^"^ (as in the schedules) to be provided by the parishes,
and the contents thereof shall be verified by such minister, in
the form following :—

jRejrttter, 773

I, A. B., rector (or as the case is) of the parish of C. (or of ^, J*^* ^*
the chapelry of D.) in the county of E., do hereby solemnly ^'
declare, that the several writings hereto annexed, purporting Form of
to be copies of the several entries contained in the several <^'«^
register books of baptisms, marriages, and burials, of the parish
or chapelry aforesaid, from the day of to the

day of , are true copies of all the several entries, in the

said several register books respectively, from the said
day of to the said day of , and that no

other entry during such period is contained in any such books
respectively ( which entries) are truly made

according to the best of my knowledge and belief.

(Signed) A, B.

The above to be fairly written, without stamp, immediately
after the last entry, and the signature to be attested by one, at
least, of the church or chapel wardens.

By g. 7, copies of such register books, verified and attested Copies sent
as above, to be transmitted by the church or chapel wardens, J^/^'
signed by one of them, by post, to the registrars of the diocese^
on or before 1st of June in each year.

The registrar of every diocese, on or before 1st July, to Registrars
report to the bishop whether such copies have been sent to such '° report,
registrar ; and if not so transmitted, specially to state the default.

By s, 9, if the minister neglect to verify and sign such copies. Church-
&c., so that the churchwardens cannot transmit the same, wardens to
the latter to certify such default to the registrars, who shall J^^^^
specially state the same in his report to the bishop.

By s. 10. In all cases of baptism or burial in any extra- £xtra-p«-
parochial place, according to the established church, where there ^^^
is no chnrch or chapel, the ofiiciating minister shall, within one ^ ^^^
month after such baptism or burial, deliver to the rector &c.,
of such parish immediately adjoining to such extra-parochial
place, as the ordinary shall direct, a memorandum of such
baptism, signed by such parent of the child baptised; or of such
burial, signed by the person employed therein, with two of the
persons attending the same, as the case may require ; containing
the particulars herein-before required, which memorandum, so
delivered, shall be entered in the parish register.

By «• 1 1, the superscription on all letters, containing the copies Letters po»t
of the parish and other registers, to be indorsed and signed by ^>^*
the church and chapel wardens, as in schedule E., and go
postage free.

By s. \2. As often as the copies of such registers and lists
are transmitted to the registrars, they shall cause them to be
safely kept, and to be so arranged as to be resorted to when
required, and shall cause correct alphabetical lists, to be made ^y^^'
in books, of the names of all persons or places therein, which, names and

places.

774

3ltgtfi(tfr.

62 Geo. 3,
c. 146.

False CD-
tries.

lojuring or

destroying

registers.

Amending
entries.

Fees.

No stamp
to copien.

Penalties.

witli the above copies, shall be open to public search, at
reasonable times on payment of the usual fees.

By s. 14. Every person who shall knowingly and wilfully
insert, or cause or permit to be inserted, in any such register
of such baptisms, or burials, or in any such copy, or in
any list or declaration, ordered to be transmitted to aucb re-
gistrars, any false entry of any thing relating to any baptism or
burial.

Or who shall falsely make, utter, forge, or counterfeit, or
cause, procure, or wilfully permit, &c., any part of such re-
gister, list, or declaration, or copy of such register.

Or who shall wilfully destroy, deface, or injure, or cause to
be destroyed, any such register, or part thereof.

Or shall wilfully sign or certify any copy of any such
register, required to be transmitted, which is false in any part
thereof, knowing it to be faUe^ shall be deemed guilty of
felony, and transported for fourteen years.

By s, 15. No rector, &c. who shall discover any error in the
form or substance of the entry of any such baptism or burial,
by him solemnized, shall be liable to these penalties, if he shall,
within one calendar month after discoveir of such error, in
presence of the parent or parents of the child baptised, or of
the parties married, or of two persons who attended at any
burial, or in case of the death or absence of the respective
parties, then in presence of the church or chapel wardens (who
shall attest the same), alter and correct the entry found to be
erroneous, according to the case, by entry in the margin of
such book wherein such erroneous entry is made, without
alteration of the original entry : and he shall sign such entry in
the margin, and add to such signature the day of the month and
year when such correction was made ; provided that in the fair
copy of the register so transmitted to the registrars of the
dioceses, the officiating minister shall certify the alterations so
made by him. Vid. 6%^ Wm. 4, c. 86, 9. 44; post 788.

By s, 16. The fees to officiating ministers, and to the registrar
for copies of registrations, and the power of the recovering the
same, to remain as before the act.

By 8. 17. No duplicate or copy to be chargeable with stamp
duty.

By s» 18. One-half of the penalties to go to the informer or
party suing ; the remainder of those imposed on any church or
chapel warden, to go to the poor of the parish ; and the re-
mainder of those imposed on any rector, &c., minister, or
registrar, to such charitable purposes in the county as the
bishop shall appoint.

A select committee of the house of commons was appointed
«n the 28th of March, 1833, to consider and report "on the

»fffttttr» 776

'' general stale of parochial registrars, and the laws relating to 6& 7W.4,
" them, and on a general registration of births, baptisms, ^' ^'
" deaths, and marriages in England and Wales ;" which com-
mittee in its report recommended " that a national civil regis-
'' tration of births, marriages, and deaths, should be established."
In the session of 1836, the 6^7 Wm. 4, c. 86, passed through
both houses of parliament, and received the royal assent on the
I7th of August in that year, having for its object to carry into
effect the recommendation of the above committee, and repeals
so much of the 52 Geo. 3, c. 146, and 4 Geo. 4, c. 76, as related
to the registration of marriages.

The 6^7 Wm. 4, c. 86, which has been since explained and
amended by the 1 Vict. c.S2\ by s. 2, provides for the esta-
blishment of a '* General Register Office," and by s. 3, for the
appointment of a ** Registrar-general," with officers, clerks,
and servants, to carry on the business of the office ; and by
s. 4 for the salaries of the officers and general expenses of the
office.

By I Viet* c. S2, «• 15, the registrar-general, subject to the Registrar
approval of the lords of the treasury, may appoint a deputy in general.
case of illness, with the same powers as the registrar general, Maylipr'
except in making general rules as provided for by 6 ^ 7 Wm. point de-
4,* c. 86, «. 5, or in rescinding them when made, or in re- P^^y*
moving persons holding offices at the pleasure of the registrar-
general.

By s. 5, one of his Majesty's principal secretaries of state. May make
or the registrar general, with the approbation of such principal regulations.
secretary, may make binding regulations for the management of
the office, and for the duties of the registrar general, clerks,
officers, and servants of the office, and of the registrars,
deputy, and superintendant registrars in the execution of the
act, if not contrary to its provisions.

By *. 6. The registrar-general is directed, once in every year, To send ab-
to send to one of the principal secretaries of state, a general '^'^^
abstract of the births, deaths, and marriages, registered during
the year, to be laid before parliament one month after the
receipt thereof, or after the meeting of parliament.

By s. 7. The guardians of every poor law union, and of Ragletrar's
every parish or place in which a board of guardians shall have ^'"^^'
been established under the authority of the 4^5 Wm. 4, c. 76, Guardians
shall within three months after the establishment of such board, ^ ™*k«*
divide such union or parish, or place, into as many districts as
they, subject to the approval of the registrar general, shall
think fit.

By 1 Viet. Such division to be published, and every district To be pub-
shall be called by a distinct name, and called a registrar's district. li«t>«<l*

770

iUstttcr.

Regiitrarii

district.

Poor law
commis-
sioners to
make.

Outlying
places in
oistricti.

Unitiog
districts.

Divkliog
unions, ficc.

Superintend
dent and
district
registrars.

Clerks of
unions.

Msy ap-
point de-
pttties.

By 1 yicL c. 0S, #. IS. If the guardians neglect to form
registrar's districts, the poor law commissionen are empowered
to do so.

By 1 FicL c, 22, s* 9» The registrar-general may, with the
consent of the poor law commissioners, direct that any place,
lying wholly within, but not being part of, any union, parish or
place, where a board of guardians is established, ahaU be part
ofoneormore registrar's districts within such union, &&, or
if not lying wholly within such union, then to be annexed to
such union.

By 1 Fid. c. 22, s. 9. The registrar-general, with the ap-
proval of the secretary of state, may unite two or more anions,
&c., or two or more superintendent registrar's districts into one
superintendent's district ; and may declare by which board of
guardians such superintendent is to be elected; and such super-
intendent shall be the sole superintendent, and all things in
the registration acts relating to superintendents shall apply to
him as such.

By 1 VicL c. 22, s. 11. The registrar-general may, with
like approval, divide any union, parish, or place, or any super-
intendent's district, notice of every such division to be given in
the London Gazette; and the guardians shall appoint super-
intendent registrars for the new districts, and shall appoint for
which district the former superintendent of the whole district
shall continue to serve as superintendent.

By 6 4r 7 Wm. 4, c. 86, s. 7. Superintendent and district re-
gistrars are to be appointed, and vacancies supplied, by the
board of guardians. By 1 Vict. c. 22, 8. 14, if the guardians
omit to appoint registrars or stiperintendents for fourteen days,
after being required to do so, the registrar-general may appoint.
The clerk to the board of guardians, if qualified, to be super-
intendent-registrar. By 1 Vict. c. 22, *• 17, if there be more
than one clerk, and both be qualified, the guardians may elect
which they like. In case of his refusal, or disqualification, the
board of guardians to appoint some fit person to be superin-
tendent registrar, and supply vacancies in the office.

By 6 ^ 7 Wm. 4, c. 86, s. 8, the appointment of any oflScer of
an union to any office under the registration act, is to be
subject to the approval of the poor law commissioners, except
m the cases of the clerks to the guardians. Every registrar and
superintendent registrar to hold his office during the pleasure
of the registrar-general.

3y 1 Vict. c. 22, *. 16. Superintendente, with approval of
r^istrar-general, may appoint deputies in case of illness or
absence,' and in case of death of superintendent, such deputy
to act till a superior is appointed.

»<B<«ter. 777

By 6 4* 7 JVm* 4, c. 86, s. IS. Registrars appointed by Superm-
guardiansy have power, Bubject to the approval of such guardians ; tendent and
and registrars appointed by the poor law commissioners, subject ^^^.'^

to their approval, respectively to appoint deputies in case of '- —

illness or unavoidable absence ; and in case of death such
deputy shall act till successor appointed ; such deputy, su-
perintendent, and deputy registrars, to have all the duties of
superintendent and aistrict registrars, and to be subject to all
the provisions and penalties attached to those offices. Super-
intendent and district registrars to be civilly responsible for the
acts and omissions of their respective deputies.

By 6 4 7 Wm, 4, c. 86, ««. 10 & 11. In parishes, &c., in Temporary
and for which a board of guardians shall not have been esta- f^^""'
blished under the provisions of the poor law amendment act, and district
temporary registrars and superintendent registrars may be ap- registrars.
pointed ; but when the unions are completed, such tempoi*ary
appointments are to be vacated.

By 6 ^ 7 Wm. 4, c. 86, s. 8. In every case where registrars ReiDorab
or superintendents shall be removed by the registrar-general, pabliahed.
notice of such removals shall be advertised in some paper
circulating in the district, and they are incapable of being
re-appointed.

By 6 ^ 7 Wm, 4, e. 86, «. 13. Appointments of superin- Appoint-
tendents, registrars, and deputies, to be free from stamp mentefree

duties. fromstamp.

By 1 Vict, c,2!ZfS. 18. Registrars of births and deaths, and Exempt
of marriages, are exempted from serving on juries or inquests, fromofficefc
and from all corporate and parochial offices.

By 6 ^ 7 Wm. 4, e. 86, s, 9. Guardians are directed to pro- Superin-
vide and uphold a register office on a plan approved by the tendent's
registrar-general, for preserving the registers to be deposited ®"*^**
therein ; the care Of the office, and custody of the registers
devolves on the superintendent-registrar.

By 1 Vict. c. 22 f s. 19. Guardians may borrow money in To be pro-
order to provide fit register offices, and charge the amount on >uled by
the rates of the parishes of the union, in the same manner as ^"*'"*°*"
with respect to monies borrowed for building workhouses by the May bor«
Poor Law Amendment Act ; save only, that the yearly instal- V^^ money
ments for repaying the money shall not be less than one- ^'*
twentieth, but may be more, together with the interest.

By the same act, s. SO. If guardians refuse or neglect to Refusing to
provide and uphold a register office, the commissioners of the reptdr°loni»
treasury, or three of them, may order a sum of £300 for oftreasury
providing the same; and all sums needful for repair; in may make
case the guardians should refuse or neglect to repair; and ^^^^
to make an order on such guardians for repayment, as well

778

itegidter.

Superin-
teodeat's
offices.

Rooms may
be substi-
tuted.

Office to be
within dis-
trict.

District re-
gistrar and
deputy to
dwell
within dis-
trict.

Regi»ter
boxes.

Regitter-
boolES to be
printed.

And fur-
nished.

Certified
copies.

as of all costs and expenses of making and enforcing such
order.

And by #. SI. Till an office be provided, the superintendent
registrar shall appropriate some fit room or rooma to be ap-
proved by the registrar-general as a superintendent's oflSoe.

And by s.l2,l Vict. c. 22. The superintendent's oflSce for
the act, to be taken to be within the district for which it is the
register office, though not locally situate within it.

By 6 4r 7 Wm. 4, c. 86, s. 16. Every registrar and deputy
registrar is to dwell within his district, and shall cause his name,
with the addition of registrar or deputy, as the case may be,
with the name of the district for which he is appointed, to be
placed in some conspicuous place, on or near the outer door of
bis dwelling-house ; the superintendent to cause to be printed
and published a list of the names and places of abode of every
registrar and deputy-registrar within his superintendence.

By 6 ^ Wm. 4, c. 86, ^.14. The registrar-general is required
to furnish to every superintendent registrar, for the use of the
district registrars under his superintendence, a sufficient number
of strong iron boxes.

Every box to have one lock and two keys.

One key to kept by the district registrar, and one by the
superintendent.

The register-books, when not in use, to be kept in the box.

Each box to be kept locked.

By 6 I* 7 Wm. 4,c. 86, m. 17 and 18. The registrar-general
is to cause to be printed a sufficient number of register-books,
according to the forms of schedules A. B. and C. to the act
annexed.

A. for registering births.

B. for registering deaths.

C. for registering marriages.

The booKs to be of durable materials ; and the heads of in-
formation required to be known and registered, to be printed on
each side of every leaf.

Every page to be numbered progressively, beginning with

number one.
Every entry to be divided from the following entry by a

printed line.
By *. 18. The registrar-general is to furnish to every super-
intendent for the use of the district registrars
Register-books of births and of deaths, and
Forms for certified copies thereof, at a reasonable price to be

fixed by the secretary of state.
By s. 30. The registrar general is also required to furnish,
1st, to the incumbent or curate of every church or chapel
where marriages may legally be solemnized.

JUffijtten 779

Sdly. To the registering officer of Quakers in England. ^S^^

3dly. To the secretaries of Jewish synagogues in England ;

4tbly. By the 6 ^ Wm. 4, c. 85, #. 28, to every registrar of xo incam-
marriages, a sufficient number of marriage register books, bentt,
and forms for certified copies thereof. officer* of

The costs in the second and third cases to be paid by such 2ecreuries
registering officer or secretary respectively. of syna-

And in the first and last, by the 1st Vict. c. 22, s. 26, by f^^\^
the guardians, churchwardens and overseers, as the case riageregis.
may be, out of the monies coming into their hands for the tran.
relief of the poor.

With regard to the disposal of the register-books for births Of births
and deaths, it is provided by *. 32, 6 ^ 7 Wm. 4, c. 86, that they J""^'"*
shall be safely kept by the district registrar, till they are filled, posed of.
who is then required to deliver them to the superintendent, to
be kept by him with the records of his office.

The book for registering marriages is required to be kept by Of mar-
the incumbents of the established church, registering officers of "^S^-
Quakers, and secretaries of Jewish synagogues in duplicate,
and when filled, one copy is to be delivered to the super-
intendent, and the other to remain in the keeping of such
incumbent, registering officer, or secretary, to be kept by
such incumbent, with the registers of baptisms and burials of
his parish ; and by such registering officer, or secretary, with
their other registers and records, and shall, for the purposes of
the act, be deemed to be still in the keeping of such registering
officer or secretary respectively. Sec. 35, post 785, 786.

By 6 ^7 Wtn, 4, c. 86, 9. 15. In case any superintendent shall Saperinten-
be removed, or cease to hold his office ; all register boxes, books, dents re-
documents, and papers in his possession as such, shall be given to ^T?*(- v^
his successor in office ; if he refuse to give them up, he may be delivered
brought up under warrant before two justices, who upon such up.
person appearing or not being found, may determine the matter
in a summary way ; and if it appear that any box, &c., is in the
custody of such person, and that he has refused or wilfully
neglected to give up the same, the justices are required to com- RefoslDg to
mit such offender to the common gaol or hou^e of correction, do so majr
there to remain without bail, till he has delivered up the same, ^co™™i*»
or until satisfaction be made to the person who ought to receive
the same ; and the justices may grant a warrant to search for
such boxes, &c., as in the case of stolen goods, in any place
where a credible witness shall prove on oath, that there is rea-
sonable cause to suspect the same to be, and the same when
found are to be delivered to the person in whose custody they
ought to be.

780

3iriric(ter.

The form of registering a birth as given in schedule A., is as ibUows :—

ISSS.'^Births in the district of Marylebone Norths in the county of

Middlesex.

FORM OF REGISTRY.

No.

When
bom.

Name,
if any.

Sex.

Name and
Surname
of Father.

Name anil

Maiden

Somame

of Mother.

Rank or
profeuioD
of Fitther.

Signature,
deacrlptiob,
and resi-
dence of In.

When
regis,
tered.

SicnAtitre
of Regis.

tmr.

Baiitianal,

name, if

•ddedaftrr

RegistratioB
oTRizth.

7th

Jan.

iMiry

Jtmtea,

Bof,

WiiOam
Green.

Rebecca
Oteen,
formerly
JewUnge-

Carpenter,

Waiiam

€hreen. Fa.

ther. Car*

North Street f
Mmylebone,

9tk
Jan.

ttorgr.

JakmCam,

Regietrar.

Births.

Place of
birth.

R^:istrar
to mform
himself of
particulars
required.

Father, ficc.
to^ve
notice of
birth.

Father, &c.
to give iu-
formatioQ
requisite.

After ezoi-
ration of tae
forty two
days.

By 1 Vict, c. 22, s. 8. The registrar-general may direct the
place of birth to be added to the register.

The lower compartments, the contents of which are given in
italics, are those which the registrar is directed to fill up, and
for that purpose he is, by 6 4r 7 Wm. 4, c. 86, s. 18, authorized
and required to inform himself carefully of every birth, and to
learn and register, as soon after the event as conveniently may
be, the several particulars required by the above form to be
registered. In order to enable him to do this, it is enacted,
by s» 19, that the father and mother of every child bom, or the
occupier of every house or tenement in which a birth shall
happen, may, witnin forty-two days next after the day of such
birth, give notice of it to the registrar of the district. In ca^e
a new-born child, or any dead body, shall be found exposed,
the overseer, in the case of a new-born child, and the coroner, in
the case of a dead body, shall cive notice and information thereof,
and of the place where the child was found. For the purposes
of the act, the master or keeper of gaols, prisons, houses of
correction, hospitals, lunatic asylums, or public or charitiible
institutions, to be deemed occupiers thereof.

And by s. 20. The father and mother, or in case of their
death, illness, absence, or inability, the said occupier, shall,
within such forty-two days, give information to the registrar,
according to the best of his knowledge and belief, of the several
particulars above required to be known and registered.

If the forty-two days, above appointed, have elapsed without
the birth being registered, the registry cannot be made in the
above manner ; but, by s, &2, it is required that some person
present at the birth of the child, or its father or guardian,
should makea^o/eiRii declaration of the particulars required to be
known, touching the birth of such child, according to the best

lEUdiftter*

781

No nptliij
after nz
months*

Additkm of

baptismal

name.

Form of
certificate.

of bis knowledge and belief; upon which information the Births,
registrar, in the presence of the superintendent-registrar, before
whom the said declaration is to be made, may register the birth ;
although it is not expressly directed that this declaration should
be made in the presence of the superintendent, yet it seems
that such is the object of the provision.

After six months from the birth have expired, it is expressly
enacted, by #• S3, that no registrar shall register the birth of
any child.

If a child have any name of baptism given to it within six
months after it has been registered ; it is provided, by s. 24,
that the parent or guardian, or other person procuring such
name to be given, may, within seven days next after such
baptism, procure and deliver to the registrar or superintendent,
in whose custody the re^ster of the birth may then happen to
be, a certificate in the following form :

I, G. E., yicar of B., in the county of K., do hereby certify,
that I have this day baptised, by the name of a male or

female child, (as the case may be), produced to me by W. G.,
as the son of W. G. and R. G., (the father's and mother's
names), and declared by the said W. G. to have been born at
M., in the county of M., on the day of , 1839.

Witness my hand this day of , 1840.

G. E., vicar.

The minister is required to give such a certificate immediately
after the baptism, and to receive one shilling as a fee for so
doing; upon receiving which certificate, the registrar or super-
intendent, without any erasure of the original, is directed to
register that the child was baptised by such name, (it will be
observed that the last compartment in the form of registry is
destined for such entry), and to certify upon such certificate the
additional entry so made, and forthwith send the said certificate
through the post to the registrar-general, and vid. 1 Vict,
c. 22, s. 2.

The form of registering a death, as given in schedule B, 6 ^
7 Wm. 4, c. 86, s. 25, is as follows : —

18S9. — Deaths in the district o/M., in the county of M.

FORM or REGISTRY.

Deaths.

No.

17.

When
died.

4M^«d.

Name and
Sumame.

WUUam

Sax.

Jtfafa.

Afa.

49.

PioiBsrioii.

Cmpmdtr*

Cause

of
Death.

Sigrnatnre, de-

BCTlptioD, and

rasidenoe of

Informant.

Widow, 17,
North Stttti,
Mtufjfltko^tt

When
registered.

SigDatnre
of Beglatrar

6M Foh-
ruwy.

John Cat,
Registrar.

782

^fsinut.

Detths.

Place of,
may be
added.

Infonna-
tioo.

Inquests.

Certificate
for burial.

Form of.

Order of
coroner.

Form of.

Birthi and
deaths at
sea.

By I Vict c. 22, #. 58. The place of death may be added
to the entry, if so directed by the registrar-general.

The lower compartmentsi as in the case of registration of
births, are those which the registrar is directed to fill up ; and
for this purpose, some person present at the death, or in attend-
ance during the last illness, or in cases of the death, illness,
inability, or default of such persons, the occupier ; or if the
occupier shall be the person who has died, some inmate of
the house or tenement in which the death has taken place,
shall, within eight days next after such death, give informa-
tion, upon being requested to do so, to the registrar, ac-
cording to the best of his or her knowledge and belief,
touching the several particulars required to be known and
registered concerning the death ; and the informant, by s» 28,
is directed to sign the register with his name, descriptioo, and
place of abode.

In cases of inquests the coroner is to inform the registrar of
the finding of the jury, and the registrar is to make his entry
accordingly.

The registrar, having received the information and made his
registry, is.

By 8. 27. Required to deliver to the undertaker, or person
having charse of the funeral, the following certificate, the
form of which is given in schedule E.

1, A. B., registrar of births in the district of M., in the
county of M., do hereby certify that the death of H. H. was
duly registered by me on the day of 1836. Witness

my hand this day of 1 836.

John Cox, registrar.

Such certificate is to be delivered to the minister or other
officiating person burying or performing any religious service
for the burial of the dead body. If any body be buried without
such certificate, the person burying shall give notice to the
recristrar.

In cases of inquests, the coroner may, if he thinks fit, order
a body to be buried before registry of death, giving the follow-
ing certificate, as in schedule F., in writing, under bis hand, to
the undertaker or person having charge of the funeral.

I, S. T. coroner for the county of D., do hereby order the
burial of the body, now shewn to the inquest jury as the body
of J. S. Witness my hand this day of 1836.

S. T. coroner.

In the cases of births and deaths at sea, it is provided by
«• 21, in the case of births, and by s, 26, in the case of deaths,
that if any child of an English parent be bom, or any English
subject die at sea on board a British vessel, the commanding
officer, shall make a minute of the particulars above required to

^SitffUittr,

783

be inserted in the register of births and deaths respectively! and
the name of the vessel ; and shall, on the arrival of such vessel
in any port of the United Kingdom, or any sooner opportunity,
send a certificate of the minute, through the post office, to the
registrar-general, who shall file the same, and enter a copy
thereof, under his hand, in a book to be kept for that purpose,
called the " Marine Register Book,** and shall keep the said
book with the other registers, according to the provisions of
the act.

By 1 Vict. c. S2, s. 6. The marine register books were di-
rected to begin on 1st July, 1837, and not to contain the birth
or death of any person dying before that day.

By s. 31,6^7 Wm. 4, c. 86, it is provided, that every clergy-
man of the church of England immediately after a marriage
celebrated by him ; and every registering officer of the Quakers,
as soon as conveniently may be after the solemnization of a
marriage between two Quakers; and every secretary of a syna-
gogue immediately after every marriage celebrated between two
persons professing the Jewish religion, and by 6 ^ 7 Wm. 4,
c. 85, s. 23, every registrar of marriages forihwiik^ shall re-
gister, or cause to be registered in duplicate, in two of the said
marriage register books, the several particulars required ac-
cording to the following form given in schedule C.

Birtbfftiid
deaths at
sea.

Marriages.

When to be
made.

By whom.

To be made
ia dupli-
cate.

1839. — Marriages celebrated in the parish churchy in the parish ofM.^ in

the county ofM.

FORM OP REGISTRY.

No.
1.

When
Married.

Mtmea mnd
Surnames.

Ate.

Cbndltion.

Banker
Profeaslon.

Resldenoe

aft the time

of the Mar.

riace.

Father's
Name and
Surname.

Ranker
Profession
of Father.

nth March,
isag.

WiUUm But.

4m mm

Sophia MitcheU,

oge.
Minor,

Bachelor.
Spinater,

Carptntv,

s. South
Street.

17. High
Street,

Peter Boat'

ing»,

OeoJ^eu

MitcheU.

UphoUtterer,
Butcher,

Married in the parish church, according to the rites and ceremonies
of the established church, by license or after banns, by me,

J. H., vicar.

The lower compartments of the above form, as in the forms
for births and deaths, the contents of which are given in italics^
are to be filled, according as the case may be«

784-

3^Siittt*

Marriages.

In licensed
places of
worship and
renter
offices.

Informa-
tion.

Quarterly
accounts.

The registering officer of the Quakers, or secretary of the
synagogue, is required to satisfy himself that the marriage has
proceeded conformably to the usages of the particular society.
Every such entry in the register is to be signed by the clergy-
man, registering officer or secretary, the parties marrying, and
by two witnesses ; and to be made in order from the beginning
of the book, and numbered*

The above provisions apply only to marriages celebrated
according to the form of the church of England or of Quakers,
and Jews ; two other modes of marriage have, however, been
legalized by the late act, viz., marriages in licensed places of
worship, according to the form of some religious congregation ;
and in the registrar's office, without any religious form or cere-
mony whatsoever by that act.

By 6 ^ 7 Win. 4, c. 85, ss. 20 and 98. Provision is made for the
registering such marriages, and as the registrar of marriages is
required to be present at both such descriptions of marriages,
he is required, by s. 23, forthwith to register the same in a
register book, furnished to him for that purpose by the regis-
trar-general ; according to the form provided for the registration
of marriages by the 6 |- 7 Wm. 4, c. 86, ante 779, 783.

Every entry of such marriage is to be signed by the person
before whom such marriage shall have been solemnized, (a) by
the registrar, and by the parties married ; and attested by two
witnesses.

In order to obtain the necessary information in the case of
marriage registries, it is provided by s. 40, 6 4" 7 JVm. 4, c. 86,
that clergymen of the church of England, the regbtering officers
of the Quakers, and the secretaries of the Jewish synagogues ;
and by 6 & 7 Wm. 4, c. 85, s. S6, that registrars of marriages
may ask of the parties married the several particulars required
to be registered.

By 6 & 7 Wm. 4, c. 86, s. 29, it b enacted, that every registrar
shall make out an account, four times in the year, of the number
of births and deaths ; and by 6 & 7 Wm. 4, c. 85, s. 24, everv
registrar of marriages shall give account of the marriages which
he shall have registered since the last quarterly account ; and
the superintendent shall verify and sign the same.

The registrar to be allowed for the first twenty entries two
shillings and sixpence for each entry, and one shilling for every
subsequent entry.

In cases of unions, each parish to pay for its own entries.

(a) This can only be done in case the marriage be celebrated in a
licensed place of worship, according to some religious form ; when it is
celebrated as a mere tivil contract in the registrar's office, no such
person is present.

3SitSigttV^ 785

By s. 33y of the same act, registrars of births and deaths, and Certified
by 6 & 7 Wm, 4, c. 85, s. 28^ registrars of marriages are re- copies.

Siiired in April, July, October, and January, on days to be sent to nu.
xed by the registrar-general, to make and deliver to the perinten-
superintendent a true copy of all the entries of births and '*^°^'
deaths in the register-book kept by them, the same to be made ^^[^^^^30^
on durable materials, and certified by each under bis hand, in marriages.
the following form, according to schedule D. :

I, J. S. registrar of births and deaths in the district of M., Form of.
in the county of M., do hereby certify, that this is a true copy
of the registrar's book of births, (or deaths,) within the said
district, from the entry of the birth, (or death,) of J. G., No. I,
to the entry of the birth (or death) of W. S., No. 84. Witness
my hand this day of 1839.

S. C. Registrar.

The superintendent is to verify the same, and if found to be l^Qo entry.
correct, certify it under his hand to be a true copy ; if no birth or
death has been registered ; the registrar is so to certify, and
the superintendent to countersign, such certificate.

In like manner, by «• S3, rectors, vicars, and curates, register-
ing officers of Quakers, and secretaries of Jewish synagogues,
are required at the like times^to make and deliver to the superin-
tendent, a true copy of all entries of marriages in the register*
book kept by him ; if no marriage be entered, the same to be
certified by him under his hand, such copy to be made in a
book of durable materials.

By 6 ^ 7 JVm, 4, c. 86, s* 34. Every superintendent is, in To be Rent
his turn, required four times in every year, on such days as ^ registrar-
may be fixed by the registrar-general, to send to him all the cer- ^°^^^ *
tified copies of the registers of births, deaths, and marriages,
which he shall have received during the three calendar months
next preceding.

Interruptions in the books may be remedied and supplied.

The superintendent may charge 2d. for every entry in such
certified copies, and shall make out an account four times in
the year of the number of entries in the certified copies sent to
him in the last quarter, and the certified copies so sent to the
general register-office shall be kept in the said office, in such
order and manner as the registrar-general, under the direction
of the secretary of state, shall think fit, so that the same may be
most readily seen and examined.

In order to facilitate the searching of registers, it is enacted Searches
by 6 §• 7 Wm. 4, c. 86, #. 35, that every incumbent, &c., regis- J"^ <^«^^-
tering officer of Quakers, or secretaries of Jewish synagogues, ^ ^^op'^^-
who shall have the keeping of registers of marriages, (and by
s. 32f registers are to be deemed in the keeping of such

E EE

786

30itsistUr*

Searches
and certi-
fied copies.

Fees for.
lodexeSk

Fees.

Eyidence*

Certified
copies to
be sealed or
stamped.

Registers of
forty-two
days after
birth.

None evi-
dence after
six months.

Nor unless
signed by
informant.

registering officers and secretaries for the purposes of the act),
and every registrar, who shall have the keeping of registers of
births and deaths and marriages, shall at all reasonable times
allow searches to be made, and give copies of entries certified
under his hand, charging Is. for every search over a period not
more than one year, and 6d* for every additional year, and
2s, 6d. for every single certificate. For the purpose of further
facilitating such searches, it is enacted, by s, 36, that every
superintendent shall cause indexes to be made of the register
books in his office ; and by s. 37, that the registrar^general shall
cause indexes of the certified copies transmitted to him, such
indexes to be kept in their respective oflSces*

Searches may be made, and certified copies of entries had, at
the superintendent's office, at all reasonable hours, at the
general register ofiice from ten till four, on every day, Sundays,
Good Fridays, and Christmas-days excepted.

At the superintendent's oflSce,

General searches, 5s. ; particular searches. Is, ; certified
copies, 2s. 6d.

At the regbtrar-general office.

General searches, 20s, ; particular searches, l^. ; certified
copies, 2s* 6c/.

By 6 ^ 7 Wm. 4«, c. 86, s. 38. It is enacted, that all certified
copies given at the general register office shall be stamped or
sealed with the seal of the office, and all copies purporting to
be so sealed or stamped, shall be received as evidence of the
birth, death, or marriage, to which the same relates ; but no
such copy '' shall be of any force or efiect which is not sealed
or stamped.** The meaning and object of this last branch of
the clause is not clear, the provision, not being that copies un-
sealed or unstamped shall not be received in evidence, but that
they shall not be of any force or efiect.

The above general enactment as to the admissibility of cer-
tified copies of the register is, however, controlled and limited
by some of the preceding sections. By s. £S, it is enacted, that
no register of births shallbe given in evidence to prove the birth
of any child, if it appear that forty-two days have intervened
between the day of tbe birth and the day of the registration
of the birth of such child, unless the entry be signed by the su-
perintendent as well as by the district registrar ; ante 780 ; and by
s» 23, if it appear that six months have intervened, the register
shall sot be received in evidence at all, except in the case of
children born at sea ; ante 781 ; and further, by s. 28, no register
of birth or death shall be given in evidence at all, which has not
been signed by the person professing to be the informant, and
to be such party as is required to give the information to the re-
gistrar. Ante 782.

lUgfeten 787

By 6 jj- 7 Wm. 4, e. 86, s. 22. Every person, who shall Pe»«^t'e^-
knowingly register, or cause to be registered, the birth of a Registering
child after the expiration of forty- two days following the day of birth after
the birth, except in the mode required by that section, ante 780, ^ays.'^^^
shall forfeit, for such offence, a sum not exceeding £50.

Or by s. 28, after the expiration of six calendar months fol- j^f^^r six
lowing the day of the birth, a sum not exceeding £50. mootbs.

By s. 28. Every person, who shall bury or perform any Burying
funeral or any religious service for the burial of any dead body, without cer-
for which no certificate shall have been duly made and delivered, ^ ^^^'
either by the registrar or coroner, &c., who shall not, within
seven days, give notice thereof to the registrar, shall forfeit a
sum not exceeding £50. Ante 782.

By «• 42. Every person who shall refuse or, without reason- Refusing or
able cause, omit to register any marriage solemnized by him, omitting to
which he ought to register, and every registrar who shall ^^^^^'
refuse, &c. to register any birth or death, of which he shall
have had due notice ; and

Every person having the custody of any register-book, or any Losing or
part of certified copy thereof, or of any part thereof, who shall '°JVJ|^^
carelessly lose or injure the %ame^ or carelessly allow the same ^^\, '
to be injured whilst in his keeping, shall forfeit a sum not ex-
ceeding £50 for every such offence.

By s, 45. All the penalties and forfeitures, unless otherwise How reco-
directed, are made recoverable before any two justices of the ^®^^'
peace, upon the information and complaint of any person; and,
if upon conviction, the fine or forfeiture, with costs, are not
forthwith paid, the same may be levied by distress ; and for
want of distress the offender may be committed, without bail or
mainprize, for one calendar month, unless the fine, with the
charges for recovery of the same, be sooner paid.

One moiety of the fine to go to the informer, the other to the Moiety to
registrar-general, or to such person as the lords of the treasury »nfo"^"»«*''
shall appoint for the use of his Majesty.

No distress to be deemed unlawful, or any person making it, to
be deemed a trespasser on account of any defect or want of form
in the summons, conviction, or warrant of distress, or any irregu-
Iarity» afterwards committed by the party distraining. But
persons aggrieved by such irregularity snail recover full satisfac-
tion for the special damages sustained in an action on the case.

By s. 46. An appeal is given, in all cases of summary con vie- Appeal,
tion, where the sum adjudged to be paid exceeds £5, to the
next quarter sessions holden not sooner than twelve days after
the day of such conviction.

Notice of appeal in writing, stating the cause and matter Notice of.
thereof, to be given within three days of such conviction, and
seven clear days at least before such sessions.

E E E 2

788

^tfsisttv*

Penalties.

Recogni-
zances

Costs.

Punish-
ments.

False state*!
meots.

lojuring
books.

Counter-
feiting
books.

False en--
tries.

False certi-
ficate.

False co-
pies.

Forging
•e»I.

Amending
entries.

Amend-
ments how
made.

The appellant to remain in custody till the sessions^ or enter
into a recognizance, with two sufficient sureties, conditioned
personally to appear at the sessions and try the appeal, abide
the judgment of the court, and pay such costs as shall be
awarded.

The sessions to determine the appeal, and make such order
therein as to them shall seem meet, with or without costs ; if
the appeal be dismissed, or the conviction affirmed, they may
order the offender to be punished according to the conviction,
and pay the costs awarded, and may issue process to enforce
the judgment.

By *. 47. The certiorari is taken away.

In addition to the above pecuniary penalties it is enacted, by
6^7 Wm. 4, c, 86, s. 41 , that every person who shall wilfuUy
make or cause to be made any false statement touching the par-
ticulars required to be known, and registered for the purpose of
being inserted in any register of birth, death, or marriage, shall
be subject to the same pains and penalties, as if he were guilty
of perjury.

Again, by s. 4^, every person who shall wilfully destroy or
injure, or cause to be destroyed or injured, any register-book,
or any part or certified copy thereof.

Or shall falsely make or counterfeit, or cause to be made or
counterfeited any part of any such register-book or certified
copy thereof.

Or shall wilfully insert or cause to be inserted in any register-
book, or certified copy thereof^ any false entry of any birth,
death, or marriage.

Or shall wilfully give any false certificate.

Or shall certify any writing to be a copy or extract of any
register-book, knowing the same register to be false in any part
thereof.

Or shall forge or counterfeit the seal of the register-office,
shall be guilty of felony.

It is, however, provided by s. 44, that if an error be disco-
vered in the form or substance of any entry, the person charged
with the registering any birth, death, or marriage, may, within
a calendar month after the discovery of such error, correct the
erroneous entry according to the truth of the case, by entry in
the margin, without altering the original entry ; signing such
marginal entry and adding thereto the day of the month and
year when such correction was made.

In the case of marriage registers, the marginal entry is to be
made and attested in like manner in the duplicate marriage
register-book.

I'he like alteration is to be made in the certified copy of the
register-book ; or in case such certified copy shall have been

iUfftstten 789

already made, then there is to be made and delivered a sepa* Amending
rate certified copy of the original erroneous entry, and of the ^°^""'
marginal correction therein made. .

The power to make such corrections can, however, only be
done under the following provisions : —

That in case of a register of a birth, it be made in the pre-
sence of the parents.
In case of marriage, of the parties married.
In case of death, of two persons attending at the last illness.
In case of the death or absence of the above persons, then
In the presence of the superintendent registrar, and of two
other credible witnesses who are respectively to attest the
same. Fid. 52 Geo. 3, c. 146, s. 15, anie^ 774.

30leq[ue«t, X.etttr« ot

± HE statute or bill of citations, S3 Hen. 8, c. 9, which has
been more particularly noticed elsewhere, ante, 691 , 752, enacted,
that no person should be cited to appear in any court out of the
diocese or peculiar jurisdiction, in which the person cited or
summoned should be inhabiting or dwelling at the time of
awarding or going out of the said citation or summons. This
provision was, however, subject to certain exceptions, the last of
which was as follows : — '' Or in case that any bishop or other
inferior judge, having under him jurisdiction in his own right
and title, or by commission, make request or instance to the
archbishop or bishop, or other superior, ordinary, or judge, to
take, treat, examine, or determine the matter before him or his
substitutes, and that to be done in cases only, where the law,
civil or canon, doth affirm execution of such request or instance
of jurisdiction to be lawful or tolerable."

Any Judge offending against the act, to be subjected to an
action for double damages and costs, and also to a penalty of
£10.

Upon this exception, it has been held that the dean of arches Judge
is bound ex debito justicice, to receive letters of request in ©Wi^ to
matrimonial suits without the consent of the party proceeded [et^tera^of
against. Butler v. Dolben, 2 Lee, 312, 319; Hob. 185; request.
2 Brouml. 27.

In proceeding on letters of request, it is sufficient to exhibit
them on motion ; it not being necessary to plead them ; this

790 Bequrtt, Ittterg of*

was decided in the case of Bolton v. BoUon^ 1 Lev. 225, which
was a proceeding in prohibition ; for that the dean of the arches
had cited a party out of the diocese of Worcester. On the day
for shewing cause against the rule nisi for prohibition, the
plaintifi^ in the arches, shewed letters of request from the bishop
of Worcester, it was objected that such matter ought not to come
on upon motion, but ought to be pleaded, because the statute
provides, that thev shall only be admitted, where the civil and
canon law doth allow, and therefore that it was a matter proper
to be argued, that the court may be informed by civilians,
whether the law allows it or not ; but both the courts of K. B.
and Exchequer held, that it was enough for the party to ex-
hibit his letters of request on motion without putting him to
plead.

Letters of request are not invalid because offered by two eccle-
siastical judges conjointly, SZ^e, 312; and therefore joint letters
of request from the chancellor of London and commissary of
Buckinghamshire, were not treated as a void proceeding, but
were accepted quatenus. Ibid. Where a proxy was sent from
India authorizing proceedings to be instituted in the court of a
particular diocese, where the wife then resided, the court held
that the proxy was suiHcient to authorize the proctor to proceed
by letters of request from another diocese into which the wife
had moved her residence. Hawkes v. Hawkes, 1 Hw. 194.

Letters of request ordinarily lie where the appeal lies ; the
judge who signs them by so doing, waiving or remitting his own
court, which is all he can do, and the jurisdiction which at once
attaches, is that of the appellate court. So that the inferior
ordinary must make request or instance of jurisdiction to that
judge, into whose court the cause might have been appealed in
the first instance, had he himself proceeded in it. And it has
been determined that letters of request from a bishop's com-
missary, go in the same gourse with the appeal, that is, not to the
diocesan, but to the metropolitan court of arches. Burgoyne
Y. Free, 2 Add. 405.

701

l^iQiitient^*

Necessity of, by Canon and common law. ' ^

Provisions for, by statute.
Consolidation of, law of, hj I ^ 2 Fief. c. 106.
What sufficient by that statute.

Pecuniary penalties for non-residence.
How recovered.
In what court enforced.
Application of.
Exemptions from residence under 1 4* 2 Vict. c. 106.
General exemptions.

For persons actually dis<^iarging certain duties.
Holders of offices in possession before 14th August, 1838.
Residence may be enforced by monition and sequestration.

Appeal.
Wilful absence after commencement of residence on monition.

Appeal.
Continuing or successive sequestrations for, effect of.
Penalties.

Remission of.
License for non-residence.

Causes for, under 1 4* 2 Viet. e. 106.

under 57 Geo* 3, c. 99.
Application for, what it ought to specify.
May be revoked.
Duration of.

Not void by death of grantor.
Who to grant during vacancy of see.
Copies of licenses^ revocations of, and statements of grounds of
exemption.
To be filed in registry and transmitted to churchwardens.
Transmitted to the dueen in council.
Returns of licenses granted or approved and allowed to be trans*

mitted by archbishop.
Questions to be transmitted to, and answered by, incumbents in
schedule to 1 Vict, e, 106.

IT is said that Pope Eugenias the First, about the year 654,
first decreed that the houses of the priests should be built near
their churches. In England, this duty was enforced by various
legantine and provincial constitutions. So also, by the rule of
the Canon law, a clergyman who deserted bis church or pre-
bend, without just or necessary cause, and especially without

792 ^tuditntt.

the consent of his diocesan, was to be deprived. And agreeably
thereto, it is said, was the practice in this reahn, for though
sometimes the bishop proceeded only to seauestration or other
censures of an inferior nature, yet the more frequent punishment
was deprivation. Gibs. Cod* 8S7 ; 8 Bum's Ecc. L. S94 ;
2 Lee, 566 ; ante, 243, 671.

So, according to the intendment of the common law, a clerk
was always resident on his cure ; insomuch that in an action
of debt, brought against J. S., rector of D., the defendant
pleading that he was demurrant and conversant at B., in another
county, the plea was overruled ; for since the defendant denied
not that he was rector of the church of D. he shall be deemed
by law to be demurrant and conversant there for the cure of
souls. 2 lust. 625.

Upon the canonical law of residence, vid. Lyndw. ISO, IS I,
132.

Various statutes have, at different times, been passed to en-
force the residence of the clergy, but the law on this subject
has been lately consolidated and amended by the 1 ^ 2 ^icL
c. 106. By a previous act the 51 Geo. 3, c. 99, s. 1 ; the
28Hen.8,c. 13; \SEli».c.20; HEUz.cll; ISElis.c.ll;
43 Elix. e. 9 ; 9 Car. 1 , e. 4 ; 12 Ann. st. 2, c. 12 ; 36 Geo. 3,
c. 83; 43 Geo. 3, c. 84; 43 Geo. 3, c. 109; and 53 Geo. 3,
c. 149, had been repealed. So that when the 1^2 Vict. c. 106,
repealed the 57 Geo. 3, c. 99, except such parts of it as repealed
other acts, and also repealed the 21 Hen* 8, c« 18, the only
other statute on the subject, the whole law on the subject of
clerical residence, was made to depend upon the 1 ^2 Fid,
c. 106, except so far as some of the exceptions in the 57 Geo. 3,
c. 99, have been still retained.

The principle of the 1^2 Vict. c. 106, requires that every
beneficed clergyman should reside on his benence, or if he have
two benefices, upon one of them ; and such, indeed, seems to
Nonresi- have been the principle of the 57 Geo. S, c. 99. By a constitu-
^^^^^' tion of O/Ao, vicars were required to take an oath of residence,
but by 57 Geo. 3, c. 99, «. 34, contuiued by 1 §• 2 Vict. c. 106,
^.61, no such oath is now required.
Abwore of By 1 ^ 2 Vict. c 106, s. 32, an incumbent is considered to
three \^q noq-resident, if he is absent for one or more periods exceed-

withoQt '^^^ ^^ ^^^ whole three calendar months in each year, and he
license. will be liable to the penalties, unless he has obtained from die
bishop a license for non^residence, or unless he falls within the
range of some of the exemptions provided by the statute, or
within such of the 57 Geo* 3, c. 99, aa have been still retained
by the latter act.

A residence on any benefice of whicli an incumbent may law-
fully be possessed, is sufficient.

iltKdienct. 793

So, before the 57 Geo. S, c. 99, an incumbent having two What is a
livings, one with a house of residence, and the other without, J^^e^"*

might have resided in which be pleased, without a license.

Wynne v. Smiihers, 1 Marshy 547.

By s, 34. Houses purchased by the governors of Queen Houses
Anne's Bounty, if previously approved by the bishop of the pnrchaaed
diocese, by writing under his hand and seal duly registered in ^^q^,^''
the registry of the diocese, shall be deemed houses of residence^ Boanty.
belonging to the benefice, although not situate within the parish
where such benefice lies.

So, by 8, 35. In all cases of rectories, having vicarages en* vicar or
dowed, or perpetual curacies, the residence of the vicar, or curate in
perpetual curate, in the rectory house, is to be deemed a legal ^^^'
residence, provided the house belonging to the vicarage or per-
petual curacy, be kept in proper repair, to the satisntction of
the bishop of the diocese.

The first provision, by s. 33, for a license for non-residence, is, Residence
in truth, rather a license or authority for a qualified residence ; ^J^^^f ^"^
that section providing that where there is no house, or no fit of resi-
house of residence " that it shall be lawful for the biahop, upon deuce,
application in writing, by license under his hand, (to be registered
by the registrar of the diocese, which the registrar is hereby re-
quired to do,) to permit such person to reside in some fit and
convenient house, although not belonging to such benefice,
such house to be particularly described and specified in such
license^ and for a certain time to be therein also specified, not
exceeding the period by the act limUed^ (by *. 46, till the 3l8t
December in tne year next after the year in which it is granted),
and from time to time, as such bishop may think fit to renew
such license ; and every such house shall be a legcU house of
residence (a) for such specified time, to all intents and pur-
poses ; provided also, that no such license «hall be granted to

(a) The repealed act of 21 Hen. 8, c. 18. applied to cases of an
incumbent wilfully living out of bis parsonage-house, as if he let it ana
lived in another house, though in the pariah, he would have come witmn
that statute. 2 Cowp. 429 ; 6 Rep. 21, 6 ; Cro. EUz. 590. Nor aid
the want of a parsonage-house excuse the residing out of the pa"^^-
Cowp. 429. In a case where an incumbent having two livings, A. ana
B. obtained a license to live out of A. on account of there being no
parsonage-house ; he lived a short distance out of A., and performed the
duties. It was held that this was not such a residence at A. as to
excuse a residence at B. might v. Flamank, I Marsh. 368 ; 6 raiml. 62.
But now, the house in which the incumbent is Kcensed, being made a
house of residence, he is, in construction of law, residing m bis parish,
though actually living out of it.

794

30M(btntt.

What «uf.
ficient resi-
deuce.

Officers of
cathedral
and colle-
giate
churches.

Fellows of
Eton and
Winches-
ter,

Aheence
not more
than five
months*

Penalties.

Scale of.

Value.

How ascer-
tained.

such spiritual person to reside in any house, unless it be within
three miles of the church or chapel of the benefice ; nor in case
such church or chapel be in any city, market, or borough town,
unless such house be within two miles of such church or chapeK

By s. 39. Any prebendary, canon, priest, vicar, vicar choral,
or minor canon, in any cathedral or collegiate church; or
fellow of Eton or Winchester, who shall reside and perform
the duties of such office, during the time he shall be required to
reside and perform such duties, by the charter or statutes of
such cathedral or collegiate church, may account suchresidence
as if he had resided on such benefice. Provided that no such
prebendary, &c., nor any such fellow be absent from any
benefice on account of such residence and performance of duty
for more than five months in any one year, including the resi-
dence on his prebend, &c., or fellowship. Provided also, that
if the year of residence in any such cathedral or college is
accounted to commence at any other period than the 1st of
January ; and if any such prebendary, &c., or fellow, keeps
the period of residence required for two successive years, in
whole or in part, between the 1st of January and the 31st of
December in any one year ; to account such residence, although
exceeding five months in the year, as reckoned from the 1st of
January and the 31st of December, as if he had resided on
some benefice, any thing in the act to the contrary notwith-
standing ; and vid. s. 28, post 797.

By s, S2. The penalties for which an incumbent makes him-
self liable by non-residence, are regulated by the following
scale: —

Non-residence, together, or to be"| i . , « .v

accounted at several times, in any one I " i ' i ^ r *u u *
year, exceeding three months, and f °"j' ^^"® ^^ *^ ^
not exceeding six months • . • J i*® ce.

Exceeding six and not exceeding! one-half the annual
eight months / value.

i?^^«^^;«« «:«i.i. «*««*!*• \ two-thirds of the an-

Exceedmg eight months • • • | ^^j value.

/ X Au r u 1 I three-fourths 6f the

(a) Absence for one whole year . | ^^^^^j ^ ^^^

By s. 10. The annual value of all benefices is to be the net
annual value, to be ascertained as directed by «• 9 ; the general
principle being to deduct from the gross amount of the yearly
income, all taxes, rates, tenths, and dues« and other permanent

(a) This seems the same scale of penalties as in 57 Geo. 3, e, 99.

JUsiOiena^ 795

charges and outgoings ; but not to deduct curate's stipends. Penalties.
tenants* or occupiers' rates and taxes on the house and glebe,
nor monies expended in the repair and improvement of the
same.

And further, by the same section, the court, before which inquiry as
any suit for a penalty is depending, may make, or cause to be ^ ^^^^^
made, such inquiries as such court, or the bishop, may think
fit, and otherwise to proceed upon the best information which
such court or bishop may be able to procure, for such estimate
as to annual value ; and with respect to the same, the decision
of the court or of such bishop, founded on such evidence, or
other information, shall be final and conclusive, save when ap-
pealed from in due course of law.

By *. 114. All penalties and forfeitures incurred under the Recoveiy
act by any spiritual person holding a benefice, are to be sued ^^'
for and recovered in the court of the bishop of the diocese in ^° ^^^
which the benefice is situate, and by some person duly autho- .
rized for that purpose by the bishop, under his hand and seal, ^ ^ °"*'
and in no other court, and by, and at the instance of, no other
person whatever. Acts of ownership have been held sufficient
in penal actions in courts of law, to prove the incumbency without
proving admission, institution, and induction. 3 T. R. 635.

If the penalty be sued for in any other court, it would seem
that a plea, founded on the statute, would be a bar to the
action. IVest v. Turner, 6 Ad. Sf Ell. 614 ; 1 Nev. ^ P. 612 ;
ante 283.

By s. 117. Penalties and forfeitures incurred by persons not
spiritual, or by spiritual persons not holding benefices, may be
recovered by action of debt.

By section 1 14, it is further provided, that the penalty or for-
feiture, with the reasonable expense of recovering the same, in the
bishop's court may be enforced by monition and sequestration.

And also, that the bishop, by an order under his hand, to be Application
registered in the diocesan registry, may direct that any such ^^*
penalty, or so much as may not have been remitted, shall be
applied towards the augmentation and improvement of the Augmenta-
benefice, or of the house of residence, or the buildings or ap- J^ngJ^e
purtenances thereof. 5cc.

By s. 119. All penalties, the application of which is not spe-
cially directed, are to be paid over to the treasurer of queen
Anne's bounty, to be applied to the purposes of the said
bounty.

By s. 118. No penalty to be recovered against any spiritual Sued for
person under the act, except such as he may have incurred ^^n the
subsequent to the 1st day of January, in the year immediately ^^^'*
preceding the year in which the proceedings shall be com-
menced.

796

^tudimtt*

Penalties?.

Exemptions
by 1 & 2
Victc.l06.

By s. 120. For the purposes of the act, except otherwise
therein provided^ the year is to commence on the 1st of
January, and be reckoned therefrom to the 31st of December
inclusive.

By s. 37. Persons filling certain offices, for the purposes of
education, and having but one benefice, with cure of souls, are
absolutely exempted from the penalties from non-residence. It
beinc^ enacted, that no spiritual person, being

Head ruler of any college or hall at Oxford or Cambridge.
Warden of the university of Durham.
Head master of Eton, Winchester, or Westminster.
Principal, or any professor, of the East India college, op-

pointed before the passing the act.
Shall be liable to any of the penalties or forfeitures in the act
contained, for, or on account of, non-residence on any
benefice.
And by s. 38. The holders of certain other 'offices are
in like manner exempted, whilst actually discharging the
duties of such offices respectively.' Thus, no spiritual person
being

Dean of any cathedral or collegiate church, whilst residing
on his deanery ; nor any person having or holding any pro-
fessorship or public readership in either university, residing
and reading lectures therein. (Provided always, that a cer-
tificate, under the hand of the vice-chancellor or warden,
stating the fact of such residence, and of the due per-
formance of such duties, shall be transmitted to the bishop
of the diocese, wherein the benefice held by such spi-
ritual person is situate, within six weeks of the 3 1st day of
December in each year.)
No chaplain to the queen, king, queen dowager, queen or
king's children, brethren, or sisters, so long as he shall
actually attend in the discharge of bis duty in the house-
hold to which he shall belong ; nor
Chaplain of any archbishop or bishop, whilst actually attend-
ing in the discharge of his duty; nor
Chaplain of the house of commons, actually serving ; nor
Clerk, or deputy clerk, of the queen's or king's closet, ac-
tually attending and performing the functions of his office ;
nor
Chancellor, vicar-general, or commissary of any diocese^
whilst exercising the duties of his office; or, archdeacon,
whilst on his visitation, or otherwise engaged in the dis-
charge of his archideaconal functions ; nor
Dean, sub-dean, priest, or reader, in anv of the queen's or
king's chapels at St. James's, Whitehall, Windsor ; or as

WitHfHtntt. 797

Reader in the queen's or king's private chapels at Windsor Peoaltiefl.

or elsewhere ; nor Exemptioni

Preacher in any of the inns of court or rolls, whilst actually by i 6c 2

performing the duty of any such office; nor Vici.c.106.

Provost of Eton ; warden of Winchester ; master of the
charter house ; principal of St. David's, or king's collegCi
London; during the time which he may be required to
reside, and shall actually reside therein, respectively, shall
be liable to any of the penalties or forfeitures in the act
contained, for or on account of non-residence on any be-
nefice, for the time in any year during which he shall be
so as aforesaid resident, engaged or performing duties as
the case may be ; but every such spiritual person shall, with
respect to residence on a benefice under the act, be entitled
to account the time in any year, during which he shall be
so as aforesaid resident, engaged, or performing duties, as
the case may be, as if he had legally resided during the
same time on some other benefice^ and vid, s. 39, ante 794.
See. 40. Provides, that every spiritual person, being in pos-
session of any benefice at the time of the passing the act, and
entitled, by any previous law, to exemption from residence, or
to apply for a license of non-residence, shall, as to every such
benefice, (but not as to any after-taken benefice,) be entitled to
the same exemption from residence, and to the same capacity of
applying for and obtaining a license for non-residence, and to
the same right of appeal in case of refusal or revocation of a
license, to which he was entitled before the passing of this act ;
and every bishop and person empowered, before the passing of
this act, to grant such license to such spiritual person, shall
have the like power after the passing thereof, anything to the
contrary notwithstanding, (a)

(a) Mr. Hodgsofif p. 78, has given the following list of offices enu-
merated in the 57 Geo. 3, c. 99 ; and by the above section, he says,
any person being possessed of any benefice in respect of any such office
before the 14th August, 1838, Uie day of the passing the 1 4* ^ ^^«
c. 106, is entitled to the exemption ; but the exemption seems given in
respect of the possession of the benefice, whether held in respect of office
or not.

Chancellor, vice-chancellor, or commissary of the universities of Oxford
and Cambridge ; scholars, under thirty years of age, abiding at either of
the said universities for study, without fraud ; chaplain to any temporal
lord of parliament, or other person authorized by law to appoint chap-
lains, for so long as such chaplains, &c., shall abide and daily attend in
actual performance of his duties, in the household to which he be-
longs ; chaplain, clerk, or deputy clerk of the closet of the heir apparent ;
chaplain-general of the forces, by sea or land, or of the dock-yards.

798 dBMHumt.

Enforced By s. 64. It is enacted, that where it ihall appear to any

JJ^"j2SSSI! bishop that any spiritual person holding a benefice, haying

tration. neither exemption nor license, does not suflSciently, according

to the true intent and meaning of the act, reside on his benefice,

such bishop may, instead of proceeding of penalties under this

act, or under the 57 Geo. 3, e. 99 ; or after proceeding far the

Proceeding same : issue or cause to be issued a monition to such spiritual

by moni- persou requiring him forthwith to proceed to and to reside on

^^°' such benefice, and perform the duties thereof, and to make a

Thirty days retum to such monition within a certain number of days after

MrWce^nd *^® issuing thereof. Provided there be thirty days between the

return of time of serving such monition, and the time specified for the

monition, return thereof.

The bishop may require the retum of any fact contained
therein, to be verified by evidence and in every case, where no
return shall be made ; or

The retum shall not state reasons for non*residence satisfac-
tory to the bishop ; or
The return, or any facts contained in it, shall not, when re-
quired, be verified*
Bishop may The bishop may issue an order in writing under hand and
dence.'^^ seal, requiring such spiritual person to proceed and reside as
aforesaid, within thirty days after such order shall have been
served upon him, in like manner as thereinafter directed, with
respect to service of monitions. Green v. Cobden^ 2 Bing, N, C.
QZ1: ArUe.Gd^.

while actually attending and performing the duties of his office ; chap-
lain to any ambassador ; burser, treasurer, dean, vice-president, sub-
dean, public tutor, chaplain, or other such public officer, in any college
or hall in Oxford or Cambridge ; public librarian or registrar, proctot,
public orator, or such like public officer there, during actual official
residence ; no fellow of any college there, during his actual residence,
required by chapter or statute; masters or ushers in the colleges of
Eton, Winchester, or Westminster school ; and persons specially exempt
from residence under any acts not hereby (57 Geo. 3, e. 99,) repealed^
shall not be liable for any penalties imposed by that act during any
such period ; but every such spiritual person, with respect to residence
under the 57 Geo. 8, c. 99, shall be entitled to account such period as if
he had legally resided on some other benefice.

By 57 Geo, 3, e. 99, «. 11. Deans, prebendaries, and canons, and
others, holding any dignity in any cathedral or collegiate church,
residing four morUha in a year on such dignity may account such, a
legal residence, snch residence may be taken according to the mode
of calculating the year of residence in the particular cathedral ; and by
9. 13, no person appointed to a dignity before the passing of the act shall
be liable for penalties during actual residence on it.

iUKOience^ 799

In case of non-compliaDce with such order, the bishop may proceeding
sequester the profits c^ the benefice, until the order is complied ^l^^'
with, or sufficient reasons for non-compliance stated and proved* '

The bishop may also, by order under his hand, direct the Application
application of the profits after deducting the necessary expenses °^ P'^^^^*^^
of serving the cure, either in the whole or in such proportions Uoo!^^
as he shall think fit, in the first place, to the payment of the
penalties provided for, if any, and the reasonable expenses of
such sequestration and monition ; next, to repair of chancel,
house of residence and its appurtenances, glebe and demesne
lands. And if such benefice should be under sequestration by
any creditor, then to the satisfaction of such creditor's sequestra-
tion. And after such satisfaction of such sequestration, to
augmentation or improvement of benefice or house of resi-
dence, and its appurtenances or of the glebe. Or may direct
according to his discretion, the same, or any portion of it, to be
paid to the treasurer of queen Anne's bounty, for the purposes
of the bounty.

Further, the bishop may, within six months of such order of May direct
sequestration, or within six months after any money shall have foie^sJd^
been actually levied by such sequestration, remit to such tosuchspi-
spiritual any portion of such sequestered profits ; or to cause ritual per-
the same or any part thereof, whether the same shall remain in *^^
the hands of the sequestrator, or shall have been paid to such
treasurer, to be paid to such spiritual person ; and the seques-
trator is requirea, and the treasurer is authorized and required,
to make such payment on receiving such order.

Such spiritual person may, within one month of service upon Appeal.
him of such order for sequestration, appeal to the archbishop,
who may make such order relating thereto, or to the profits
that have been sequestered, for the return of the same, or any
part thereof, to such spiritual person, or to the sequestrator at
the suit of a creditor, as may seem fit to such archbishop.

The sequestration is, however, to be in force during the
appeal.

By s. 55. If such spiritual person obey the order, the profits Coata.
of whose benefice shall, by reason of such obedience, not be
sequestered, he shall, nevertheless, pay the costs, charges, and
expenses incurred by reason of the issuing and serving such
monition and order, and the proceedings therein shall not be
stayed till such payment shall be made.

And by s. 56, if any spiritual person, not having a license to wilful ab-
reside out of the limits of his benefice, or other lawful cause "e^ce after
of absence, who, after such order requiring him to reside, ^^*^^
either before or after any sequestration, shall, in obedience to
such order, have begun to reside, and be/ore twelve months

800 a^tfOinttr^

Proceeding ii^ar/ after the commencement of such residence, shBiliDilfuUy (a)
^y^mom- ^j^gent himself for one month, together, or to be accounted at

several times, (Qy. within what period?) the bishop may, with-

Son wS- out issuing any other monition or making any order, sequester
out further and apply the profits as above provided by s. 54, for the pur-
order, pose of enforcing residence according to the true intent of the
original monition ; and the bishop may so proceed, from time to
time as the occasion may require. Provided, that the spirituail
person may appeal in like manner as by s. 54.
Benefice By «• 58. If a benefice continue for one whole year under a
continuing sequestration issued under this act, for disobedience of the
*^°^^^nder ^ishop's order to reside; or if two such sequestrations be
sequestra- incurred, and shall not be relieved with respect to either of such
tion or two sequestrations by appeal, the benefice becomes void, and the
^^8^*^' patron may present as if the incumbent were dead,
R mittion ^^ *' ^^' ^^ *" archbishop or bishop thuik proper, after pro"
of penalties, ceeding by monition for recovery <^ any penalty under the act,
for non-residence, for more than one-third part of the yearly
value of any benefice for non-residence, exceeding six months
in the year, to remit the whole or any part of such penalty.
The archbishop shall transmit to her majesty in council, and
the bishop to the archbishop of his province, a statement of the
nature and special circumstances of each case, and the reasons
for the remission of any such penalty; and her majesty in
council, or the archbishop, as the case may be, may allow or
disallow such remission in whole or in part, in the same manner
as is provided in this act, with relation to the allowance or dis-
allowance of licenses of non-residence, granted in cases not
before expressly enumerated.

Provided that the decision of the archbishop in cases trans-
mitted to him from the bishop shall be final.
i^ceaa»» The power of the king to exempt the clergy employed in

his service from residence, was asserted by the statute of the
Articuli Cleri, 2 Ed. 2, «. 1, c. 8, which recited, ^' the king and
his ancestors, since time out of mind, have used that clerks
which are employed in his service, during such time as they are
in his service, shall not be compelled to keep residences at their
benefices; and such things as he thought necessary for the

(a) This is the word used iu 21 Hen, 8, e. 13, and also in the
57 Geo, 3, c. 99, in cases of general non-residence ; therefore, when
there was no house of residence, 6 Rep, 21, 6 ; Cro, EUs. 590 ; or if
the incumbent, were imprisoned without covin, or was removed by
medical advice on account of his health, 2 Buktr, 1 8, he did not come
within the statute ; sed vid, as to imprisonment for debt. 1 Nev. ^ Af .
307 \ ^B,8s Ad. 525 ; Ante, 793 ft.

xusfOvtitte. 801

kinff and oommonwealth ouffht not to be said to be prejudicial ^^^^'
to the liberty of the church :" which latter words Liord Coke
says are worthy to be written in letters of gold, ft Inst. 6S4.
Afterwards, it was expressly enacted, by 21 Hen. 8, e. 13,
s. S9y that it should be lawful for the king to give license to every
of his own chaplains for non-residence on their benefices ; and
the same privilege was given, without however any form of
license, by s. 29 of that statute, and by the subsequent acts of
the 25 Hen. 8, e. 16, and the 33 Hen. 8, c. 28, to the chaplains
of different classes of the nobility, in proportion to their dignity,
and their widows, and to various officers of state, to the judges,
the attorney and solicitor-general.

The privileges of non-residence, and the powers of granting
licenses were afterwards regulated by different statutes, all of
which were repealed by the 57 Geo, 3, c. 99 ; which statute,
as stated above, has been repealed and remodelled in this, as
well as in other respects, by the 1^2 Vict. e. 106. (a)

(a) Although the popes claimed for themselves the sole right of dis-
pensing with the residence of the cleigy, which power was asserted and
reserved to them by the council of Trent ; yet, it is clear that sovereign
princes, in all countries, claimed the privilege ; which claim seems to
have been recognized by the earliest authorities.

By the Novels of Justinian^ bishops were forbidden to leave their own
churches, and go into other provinces without letters from the patriarch
or metropolitan, or without the command of the emperor.

In France, Lewis the Eleventh, by an ordinance of 8th January, 1475,
recalled all prelates, &c., who dwelt without the bounds of his king-
dom, not only for the purposes of residence on their benefices, but also
that they might serve and assist in his councils. And Charles the
Ninth, by an ordinance of April, 1560, requiring residence, added this
exception, " saving and excepting the archbishops and bishops that are
of our privy councU, and others employed in our service out of the
realm." And by an ordinance of the states of Blots in 1579, passed, it
seems, in consequence of the power claimed for the pope at the council
of Trent, the power of dispensation was expressly reserved to the
metropolitan. At the convocation held for the purpose of re-establish-
ing the Romish religion, by queen Mary, the question of non-residence
occupied much attention. In the appendix to Strype*s Memorials,
p. 204, is given " a proposition made in the convocation against resi-
dence, with reasons for the said proposition and remedies against non-
residence." The first reason is, " the statutes of the realm not disal-
lowed, as we hear, by the pope, do permit to the barons and other
great rulers of the kingdom, a certain number of priests, having cure of
souls." And the third is as follows : "Bishops and prelates, who by
reason of their great learning, prudence, integrity of life and high faith,
are chosen to be the king's councillors, and whose counsels are very

F F F

802 iBMdimct.

^»<»p*g' A license for non-residenoe infty, by s. 4S, be granted to ad

Reasons incumbent of a benefice, for any of the five following causes ;
for. the reasons to be stated in the petition for a license, which

Eetition, by s. 4^, must be in writing, and signed by the ai>plicant
imself, or by some person approved by the bishop in that
behalf:—

1. ** Incapacity of mind or body/' A medical certificate will,
it is apprehended, be reauired in such cases.

5. ** The dangerous illness of his wife, or child, making part
of his family, and residing with him as such." A medical cer-
tificate in this case also.

[In this case, the bishop may only grant a license for
six months ; and it may not be renewed, save with the
allowance of the archbishop of the province.]

3. " There being no house of residence."

4. " The house neing unfit for residence, such unfitness not
having been occasioned by his negligence, defiiult, or other mis^
conduct ; and the petitioner keeping such house, and the buildings
belonging thereto, in good and sufficient repair and condition,
to the satisfaction of the bishop.**

[As to 3 and 4. — A certificate, under the hands of two
neighbouring incumbents, countersigned by the rural
dean, (if any) must be produced to the bishop, that no
house, convenient for the residence of the incumbent,
can be obtained within the parish, or within the pre-
cincts prescribed by the act, (see 1 ^ S yicL c. 106,
s. 43.)]

6. ** The occupying in the same parish a mansion whereof he
is owner, he keeping the house of residence and buildings in
good and sufficient repair and condition.'*

When a petition is presented for a license, for reason No. 5,
the incumbent is to produce to the bishop, proof to his satisfac-
tion, that the house of residence and buildings are in sufficient
repair and condition. For by s, 41, if living out of the residence
house, he fail to keep it in good repair after a monition from
the bishop to make the repairs, he will be liable to all the
penalties of non-residence.

Upon such petition being presented to the bishop, and upon

Eroof of such facts as he may think necessary, and shall require
e may grant, in any of the above cases, a license in writing

necessary to the restoring of religion, ought not, it seems, to be com-
pelled to perpetual residence." It is worthy of observation, how cau-
tious the framers of these propositions are, that in their recognition of
this legal right of dispensation, th^ should not appear to act in oppo-
sition to the pi^ial supremacy.

iUtfftnttr^ 803

under his hand for such spiritual person to reside out of the Lfcm*"*
proper house of residence, or out of the limits of bis benefice,
or out of the limits prescribed by this act» for the purpose of
exempting such spiritual person from any pecuniary penalty in
respect of non-residence thereon. Provided that in case of
refusal of the license, the archbishop may, upon appeal, either Appeal.
confirm such refusal or direct the bishop to grant a license.

By s, 44. If the bishop think it expedient, be may grant a Licenses
license to reside out of the Umits of the benefice in any case not ""^^.^ .
enumerated in s. 43. Provided that in every such case, the f^ not^
nature and special circumstances thereof, and the reasons which enume-
have induced the bishop to grant such Ucense, be forthwith ^^'
transmitted to the archbishop of the province, who may proceed
as in cases of appeal, and allow or disallow the license in the
whole or in part, or make any alteration in it as to the period
for which it is granted ; and no such Ucense shall be valid till the
allowance thereof shall be signed by the archbishop : (a) and
provided that it shall not be necessary to specify in such license
the cause for granting the same.

(a) Under former statutes the law seems to have been otherwise,
for when a license for non-residence had been obtained previously to
the 14th July, 1814, but the allowance by the archbishop required by
the 43 Geo, 8, c. 84, b, 20, had not been obtained till after that period,
the license, when ratified, was hdd valid from the time when it was
originally granted. Wright v. Lamb, 1 Marsh, 372 ; 5 Taunt. 807.

We have seen above, ante 797, that the 1 ^ 2 Fict. c. 1 06, s. 40, pro-
vided, that every spiritual person in possession of his benefice, at the time
of the passing that act, (the 14th August, 1838,) and entitled by the law, •
previously in force, to apply for a license of non-residence, shall, aa to
every such benefice, be endUed to the same capacity of applying for, and
obtaining a license for non-residence, and to the same right of appeal, as
he was entitled to before the passing of that act ; it becomes, therefore,
important to see what were the grounds for applying to a bishop for such
a license under the 57 Geo. 8, c. 99, *. 15, and which are not continued
by the 1 & 2 Vict. c. 106, or continued with stricter limitations.

1st. Actual iUness or infirmity of body of himself, wife or child re- Ca«Mf for
siding with him as part of his family, (in these cases a medical certificate Uoeue.

is necessary.)

2ndly. No house of residence, or unfitness of it, such unfitoess not
being occasioned by his default, he undertaking to keep house of

residence in repair. . v i. ^

3rdly. Occupying a house in the parish, and keeping the house ox

residence in repair, and producing proof thereof, when the licenae is

^Uily. When the benefice is of smaU value, the serving as stipendiary

F F F 2

804 iUflSOitme.

License. SecL AlZ^ requires every application to be in writihg, and

^ Ijj^j^. signed by applicant, or some person approved by the bishop,
tioDs to be and to specify to the following particulars :— «
*° ^"*{°^» 1st. Whether the party is to perform the duty in person, and
ought^to^ if so, where and at what distance from the church or chapel he
specify. intends to reside.

2ndly. If he intends to employ a curate, to state the salary,
and whether the curate proposes to reside or not.

Srdly. If the curate is to reside, whether in the house of resi-
dence, or in what other house.

4thly. If he does not intend to reside there, then at what
distance therefrom, and at what place ; and whether such curate
serves any other, and what parish, as curate or incumbent, or
^ has any, and what cathedral preferment, and any, or what be-
nefice, or officiates, in any other, and in what church or chapel.
5thly. The annual value and population of the benefice, in
respect of which any license shall be appUed for, and the num-
ber of churches or chapels on such benence, and the date of the
applicant's admission.

No license is to be granted except these particulars are stated,
and every such petition shall be filed in the registry of the diocese
by the registrar thereof, and shall be open to inspection, and
copies thereof made, with leave in writing from the bishop.

By. s. 49. Any archbishop or bishop who has granted any
license of non-residence, or their successors, having given the
incumbent " sufficient opportunity of showing reason to the

curate elsewhere, and providing for the service of his own benefice to
the satis&ction of the bishop.

5thly. Being master or usher of any endowed school, licensed by the
bishop and actually employed in teaching therein.

6thly. Or being master or preacher of any hospital or incorporated
charitable foundation, whilst required to reside by charter or statute, or
other lawful authority ; and actually residing and doing duty.

7thly. Or holding any endowed lectureship, chapelry or preachership,
and executing the duties with a license from the bishop of the diocese.

Sthly. Where the benefice is of small value, the serving as preacher
in any proprietary chapel, in any city or town, with like license.

9thly. Actually serving as chaplain in any garrison, to the asylum at
Chelsea, college at Sandhurst, hospitals at Greenwich, Chelsea, Haslar,
or Plymouth ; at the naval asylum, in the navy, gaol at Newgate,
penitentiary at Milbank, at any British factory ; as teacher at academy
at Woolwich ; as principal surrogate or official in any eoelesiastieal
court ; as librarian of the British museum, or Sion college ; or as
trustee of Lord Crew's charity ; during their personal attendance on
the duties of such offices respectively.

^SUitmt^ 805

contrary ^ may, by writing under his hand, revoke the same, l^icense
** if there appear good cause for revoking the same.'* Vid, Bag- "yoked.
shaw T. Basely f 4 T. R. 78. Provided in the case of revocation

by a bishop, the archbishop may, upon appeal, confirm or annul ^PP^^'*
such revocation.

By s. 46. No license of non-residence granted under the act, Duratioo of
or under the 57 Geo. 3, c. 99, shall continue in force after the Ucensca.
31st of December, in the year next after the year in which
such license shall have been, or shall be granted.

By s. 48. No license shall become void by the death or re- Licenses
moval of the bishop granting the same. °o^ ^o^ ^

By*. 47. Every person obtaining any license for non-resi- Jj^jfjf
dence shall pay to the secretary or officer of the bishop, or pg^f^,,'
other person granting the same, ten shillings above the stamp
duty ; to the registrar of the diocese three shillings ; and five
shillings to the secretary of the archbishop, when any such
license shall have been signed by him.

By s. 45. During any vacancy of the see, licenses may be By whom
granted, subject to the above regulations, by the guardian of granted.
the spiritualities of the diocese; or in case the bishop be Vacancy of
unable to exercise his fimctions, the same may be exercised by ^^
the person lawfully empowered to exercise the general jurisdic-
tion of the diocese, provided that no license be valid, granted by
any but the bishop, without the approbation of the archbishop.

By s. 50. Every bishop granting or revoking any license Copies of
-shall, within one month, cause a copy of every such license or ^"^j"^*^**
revocation to be filed in the registry. The registrar to make an of grounds
alphabetical list to be entered in a book, and inspected by all ofexemi>.

I>ersons upon payment of 3«. and no more ; and a copy of every gf^^^,
icense, and a statement in writing of the ffrounds of exemption gigtry and
are to be transmitted by the person to whom granted, to the transmitted
churchwardens of the parish, within one month after the grant ^aj^^JI^'
thereof, or of the taking advantage of the exemption, as the
case may be ; and a copy of every revocation is to be sent by the
bishop to such churchwardens within one month of such re-
vocation, such copies of licenses and revocations, and statements
of exemption to be deposited in the parish chest, and be produced
by the churchwardens, and publicly read by the registrar or other
officer at the visitation ; and every spiritual person neglecting to
transmit a copy of a license, or statement of exemption, shall
lose all benefit of it, and shall not be entitled to the exemption
till he has transmitted such statement. Provided, that if the
archbishop, on appeal, annul the revocation of any license, the
bishop, who made the revocation, shall order the copies of such
revocation to be withdrawn firom the registry and parish chest,
and the same shall not be produced and read at the visitation.

806 iUtftlirme.

^^<^"^' and such revocation shall be erased from the list of revocations

in the registry, (a)
Returns of By 8. 53. Every bishop, on or before the S5th of March in
licenses by every year,^;shall make a return to her Majesty in council, of any
bishop. benefice in his diocese or jurisdiction, and the names of the
spiritual persons holding the same, who shall have resided
therein ; and also the names of the spiritual persons who have
not resided by reason of exemptions or licenses, and the causes ;
also of all not residing, not having license or exemption, so far
VL8 the bishop is informed thereof; and also the substance of the
answers received in all cases to the questions so transmitted as
aforesaid, post 807.
Retunisof By *. 51. Every archbishop granting any license of non-
licenses residence in his own diocese, or approving or allowing as afbre*
a™ roved ' ^*^^* ^^^ licenses in any case not enumerated in the act, or any
anda^iowed renewal of any license in case of the dangerous illness of a wife
b^ arch. or child, shall, annually, in the month of January in each year,
bishop. transmit to her Majesty in council a list of all licenses or
renewals, granted or allowed by him in the year ending the last
day of December preceding such month of January ; specifying
in such list his reasons for granting each license or renewal,
together with the reasons transmitted to him by the bishops for
granting or recommending each such license ; and her Majesty
in council may revoke or annul any such license, and may
transmit the order for that purpose to the archbishop, granting
or approving, and allowing such license or renewal ; and the
archbishop is to transmit a copy of such order to the bishop in
whose diocese such license was granted ; the bishop causing a
copy of the mandatory part of such order to be filed in the
registry of his diocese, and to be delivered to the church-
wardens of the place ; and in case of any license granted by the
archbishop himself, causing a copy to be filed in the registry of
his own diocese, and delivered to the churchwardens of the

f)lace. Provided that in all questions of non-residence such
icense shall be deemed valid between the time when it was

(a) A license of non-residence on a benefice in an archbishop's
peculiar, locally situated in another diocese, need not have been regis-
tered in the registry of the diocese, but ought, under former acts, to
have been registered in the registry of the archbishop, 5 Taunt. 757 ;
and this, it seems, would be the law still in such a case ; for though, by
s. 108, 1 4* 2 Fict. c. 106, bishops and archbishops may exercise jnris^
diction, for the purposes of the act, within peculiars locally situated
within then dioceses, yet there is an exception in regard of ardibishops,
and bishops' peculiars, locally situated in other diocese than their own.

dBUSfOttUtt^ 807

granted, approved, and allowedy and the time of the revocation
thereof being filed in the registry.

By s. 1^. For the purposes of the act, except otherwise Coaipnu.
provided, the year is to commence on the 1st January, and be tioaoftime.
reckoned to the 81st of December inclusive.

Bj «• 121. Month is to be considered calendar month, ex- Month.
cept ia case any month is to be made up of different periods
less than a month, and in every such case thirty days are to be
deemed a month.

By «• 115. All fees, charges, costs, and expenses incurred, Fees and
or directed to be paid, by any spiritual person hokUng any costs.
benefice^ which shall remain unpaid for twenty-one days after
demand thereof in writing, delivered to, or left at the last usual
place of abode of, such person, may be recovered by monition
and sequestration. But it is provided, that the person of whom
such fees, &c. shall be so demanded, may applv to the bishop to
order the taxation thereof, and the bishop shall thereupon order
some proper person to tax and settle the same, and the certifi-
cate of allowance by such person shall be final.

By «. 52. Every bishop is required to transmit, sometime in incmn-
January in each year, to every spiritual person holding any bents to
benefice within his diocese or jurisdiction, the questions con- q^^ongjn
tained in the first schedule of the act, the better to enable schedule of
him to make the above returns ; and the spiritual person to ^^^
whom the same shall be transmitted shall, within three weeks
from the day on which the same shall be delivered to him, or to
the officiating minister of the benefice for the time being,
transmit to the bishop full and specific answers thereto, such
answers being signed by such spiritual persons.

The first schedule thus referred to contains the following
questions :-—

1. What is the name of your benefice T

2. In what county t

3. Name of incumbent and date of admission ?

4. Is there a glebe-bouse belonging to your benefice ?

5. Were you resident in the glebe-house, or there being no
glebe-house, or none fit for your residence, were you resident
in any, and in what house appointed by the bishop in his license,
durinff the last year for the term prescribed b^ law ?

6. Beinff non-resident, were you performwg the duties of
your parish for the said timet if so, state where you resided,
and at what distance from the church or chapel ?

7. Were you, in the last year, serving any other church or
chapel in the neighbourhood as incumbent ? If so, state the
name thereof, and the distance from the above-named church
or chapel, and when, and for how long, you served the same.

8. Were you serving in any other church or chapel in the

808 iUsOinttt^

locum. neighbourhood as curate P If so^ state the name thereof, an J
answer' ^^® distance from your own church or chapel, and when, and for
questions of how long, you served the same ?

^^ 9. What are the services in your church ? Is a sermcw or

lecture given at every or at whicn of such services ?

10. Were these services duly performed last year? I/not^
for what reason ?

1 1 . What are the services in your chapel or chapels ? If any,
is a sermon or lecture given at every, or which of such services ?

12. Were the services duly performed last year! If not, for
what reason t

13. Have you any assistant curate or curates? If so, state
his or their names ; also, whether he, or they, is, or are licensed,
and the amount of his or their stipend or respective stipends ?

14. If you were non-resident, were you so by license?

15. If non-resident by license, state the ground of license,
and the time when it will expire?

16. If non-resident without license, were you so by exemption ?

17. If non-resident by exemption, state the ground of exemp-
tion, and whether such exemption was claimed for the whole
year, or during what part thereof?

18. If you were non-resident, and did not perform the duties
of your benefice, what ecclesiastical duties, if any, were you
performing, and where do you now reside ?

Observe ! The foregoing questions are to be answered by
every incumbent whether resident or not*

Further questions to be answered in addition to the foregoing,
in case the incumbent be non-resident :—

19. What is the name of your curate ?

20. Does he reside in the glebe-house ?

SI. Does he pay any rent or consideration for the use of the
glebe-house, or is any deduction on account thereof from the
stipend assigned to him in his license ?

22, If non-resident in the glebe-house, does he reside in the
parish ?

23. If not resident in the parish, where does he reside, and at
what distance from your church or chapel ?

24f, Does he serve any other church or chapel as curate ? If
so, state the name thereof, and the distance from your own
church or chapel ?

25» Does he serve any other church or chapel as incumbent?
If so, state the name thereof, and the distance from your own
church or chapel ?

26. Is he licensed ?

27. What is his salary from you ?

VMitimt. «09

S8* Has he from you any other emoluments or allowances ?
state what, and the average value thereof respectively ?

S9. What is the gross^ and what is the net^ annual value of
yoiu: benefice ?

For incnmbenta.
Provisions for.
By mortgage.

Boildmg or purchasing, under 17 Geo. 3, e. 53 ; 1 Fiet. e. 23.

Three years' income, charge on living for thirty* five years.
Under \^2 Fict. c. 106.

Four years' income, chazge for thirty-five years.
Plans and estimates.
Nominees.

Duty of.
Money received for dilapidations.
Treasurer of queen Anne's bounty may lend at 4 per cent.
Colleges and other corporate bodies on their own livings may
lend without interest.
Purchase of land, by 53 Geo, 3, c: 147.
Principal and interest, payment of.

By 17 Geo. 3, c. 53, amended by 21 Geo. 3,c. 66; 5 Geo. 4,

c. 89.
By 1 4* 2 Vkt. e. 106.
Apportionment between outgoing incumbents and fiumliesi

and incoming incumbents.
Recovery of, by distress.
Allowance to nominees.
Benefaction.

Archbishops, bishops, &c. empowered to make grant, 17 Geo, 3,

c. 53.
All persons empowered to give three acres or £500, by 43 Geo. 3»

c. 108.
The king, by 51 Geo. 3, c. 115.

Governor of queen Anne's bounty, by 43 Geo. 3, c. 107.
Sale and exchange.

17 C7eo.3, C.53; 55 G^eo. 3, c. 147; 56 G^eo. 3, c. 52 ; 1 Fict.c.2dt
2^8 FicL c. 49.
Persons under disability authorised to sell or exchange.
For archbishops and bishops.

Mortgage for building, &c. under 2 4*3 Fict. c. 18.

One principal cause of non-residence, at least in more modern
timesi has been the want or insufficiency of the houses allotted

810 ^BMUitmtp Hooietf of;

for the residence of kiciiiiibents. (a) Many acta have been con-
sequently passed with a view to remedy this deficiency. The
first of these, the 17 Geo. S» e. 53, commonly called Gilbert's
act, by its preamble recited, that " many of the parochial clergy »
for want of proper habitations, are induced to reside at a die*-
tance from their benefices, by which means the parishioners
lose the advantage of their instruction and hospitality, which
were great objects in the original distribution of tithes and
glebes, for the endowment of churches." Many other acts have
since passed with the same object It will be convenient to
state generally the modes by which the purpose has been
attempted to be accomplished.
Mortgage. These have been, 1st, to enable the incumbent to raise
money by mortgage, and vrith the money so raised to build a suf-
ficient house of residence, or purchase some house, already built,
near to the church, to bd the house of residence in future.
Benefoc- Sdly. To enable persons who were wilHng so to give and
^^^' grant land or houses, or money to purchase or build, under

certain limitations and restrictions.
Stle. Sdly. To enable incumbents, with consent of the patron and

ordinary, to sell or exchange the house of residence lor the pur-
pose of obtaining some convenient house ; and also to empower
persons to sell and exchange, who are l^fally disabled to do so.
Mortgage ^ By the 17 Geo. S, e. 53, «• 1. The incumbent of any ecde-
uDder^n siastical living, &c. whereon there was no bouse, or the house
had become so ruinous that one year's net produce of the
living would not be sufficient to rebuild or restore it, having

Erocured a plan and estimate of the work to be done, approved
y the ordinary and patron, by writing under their hands, was
enabled to borrow and take up monev to the amount of two
years' income of the living, (extended by 1 Viet. e. 23, «. 1, to
the three years' net income), and as a security, to mortgage the
glebe, tithes, and other profits of the living for twenty-five
years, (extended by the 1 Vict. c. S3, «. 1 , to thirty-five years,
or until the money so borrowed, with interest and costs, shall
be paid.)

By s. 5. It is provided, however, that before the ordinary
gives his consent, he is to cause inquiry to be made as to the
state of the buildings when liuch incumbent entered upon the

{a) By 1 ^ 2 Viet. c. 106, 9. 41. It is provided, that in case of son-
resident incumbents the bishop may order a survey of the repairs of the
house of residence, upon whose report the bishop may issue his monition
to the incumbent to put the same in repair ; and if he fiiil to do so within
ten months, or not shew cause to the contrary within one month, he is
subjected to all the penalties for non-residenoe, whilst such house is out
of repair, ante H02.

JBM6itmt, ^boasM ot 811

living ; how long be has enjoyed it, and what Money he has ^°|^B^
received for dilapidations, and how it has been laid out; and if q^J^^

the incumbent has, by wilful negligence, suflered the buildings 1 —

to be damaged, he may be required, by the ordinary, to pay
the amount of such building or repairs before the ordinary gives
his consent. By s* 8, where the clear yearly value exceeds
£100, and the incumbent does not reside twenty weeks in a
year, and does not apply to procure an estimate md proceed as
above, the ordinary may proceed under the act.

By 1 ^ S Vici. c. 104 '• 62. Every bishop is required, upon Mortgage
the avoidance of any benefice to issue a commission to four ^^ ^^
beneficed clergymen of his diocese $ and if it be situated in Am JUl — .*
peculiar, then to four beneficed clergy of the diocese in which
such peculiar is locally situate,(a) one to be the rural dean of the
district, if there be any ; to inquire, 1st, whether there is a fit
house of residence ?

£dly. What are the clear annual profits of such benefice ?

3dly. If such profits exceed £100, whether a fit house of resi-
dence can be conveniently provided on the slebe or otherwise !

If three of such commissioners report under their hands, that
there is no fit house of residence; that the profits exceed £100;
and that a fit house can be erected on the glebe, or on land
whidi can be convenientlv procured, the bishop is required
to procure a certificate nrom some experienced workmim or
surveyor, containing a statement,

1st. Of the condition of the buildings.

Sdly. Of the value of the timber ttod other materials fit for
use or sale.

8dly. A plan or (b) estimate of the work to be done.

And thereupon, by mortgage, to raise such sum as the Notes-
estimate amounts to, deducting the value of the timber and ceeding ^
materials ; not exceeding four years' net income, after deducting ne^'J^e.
all outgoing, except the salary of the assistant curate, which
mortgage shall be made for thirty-five years, or until the money,
with interest and the costs and charges which may attend the
recovery thereof shall be fully paid. The mortgage is to be
made according to the form in the second schedule of the act ;
every incumbent is made liable for the payment of the interest
and principal, as well as his representatives, and for such pro-
portions of the same, as are directed to be respectively paid by
them by the provisions of the act, which may be recovered by
action of debt in any court of record.

(a) This seems an extraordinary power.

(b) It would seem that this should be *' and" instead of '' or,*'
especially as the bishop is required to send copies of the plan and esti-
mate to the patron, &c.

812 SSMHtmtt, J^OUfStH of 4

M^rtg*g]J By *• 63, It is, however provided, that the bishop is to trans-
v^cJcios. ™^^ copies of the report of the commissioners and of the plan,
— -^ — estimate, and certificate to the patron and incumbent, if any,
at least two months before making the mortgage ; and if either
object to the site, plan, or amount, and shiul deliver his objec-
tions before the expiration of such two months, the bishop may
direct the plan to be altered or modified.

Provided that if after receiving the report, the bishop may
not think it expedient, under the special circumstances of any
benefice, to raise any money by mortgage, for providing such
house of residence, he shall state in detail such special circum-
stances, and the ground of his opinion, in his next annual return
to her majesty in council.
Coumer- With regard to mortgages under 17 Geo. 3, c. 53, it is pro-

part of vided, by s, 2, that every mortgagee shall execute a counterpart
mortgage, ^f every mortgage, to be kept by the incumbent for the time
being, and a copy of every such mortgage shall be registered
in the office of the registrar of the diocese where the parish
ReSf or other ordinary having episcopal jurisdiction therein,
having been first examined by him with the original. Fee
for registering, five shillings ; such copy to be inspected on pay-
ment of one shilling ; and the said deed or a copy certified under
the hand of the registrar, is made legal evidence in case the
mortgage deed is destroyed.

With regard to mortgages under the 1^2 Viet. c. 106, that
act contains, in s. 64, a provision precisely similar to the above,
except that in place or the words in italics, it has simply the
words *' in the office of the bishop of the diocese.**
Money to With regard to mortgages under the 17 Oeo. 3, e. 63, it is
whOTx to be further provided, by s. 4, that the money borrowed shall be paid
^^'^ into the hands of such person or persons as shaU be nominated

by the ordinary, patron, and incumbent, by writing under their
To nomi- hands, after such nominee shall have given a bond to the ordi-
''^' nary in double the sum borrowed, with condition for duly ap->

plying and accounting for the same under the directions of
the act.
Duty of The receipt of the nominee is to be a sufficient discharge to

nominee, the persons paying the money.

And his duty is, to enter into contracts subject to the ap-
proval of the ordinary, patron, and incumbent, to be specified
in an instrument on parchment, to be signed by them.
To have the care of the execution of such contracts.
To pay the money for the buildings and repairs, according to

the terms of the agreements.
To take receipts and vouchers for the same, when such

buildings and repairs are completed, and the money paid.
To make out an account of receipts and payments, together

^BitHditmt, l&OttSM tiU 813

with the vouchers, and enter the same in a hook fairly Mortgage.
written, to be signed by him and laid before the ordinary, ^ ^.^
patron, and incumbent, and examined by them ; which when duty of. '
allowed by writing under their hands, to be a full dis-
charge of such nominee.
If any balance shall remain.
It is to be laid out in some further lasting improvements in

building on such glebe, or in
Discharge of so much of the principal, as such balance will
extend to pay at the discretion of the ordinary, patron,
and incumbent, or two of them, the ordinary being one ; by
orders signed by them.
An account to be kept and allowed, of such further disburse-
ments, as before.
All which accounts, when completed and allowed, are to be
deposited in the hands of the registrar for the use of the
incumbent for the time being, who may inspect the same,
paying one shilling.
With regard to mortgages made under the 1^2 VicL c. 106,
provisions are made by s. 66, of that statute, precisely similar to
the above, except that the bishop of the diocese is substituted
in all cases for the ordinary, patron, and incumbent ; and that
in the latter statute, amongst the payments, which the nominee
is directed to make, is included a direction to pay ^' the ex-
penses of the mortgage deed, and such charges as are incident
thereto, and of making the certificate, plan, and estimate, and
the copies thereof."

It is provided, by 17 Geo. 3, c. 53, s. 9, that all monies re- Money re-
ceived for dilapidations, and not la^d out in repairs, shall be <^p^«red for
applied in part payment under such estimate ; ^j^] ^*

and all money paid after the buildings are completed shall be

paid in part payment of the principal then due ;
in case the mortgage money shall have been discharged, then
to the nominee ; or in case he is dead or declines to act,
then to some other person nominated by the ordinary,
patron, and incumbent ; to be laid out in some additional
buildings, or improvements upon the glebe, or benefice, to
be approved by the ordinary, patron, and incumbent*
If such buildings should not be necessary, then to be laid out
in government or other good securities, and to pay the
interest to the incumbent for the time being.
By I ^2 Vict c. 106, s. 69, the same directions are civen
with regard to the payment of dilapidation money, only as
before, substituting the " bishop of the diocese," for ordinary,
patron, and incumbent."

By 17 GcQ. 3, c. 63, s. 10. Wh^re new buildbgs are neces-
sary to be erected for residence, the ordinary, patron, and in-

814

.miidHU

PlIICMft*

Mortgage.

Governors
of queen
Anne's
bounty and
colleges in
nnWersities
and other
corporate
bodies em-
powered to
lendnoney.

cumbent may contract or authorize the nominee to contract for
the purchase of a convenient house and buildinfls, not more
than one mile from the church, or for the purcnase of land
not exceeding two acres, lying convenient to such house so pur-
chased ; or to the house of a benefice not having any glebe lying
convenient to the same, if the annual value of such living shau
be less than £100, nor more than two acres for every £100,
if of greater value, extended by 55 Geo. 3, e. 147, s. 6, to twenty
acres, the money to be paid out of the money to arise under
the authority of the act. The buildings and land to be con-
veyed to the patron in trust for the incumbent.

The 1^2 Vict, c, 106, contains, in s. 70, a similar provision ;
but which is only applicable where the benefice exceeds in
value £100 per annum, and the avoidance has taken place since
the passing that act ; in such case where new buddings are
necessary, and they cannot be conveniently erected on the
glebe, the bishop may contract or authorisKe the nominee
to contract for the absolute purchase of a house or buildings in
a situation convenient for the residence of the incumbent, and
for land adjoining or lying near to such house, &c.; or for land
upon which a fit house may be conveniently built, and to raise
the purchase money for either purpose by mortgage of the
glebe, tithes, rents, &c., of such benefice in the same manner
as provided by see* 6S, ante 811.

Provided Uiat no greater sum shall be charged on any bene-
fice than four years* net income of the benefice.

And by 1 ^ 2 Vict. c. 106, s. 71. The buildings and lands
so purchased, are directed to be conveyed to the patron of
such benefice, his heirs or successors, as the case may be, in
trust for the sole benefit of the incumbent and his successors.

No such purchases to be valid unless confirmed (by 17
Geo. S, c. 53|) by the ordinary, patron, and incumbent, or by
(l Sf2 Vict. e. 106,) the bishop, by writing uader their hands
respectively ;* every such deed to be in the forms given in the
schedules to the acts and to be registered as other deeds are
thereby directed to be registered.

In order to fecilitate the raising money for the purposes of
the several acts, it is enacted, by the 17 Geo. 3, c. 53, s, 12, that
it shall be lawful for the governors of aueen Anne s bounty to
lend to benefices, which shall not exceea the clear annual value
of £50, a sum not exceeding £100, without interest; and to
benefices above that value, sums not exceeding two years* in-
come at four per cent interest. And by $. 13, colleges and
halls in the universities of Oxford and Cambridge and other
corporate bodies, are empowered to lend any sums of money
over which they have the power of disposal for the purposes of
building, repairing, or purchasing houses or buildings upon

WMfUmn, ^omM aC 8i5

lieiieficeB ander the pmtranage rf sueh college or hallf witiiout Mortg>y>
taking any interest.

By 55 Geo. S, e. 147, s. 8. The goveniora of queen Anne's
bounty, and by #• 9, colleges and halls in the universities and
other corporate bodies, are inyested with precisely similar
powers to lend money for the purchase of land for glebe, for
benefices having no glebe, or only a small portion of gfebe.

By 1 ^ 2 Vict. c. 106, s. 7ft. The governors of the bounty
are empowered to lend any sum not exceeding the amount
authorized to be raised upon mortgage, by that act, for the
purposes of that act, and subject to the several regulations of
the act, at four per cent* interest ; and by s. 73, colleges and
halls in the universities and other corporate bodies are em-
powered to lend money for the purposes of that act precisely as
by 17 Geo. 3, c.5S, e. IS.

With regard to mortgages made before the passing of the 1 Fid. Re-pay-
e. 2S, (the mode of payment of principal and interest having ment of
been varied by that act, as well as by the subsequent act of ^"^^^
14*^ Vidn c. 106,) the payment of the interest and repayment n^otof'
of the principal of the mortgage money was provided for by the interest.
17 Geo. 3, c. 53. By s. 6 of that act, amended and explained by Before
SI Geo. 3, it was directed, that the incumbent and his succes- i Vict.
sors should pay, besides the interest upon the mortffage money, ^' ^^*
five per cent, on the principal, by yearly instalments, pro-
ducing a certificate of residence under the hands of two
rectors ; or if the incumbent did not reside twenty weeks in the
year, £10 per cent, on the principal. But by 5 Geo. 4, c. 89,
e. 6, it was provided, that if the non-residence was by Ucense
from the bishop, granted on account of any actual illness or in-
firmity of mind or body of such incumbent, or of his wife and
child residing with him, and making part of his family, and he
produced a certificate under the hand of the bishop, that the
license was granted for one of the above causes, he was to pay
the same sum only as if he had been resident.

It was also provided by 5 Geo. 4, c. 89, in consequence, as
stated in the preamble, of the great reduction which nad taken
place in the income of many livings, that the incumbents of livings
mortgaged to the amount of two years' income, might lay a state-
ment before the ordinary, verified on oath, of the income of such
living, and of the outgoings^ except a curate's salary ; which state*
ments might be inquired into by order of the ordinary, and the
incumbent, with the consent of the ordinary and patron, might
agree with the mortgagee that the payments in discharge of the
principal might be made at the rate of £5 or £10 per cent, per
annum, as the case might require, according to the directions
of the then preceding acts.

816 SUfitOintt^ ^mat» ot

Mortgage^ By s. S, of the 17 Oeo. 3, e. 53, the governors of queen Anne*fl
Payment of bounty, colleges, and halls in the universities of Oxford and
interest and Cambridge, and all other corporate bodies possessed of the
ofpnnd^! patronage of ecclesiastical livings, were empowered to make and
enter into such agreements with respect to all or any of the
mortgages made to them respectively.

By s. 2. Such agreements to be made according to the forms
contained in the schedule, and by s. 4, to be registered ; the fee
to the registrar being limited to 5«. ; and by «• d, no agreement,
&c. had under the authority of that act is to be charged with
stamp duty.

By s. 7. The governors of queen Anne's bounty were enabled
to reduce the rate of interest secured to them by any mortgage
made under former acts.

By 1 Vict c. 23f s. 3. The yearly instalments of principal
sums secured by existing mortgages to the governors of the
bounty were reduced to one-thirteenth part of the principal
sum originally advanced.

By 17 Geo. 3, c. 53, «. 12. The governors of the bounty were
enabled to advance and lend sums, not exceeding £100, to
benefices not exceeding £50 per annum, without interest ; and
to benefices exceeding £50 per annum, any sums of money to
the extent authorized by previous statutes, at four per cent.

By «. 5. Any college or hall at Oxford or Cambridge, or other
corporate bodies, possessed of ecclesiastical patronage, may lend
money, of which they have power to dispose, in building or
purchasing houses of residence, or sites for them, upon bene-
fices in their own patronage, upon mortgage, without interest* ,
Since With regard to mortgages made since the 1 FicLc. 23, s. 1,

1 Vict.c.23 it is provided by that act, as well as by 1 ^ S Vici. c. 106, «. 67,
that every incumbent shall pay the interest on the mortgage at
the end of the first and each succeeding year, or so much thereof
as from time to time shall remain unpaid (the year to be com-
puted from the day of the date of the mortgage).

With regard to the repayment of the principal, he is not
required to repay any portion during the first year, but at the
end of the second and each succeeding year he is to pay ame*
thirtieth part of such principal sum until the whole is repaid.

By 1 Vict, c. 23, «• 2, all distinction in respect of the repay-
ment of the principal money between resident and non-resident
incumbents is abolished as to mortgages subsequent to that act.
Apportion- With regard to apportionment, in cases of avoidance, the pro-
^^"^^ visions of these acts, by «. 7, 17 Geo. 3, e. 53 ; and by «. 68, 1 ^ 2

Vict. c. 106, are similar, it being provided, in each case, that the
sum payable at the end of any year in which there has been an
avoidance, shall be in proportion as the profits of such living

to nomi-
nees.

JSMdltrntf 16OU0t0 of. 817

haTe been received by the incumbeots respectively ; that in case Mortgage.
of difference the same shall be determined by two indifferent Payment of
persons, the one to be nominated by the successor, the other by interest and
the person making the avoidance, or his representatives in case of ^'p^^?''^
death ; and if they cannot determine, within one calendar month pal, since
after their appointment, then by some neighbouring clergyman, ^ ^'^^^
to be nominated by the bishop, whose decision shall be final. ^'

It is provided by 17 Geo. 3, c. 53, s. 3, and 1^2 Vict. e. 106, Remedy by
*. 65^ that whenever the principal and interest shall be in arrear ^^reu,
and unpaid for forty days, the mortgagee, his executors, &c.
may recover the same, and the costs and charges attending the
recovery thereof, by distress and sale, in such manner as rents
may be recovered by landlords; and further, by 17 Geo. S^
c. 53, s. 6, and I ^2 Vict. c. 106, s. 67, the bishop may sequester
the profits of the living till payment is made.

By 17 Geo. 3, c. 53, s. 19. The patron, ordinary, and incum- Allowance
bent, or any two of them, of which the ordinary to be one ; or,
by 1 (^ ^ Vict. c. 106, s. 74, the bishop; by writing, under their
or his hand, may make such allowance to the nominee as they
or he shall think fit, not exceeding £5 for every £100expended«

By 17 Geo. 3, e. 53, s.2l. Archbishops and bishops, or any Benefac
other ecclesiastical corporation, being lords of manors, within ^^°'
which there are waste or common lands, parcel of the demesnes of
such manor, lying convenient for a residence house or buildings,
are empowered to grant a part or parts of such lands in per-
petuity, for the several purposes of such act ; leaving suflicient
common for the persons having rights of common upon such
lands, and obtaining the consent of the lessee, if such lands
shall be in lease.

By 43 Geo. 3, c. 108, *. 1. Persons are empowered, by deed By deed or
or will, to give lands, not exceeding five acres ; or goods and
chattels, not exceeding £500, for erecting, rebuilding, pur-
chasing, or providing any church or chapel, where the Liturgy
and rites of the united church of England and Ireland are used
and observed ; or any mansion-house for the residence of any
minister of the said united church, or of any outbuildings,
offices^ churchyard, or glebe ; the consent and approbation
of the ordinary being first obtained, without any license or writ
of ad quod damnum, the statute of mortmain or any other
statute to the contrary notwithstanding* But such powers are
not to extend to persons within age, insane, or to women covert
without their husbands.

By «. 2* Only one such gift shall be made bv one person,
and where it exceeds five acres or £500, the chancellor may
reduce it

By s. 3. No glebe, upwards of fifty acresi shall be augmented
with more than one acre.

o G G

818

ifttsdHtitce, IkawM ot

Beoefac-

By tho
king.

(a) Sale or
exchange*

By s. 4. Plots of land, not exceeding one acre, held in mort-
main, lying convenient to be annexed to some church or chapel,
or house of residence, or convenient for the site of any house,
&c. may be granted either by exchange or beneiaction.

Doubts having arisen whether the powers of the foregoing
act would enable his majesty to make any such grant, it was
enacted by the 51 Geo. 3, c. 1 15, s. I, that the king should have
power, by deed or writing under the great seal of the Duchy of
Lancaster, to vest any lands, not exceeding five acres, in any
person or persons for building any such church or chapel, or
for any mansion-house for the residence of the minister, and
vid. 2Sf3 Vict. c. 49, 8. 20, 22.

And by s. 2. Persons and bodies corporate, having the fee
simple of any manor, were enabled to grant five acres of waste
for the purposes contemplated by the 48 Geo. S, c. 108.

By 55 Geo. 3, c. 147, «• 5. Persons and corporations, being
owners in fee simple, with the consent of the incumbent, patron,
and bishop, are empowered to give, grant, and convey, by deed
indented, and to be registered, any messuage, outbuildings, &c.
with their appurtenances, or any right of way, or other ease-
ment, whether lying within the limits of the benefice or not ;
but so that the same may be conveniently situated for actual
residence or occupation by the incumbent ; such power not to
extend to minors or lunatics, or femes covert, without their
husbands.

By 17 Geo. 3, c. 53, «. 11. When land lying near to a par-
sonage is thought fit to be purchased or exchanged, the pur-
chase money or equivalent for such land, may be raised by sale
or exchange of such part of the glebe, tithes, &c. as may appear
most convenient to tne patron, ordinary, and incumbent* By
8. 14, if the patron is a minor, lunatic, or feme covert, the
guardian, committee, or husband, may act for him or her. By
$. 17, if the incumbent of any chapelry or perpetual cure is
nominated by the rector or vicar, their consent shall be necessary
in all cases where the patron's consent is required ; s. 20 directs
the mode in which in cases of the livings belonging to the
crown, consent is to be made known.

By 55 Geo. 3, c. 147, $. 1 . The incumbent is empowered,
with consent of patron and ordinary, to exchange his bouse of
residence for any house, whether within the local limits of his
benefice or not, so that the same be situate conveniently for
actual residence, and more conveniently, than the premises
given in exdiange, vid. ante^ 418.

(a) By 2 ^ 8 VkU e, 49, s. 15 and 16, power is given to sell lands
bought and appropriated by the governors of queen Anne's bouty.

lUdflymce^ ^oasM ot 8i9

By $. 5. Where a house or building has been' granted by Me or ei-
benefaction, a power is given, with the consent of the patron, ^ °^'
incumbent, and bishop, to pull down the old parsonage-house, Old house
and apply the materials, or the produce thereof, if sold, towards ^^1^
some lasting improvement for the said benefice. ^ *

By 48 Geo. 8, c. 107, *. 8. The goTernors of queen Anne's Money of
bounty are empowered to employ the money appropriated for *M>»»nty.
any augmentation, in building, rebuilding, or purchasing a house
where there is none.

By 56 Geo. 8, c. 52, s. I. Incumbents are enabled, with con- Timber,
sent of the patron and bishop, to apply the monies to arise by
sale of any timber cut and sold from the glebe lands, the timber
whereof belongs to such benefice, '^ either for equality of ex-
change, or towards or in part of equality of exchange, or for the
price or purchase money, or towards, or in part of the price or
purchase money of any house, outbuildings, yards, gardens,
and appurtenances, or lands, or any or either of them, by the
said recited act (the 55 Geo. 3, c. 147,) authorized to be taken
in exchange, or to be purchased; and from and after such
exchange or purchase, to be annexed to, and to be and become
the parsonage and glebe-house and glebe lands of such be-
nefice*

By 1 Vici. c. 28, s. 6. When any existing house and offices Old houie
belonging to any house of residence shall be incapable of being ^'(^e^m-
enlarged or repaired so as to be rendered fit for residence, and house for
shall be so certified to the bishop by some competent surveyor glebe.
or architect; the same, with the consent in writing of the bishop,
may, if advantageous to the said benefice, be allowed to remain
standing as a dweliing-house and offices, for the occupier of
the glebe-lands belonging to such benefice.

By s. 7. If the residence-house and appurtenances be incon-
Yeniently situate, or if for other good and sufficient reasons it
be fit and advisable to dispose thereof; the incumbent may,
with the consent and approbation of the ordinary and patron,
and of the archbishop of the provinee, to be signified by their
executing the deed of conveyance, absolutely sell and dispose
of such house and appurtenances, any or either of them, with
any land contiguous thereto, not exceeding acres (this blank,
inadvertently left in this act, was filled up by the 1 ^ S VicL
e. 29, with the word ** twelve") to any person, either altogether
or in parcels ; for such sum or sums of money as to such
ordinary, patron, and archbishop, shall appear fair and reason-
able ; extended by 3 ^ 8 Vict. a. 40, e. 17, to old buildings not
worth repairing, or which it may, for other sufficient reasons,
be desirable to sell. -

By $. 8. The money to arise from such sale to be paid to
the governors of queen Anne's bounty, and the receipt of the

G o o S

820

Brdfiinue, ^ouiM ot

Sale or ei* treasurer shall be a discharge to the persons paying the same,

^''"^ _ and pid. 2^3 Viet. c. 49, s. 18.

By s. 9. Such money, after paying the costs and expenses of
such sales, shall be applied in and towards the erection or pur-
chase of some other house and offices, or the purchase of a
garden, &c., or land for the site of a house, or either, together
with land contiguous thereto, not exceeding twelve acres,
suitable for the residence of the incumbent, approyed by the
ordinary and patron, under their hands, such approval to be in
writing, and to be deposited in the registry ; such house to be
deemed to be the house of residence, {a)

The 7 Geo. 4, e. 66, reciting the 17 Geo. S, e. 63 ; the
21 Geo. 3, c. 66; the 43 Geo. 3, c. 107 ; the 55 Geo. 3,c. 147 ;
the 4 Geo. 4, c. 86 ; the 5 Geo. 4, c. 8 ; the 56 Geo. 3, c. 62 ;
the 1 Geo. 4, c. 6 ; the 6 Geo. 4, c. 8, and reciting, that whereas
the means of providing houses and buildings for the residence
and occupation of the parochial clergy, are still in many cases
insufficient, by reason that the powers given to owners of houses,
buildings, and lands, by the 55 Geo. 3, if under any disability
or incapacity to convey, authorize the sale of land only, and the
exchange only of houses and buildings; and that, although
power to purchase houses and buildings was given by the
17 4 43 Geo. 3, the owners thereof, if under any disability or
incapacity are not empowered to sell and convey the same ; pro-
ceecls to empower persons under legal disability or otherwise
disabled to act for themselves, (or their guardians, committees,
&c.,) being owners of buildings, messuages, buildings or lands,
which may be purchased under the 17 Geo. 3; 43 Geo. 3 ; or
55 Geo. 3 ; to convey the same to the use of the incumbent of
any benefice for his residence and occupation, the same to be-
come annexed to the said benefice. The purchase money to
be raised under the powers of the 17 Geo. 3, c, 53, and to be
holden by the parson and his successors, without any license or
writ of ad quod damnum ; the statute of mortmain or any other
statute to the contrary notwithstanding, and rtd. 2^3 Viet,
c. 49, ss. 19, 20, 22.

By an act of the present session, 2^3 Vict. c. 18, «• 1, a
power of mortgaging the possessions of the see has been given
to archbishops and bishops for rebuilding or impioving their
palaces, or building new ones, or for purchasii^ a freehold
mansion, or land for a site within the province or diocese.

The amount to be raised to be not less than £2000, nor
more than three years net income of the see.

Archbi-
shops and
bishops.

Amount of
mortgage.

(a) By 2 ^ 3 Vict. c. 49, 8. 14, A power is given to the governors to
lay out the money upon interest, and receive the dividends thereupon,
till the purchase or erection ; or any surplus after purchase, &c.

The interest of the money borrowed to be paid half-yearly, 4"^'*^'^
and one-thirtieth part of the principal at the end of the third ^jgh^ps.
year, and the same at the end of every succeeding year.

By *. 5, the like power of distress, as in 17 Geo. 8, c. 63, s. 8, ^^^°^
and 1 §• 2 Vict. c. 106, *. 65, if principal and interest be forty P""^*P*^*
days in arrear ; ante 817; but by s. 6, not more than one year's
interest and one instalment of principal are to be so recovered
in case of an avoidance of the see.

By 9, 7. The money when raised to be paid to persons nomi-
nated by the archbishops of Canterbury and York, in the case
of an archbishop ; and by the archbishop of the province, and
the bishop, in the case of a bishop ; the duties of these nominees
are similar to those under the former acts, jinte, 813.

Bys. 11. Upon every vacancy of a see, the archbishop or
bishop avoiding the same or his executors, to pay so much of the
interest as is in proportion to the time elapsed of the half-year,
and so much of the yearly instalment of principal, as bears a
proportion to the portion of the year elapsed.

By s. 12. If the money raised is applied in purchasing a
palace, the archbishop making the purchase, may, with the con-
sent of the other archbishop, or the bishop with the consent of
"his metropoHtan, pull down the palace for which the new pur-
chase is substituted, if the same cannot be better applied for
the permanent advantage of the see ; or the materials may be
applied towards any buildings for which the money is raised ;
if turned into money the same is to be paid to the nominees ; and
by s. 18, all dilapidation money is to be paid to them.

By s. 14*. The governors of queen Anne's bounty, may ad-
vance money for the purposes of this act at four per cent.

By 17 Geo.S, c. 53, s. 6, and I 8f 2 Vict. c. 106, s. 67. As i^unnce
soon as the buildings are completed^ incumbents are required to from fire.
insure in some of the public offices established in London or
Westminster, in such sum as shall be determined by the bishop.
Archbishops and bishops are in like manner, by 2 ^ 3 Vict»
c. 18, s. 9, required to insure, from the commencement of the
buildings, in such sum, in the case of an archbishop, as shall be
agreed upon, by the two archbishops ; in the case of a bishop,
by him and his metropolitan. If an incumbent fail to insure,
the bishop may sequester till it is done. The receipts for in-
surance are to be yearly exhibited by an archbishop to the
other archbishop, and by a bishop to his metropolitan ; if there
be no insurance, and there be a loss by fire, the other arch-
bishop in case of an archbishop, or metropolitan in case of a
bishop, may bring actions.

S93

ileisij^atton.

Resignation is where a parson, vicar, or other beneficed
clergyman, voluntarily gives up and surrenders his charge and
preferment to those from whom he received the same, and being
nis own act he is not entitled to emblements. 3 Bum*s E. L,
S19 ; g JB. 4r ^. 471. Godolphin'$ definition of resignation is
'* the voluntary yielding up (into the hands of the ordinary,)
" the interest the incumbent hath in his benefice." GodoL
Abr.2M.

The ordinary, who has the power of institution, hath power
also to accept a resignation made of the same church to which
he may institute, and therefore the respective bishop or other
person who, either by patent under him, or by privilege or pre*
scription hath the power of institution, are the proper persons
to whom a resignation ought to be made. And yet a resigna-
tion of a deanery in the king's gift may be made to the king ;
and some hold that a resignation of a prebend may well be made
to the king, though it is not a donative. But others, on the
contrary, have held that the resignation of a prebend ought to
be made only to the ordinary of the diocese, and not to the
king, as supreme ordinary, because the king is not bound to give
notice to the patron (as the ordinary is,) of the resignation ; nor
can the king make a collation by himself without presenting to
the bishop, notwithstanding his supremacy. 2 Roll. Abr. 358 ;
S Burn^s Ecc. L. 319 ; Godol Abr. 191.

Resignation must be made to a superior, wherefore a bishop
cannot resign to a dean and chapter ; and it must be made to the
immediate superior, as of a church presentative to the bishop,
and not the metropolitan. Roll. Abr. ibid. ; 3 BurrCs Eec. L.
819.

As the ordinary has nothing to do with a donative, admission
and institution not being necessary, and as the parson comes in
by the donor, who hath the sole visitation, so he may make re*
signation to the donor. Godol. Abr. 191.

It has been resolved that a resignation, until it be accepted by
a bishop, and acknowledged by him, does not make the church
void; a resignation to a proctor is not sufficient. Smith v.
Foaves^Noy. Godol. Abr. 261, as to Simoniacal resignations,
vid, post, 842.

«23

i^)8titution ot Conjugal litj^^ts*

Restitution of conjugal rights is a suit wherein it is the Restitatioii
practice to plead on behalf of the promoter that the party com- of conjtigal
plained of has withdrawn from cohabitation without lawful "S^^*
cause, and concludes with a prayer that such party may be com-
pelled to return and treat the complainant with conjugal affec-
tion. 1 Hag. Con, Sup. 6. But the ecclesiastical court can
only interfere where cohabitation is suspended; where, thereforei
a libel charged, ** that the said Margaret Orme, though allowed
'* by the said Robert Orme to reside in the same house with him,
'' was denied access to his person and bed ;" it was rejected, on
the ground that, cohabition continuing, the court could not in-

?uire as to the terms on which it was maintained, (a) Orme v.
)rme, 2 Add. 383. But where, in a suit for restitution, the
usual decree had been pronounced, *' to take his wife home and
'' treat her with confugcd affection^* and to certify his obedience
on a given day as a preliminary step to his dismissal from the
effect of the original citation ; and it appeared that thouffh
the wife had returned home, the husband, without actually
ejecting her, had treated her with anything but conjugal affec-
tion, the court refused to dismiss the husband. Ibid.

Where, in a suit for restitution of conjugal rights, a marriage
in fact, or the validity of it, is denied, the suit assumes the shape
of a suit of nullity of marriage. Swift v. Swift ^ 4 Hag. 163;
and f>id. Grant v. Grant, 1 Lee^ 692.

This suit, like a suit for divorce, may be barred either by
cruelty, Oliver v. Oliver, 1 Hag. Con. 361, or adultery. Best v.
Best, 1 Add. 41 1, vid. ante " Divorce,'' and upon adultery being
pleaded and proved in answer to a suit for restitution, a divorce
may be decreed, and it is not necessary to institute a cross
suit for that purpose. Ibid. ; 3 Hag. 638 ; 4 Hag. 861 ; 2 Hag.
Sup. 65.

So also, a plea of cruelty or adultery may be met by a coun-
terplea of condonation. Westmeath v. IVestmeath, 2 Hag. 116;

"- » I

(a) The duty of matrimonial intercourse cannot be compelled by the
ecclesiastical court, though matrimonial cohabitation may. I Hag.
Con. 154, per Lord StoweU.

824 30MUtxAion of Conjugal Bigl^td^

3 Hag. 6S9. So also misconduct previous to condonation^
may be revived by misconduct subsequent. lb*
Condbna- But where, in consequence of the violent conduct of a hiis-
^^' band, the wife insisted upon, and obtained a deed of separation,

but was induced, by the entreaties not only of the husband, but
of her own family, to allow the husband to occupy a bed-room
in her house, upon his express declaration, that he should be
considered only as a lodger having no right to cohabitation,
and no controul or authority in the house, or over the servants,
and should be in the house merely by sufferance ; and no matri*
monial intercourse, in fact, took place during his stay there, the
court refused to consider such a residence as condonation.
Ibid. 118.
Cruelty. Where there are faults on both sides, and the injuries of

the complainant are ascribable to the provocation offered, or
where they were received accidentally in a scuiHe ; where, in
abort, there is no reason to impute malignant intention, the law
will oblige the wife to return to her husband. Oliver v. Oliver,

1 Hag. Can. 372.

In BramweU v. Bramwell, 3 Hag. 635, and tid. 2 Hag. Sup,
129, the court said, "if the witnesses lay a sufficient ground
for the court to conclude that a wife's return to cohabition would
be attended with a reasonable apprehension or a probable
danger bf personal violence, the court will release her from the
duty of such return." In that case sentence of separation was
pronounced, in a suit for restitution of conjugal rights by the
husband, on proof of undue familiarity of the husband with a
woman with whom he held correspondence, clandestine com-
munication, shewing great warmth of passion, with frequent
opportunities of guilt, though no credible fact of adultery was
proved.

In a case where a wife refuses to return to her husband on
account of violent conduct, it is not necessary, in defence to a
suit by her husband for restitution of conjugal rights, for her to
shew that her conduct was entirely without blame ; for the
reason which would justify the imputation of blame to the wife
will not justify the ferocity of the husband. 1 Hag. Con. 458 ;

2 Hag. Sup. 72.

Where tne wife is acting on the defensive, she is not. relieved
from the proof of necessary facts, yet, under such circumstances,
the inferences arising from facts, when established, may be
stronger than where she is the original complainant ; thus, where
a suit for restitution is promoted by the husband, the wife is
not, according to the doctrine and practice of the ecclesiastical
courts, held to the same strictness of proof, as in an original
suit by her. 3 Haff. 619, ante 335, 339.

If a wife separate herself from her husband, on account pf legal

3SU0titttt(on of Coiqngal Etgfttd^ 8^^

cruelty on his part, and afterwards is induced by his entreaties, CondoDed
seconded by the wishes of her own family to return to matrimo* ^|vcd.
nial cohabitation, the law presumes, that when she so returns
she condones former injuries, upon the understanding and ex-
pectation that she is to be treated with conjugal kindness ; and
if the husband fails to do so, such former injuries would be re-
vived by subsequent misconduct of a slighter nature, than that
which would be required to constitute original cruelty, and for
the plain reason, that the apprehension of danger would be
more easily and justly excited ; and the law, therefore, though
not allowing a wife to separate herself from her husband from
mere fancy or caprice, would not compel her to return to coha-
bitation. Westmeath v. Westmeath, 2 Hag. Sup. 114; S Hag*
635.

The ecclesiastical courts do not consider an agreement for Deed of
separation, as in any way affecting the legal rights of parties ; "^P*"^*^'
and although it may contain an express covenant not to bring a
suit for the restitution of conjugal rights, it is not a bar; and in-
deed has been said to offer no impediment to a suit of such a
description. 2 Hag. Sup. 1 15.

In one case in which articles of separation, containing a cove-
nant of this nature, were pleaded. Sir W. Wynne said, on over-
ruling such plea, that he believed it was the first time the ques-
tion had come directly before the court, and that he was sur-
prised that it should be brought forward. 2 Hag. Sup. 44, ft.

A suit for restitution of conjugal rights, strongly infers that at
the time of instituting such suit, the party had no reasonable
ground to apprehend personal violence, but it does not amount
to an absolute bar to a sentence of separation for antecedent
cruelty ; h fortiori it would not exclude the wife from pleading
acts of harshness and severity, previous to such suit, in conjunc-
tion with acts of cruelty subsequent. 4 Hag^ 268.

836

dequeistratton.

1. Founded on king's writ.

Nature of proceeding.

How executed.

Effect and operation of.

Cases of insolvency of party sequestered,

2. Issuing out of bishop's court.

Dilapidations.

Not insuring or paying principal or interest on mortgage, by

17 Geo. 3, c. 53, s. 6.
During vacancy.
Neglect of cure.
Cases under 1^2 Viet. c. 106.

See. SI. Suspension for illegal trading.
See. 54. Disobedience of monition to reside.
Sec. 91. Non-delivery of premises assigned for residence
of curate.
Application of profits in the above cases.
Other cases under that statute.

Sec. 67. Not insuring, not paying principal and

interest on mortgage.
Sec. 90. Not paying curate's stipend.
Sec, 101. Non-payment of stipend by incumbent
succeeding to sequestered living.
Priority of sequestrations under 1^2 Fict. c. 106.
Mode of proceeding under that act.
Appeal against.

Mode of appeal under 1^2 Vict, e. 106.
Sequestrators, duty of.

Sequestration is a mandate issuing from the bishop to
certain persons to receive and apply the revenues of an ecclesias-
tical benefice. This mandate may either be founded on a long's
writ o( levari or fieri facias^ or it may issue originally from the
bishop, as when it is founded on a sentence of sequestration in
his own court. A sequestration is founded on a king's writ of
levari or fieri facias y when a sheriff returns nulla bona to a
common fieri facias^ and that the defendant is a beneficed
clerk, not having any lay fee, upon which the plaintiff may sue
out B, fieri faciei de bonis ecclesiasiicis, directed to the bishop
of the diocese, or archbishop, (during vacancy of the see), com-
manding him to make, of the ecclesiastical goods and chattels
belonging to the defendant within his diocese, the sum named

iNi)ttR(tratiom 827

in the writ rtdds Fomu; S B.% P.^STl, 5B.% Ad.SSO, 453. Oa king'.
This writ is tested and made returnable, and must be sealed ^"^'
and indorsed as a common ^ert/acfa^; and being taken to the
registrar of the diocese, he will thereupon issue a sequestration,
which is in the nature of a warrant, directed usually to the
churchwardens, requiring them to levy the debt of the tithes
and other profits of the defendant's benefice. Tidd» 1024 ;
S BL Com. 418; and md./orm of, 5 Tyrwh. 101. On proper
security being given it may be directed to sequestrators of the
plaintiff's own selection. If the entire debt be not levied in one
diocese, the plaintiff, on return of the writ, may have a testcttum
fieri factM de bonis ecclesiasticis into another diocese for the
residue; or he may have an alias into the same diocese.
Chiiiff's Practice, 788.

Instead o( a fieri facias, the plaintiff may sue out a writ of
sequestrari facias, directed, tested, and returnable, &c. as the
fierifacias, commanding the bishop to enter into the rectory, and
take and sequester the same, and hold them until of the rents,
tithes, and profits thereof, and of the other ecclesiastical goods
of the defendant, he have levied the plaintiff's debt. This
writ is in the nature of a levari facias, the other is in the nature
of a fieri facias. Chiit. Prac. 788 ; 2 H. B. 562.

In such cases the bishop acts merely ministerially, and in aid sequestra-
of the sheriff, who, having no power to levy except upon lay tion^how
fees, it is necessary to have recourse to some other channel, in •'^c"^*
order to levy on ecclesiastical possessions ; for this purpose the
bishop is put in the place of the sheriff, or is a sort of eccle-
siastical sheriff. Being merely a ministerial officer the writ is
mandatory on him, and he is bound to execute the first valid writ
in point of date, by analogy to the case of a sheriff; Campbell v.
W/iitehead, I Hag. Con. Sll, in notis ; although it may hap-
pen that another writ, subsequent in date, may have been
entered before it by the bishop's registrar; I Dotal. %Ry. 486,
and see 5 Mod. 376; 1 Salk. 320; 1 Lord Raym. 729; acting,
therefore, as sheriff, the court of king's bench has the same
power over the bishop as over the sheriff; 1 Dowl. ^ Ry. ib. :
he may be ruled to return the writ, ib. ; and if he makes a
false return will be liable to an action. 1 Sid. 276 ; 1 Salk.
320 ; Lord Raym. 265. So the court may be applied to on
motion to set a sequestration aside. It has been usual to make
the bishop a party, but it has never been decided that it
is absolutely necessary that he should be a party ; the point
was raised in Bishop v. Hatch, 1 Add. % EU. 190, but not
decided. The sequestration should be forthwith duly pub-
lished by reading it in church during service, and afterwards at
the church door (but it is not absolutely necessary to fix a copy
on the church door« unless the practice of the particular diocese

828

iktquMttrattoti*

On king's
wrjt.

How ex-
ecuted.

Effect of.

requires it). 6 B. ^ C. 630. Nor is it necessary to its validity
that publication should be made before the return of the writ,
the object of publication is to give it priority in cases of con-
flicting claims. lb.

Either of the above writs is a continuing execution, and the

filaintiff is entitled to the growing profits from time to time,
though after the writ is returnable,] and until the sum
indorsed is satisfied. 2 H. BL 582. Therefore, where such a
writ remained in the hands of the bishop, long after it was
returnable, who sequestered the profits accruing, as well before,
as after the return day, and on being ruled to return the writ,
returned only the amount of the sum levied up to the return day,
the court of common pleas would not order the writ and return
to be taken off the file, but would only permit the return to be
amended, by inserting the sum levied up to the time when the
writ was actually returned. 2 H. BL 58S ; I DowL 4S4f. The
proper course would have been, to have ruled the bishop from
time to time to know what he had levied. lb. It seems that if
once the writ is returned the bishop's authority is at an end. lb.
A judgment creditor, who has obtained sequestration of a
living is entitled to an account of the surplus in the hands of a
prior sequestrator, after satisfaction of the arrears and growing
fragments due to the party obtaining the first sequestration ;
and the court will not notice the existence of incumbrances
which the party has not followed up with execution and made
available. 2 Swanst. 174.

Lands are bound, by the delivery of the fieri facias de bonis
ecclesiasticis to the bishop. 2 Net. ^ Man. ^27 ; 5 Tyrwh. 90;
but they are not bound by the judgment upon which it is
founded ; and therefore a judgment upon a warrant of attorney,
given by a beneficed clergyman to secure the payment of an
annuity, need not be registered in a register county. In one
case the judgment was for £1800; the warrant of attorney
provided, that on the death of the defendant, and full payment
of the arrears of the annuity, satisfaction should be entered on
the record. A second judgment having been signed by a dif-
ferent creditor, who sued out a sequestrari facias thereupon, it
appeared that at that time the former creditor had, by seques-
trations, levied more than £1800 for arrears of his annuity, and
there were arrears still due. The court ordered that satisfiiction
should be entered on the roll of the former judgment, as of the
date when the judgment was signed by the second creditor, and
that the sums levied since should be paid over to him. But
they refused to order payment to this creditor of the surplus
over £1800 levied before the signing of his judgment, Coiile
V. Warrington. 5 B. ^ Adol. 447.

In Bennett v. Appertey, 6 B. Sf C. 626. It was said by

jl^tquedtrattom 829

Baylejf, J.« that the property is bound from the time when the On king*!

sequestrator is appointed, and that the publication of notice is T[!!!l

only necessary to give pnority in cases of conflicting rights, and
that the sequestration only operates from the time of pubHcation.
In Wait V. Bishop, 5 Tyrwh. 90, it seems to have been decided,
that the writ of sequestration has not a retrospective effect, and
that nothing but the future profits of the benefice pass by it.
Waite V. Bishop, ib. ; 1 C, M. ^ R. 507.

It has been held that the profits of an ecclesiastical benefice insolvency.
did not pass to the assignees under the insolvent act, 37 Geo. 3,
c, 11^; SBos.Sf PuU.32l ; nor under the assignment made under
the 7 Geo. 4, c. 57 ; I Ad. ^ EU. 171. But the assignees may,
under the latter act, s. 28, obtain a sequestration, after ad-
judication by the insolvent debtors' court, on the insolvent's
petition ; 1 Add, Sf Ell. 171 ; t)ost 833. An individual judgment
creditor may also sequester tne benefice for his own debt, not-
withstanding the assignment to the provisional assignee ; and the
assignees, after adjudication, are not entitled to set aside the
sequestration of such a creditor, or to claim precedence over it
for a sequestration issued by them pursuant to the act. Ibid;
and 3 Nev. ^ Man. 488. Nor is this right of such creditor
affected by the 34th section of the 7th Geo. 4, c. 57, which
enacts, that where a prisoner, who applies for his discharge
under that act, shall have executed any warrant of attorney to
confess judgment, no creditor obtaining judgment thereupon,
shall after the imprisonment of the debtor, avail himself of any
execution issued, or to be issued, on such judgment by seizure
and sale of his property; for the sequestration of an eccle-
siastical benefice is not an execution within the meaning of that
statute. Ibid.

There are many causes for which a bishop acting judicially Out of the
may issue an original mandate of sequestration ; 1 st, as a ^*^^^'*
remedy for dilapidations. When the parsonage or chancel (if

the incumbent is bound to repair it) is in decay, if after due ad- For dilapi-
monition, he shall delay to begin the repairs for two months, then ^^^^'"'
the bishop may sequester the profits of the benefice till the
necessary repairs shall be accomplished. This admonition may
proceed from the archdeacon, but it is the bishop only who
has the power of sequestration. God. Abrid. App. 14. Lay
impropriators are generally under the same obligation of re^
pairing the chancel as spiritual rectors, but inasmuch as such
impropriations have become lay fees, they are exempt from
spiritual jurisdiction ; as to non-repairs of houses of residence
generally, see ante 316.

So also by 17 Geo* 3, c. 53, s. 6, and also 1 4r ^ Vict. c. 106, Notrnmr.
s, 67. It is enacted, that in default of the incumbent to insure '°g«
the house of residence ; or in case of his not paying the prin-

830 INqtiM(trat(an.

Not inror- cipal and interest due on any mortgage made under the powers
'°g' of those acts, the bishop may sequester the profits of the bene-

fice till such payment or insurance shall be made, anie 8^1.
A sequestration is sometimes rendered necessary by the living
During va- becoming vacant. Vacancy may be occasioned,
^^^y* Ist. By the removal of the incumbent by death or otherwise.

2dly. When the cure is of so small value that no fit clergy-
man will be at the charge of taking it.

3dly. Where the right of a benefice is in controversy, and a
suit is depending to try which of two claimants is the lawful
incumbent, or after sentence, where there is an appeal to a
superior jurisdiction. In all these cases, the ordinary, or in the
last case the judge, is to send bis mandate to the churchwardens,
or to such other persons as he may choose to select to be
sequestrators, to have the cure supplied, and to allow such
salary as may be assigned out of the profits of the living and to
preserve the surplus for the person i^ho shall be duly instituted
to the benefice. Uod. Abrid. Apn. 14 ; Wats. c. 30 ; £ Mod. 255,
For neglect The profits of an ecclesiastical benefice may be also seques-
of the care, tered where the incumbent neglects his cure. God. Abrtd. ib.
This was the implied mode by which the ordinary was to collect,
in order to distribute among the poor of the parish, one year's
profits of the benefice of an incumbent not residing, forfeited bj
13 EUz, c. ^, whilst that statute was in force.

By the late act, 1^2 Vict, e. 106, the bishop is empowered to

sequester the profits of an ecclesiastical benefice in many cases.

Under Ist. By«. 31. Bishops are empowered to suspend spiritaal

c.^06. persons trading contrary to that act, and sequester the profits

- — ' — of their benefices ; for the first ofience for one year, and for the

second for as lon^ as the chancellor of the diocese, or other

competent judge shall seem fit.

Sdly. By s, 54. In cases of non-residence, a bishop, instead of
proceeding for the penalties in the act, or under the 57 Geo. S,
c. 99, may enforce residence by monition, and after the retan
of the monition, to issue an order under hand and seal, requiring
any spiritual person to proceed and reside within thirty days ;
and in case of non-compliance with such order, the bishop may
sequester the profits of the benefice till such order be complied
with ; but by s. 113, no sequestration is to issue until this order
has been served in the way provided for the service of mo-
nitions, ante 698. Incumbent absenting himself after return in
compliance with order, a fresh sequestration may issue without
further monition, ante 799.

3dly. By «. 93. A bishop having required the curate of a
non-resident incumbent to reside in the house of residence of
the benefice, may assign him the same with a portion of the
glebe land^ and if the possession of the premises so assigned

J^rqtKsttratiom 831

shall not be given up to such curate, the bishop may sequester i & 2 vict-
the profits of the benefice. c. 106.

In the three cases next above a specific direction is given by Application
the same statute, «. 31, as to the appUcation of the profits during ofproiits.
sequestration.

1. To pay for serving the cure.

S. In payment of penalties and expenses.

S. In repairs of chancel and house of residence, and buildings
and glebe,

4. Towards satisfaction of a sequestration (if any) at the suit
of creditors,

5. In the augmentation or improvement of the living, or the
house and buildings and lands ; or to be paid to queen Anne's
bounty for the purposes thereof.

In the case of sequestration for illegally trading, by«. 31, it is
expressly directed that no part of the profits shall be paid to the
party so suspended, nor applied in satisfaction of a sequestration
by a creditor.

There are also other cases of sequestration arising out of the
provisions of the 1 ^ S VicL c. 106.

1 St. By s. 67. The bishop may sequester the profits of a Neglect to
benefice, for not insuring the house of residence, as soon as >°sui^* &C'
completed, the same having been built or purchased with money
raised by mortgage under the powers of that act ; he may also
sequester for not paying the interest and principal of such mort-
gage. A similar power of sequestration *was given in both cases
in almost the same words by the 17 Geo. 3, c, 53, «. 6, ante 821.

2nd\y, By s, 90. Payment of a curate's salary, together with Non-pay-
the full costs of recovering the same, as between proctor and ^^^ <|f
client, may be enforced by monition and sequestration. mImy/

3dly. By s, 101. If the profits of a living under sequestration
shall not be sufficient to pay the stipend of the curate, the suc-
ceeding incumbent shall be required to make good so much as
is deficient out of the profits of the benefice, and the bishop
may enforce payment of the same by monition and sequestration.

With regard to sequestrations issued under this act, it id Under i &
further provided, that " they shall have priority and the sums to 2 Vict. c.
be thereby recovered, shall be paid and satisfied in preference ]^*^ ^^,
to all other sequestrations, with the two following excepted oiity.^"*
cases : —

Sequestrations founded on judgments duly docketed before
the passing of the 1^2 Vict, c, 106, and

Sequestrations issued under 17 Geo, 3, c. 53, and which are
prior in point of time.

By «. 112, it provided, that in all cases in which proceedings,
under that act are directed to be by monition and sequestration,
the monition is to issue under hand and seal of the bishop.

832

^tqunitratton*

Mode of
serving mo*
nitioos, &c.
under 1 & 2
Vict.c.106.

If not
found.

Return of
monition.

Party may
shew cause.

No cause
shewn.

Sequestra-
tion to
issue.

Service and
return.

Sequestra*
tor.

Appeal

against.

Mode of
appealing.

Security.

Inquiry.

Service of the monition and any other instrument or notice
issued under the powers of the act, not specially provided
for, is to be made personally by shewing the original, and
leaving, with the party to be served, a true copy thereof.

If the spiritual person to whom it is directed, cannot be found,
then by leaving a true copy at his usual or last known
place of residence, and by affixing another copy upon the
church door of the parish in which such place ajf residence
shall be situate, ante 698.

If the service be of a monition, another copy is required to be
left with the officiating minister, or one of the churchwar-
dens, and another copy to be affixed on the church door of
the parish, in which the benefice of such spiritual person
shall be situate.

The monition, or other instrument, or notice shall immedi-
ately after the service thereof, be returned into the consis-
torial court of such bishop, and be there filed, together
with an affidavit of the time and manner in which the same
shall have been served.

In case of a monition, the party monisbed may shew cause, by
affidavit or otherwise, why a sequestration should not issue
according to the tenor of the monition.

If no sufficient cause be shewn within the time assigned by
the monition, the sequestration shall issue under the seal
of the consistorial court of such bishop.

The sequestration is to be served and returned into the
registry of the courts in like manner as is above directed
for the service and return of monitions under the act.

If a person appointed sequestrator become bankrupt, the
court of review will restrain him from receiving the proceeds,
but the assignees may use his name. 1 Deacon^s Rep, 87.

If an appeal be duly prosecuted, the sequestration is sus-
pended, and the party sequestered shall enjoy the profits during
the appeal. Gibs. Cod. 1113; S Burns Ecc. Z. 340.

There is only one case under the 1 ^ ^ Vict. c. 106, in which
an appeal is given to the archbishop against a sequestration by
the bishop, and that is by s. 54, in cases of non-compliance with
a monition to reside. The mode of appealing in this and in all
other cases within the provisions of that act, are directed by
^.111. In which it is provided, that

All appeals shall be in writing, signed by the party appealing.

The appellant to give security in such form and to such an
amount for payment of costs to the bishop, as the arch-
bishop shall direct, if the decision be against the ap-
pellant.

^Jier such security has been given, the archbishop shall
forthwith^ by himselfi or by a commissioner or commis-

^fqtiMttratioiu 833

sioners appointed under his hand from among the other Appeal.
bishops of his province, make or cause to be made inquiry
into the matter complained of, and after such inquiry, [and
if the inquiry be made by a commission,] after a report in
writing from such commissioner or commissioners, give his Decision.
decision in such appeal in writing.
If he decide the merits of the appeal against the appellant, he Coitn.
is also to direct and award whether any, and what amount of,
costs shall be paid by the appellant to the bishop, the res-
pondent; and m like manner when he shall decide in favour
of the appellant^ he shall award and direct whether any, and
whatamountof, costs shall be paid, by the bishop respondent,
to the appellant.
The sequestrator is a sort of bailiff, and therefore it is best Secjuestra-
for him to receive the tithes, &c., in kind, but he cannot ^^™'*^"'y

maintain suits, having no interest. Bunb. 192. There is no -^

mention in the' mandate delivered to the sequestrator, of any
purpose but the discharge of the debt ; it is, however, a thing
incident to, and inseparable from, the subject matter itself,
that there are certain duties and expenses for which the seques-
trator is bound to provide, such as the service and repair of the
chancel and parsonage, and the maintenance of the incumbent and
family, if there be one. 1 Haff. Con. 311; 2 PhilL 6, in noiis.
Whilst in receipt of the prohts and before the sequestration
is determined, and the accounts closed, he may be com-
pelled in the ecclesiastical court, to make the repairs, and
nothing will exonerate him. 2 PhilL 8. If the sequestrators
refuse to deliver up their charge they may be compelled to do
so by the ecclesiastical judge ; and if, being called thereunto,
they delay to give an account, it is usual to deliver to the
party grieved the bond given by them, with a warrant of at-
torney to sue for the penalty. IVats, c. 30.

In the case of Little UaUingbury, 1 Ctirt. 556, it appeared
that on the death of an incumbent, wliose living was under
sequestration, and who had been discharged under the insolvent
act, a balance remained in the registry of £81 ; this was claimed
by a builder who had done repairs, by the succeeding rector for
dilapidations, and by the assignee under the insolvent act, to
which latter the court directed it to be paid. ^

The sequestrators may be allowed a reasonable sum out ot AUowance
the profits, according to their trouble in collecting the tithes.
If the incumbent be dissatisfied with their accounts his i^emedy
is in the spiritual court. In one case, a bill in equity was tilett
for an account of profits received by sequestrators, it was o -
jected that the bishop ought to have been a party, smce trie
sequestrator is accountable to him for what he receives, ana
so seemed to be the opinion of the court, but the cause was
withdrawn. Bunb. 19^.

H H u

834

v«te for.

^t^n^

An officer of the church, called thus by corruption of the Latin
word Sacrista or Saxon Segerstane, which denote the same ;
his office is to take care of the vessels, vestments, &c., belonging
to the church ; aiid to attend the minister, churchwardens, &c.
at church.

By the general law, he is usually appointed by the parson, but
by custom he may be chosen by the parishioners. 5 Ad, §
EU. 584.

If a sexton be appointed generally, or specifically for life, he
has a freehold in his office, so that though he may be punished,
he cannot be deprived by ecclesiastical censures. 2 RoU. Rep.
234.

If his admittance, after being appointed, be refused ; or if he be
uniustly deprived after admittance, a mandamus will be granted
either to admit, or to restore. 2 J5. 4r C. 313; SD.S^R. 549 ;
1 Ventr. 153. But, it seems, that upon such application being
made, it is necessary to show to the court, by affidavit, that the
appointment was for life, Str. 115; because it would be a sui^
ficient return to such a writ to shew that the sexton held his office
only at pleasure. 1 Cowp. 413 ; 1 Sir, 115, cmte.

Women It seems that a woman may be elected to be sexton of a

may be. parish. Str. 1 1 14.

^"^ "'y And that inasmuch as the office of sexton does not concern
the public, or the care and inspection of the morals of the
parishioners, there was no reason to exclude women, who paid
rates, from the privilege of voting for the office. Ibid,

When two parishes are united, and one set of officers, elected
at a joint vestry, had served at both, and the office of sexton
had been filled in the same way upon nine successive vacancies,
and the salary had been paid in equal proportions by both
parishes, but afterwards one of the parishes claimed to elect a
separate sexton, of which they had given notice to the other ;
that other parish cannot maintain an action for money paid
to the use of the first parish for their quota of the sexton's
salary, for this was paid against their express consent; nor
can the right of the sexton be tried in such a case without
his being a party thereto ; nor can he bring his action in such a
case against both parishes, on a joint obligation, or against one of
them only, for the whole sum. Stokes v. Lewis, I T. R, SO.

dtjrtom 836

It has never been decided that a writ of quo warranto would Q«»o«w
not lie in the case of a sexton. In Rex v. Stoke Damarel, 5 Ad, ^'*^^'
4r EL 584f, the court refused to decide it; in that case a
sexton having been appointed by the rector^ a mandamus was
moved for on an affidavit, shewing a primd facie case of a right
in the inhabitants to elect ; but affidavits were filed in answer,
stating facts to shew that the right was in the rector. It was Action for
held, that a mandamus ought not to go, the evidence not being fees,
decisive in favour of the application; besides the office was
already full by appointment by the rector, who by the general
law is the proper person to make it. It was stated also as an
additional reason for refusing the mandamus, that there was
another mode of trying the right by withholding the sexton*s
fees, or by making the payment, and bringing an action to
recover back the amount paid. 5 Ad, Ss Ell. 585.

In the statutes for buildingchurches, aft^e 206, provision ismade
for sextons where new parishes or districts are created. The
59 Geo. 3, c. 134, ss, 6 and 10, enact, that when any parish shall
be divided, or district created, all fees, dues, profits, and emolu-
ments belonging to the parish clerk or sexton respectively, of
any such parish which shall thereafter arise in any district,
or division of any parish, shall belong to, and be recoverable by,
the clerks and sextons, to whom they shall be assigned, in like
manner, and afler the same rate, in case of the division of a
parish, as they were recoverable by the clerk or sexton, respec-
tively, of the original parish ; and the commissioners may make
compensation for any loss of fees or emoluments which any clerk
or sexton may sustain by reason of such division.

H H H 2

836

£itnon^4

By the Canon law.

By statute 31 EUz. e. 6.

Purchases of next presentations.

By clergy, void by 12 Anne, c. 12.
Purchases of advowsons.
Church void.

Church full, incumbent dangerously ill.
Other simoniacal contracts.
Besignation bonds.
General.
Special.

Statute 7 4* 8 Geo. 4, c. 25, and 9 Geo, 4, c. 94.
Taking above the usual fees.
Consequences of.
Simony in predecessor not to affect innocent successor by 1 Wm, 3,

c. 16.
Simony a defence in actions for tithes.
Not pardonable.

^7 ^^ XHE Canon law considered simony as a sort of heresy, and
*"'^**^' excommunicated all simoniacks, to that degree as not to be ab*
solved but by the pope himself, nor by bim, till at the point of
death. GodoL Abr. 556 ; Degge^ 36.

At the Reformation it was ordained by the injunctions of £</. 6,
A. D. 1547. That all such persons as buy any benefices or
come to them by fraud or deceit, shall be deprived of such
benefices, and be made unable at any time to receive spiritual
promotion ; and such as sell them, or by any colour do bestow
them for their own gain and profit, shall lose the right and
title to the patronage and presentment for that time ; and the
gift thereof, for that vacation, shall belong to the king's majesty,
Godol. Abr. 551.

By Canon 40. Every spiritual person, upcHi being ad-
mitted into ecclesiastical promotion or preferment, is obliged to
take the following oath ; in substance the same as was prescribed
by a Canon, A. D. 1222 :—

** I, A. B. do swear that I have made no simoniacal pajrment,
contract, or promise, directly or indirectly by myself, or by any
other to my knowledge, or with my consent, to any person or
persons whatsoever, for, or concerning, the procuring and ob-
taining of the living of S., in the diocese of London, (or as the
case may be,) nor will at any time hereafter perfonn or satisfy

diiiwnp* 837

any such kind of payment, contract, or promise, made by any By the
other without my knowledge or consent. — So help me God, ,^^°°° *^'
through Jesus Christ.'*

With reference to which oath. Lord Coke says, '* Simony is
the more odious, as it is ever accompanied with perjury, for the
presentee is sworn to commit no simony,** 3 InsL 155; and
Gibson says. Cod, 802, " which oath interpreted either by its
plain tenor, or according to the language of former oaths, or
notions of the Catholic church concerning simony, is against all
promises whatsoever."

Of simony many definitions have been given by the Canonists
and schoolmen, most of which may be found in Sir Simon Degge,
p. 33, and in Lyndwood^p* 30, 108. It may be, however, a suffi-
cient description of simony to say, that it is the corrupt presenta-
tion of any one, to an ecclesiastical benefice for money, gift, or
reward. 2 BL Com. 278 ; Cro. EUm. 790.

Persons guilty of simony are by the Canonists divided into
two classes : —

1st. Simoniaciy those who obtain spiritual preferment by cor-
rupt and simoniacal contracts, to which they are privy and
consenting.

2ndly. Simoniaci promoti, those who though they come in
by simony, are not parties nor privies to it. Degge, 14;
Godol. Abr. 538; 3 Hag. 690.

Repeated ecclesiastical constitutions and Canons (a) in the
Romish church forbad the offence of simony,, and threatened
offenders against tliose Canons, with the punishment of sus-
pension and deprivation ; there are, however, few or no traces
of these ordinances having been honestly acted on ; nor is it likely
that whilst the sale of dispensations and indulgences openly pre-

(a) The earliest mention of simony in the ecclesiastical constitutions
of this country seems to have heen at a council at Winchester, in 1070,
of which the two first heads are Ist, " concerning the coming in of bishops
and ahbots, by simoniacal heresy." 2ndly. Of ordaining men promis-
cuously, and by means of money." Spelm. ConciL 2, 12 ; Johnson's
Canonst 1070-2. And again in Lanfranc'a Canons in 1070, "That no
one be ordained by means of simoniacal heresy." In CorhoyVs Canons
in 1 126 and 1127, it is said to be forbidden by the apostolical see, that
any should be ordained or preferred by means of money. Spelm. ConciL
2, 35. Johnson's Canons, 1127-2. And again in 1175, in the Canons
of Richard archbishop of Canterbury^ successor to Beckei. Aflerwards
there was a provincial Canon by archbishop Withershead in 1229, a
legantine Canon of Othohon, a Canon of archbishop Langton, and
subsequently the general Canon 40, supra, which to prevent simony,
provided the above oath against it.

838 Mxaov^^

By the vailed^ that the laws against simony could ever be enforced with
capon aw. yj^Q^. ^^ impartiality; indeed the Canon law could nerer
reach the root of the evil, it could hardly punish any but
the clerical ofiender; and be indeed, according to the best
opinions, could not be punished, unless it were shewn that be
was " SimoniacuSf^ and privy to the corrupt contract ; but as
such contracts were entered into with caution and concealmenti
this could rarely be done, and even if it were effected in any
case, still the lay offender escaped, and was allowed to retain the
fruits of his illegal bargain.

Degge says, '' that the Canon law was insufficient for the
avoiding contracts, which were only determinable by the common
law. But there were some general Canons of greater force,
whereby a person simoniacafly promoted, was punishable by
deprivation, and simotdacust that is, a person, a party to, and
guilty of simony, was punishable, not only by deprivation, but by
perpetual dbability, not only as to the church to which he was
presented by simony, but as to all others.*' Degge^ S6.

In this opinion, that persons simonically promoted could,
by the canon law, be deprived, as well as those privy to the
simony, Degge seems to be supported by the author of tVatsons
Clergyman's Law ; Watson, 46 ; and also indirectly confirmed
by Lord Cotte, 12 Rep. 101; where it is said that ''the law
intendeth to inflict punishment upon the patron and upon the
incumbent, although he never knew of the corrupt contract;"
and so Gibson, Cod. 844, says, " if he be only simoniace pro-
motus (by simony between two strangers to which he is not
privy) he is deprived by reason of the corruption, but not dis-
abled to take any other living." But in the case of Whisk and
WooUai V. Hesse, 3 Hag. 659, Sir J. Nicholl expressed his
opinion, that if that case had shewn a simoniacal contract, yet if it
were entered into without the knowledge and privity of the
incumbent, and not subsequently recognised or confirmed by
him, the court would not be authorized to proceed to a sentence
of deprivation. The learned judge said, "The authorities do
not quite satisfy me that the Canon law had ever been so far
received in this country as to render a clerk simoniaci pro-
motus, but not privy, liable to be deprived, or that such was
the law of this country before the statute of EUzabethS The
case of Baker v. Rogers, Cro. Eliz, 788, does not establish the
point, indeed it is an authority on the other side. The clerk
there was proceeded against, not as " simoniaci promotus,'* but
for simony. The court pronounced him guilty of " simony,
and deprived him. The prohibition was refused, on the ground
that the high commission court had found him guilty of simony,
he was deprived as simoniacus, not as simoniacd promoius. b
the case before the court," he added, '' there is no privity before,

J'ftnonp^ 839

nor confirmation after, nor was the incumbent informed that By the
any money was given or promise made. The fact that any g*p<"> ^*^«
contract or obligation was entered into was denied throughout.
In the judgment of the court, therefore, he is not Hmoniacus ;
and even if there had been proof that he was ^* simoniad
promotus^ without his privity, still he has not been guilty of
any crime for which the ecclesiastical court, in a criminal suit,
can punish him, assuming that his possession were invalid under
the statute." (a)

Degge^ p. 61, says, that the ecclesiastical laws are in some
cases more severe than the statute law, for by the ecclesiastical
law he seems to think that a man convicted of simony is incapa-
citated, not only to the particular living as be is by statute, but
to all other church preferments ; but he adds, " of this be in-
formed by the Canonist.'*

The purchase of a vacant turn is void at common law ; ante
10, post; and to the clergy is forbidden and made simoniacal
and punishable by 13 Ann, «. S, e. 12^ but it seems that if a
clergyman were implicated in such a transaction he might
have been punished by the ecclesiastical law for the simony
before that statute. Gibs, Cod. 840. Indeed, Gibson speaks
of it as the most plain and direct simony.

The Canon law seems to have taken a distinction in respect of
the giving money, by a clerk actually inducted, and in possession,
in order to be allowed to retain his possession when about to
be disturbed by the archdeacon ; but this must, it would seem,
depend upon the honesty of the transaction by which he oh-

(a) In a previous case oiVobie v. Master St 3 PhiU, 171» it seems to
have been a question made to the learned judge, whether, notwith-
standing the reservation of the jurisdiction of the ecclesiastical courts by
the 31 Eliz. c. 6, those courts still retained their power to proceed in
cases of simony ; the learned judge said, that he entertained no doubt,
and that the authorities were satisfactory as to the principle ; in the above
case of Whish and WooUat v. Hesse, no such question seems to have
been raised.

It is, however, not unworthy of observation that the saving of ecclesias-
tical jurisdiction in the 31 Eliz, is provided lor by s, 9, which enacts, that
nothing in the act shall extend to take away or restrain any ecclesiastical
punishment, &c, '* for any of the offences before in this act mentioned."
But the offences of corruptly giving or taking orders, or licenses to
preach, are '' mentioned** only in the subsequent section, viz. the 10th;
as to such offences, therefore, the ecclesiastical jurisdiction seems not to be
expressly saved. Qy. however, whether it can be taken away except by
express words ? and vid, Gibson, Cod. 840. It is to be noticed, also, that
the 12 Ann. c. 12, expressly recognizes the existence of the ecclesiastical
jurisdiction in cases of simony, fost, 845.

840 dimonp*

fa'^oiTiaw. **'"^ possession ; if he had no right to the possession, it would

be nothing less than a bribe to the ecclesiastical officer not to

do his duty. Gibs. Cod. 841.
Atcouimon Whether simony was an offence at all at common law before
*^* the statute of Elizabeth does not seem clear. Vin. jtbritL

Simony, ^. 4 ; 5 TaunL 745 ; Cro. Car. 361 ; 18 Mod. 238.
Lord Coke, indeed, speaks of simony as odious in the eye of
the common law, 3 Inst. 156; Co. Litt. 17 6; 98 a ; vid. also
3 Burr. 151£. There seems, however, to be no traces of any
direct proceedings at common law. 1 Lord Raym. 440. But
this perhaps may be accounted for on the ground that the
punishment being only pro salute anim^R, the offence was more
mimediately cognizable in the spiritual court. ZBulstr. 18S.
But as in that court they could only proceed for the purpose of
ecclesiastical censures or deprivation. Godol. Abr. 546. The
incumbent might hold the living till sentence of deprivation was
pronounced, the presentation being only voidable, or perhaps
escaped altogether, from the diflSculty attending this mode
^ of his punishment. The statute of Elizabeth, the words of

which are said to be very well penned against corrupt patrons,
extend to the patron as well as the incumbent, making all
corrupt presentations void ; in the first instance its obgect was
to inj9ict punishment upon the patron as the author of the cor-
ruption, by the loss of his presentation ; and upon the incumbent
by the loss of his incumbency, and by disabling him from ever
again enjoying the same benefice for which the contract was
made. Co. Litt. 120 a; Cro. Jac. 533.
31 Eiiz. The 2nd sect, provides against the simoniacal election,

^•- ^» s- 3* presentation, or nomination of fellows, scholars, and others, in
Simoniacal cliurches, colIcges, schools, hospitals, or societies, and enacts,
elections in that the place, room, or office of any person, directly or in-
&°c.^*^' directly accepting, &c. any money, or reward, &c. for his
voice, assent, or consent, in electing, &c. shall be void, and that
the queen, or others, who have the right of nominating, &c. or
electing, &c. to the place, &c. so made void, may nominate, &c
or elect, &c. any other person, in the room, office, or place of
such person, as if be were naturally dead.
^^^^' ^' The 3d sect, provides, that if any fellow, officer, or scholar, of

Simooiacal any of the said churches, colleges, &c. having room or place in
resignations ^ny of the same, shall directly or indirectly, &c. take or receive,
&c!^° *^"' ^^ '^y *"y ^^y» device or means, contract or agree, to have or
receive any money, reward, or profit whatsoever, for the leaving
or resigning up the same his room or place, for any other to be
placed in the same. Every person so taking or contracting, or
agreeing to take, &c. shall forfeit and lose double the sum of
money or value of the thing so received and taken, and every
person by whom or for whom any nioney, &c. shall be given or

J^ftnonp^ 841

agreed to be paid, shall be incapable of that place or room for 3i Eliz.
that time or turn, and shall not be had or taken to be a lawful ^' ^' *' ^'
fellow, scholar, or officer in any of the said churches, &c. or to
have such place or room there, but that they to whom it shall
appertain, may elect, &c. any other person as if the person
by or for whom any such money, gift, or reward shall be siyen
or be agreed to be paid, were dead or had resigned and left the
same.

Sec. 4 enacts, that at every such election, presentation, or ^*"*J '®
nomination, the statute and the statutes of the foundation shall '^ '
be publicly read under penalty of £40.

It is by secL 5 that provisions are made against simony and Simony in
corruption in presentations, collations, and donations ; ]>reMnta.

That section enacts, that if any person or body corporate, &c. ^°*' ^'
Shall or do, for money, reward, gift, profit, or benefit directly

or indirectly ; or.
For, or by reason of, any promise, agreement, grant, bond,

covenant, or other assurances; or,
For money, reward, gift, profit, or benefit whatsoever, di-
rectly or indirectly, present or collate any person to any
benefice with cure of souls, dignity, prebend or living
ecclesiastical; or,
Give or bestow the same for, or in respect of, any such corrupt

cause or consideration.
Such presentation, collation, gift, and bestowing, and every Preseou-
admission, institution, investiture, and induction there- tion», &c.,
upon, shall be utterly void, frustrate, and of none effect in ^^^
law.
And it shall be lawful for the queen to present, or collate Queen may
unto, or ffive or bestow every such benefice, dignity, pre- present for
bend, or living ecclesiastical, for the one time or turn only. ***• *"™*
That every such person, or body corporate, &c. that shall
give or take any such money, reward, gift, or benefit,
directly or indirectly ; or.
That shall make any such promise, grant, bond, covenant, or
other assurance, shall forfeit and lose the double value of
one year*s profit of every such benefice, &c.
And that the person so corruptly taking, procuring, seeking,
or accepting any such benefice, dignity, prebend, or living,
shall thereupon be adjudged a disabled person in law to
enjoy the same benefice, &c.
As the 5th section was more particularly intended to punish
simoniacal presentations, and put a check on the corruption of
patrons ; so the 6th and 11th seem to have for their object the
restraint of hasty or corrupt admissions and institutions, and the
1 Olh, hasty and corrupt ordinations and granting licenses to

843

S^imonj^^

31 Eiiz.

c/e.

Simony in

institutions,

£cc.

Simony in
ordinations.

Bimony in

resigna-

tioni.

preach and to restrain the corruptions of bishops. It is enacted,
by the 6th section, therefore, that if any person shall

For money, reward, gift, profit, or commodity whatsoever,
directly or indirectly (other than for usual and lawful fees) ;
or,

By reason of any promise, agreement, grant, covenant, bond,
or other assurance ; or.

For money, reward, gift, profit, or benefit whatsoever, di-
rectly or indirectly

Admit, institute, install, induct, invest, or place in, or to, any
benefice with cure of souls, dignity, prebend, or other Uviog
ecclesiastical.

Every person so oflTendinff, shall forfeit and lose the double
value of one year's profit of such benefice, &c.

That immediately from and after the induction, &c. thereof
had, the same benefit, &c. shall be eftsoons merely void.
. And the patron or person to whom the advowson, gift, pre*
sentation, or collation shall appertain, shall and may present
or collate unto, give and dispose of the same benefice, &c.
in such sort, to all intents and purposes, as if the party so
admitted, &c, had been and were naturally dead.

In the same spirit the lOch section enacts, that if any person
shall receive or take any money, reward, &c. (as in «, 6);
or,

Shall take any promise, && to have any money, &c« directly
or indirectly, either to himself or any of his friends, or to
any other of his or their friends (all ordinary and lawful
fees only excepted).

For or to procure the ordaining or making of any minister or
ministers, or giving of any orders or licenses to preach.

Every person so offending shall, for every such oflfence,
forfeit and lose the sum of £40, and the party so corruptly
ordained or made minister, or taking orders, shall forfeit
and lose the sum of £10; and.

If within seven years next after such corrupt entering into the
ministry or taking of orders, he shall accept or take any
benefice, living, or promotion ecclesiastical.

That immediately from and after the induction, &c. the
same shall be merely void, and the patron may present as
if such person were dead (exactly as in s» 6), with the
addition of any law, ordinance, qualification, or dispensa-
tion to the contrary notwithstanding."

Sec. 8 applies to corrupt resignations and exchanges, and
enacts, that if any incumbent of any benefice with cure of souls,
do or shall

Corruptly resign or exchange the same ; or.

S^imong^ 843

Corruptly take for, or in respect of, the resigning or ex- 3iEiii.
changing of the same directly or indirectly, ^' '

Any pension, sum of money, or benefit whatsoever,

As well the giver as the taker of any such pension, &c.

Shall lose double the value of the sum so given, taken, or
had, and double the value of one year's profit of every
such benefice.

By s. 7. No title to confer or present by lapse shall accrue upon Lapie.
any voidance mentioned in the act, but after six months next six months
after notice given of such voidance by the ordinary to the after notice.
patron.

By s. 10. One moiety of all forfeitures go to the crown, the Penalties,
other to him or them that will sue for the same by action of ^^'
debt, bill, plaint, or information, in any of her majesty's courts of
record, in which no essoin, protection, privilege, or wager of
law, shall be admitted or allowed.

By s, 9. Nothing in the act is in anywise to ** extend to
take away, or restrain any punishment, pain, or penalty limited,
prescribed or instituted by the law ecclesiastical, for any of the
oflTences before in this act mentioned, but the same shall remain
in force and be put in execution, as it might be before the
making of the act,** anything in the act to the contrary notwith-
standing. Ante, 839 ».

One principal object of the statute, as exhibited by the 5th Objects of
section, was to strengthen the weakness of the ecclesiastical law, the statnte.
and to inflict penalties and forfeitures on corrupt patrons, who
not only forfeit to the crown the presentation jsro hdc vice^ but
also two years' value of the church ; not according to the valu-
ation in the king's books, but according to the true value.
3 Inst. 154. The ecclesiastical law could only punish the
corrupt incumbent, the legislature perceiving the serious con-
sequences of this defect, interposed in order to punish the
patron, who is generally the corrupter, and always tne partaker
of the incumbent's guilt

The statute points to six classes and species of simony. ^^^ classes

1st. Taking money or profit, for a vote at a college election, of simony.

2nd. Taking money, or profit, or benefit, for resigning a
place in any college.

Srdly. Presentations or bestowing of benefices for money or
profit.

4thly. Admissions, institutions, and collations, for money,
profit, or benefit.

5thly. Corrupt resignations, or exchanges of benefices with
cure of souls.

6thly. Taking money for procuring ordination, or the making
of ministers, the giving orders and licenses to preach.

With regard to the 1st and 2nd classes no questions seem to

844

J^ftnonp^

Objects of
the statute.

Sect. 5.

12 Anne,
c. 12.

Purchases
of next pre
sentatioDf.

By clergy.

Void.

Such pur-
chase simo-
aiacal.

. t(

have arisen, but upon the third, very many questions have
arisen, and it is deserving of particular attention.

The object of the 5th section, as stated in the preamble to it,
is ''for the avoiding simony and corruption in presentations,
collations, and donations;" and in order to prevent the pre-
senting to benefices for profit or benefit, or for promises, agree-
ments, bonds, &c. for profit, it Ist, renders such presentations
absolutely void.

2dly. It enables the crown to present upon a vacancy so
occasioned.

3rdly. It imposes the forfeiture, of double the value of one
year's profit of the benefices, upon the parties to the corrupt
agreement.

4thly. It disables the person, so corruptly taking or seeking
any benefice, to have or enjoy the same.

GodolphifT says, Abr. 539, "the contracts which are com-
monly held corrupt and simoniacal, may be diversified almost
into as many kinds as transferences and proprietory negociations
are capable of; but those which have been most in practice,
(as appears by the cases reported in the law,) have been by the
unlawful purchasing the next advowson, by exchange, by resig*
nation bonds, by matrimonial compacts, by contracts remote and
concealed from the presentee, by obligations of an indirect
nature and the like." See also the enumeration* Gibs. Cod.
841.

In addition to the provisions of the Slst £/ijr., clergymen
are expressly prohibited by the 12th Anne, c. 12, from pur-
chasing a next presentation or avoidance. That statute reciting

that some of the clergy have procured for themselves prefer-
ments by buying ecclesiastical livings, and others have been
thereby discouraged. It enacts that, ** if any person shall or
do for any sum of money, reward, gift, profit, or advantage,
directly or indirectly, or ror, or by reason of, any promise, agree-
ment, grant, bond, covenant, or other assurance, of or for any
sum of money, reward, gift, profit, or benefit whatsoever, directly
or indirectly, in his own name, or in the name of any other
person or persons, take, procure, or accept the next avoid-
ance of, or presentation to, any benefice with cure of souls, dig-
nity, prebend, or living ecclesiastical and shall be presented and
collated thereupon.**

Such presentation or collation, and every

Admission, institution, investiture and induction upon the
same

Shall be utterly void, frustrate, and of no eflTect in law ; and

Such agreement shall be deemed a simoniacal contract, and

The queen may present or collate unto, or give and bestow

Such benefice, &c.^ for that one time or turn only ; and

i^imonpt 845

The person so eorraptly taking, &c., shall thereupon be i^Anne.
adjudged a disabled person in law, to have and enjoy the p ' . ^
said benefice, &c^ and shall also be subject to any punish- QexTpre^
ments, pain, or penalty limited, prescribed, or inflicted by aentation:!
the laws ecclesiastical, in like manner as if such corrupt ^ ^^^

agreement had been made after such benefice, &c., had ^.^?L

become vacant, any law or statute to the contrary notwith-
standing*
It has been considered that this statute only applies to a pur-
chase made by a clergyman for his own benefit.

It has been stated above, ctnte 10, that a turn actually void parchaseof
cannot be sold ; and that the fictitious reason, that it was a mere « vacant
spiritual thing annexed to the person of the patron, a chose in ^^^^
action, and consequently not grantable, was disclaimed by Lord
Mansfield and fVilmot, J,, both of whom stated that the true
reason was founded on public utility and the better to guard
against simony* Tke Bishop of Lincoln v* JVoUh^stan, 8 Burr.
1514.

It has been said, that the statutes against simony contain no purchases
express provisions for avoiding simoniacal conveyances, but ofadvow-

there can be no doubt that the conveyance even of an advowson ^°*'

in fee, which is in itself perfectly legal, if it be made for the
purpose of carrying a corrupt contract into execution, is void ;
at least as to so much as goes to effectuate that purpose, and if
the sound part cannot be separated from the corrupt, is void
altogether* AmbL 268. It is not, indeed, as in the case of
usury, and some others avoided by the positive and inflexible
enactments of the statute, but left to the operation of the com-
mon law, which will reject the illegal part, and leave the rest un«
touched if they can fairly be separated* Thus, where the
owner of an advowson, who was also incumbent, agreed for the
sale of the advowson and for the profits of the same from a day
past, and for immediate resignation, which the bishop refused
to accept ; whereon the vendee again agreed for the purchase
of the advowson, and to be entitled to the profits of the rectory
from the same day, and four days after took a lease of the tithe
for the vendor s life, at a pepper-corn rent ; and upon the death
of the vendor, the kinff presented to the turn for simony, and
upon the death of the king*8 clerk, the heir of the vendor dis-
turbed the purchaser, insisting that the grant of the advowson
was void, by reason of simony* The court of common pleas
held, that the conveyance purporting to carry the whole advow-
son, including the next presentation, was no further void than
the simoniacal part of the transaction extended, which could
only reach the next presentation, (assuming the contract to be
simoniacal, which, however, the court did not decide,) and,
therefore, that so much of the conveyance as applied to the

846

Purchases
ofadvow-
sons.

Church
Tacant.

Incambent
dying.

legal part, the fee of the advowson, was to be austained. Green"
wood y. The Bishop of London, 5 Taunt. 7S7; 1 Marsh. 29@,
and vid. 2 B. ^ a 635.

So the sale of an advowson whilst the church is actually Tacant,
is only void j'fioacf the fallen vacancy. SBurr. 1510; 1 Dyer^
282 b.; 1 Brownl. ^ Goulds. 167; F. N. B. S3P.;7 B.^ C.
118. For such a purchase is good for every purpose, except
for presenting to the existing vacancy, for the statutes against
simony apply only to a presentation procured or intended to be
procured. 5 Taunt. 745; 2 Taunt. 69; Dyer, 1^9 6.; Burr.
1512. The purchase of a void turn is not only void at common
law, but simoniacal. Ante, 10, 844 ; Co. Litt. 180; 2Insi. 153;
Cro. Eliz. 789 ; Gibs. Cod. 840.

If the benefice be full, it is not simony to purchase the
advowson, although from the state pf health of the incumbent
a vacancy may be speedily expected. Formerly, indeed, it
was held to be simony to purchase the next advowson, the in-
cumbent being sick. Winch. 63 ; Degge, 42 ; Godol. Abr. 540 ;
Gibs. Cod. 841.

In Winchcombe y. The Bishop of Winchester^ ^c. Hob.
165 ; DeggCy ibid, it appeared that one Say bargained with
the patron, (the incumbent being sick) for £90 to present
him when the church should be void, and for liis better assu*
ranee, took a grant of the next avoidance to friends in trust
When the incumbent died. Say was presented, and this was
held simony. In another case, it was held, that the purchase
of an advowson in fee, at a time when the incumbent was im
extremis, was good, although the purchaser had notice of that
state. It did not appear that there was any privity on the
part of the clerk to be presented. 2 W. BL 1052. The
question, whether the state of health of the incumbent, and con-
sequently the near expectation of being possessed of the right
to present will operate on the validity of the sale, baa lately
been much considered; and it has been sdemnly decided by the
highest tribunal, that the right to dispose of the patronage of a
church, or any portion of it, continues as long as the church is
full ; for if a conveyance, made a few hours before the death of
a sick incumbent be void, what could be said of a conveyance
made a few days, weeks, or months before, the incumbent
being ill, and not expected to live long? In the first de-
cision of the case of Fox v. The Bishop of Chester, 2 B. If
C. 635, it was held, that the statute itself did not notice the
vacancy of the benefice, so that vacancy was not made by
any words of the statute essential to a corrupt contract, and
that it was consistent with the words of the statute, that a
contract might be corrupt, though the church were full; and
it being found on special verdict that the incumbent was

i^tmtmg^ 847

afflicted with a mortal disease, and in extreme danger of bis life, P^n^hed.
which the patron knowing, bargained for the next presentation,
and executed a grant to the grantee for ninety-nine years if he,
the grantor, should so long live, and the grantee purchased with-
out the knowledge of the presentee, or view to present him ; it
was held that the contract was simoniacal. Fox v. The
Bishop of Chester, 2 B. ^ C. 635. Afterwards this case
coming by error into the house of lords, the judgment of
the king's bench was reversed. Best, C. J«, who delivered the
unanimous opinions of the judges of the Common Pleas and Ex-
chequer, saying, ** if this conveyance were void it must have been
so when executed, and would remain void, into whatever hands,
and under whatever circumstances the right of presentation might
have passed. Now, if thb incumbent had been restored to appa-
rent health, as many persons thought to have been in imminent
danger of death have been, and the vendee had sold the presenta-
tion to one ignorant of the circumstances under which the first sale
was made, it would be most unjust to hold this second sale void ;
and yet this would be the necessarv consequence of holding that
the first sale was simoniacal. Whilst the law, therefore, permits
the next presentation of livings to be sold during the lives of
the incumbents, as long as the incumbent is alive, the sale is good.
It would be difficult to establish a rule that should settle what
degree of probability of the approaching death of an incumbent
would prevent the sale of the next avoidance of a benefice, and
more difficult to ascertain by evidence when an incumbent was
within that rule." 6 Bing. 20. 2 W. BL 1052. But it is appre-
hended that a sale, with an agreement to resign, would be clearly
simoniacal ; for in such case, the church would be full in name and
form only, but vacant in substance and reality. 2B.^C. G85. So
also an agreement to present pendente lite, although the church
was, in fact, full, yet the incumbent being merely in by usurpation,
it was in law vacant, and is simoniacal. 3 Lev. 1 16 ; Skin. 90.

Although the purchase of a next presentation before avoidance, Purchase
if made bondjide, is considered as not being in itself an illegal of next
transaction ; yet if a next void turn be granted to perform any ^q^?^*
contract it is simony. Hob. 165; No^. 25 \ Godol. Abr. 541. — — —

In one case, Cro. Eliz. 685, it was held by three justices
against Anderson, C. J., that it is not simony for a father, with the
privity of the son, to purchase the next avoidance of a benefice,
in order to provide for a son, though the incumbent be sick at
the time; but the principle of this case has since been denied.
HobA65i Noy,26\ 2B.^C.6S2. And, indeed, /foiar/, C.J.,

ifi) It has been seen above, ante 844, that the purchase of a next pre-
sentation by a clergyman for himself is made void and simoniacal by
12 Ann. c. 12.

848 J^tmoti^

Parchaaeof was of opinion, that if in the grant it had appeared that it was
mtati^* P^^ ^^ ^^^ father with intent to present bis son or his kinsman,

1- it would have been simony. Noy^ ibid,' Godol. Abr. ibid. Sed

vid. 6 Bingh. 20.

Where a bond had been given to a father to secure an
annuity to his son till he should obtain a living of a certain
value, and an agreement was at the same tune entered into,
reciting the bond, and that the son should forthwith enter into
orders and accept such living, the Lord Chancellor considering
that this bond was connected with a simoniacal agreement,
doubted as to its validity, it being the policy of the church, that
orders should not be taken upon pecuniary considerations.
8 Fesey, 53.
Agree- It is a general rule, that if the party who presents is to derive

'"^"^ any benefit from the presentation, it is an agreement for a benefit
Benefit to within the statute, and simoniacal; therefore, if a presentee
the patroD. bargain with his patron to forbear any suit, for the purpose
of trying by law any claim for tithes, it would be simoni-
acal. Thus, in a case where an inclosure act recited a doubt
whether the incumbent was entitled to small tithes or to
a modus in lieu thereof; and four years after the passing the
act the inhabitants elected a curate, (in this case qua vicar),
upon an agreement signed by him and the principal inhabitants,
whereby a money payment was declared to be, and to have
been charged, /rom time immemorial in right of such church.
It was held, that as the effect of this agreement would be to
stop the incumbent himself from claiming the small tithes, and
to furnish evidence against any of his successors, who might
insist upon the claim, it was simoniacal, and the court of king*s
bench discharged a rule for a mandamus, with costs, to com-
mand the bishop to license the curate elected by the inhabit-
ants. R. V. the Bishoo of Oxford, 8 East, 600.
Marriage So, in an action of debt upon an obligation to perform cove-

^'^°^^"' nants, that T. B., son of W. B., should marry A., the defend-
ant's daughter; in consideration of which marriage it was
covenanted, amongst other things, that he would procure the
said T. B. to be presented, &c. into such a benefice upon the
next avoidance, and the breach assigned was the non-perform-
ance of such covenant. It was demurred toby the defendant as a
simoniacal covenant, and resolved thereon that if it had appeared
to have been, that in consideration of the marriage of his son he
would procure him to be instituted into the benefice, it wouM
have been a simoniacal contract ; but the covenant not being in
consideration of the former covenant, nor depjending thereon, but
a distinct covenant of itself, could not, without a special
averring or shewing that it was a simoniacal contract, be
80 intended. Cro. Car. 425; GodoL Abr. 554; Degge^ 47.

(

Mmnjf. 849

If a stranirer, after the ehurch is void, contracts with the Church

- -^ - - - • vacant.

patron for the void turn, and the stranger thereupon presents,
and after induction acquaints the incumbent with the conti*act,
and requires a consideration for it ; although the grant of a void
turn, as being a thing in action is void, [antei 10, 845] and the
presentee comes in as quasi per usurpation, yet as the cause is
through a simoniacal contract (as it is to be presumed, the true
patron would not otherwise have permitted that presentment,)
this is as much simony as if the grant had not been void. Cro.
EUsi. 788. So, if a brother or a father contract with the
grantee of a void turn to permit the grantor, to present his
brother or son, and the grantor, at the request of brother or
father, present accordingly, it is simony. Cro. Jac. d33.

In most of the above cases it is the corrupt contract which Contmcu.
makes the simony. Moore ^ 914 ; 2B.^C. 669. But the object
of the transaction cannot alter its nature and legal character, the
transaction may be unlawful, though the use intended to be
made of it be innocent or even laudable ; the buyer might have
intended to present some one who would have refused the
presentation if he had had a knowledge of the nature of the
contract, or he might desire to gratify his liberality by making a
valuable gift to some person to be selected only for his piety and
learning ; these considerations cannot affect the nature of the
contract itself. ZB.^C. 659. It has been said, that the reser-
vation of an annuity to the widow or son of the last incumbent
is not within the statute ; Noy, 141 ; Godol, Abr, 54@; Degge^
47 ; but Dr. Watson doubts the truth of the position ; for any
resignation or exchange for money is corrupt, however fair
the transaction may be; as where a parent is desirous that
a son in orders may be employed in the duties of his profession,
and agrees to give a bond to pay an annuity equal to the income
of a benefice to induce an incumbent to resign in favour of his
son, such resignation is corrupt, and the bond void. Young v.
Jones ^ Christianas Notes to BL Com. 4*82.

Degge, p. 43, says, '^ There is of late a practice introduced ResigDa-
by corrupt patrons, that if not early nipt in the budding, will ^^° t'onds.
make this law, the statute of £&>., of none effect. I mean,
the taking bonds for resignation. This practice took its rise
from two cases in Sir 6. Croke*s Reports." Cro. Jac. 48,
and Cro. Car, 180. He adds, ** that it appears by both these
cases, that bonds taken upon prudent and just ends to resign
are not simoniacal, but where such bonds are taken upon
corrupt de»gns, which being made to appear by any subse-
quent practice, it is clearly simony ; as if the bond be expressly
to pay money ; for what difference is there between a bond ex-
pressly to tfuie money and a bond to resign^ which is to pay
money) if the patron say, ' either pay me my money or tesign,'

III

650 JNnunp^

^S^ then all the world knows in such a case the parson rnnst pay the
^^^ !l money or resign and be undone ; and the world shall not per-
suade me that those reverend iudges that gave these judgments
ever intended further ; and I hope that those reverend judges
that now supply their places, will discontinue and discourage
such practices that tend so much to the ruin of the churdi and
religion ;" and vid. Godot, Abr, 540.

Not only have opinions varied, but the law itself has undergone
considerable alteration with regard to instruments of this descrip-
tion ; and a distinction between general and special resignation
bonds has, till very lately, been recognised and acted upon. In
1783, in the case of the bishop of London ▼. Ffuiche, Dom, Proe.
Cunningham* s IjMW of Simony. S Bum's E. L, 356 ; Br, C. C.
96 ; Bro. P. C. SI 1 ; 1 East, 486, it was decided, in the house of
lords, that a general bond of resignation was void. That case
arose upon a presentation accompanied by a bond to resign
generally upon the request of the patron ; therefore, the im-
mediate question was upon the presentation, rather than upon
the bond, but it was treated throughout as the same question ;
indeed, as the presentation and the bond were the price and
consideration of each other, it seems impossible to say that the
one could be valid and the other void. Before this decision
many cases had determined that a general bond of resignation
was good upon the face of it, and was not to be avoided, except
by plea, shewing it to have been made upon some corrupt eon-
tract not appearing upon the bond itself. Both the courts of
Common Pksas and King's Bench decided such bond to be
good ; before the house of Lords, several questions were put to the
judges by the house, upon which there were different opinions
given by the bench; seven of the judges expressed an opinion
that such a bond was good and valid, but the eighthi Eyre^ J3.,
that it was illegal; a debate and division arose, when it was
ultimately decided by 19 lords to 18, that such bond was ill^al.
The case of the Bishop of London v. Ffyiche^ however, was
considered only to have decided the question of general resig-
nation bonds, and indeed one learned judge, Dampier, J*, in a
case reported in 4 ilf. ^ S* 66, said that since that case it had
been considered that lK>nds of resignation in favour of specified
persons were not illegal ; the question, however, upon this hitter
description of bond was lately raised before the house of lords
in the case of Fkicher v. Lord Sondes, S Bing. 50 1 • That case
arose upon a presentation, accompanied by a bond to resign upon
request, so as that the patron might be enabled to pres^it one of
his two brothers, in the condition named, when such of then, as
was to be presented, should be capable of taking an ecdeiia«tioal
benefice, the agreement having heen that the presentee aliould
so resign to the intent that the patron might present one of thoae

Mmm^^ 851

two persons. Tbe learned judges differed in opinion upon the ReM|iia-
question, Best^ C. J., Burrough and Gaselee, J.'s» considering ^° °^
that such a bond was not iUegal; Abbots C. J., Alexander ^
C. B., Graham^ B., Parke, J*, GarroWf B. and HuUock, B.,
being of opinion that it was; the Lord Chancellor, Eldon, coin-
cided with the majority of the judges, and moved that the
judgment of the court below, which had been in favour of the
validity of the bond, should be reversed. Upon this, the arch-
bishop of Canterbury expressing his entire concurrence in the
opinion of the lord chancellor and the majority of the judges,
moved a bill, in order to protect bonds before then made under
certain restrictions, and to exempt both patrons and incumbents
from the penalties to which, from an erroneous impression of
the law, they might have exposed themselves. This bill sub-
sequently passed into an act, tbe 7M ^ 8M Geo. 4, e. 25, which 7 & a G. 4,
reciting that spiritual persons loid patrons, and other persons, ^' ^-
would suffer great hwrdship and detriment unless they be
relieved from the penalties, &c. to which they had by acting
erroneously, but not wilfully, rendered themselves liable. Pro-
vided, hy 8. 1, that no presentation to any spiritual person, &c.
before the 9tb of Apru, 1827, nor any admission, institution,
&c« shall be void by reason of any engagement entered into by
such spiritual person, or any other person or persons, to or
with tbe patron of a spiritual office, for the resignation of the
same, to the intent manifested by the terms of such engage-
ment, that some person, or one of two persons, specially named
or deseribed therein, should be presented, &c. to such spiritual
ofitee, or that the same should be given to him, or for the resig-
nation thereof, upon notice or request, or otherwise, when a
person, or one of two persons, so specially named or described,
should become qualified by age or otherwise, to take the same ;
and the parties thereto shall not be liable to penalties.

By s. 2. All engagements mentioned and provided for in the
first section are declared to be valid and efi*ectual in law.

By #. S. Engagements not made hand fide are excepted out
of tbe operation of the act; and it is also provided that nothing
in the act bImJI be deemed compulsory on the ordinary to
accept the resignation.

By #. 4. Where any spiritual office is resigned pursuant to
any engagement, as in #. 1 , and the person, or one of the two
persons, so spieciaUy named or described therein, shall not be
presented, &c. within six calendar months next after such resig-
nation, audi resignaiion shall be void ; and the spiritual person
who shall have so resigned shall, without sM^y act or fonn^ and
as if sudi resignation had not been made^ be deemed and taken
to aU intents and purposes to be and to have continued the
incumbent actually in possession, notwiti^standing such resig-

I I I ^

c. 94.

852 iHmonp^

Resigna- nation^ and although within the said six months any other
tion bondg. pgrgQi, j^j^y {^r^y^ been presented , &c. thereto ; provided, such
person so resigning shall not, by reason of any other act or
thing have become disqualified to hold the same.

By s. 5, the act is not to apply to proceedings commenced
before the 9th of April, 1827.

It will be observed that the above act was only intended to
have a retrospective operation, and to render valid and e£Eectual
existing engagements, and to protect the parties to them from
incurring penalties. In the following year an act was passed,
9 Geo. 4, 9 QgQ^ 4^ c. 94, with a view to regtilate the law for the future.
This act, to a limited extent, and in favour of private patrons
only, legalises resignation bonds, but requires not only tnat the
person in whose favour the resignation is to be made, should be
named therein, but that he should be connected, within certain
degrees, by blood or marriage, to the patron*

By s. I. It is enacted, that every engagement by promise,
grant, agreement, or covenant, which shall be really and bond
fide made, given, or entered into at any time after the passing
of this acty (the act received the royal assent on the 28th July,
1828,) for the resignation of any spiritual office being a benefice,
with cure of souls, dignity, prebend, or living ecclesiastical ; to
the intent and purpose, to be manifested by the terms of such
engagement, that any one person whosoever to be specially
named and described therein, or one or two persons to be spe-
cially named, &c. shall be presented, &c. to such spiritual office,
or that the same shall be given or bestowed to or upon him, shall
be good, valid, and effectual in the law to all intents, &c. and
the performance of the same may be enforced in equity. Pro-
vided that such engagement shall be so entered into before the
presentation, &c. of the party so entering into the same as
aforesaid."

See. 2, limits and specifies these connections by blood or
marriage, and provides that the two persona to be specially
named, " shall each of them be, either by blood or marriage,
an uncle, son, grandson, brother, nephew, or grand-nephev,
of the patron, or of one of the patrons of such spiritual oflice ;
not being merely a trustee or trustees of the patronage of
the same, or of the person or of one of the persons for whom
the patron or patrons shall be a trustee or trustees, or of tbe
person or one of the persons by whose direction such pre-
sentation, &c. shall be intended to be made, or of any married
woman, whose husband in her right shall be the patron or one
of the patrons of such spiritual office, or of any otner person in
whose right such presentation, &c. shall be intended to be made/'
By s. 3, it is provided that no presentation, &c., nor any
admission, &c. shall be void by reason of any si$eh engagement

i^dnonp. 853

by any spiritual persons or oth^rsi to or with patrons or others ; Resigna-
and that his majesty shall not present or collate, or give or ^^ °^
bestow such spiritual office by reason of any such engagement ; 9 Geo. 4,
and such spiritual persons or patrons shall not be subject to any ^* ^'
penalties or forfeitures, or to any prosecution or other pro-
ceeding by reason of having made such engagement.

By #. 4, provision is made, that in order to bring any en-
gagement within the operation and protection of the act, one
part of the deed, instrument, or writing by which such engage-
ment shall be made, given, or entered into, shall, within two
calendar months next after the dato thereof, be deposited in the
office of the registrar of the diocese wherein the benefice, &c. shall
be locally situate* In the cases of benefices, &c. within peculiars,
to be deposited with the registrar of the peculiar jurisaiction.

Such registrars shall respectively deposit and preserve the
same, and skall give and sign a certificate of such deposit
thereof.

Every such deed shall be produced at all proper and usual
hours, at such registry, to every person applying to inspect the
same.

An office copy of such deed, &c. certified under the hand of Office copy
the registrar (which copy so certified, the registrar shall, in all tobee^i-
cases, ffrant to persons applying for the same), shall be admitted °®°^®*
as legal evidence thereof in all courts whatsoever.*

Fees to registrar for deposit and certifying the deposit, 2s.

for search for the same, 1«., and 6d. per
folio of 72 words for every certified copy over and above the
stamp duty.

By s. 5. ''Every resignation to be made in pursuance of Resigna-
any such engagement, shall refer to the engagement in pur- ^^°-
suance of which it is made, and state the name of the person
for whose benefit it is made, and it shall not be lawful for the
ordinary to refuse such resignation, unless upon good and suf-
ficient cause to be shown for that purpose. Such resignation
shall not be valid and effectual, except for the purpose of
allowing the person for whose benefit it shall be made to be
presented, collated, nominated, or appointed to tbe spiritual
office thereby resigned, and shall be absolutely null and void,
unless such person shall be presented, &c. as aforesaid, within
six calendar months next after notice of such resignation given
to the patron of such spiritual office.*'

By s. 6, presentations, collations, gifts, or the bestowing of
any such spiritual office, by the king, either in the right of the
crown, or duchy of Lancaster ; by archbishops, bishops, or other
ecclesiastical person, in right of dignity, office, or living, —
by corporations, corporate, or sole, — by any other in right of
any office or dignity — by trustees or feoffees for charitable or

854 Mmov^.

public purposes, — or by any other persoiM not entitled to the
patronage of such spiritual office as private property are ex-
cepted, &c. from the operation of the act.
Taking Vith regard to the (Uh sect, of the SIhEUm. e. 6, Lord Coke,

above usual ^}iq ^as a member of that parliament, says it was penned to
^^^ avoid hasty and precipitate admissions, institutions, and induc-

tions, to the prejudice of those who have a right to present, and
thereby putting them to their action to recover their ri^ts.
3 Inst. 165 ; Degge, 50, ante, 842.

The taking or giving above the usual fees, is in this case, as
dangerous to the clerk as to the officer, for the church shall be
void, so that the patron that has right to present, may present
again ; and the usurper and officer who takes more than his fees
for such expedition, forfeits double the value of the benefice
for a year, according to its actual value. But in this clause no
disability rests upon the incumbent, but that he may, by the
true patron, be presented again, nor lapse till after six months'
notice from the bishop. Degste, 51.

The clause is not that the church shall be ipso facto void, or
that the institution shall be void, but that it shall be *' eftsoons"
void, and that the patron shall present as if the person were
naturally dead. So it will seem that the church is once fisU by
this institution and induction ; and hence there may some doubts
arise whether the church shall be void, ipso faeto, or whether
it must be avoided by ecclesiastical sentence of deprivation.
But it seems to me that the patron may present imtnediately
without any sentence ecclesiastical. Degge, 51.
Conse- Upon this statute, 31st Etix., Degge is of opiniiim that the

quences of. forfeiture of double value is incurred by the corrupt contract
only ; but the presentation is not forfeited unless the clerk be
de facto presented ; but if the presentation has been made, it has
been held to be void, although the clerk presented be not privy
to the simony. Degge ^ 39 ; GodoL Abr. 542; Cro. Etiat, 788 ;
Cro. Joe. 385, 533 ; 2B. ^ C. 659. So there may be simony,
and neither clerk nor patron privy to it, and yet the turn is given
to the king bv the act. Degge, 50. But in such a case the
clerk is not liable to any forfeiture, nor within the clause of
disability in the statute, ; 3 Inst. 154, ante, 838, except so
far as it goes to prevent him from being presented to the
same benefice again, being only disabled, quoad hanc ecdesiam ;
Cro. Jac. 380, 533 ; and the king, even coming in bvhis title by
the simony cannot present him. Co. Litt. 120 a. So also, if money
be given by a clerk to present him to a benefice, although die
money is not paid to the patron, who has no knowledge of it,
yet the incumbent shall be deprived, and the patron lose his
turn, 2 Bulstr. 182. So where an incumbent make an agree*
ment with the wife or friend of the patron who is personally

MmaiS^ 855

ignomit of the tmnnciioDy yet if a presentatioi] be made upon Conie-
that agreement it is simoniacal and void. Cro. Joe. 885, gacncas o ,

If a man present by usurpation to a benefice, by reason of (jsana-
any corrupt contracti &c., the presentation is void, for the act tion.
extends to all patrons as well by wronff as by right. But where
any present by usurpation the rightfulpatron, and not the king
shall present, for otherwise every rightful patron might lose his
presentation. Co. LUt. 120 a; 3 Inst. 15S ; Hob. 167 ; GodoL

If the clerk which comes in by simony die in possession of the
church, the king shall not thereby lose his right to present for
the simony, for the statute makes the presentation, admission,
and institution, and all, void, so that the church was never fuU
of an incumbent, and nuUum tempus occurrit regi. But if the
king suffered usurpation by the patron or any one else present-
ing a second derk, who is instituted and inducted, and after-
wards die incumbent; in such case the king loses the present-
ment, and so it should seem if the incumbent resign or be de-
prived, the church having once been full. Deggd 49 ; Hob.
166.

But this doctrine, that the king might present after death,
because the church, notwithstanding the institution and induc-
tion remained void, 1 Brouml. 164, was considered hard, and
especially that an innocent successor to a simoniacal incumbent,
should be disturbed in his possession by this power of the crown ;
and therefore the stat. 1 Wm. 3, c. 16, was passed, which i Wm. 3»
reciting that it often happened that persons simoniacal or simo- c. 16.
niacally promoted, have enjoyed the benefits of their livings
for many years, and sometimes all their lifetime, by reason
of the secret carriage of such simoniacal dealing; and after the
death of such simoniacal person, another person, innocent of
such crime, and worthy of such preferment, being presented
or promoted by any other piUron, innocent also of such simoniacal
contract, has been troubled and removed, under pretence of
lapse, Of otherwise, to the prejudice of the innocent patron in
reversion, and of his clerk, whereby the guilty goeth away with
the profit of his crime, and the innocent successor, patron, and
his cierk are punished contrary to all reason and good conscience,
it is enacted by 1 Wm. % M. c. 16, that if a person simoniacally
presented die without being convicted, such simoniacal contract
shaU not in any way prejudice an innocent patron or clerk, on
pretence of lapse to the crown, or otherwise.

And by s. 2, of the same statute, it is also provided, that no
lease really and bond fide made by any person simoniacal or
simoniacally promoted for good and valuable consideration to
any person not being privy into or having notice of such simony.

856

Jbimonp*

Donative.

Simony a
(ii^fence in
actiuns for
lilhes.

Disability
not dii-
peosed
with.

Pardon,
eflTect of^

shall be impeached or avoided by reason of such simony, bat
shall be good and effectual in law.

A donative is said not to be within the words of the statute,
yet as it is within the object and meaning of the act, an agree-
ment to pay £20 for one of the king's donatives, is simooy.
Cro. Car. 831 ; Degge, 49.

In simony all are principals, Cro, EUz. 789 ; 3 Iiui, 154,
every person as well as the king may take advantage of simony,
and therefore, if parson, vicar, or other dignified person, bring
an action for the tithes, ftc, the defendant may avoid the action,
by proving that the plaintiff obtained his presentation by a
simoniacal contract ; Degge^ 49 ; or in an action for treble
damages, the defendant may set up the simony of the plaintiff as
a defence. Hob, 168. So, if an incumbent come in by simony,
sue for tithes, the defendants may plead that he is no incumbent
by reason of the simony, although they have no remedy for the
tithes and profits he may have received. Co. LitU ISO; Hob.
168 ; March, 84. And in Brooksby v. WatU, 6 Tauni. 3S3,
Shepherd Sol. Gen. said, that according to many authorities
(which the court relieved him from citing as being clear law,)
simony would be an answer to a suit for tithes in specie, or
to an action for not setting out tithes ; but still they held that a

Earishioner who had compounded with the parson one year for
is tithes, and had not determined the composition cannot set
up as a defence to an action for one year's composition money,
that the plaintiff is simoniacus. So also in an action for use and
occupation against the tenant of the glebe who has paid the
parson rent, the defendant cannot give evidence of a simoniacal
presentation in order to avoid his landlord's, the plaintiff's, title.
6 r. /?. 4.

The king cannot dispense with the disability occasioned by
simony, by non obstante, for in this law the king's subjects have
an interest, and therefore the king cannot dispense therewith,
no more than with the common Taw. 3 Inst. 158; Co. Liit,
120 a. \ Hob. 165. So it has been held, that the incumbent
who is once presented, admitted and instituted upon a simonia-
cal contract, is a person disabled to hold that benefice, even
although he obtain a presentation de novo from the king, for the
statute hath disabled nim during his life to have it. Cro. Jae»
385,533; Co. Litt. 120.

Where a person is preferred to a benefice by simony, and a
general pardon comes afterwards, whilst he holds it, still be

(a) Neither the pope nor the king can pardon simony quoad eutpam^
but only quoad poenam. God. Abrid. 543.

J^inum^ 857

will not be able to hold the benefice, for he never was legal ^^^^f^

incumbent, by reason of the simony; for though the pardon !_

discharges the punishment of simony, the matter is still ex-
aminable by the ordinary, who ought to provide that the
benefice is not served by corrupt persons. Cro. Eltz. 685.

It was said in one case, that where the right of presentation
is in one, and of nomination in another, and only one is guilty
of simony, his act shall not prejudice the other, or render him
liable to any forfeiture. Calvert v. Kitchen^ Lane^ 74,

Union is the uniting, combining, or consolidating two At common
churches into one, Godot. Abr. 169, by which consolidation, ^a^.
one of the benefices becomes void, yea, extinct in law. Ibid.

By the common law, when a church was poor and unable to
support itself, it might be united to another church, if the ordi-
nary, patron, and incumbent consented ; and such union was per-
petual. Cro. Eliz. 720, 500 ; Ld. Raym. 195. In cases of poor
churches an union might, it seems, have been made without the
king's consent. Ld, Raym. 192 ; Salk. 165. But if they were
of reasonable value and had sufficient to serve the respective
cures, then such assent was necessary; but this might have
been given either previously or subsequently to the union.
Ibid.\ ib.; Cro. Eliz. 501; ib. 719; 1 Sir. 516; 1 Ld. Raym.
192; ilfoor^/i. 408, 661.

And because it was uncertain what churches were poor By sutute.
enough, the statute 37 Hen. 8, c. 21, was passed, which gave
jurisdiction to the common law to inquire if unions were well
made. Ld. Raym. 195.

By that statute it was enacted, that "an union or consohda-
tion of two churches in one, or of a church and chapel in one,
the one of them not being above the yearly value of £6 in the One not
king's books, and not distant from the other above one mile, ™;;« ^•
might be made by assent of the ordinary, the incumbents, and ^aUe ^nd
of all such as had an interest to the patronage. nor diatauii

The act of 37 /fc«. 8, being in the affirmative, did not ex- ^^•^^
elude the making unions at common law, where the churches
were of greater value than was specified in that act. Cro. /2.£ta.
500; lid. Raym. 196 ; Salk. 165-5 2 RoU. Abr. 778. But in

858

wmioM ntm fi6(tln(ottt^

Patronage
distinct.

17 Car. 2,
c. 3.

How made, cases of Corporate towns, the mode of union was directed and
governed by the subsequent statute of 17 Car. 2» e. 3.

If a church has been united to a prebend and a clerk is col-
lated to the prebend and installed, he may take possession of
the church without institution, or induction, even though it be in
a diflerent diocese, for by the union, the church is become the
corps of the prebend. Wai^. c. 16 ; « Roll. Ahr. S57 ; IB.^
Ad. 761.

Patrons of united parishes have several and distinct rights,
though by the union, one church and one benefice only remains,
consequently but one advowson, the other being perfectly ex*
tinct ; in such cases, therefore, the writ of right ought to be cfe
medieiate advocationis. I Ld. Raym. 196^ 197; SMu 165;
ft B. Sf P. 394. If one benefice be appendant and the other in
gross, each continues as before. Dyer^ 2Sd a.

The act of 17 Car. 2, c 3, applicable to unions in corporate
places only, by 9. 3, directs, that after union, each parish shaU
continue distinct in respect of parochial rates. So by unions at
common law each parish continues to pay its own rates; Hob*
67; 1 Ld. Raym. 196; but the ordinary may compel the
parishioners of the suppressed church to pay thek tithes at
that which is made the presentative church. Ld. Raym* 196 ;
sed. vid. Skinner, 616.

The reparations at common law continue to be sevend, far
the old church might be much less than the new. Ld. Raym.
196 ; Hob. 66. This, however was felt to be an injusticet be*
cause the parishioners of the extinct church became wholly dis-
charged of all repairs, and therefore in cases of unions under
17 Car. S, e. 3, where one church has been destroyed, it lias
been provided by 4 Wm. 3, c. 12, s. 2, that where one of the
churches united by that act was at the time of Much loifoit, or
shall afterwards be demolished, in such case as often as the one
which has been made presentative, and to which the union «raa
made, shall be out of repair, or there shall be need of decent or-
naments for the performance of divine service therein, the
parishioners of such church as has been demolished, shall bear
and pay towards the charges of such repairs and omameotB»
such share and proportion as the archnishop or bishop iiai
shall make such union shall direct and appoint ; and for want of
such appointment then one*third of such charges of the repairs
and ornaments shall be made and provided, and the same ahaD
be rated, taxed, and levied ; and in default thereof such process
and proceedings shall be made, as if it were for the reparation,
and finding decent ornaments for their own parish church, if no
such union had been made.

So also the payment of first fruits and tenths, together with
all other payments and duties to the bishop, archdeaeoo, and the

Repairs dia-
tinct

Wtnioni roft ftttunioim^ B59

Iike» are specially reserved in the said statutes ; the fees of insti-
tution are reserved in perpetual unionsi whether within the
statutes or not. Gibs. 917.

When an union at common law is once made, its validity is Jontdic-
to be tried in the spiritual court. Oo. Eliz. 501. But where *'*'°*
an union is made under the authority of any of the above sta-
tutesy the temporal judge has jurisaicdon. 1 Ld. Raym. 195;
Salk. 165; WaU.c.lQ.

By 53 Geo. S, e. ISS, #« 26. In cases where one living has 63 Geo. 3,
been united to another, and the lands of one such living sold ^' ^^
to redeem the land tax on both, such sales are confirmed ; and
all such hereafter to be made for such purpose, shall be as valid
as if made to redeem land tax charged on land of a livings
the land beloi^^ing to which has been sold» as if such living had
not been united to any other living; but if such livings be
disunited and held by different incumbents, that incumbent
the land of whose living has been sold, shall be entitled to an
annual rent-charge out of the other, equal to the land tax
charged on it.

The law concerning the union of churches has undergone i&2Vict«
complete alteration by the 1 ^ S Viet. e. 106, which by s. 15, c. 106.
repeals the 37 Hen. 8, c. 21, and 17 Car. S, s. 3, and then bv
s. SO, enacts, that '' from and after the passing that act, it shiul
not be lawful to unite two or more benefices into one benefice^
in any other form or manner, or under any other circumstances
than is therein provided; and that if any such union shall be
made in any other form or manner or under any other circum*
stances than as it is therein provided, the same shall be void to
all intents and purposes whatsoever ; any statute law, canon,
custom, or usage to the contrary notwithstanding."

This act, however does not adSfect unions already made^ which
must, therefore, be regulated as heretofore.

The 1 ^ S Vict. c. 106, not only provides for unidng, but for
disuniting benefices already united, if circumstances render such
a change necessary ; the mode in which unions are to be effected
in future is regulated and directed by the 16th, I7th, 18th, and
19th sections ; the disuniting benefices by the 21st| S^d, S3rd*
S4th, and S5th sections of such act.

By the l6tA sect, it is enacted, that whenever it shaU appear
to the archbishop of the province with respect to his own dio-
cese, or be represented to him by the bishop (tf) or bishop of any

(a) By this section the representation may be made to the ftrchbishop
by the bishop of any diocese, and by the 17th sect, by the bishc^ of
any other diocese ; it would seem that this representation should be
made by bishops to their own metropoUtan ; the words, however, in both
sections are general.

860

^nioxa anil BisvmUmi.

1 & 2 Vict,
c. 106, s.
16.

Archbishop
to inquire.
And cer-
tify.

Notice.

Persons
interested
may sho«r
cause
against.

Order in
council.

Course of

presenta-

tion.

Incum-
bents.

diocese, that two or more benefices, &c. either in the same
parish or contiguous to each other, of which the aggregate po-
pulation shall not exceed 1500, nor the income £500 per annum,
may be united to each other with advantage to the interests of
religion, the said archbishop shall inquire into the case.

If upon such inquiry it appear to him that such union may be
usefully made, and will not be of inconvenient extent, and that
the patron has consented thereto by writing under his hand, the
archbishop may certify such inquiry and consent to her majesty
in council.

Six weeks before his so certifying, however, he must publish
and give notice of the previous proceedings, by causing a state*
ment in writing of the facts upon his own inquiry, and in other
cases a copy of the aforesaid representation, to be afiBxed on or
near the principal outer door of the church, or on some public
or conspicuous place in each of such benefices, &c., with notice
to any person or persons interested, that he, she, or they may,
within six weeks show cause in writing against such onion;
and if no sufficient cause be shewn the archbishop is empowered
to certify such inquiry and consent.

Upon the inquiry and consent being so certified, it is further
provided by the same section, that her majesty in council may
issue an order or orders in council for uniting such benefices,
&c. into one benefice with cure of souls, for ecclesiastical pur-
poses only; and,

May direct the course and succession in which the patrons,
if more than one, may present to such united benefice from
time to time ; and if in two dioceses to which it shall belong.

Such order to be registered in the registries of the dioceses in
which any of the benefices belonged when separate.

Which orders when registered to be binding on all parties.

If at the time of the order being so registered, all the bene-
fices, &c. ordered to be united shall not be holden by the same
incumbent, then if any of the benefices, &c., be vacant, or if not
then vacant, then upon every avoidance, until all but one shall
come to be holden by the same incumbent, the patron of the
vacant benefice, &c., shall be bound to present, and the bishop
to institute or license, to the benefice then vacant, the incumbent
of the other or one of the other benefices, &c., ordered to be
united. 1 Lord Raym. 196; Wtxis. c. 16.

If at the time of the order being so registered, both or all are
holden by the same incumbent, or all but one then be vacant,
then immediately in the first case, and in the second on the first
avoidance of either or any of such benefices, &c. af^r all but
one shall have come to be holden by the same incumbent, the
said benefices, &c., shall become permanently united to each
other, and shall become one benefice with cure of souls, unless

Vtixionn anil BiavrntoM. sei

subsequently disunited* Proyided, notwithstanding such union, ^ ^ ^ ^'^^
the places so united shall continue distinct as to all secular rates, ^^ ' **

taxesi charges, duties, and privileges. CartA, 238. — ^

By s^ 17. In case it should appear to any archbishop with b. 17.
regard to his own diocese or be represented to him by any other
bishopi aate^ 859» »• a., that the total income of the bene&ces,
&c.| proposed to be united, would be larger than sufficient for the
support and maintenance of the incumbent when united, and that
the whole or some specified part of the glebe lands, tithes, rent
charges^ tenements, and hereditaments belonging to anv of the
benefices, &c., proposed to be united, or any of them could, with
advantage to the interests of religion, be excepted out of the said
union, and be exchanged for certain other lands, &c., in some
other specified benefice situate in the same dioeeset and having
no competent provision belonging thereto ; and that the lands,
tithes, tenements or hereditaments, proposed to be given in ex-
change for such excepted lands, tithes, rent charges^ tenements
or hereditaments, might with like advantage be granted, con*
veyed, and assured as a farther perpetual endowment for the
incumbent of such last mentioned benefice, and that the patron
or patrons of such benefices, &c.| and the incumbent or incum-
bents thereof, for the time being (or of such as shall not then be
vacant) and the owners, or impropriators of such lands, tithes,
tenements or hereditaments respectively, so proposed to be given
in exchange, are consenting thereto, such consent to be signified
in writing under their respective hands.

The archbishop may certify such further matter to the queen,

who by an order in council may direct, that
" Such first mentioned lands, tithes, rent charges, tenements
" and hereditaments shall be excepted out of such united
" benefice, and be granted, conveyed, and assured unto
" such owner or impropriator for an equal value of lands,
** tithes, tenements, or other hereditaments, situate, or
'* arising within the limits of such benefice, to be by such
'' owner or impropriator granted, conveyed, and assured
" for the further endowment of such other benefice.**
Such order or orders to be registered in the register of the
diocese, to which such united benefice and such other bene-
fice shall belong ; and thenceforth to be binding on all parties*
Such lands, &c., directed to be eranted, &c., to such owner or
impropriator shall immediately after the execution and en-
rolment of the deed or instrument, as directed by s. 18, be
for ever discharged of and from all estate, right, title, and
interest whatsoever of the incumbents of the time of the
said benefices, &c., so to be united, and be subject to all
the uses, trusts, estates, and charges of, and to which the
lands, tithes, rent-charges, tenements and hereditaments so

862 wtaUnai mib 9iauniong.

1 ^^Vict. granted J &c., by such owner or impropriator for audi

17 ' '' further endowment may, at the time of such endowment,

— have been liable ; and

Such last mentioned landsy &c., so granted, 8cc., by such
owner or impropriator for such further endowment shall,
in like manner, become and be for ever annexed to such
other benefice, for the further endowment of which, the
same shall be so granted, &c», and be held for ever by the
incumbent for the time being thereof, as part of the en-
dowment thereof, discharged from all uses, trusta, &c«,
whatsoever, to which the same respectively or any part
thereof, were subject or liable* (a)
S. 18, further provides, that all such grants, &c. are to be
made by deeds or instruments in writing, and under the hands
and seals of the patron of the benefices afibcted thereby, and of
the owners and impropriators of the lands, &c. to be given in
exchange. The bishop to testify his approval by affixing the
episcopal seal, and the incumbents for the time being of such
benefices, &c. as shall not be vacant, by being parties to, and
signing the same ; who shall also be the parties, by Hrfaom the
grants, &c. to be made and executed to such owner or impro-
priator, shall be made and executed.

Such deeds or instruments to be inrolled in chancery wkhin
■ix calendar months of their being executed, or to have no
operation under the act.

By s. 19, the approval of the bishop is made conduttve, that
the lands, &c. were respectively ot the proper value; and
were granted, conveyed, and assured in due accordance with
provisions of the act.
DkuDiting S. filf adopting in terms the preliminary provisions of the
^^j^_^ previous section; s. 16, emte, 859, 860, which precede the
certifying of the archbishop, and the order in council in the
case of uniting benefices; proceeds to enact, that her majesty
may issue an order for separating a benefice or benefices from
any united benefice, and for declaring the rights of patronage of
the several patrons, if there be more than one patron.

Such order to be registered in the registry of the diocese to
which such united benefice belongs ; and thereupon immediately,
if the united benefice be vacant, otherwise, on the first avoid-
ance, such union shall be ipso facto dissolved, but ao fu only

(a) This seems a confused and encumbered clause, and it will be noticed
that it only applies in cases where all the benefices to be united, and the
benefices to be endowed are situate in tbe same diocese. It seems un-
necessary to have made tbe endowment through the medium of an ex-
change and endowment which of course greatly increases die expense
and trouble.

benefices.

SniOttBf aiAi Bfeuntoitf^ 863

as regards sach benefice or benefices proposed to be separated i & ^ Vict,
from such united benefice ; in other respects such union is to ^'^^'
remain in full force. Disuniting

The benefice or benefices so separated, to be taken to be a ^^
separate and distinct benefice or benefices, as if no such union ^ ^^
had taken place.

The patron or patrons to present, firom time to time, according
to the terms of the order in council.

Provided that no benefices which have been united more than
sixty years before the passing the act shall be disunited, without
the consent in writing of the patrons thereof.

By g, 22 f if the united benefice be full at the time of issuing Redgna.
the order in council, the incumbent thereof may resign the ^^^
benefice or benefices so proposed to be separated, and the

Eatron or patrons may present thereto, as if the united benefice
ad been vacant at the issuing the order.

By s. 2S, When two or more benefices, previously united, shall
have been disunited by the act. Her majesty in council may,
whether the order extends to disunite the whole of such benefices,
or only one or more, on the recommendation of the archbishop qJF
the praviHce^ ante, 859, fi. a., with the consent of the patron or
patrons of such benefices, respectively signified in writing under
their hands, assign and attach such portion of the glebe lands,
tithes, tnoduses^ rent charges, or other endowments or emolu-
ments, belonging to or accruing within, the limits of such united
benefice, to each of such benefices respectively, as to her
majesty in council shall seem fit ; notwithstanding such glebe
lands, &c (as before) may not, nor any part thereof, arise or
accrue within the limits of the benefice to which the same shall
be assigned or attached, or may not have belonged thereto ; and
may also divide and apportion between such benefices all such
charges and outgoings, as before the disunion were imposed on
the whole united benefice ; and in case of mortgages, with the
consent of the mortgagees in writing under hand and seal.

And by s. ^, all such lands, &c. so assigned and attached,
shall belong to, and the same, and the rents and profits thereof,
shall be- recoverable by, the incumbent of the benefice, to which
the same shall have been so assigned and attached.

S. 25, contemplates that the existing benefice house may be
inconveniently situated for any of the disunited parishes, or for
the division of parishes made under the provisions of the
58 Geo. 8, c. 46 ; 59 Geo. 8, c. 134 ; ante, 198, 200 ; (the object
of this 25th sect being to supply a remedy in such cases of
divisions under those acts, as well as in cases of disunions under
this act), or on too large and expensive a scale, for the incum-
bent of any disunited benefice, and enacts that all the provisions

864

^nitms anil Wwnitmi*

DMUniting

united

benefices.

Adjusting
disputes.

Supple-
mental
order in
council.

Not to
affect secU'
lar rates.

of the 1 ^ 2 Vici. c. 23, relating to the sale of the house and
application of the proceeds, ante, shall be applicable both to the
cases of disunions under 1 ^ ^ FicL c, 106| and divisions under
58 Geo. 3, c. 45 ; and 59 Geo. 3, c. 134 ; and further, that tbe
proceeds of such sale may be applied by the governors of queen
Anne*s bounty, towards the purchase or erection of so many
houses, gardens, or land, as may be required for the residence
of an incumbent within each of the parishes disunited or
divided, in such proportions as the archbishop of the province,
with the consent of the patron and ordinary, and of tbe incum*
bent, if the benefice be full, in writing under their hands, shall
approve, and her majesty in council shall confirm.*

By s. 27, it is recited that whereas the charges affected hy
virtue of the foregoing provisions, may raise doubts and
create disputes not foreseen at the time the orders in council
were made, respecting ecclesiastical jurisdiction, glebe lands,
tithes, rent charges, and other ecclesiastical dues, rates and
payments, patronage, right to pews, and the definition of local
boundaries ; provision is made, that her majesty in council may,
at any time within five years after such orders respectively shall
have come into full operation, if occasion shall arise, make a
supplemental order for removing such doubts and settling such
disputes, which supplemental order shall have the same force as
an original order.

Provided, that in every case in which the contents of parishes
shall be so altered, such alteration shall not in any way affect
the secular rates, taxes, charges, duties, or privileges of such
parishes or any part of them, Carth, G38«

This provision also applies to the order made for the annex-
ation of isolated places to contiguous parishes, or the making
them separate benefices, provided for by s. S6, which enact-
ment, tAd. ante 634, (a)

(a) The powers given by 1 4* 2 Vict. c. 106, s. 26, for annexing
isolated places to contiguous parishes have been extended by 2 4" '
Vict. c. 49, 8. 6, in order to enable such annexation to take place
daring the vacancy of the benefice or benefices.

865

Wt»tt^.

General.

Regulated by 58 Geo. 3, e. 69.
By whom sammoned.
Notice of.

Meetipgs of, and proceedings at.
Chairman.

Right of parishioners to be present.
Demand of poll at.
Adjournment of.

For taking the poll.
Duration of the poll.
Election by show of hands.
Special.

By custom.

By 10 Anne, c. 11.

By churchbuilding acts, 58 Geo. 8, c. 45 ; 59 Geo. 3, c. 134 ;

and 3 Geo. 4, c; 72.
By local statutes.
By 1 ^ 2 Wm. 4, c. 60.

Mode of proceeding for adopting the act.
Election of vestrymen and auditors.
Of whom the vestry to consist.
Number of vestrymen to be elected.
Qualification of.
Ballot for.
Powers of such vestry.
Proceedings and duties of.
Election of auditors.
Proceedings and duties of auditors.

A VESTRY is a room or place where the vestments of the
minister of the parish are usually deposited, Godol. AbrAGZ \
and it being customary for the inhabitants of parishes to use
that room for their parochial meetings, the meetings themselves
have obtained the name of vestries.

It is not, however, essential that parish meetings should be
held in the vestry-room, many vestry-rooms are too small to
accommodate the inhabitants of populous parishes, and many
parishes have no vestry^room at all ; sometimes parish meetings
have been held in the church, sometimes at pubhc-houses, or in
hired rooms ; by 1 ^ 2 Wm. 4, c. 60, s. 29, vestries under that
act may be held in any coniniodious place, but not in a

K K K

866 VtfSb:^,

church or chapel. If they are held in a vestry-rooni adjmning
to, and communicating with, the church, the ecclesiastical court
has jurisdiction, ratione loci, over any misconduct taking place
there. 2 Lord Raym. 850. Indeed, it has been held that
brawling and smiting at a vestry attended only by five persona,
and held in a room situate within the churchyard, are ratione
loci within the statute, 5 4r 6 Ed. c. 4; ante 120; Lee ▼.
Mathews, 3 Hag. 169 ; North ^ Little v. Dickson, 2 Hag. 730;
SB.SfA. 241 ; 1 Hag. Con. 185.

At common law, every parishioner, paying scot and lot, has a
right to meet and vote in the vestry of his parish; but, by
custom this general right may be restrained and limited to a
select number, and, where such custom has existed from time
immemorial, the parish is governed, not by a common law vestry,
but by a select vestry founded on the custom. Berry v. Banner,
Peake's Cas. 157. But such limitation of the general right of
the parishioners can only be by immemorial custom ; a bishop,
by a faculty, cannot restrain the right, con^quently, a select
vestry cannot be founded on a faculty ; ibid. These customs
are supposed to have originated in the practice of choosing a
certain number of persons yearly to manage the concerns of the
parish for the particular year, which, by degrees, became a
fixed method, and the parishioners lost, not only their right to
concur in the public management, but also the right to elect
the managers. Gibs. Cod. 219.

By the 59 Geo. S, c. 12. Parishes are invested with a statute-
able authority to choose select vestries for the concerns of the
poor ; vid. S B. &Ad. 907 ; 2 JS. ^ Ad. 506 ; but for such special
purpose only. That act, therefore, has left the vestries which
assemble for the general purposes of the parish, upon the footing
of the common law, and the other statutes, by which they are
regulated, and consequently such vestries are unaflfected by the
operation of the statute.

Parochial vestries for the general management of the aflfairs
of the parish are of two descriptions.

General vestries at common law.

Select vestries founded on immemorial custom.

There are, however, other vestries constituted by special
acts of parliament,

1st. By the 10 Anne, c. 1 1, for building fifty new churches in
the city of London.

2dly. By the churchbuilding acts, 58 Oeo. S, c. 46; 59
Geo. S, e. 134, and 3 Geo. 4, e. 72, for the special pur-
poses of the management of the churches or chapels built
under the authority of those acts.

3dly^ By local statutes for -buOding churches in particular
parishes.

»e0trp^ 867

4thly. That particular kind of vestry which has been intro- Vestrie* at
duced by the provisions of the 1^2 Wm, 4, c* 60.(a) law.*"

It has been stated above, that a common law vestry is a
meeting of all the parbhioners rated to the church and poor
rates.

The 58 Geo. 3, c. 68, amended by the 59 Geo. 8, c. 85, 68 G. 3.
(both of which acts were passed for the purpose of regulating ^'^'
parish vestries), enacts, that persons rated to the poor rate,
provided they have not refused or neglected to pay any rate
which had become due, and had been demanded of them,
should have a right to be present at the vestries of their several
parishes, although they do not inhabit or reside in such parishes ;
and further, that persons who have become liable to be rated,
since the making the last poor rate, may also be present, A
person having a right to be present at a vestry may insist upon
being admitted, and any one who prevents his admission, or
otherwise excludes him, subjects himself to a special action on
the case, vid.post, 872.

The mode of holding common law parochial vestriesi as well
as other vestries, not specially constituted by custom or statute,
and the right of voting in them, have been regulated by the
above act of the 58 Geo. 3, c. 69, commonly called Mr,
Sturges Bourne's act, the provisions of which are so important,
and so generally necessary to be referred to, that it has been
deemed expedient to print it entire.

" An Act for the Regulation of Parish Vestries^ June 3, 1818.

" No vestry or nleeting of the. inhabitants in vestry of or for Three days'
any parish shall be holden until public notice shall have been noticeof.
given of such vestry, and of the place and hour of holding the
same, and the special purpose thereof, three days at the least
before the day to be appointed for holding such vestry, by
the publication of such notice in the parish church or chapel on
some Sunday during or immediately after divine service, and by
affixing the same, fairly written or printed, on the principal
door of such church or chapel." This mode of publishing
notice of vestry meetings is altered by 1 Vict. c. 45, s. 1, ante
767, 768.

" II. In case the rector or vicar or perpetual curate shall not cb&irmaa
be present, the persons so assembled in pursuance of such notice of ▼^•^'J^
shall forthwith nominate and appoint by plurality of votes, to be ^^"^^^

(a) Special vestries appointed under 59 Geo. 3. c. 12, for the man^^'
ment of the poor will not be noticed, as not bearing on the objects ot
this publication.

K K K 2

868 IPwftrp^

51 G. 3, ascertained as hereinafter is directedi one of the inhabitants of
^'^' such parish to be the chairman of, and preside in every such

Chairman ▼cstry ;(a) and in all cases of equality of votes the chairman
to have the shall (in addition to such vote or votes as he may by virtue of
casting (his act be entitled to give in right of his assessment) have the
^°|^ casting vote ; and minutes of the proceedings and resolutions

be enti^ed^ of every vestry shall be fairly and distinctly entered in a book
andfigned. to be provided for that purpose by the churchwardens and
overseers, and shall be signed by the chairman, and by such
other of the inhabitants present as shall think proper to sign the

same."

The signing an order, authorising a new roof to a church by
the churchwardens, does not make vestr3rmen signing it liable
to contribution in actions by the churcbwardensi when the
expense of the repairs had fallen upon the churchwardens
in consequence of the rate made for the purpose having been
quashed; 1 Bing. £01 ; 8B.M. 20; 2Bing. 861 ; 9 B. M.eSS;
nor for the payment of an attorney's bill for defending an indict-
ment of a parish road, though they signed a resolution ordering
the parish surveyor to take steps for such defence. 3 Bing, 478.
Manner of ** III. In all such vestries every inhabitant present, who
voting in shall, by the last rate which shall have been made for the relief
ves nes. ^^ ^y^^ poor, have been assessed and charged upon or in respect of
any annual rent, profit, or value not amounting to £50, shall
have and be entitled to give one vote and no more ; and every
inhabitant there present, who shall in such last rate have been
assessed or charged upon or in respect of any annual rent or
rents, profit or value, amounting to £50 or upwards (whether in
one or in more than one sum or charge), shall have aad be
entitled to give one vote for every £25 of annual rent, profit,
and value upon or in respect of which he shall have been
assessed or charged in such last rate, so nevertheless thai
no inhabitant shall be entitled to give more than six votes;
Joint where two or more of the inhabitants present shall be jointly

rating. rated, each of them shall be entitled to vote according to the
proportion and amount which shall be borne by him of the
joint charge; and where one only of the persons jointly rated
shall attend, he shall be entitled to vote in respect of the whole
of the joint charge,'* post s. 8, 4r />• 871.

Where property, according to a custom in the parish, vras
rated, not in respect of any annual rent, profit, or value, but
according to the supposed ability of the party assessed, persons
assessed at more tnan £50 are not entitled to more than one
vote. %B.% C. SIS; S D. %KMId.

{a) 8 Ad. St EU. 850.

WtttttT^. 869

** IV. When any person shall have beocMne an inhabitant of ^^ ^* ^»
any parish, or become liable to be rated therein, since the ^'

making of the last rate for the relief of the poor thereof» he shall Inhabitanu
be entitled to vote for and in respect of the lands, tenements, comiog^mto
and pronerty for which he shall have become liable to be rated, sin^^the
and shall consent to be rated, in like manner as if he had last rate
been actually rated for the same/* ™*y ''^'

By 59 Geo. 3, c. 85, « • 1. ** Any person who shall be assessed Peraons
to the poor in respect of any annual rent, &c* arising from any ^^'
lands, tenements, or hereditaments, situate in any parish in [nhabU-^^
which a vestry shall be holden under the 58 Geo. 3, e. 69 ; ant^.
although such person shall not reside in or be an inhabitant of
such parish, may lawfully be present at such vestry, and shall be
entitled to give so many votes at such vestry, in respect of the
amount of such rent, forfeit, or value, as by the said act any
inhabitant of such parish present at such vestry, might or ought
to be entitled to give ; and by 59 Geo. 3, c. 85, s» S, corporations corpom-
are to be assessed either in the name of such corporations, or of tiona.
any officer of such corporations; and the clerk, secretary,
steward, or other agent duly authorised for that purpose, may
be present at the vestry, and may give as many votes as the
property assessed would entitle any inhabitant to give."

V. Re-enacted by 59 Geo. 3, c. 85, s. 3, *' no person, nor any jababitanu
clerk, &G. of any corporation, who shall have refused or neg- refosing
lected to pay any rate for the relief of the poor, which shall be JJ^i^^q \j^^
due from, and shall have been demanded of him, shall be entitled excluded
to vote or to be present in any vestry of the parish for which from vo-
auch rate shall have been made, until he shall have paid the ^"^'
same.

" VI, As well the books hereby directed to be provided and For prescr-
kept for the entry of the proceedings of vestries, as all former vation of
vestry books, and all rates and assessments, accounts and ^Qo^g^^Q^
vouchers of the churchwardens, overseers of the poor, and papers.
surveyors of the highways, and other parish officers; and all
certificates, orders of courts and of justices, and other parish
books, documents, writings, and public papers of every parish,
except the registry of marriages, baptisms, and burials, shall be
kept by such person and persons, and deposited in such place
and manner, as the inhabitants in vestry assembled shall direct ;
and if any person in whose hands or custody any such book, Penalty ou
rate, assessment, account, voucher, certificate, order, document, reiaming or
writing, or paper shall be, shall wilfully or negligently destroy, '^^^^
obliterate, or injure the same, or suffer the same to be destroyed, ^ooVta, fitc.
obliterated, or injured, or shall, after reasonable notice and
demand, refuse or neglect to deliver the same to such person or
persons, or to deposit the same in such place as shall by the
order of any such vestry be directed, every person soofiendmg,

870

^tiXt^.

58 Geo, 3,
C.69.

Recovery
and appli-
cation of
penalty.

Not to af-
fect other
proceed-
ings.

Provimons
in relation
to parishes
extended to
townships,
&c.

Manner of
giving no-
tice of ves-
tries and
meetings in
special
cases.

Not to alter

the time for

holding

vestries

specially

directed;

nor to affect
special ves-
tries.

and being lawfully convicted thereof on his own confession, or
on the oath of one or more credible witness or witnesses, by and
before two of his majesty's justices of the peace, upon complaint
thereof to them made, shall for every such offence forfeit and
pay such sum, not exceeding £50, nor less than 40«. as shall by
such justices be adjudged and determined ; and the same shall
be recovered and levied by warrant of such justices in such
manner, and by such ways and means as poor's rates in arrear are
by law to be recovered and levied, and shall be paid to the
overseers of the poor of the parish against which the offence
shall be committed, or to some of them, and be applied for and
towards the relief of the poor thereof: provided nevertheless,
that every person who shall unlawfully retain in his custody, or
shall refuse to deliver to any person or persons authorised to
receive the same, or who shall obliterate, destroy, or injure, or
suffer to be obliterated, destroyed, or injured, any book, rate,
assessment, account, voucher, certificate, order, document,
writing, or paper belonging to any parish, or to the church-
wardens, overseers of the poor, or surveyors of the highways
thereof, may in every such case be proceeded against in any of
his majesty's courts, civilly or criminally, in like manner as if
this act had not been made.

'' VII. All provisions, authorities, and directions in this act
contained in relation to parishes, shall extend, and be construed
to extend, to all townships, vills, and places having separate
overseers of the poor and maintaining their poor separately, and
that all the directions and regulations herein contained in regard
to vestries, shall extend and be applied to all meetings which
may by law be holden of the inhabitants of any parish » town*
ship, vill, or place, for any of the purposes in this act expressed ;
and that the notices by this act required to be given of every
vestry may, in places in which there is or shall be no pariah
church or chapel, or where there shall not be divine service in
such church or chapel, be given and published in such manner
as notices of the like nature shall have been there usually given
and published, or as shall be most effectual for communicating
the same to the inhabitants of every such parish, township,
vill, or place respectively.

** VIII. Nothing in this act contained shall be construed Co
extend to alter the time of holding any vestry, parish, or town
meeting, which is by the authority of any act required to be
holden on any certain day, or within any certain time in such
act directed ; nor to take away, lessen, prejudice, or affect the
powers of any vestry or meeting holden in any parish, town-
ship, or place, by virtue of any special act or acts, or any
ancient and special usage or custom, or to change or affect the
right or manner of voting in any vestry or meeting so holden.**

Vttitjf^ 871

It has been said that the intention of s^cHon S was to change 68 0.3,
the mode of voting in vestries in all cases where no especial ^'^^'
constitution of a vestry existed before; and consequently
it has been held that inhabitants are to vote as directed by
that section, notwithstanding the limitation in s. 8, and although
a previous local act established the office of euardians, and
and directed that vacancies should be annuallv filled up by the
inhabitants assembled in vestry, who were to elect persons in the
room of those going out. R* v. Clerkenwett, 1 Ad. ^ EU, 317 ;
3 Nev. ^ Man. 411. But where lands were granted to feoffees,
for the maintenance of a schoolmaster; and it was provided that
no act should be done concerning the lands, but in a vestry or
meeting of the feoflfees, and ten at least of the parish who should
be vestrymen and not feoffees, in a vestry to be held by them, and
a power to remove the schoolmaster was given with the consent of
the feofiees and vestrymen, or major part of them assembkd in
vestry, there being always ten vestr3mien not feofiees voting at a
vestry when the removal of the schoolmaster was agreed on. It
was held that the votes were not to be taken according to the
58 Geo. 3, e. 69 ; Att. GenL v. Wilkinson, 3 B. ^ B. S66;
7 J3. M, 187. As to the restrictive operation of section 8,
and its effect on local acts, see further Campbell v. Maund,
Nev. ^ P. 671 ; 6 Ad. * Ell. 879.

** IX. Nothing in this act contained shall extend to any
parish within the city of London, or in the borough of South-
wark.

*' XI. To extend only to England and Wales ; be a public
act, and be judicially taken notice of, without specially pleading
the same.*'

By common law, vestries are to be called *' by the church- Meetings.
wardens, with the consent of the minister ;" none of the general ^ ^^jo„^
acts seem to introduce alterations in this respect. If the church- called.
wardens refuse to call a vestry for the legal duties of the
vestry they may be compelled to do so by mandamus, ante.
Prideaux, sect. 35.

At common law, a general notice of a vestry meeting was, it Notice of.
seems, sufficient, and although if anything peculiar was to be
done, it would have been right and proper to give notice of the
specific purpose and object of the meeting, yet such specification
was not absolutely requisite. Cluttan v. Cherry, 2 PhiU.SS4^\
7 E€ut, 573. But a vestry, without any notice at all, would, it
seems, be an unauthorised meeting. 7 Bing. 113; 5 M. ^ -P*

lis.

By 68 Geo. 3, c. 69, s. 1, however, it is enacted, that •* no
vestry or meeting of the inhabitants in vestry, of or tor any
parish, shall be holden until public notice shall have been given
of such vestry, and of the place and hour oC holdmg tne same.

872

NoUc« of.

and of Me special purpose thereof.^ This nodee » not to be
given in the church as directed by 58 Geo* 8, c. 69, s. 1 ; bnt
according to the mode directed by 1 Vict. c. 45, s. 1, quod vid.
antCf 767, 768. The giving notice of the special purpose of
the meeting seems of general application, unless it has been
varied by any subsequent local act; for the restrictive dause
the 58 Geo. S, c. 69, s. 8, does not seem to exclude notices

of vestry meetings from the operation of the statute.

We have seen above, who are entitled to be present at
a common law vestry. At select vestries by custom, or statute,
those only have a right to be present who have been legally and
duly chosen to be the select vestry of the parish.
Chairman. By the common law, the minister of the parish, whedier
rector or vicar, or perpetual curate, is the head and pneses of
the meeting, be is m met not a mere individual at a vestry ; he
has a special duty to perform, and must be responsible to the
bishop for his care therein. Wilson v. MacMaih^ 3 PhilL 67 ;

2 Add. 134; 1 Curt. 522 ; 8 B. % A. 241 ; Prideaux, sed. 35.
A churchwarden has no right to the chair. 7 Eastf 573. The
right of the minister to be the chairman is indirectly recognised
by the 58 Geo. 3, c. 69, s* 2, which gives power to the meeting
to elect its own chairman, if the rector, &c. is not present. The
1 Sf 2 Wm. 4, c. 60, abstains from any such recognition, for
by s. 30, it enacts, that in the absence of the persons authorised
by law or custom to take the chair, the members present shall
elect a chairman ; but in the above case of Wilson v. MacMaih,

3 Pkill. 67, the ecclesiastical court has decided that the minister
has that right, and that court, it is conceived, has jurisdiction to
declare the law upon the regulation and government of parochial
vestries.

When the vestry is duly assembled, the major part of thoae
present may bind the parish to all leml acts. Wats* c. 9;

4 Bum's E.L.9i Clutton v. Cherry, 2 PhiU. 380 ; Vin. Abrid.
Vestry, A.l; 2 P. Wms. 632 ; Prec. Ch. 42 ; DougL 116.

It seems to follow, as a consequence, that if a parishioner
absenting himself from a vestry meeting, is bound by the acts of
the majority who do meet ; he has aright to be present, and may,
if he be excluded, bring an action on the case against any who
excludes him. Vin. Abrid. Vestry, A. 3 ; Str. 624 ; 8 Mod.
52, 351, 354; Lord Raym. 1388. Indeed, it has been lately
said by the court, that it is illegal to close the doors of a Teatiy,
especially during a poll, so as to exclude voters ; Q* ▼• St.
Mary, Lambeth, 3 Isev. ^ Per. 416; in that case, indeed, the
court refused a mandamus for a fresh election, because it did
not appear that any voter had been excluded ; but the doors had
been kept closed, and the admittance of voters had been delayed,
Aniiud.SAd.SfEU.'iX.

Power of.

Rightofpa-
liihionexB
to be pre-
sent.

IPMttrp* 873

Where a poll is demanded it ought to be granted. In Q. t. Demand of

Si. Mary, Lambeth, %Ad. % EU. 861, Lord Demnan aaid, £21!:

" there is no doubt of the law, that the rate payers in restry are
to elect, and that if a poll be demanded, it should be kept open
for all qualified persons, and vid. 2 Nev. ^ Man. 464. But though
this is generally true, yet if the subject of the vote be not legal, -
the court of king's bench will not enforce a poll by mandamus.

Thus where an illegal proposition, vim., to misapply some paro-
chial charitable funds, was inade in vestry, which was passed by a
show of hands, and a poll demanded and refused by the person
presiding at the vestry, the court refused a mandamus to direct
such person to grant a poll ; the court saying, they ought not to
grant the writ for the purpose of putting it to the vote whether
a breach of trust should te committed. 1 Ad. ^ EU. 880.

The acts of one vestry, are not absolutely binding on a sue- Actsof for-
ceeding vestry ; they may be confirmed or rescinded by such ^^ ^^
succeeding vestry ; but the confirmation of a second vestry is "^
not necessary to make the acts of the preceding one valid. Manh
ley V. Babet, 2 Etp. 687.

The question as to the right of adjournment of vestry meet- Adjonrn.
ings, especially with reference to their adjournment for the pur- "•"^ ^^'
pose of polling, has been much discussed in some late cases, (a)

It seems clear, upon principle, as well as upon authority, that
the chairman of a vestry meeting has no authority to interrupt,
adjourn, or postpone the business of the meeting ; his duty in
the chair, is merely to regulate the proceedings, and as far as
he can, to forward the business which the meeting is assembled
to dispatch, if it be such as the meeting can legally entertain
and proceed on ; any attempt on his part, therefore, to stop or
postpone the business, is a violation of his duty, and altogether
illegal. In discussing the matters brought before the meeting,
or in determining whether they are to be discussed on one day
or another, and in voting upon them, he has no more authority,
nor any further voice than any other member of the vestry, ex-
cept where by statute, in case of an equality of votes, he has
the power to give a casting vote. But whilsi the business is
actually in progress, he may, and he ought, adopting the well
established rules of public meetings, to regulate, control, and
direct the course and order of proceeding, and in cases of dif-
ference of opinion, so to order and conduct his arrangements as
to enable every member to express his opinion, and if necessary
give his vote without personal inconvenience, or difficulty;

(a) The mode and manner of parochial elections has been partially
considered before ; ainie 619^ H $eq. ; the mode of vestry elections only
will be considered here.

874

CHS' ^k^i#A^*^A

Adjourn-
ment of.

Adjourn-
ment of
poll.

whereby the real opinions of the voters may be ascertained in a
satisfactory and impartial manner.

In Sioughton v. Reynolds, 2 Sir. 1046; Fortesc. 168; Cos.
temp. Hardw, 274, it was decided that, the right of adjourning
a meeting whilst the poll for the election of a churcnwarden
was proceeding, was not vested in the chairman of such meetinff,
but in the whole assembly, where all are on an equal footing; al-
though there might be a difficulty in polling for an adjournment,
yet as there was no other way, that must be taken. 2 Burr. 1020.

In this case the adjournment was one of time, and was in fact
an interruption of business legally proceeding, and the proposal
of a postponement of it to a future time was without any plea of
necessity, or even convenience to justify it ; if the chairman had
an arbitrary power of postponement for a day, why not for a week
or longer period? But this decision by no means interferes with
the right which every chairman has to make a bond fide adjourn-
ment, whilst a poll or other business is proceeding, if circumstances
of violent interruption make it unsafe, or seriously difficult for the
voters to tender their votes ; nor of adjourning the place of poll-
ing, if the ordinary place used for that purpose be insufficient,
or greatly inconvenient. In most of such cases, the question will
turn upon the intention and effect of the adjournment, if the
intention and effect were to interrupt and procrastinate the busi*
ness, such an adjournment would be illegal ; if, on the contrary,
the intention and effect were to forward or facilitate it, and no
injurious effect were produced, such an adjournment would, it b
conceived, be generally supported.

In R. V. The Archdeacon of Chester, 1 Ad. 8[ EU. 34^, notice
had been given that a vestry would be held in the chntch, but
that if a poll were demanded it would be adjourned to the town
hall. At the meeting there was a show of hands, upon which a
poll was demanded, and thereupon the chairman, without taking
the sense of the meeting, adjourned the poll to the town-halL
It was held, that the proceeding was regular, no business having
been interrupted by it, and the adjournment in the particular
event being part of the original appointment. In the course of
the argument. Lord Denman said, ** This is not properly an
adjournment, may not a chairman appoint a convenient (dace
for taking the poll ? Suppose the proceedings had been origi-
nally appointed to take place in the church, and the meeting
had become so tumultuous, that it became necessary to adjoam
to the churchyard, would it have been irregular to do so ?** And
in the case of R. v. The Churchwarden of Lambeth, post, 877.
Parke, J., speaking of the case o( Sioughton v. Reynolds, said,
" in that case the adjournment was to a subsequent day,** and
asked if the poll could not have been adjourned from one room
to another.

tfttftrp* 875

In the case of Baker v. Douming and Wood, 1 Curt. 507, one Adjonni-
of the principal questions raised was, whether it was legal when "*J* °

a vestry meeting was assembled in the vestry-room, for the pur- — '-

pose of granting a church-rate» and a poll demanded, to adjourn
such poll from the vestry-room to the town-hall, it being stated
in the original notice for the vestry meeting, thai if a poll were
demanded, such adjournment would be made ? A further ob-
jection was also made, that the town-hall was private property,
and consequently, that the parishioners had not a right to insist
on legal access to it

The facts of the case, as stated by the learned judge. Sir
Herbert Jennet, were as follow : — A meeting was held in the
vestry room, on the £5th of September, the vicar being in the
chair. The assemblage filled the vestry room, and numbers were
in the churchyard adjoining. At the commencement of the pro-
ceedings, the vicar read the notice of the vestry, which contained
full information of the particular subjects for discussion. On
proposing the rate, a show of hands was called for, when the
numbers were so nearly equal that the chairman declared that
he was unable to declare the majority, a poll was then demanded,
and granted.

On this the chairman proceeded to the town-hall, where the
polling immediately commenced and continued according to the
notice, till four o'clock of the afternoon of that day, and then
adjourned to ten o'clock the following morning ; when it recom-
menced and continued till four o'clock in the afternoon ; was re-
sumed the following morning at ten, and finally closed at twelve
o'clock on that day, in conformity with notice ; having been
open for eleven hours or eleven hours and a half.

The case at Siougkiony. Reynolds, Frotese. 168; 9 Sir. 1045 ;
Cos. temp. Hardw, £74 ; anie, 874, was relied on in the argu-
ment, as shewing that the power to adjourn a vestry meeting did
not rest with the chairman, but with the whole body of the vestry.
But the learned judge considered that case as only deciding
that the chairman had no right ex mero motu to adjourn a vestry
meeting, whilst the business was in progress, and considered that
the case of R. v. The CkmmisBary of the Bishop of Winchester ^
7 East, ISS, confirmed that position. The learned judge pro-
ceeded, " without relying on my own judgment, it does seem to
me that the question has already been decided by the case of
R. V. The Archdeacon of Chester, I Ad. Sf EIL9A&. In that
case, no motion for an adjournment was put ; and though the
case of Stoughton v. Reynolds was cited, the court of J^i^g^
bench held, that the proceedings were regular, and that, as said
by Lord Denman, it was necessary to lay down some order for
the proceedings, who added, «* I think it is competent to them
" to say, the meeting shall be held in one place, and m a certain

876 VtttXJSi

AdjoQin* » event, which may require it, that it shall be removed to
"f,^* **^ " another.-

— '- " Neither of the learned judges denied the authority of the case

of Stouffhton V. ReynoUa^ but held that it did not apply to the
case before them. They did not recognize a discretionary power
in the chairman to adjourn the meeting arbitrarily ; but con-
sidered the adjournment of the poll a part of the original pro-
ceeding. So in this case, it was competent for tiie chairman to
pursue the course expressly pointed out in the notice."

*' In the case before the king's bench, the adjournment was
from the church to the town*hall ; in the present case, it was
from the vestry-room to the town-hall of Dudley. There was
no surprise in this case, for the notice expressly stated that such
would be the course adopted. The notice was given in pur-
suance of the vestry act, four days before the vestry was held,
and there is every reason to believe, from what appears in the
evidence, that it was known immediately after publication,
throughout the whole town of Dudley.*'

'* With respect to the town-hall itself, it appeared that it bad
been resorted to for public meetings of different descriptions,
and that vestry meetings had been held there, and rates made
there, and no objection made to the validity of a rate on that
ground. The vestry-room was stated to be an inconvenient
place for a poll, that the room could not contain more than
ninety persons, and that the difficulty of going and retaming
would be almost insurmountable.*'
Town-hall '' With respect to the town hall being private property no
private pro- person appeared to have been prevented from entering the
^^^^* room, nor was it suggested that any parishioner was deterred
from proceeding there by an apprehension that he would be
excluded. In the case of ft. v. Archdeacon of Chester , the town-
hall was equally private property ; no person could be admitted
into the town-ball of Manchester, of right ; yet, no objection
was raised in that case, that the parishioners had not a perfect
right of access to the town-hall. It is proper to fix on a conve-
nient place, and the town-hall was as convenient a phce as could
be selected. There was no reason why any person should have
stayed away ; there was not any appearance of obstruction or
of any one having been prevented from recording bis vote, and
DO party made any demur at first as to the town-hall, they seem
to have acquiesced, and tendered their votes for acceptance
thcre.'Xa)

(a) This latter point is somewhat analogous to the cases of shutftiag
tbe doors in order to exclude voters from the poll, in which the coort

vmtrp^ 877

In both the above casesi it appeared that the adjoamment Aajonra.
was made in pursuance of an intimation to that effect contained ^^^ ^

in the original notice of vestry, but that seems not to be impor- —

tanty because, if the adjournment were unauthorised and illegal,
and not justified bv the occasion, the intimation of it beforehand
would not make it legal. Thus in R. v. The Churchu>arden$ qf
SU Mary^ Lambeth^ 1 Ad. if EU. 346 fi., the rector who was
in the chair, on a poll being clamed, adjourned the meeting for
that purpose, from the school-house (where the meeting was
holden by appointment) to the church, of his own authority.
The poll was gone into on the same day, and continued on sub-
sequent ones at the church, no previous noUce had been given
of such adjournment. In support of the election, statements
were made, tending to shew tnat the poll could not have been
taken properly, if at all, in the schooUhouse, from the nature of
the place, and the numbers and tumultuous state of the meeting;
and also on a former practice of electing in the church, and an
alleged acquiescence on the present occasion of the parties com-
plaining. The election was held to be good.

The second question in the above case of Baker v. Douming Duntion
and fVoodf was, whether the time fixed for the duration of the of poll at
poll, which was also stated in the above notice, and which was ^ ^^'^'-
to be from the time of the adjournment of the poll on the 25th
of September, (the day fixed for the vestry meeting,) till four
o*clock on that day, and from ten in the forenoon till four in the
afternoon on the S6th, and again, from ten in the forenoon till
twelve at noon on the 27th, was sufficient with reference to the
number of persons entitled to vote. The learned judge said, '* it
is not very easy to determine what time should be allowed, so as to
give every person entitled an opportunity of recording his vote;
and all that can be said is, that where no custom exists, a rea-
sonable time should be given. It has been stated, that the
number of rate payers (the number entitled to vote,) amounted
to between one thousand five hundred and one thousand six
hundred, some have calculated the number at one thousand six
hundred, and Mr. S., who had the best means of forming an
accurate judgment of the number, estimates it at one thousand
five hundred and fifty. But on his second examination, his
attention having been called to the circumstances, and speaking
from the means be possessed, and after the poll had been taken,
he states the number of parishioners qualified to vote, at no

has held, that though such a practice is manifestly illegal, yet unless it
be shewn that persons have been actually excluded, and that the doing
so may have affected the result of the election, they will not declsve the
election void in conseqnence. 8 Net. ^ Per. 416 ; 8 Ad. 4r Ell. 856,
anUi 672.

878 Vttftrp.

Duration of more than one thousand two hundred and twenty-two. There
eiiect^ns. ^^ "^^ sufficient evidence to satisfy me that all the parishioners

qualified and desirous of voting, might not, if due diligence had

been used, have recorded their votes before the time when it
was understood the poll was to cease. Ninety polled in an hour,
is no great number; some, indeed, think that one hundred
and fifty might be polled in an hour ; but even if only one
hundred were polled in an hour, there was sufficient time for all
persons desirous of voting to attend for that purpose. I must
say, that it would have been more satisfactory if the poll had
been kept open till four o'clock of the last day.**
Time al- It having been made a point in the argument, that time should
parties to ^^^ ^'^^^ ^ allowed to enable parties to vote, but also for those
pay their whose rates were unpaid to qualify themselves by paying them.
rates. The learned judge said, ** at the commencement of the poll,

there was a considerable number of persons not qualified to
vote, but during the pendency of the poll, one hundred and
fifty persons paid their rates, and were thereby qualified ; and
it has been suggested, that if one hundred and fifty qualified
during eleven hours or eleven hours and a half, had the time
allowed for the poll been double what was actually allowed, the
effect might have been to double the number of votes. But I
do not think that the number of voters could have been mate-
rially increased if the poll had been kept open for a longer time.
It has been urged, however, that time ought to have been al-
lowed for every person to qualify himself, to pay his rate and
tender his vote. It is true, that if a person qualified himself at
the very last moment and tendered his vote, it ought to be ac-
cepted. But I do not accede to the proposition, that the time
allowed for the poll, should be calculated with reference to such
a principle. I apprehend that the time need only be fixed so as
to allow evetfy person qualified to tender and record his vote,
without any reference as to what may be done by persons not
already qualified. It is no part of the purpose for which a poll
is demanded, that it should give time for the payment of the
rates, but only to allow persons already qualified sufficient time
to tender and record their votes. The question is, was the
time sufficient to allow all persons qualified to vote ?" The
learned judge thought that sufficient time had been allowed, and
consequendy that the rate was valid.
Time of In R. V. Tke Commissary of Winchester, 7 East, 574, it was

^idhf ^r ^®^^' ^^^^ where there is a custom to determine the period of pol-
a^custom? Ung the custom must be abided by, provided such a time be rea-
sonable. It was also said that the electors cannot abridge the
time. It is conceived, however, that few ancient customs, though
reasonable at the time they were established, would suit the in-
creased numbers of some of our populous parishes.

V«ttrp^ 879

Election by show of hands^ as has been noticed beforei aniCt Clectums
624y is a rude and imperfect mode of election ; and where two or

ID.

more candidates are put up together, such a mode of election b By show of
impracticable and illegal. Cowp. 589. In Campbell t. Maundy ^°^
1 Nev. ^ Per. SGif^ Alderson, B., said, " it appears that Maund
and Hobbs were put up together, and Goodhind and Hill toge-
ther, suppose a person to be desirous to vote for Hobbs and
Goodhind he could not do it, whereas by a poll he could. So
also a show of hands would be no criterion of the number of votes
under 58 Geo* 3, c. 69, which gives to voters a plurality of votes
in proportion to the amount of their assessment. 7 Ad. Sf Ell*
259. An election by show of hands alone, therefore, is necessarily
inconsistent with the allowance of a plurality of votes in any one
person. 1 Nev. ^ Per. 571, and vid. 2 Net. S^Mann. 464.

It is no valid objection to the proceedings at an election that
the chairman directed a poll without first ti£ing a show of hands,
although a show of hands was demanded, and a poll not de-
manded, but objected to. 7 Ad. Is Ell. 254. Nor is there any
objection to a person not present at the show of hands voting
afterwards, if a poll be granted. 5 Ad. ^ Ell. 874.

As select vestries have their origin in custom, questions have Select.
occasionally arisen upon the existence or validity of these cus- By custom.
toms upon which they are founded.

In Golding v. Fenn, 7 B. ^ C. 765 ; 1 Man. & By. 647, it
was held that a custom that there should be a select vestry of
an indefinite number of persons continued by the election of
new members by such select vestry, and not by the parishioners
at large, was not an unreasonable custom, and consequently not
invalid. But the court intimated an opinion, that it must be
assumed as an ingredient in such custom, that the number,
although undefined, should always bear a reasonable proportion
to long established usage, and the population of the parish, for
that a number which might not have been too small three or
four centuries ago, might become unreasonably limited, when
by a change of circumstances, population had increased an
hundred fold.

Customs, moreover, must not only be reasonable, but they
must be continued and acted upon. Thus, in the above case, it
appeared, that in the year 1662, forty-nine persons, together
with the vicar and churchwardens, were named as a select vestry
by a faculty : and that number was to be kept up by elections,
to be made by ten at least of the finrty-nine, with the vicar and
churchwardens ; in 1678 this number of ten was reduced to
seven, and these faculties were acted upon ever afterwards.
It was held that the custom had not been abandoned and des-
troyed ; because, in the first place, these faculties, though acted

880 Vttftrp.

Select. upon, had no validity in law ; and next, if appeared that ten
Bycuitom. out of the fourteen vestrymen who were present at the vestry
meeting, holden immediately before the prondulgation of the first
facultyi were part of the forty-nine named in mat faculty ; and
lastly, the vestry, as appointed by the faculty, and as it had
since continued, was not inconsistent with the vestry previously
existing by the custom.

The legality of a select vestry may, it seems, be tried inci-
dentally in the ecclesiastical courts. As in cases of substraction
of church rate, the court having jurisdiction of the subject^
matter, is bound, unless stopped by prohibition, to proceed to
try the legality of the select vestrv by which the rate was made,
and it must be a prohibition in the particular suit ; for if other
parties have been stopped by prohibiticm, this will not authorise
the court to refrain to proceed with the cause. Gaodall v. Gray^
H Hag* S69. But the proper tribunal is a court of law, that
being the proper forum to try the validity of customs, ante, 7£1,
7S7 ; and prescription and immemorial usage seem to be the
only basis of a select vestry. Lulw. IQZI.
Select. A select vestry for the management of parochial affairB

By statute, existing by ancient custom, cannot elect anotner select vestry
for the management of the poor within the 59 G^o. 3, c. 1£;
4tB.%A. 607.

By the act of the lOM of Anne ^ c. 11, for building fifty new
In London, churches in the city of London, it was enacted by «. SO, that five
bylOAnne. or more of the commissioners appointed by that act, with the
consent of the bishop or ordinary of the place, shall appoint a
convenient number of sufficient inhabitants of each new parish
created by the act, to be vestrymen; and from time to time,
upon the death, removal of any such vestrymen, the rest or
majority of these may choose another, being an inhabitant or
householder in the parish.
Under By 59 Gco. 8, c. 134, «. SO, it is provided, that in every dis-

b*^M^ trict, parish, or division of a narisn or district, chapel^ or
Acu. ^ consolidated chapelry, in whicn any church or chapel shall be
built, acquired or appropriated, under the 58 Geo. 3, c. 45, or
the 59 Geo. 3, c. 134, in which there shall not be a district
vestry, a select vestry of so many persons as the eommissioners
for building churches, oni^, 194 shall direct, shall be appointed
by the commissioners, with the advice of the bbhop out of the
substantial inhabitants for the care and management iff tie
church or chapel^ and all matters relating thereto. Such select
vestry shall annually elect the church or chapel-wardens on the
part of the parish or chapelry, ante, S34 ; and shall elect new
members of the vestry as vacancies shall arise, by death, resig-
nation or ceasing to inhabit the parish.

WttAX^. 881

by 3 Geo. 4» c. 7^, it is however enacted^ that all members of Select
the select vestry of the original church or chapel residing in under
such district or division, shall continue to act as the vestry of church
such district or division in all matters relating to such church l>^*id<°S
or chapel, and the repairs thereof, or to other ecclesiastical ^^
matters or things, or in the distribution of any proportion of
any bequests, gifts or charities which may (under the later act)
be assigned to any such district or division. If by reason of a
division of a parish, a sufficient number of such members of
select vestry shall not remain resident in the division within
which the original church or chapel shall be situate, according
to the proportion fixed by the commissioners, (regard being had
to the population of such division, and its relative population
to the whole parish) all such deficiencies are to be filled up as
vacancies have before been filled up therein. But no person is
to vote in supplying such deficiencies unless resident within the
division for which the members are to be chosen ; nor are the
persons chosen to be members of the vestry for any other pur-
pose tlian, such as relate to the division for which they shall be
chosen, or for the distribution of cliaritable gifts therein : pro-
vided, that all other members of the select vestry of any such
parish, &c. resident in any other division shall be members of
such vestries as shall be appointed under the acts for the divi-
sions in which they shall reside.

Notwithstanding words in the 3 Oeo, 4, c. 7^, s. 10, leading to
a different conclusion, it has been held that a select vestry,
appointed under the provisions of the above acts, has not a
power to impose a rate for the repair of the district church.
Cockbum v. Harvey, 2B.% Ad^ 797.

Besides the above provisions under the general church build- By local
ing acts^ there have been several local statutes for the building acts,
of churches^ and for the regulation of parochial affairs, in par-
ticular places or parishes in which provision has been made for
the appointment of select vestries.

It would be impossible to give a summary of the various pro*
visions made by these acts, which usually have been made to
depend upon local circumstances, and the particular views of
their framers and promoters^

For the provisions of some of them, and the decisions upon
them, vid* R. v. Martin, 2 Campb* 100 ; In re St* Giles and
St. George, 1 DowL 540. R. v. St. Pancras, 1 Ad. % EU. 80;
3 Nev. if Mann. 4^5. R. v. ClerkenweU, Nev. 4r Mann. R.y*
Kensington, ZB.S^Ad. 740.

A new description of vestry has been introduced by the Under i &
1*2 Wm.4f,c.60, known as Sir J. Hobhouses Act, which is l^^^^'
entitled, " An Act for the better regulation of vestries, and for
the appointment of auditors of accounts in certain parishes in

L L L

882

select.

Under
1&2W.4,
c. GO.

Act, how
adopted.

Notice.

Votew.

Mode of
Toting.

England and Wales," This act, as the hmiied terms of its title
import, is not of general application ; it is only operative in snch

Earishes as have determined, in the particular mode pointed out
y the act itself, to adopt its provisions; neither can the provi-
sions of the act be adopted by any parish deairotn to do so, for
though it is enacted by the first section, '* that this act and the
several provisions thereof shall apply to, and may be adopted,
under, and subject to the regulations herein contained, by oay
parish ot parishes in England and Wales;*' and by the second
section, that " when in any parish certain of the rate payers
thereof may desire that the said parish should come under the
operation of the act, one-fifth of <he rate-payers may proceed
to require that the question, whether the act should be adopted
or not, shall be decided by the votes of the parishioners;*' yet at
the end of the act a restrictive clause has been introduced,
s. 43, by which it is provided, that nothing in the act shall ex-
tend to any parish not being within or part of any city or town,
in which parish there shall not be a greater number than 800
persons rated as hovseholders^ and having paid the rates for the
relief of the poor within the year preceding that, in which the
provisions of the act may be desired to be put in execution in
such parish.

The first ten sections of the act point out the mode in whidi a
parish, wishing to adopt it, is to proceed for that purpose; the
remainder show how a parish, having adopted it, is to act under it.

By s. 2. One-fifth at least of the rate-payers, or any number
amounting at least to fifty, between the 1st of December and
the Ist of March, are to deliver a requisition, signed by them,
and describing their residences to the churchwardens, or one of
them serving for the parish, requiring them to ascertain in the
manner directed by the act, whether a majority of the parish-
ioners wish and require the act to be adopted ; (a /arm of re-
quisition, which may be used, is inserted.)

By s, S. The churchwardens on the first Sunday in Mttrch
next after the receipt of such requisition, are to aflix a notice
on the principal doors of every church and chapel, specifying
some day, not later than twenty-one days after such Sunday, at
what time and place within the parish the rate-payers are re-
quired to signify their votes for and against the adoption of the
act ; {a form of notice, which shall be given, is inserted •}

By s. 7. No person shall be deemed a rate-payer and be enti-
tled to vote, or do any matter or thing under the act, unless
rated to the poor for one year preceding his voting, and has
paid all rates, &c., except those due within six months prece-
ding his voting. There is no mode of voting express^ and
directly prescribed by the act, but the form of notice to be given
by the churchwardens requires the rate-payers ''to signify their

Vtittrp* 683

voles by a declaration, either printed or written, or partly printed Select.
and partly written, addressed and delivered to one of the under
churchwardens, and by s. 4, Vijorm of such declaration is inserted, l & 2 w. 4,

By «. 8. The votes are to be received on three successive ^* ^^*
days, commencing at 8 a.m., and ending at 4 p.m. on each day.

By tf« 5* The murchwardens shall carefully examine the votes Church-
delivered, and compare them with the last poor-rate, and be ^^^ens to
empowered to call before them and examine any parish officer ^^hetherthe
touching the said votes, or any rate-payer so giving his vote ; voteearem
and after a full and fair summing up of the said votes, shall, by ^p^^, of
public notice according to the form and manner diereinafter pre* fy^^^tf
scribed, declare whether or not two-thirds of the votes given,
have been given in favour of the adoption of the said act: nro-
vided always, that the whole number of persons voting shall be
a clear majority of the rate*payers of the parish : provided also*
that the adoption or non-adoption of this act shall be decided
by such number of votes as aroresaid.

By s. 6. Any of the rate-payers, not exceeding five, together Rate-pay-
at, or in the vestry room, or in somex!onvenient place within the «" "*y ™'
same parish, are empowered to inspect the votes given for and '^
against the adoption of the act, at all seasonable times within
one month after such notice shall have been given ; and the
churchwardens are required carefully to preserve the said votes,
and freely to permit the examination thereof by the rate-payers,
at such seasonable times within the said period.

By s* 8. Notice of the adoption of this act is to be forthwith Kotioe of
given by the churchwardens for the time being in the London adoption of
Gazette, and in one or more of the public newspapers circu- * **^
lating in the county in which the said parish may be situated,
and by affixing a notice of the same to the principal doors of
every church and chapel within the said parish ; such notice to
be to the following effect :

' Parish of [here insert name of parish.]

' Notice is hereby given, that the above-named parish has
adopted the Act of the second year of the reign of King Wil^
Ham the Fourth, chapter , intituled, An Act [here insert

the title of the Act] ; and that the numbers of the majority and
minority of votes given for and against the adoption of the said
Act, are as follows ; that is to say, votes for the adop-

tion thereof, and votes against the adoption thereof.

Dated this day of in the year of our Lord.

(Signed) Churchwardens, (a)

(a) There seems to be some incongruity in this part of the act, by
5. 5, the churchwardens are required " to declare whether or not two-
thirds of the votes given have been gi^en in &vour of the adoption of

L L L 2

8S4 »rttr|r .

Sc^gc^ By «. 9. If the rate-payers decide agalast adopting the act,

Under HO similar requisition is to be given within three years*
1 &2 w. 4, ^ By s. 10. When the above notice has been given the act shall
^* immediately become law for the election of vestrymen and

auditors, as provided by the act.
Elections of If s parisii determines to adopt the act, the following sections
vestrymen, contain provisions for the election of persons to serve as ves-
trymen and auditors.
Elections By s, 22. An annual election of vestrymen and auditors is to
annua]. take place in May every year ; if a ballot is demanded, it shall
commence on the following day, and last for three successive
days, beginning at 8 a. m., and ending at 4 p. m. each day.
Day of The day on which the election is to commence is to be fixed

election. the first year by the churchwardens, and in subsequent years by

the vestry.
Division of If the parish be divided into districts for ecclesiastical or other
parishes, purposes, votes are to be taken in each district. In the case of
It. V. St. Pancras, 3 Nev. % Mann. 4S5 ; lAd.Sf Ell. 80, it was
held that a parish was not to be considered as so divided where
a small portion of it b annexed to a chapelry, created in an
adjoining parish ; .or where the parish has for the convenience
of collecting the poor rates been divided into four districts,
which districts have been adopted by the returning oflicer of a
parliamentary borough, within which the parish is situate, for
the purpose of taking the poll at an election of members to par-
liament.
Vestrymen, By s. 23. The vcstry is to consist of resident householders
^°d T°^* proportioned to the population of the parish.
an w 0 to j^ ^1^ rated householders shall not exceed 1000, there are to

be \2 vestrymen.
Number of If they exceed 1600, 84 vestrymen.

vestrymen. If they exceed 2000, 36 vestrymen, and so on in porportion',
12 vestrymen being allotted for every 1000 rated househ<^ders.

ihe said act ;" but the form of notice in s. 8, only directs the nvaiben
of votes on each side to be given, from whence it must doubtless ^pear
whether two-thirds have in fact voted for the adoption ; b^t still the
notice does not in form follow out the enactment of t. 5, which xequxres
it to be stated as a £su;t, that two-thirds have voted for the adoption d
the act. Again, in s. 6, the power of inspecting the votes, is g;iTea
'^ within one month afler such notice shall have been givoi,*' such
notice must refer to the last-mentioned notice in 9. 5, with r^ard to
which, «. 10 enacts, " that in any parish in which public notice of the
adoption of the act shall have been given, this act shall Mtmei&slWf?
become the law for electing vestrymen.'* The power of scradnjf a UKHith
after this act has become the law of the parish seems futile, eapeciaDy
as no' power of remedying a wrongfbl election seems t» be givciu

WtJttrp, 885

In no case are the vestrymen to exceed 120. Selecu

Where a greater number is fixed by a special act of parlia^ Under
ment than is albwed by this act, such number to continue as ^^^'^
fixed by such special act« ^'

The rector^ district rectors, vicar, perpetual curate, vicar and Rectors,
churchwardens, to constitute a part of the vestry, and vote ^^'' ™*y
therein, in addition to the vestrymen elected under the act;
provided that no more than one rector, &c. or other such
mimster^ from any one parish or ecclesiastical district, shall ex
officio be a part of, or vote at such vestry.

By a, 24. At the first election, one-third of the then existing Vestrymen
vestry, or the nearest number thereto, but not exceeding the same, *^^ ^^^^^
shall retire from office, such portion to be determined by lot. ^ ^' *°

At the second election one-half, as near as may be, of the elected at
first aforesaid vestry shall retire from office, such portion also to ^^® ^^."^
be determined by lot. tions! ^"

At the third annual election, the last remaining portion of the
vestry shall retire, in each ease respectively the parishioners
duly qualified shall eleet the same number of members as have
retired from office.

In R. V. St. Pancras, S Nev. ^ Man. 425 ; 1 Ad. & EU. 80,
it was held that the number lotted out at the first election, is
one-third of those vestrymen who were at the time of the election
in actual existence ; at the second election, half the remaininsr
original vestrymen; at the third, all the remaining origind
vestrymen.

By s. 25. At all subsequent elections the vestrymen who have
been three years in office are to go out, and the parishioners are
to elect other vestrymen, to the number of one-third of the total
number of which the vestry consists, and also to fill up all
vacancies.

Vestrymen who go out ki rotation may be re-elected.

The act further requires that the persons to be elected
vestrymen should have a particular qualification, which qualifi-
cation must be perfeet at the time of election. 1 Ad. ^ EU. 80.

There are two rates of qualification, one for parishes which Vestrymen
are not within the metropolitan police district, or city of London ; *« ^
the other for parishes within that district or city, or parishes Q*^.g'^
%¥hich have 3000 resident householders therein. ^^ ^^

In the former case, by s. 26, the being rated to the poor upon
a rental of not less than £10 per annum.

In the latter, the being rated on a rental of not less than
iC40, are the respective qualifications required.

It is worthy ot notice that in the former class of parishes ^t is
a sufficient qualification for a vestryman, if he occupies a house,
lands y tenements, or hereditaments, within the parish, rated at a

886 Wti^rp.

Meet £10 rental. In the latter class a vestryman most be a reMeni

Under householder rated at a £40 rental.

1 &2 W.4, In the latter class of parishes^ however, it has been held, iL

«• ^- V. Si. Pancras, 3 Nev. ^ Man. 425 ; I Ad. % EU. 80; that
though to be qualified as a vestryman a person must be a
resident householder, it is not necessary that his rating should
be for the house which he occupies; he may have a house
for which he is rated at a rental of £80, and land at another
£20, or it is enough if he be rated for part which he does not
occupy ; it is no matter how he is rated, if the whole together
amount to the rental required.

Electbn, By $, 13. It is enacted, that on some Sunday twenty-one days

notice of. previous to the annual election, notice shall be affixed on the
principal doors of all churches and chapels, and at other usual
places, signed by the churchwardens, fixing the day and placse for
the election.

(A form of notice is inserted in the act.)

Voters. The act then proceeds to provide for the election of vestrymen

and auditors, they are to be elected by the parishioners who
have been rated for one year, and who, by «. 7, ante 882, have
paid all their rates, except such as have been made and become
due within six months immediately preceding such vote; the
mode of election is by ballot.

The parishioners who are, and have been rated for one year,
are in the first place to nominate four inspectors of votes, and
the churchwardens are to nominate four other such inspectors:
and after such nomination the said parishioners are to proceed
to the election of persons proposed for the offices of vestrymen
and auditors.

The chairman at such meeting is to declare the names of the
parishioners who have been elected by a majority of votes, (a)
The election here contemplated must be, it would seem, an
election by show of hands, because by the next, the loth
section, it is provided, that any five rate-payers may then and
there, in writing or otherwise, demand a poll to be taken by

Ballot. ballot ; in case of a ballot every rate-payer is to deliver two
folded papers to the inspectors, one containing the names of
persons whom he votes for as vestrymen, the other the names
of those he votes for as auditors; each rate*payer to have one
vote for vestrymen and one for auditors.

By s. 13. The churchwardens may summon the rate collectors

(a) By B. 30. Directions are given for the election of a chairman ax
vestry meetings, but no provision is made for the election of a chairman
at election meetings.

Wtatrp. 887

to assist them in ascertaining that the persons presenting tliero* Select
selves to vote are duly qualified ; but there seems no power to Undor
compel the attendance of the rate collectors, nor fine nor penalty ^ ^ ^' ^'
for disobedience and non-attendance. °'

By «. 16. The inspectors are to deposit the folded lists,
without opening the same, in two separate lists of balloting
glasses or boxes.

The glasses or boxes to be dosed at the time fixed for the
termination of the voting, that is 4 p.m. of the last day of the
election.

By s. 17. At the close of the ballot the inspectors are to ex-
amine the votes, and if necessary, to continue the examination
four days, Sunday excepted.

By s, 18. In cases of equality of votes the inspectors are
to decide the election by lot.

By s. 20. Immediately after they have decided the election,
the inspectors are to deliver to the churchwardens, or one of
them serving for the parish, a list of the persons chosen
vestrymen ; such list and a copy thereof (^y. copies) to be affixed
on the doors of the churches and chapels and other places
chosen for the purposes of public notices, (a)

By s. 11. Churchwardens refusing to call meetings upon Punish-
requisitions for the adoption of the act; or refusing or neglecting mcnts and
to give notices and declarations ; altering, falsifying, concealing, ^^^ ^^
or suppressing votes, guilty of a misdemeanor.

By s. 19. Persons forging or falsifying voting papers, or by
contrivance attempting to obstruct or prevent such mode of
election are subject, on conviction before two justices, to a penalty
of not less than £10, nor more than £50, half to the informer
and half to the poor of such parish ; in default of payment to be
imprisoned, not more than six nor less than three months.

By s. 21. Inspectors wilfully making, or causing to be made,
an incorrect return of votes are liable on conviction before two
justices to a penalty not less than £^5, nor more than £50.

Sec. S7 enacts, that such vestry shall exercise the powers and
privileges held by any vestry then existing in such parish ; and
the authority of such vestrv may be pleaded before justices of
the peace or in any court of law, " in regard to all parochial
property, or monies due, or holdings or contracts, or other

(a) Sec, 12 requires notices of election to be affixed, ''and at other
usual places** and vid. s. 42. In a case where some persons not en-
titled were elected, together with others who were entitled, and a man-
damus was applied for for a fresh election, treating the first as altogether
void. The court refused the writ, the election being good, except as to
the particular persons not qualified. 1 Ad, ^ EU. 80.

888

Wt^i

Select

Under
1&2W.4,
c. 60.

How many

to CODSti-

tute a
quorum.

Vestry
rooms.

Chainnan.

Vestry-
boolu.

Account-
book«.

Inspecting
or copying.

docuinents of the like nature, formerly under the control or in
the keeping of the said vestry of the said parish ; and aU parish
officers or boards, shall account to them in like manner as they
have accounted to the said vestry."

Provided that nothing shall alter or invalidate any local act
for the government of any parish by vestries, the management
of the poor by any board of guardians, &c« ; or for the due pro-
vision for divine worship, or maintenance of the officiating
clergy otherwise than is expressly enacted. Where a former act
imposed an oath to be taken by persons elected vestrymen,
which oath was inconsistent with the I ^ 2 fVm. 4, c. 60, it was
held not necessary for vestrymen under 1 ^ 2 Wm. 4, c. 60, to
take such oath, though the local act might not be repealed.
1 Ad. * Ell. 80.

Sec. 28. The power of the vestry may be exercised by the
majority, not less than five being present ; in a vestry consisting of
twelve or more elected vestrymen, and not exceeding twenty^three.

Nor less than seven present in a vestry, consisting of twenty-
four, and not exceeding thirty-five.

Nor less than nine present in a vestry, consisting of thirty-six
or upwards.

Sec. 29. If any vestry-room is not sufficiently commodious for
the meeting, it shall be held elsewhere within the parish or
place, but not in the church or chapel thereof.

Sec. 30. In the absence of the persons authorised by law or
custom to take the chair at festry-meetings, the members
present shall elect a chairman. By s. 23, ante 885, the rector,
district rectors, vicar, perpetual curate, and churchwardens, are
to constitute a part of the vestry in addition to the vestrymen
elected under the act.

Sec. 31. Vestry books are to be provided and proper entries
to be made therein, of the

Vestrymen who attend the respective meetings, and of the
orders and proceedings made or taken at such meetings.

Sec. 32. Books of accounts are also to be provided, in which
are to be entered true and regular accounts, of

All sums received and disbursed for, and on account of,
parochial purposes, and of the several articles and matters
which such sums have been received or disbursed.

By ss. 31 and 32, it is further provided, that such vestry and
account books shall be open, at all seasonable times, to the

Vestrymen, rate-payers, and creditors on the rates, who may
inspect or make copies or extracts therefrom, or firom any
part thereof, without fee or reward.

Any clerk, or person having custody thereof, refusing such
inspection, copying, or extracting, to forfeit £10 for each
such offence.

C^tdtcp. 889

Where i| parish was reeulated as to rates and disbursmnents Select
by a local act which regulated also the inspection of rates and ^^^
books; and afterwards such parish adopted the 1^2 Wm. 4, 1&3W.4,
c. 60y it was held that the above provisions did not apply to ^* ^*
such rates and disbursements, and that the parties having the
custody of the books could not be compelled to permit such
inspection and copying or extracting. 6 Nev. % Man. 600.

iSec. 33. Provides for the annual election of five rate-payers to Auditors,
be auditors ; and for the qualificlttions of persons to be elected
auditors.

Sec. 34. Prescribes the manner in which the half-yearly audits
of the parish accounts are to be conducted.

Sec. S5. Gives power to the auditors to call before them the Accounts.
vestry clerk^ the parish officers, and any other persons whaU
soever, concerned in the parish accounts, and to require them
to bring with them all books and papers which may concern the
accounts, and to give information concerning the particulars of
such accounts ; any parish officer or other person refusing to
attend, or otherwise obstructing the purposes of such inquiry, to
be guilty of a misdemeanor. Trustees under a local act for
building a new church, with power to make rates for that pur-
pose, are liable to account before the auditors, though the local
act requires the trustees to keep accounts and lay them before
the sessions. R. v. St. Pancras, 5 Nev. 4r Man. ^23 ; 6 Ad. %
Ell. S2L

Sec. 36. The accounts, when audited and approved, to be
signed by the auditors in presence of the vestry clerk, who is
also to affix his signature.

Sec. 37. The accounts, when signed, to remain at the office of
the vestry clerk, open and accessible at all seasonable tim^s to
any rate payer or creditor on the rates.

Sec. 38. Within fourteen days after the accounts have been Abttraetof.
audited, an abstract of them is to be made out by the vestry,
either in print or in writing, and a copy is to be delivered to
any rate payer applying for the same, at the price of 1«.

Sec. 39. The vestry is to cause to be made out at least once m ^ut of
each year, " a list of the several freehold, copyhold, and lease- cbaniab\«i
hold estates, and of all charitable foundations and bequests, it fouudauon.
any, belonging to the parish, and under the control of the sai
vestry ; the said list to contain a true and detailed account oi
the place where such estate may be situate, or in what moUe a ^
security such bequest may be invested ; specifying ^^ f.
yearly rental of each, and the particular appropriation t e ^^^^^
together with the names of the persons partaking o poor
benefit, (except where such benefit shall be allotted to /^[J^
of the parish generally), and to what amount in eacn ? * ^^^i^
also stating the name and descriptions of persons m ^

890

Wtatrp*

Select.

Under
1&2W.4,
c. 60.

SaTin^ of
ecclesias-
tical juris-
diction*

estates are vested, and the names and descriptions of the trustees
for each charity. Provided that the aforesaid list shall be open
for the inspection of the rate-payers at the oflSce of the vestry
clerki at the same time with the accounts when audited, accord-
ing to the provisions of the act."

Sec.^ 40. Saves all ecclesiastical jurisdiction, and enacts that
" nothing in the act shall be construed to extend to avoid any
ecclesiastical law or constitution of the church of England, save
so far as concerns the appointment of vestries ; or to destroy any
of the rights or powers belonging to the archbishops, bishops,
deans, or other of the clergy of the established church, either
as individuals or as corporate bodies ; or in any wise to abridge
or control their ordinary jurisdiction over, or relating to, any
matter or thing respecting the ministers thereof."

■■■■

Witwc anti ^^tcarajje*

Sinecures.

Al vicar, vicarius, is one that hath spiritual promotion or living
under the parson, and is so denominated as officiating ince efug
in his place or stead. 4 Bum's Ecc. X. 12.

A vicarage is a cantel or portion of a rectory set out by the
patron, parson, and ordinary, for the maintenance of a perpetual
vicar, who as vicegerent of the parson, hath the cure of souls
within the parish where he is vicar* Degge^ 190; Year Book,
40 Ed. 3, pi. 27 ; Cro. Jac. 516.

Vicarage, by endowment, becomes a benefice distinct from
the parsonage. As the vicar is endowed with separate revenues,
and is now enabled by the law to recover his temporal rights,
without aid of parson or patron, so hath he the whole core of
souls transferred to him, by institution from the bishop ; the
chief consideration for assigning of a perpetual endowment to
a residing presbyter, being the perpetual discharge of the cure
of souls. It is true, in some places, both the parson and the
vicar receive institution from the bishop to the same church, as
it is in the case of sine-cures, the original of which was thus : —

The rector (with a proper consent) had a power to entitle a
vicar in his church, to officiate under him, and this was often
done ; and by this means two persons were instituted to the
same church, and both to the cure of souls, and both did ac-
tually officiate. So that, however, the rectors of sine-cures, by
having been long excused from residence, are in common opinion

Wim ani WitKv&ttt. 89 1

discharged from the cure of souls, (which is the reason of the Sinecures,
name,] and, however, the cure is said in the law books to be in
them /labitualiter only, yet in strictness of law, and with regard
to the original institution of them, the cure is in them actucUiteVt
as much as it in the vicar. Indeed, where a rector or vicar is
non-resident, and the ordinary appoints a curate^ and daring
such non-residence, transfers upon him the cure of souls ; in
that case it may properly enough be said, that the cura anima-'
rum is in the rector or vicar habitualiier^ and in the curate
aciualiter, because the discharge, in the nature of it, is only
temporary. Whereas, in other cases, the first sort of discharge
in the nature and reason of it, is evidently perpetual, and the
second sort is no discharge at all. Gibs. Cod. 753 ; Cro* Jac.
518.

Vicarages, though duly created, might be dissolved. In a yicarago
case where it appeared that the appropriation had been made in may be
the reign of king John^ and so continued till Henry the 6th ; dissolved.
when upon the prior's petition to the pope, in regard the priory
was poor, the pope granted by his bulls, quod de ccetero, the
prior should appoint one of his monks to officiate, who should be
removable ad nutum prions ; it was held to be a good dissolu-
tion, because the appropriation having been made before the
statutes 15 Ric, 2, and 4 Hen. 4, was not within those statutes,
Cro.Jac. 514; 2 Rolle, 97; Palm, 113; but Gibson observes,
that this seems by no means reconcileable with the disabling
statute of 13 Eliz, c. 10, made against the granting or conveying
way the possessions of vicars as well as others, in any other
mode than as that statute directs. Gibs. Cod. 754 ; ante, 56.

In the case of Robinson vicar of KimboUon v. Bedel, Cro.
EUm. 873, it was held, that though a vicarage is taken out of a
parsonage, and for the poverty and necessity thereof may be
dissolved, and re-united to the parsonage, yet the not present-
ing for one hundred and sixty years, which is the default of the
parson himself, does not amount to presumptive evidence of the
discontinuance of the vicarage, and its re-union with the rectory ;
but something beyond that ought to be shown of the re-uniting
thereof; and vid. Gibs. Cod. 754.

Ordinarily speaking, a vioaraae is a part or portion of the par-
sonage allotted to the vicar for his maintenance and support, (a)

(a) Endowments of vicarages were for the most part made upon the
appropriating of churches to religious houses, &c., and upon the appro-
priation, they did usually assign some small portion of the rectory, to
maintain a perpetual vicar to serve the cure, and took the rest to the
use of abbies, &c. And the vicar was so called, as being viee recUms,

®®2 5^ifar anil Olrarasr.

This part or portion is, in aome parishes, a sum certain ; but,
most generally, that part of the tithes which is called " small
tithes." In some places the vicar has a portion of the sreat
tithes and of the glebe ; when that is the case, it is called a
vicarage endowed. Vicarage lands occupied by the vicar do in
some places pay no tithe to the parson. Godot. Abr. 197.

The parson, and not the patron of the parsonage, of common
right, is patron of the vicarage, for that it is derived out of the
parsonage. If there be a vicar and parson appropriate, the or-
dinary and parson appropriate, may, in time of vacation of the
vicarage, re-unite the vicarage to the parsonage. GodoL Abr,
199 ; Degge, 162; 2 RoU. Abr. 59.

Vicarages were, at an early period, considered as independent
benefices, for by 13 Ed. 1, c. 5, s. 4, it was enacted, that writs
of right of advowson, quare impedit and darrein presentment

there being no rector to serve the cure. But in process of time the
abbots, &c., grew better husbands, and took the whble rectories to them-
selves, without endowing any vicar, and served the cures with their own
monks and friars, by which means hospitality was neglected, and the
churches and rectory houses dilapidated, and the minister often wanting.
Whereupon the statutes 15 Ric, 2, and 4 Hen, 4, were made for making
void such appropriations of vicarages as were made without competent
endowment, and likewise against such appropriations. Degge, \6\\
AyUffe Parer. 510 ; ante 56, 57 «.

The original institution of vicarages was with less scandal to the
church, and with lighter oppression to the clergy, because founded on
condition that the cure should be effectually supplied, and the vicar
able to live in good repute and plenty. Kenneth Case of Impropriations,
43 ; vide the history of their progressive increase. AyUffe Parer. 511 ;
Spelman on Tithes, 153.

This ancient state of vicarages was again the more tolerable, because
there was not only a sufficient portion for the vicar ; but there was a
power lodged in the bishop to augment that portion, whenever it ap-
peared to be insufficient. This power by original right was in the
bishops, because, as the canonists confess, the cure of souls within a
diocese, and the particular churches serving to that end, were de jure
communi in the bishop, and it was by his special indulgence that tithes
and offerings were assigned to other uses, on condition of providing for
the parochial cure ; and, therefore, if that condition were neglected, the
tithes would return to common right, i, e, into the hands of the bialiop,
to be by him restored, in due measure to their primary use, public
worship and the cure of souls. The English bishops received the com-
plaints of poor vicars, and made it an article of inquiry in their visita-
tions what vicars were oppressed. It is true, the greater monasteries did,
by exemption and appeals, frequently evade and deny this power of the

^icar aittt Q^trarag^. 893

should be granted to vicars, and by the 14 Ed. 3, c. 7, the writ
oi juris utrum was granted to them.

As to the beginning of vicarages^ vid. Gibs. Cod. 753;
Palm. 1 13,

There were no vicarages at common law ; in other words, no
tithes or profits of any kind do de jure belong to the vicar, but
by endowment or prescription, which cannot be presumed, but
must be shown by the vicar. For which reason payment of
tithes to the parson has been considered a sufficient discharge
against the vicar. Palm. 1 13 ; Gibs^ Cod. 753.

diocesan, and there is a:n original bull of Gregory the lOih^ directed to the
priors of Cray land and Leicester^ appointing them judges delegate to de-
termine the cause of the monks of Sempringham, who had formerly ap-
pealed to his holiness against the archbishop and archdeacon of York^
for attempting to augment the vicarages, within the churches appropri-
ated to them, against right, and to their illegal yezation. Kennet, 46.

To obviate such appeals, the bishops^ in their instruments of consent-
ing to appropriations, began to express the positive condition " uf saving
a competent portion for a vicar to be taxed and ordered by him in due
consideration to hospitality and other burdens, and afterward to be
moderated and augmented as should seem to the ordinary fit and proper/'
For, indeed, what was at one time a competence, might at another sink
into a deficiency, and, therefore, such reasonable allowance, to be made
for the alteration of times and value of things, was sometimes the special
cause and grounds upon which the bishop challenged his right of aug-
mentation. Kennetf 47.

The common law of the land, which in ecclesiastical matters was
founded in equity, and the custom of the church, did allow and enforce
this practice, the Year Books affirming that the ordinary may increase or
diminish the vicar's portion, 40 Ed, 3, pi, 15,/. 28 ; Degge, 163. And
for aught we find upon record, though this episcopal right was too often
evaded by resort to the sanctuary of the monks at Rome, yet it was
never questioned in any of our ecclesiastical or civil courts, before the
reformation, Kennet, 49 ; 2 Roll. Abr. 337 ; Gibs. Cod. 757 • AgL
Parer. 512.

Hfl

804

What.

Who to visit, and when.
Who visitable.
Duties at*
Procurations for.

In the common acceptadon of the term visitation, it denotes
the actor office of the bishop, or other ordinary, going his circuit
through his diocese or districty with a full power of inquiry into
such matters as relate to church government and discipline.
Ayliffe Parer, 614.

In all visitations the visitor may, it is appreh^ided, summon
and inquire of the clergy and churchwardens and sidesmen, who
are ecclesiastical officers, but other laymen he has do power to
summon. Godol Abr. 34,89; Gibs. Cod. 1000; Noy, 128.

By the canon law, an archbishop, who desires to visit his
province, ought, in the first place, to visit his own proper church,
city, or diocese, and the clergy thereof, in a full and ample
manner, and after he has visited his own proper diocese he may,
either in part or in the whole, visit all the cities and dioceses
within his province, and exercise his office of visitor,^{fre ardH-
nariOf over his suffragans and their subjects ; and if he cannot
conveniently, and without a great deal of difficulty, go to every
church and diocese within his province, he may call the clergy
and laity together from their places to some one convenieot
place.(«r) Ayliffe Purer. 515; Gibson says, there are many in-
stances in the ecclesiastical records, of papal di8pensati(»s for
archbishops to visit, without observing the above order, and of
episcopal licenses, for the visitor to begin in other parts of the
diocese than in the cathedral church. 4 Burn's E. L. 14.
Who to j),.^ Gibson observes, " that by the canon law visitations

when. were to be once a year; but that was intended of parochial
visitations, or a personal repairing to every church ; as appears
not only from the assignment of procurations, vid. post, bat
also by the indulgence where every church cannot be con*

(fl) All our bishops, taking the hint from this usage or custom, hare
since dropped parochial visitations, and do now only summon their
clergy to meet them at some convenient place within the rural deanery.
Ayliffe Par. b\6.

VisHtatixiiL 895

veniently repaired to, of calling together the clergy and laity ^^j^
from several parts unto one convenient place, that the visitation J[JJ**J^
of them may not be postponed. From this indulgence, and the ■

great extent of the dioceses, grew the custom of citing clergy
and people to attend visitations, at particular places ; the times
of which visitations, as they are now usually fixed about Easter
and Michaelmas, have evidently sprung from the two yearly
synods of the clergy, which the canons of the church required
to be held by every bishop about those two seasons, to consider
of the state of the church and religion, within the respective
dioceses ; an end that is also answered by the presentments that
are there made concerning the manners of the people ; as they
used to be made to the bishop at his visitation of every par-
ticular church. But as to parochial visitation, or the inspec-
tion into the fabrics, mansions, utensils, and ornaments of the
church, that care hath been long devolved upon the arch-
deacons ; who at their first institutions in the ancient church
were only to attend the bishops at their ordinations, and other
public services in the cathedral ; but being afterwards occasion-
ally employed by them in the exercise of jurisdiction, not onlv
the work of parochial visitation, but also the holding of general
synods or visitations, when the bishop did not visit, came by
degrees to be known and established branches of the archi-
diaconal office as such ; which by this means attained to the
dignity of ordinary, instead of delegated jurisdiction ; and by
these degrees came on the present practice of triennial visita-
tions by bishops; so as the bishop is not only not obliged
by law to visit annually, but (what is more) is restrained from it.
4 Bum's E. L. 16.

By a constitution of the Olhobon, concerning archdeacons, it
is ordained, that they visit the churches profitably and faithfully ^
by inquiring of the sacred vessels and vestments, and how the
service is performed, and generally of temporals and spirituals :
and what they shall find to want correction, that they correct
diligently. And when they visit, correct, or punish crimes, they
shall not presume to take anything of any one (save only mo-
derate procurations,) nor to give sentence against any persons
unjustly, whereby to extort money from them. For these
and such like things do savour of simony. This prohibition to
extort money was further enforced by a provincial constitution
of Archbishop Stratford^ which Lindwood ohsetveB obliged such
persons improperly enriching themselves, to assign their ill-
gotten gains to the reparation of the church under pain of sus-
pension. lAndw. 22i. By a constitution of Archbishop li^y-
nolds, it was enjoined that archdeacons and their officials, in
the visitation of churches, have a diligent regard to the fabric
of the church, and especially of the chancel, to see if they want

^^^ ^ repair ; and if they find any defects of that kind, limit a certain
when" ^™® under a penalty, within which they shall be repaired.

Lindwood observes, that from this constitution it might be

inferred that the archdeacon's official may visit, which he says
is not true, at least in his own right ; but he may do this in the
right of the archdeacon, when the archdeacon himself is hin-
dered. lAndw, 53.
Repairs. gy ^hg gg^^ Canon, it is directed that every dean, dean and

chapter, archdeacon and others, which have authority to hold
ecclesiastical visitations, by composition, law or prescription,
shall survey the churches of his or their jurisdiction, once in
every three years, in his own person, or cause the same to be
done; and shall, from time to time within the said three
years, certify defaulters to the high commissioners. Since the
making this Canon, the High Commission Court has been
abolished.
Who visit- Every spiritual person is visitable by the ordinary; so is a
*^le. dean de merojure, for he is spiritual. The ordinary hath also

power of correction of a parson ; and every hospital, be it lay or
spiritual, is visitable ; if it be lay, it is visitable by the patron,
or by such as he has appointed by the endowment to be visitors ;
if it be spiritual, it is visitable by the ordinary. GodoL Abr, 34.
If a man visits as patron or his appointee, and no appeal against
his decision is given by the deed of endowmentj his decision is
final, and though he deprive, there is no appeal ; if he visits as
ordinary then there is an appeal to his superior. 2 T. R. 3o3.
By composition, the Archbishop of Canterbury never visits the
diocese of London. 3 SaUc, 379.

During a visitation all inferior jurisdictions are inhibited' from

exercising jurisdiction, and even matters begun in the courts of

the inferior ordinary (whether contentious or voluntray,) before

the visitation of the superior, are afterwards to be carried on by

the authority of the superior. 4f Bum's Ecc, L, 16. However,

it has not been unusual, especially in metropolitan visitations,

to indulge the bishops and inferior courts, in the whole or in

part, in the exercise of jurisdiction, pending the visitation.

Bum, ibid.

Duties at. By the 137th Canon, it is enjoined, that forasmuch as a chief

BUhop^o^ and principal cause and use of visitation is, that the bishop,

obtain archdeacon, or others assigned to visit, may get some knowledge

knowledge of the State, sufficiency, and ability of the clergy, and other

clergy. persons whom they are to visit : We think it convenieat, that

every parson, vicar, curate, schoolmaster, or other person

licensed whosoever, do at the bishop's first visitation, or at the

Clergy to next visitation after his admission, show and exhibit unto him

exbibit let- (^{g letters of orders, institution and induction, and all other his

4it,°&c? dispensations, licenses or faculties whatsoever, to be by the said

^^teftattoh. 897

bishop either attotoed, or, (if there be just cause) disallowed and Datiea at
rejected ; and being by him approved, to be (as the custom is),
signed by the register ; and that the whole fees, accustomed to
be paid in the visitations in respect of the premises, be paid only
once in the whole time of every bishop, and qftenvards but half
of the said accustomed fees, in every other visitation during the
said bishop's continuance.

Gibson says, that none but the bishop, or other person exer-
cising ecclesiastical authority by commission from him, hath
right de jure communi to require these exhibits of the clergy ;
therefore, if any archdeacons require it, it must be on the foot
of custom. 4 Burns Ecc. L. 19.

By Canon 116, it is ordered, that no churchwarden, quest- Present-
man or sideman of any parish, shall be enforced to exhibit their '"^^^ °"^y

m f\W%t^Wk Vk VAST

presentments to any having ecclesiastical jurisdiction, above ^

once in every year, where it hath been no oftener used ; nor
above twice in every diocese whatsoever, except it be at the
bishop's visitation : provided always, that as good occasion shall
require, it shall be lawful for every minister, churchwardens and
sidemen, to present offenders as ofit as they shall think meet ;
and for these voluntary presentments no fee shall be taken.

In order to prevent any person from being presented more None to be
than once for the same offence, it is provided by Canon 121, P''*^"{,^jj
that where the bishop and archdeacon visit at several times in once for the
one and the same year ; least for the same fault any should be same of-
challenged in divers ecclesiastical courts, every archdeacon or 'ence.
his official, within one month after the visitation, and the pre-
sentments received, shall certify under his hand and seal, to the Present-
bishop or his chancellor, the names and crimes of all such as ^^g^^.
are presented in his said visitation, to the end the chancellor
shall forbear to convent any person for any cause so presented
to the archdeacon. And the chancellor, within the like time
after the bishop's visitation ended, and presentments received,
shall, under his hand and seal, signify to the archdeacon or his
official, the names and crimes of all such persons, which shall
be presented unto him in that visitation, to the same intent as
aforesaid. And if these officers shall not certify, as here pre-
scribed, or after such certificate shall intermeddle with the
crimes, or persons, presented in each other's visitation ; then
every of them so offending shall be suspended from all exercises
of his jurisdiction, by the bishop of the diocese, until he snail
repay the cost and expenses which the parties grieved have
been at by that vexation. *v»» n

One of the duties to be performed at visitations is, ^^^^^^ ""*'*!* _*l
churchwardens of parishes to make their presentments, ante^ \\i
The performance of this duty seems not to have been ^^^^^^
founded on any express Canon, but to have proceeded on t

M M M

898 ^iiitatimi^

Dutoat ground of cuBtom^ at length, however, it was enforced b; an
express Canon in the year 1571, and the presentraento were
required to be made on oath, which seems to have given rue to
contests between the ecclesiastical and temporal jurisdictioiu;
and it was charged upon the ordinaries, that diey inserted
divers things in their articles of visitation, which were not of
spiritual cognizance, and that by requiring on oath from the
churchwardens, to present according to those articles, they did
in consequence require them to tslce an oath, which by law
they could not and ought not to perform ; at length these con-
tests multiplying, an oath of general form was agreed on by the
civilians and common lawyers, by which, diurchwardens bound
themselves, instead of presenting such things as were contained
in the book of articles, to present such things, as to their know-
ledge were presentable by the laws ecclesiastical of this realip.
The oath, thus modelled, was allowed on two several occasions in
the court of King's Bench, and it was held that the church-
wardens could not legally refuse it. Gibs. Cod* 1001 ; SKek
136, 205; 1 Veni. 127} A^Offe Purer. 170.

By a constitution of archbishop lAington, archdeacons, in their
visitation, are to see that the offices of the church are duly ad-
ministered, and shall take an account in writing of all the orna-
ments and utensils of churches, and of the vestments and books,
and shall require them to be presented before them every year,
that they may see what has been added and what lost* Lcsdw.
50 ; Bum's Ecc. L. 17.
Procun- ^^ ^'' visitations of parochial churches made by bishons and
UoDs. archdeacons, the law hath provided that the charge tnereof

shall be answered by the procurations, then due and payable
by the inferior clergy ; these are not paid by any certain rule,
but by some ancient taxation ; and the word '' procuration" has
its derivation from the duty incumbent, on the party visited, in
'' procuring '* the necessary accommodatioiu Anciently tbe
religious houses and clergymen at their own charge entertained
the bishops and archdeacons in their visitations, but at lengdi
their attendants were so many, and their trains so great, that it
gave occasion to some general as well as provincial Canons and
Constitutions, in order to put some limit to this expense, bat,
in order to avoid it altogether, the religious houses and clergy
came to a composition, every one to pay a fixed and definite
sum to their visitors in order to be freed from so great an
oppression. This payment is made not onlv by such li?ings
as belong to the clergy, but also by those which are impropri-
ations, whether there be a vicarage endowed or not, for per-
petual curacies are visitable ; it is also saved by the statute
31 Hen, 8, and confirmed b^ the statute 34 Hen. 8, and renoedj
given them with costs, both m the spiritual court and at common

wmt&tion. 899

law. Degge, 288; Godol. Abr. 67; 1 P. Wms. 661. These Procura-
are payments called proxies, and it is said there are three sorts *'*'°*'
of procurations or proxies, raiiane etsitcUionis, consuetualinis et
pacii^ the first of which is of ecclesiastical cognisance, but that
the two last are triable at law. Hardr. 180. It is said, however,
that procurations are only suable in the spiritual court, being
merely an ecclesiastical duty. 1 Ld. Raym. 459 ; 1 P. Wms.
601.

If there be a parsonage and vicarage endowed, only one
is to pay procuration ; custom or the endowment is to determine
which. Donatives pay no procuration, not being within the
visitation of the ordinary ; nor free chapels for the same reason.
If there be a parsonage, with a chapel depending upon it, and
both in the parson's care, no procuration is to be paid for the
chapel. Degge, 2SS ; Godol. Abr. 70; Lindw. 223.

It is said, that churches newly erected shall be rated to
procurations, according to the proportion paid by neighbouring
churches. 4 Bum's Ecc. L. 31.

Bv the constitution of archbishop Stratford^ no procuration
shall be due without actual visiting, and if any visit more
churches than one in one day, he shall have but one procuration,
to be proportioned amongst the said churches. Lyndw. 228 ;
GodoL Abr. 70. A question has been raised whether those
archdeacons, who are not permitted to visit during the bishop's
triennial visitation, have a right to procurations for that year,
and some are of opinion that they have such right. 4 Bum's
Ecc. L. 30 ; and Godolphin says, by custom they do, and may
receive their procurations for the year of the episcopal triennial
visitations, he adds, however, understand this only, of some,
not of all, archdeacons. Abr. 169.

M M M Sv

900

mim.

Incapacities for making.

Idiotcy, insanity, &c.

Old age, infancy, &c.

Coverture, attainder, alienage.
Of wills by force or fraud.
Of the maJking and form.

Form before 1st January, 1838.
Imperfect papers.
Testamentary papers and codicils.
Nuncupative wills.

Form since 1st January, 1888.
Revocation.

Express by cancellation,, or othiarwiBe.
Kepublication..
Executors.

Probate.

In common form.
In solemn form.
Administration.

Who entitled to.

Different kinds of.

Bond.
Probate and administration.

In what court granted.

When revoked.
Executors and adnunistrators, who may not be.
Inventory,
Testamentary suits.

Idiots. A.N idiot or natural fool cannot at any time make a will or
testament, nor dispose of his lands or goods. S BL Comm^ r. SS.
It is said that an idiot is a person who cannot number twenty,
tell the days of the week, does not know his father or mother,
his own age, or the like. Bac, Abrid, " Idiot** A. Such a
definition of idiotcy, however, is obviously too limited. I Hakr
P. C. ^. Whether idiot, or not, is a question to be determmed
on the circumstances of each case.
Invanity. Every person is presumed to be sane until it has been shewn

<«) that he is insane ; and a party assuming to prove insanity, io

(a) When insanity is once established the presumption changes* fiir it
is then presumed that the party proved insme oontinoes (^nnsoond

nmm* SOI

order to Bet aside a will, is required to do so by clear and l^'^^-
satisfactory proofs, for it is a general principle of law that
the burthen of proof rests upon the party who attempts to
invalidate what purports to be a legal act. (a) 2 Hag. 434 ;
1 Hag. 113; 3 Hag. 542, 587, 598. Where a party died
insane, leaving a will, which upon the face of it exhibited
marks of insanity, the court, upon affidavits, and looking at the
paper itself, granted administration as in intestacy, but directed

mind, and the party setting up any instrument executed after insanity has
manifested itself, has the burthen of proof cast upon him ; he must shew
recovery, and he must not shew merely that the party, whose act is the
subject of inquiry, was restored to a state of calmness, and to the
ability of holding rational conversation on some topics, but that his
mind having shaken off the disease, had again become perfect, was
sound upon all subjects, and that no delusion remained. Groom v.
Thomas, 2 Hag. 434 ; 1 PhUl. 88, 100 ; 2 PhiU. 465 ; 3 Bro. C. C.
443; 9 Fes. 611.

(a) It was said by Sir J. NiehoUy in Marsh v. Tyrrell and Harding,
2 Hag. 122, " it is a great, but not an uncommon error to suppose, that
<* because a person can understand a question put to him, and can give
** a rational answer to such question he is of perfect sound mind, and is
'' capable of making a will for any purpose whatever, whereas the rule
'* of law, and it is the rule of common sense, is far otherwise ; the com-
*' petency of the mind must be judged by the nature of the act to be
*^ done, and from a consideration of all the circumstances of the case."
In Combe* s case, Moore^ 759, Vin. Abrid. Devise A, 22, the rule is laid
down in these words, it was agreed by all the judges that some
memory for the making a will is not at all times when the party can
answer to any thing with sense, but he ought to have judgment to
discern, and to be of perfect memory, otherwise the will is void. So
again in the Marquis of Winchester's case, 6 Rep. 23, " By the law it is
not sufficient that the testator be of memory when he makes his will
to answer £euniliar and usual questions, but he ought to have a dis-
posing memory, so as to be able to make a disposition of his estate
with understanding and reason. In the case of Wheeler and Bats*
ford V. Alderson, 3 Hag. 598, Sir J. NiehoU is reported to have said,
" It may be difficult, and perhaps would be dangerous to define, what is
** the essence of insanity : delusion has been generally laid down as
** essential, that is the fancying things to exist which can have no
** existence, and which fancy, no proof nor reasoning can reo^ove ;
'' others have said that insanity may exist without delusion ; whether
" this means, that it may exist where no delusion ever has prevailed, or
** only where you cannot call it forth on the particular occasion, is not
*' so clear : no case has ever come under my notice where insanity has
" been held to be established, v^thout any delusion ever having pre-
*' vailed," and vid. Dew v. Clarke, 3 Add. 19 ; Dr. Haggard's Rep.
5, 10, 11, 12; 5 RusseU, 166 ; 1 Hag. 372 ; 3 Hag. 545 ; ante, 552.

902 WLiSbS*

inganity. the paper to be left in the vestry, in order that any one
interested under it might propound it if they chose. 1 Cart.
591 ; ihid. 594; 1 Hag. £18 ; po9t, 908.
Lucid It is not necessary to shew a complete and permanent re-

bterval. covery, for if it can be shewn that the party afflicted habitually
by a malady of the mind, has intermissions, and if there was an
intermission of the disorder, at the time of the act, that
being proved, is suflScient, and the general habitual insanity will
not affect it ; but the effect is to invert the order of proof and
presumption. Cartwrighi v. Carttoright, 1 PAttf. 84, 100, 119;
2 PhiU. 465 ; 8 Bro. C. C. 441 ; ante, note (a). The disorder
may not be permanently, and altogether eradicated, it may only
intermit, it maybe liable to return, but if the mind is apparently
rational on all subjects, and no symptom of delusion can be
called forth on any subject, the disorder is for that time absent;
there is then an interval, if there be such a thing as a lucid in-
terval. It may often be difficult to prove a lucid interval, because
it is difficult to ascertain the absence of all delusion. S Hag.
599; 9 Ves.eil; 11 Ves. 11.

With regard to the proof necessary to establish the validity
of an act done during a lucid interval, it has been said, that
** it is scarcely possible to be too strongly impressed with the
ffreat degree of caution necessary to be observed in eicomiinQg
tne proof of a lucid interval ; but the law recognises acts done
during such an interval as valid, and the law must not be de-
feated by any overstrained demands of the proof of the act
Per Sir J. NichoU, White v. Driver, I PhiU. 88. (a)

(a) In considering the state of mind in which any act has been done
by a person whose capacity is questioned, much must depend upoo
the rationality of the act itself. In the case of Cartwrighly. Cartmri^
1 PkiU. 100, Sir W. Wynne said, "Now, I think, the stnmgeat and
" best proof that can arise, as to a lucid interval, is that which arises
" from the act itself ; that I look upon as the first thing to be examined,
*' and if it can be proved and established, that it is a rational act, latioii-
" ally done, the whole case is proved. What can you do more to esta-
" blish the act ? because, suppose you are able to shew the party did
'^ that which appears to be a rational act, and it is his own act enttn^T.
" nothing is left to presumption in order to prove a lucid interval/'
and vid. 2 Hag. 122 ; 1 Hag. 372 ; 1 Dow. P. C. 178. So also in
the case of Evans v. Knight and Moore, 1 Add. 237, Sir J. NiehoD
said, " Whero mental aberration is proved to have shewn itself in the
alleged testator, the degree of evidence necessary to substantiate anv
testamentary act, depends greatly on the character of the act itsel£
If it purports to give effect only to probable intentions, its validity
" may be established by comparatively slight evidence. But evideDce
very different in kind, and much weightier in degree, b requisite totkc

mmn* 903

It is not neoeasary to trace or connect the morbid imagination ip^ntT'
with the act itself. If the mind is u&sound the act is void. The Lucid
law avoids every act of the lunattc, during the period of the intenral.
lunacy, although the act to be avoided cannot be connected
with the influence of the insanity, and may be proper in itself.
2 Hag.4S6; nide oho S Hag. 6iS.

Where the deceased executed a will in June 1827, but
soon after, under an inquisition of lunacy, was found to have
been of unsound mind from April 18S6; and an intestacy was
sought; and it was prayed on motion that administration mi^ht
be granted, all parties consenting, except legatees for a lew
trifling sums ; the court refused it^ on the ground that the
will itself being regularly drawn and executed, and appa-
rently a sane will, it could not be set aside on mere ejc parte
a£Bdavits; the consent of. the parties interested proving noming,
for no person's consent could make a will no will. 1 Curt» 594.

In a previous case, administration had been granted, the will
in that case exhibiting marks of insanity, though there had been
no inquisition, but only affidavits of the testator's insanity.
Ibid. 691.

With regard to the proof of lucid intervals, a distinction has
been taken as to the comparative facility of proving them in the
case of delirium, as contra-distinguished from fixed mental
derangement or permanent insanity. In cases of permanent
insanity the proof of a lucid interval is a matter of extreme
difficulty, for this among other reasons, that the patient so
afiected is not unfrequently rational to all outward appearance,
without any real abatement of his malady ; so that in truth, and
in substance, he is just as insane in his apparently rational, as
he is in his visible raving fits. But the apparently rational in-
tervals of persons merely delirious, are for tne most part really
such. Delirium is a fluctuating state of mind, created by tem-
porary excitement, in the absence of which, to be ascertamea
by the appearance of the patient, the patient is most commonly

" support of an act, which purports to contain dispo*'^^^^^^ ^^ T^lly
*• the teatator's probable intentions, or savouring in any degree o y

" or phrensy," vid. also Swinburne, pL 2, a. 3. But the ^^^^Z^™"^^^^^
which the court looks, does not rest upon their accordancy wi n ^^^^
affection, and moral duty merely^ but on their accordancy wi 238.

tator's declarations as to the disposition of bis property. * nective
A man resident in an asylum, having a large family » fo'^ /makinir a
brandies of which, he, at different times, made provision, an gg^_

will in furtherance of purposes declared, -when he was *^^®', 1 47 •
blishcd. Coghlan'B case, 19 Fes. 60S -^ 1 PhiU. 120; 1 ^^' ** »
2 Hag, 142 ; 1 Curt. 594.

904 onm^*

Insanity, really sane. Hence also the probabilities " a priori^'* m fiivour
of a lucid interval^ are infinitely stronger in cases of delirium
than in cases of permanent proper insanity. Per Sir J. NichoUy
Brogden v. Brown, 2 Add. 445 ; 1 Hag. 158. One of the
strongest proofs of re-established faculties is the consciousness,
and admission of the party himself, that he has been disordered.
I Hag. 153,
ParUal The subject of partial insanity, or rather insanity directed to,

insanity. and resting upon, one particular object, has been much discussed
in the late case of Dew v. Clark, 1 Add. 279 ; S Add. 79 ; 5
Russell, 166, 167. By the term partial insanity, is not meant
that a person can be partially sane and insane at the same time;
for if the mind is partially unsound, it is wholly unsound, at
least upon the particular impression which distempers and dis-
tracts it, — in order to be sound, it must be wholly sound* In
the above case of Dew v. Clark, it was pleaded by an only child,
in opposition to her father's will, that, besides labouring under
mental perversion upon religious subjects, he had an insane
aversion to his daughter, and that it was under the influence of
illusion in that respect that he had disposed of his property.
Sir J. Nicholl in admitting this allegation, said, that the case
set up was one of partial insanity, or insanity quoad Aanc, and
that he thought under the authority of Greenwood's case, 3 AM.
96 ; 13 Ves. 89, if such a case were proved, it might invalidate
the will ; but he added, the daughter must understand, ** that
no course of harsh treatment, no sudden bursts of violence, no
display of unkind or unnatural feeling merely, can avail in proof
of her allegation, she can only prove it by making out a ease of an-
tipathy, clearly resolving itself into mental perversion, and clearly
evincing that the deceased was insane as to her, notwithstanding
his general sanity.*' Afterwards, upon giving judgment in thb
case, the learned judge said, " that the court did not come to its
conclusion against the will, because the testator had disinherited
his daughter, nor anything of the kind, but it had concluded the
deceased insane as to his daughter, generally speaking. It had
referred to the contents of the will, in order to ascertain whe-
ther such insanity was present to the mind of the deceased, and
in actual operation at the time of making his will, and finding it
to have been so present, and so in operation, the conclusion was
inevitable, that the deceased was of unsound mind at the time
when he made this will. Had the contents of the will furnished
a contrary inference, the conclusion upon this head, and so upon
the whole case, might have been different; the very contents of
the will would, in that case have inferred, that however par-
tially insane (insane on the subject of his danghter) the deceased
might have been, generally speaking, still that such partial in-
sanity was not present to his mind ; was not in actual operation

miosis 905

at the time of his making the will, in which event the will fiUghi Partial
have been valid. But the will propounded, virtually disinheriting '°"°"^'
the daughter, being the direct, unqualified offspring of that
morbid delusion, proved^ without any quaUfication or restriction,
to have been ever present to the mind of the deceased, as to
the character and conduct of his daughter, and being the very
creature of that morbid delusion put into act and energy, the
court cannot arrive at any other conclusion, than that Sie de-
ceased was insane at the time of hie making the will, and con-
sequently that that will itself is null and void in law.'*

Where there is no evidence of insanity at the time of giving Inanity
instructions for a will, neither suicide committed three days Jo ihl'^lS'**
after, nor subsequent insanity will invalidate the will. In the done* 1

case of Hoby v. Hobt/, 1 Hag. 150, Sir J. Nicholl remarked, — ^ 1

"It has been justly argued, that subsequent insanity reflects back
on previous eccentricities a semblance of an insane tendency
and character ; but it will not convert them into proofs of actual •

insanity already existing: they may be either symptoms of '

alternate derangement, or collateral accompaniments of existing 1

disease, if other acts decidedly insane could be shewn, but noit i

insanity per se*' Vide also Wheeler and Batsford v. Alderson,
8Hag.599i TuUochj. Allison, 3 Hag. 5U, 54G; 2Hag.252.
Where the capacity is doubtful at the time of execution, evi-
dence should be given of instructions or of reading over. 2 N. R.
4fl5; I PhiU. 193.

It is not necessary to go so far as to make a man absolutely Weakness
insane, in order to determine whether he was of sound and dis- of intellect,
posing mind, memory and understanding ;. a man perhaps may
not be insane, and yet not equal to the important act of disposing
of his property by will. 1 Cox's cases in Chan. 356.

Nor is it sufficient that the testator be of memory when he
maketh his will to answer familiar and useful questions^ but he
ought to have a disposing memory, so that he be able to make
disposition of his estate with understanding and reason, 6 Co.
USb.i 2PhiU.449.

But if a man be of mean understanding, neither of the wise
sort nor of the foolish, but indifferent, as it were betwixt a wise
roan and a fool, and though he incline to the foolish sort, such a
one is not prohibited to make a testament ; unless he be so very
simple and foolish as not to have so much wit as a child may
have, of ten or eleven years of age. Swinb. 80 ; 1 Hag, 214, 147^

In order to arrive at the true meaning of " imbecility of mind,
resort should be had to what the law describes as perfect caf^a-
city, which is most correctly found in the form of pleadings.
The averment is, that the testator was " of sound mind, memory
and understanding, talked and discoursed rationably and ^^^
sibly, and was fully capable of any rational act requiring thougUt^

906

VUb(«

Wetknets
of iatellect.

Drunken-

Physical
infinnities.

Old age.

Made t'li
extremis.

judgment and reflection." When all this can be piedicated of
the person bare execution is suflbnent, but if it cannot be truly
predicated, a deficiency of capacity exists, not necessarily how-
ever rendering the person intestable, but in proportion to the
degree of deficiency, requiring clearer and more direct proof of
the unbiassed testamentary intention. Ingram ▼. Wy^U^ 1 Hag*
401; 9 Add. S7l.

Under the restraint produced by the presence of formal
company, and a sense of being absurd, a person labouring ooder
considerable imbecility and some delusions, will pass as possesi-
ing a considerable degree of understanding ; just as a child, in
the presence of company, will appear very difierent from his
character when at play, and unrestrained ; thas evidence sa to
general conduct and deportment, and the cminion of a man's
capacity formed by witnesses who have casually met him when
under this species of restramt, weigh but little against the
facts proved as to behaviour when under no restraint. 1 Hag*
367, 418.

If a will be made whilst a man is in a stale of intoxication, it
is the same as if he were insane ; it is a temporary mania during
the continuance of which the brain cannot discharge its fuD^
tions, 8 H^^* 60S ; Swinb. 88 ; the inquiry in such a casCi
therefore, wul depend upon the atate and condition of the
party at the time of his giving instructions for, and signing the
will. 2 Add. 210 ; 1 PhiU. 191.

To the above may be added two other classes^ die one con-
sists of those who having had good understandings have been
deprived of them by sickness, grief, or accident, the other those
who have survived the period that Providnce has assigned Co
their capacities. 4 Rep. 1246; 12 Ves. 452; 19 Fet. 28&
These are not treated by Lord Cote as '^ Luaaticy' peraons
who have sometimes thoir understandings and sometimes not,
but as persons whose capacities are quite lost. Drunkards are
those who have become incapable bv their own act.

Age is an uncertain criterion of mental powers, for those
powers are often retained by persons to an advanced age in a
greater perfection, than they are by others many years less
advanced. The law allows a person at any age to make a wtll>
provided he retains the disposing faculties of his mind ; vei;
advanced age raises some doubt as to capacity, but only so far
as to excite the vigilance of the court. Kinleide v. Harrisim,
2 PhiU. 461 ; 1 Hag. 262, 511 ; 2 Hag. 142, 179, 224; 1 Yet^
juu. 19.

A will made tis extremis, and almost in articulo marlis, vsa)
be good, if its validity be established by sufficient evidence of
voUtion and capacity ; 1 Hag. S&7 ; 1 Lee, 130 ; but if the iacU
of the case present grounds for suspicion, evidence of volitioo

mm* 907

and capacity, nicontestible and incontrovertible as to its truth
and ettect, must be required, if the court intends to exercise a
proper vigilance, and guard with necessary jealousy the beds of
dying persons against fraud and circumvention. lHag,26ii,
3\0;2 hag. 189; 1 Add. 135; 2Add.368. Where a confused
paper was written tit exirenUs, probate was refused in common
form, especially as it affected minors, whose consent was not
sufficient. I Hag. 4T2 ; 2 Hag. 22^.

Formerly, persons deaf and dumb seem to have been deprived Deaf and
of almost all legal capacities. Fleia says, si naturaliier a no- *^""*^
tiviiaiesurdus/uerit auimutus^ adquirere non potest necaUenare,
quia non consentire^ lib. 6, c. 40 ; but it has been decided that
a woman deaf and dumb, who signified by signs that she under*
stood what she was doing, was allowed to levy a fine, Vin. Abrid.
JFine^ D. 10; so also, by signs and tokens they may declare
their testament. Sunnb. 95 ; 4 Bum. 59 b. Such as can speak
and cannot hear, may make their testaments as if they could
both speak and hear, whether that defect came by nature or
otherwise. Swinb. ibid. Such as be speechless only, and not
void of hearing, may make their wills by writing ; if they cannot
write, by signs, Swinb. ib.

Notwithstanding former opinions to the contrary, a blind man ^''°^-
may make a nuncupative will ; or in writing, provided the same
be read over before witnesses, and in their presence, the
testator acknowledges the same to be his will ; but if a writing
were delivered to the testator, and he not hearing the same
read, acknowledged it to be his will, this would not be suf-
ficient, for if the same were read, he might not acknowledge it.
Swinb. 96. The civil law expressly requires, that the will of a
blind man should be read over to him in the presence of all the
subscribing witnesses; but in England this is not requisite, if the
court is satisfied that the identical will was read over to him,
though not in their presence ; and the single oath of the writer
bas been allowed by the delegates, to prove the identity of
the will. 4 Bum's Ecc. L.60; 3 PhiU. 465, it. ; I PkiU. 191 ;
2 Lee^ 595. It bas been held not necessary to the validity
of a will of lands by a blind man, that it should be read over
to him in the presence of the attesting witnesses. 2 New Rqp.
415.

Similar precautions to those usual to authenticate the will of loabillty to
a blind man, seem applicable to the cases of such as cannot read.
read, rt«., that the court should be satisfied that he knew
and approved the contents of that which is called his will.
1 PhiU. 187.

Justinian fixes the testamentary age, and the age of puberty infanm.
alike ; in the male, at the age of fourteen, and in the female^ at

908

mmti.

Married
women.

Ip*^°^» twelve ; and the ecclesiastical law of England adopts Uie same
rule; as at those ages they might consent to marriage. S Vem,
469 ; Free, in Chan. 316. Co. Litt. 89 b. ; Hargr. note h. 8S ;
2 Shaw. 204; 11 Ves. 11; ante^ 551; and also choose their
guardians. 2 Lee^ 529.

But by 34 and 35 H. 8, c. 5, s. 14. No will of any manor,
lands, tenements or other hereditaments, by any person under
twenty-one, is effectual in law.

By custom, a will of lands before twenty-one may be good.
Godolph. Orph. Leg. 21 ; but no custom can enable a male
infant to make a wilt before he is fourteen. 4 Burn's Ecc*L.4S»

The law, however, is in this respect altered with regard to
wills made subsequently to the 1st January 1888. It being
enacted by 1 Vict. c. 26, s. 7, ** that no will made by any per-
son under the age of twenty-one years shall be valid.*'

A wife cannot make a testament of personalty without the
license and consent of her husband; 9 Ves. 380; 1 Add.5S;

1 Lee, 120; 2 Comm. 498; and if it were made before marriage,

i^et being intestable at her death, by reason that her husband is
iving, the testament is void. 4 Bum. Eec. L. 50; 4* Rep. 60;

2 P. VVms. 624; and if she outlive her husband, a testament
made during coverture is bad, because she was intestable at the
time of making it ; 11 Mod. 157 ; and the will does not revive
jfrom the mere circumstance of the husband's death ; SAdd.^\
but if it is made during coverture, yet if after the death of her
husband she confirm it, the testament is good, for then it be-
comes as it were a new instrument; 1 Salk. 238; Comb. 8^;
2 Hag. 210 ; the mere custody, with recognition of such a will,
seems a sufficient republication. 3 Add. 264 ; 2 Hag. S09.

Tesument So also in the case of a widow marrying again, and becoming a
^?.!f*!2*^' second time a widow, a will made during her first widowhood is
not good ; for a will supposes not only a disposing power in the
person making it, but that it should always continue under the
control of the person making it. 4 Bum*s tlcc. Xr. 61 ; 2 T. H*
695 ; Phwd. 343 ; 2 Bra. C. C. 543.

But the husband may waive the interest which the law gives
him, and may by an express consent enable his wifb to dispose
of personal estate. 1 Rop. Hus. Sf fViJh, 189 ; JFV^. CA.452;
2 Ves. 15 ; Cro. Car. 219.

It must be shewn that his assent was given to the par-
ticular will, for a general assent is not sufficient. 2 Sira. 891.
Such assent also is revocable, and may be revoked at any time
before probate. 1 Mod. 211; 2 Ves. 76 ; 4 Barn's Eec. L. 50.
Such assent may, however, be implied and collected from circam-
stances, and if after her death he assent, he is not at liberty to
oppose the probate. The assent of the husband is considered

husbaDd.

anofat* 909

womeDi

in the light of a waiver of his right as admioiatrator to his wife. ^^^*^-

1 Roper ^ Hus. Sf Wifo^ 170, it can, therefore, only give validity
to the will in the case of his surviving his wife ; if, therefore, he
die before the wife, her will made during coverture, though
with his assent, is void against her next of kin, and does not pass
property bequeathed during coverture. 15 Ves. 156 ; S East^ 553.

Whether a husband has consented or no, is a question to
be determined by the common law, and, therefore, when a will
o{ afSme coverte vraa brought to the prerogative court to be
proved, a prohibition was granted, on a suggestion that the
testatrix was z^fime coveriem Gibs. 462 ; 2 Ecksty 552.

The Ist Vict. c. 26, by s. 8, leaves the law with regard to the
wills of married women as it was before the act*

A/Sme coverte may make a will of anything which she is
entitled to in auire droiij but nothing will pass but the right of
representation to the former owner to whom she was executrix ;
for if she takes as legatee and. not as executrix, the property being
reduced into possession, it becomes the property of tlie husband,
and cannot pass by lier will. Bro» C. C. 543 ; East^ 553 ; Smnb.
90. The profit arising from anything she holds as executrix
belongs to her husband. Smnb, 90. Wills made with assent of
the husband rather resemble the execution of powers, 2 Ait. 49;

2 P. fVfnsB 624 ; 7 Burr. 431, or a testamentary settlement. 2 Ves*
612. Such a will made during coverture is not revoked by the
death of the husband. 3 Hag. 239. So also where a wife has
personal property settled to her sole and separate use, she takes
it with all the incidents of property, and may, therefore, dispose
of it and its produce by will, without the consent of her husband.
1 Ve9.jun. 46; 3 Bro. C. a 10; 9 Fes. 375; Bunb. 187;

3 Add^ 263. So if it be given to her sole and separate use
during coverture; 1 PAitf.352, 254; or where she takes it with
a power of disposing of it by will. 1 Gift. 1 10, 125 ; 2 Lee, 563.
In all such cases, though the will operates in point of law as an
appointment, it must be proved in the spiritual court, and a
court of equity will not take cognisance of it without pro*
bate; 3 Aii. 160,356; 9 Ves. 376; though a different rule
seems to have prevailed formerly. 1 Mod. 211. If the eccle*
siastical court doubt on the subject, it is safer to grant probate ;
but the probate will be limited to the property operated on by the
power, so as to leave all questions of construction open to a
court of equity. Ledyatd v. Garland^ 1 Curt. 287 ; 2 Lee^
537 ; 3 Add. 244 ; 1 Hag. 574. In granting probate of the will
of a married woman, the court of probate requires (though a
less cautious practice existed formerly) the production of the
instrument under which she has acquired a privilege to which
she was not before entitled, 1 Curt. 590 ; and when it is satis-

912

msas*

Influence.

Husband
and wife.

Guardian
and ward.

Attorney
and client.

table, but ta ascertain whether his intellect fell below the ordi«
nary standard of human understanding, or was reduced below
it by disease or advanced age^ so as to render him exposed to
fraud and imposition. 1 Hag. 409, 430, 4^, 461, 46^> ib*
256.

The relation between the party obtaining, and the person
granting the benefit, showing influence on the one side, and
confidence or deference on the other, as in the cases of husband
and wife, attorney and client, guardian and ward is to be noticed.
1/fo^. 391, 395, 405, 451; 1 PhiUA95; &PhiU. 323.

Where a wife nine days before death, extremely weak, was
labouring under a painful disorder; though her capacity was
not gone, nor her mind affected by delirium, yet being in the
hands of her husband, the active agent in the whole business, a
will by her giving all to him, revoking a will made seven
months before, was considered as an act done under influence
and undue marital authority. Myam v. RobiMon,2 Hag. 179;
ib. 84; lPhiU.26\ ; »edmd.2Add. 173, 400; 1 Curt. 1S5.

In ZachartasY. CoUis, 3PhilL 176, the will of a naval officer
in favour of an agent on an advance of money, was set aside.

With regard to wills made by minors in favour of guardians^
vid. Arnold v. Earle, 2 Lee, 529.

Where a will and codicil were prepared from instructions
not given directly by the deceased, but through the intervention
of the party interested, and were executed in the presence of
the executor and residuary legatee, that person being attorney
and agent of the deceased ; the only recognitions of those instni-
ments, if made at all, being made when the deceased was in pos-
session of the executor, and under his influence, and exposed
to any impression that might be made on his mind ; the case of
the executor moreover not being sufficiently established against
the presumptions and suspicions which attached to it; the pre-
rogative court pronounced that the executor had failed in proof
of the will and codicil. Ingram v. Wyati, I Hag. 884. upon
appeal to the delegates, the court was equally divided, and no
sentence having been given; a commission of adjuncts issued, who
reversied the sentence of the prerogative court; a commission of
review was applied for, but refused, not on the ground that the
judge of the prerogative court had not stated correctly the
principles of law as applicable to the relative state of the parties,
but on the general ground that the balance of testimony sup*
ported the will; and that the circumstances of the case rebutted
the suspicion, which arose from the fact; that the testator and tbe
person benefited stood in the relation of client and attorney
towards each other. 3 Hag. 468 ; and alio 3 Hagm 587.

A will made by interrogatmea is valid, but in such a case
the ecclesiastical court is more jealous of capacity, and more

anoitf. 913

strict in requiring proof of Tolifion and spontaniety than in an f r^^d or
ordinary case ; under circumstances, a resort to question and ',|^ty?'^"~

answer might be highly judicious, the exertion of speaking

might be fatal, and prevent a testator from expressing what his

wishes were. lPhiU.59\ I H(»g. 519. But parties enfeebled ,

by long illness, and on the verge of dissolution, often answer at

random, and merely to avoid disturbance and importunity. J

1 Add. 185; and vid. 3 PAUL 105.

Mere interference and importunity on the part of a wife will
not, however, affect the validity of the will of her husband.

2 Add. 497. It is no part of the law of this country that a will
must originate with a testator, 4 Hag. 477 ; 1 Lee, 606.

It is not absolutely unlawful for a man, by honest intercession
and persuasion, nor even by fair and flattering speeches, to |i

procure a will in favour of himself or another, and whether a |

capricious partiality has been shewn the court cannot inquire.
But if persuasion be used to a testator on his death bed, when
even a word distracts him, it may amount to force, and inspiring
fear. ^Burn's Ece. L. 58. it. (0

With regard to wills of personalty (a), made before the 1st Form and
of January, 1838, it is not necessary that they should be made "^^'"g-

(a) The wills of seamen and marines are regulated by particular sta- .

tutes, the llGeo. 4, c. 20, (repealing the 55 Geo. 3, c. 60,) and the 2 4* 3 \

Wm. 4, c. 40. Mutual or conjoint Wills, which from their nature are not *

revocable by the supposed testators, are not recognised by the law of
this country as having a testamentary character, and consequently they
are not entitled to probate ; an allegation, therefore, propounding an in-
atrament of this description was rejiSCted ; 1 Add. 274 ; but a mutual Will,
if the other is revoked, may become independent and entitled to probate.
4 Ve». 160. Such mutual undertakings, however, if not open to the
objections of being uncertain or uniair, nmy be enforced in a court of
equity, as compacts binding on the several parties. 1 Dick. 419 ; 3 Ve9,
402.

A conditional Will may be established ; testamentary letters, therefore,
though conditional in their terms when recognised by the deceased, were
admitted to probate. 3 PhiU. 200 ; sed vid. 4 Hag. 179 ; but the merely
shewing that the condition has been satisfied is not sufficient ; 2 PhiU.
294. Where a paper began, ** in case of my inability to make a regular
codicil to my will, I desire the following to be taken as a codicil thereto,"
the court said, it meant no more than " till I make a regular wiU, so
long I adhero to this paper." 8 Phill. 625 ; 4 Ves. 200. Again, a will
thus : " lest I die before the next sun, I make this my will ;" this was
written eighteen yews before 4he testator's death, continuance of inten-
tion being shewn by careful preservation, probate was granted, the
court holding there was no contingency. 4 Hag.

N N N

914

warn*

Form tnd

making.

Unfinished
papers.

in any particular form, or executed or published in any pard*
cular manner ; as to such, therefore, the inquiry will be, whether
the paper or papers produced, do or not contain the final inten-
tions ot the testator as to the disposal of his personal property!

This question may be considered with reference to the ex-
ternal form of the instrument ; or with reference to its internal
form and character: as to its external form,

1st. Whether the instrument is unfinished and inconipletei
and therefore imperfect in every sense of the word.

Sndly. Whether it is unexecuted, and therefore, partially and
in a certain sense only, imperfect.

3dly. Whether it is unattested.

With regard to its internal form and character, the only ques-
tion is, whether the deceased did or did not intend it to be
dispositive and testamentary ?

In the cases which have been decided, the principle of the
ecclesiastical <;ourts is, to look to intention, and haTing satisfa^
torily collected and securely ascertained that, to carry it into
execution ; whether, therefore, the instrument be finiahed or un-
finished, signed or unsigned ; whether it consist of one paper
or of many ; whether written by the testator himself, or by
another from instructions given by him ; whether the instruc-
tions so committed to paper, were ever read over to or seen by
the testator, provided the writing took place in his lifetime;
still, if the court is satisfied that it is in possession of a do-
cument which contains final testamentary intentions, it will
allow it to go to probate ; so also with regard to alterations or
mistakes, revocation or cancellation, casting aside whatever
appears to be hesitating, undecided and deliberative, the court
would search out what appeared to be the fixed purposes of the
testator, and give effect to them fay whatever tnstroBient or in-
struments they may have been expressed ; and vid, 3 Fes, iS09.

In Salmon and Breete v. HayeSf 4 Hag. 88S, a paper was pro-
pounded, beginning at the top with the name of the deceased,
and dated six months before her death ; it disposed of all her
property, but was not signed and ended without a stop; the
writing was on half a sheet of paper, without interfineation or
abbreviation, but contained no words, to shew on the one hand
any intention of doing anything further, nor on the other that
she had finished it. The learned judge said, the question is,
whether it is a finished or unfinished instrument ? that is, wh^
ther she intended to do anything more to it, or write another,
or whether slie intended and considered that this inatrameBt
would operate in its present form ; nothing was pleaded to a^
count for the interval since the date ; in such a view k most be
considered as only deliberative, and as an abandoned iostni-
ment ; on the other, if it appear that she had done ererydiing

mm* 916

she tneant to do with the paper, that would be aufficienty for the UoBnttheil
law requires no particular form for the disposal of personal pro- ^^^^ —
perty. Fid. GiUow and OrreU y. Bourne^ 4fHag. 20£, and Sir J.
NichoUM note read in that case of Sir W. ^ymt^V judgment in
Cobb V. Cobb.

Where a paper is unfinished as well as unexecuted, it must
be clearly made out that the deceased had come to a final reso*
lution in respect of it, at least as far as it goes ; the task of repel*
ling the presumption of law which exists against every imperfect
paper, lies on the party setting it up. .2 Add. 356; 3 PAiL 504;
4 Hag. 410 ; 1 Curi. 574.

This presumption is also stronger when its effect would be
to revoke a previously existing executed instrument. 2 Hag*
254 ; 4 Ves. 197 ; 4fHag. 183, 464; vid. post.

Mere length of time would not of itself be conclusive against
an unfinished paper, for a man may in his last moments recognize
a testamentary paper written twenty years before. 1 PAUL
50; 4Hag.380.

But if a man live eight days> after he began the paper, in

health and capable of business, and does not complete it, the

presumption is, that he did not intend to do so. 4 Fes. 197 ;

.de on the question of time. 1 PAiU. 22 ; 3 PAUL 319 ; 1 Add.

•'^ 9 ; 1 Hag. 222.

The legal principles as to imperfect testamentary papers vary stage of
much according to the stage of maturity at which they have ™&^urity.
arrived, the presumption of law indeed is against every testa-
mentary paper, not actually executed by the testator; and
so executed as, it is to be inferred from the paper that, the
testator meant to execute it. But where a paper is just begun,
and contains only a few clauses or bequests, not only must its
being unfinished be accounted for, by shewing some other cause
than an abandonment of intentions, but it must also be proved
(for the court will not presume it), to express the testator's in-
tentions, in order to repel the legal presumption against its
validity. 2 Add. 857; 4Hag^298.

In all cases of a paper incomplete in the body of it, the court Rule of
must be completely satisfied by proof, first, that the deceased 1^^*
had finally decided to make the disposition of his property ex-
pressed in the imperfect' paper; secondly, that he never aban-
doned that intention, and was only prevented by the act of God
from proceeding to the completing it. I'Aeakstone v. Marson^
4 Hag. ^99 ; and vid. Scott v. RAodes, 1 PAiU. 20, 73 ; and vid.
2Lee.4l8; 2 PAiU. 30, 122; I Add. 383; I Hag. 82, 140,226;
3 Hag. 210; or it may be shewn that he has abandoned the in-
tention of finishing the paper, meaning that it should operate
in the form in which he left it, 1 Hag. 671, 465; 3 Hag. 21 1 ;
2 PAiU. 177, conttdering k in its then state as a finished and

N M N 2

916

mm.

Unexecu-
ted paper.

UnBoished complete instrument lAtklASOi SPkitt.BMi iAM.4i]i

P"P^^ Hag. 384.

At one period 5 before the rule of the eeclesiaBtical court was
correctly settled, an unfinished paper, coupled with sudden death,
would have been established, though a considerable interval bad
elapsed between the writing of the paper and the death of the
testator, but it is now clearly settled that in respect of an unfin-
ished paper, though followed by sudden death, the interval
must be accounted for. Johnston v. Johnston, 1 PhiU, 495;
and vid. ib. 50; 1 Add, 53.

Where the paper, though complete in all other respects, is
not executed, the presumption against it is slight and feeUe,
and one comparatively easily repelled. For intentions, tub
modo at least, need not be proved in the case ; that is, the court
will presume the testator s intentions to have been expressed io
such paper, on its being satisfactorily shewn that its not being
executed may be justly ascribed to some other cause than
the abandonment of the intentions expressed on his the tes-
tator's part. 2 Add. S58; 3 PhiU. 25 $ » Hag. S47; S Xee,
214,358; 4 /fog. 383.

Probate was granted of an unexecuted will, it being sheirn
that the intention of the deceased was dear, and the execution
prevented by sudden incapacity, superinduced by the violent
conduct of his wife, who was interested in thwarting his inten-
tion. 1 Lee, 1. So where execution was prevented by duress.
2 Lee, 22. But where the concluding clause was, ** in witn^
whereof, &c. I have hereunto set my band and seal ;*' but the
deceased neither set his hand nor his aeal, and there was a
delay of sixteen months unaccounted for, and the will professed
to dbpose of real property and appointed guardians j probate
was refused. Abbot v. Peters, 4 Hag. 380.

The presumption of law is also against a testamentary paper,
with an attestation clause not subscribed by witnesses, and
when not prevented by the act of God, the law requires it to be
shewn why the further act was not done. Scott v. Rhodes,
I Phia. 19; 2 PhiU. 178. The presumption against an instnh
ment so circumstanced is slight, but slight as it is, it must be
rebutted by some extrinsic evidence of the tec^tor ialendingit
to operate in its subsisting state. Beaty ▼. Beaty, 1 Add. 158,
and vid. note to that case. 3 PhiU. 25 ; 2 Lee, 478 ; 3 PUB. S^-
When the intention of the writer of the will, that it should be
regularly attested, is only to be collected from the single word
" witnesses*' at the foot of the paper, the presumption againsi
the will is still slighter, indeed a doubt has occurred to the
court, whether a paper so circumstanced can, in all cases, be
considered an unfinished paper, so as to let in evidence
a^aaii^^ it. Doker ▼. Goff, 2 Add. 49.

UnaUeated
paper.

mmg, 917

Where a will of real and personal property (a) was not Untiteaied

properly attested^ so that though admitted to be insuflficient to ^i^2^

pass the former, it might be considered sufficiently complete to ^^^^ °^
dispose of the latter, without resorting to parol evidence of inten- I^^^q^" y.
tion as to whether the testator intended the instrument to be
final ; considerable difference of opinion seems to have pre-
vailed. In a case where the testator wrote his will with his own
hand, subscribed his name to every sheet, and to the last affixed
his seal, and there was a clause of attestation, but no witnesses ;
the ecclesiastical court held, that the will, being incomplete for
want of attestation, required parol evidence of intention to
establish it as the final disposition of personal property ; but
the court of delegates held that reddendo singula ringulis, it was
a perfect disposition of personalty, and rejected parol evidence
to impeach it. 4 Fes. 201 ; 2 Lee, 428. But this latter de-
cision was overruled, and the doctrine of the ecclesiastical court
restored by the commission of review in Mathews v« Warner^
4 Fes. 31 1 ; 1 Phill. £18; 3 Phill. 478; 2 Hag. 76. So it
seems that a will, nicomplete for one purpose, can only be sub-
stantiated by parol evidence of intention ; Hag. 1 80, 1 99 ; S Lee,
214.

The same principle applies to instructions for a will ; if the Instmc-
court is satisfied that they contain the real intentions of the ^?J|*'<^'*'
deceased, and that he was prevented by death from executing a
will in pursuance of them, they will be established in a court of
probate. Huntington v. Huntington, 2 PhilL 213; 1 Cox,
241 ; 4 Fes. 200; 1 Hag. 109; 4 Hag. 298; Goodman v.
Goodman, 2 Lee, 109, 358. And, if no suspicion attach to
the case, where they were neither signed nor even seen by
the deceased, nor read over to him, nor by him. Wood v.
Wood, 1 Phill 357 ; Sikes v. Smith, 2 PhilL 355 ; 1 Lee, 509 ;
2 Bro. C C. 58. Reading over is only required to shew that
the paper was conformable to instructions. 2 Phill. 356;
sedvid. 1 Hoff. 317. It is essential, however, that they should

(a) There are many instances where a testator having to dispose of
real and personal estate, the court has given effect to the disposition as
far as it can, and pronounced for the one part conveying the personalty^
whilst in oUier cases it has refused to do so ; the distinction is this,
where the devise of the realty is perfectly independent of the disposition
of the personalty, then hy giving effect to the unexecuted will, the de-
ceased's intention is pro tanto carried into effect ; hut where one part
appears to depend upon the other, where a testator pves to A. because
he has given toB., then it would defeat the intention, and be injustice, to
give e&d to the one, without you could do so to the other. Tudor v.
Tudor, 4 Hag. 199, n. ibid. 180.

918 mmi.

lustrac- be red aced into writing in the lifetime of the testator, otfaer-
^uii» or a ^jgg *^ would be a mere nuncupative willi and void under the

— • statute ; 2 Pkill. 355, 589 ; but it will not affect such a case

that the formal making of the will was prevented by the suicide
of the party giving the instructions, if there is no evidence of
insanity existing at the time the instructions were given. Bur-
rows V. Burrows, 1 Hag, 109.

But it is not necessary that the instructions should be given
directly by the deceased to the person who is to put them into
writing. In Lewis v. Lewis, S Phill. 109, Sir J. NichoU said,
" If the instructions were given by the deceased, and reduced
*' into writing in his lifetime, I know of no rule of law to ex-
'* elude them from probate, because they were reduced into
" writing by a third person." But the court in such a cm
would be doubly on its guard ; ib. vid. 1 Curt. 899, post, 928.
It would seem that even unfinished instructions, it they con-
tained the final intentions of the deceased, as far as tbej
went, would be entitled to probate. I PhiB. 12 ; 3 PhilL 105,
629, as to copies of instructions. 2 Lee, 388.

But where the deceased gave instructions for his will, and
lived a year and eight months without taking any further step
to complete his testamentary act^ and nothing was suggested to
shew that he was prevented ; the legal presumption is, that lie
was dissatisfied with, and had abandoned them ; nor can such a
presumption be repelled by mere probability and conjecture.
Dingle v. Dingle, 4 Hag. 394 ; 1 Lee, 419; I Add. 5S.
Copy of a An engrossed copy of a will read over to, and approved by
will. the deceased, who was prevented from executing it by dead),

was admitted to probate in common form, by consent of the
only person interested in an intestacy ; one of the engrossed
sheets and two fairly copied sheets, approved by the deceased,
being the instrument on which probate was granted. 1 Hag»
575. Where a copy is propounded* it must be shewn nega-
tively, that the deceased had no opportunity or was incapable of
destroying the original, or that it was in existence after bis
death, or detroyed in his lifetime without his privity. 4 Hag^
249.
TestameD- 2dly. With regard to the internal form and character of a
tary papers, testamentary paper, the question is, whether the deceased did
or did not intend it to be dispositive and testamentary ?

It is settled that the form of a paper does not affect its title to
probate, provided the deceased intended it to operate as a wOi
after his death. If an instrument upon the face of it is mam*
festly executed as a will, the court cannot look at its effect, but
only where an instrument is not so executed.

There is this distinction in the consideration of papers, which
are in their nature dispositive and final, and thode wriScfa are of

mm* 919

an equivocal character ; that the first will be entitled to probate, Tettamen-
unless they are proved not to have been written animo testandi ; ^^ v^?^»
whilst in the latter the animus must be proved by the party
claiming under the paper. 1 Curt. 100.

It lies upon the parties, therefore, setting up such an instru-
ment as a will, to shew that it was made with a testamentary
intention, and that it was to be consummated by, and to operate
upon, death. It is true that it may appear from something in
the instrument itself, that though it was not drawn up as a will,
yet that it was intended to convey a benefit upon and after
death ; or it may be proved by extrinsic circumstances to have
been intended to operate as a testamentary disposition; the
form of the instrument is not conclusive against its testamentary
effect, it may operate as a will, if shewn to have been written
with a testamentary intention. King's Proctor v. Daines, S Hag.
221; 3 Hag. 428 ; Masterman v. Maberley, 2 Hag. 247 ; 4 Hag.
359; 1 LeCf 3. Thus, where an instrument upon the face of it
purports to be a deed of gift, the court of probate must have
the clearest evidence that it was intended to operate as a will,
before it will give it such an effect. 3 Hag. 218 ; 1 P/iill. 216.

As intention is the guide of a court of probate in admit-
ting or rejecting an informal instrument, it will refuse probate
to a paper, dispositive in its form, if satisfied that it wants the
animus testandi^ and that it was not written with the mind and
intention of making a will. Nichols v. Nichols, 2 PhiU. 180;
and vid. 1 PhilL 1"^. On the other hand, where it is manifest
that the deceased intended the particular instrument to operate
as a testamentary disposition of his propertv, the court will
grant probate, notwithstanding the form or the instrument
itself, or the denomination which the deceased himself may have
affixed to it; thus a deed of gift, 1 PhiU. 1, and vid. the cases
there cited. A deed of settlement. 2 Hag. 654 ; 1 PhiU. 218.
A deed poll or indenture. 4 Hag. 356; vid. also 2 Ves.jun.
231 ; 1 res. sen. 127; 2 Ves. sen. 591. Checks and entries
also have been admitted as parts of a will and codicils. 3 PhiU.
317. Letters, if of a testamentary character, I Hag. 130; and
if final and dispositive, but not otherwise. 4 Hag. 140 ; 2 PhiU.
675; 1 Lee, 12, 100; 1 Hag. 488; 1 PA«//.218.

The circumstance that a paper was suj^erscribed " Heads of He«dt of a
a will," would, it seems, imply that the instrument was not in- *"* •
tended to be final, though it might be dated and subscribed, and
contain a complete disposition. Bone and Nvwsam v. Spear,
1 PhiU. 350. But in a case where continuance of intention was
shewn, and that death was the cause of its not being cottiplet^
in a perfect manner, the paper was established. lb. ; 2 Hag. 74- ;
vid. also Berwick v. MulUngs, 2 Hag. 225. In another case,
where there was a complete disposition of property and appoint-

920

WSKEbt^

Heads of a ment of execotor, by a memorandtun in an aceount book
^' • signed by the deceased, but above the signature was writteDt " I

" intend this as a sketch of my wtU, which I intend makii
" when I return home/' the paper being found locked up in a
private desk, and death being sudden, probate was granted.
Hat fait v. Hattatt, 4 Hag. 211 ; 4 Ves. 209 ; see the observa-
tions of Sir J. NtchoU on Mathews v. Warner, 4 Ves. 186; 3 PhiU.
477 ; 1 Add. 160, and the late case of Copjnn v. DUlon^ 4 Hag,
SI I, Where a paper commenced ^* Head of instructiona,*' and
was indorsed '' Memorandum/' but concluded ',' this is my last
will and testament, and was signed by the deceased ;*' and it ap-
peared that care had been bestowed upon it, there being no
correction, alteration, or interlineation. The court said, though
it might be intended to execute a more formal instrument, yet as
the paper itself was complete and nothing deliberative appeared
upon it, probate was granted. Torre v. Castle^ I Curt, 303.
Testamen- A question has sometimes arisen, how far testamentary papers
^'L?!5^'! <5an be incorporated with an existing wilL Thus where the
will. deceased between the instructions for, and execution of, his wiU,

delivered to his solicitor a letter of a testamentary import, to be

put with his will ; probate was decreed of both together, as con-
taining the last will of the deceased. 2 Plnll. 35 ; 3 PhilL 614;
1 Hag. 488 ; S Hag. S35 ; 4 Hag. 360. But a mere memonin-
dum of doubtful construction, not embodying the deceased's final
intention, cannot be so incorporated. 1 Hag. 376 ; 1 Add, 399.
So where instructions are subscribed preparatory to a will, the
execution of the will supersedes the instructionB, and efieet
cannot be given to both instruments. 1 PhM. 47, 130. Drafts
on a banker, to be paid after death, have been adnutted as
codicils. 3 Phill. 317. Nor will a subsequent will, oontainiog
a revocatory clause, operate in revocation of a previously written
testamentarv letter, if it appeared to be the intent of the testator
that it should not do so. 2 PhiU. 577.

If instruments be directly referred to, they become, it is said,
a part of the instrument in which such reference is made. 2 Vet,
S28 ; 16 Do. 167 ; S Atk. 87, 868; 3 Burr. 1774; sed vid. 1
Fes. Sf B. 445. But the reference must be to a paper antece*
dently existing ; a paper unattested made after the will, with a
reference made in the will, to ** the observations and directions
which I shall leave in a written book," held insufficient under the
statute to pass land ; but said to have been admitted to probate io
the -ecclesiastical court. 1 Ves.%B. 4&&} vid. also 6 res. 561.
In many of the above cases, the testamentary papers were in
the nature of codicils, which leads to the inquiry what a codicil
is. A codicil, from eodicillus, a little book or writing, is by in-
tendment of law either to alter, explain, add, or substract some-
thing from a will, Swinb. 14; it is inits nature a part of« and de-

Codicil.

mm. 921

pendent on, the will, and an extension of the intention of the Codicik.
testator. 2 Atk. 689 ; 2 Ves. sen. 242 ; 4 Bro. C. C. 66 ; 2 Add.
230} 4 Ves. 610. If there are two separate papers complete
and substantive in themseWes, both wills, inconsistent with each
other, the last is the will ; and from the nature of the latter instru-
ment it revokes the former; but if the latter paper purports to
be coupled with another instrument, it becomes a part of it, and
is a codicil to that will ; but if there be nothing to shew it was
meant to be so coupled, it is not to be taken as a codicil. 6 Ves.
616 ; 1 Add. 37 ; 2 Lee, 46. A man may die with divers codi-
cils, and the latter do not hinder the former, provided they are
not contrary. Stcinb. 15. But the intention of the testator is
to be the guide in a court of probate, therefore a will and last
codicil have been admitted to probate, and three intermediate
codicils rejected. 2 Add. 289 ; 3 Add. 226 ; 3 Ves. 402 } 6 Do.
616; 1 Add. 37 ; 4 Hag. 362. The consequence of a codicil
being dependent on a will is, that a cancellation of a will is an
implied revocation of the codicil, but there have been cases
where the codicil has appeared so independent of, and uncon-
nected with the will, that, under circumstances, the codicil has
been established, though the will has been held invalid. It is
altogether a question of intention. 2 Add. 230 ; 1 Curt. 290 ;
4 Hag. 362. So a codicil is not necessarily destroyed by burn-
ing the will to which it originally belonged. In such a case a
codicil may become a substantive instrument per se, and entitled
to probate. 2 Lee^ 335.

So also a letter, or extract from a letter, or checks on a banker Alterations
have been established as codicils to a will of a date subsequent by codicils.
to the letter, and if such letter was intended to operate inde-
pendently of the will, a common revocatory clause in the will
would not revoke it. 1 PAiU. 216 ; 2 P/nU. 577 ; 3 PhiU. 317.
If by a codicil, a man alters his will, the destruction of such co-
dicil may be supposed to set up those parts of the will which were
altered by the codicil; but the destruction of a codicil cannot
have the e£Pect of setting up such parts of the will as have been
cancelled by erasure. 2 Hag. 844. A codicil may be virtually
revoked by another codicil, although there be no express words of
revocation in the latter. 2PAs/J. 416.

So a codicil may revive a first will hy a direct reference to the
instrument, and revoke by implication the will in existence at a
later date ; it is not the act oi revival that revokes the last will,
but it is the first will itself, after it is revived, which operates
as a revocation. Lee, 490 ; I Add. 30 ; 2 Add. 455. ^ ^

A codicil, like a will, may be good though it does not originate
with the deceased, if it have been approved and executea y

him. 1 Lee, 600. , Ki*»l»

Probate of a codicil, a loose paper, written in pencil, ana wnicn

022

Alteratioas*

Pencil or
ink.

CodioiU. bad been in tbe possession of the executor upwards of tbiee
years, was called in and revoked. 1 PAi/Z. 22 ; 1 Hag. 222.

Where wills, duplicates, with slight variationsi of the same
date are found, one in the testator's possession, to which she
added eight codicils, and tbe other with her banker, to which
two codicils had been added ; probate was directed of the will
in her own custody, and the eight codicils, and also of the other
two codicils, as there was nothing to revoke them. 2 Hag* 80.

Where the court can safely arrive at the conclusion, that alter-
ations, made in the will after it has been finally completed and
executed, were intended to form part of a will, it will order them
to be included in the probate. Diekemon v. Dickensw^f 2 PhilL
175 ; 4 Hag. S28. Where made on the margin of a duplicate
will, conformably to expressed intentions, they have been beU
good. Racen$croft v. Hunter, 2 Hag* 68.

In forming its conclusion whether an alteration is intended to
be absolute, or whether it is only deliberativej the court draws t
distinction between alterations in ink and in pencil. In H€mket
Y. Uawies, I Hag. SI22, Sir J. NichoU said, '' the general pre-
*' sumption, founded on probability, is, that when alteratioDs
'' in pencil only are made, they are deliberative ; when in ink,
'^ they are final and absolute ; but when they are of both sorts,
'* the presumption as to each is stronger ; if the writer had made

up his mind and intended the variation to be final, he wouUi

instead of pencil, have used ink ; if he be deliberating only and
" undecided, he would use not ink but pencil.** And again, in
Edwards v. Asiley, 1 Hag. 493; 1 Hag. 219 ; " primd /ode,
'' all pencil alterations are deliberative, and for this obvious
'* reason, if they expressed final intention, why did the testator
''not resort to the more durable material?** andvid^lPUH
S5.

But probate of alterations in common form and by consenl,
will not be decreed ; unless the court is satisfied, from the historj
of the transactions, that it would be justified in doing ao, if such
alterations were regularly propounded as parts of the wiH
2Add.ai6\ i Hag. 222.

It is not necessary, it seems, that a testator should be in his
senses at the time alterations were actually made, provided be
was so when the alterations were directed. Serman v. Serma»i
1 Lee, 180. But where it appeared, by aflSdavit, that a testator
had introduced alterations whilst of unsound mind, the will was
restored by the court to the state in which it was, previously to
such alterations; there being a proxv of consent to such a course
from all parties interested in such alterations. In tie goods of
Richard Becknell, 3 Add. 231.
lVict.c.26. By 1 Vict. c. 26, #.21, '' no alteration, interlineation, or other
alteration in any will, (made after 1st January 1838,) and which

((

was made after the execution thereof, shall be Talid, or have Ateatfons.
any effect, except so far as the words or effect of sach will, be-
fore such alteration, shall not be apparent ; unless such alteration
shall be executed hi Kke manner, as is required by the act for
the execution of a will ; but the will with such alteration, as
part thereof, shall be deemed to be duly executed, if the signa-
ture of the testator and the subscription of the witnesses be
made in the margin, or some other part of the irill opposite or
near to such alteration, or at the foot or end of or opposite to a
memorandum, referring to such alteration, and written at the
end or some other part of the will.'*

It is dangerous to allow alterations in an instrument regularly Evidence
attested and executed, on parol evidence and declarations. In of-
cases where alterations have been allowed, the evidence has been
quite demonstrative ; it has always been required, 1st, that there
should be some ambiguity on the face of the instrument.
Sndly, that proof of fraudulent suppression or destraction, or of
omissions, snould be clear beyond doubt. 8 Hag. 573; 1 Hag.
678.

Where a widow caused the testator's will to be destroyed Dettroycd
after his death, probate of such destroyed will was granted, wiiu
and the widow condemned in costs. 1 Hag. 944. So, on proof
that a will was made when the testator was sane, and destroyed
when he was insane, the instructions for such will were admitted
to proof. 3 Hag. 734.

So where a wul was torn in pieces at the death of the testator, Fragments
the pieces were directed to be pasted together, and probate of a torn
decreed in common form. 1 2>e, 413. So, in another case, the ^*"*
pieces found were connected together, and probate granted of
them in their connected state. 1 Add. 46d«

Supposed omissions cannot be supplied on mere conjecture, Ominions.
however probable the case may be. 3 Hag. 573.

Where an addition has been made to a testamentary paper by
a solicitor, such addition will be struck out by the court, if
it appear not to rest upon clear instructions reduced into
writing before death. 1 PhilL 357. So a bequest, stated by
a solicitor to have been omitted by him to be put down in wri*
ting during the life of the testator, was rejected, for such pro
ianfo, would have been a nuncupative will, 3 PUll. 141 ; but
where instructions were amended in pencil in the lifetime, and
by dictation of the deceased, but omitted in the fair copy, the
court, in granting probate, may supply the omission from such
pencil emendations. 1 Curt. 802 ; 3 Add. 2S2 ; 8 Hag. 573.

When there are erasures, and the executor consents to have Era^urea.
the will proved, as if none had been made, the usual course is
to have sentence against them, and the will proved with the
words erased inserted. 1 F€ii#.S57; I Hag. Ml. Alterations

iKM

ntfli^

Nancnpa-
tive.

29 Car. 2.
c. 3, 8. 19.

Rttgatio
tettium*

made in a draft by an at tomeyj by order of deceased, whieh will
eventually was never executed^ have been admitted. ftBro,
C.C.B8.

Although the following provisions of the statute of frands
relative to nuncupative wuls are repealed by the Ist Fki, c.S6,
#• 1, and it is declared by #• 9 of that statute, that all wills shall
be in writing; yet, as to wills made before 1st January, 1838,
they are still operative.**

By the statute of frauds, S9 Car. 2, e. 3, 9. 19, it is enacted,
that no nuncupative will shall be anywise good where the estate
bequeathed exceed^ £30, unless proved by three witnesses at
least present at the making thereof, " nor unless it be proved
that tne testator, at the time of pronouncing the same, did bid
the persons present, or some of them, bear witness that such
was his will, or to that efl^t, nor unless such nuncupative will
were made in the time of the last sickness of the deceased, and
in the house of his habitation or dwelling, or where he had
been resident for the space of ten days or more, before the
making such will ; except where such person was surpised or
taken sick, being fVom his own home, and died before he re-
turned to the place of his dwelling."

By #. SO. After six months passed at the speaking of the pr^
tended testamentary words, no testimony shall be received to
prove any will nuncupative, except the said testimony or the
substance thereof were committed to writing within six days
after making the said will.

Nor by #• 21 shall it be proved till fourteen days after the
death of the testator, nor till process has first issued to call in
the widow or next of kin to contest it if they think proper.

Nuncupative wills are entitled to no favour in courts of pro>
bate, at the same time if duly proved, are equally entitled to be
pronounced for as written wills ; much more is requisite however
to the due proof of a nuncupative will ; the restrictions imposed
by the statute should be strictly complied with, but independent
of the statute, the factum of a nuncupative will requires strict
and stringent evidence. lAdd.8S9\ SPAfff. 190, 194. Bat
where the case is free from suspicion, and the scatnte com-
plied with, nuncupative wills have been sustained* 2 Lee, 168,
343.

The principal requisite enjoined by the statute of firaads it
the rogalio testium or the catting uponpereone to bear witness
to the act; the meaning of the statute is, that persons shoold
not get about the deceased and ask him questions; that the
whole should originate with himself; S Phitt^ 190 ; ft is ako
necessary that there should be a clear animus iesiemdii and that
the words should be spoken with an intention oTfnaiktgawiU
at the time ; a conversation about temporal afkfars <ir wishes

Jan. 1838.

mm. 9SS

expressed as to the future disposition of- property, is not suffix* Nuncupa-
cient ; it must be distinctly staled by the deceased, that what ^'^^*
he says is intended to be a final disposition of his property.

In Richards v. Richards, 2 Lect £88, where the case proved
was, that the testator being ill and iniBrm, said, addressing a
son, whose legitimacy was disputed by the next of kin, ** Do
** you see, George, thou shalt have all my estate ; I give it to you,
'' hut you shall pay some legacies out of it,'* and concluded by
saying, "this is my will," but no legacies were named — the
words, ** I give it to you," and ** do you see, this is my will/'
were not reduced to writing nor sworn to, by all three witnesses.
The court thought the words in the pretended nuncupation,
" you shall pay some legacies," imported only an intention to
make a will, because since he mentioned legacies, he would
have specified them if he intended the words should contain his
will ; besides the witnesses were somewhat interested,' and their
evidence contradictory, so, though all the requisites of the sta*
tute had been complied with, probate was refused.

With regard to wills made subsequently to the 1st of January, -pwm and
1838, it is enacted by 1 VicLc.SG, s.9, that ''no will shall be making
valid unless it shall be in writing, and executed in manner here- '^^^ "'
inafter mentioned, that is to say, it shall be signed at the foot or
end thereof hy the testator, or by some other person in his pre-*
sence, and by his direction ; and such signature shall be made»
or acknowledged by the testator in the presence of two or more
witnesses present at the same time, and such witnesses shall
attest and subscribe the will in the presence of the testator, but
no form of attestation shall be necessary.

By #. 13. Everv will executed in manner hereinbefore men'-
tioned shall be valid, without any other publication thereof.

By the stat. of frauds, 29 Car. 2, c. 3, s. 5, it was not required
that the will should be signed ''at Ae foot or end of the same,"
but it was only generally required that the signature of the tes-
tator should be " made" in the presence of witnesses ; the late
statute requires that it shall be made " or acknowledged^^ in
the presence of witnesses present at the same time.

Almost ioifnediatcly after the statute of frauds, it was decided
that where a man wrote a will with bis own hand, and his name
appeared in it written by himself, it was a sufficient signii^
within the statute, whether the name^ppeaved at the top or
bottom, or any other part of the will; since the statute S9 Car. 2,
c. 3, bad not appropriated any particular place in the will for
that purpose ; 3 Lev. 1 \ Freem. 5S& ; 9 Ves. 248.

But now the signature, by 1 Vict. c. 26, s. 9, must be " at the
foot or end," as to the mode required in executing the signature
ai testator to alterations, vide ante, 922, 923.

Sealing is not a sufiioient signing* 1 Wils. 813; 2 Ves. sen*

926 maaa.

Form aad 454 • 1 Ve^.jun. 1 1 . But a mark is a suflBcient sigtiiog, whether

i?nce°f{it ^^ person, making his mark, can write or no. 8 Ad, §EL 94.

jaD. 1838. Execution of a codicil, which is on the same sheet of paper

with the will, referring to and confirming it, has been considered

as a sufficient execution of the whole. 16 f>#. 167; and rid,

2B.^B.650.

Where the will is written on separate sheets, each must be
signed ; a signature of the two first sheets is insufficient, espe-
cially if there was an intention that the whole should be signed.
Doug. 241; but where the will was written on one sheet only,
the last page of which was signed and attested, it was held
sufficient, although the will itself stated that the testator had
signed the two first sides, which, however, had not been done.
2 Brod. % Bing. 660.

It was held, under the statute of frauds, that it was not neces-
sary for the testator actually to sign his will in tbe presence of
witnesses ; 3 P. Wms. 254 ; 2 7yn0. 7S ; therefore it was held suffi-
cient for the testator to own his signature in their presence; !&.;
1 Fes. 8f Bea. Sl&it ; and the cases there cited, 2 Ves. 454 ; 1 Vtu
jun. 10; 8 Ves. 504; 18 Ves. 183: and it is expressly provided by
1 Vict. c. S&fS. 9, that " acknowledging shall be sufficient; " it wu
abo held, under the statute of frauds, that the witnesses need not
be present at the same time, when either the testator signed or
owned his signature ; thus, where a devisor published his will in
the presence of two witnesses, who attested it in his presence,
and some time after sent for a third, and again publbhed il in his
presence, the attestation was held to be sufficient; coniriy 1 P*
Wms. 740; this doctrine was established in conformity to tbe
weight of authority, though it seems unwillingly ; 1 Fes. jvl
14; videaisoPtec.C&an.\8*; S ftirr. 1773 ; 1 Ves.^B.3ei.
But the statute, 1 Fict. c. 26, as to future wills, requires that tbe
signaiure of the testator ** shall be made or acknowledged by the
testator, in the presence of two or more witnesses present si
the same ttme,*'

The words in the recent atatute (a) as to the attestation, are
the same as those in the earlier statute ; it is not necessary tfaati
devisor should actually see the witnesses execute ; it is presomed
that if he might, he did see. 1 ^r.^^.294; M.%MM
But where the witnesses were actually without the reach of tbe
organs of sight, the attestation was considered as oat of the
devisor's presence ; 1 6. Where the witnesses withdrew into a
gallery, between which and the chamber where die devisor by,
there was a lobby with glass doors, and the glass brokeo?

(a) Both statutes in this have adopted the rale of tbe einl lav, «
reformed by the Code in the Nwek. Giib. Rep. 261.

mm* d-^

through which the devisor m^t have seen from his bed the ^^ ^^

table in the gallery at which the witnesses wrote their attestation, '°^'

it was held sufficient. Carth. 81 ; Salt. 688 ; 1 Lord Raym.
507 ; 3 Salk. 395. But where tlie witnesses, for the aase of the
testator, actually went into another room and attested the will,
the attestation was held insufficient. 1 P. Wnu. 239; 4 Bro.
P.C.71; 19 Ves.&n.

It was not necessary that the fact of the attestation being
made in the presence of the devisor be stated in the attestation
clause; if questioned, it must be proved, and if the witnesses
are dead, and their handwriting proved, it will be presumed
that the attestation was so made until the contrary be proved.
Com. Rep. 530; Willis ^ 1. So by 1 Vict. c. 26. «. 1, expressly
dispenses with any particular form of attestation.

Where an instrument is perfect on the face of it, it will be Factum of
entitled to probate, unless an objection be taken to the factum ^ ^^**
or mode of its creation. Thus it may be objected that the deed
itself, or signature to it, has been forged ; or if the signature to
it be genuine, it may be charged that the testator did not know
that he was signing his will; or if he did, that a false instrument
was substituted for the real one* In Zacharias v. CaUU,
3 PkiU. 179, Sir J. NichoU said, *' the/actficm of an instrument
** means not barely the signing of it, and the formal publication
'' and delivery, but that uie testator well knew and understood
** the contents thereof, and did give, will, dbpose, and do, in all
^' things as in the said will is contained. It is true, that under
<< some circumstances all this may be proved by presumption
'' only, arising from the mere act of signing; but, under other
*^ circumstances, more direct proof of the ' knowing and under-
** standing* of the willing and disposing * may be necessary.' "

When the authenticity of a wm or a separate paper is dis^ How au-
puted, and a pcesumptiosi raised against the instrument, the thenticated,
court expects it to be shewn by die circumstances of the case
that the instrument is traced to, or at least connected with, the
testator himself; even where the document professes to be a
holograph, that is, wholly in the handwriting of the testator.

The inclination of a court of probate, amounting almost to a
settled principle, founded perhaps on die greet faeility with
which handwriting may be imitated, has been not to pronounce
for a disputed paper on proof of handwriting alone, but to
require some corrakorBting circumstances. 1 Curt. IS ; 1 Hag.
60, 573; 1 Add. 212; 4^ Hag. 224; and vid. 1 Lee, 76; 3
jHTi^. 280; 1 PhiU.

In Rutherford v. Maule^ 4 Hag. 213, the court said, '' what
then are the grounds upon which tne authenticity of this paper is
endeavoured to be established ? First, similitude of hand writing;
secondly, the probability of the disposition of the property.

928 wim.

How au- But one great ingredient is wanting — a connexion of the paper
thenticated, ^j^j^ ^j^^ deceased. There is nothing whatever to connect it
with her : it was not found in her repositories, nor traced into
her possession at any time ; there is no recognition of, or allusion
to it, by her, either by deckration or by act ; not one witness
deposes that she was seen writing about the time it bears date,
or in any way engaged on a paper similar in appearance.

It has always been the doctrine of this court — a doctrine

Handwri- founded upon sound reason, alike important to the security of

tiog. property, and to the protection of the rights of relations, — that

similitude of handwriting, even with a probable disposition, is

not sufiicient, without something to connect the document with

the deceased. 2 Hag. 531 ; 1 Add. 213.

Similitude of handwriting is at best the weakest of all eri-
dence as a foundation of proof, it depends on mere o|Mnion.
True it is, that the imitation of an holograph is far more diffi*
cult than of a mere signature *, but where there is abundant time,
and plenty of holograph papers-— old letters of the deceased
in the possession of the parties, by the study of which they
might acquire a power of imitating her writing with all its
peculiarities, it would be easy to give the instrument the sem-
blance of genuineness. As to evidence of dbsimilitude of hand-
writing ; vid. 1 Hag. 570.

So, in Saniev v. Lille jf, I Curt 399, and vid. 1 Hag. 512;
2 Hag. 211, where the deceased was sixty years old and very
infirm, was deaf, and had been bedridden many years; and die
person who drew the will had never seen her till the day when
it was executed, and was an intimate friend of Mr. S., die
attorney of the deceased, who was appointed executor, and
derived considerable benefit under the will ; and the will was
drawn from instructions given by Mr. S. Such will was pro-
nounced against, on the ground that the instructions were
not connected with the testatrix, though proved by the three
subscribinff witnesses, who deposed as to tneir belief of the ca-
pacity of the deceased to make a will. In this case, the court
imputed no fraud to Mr. S., and therefore did not condemn him
in costs, he being executor, and having propounded the will
The party opposing the will was sole legatee under a former
will, who cross-examined the witnesses only, but did not put in
any plea.
Piobftlnlity In cases of imputed forgery little presumption in favour of the
of disposi- will seems fairly to arise from the disposal of the property, ac-
^^' cording with the probability of the case ; in Rutherford t.

Maule^ 4 Hag. 213, the court said, '' if the question had
turned on capacity, volition, or fraudulent imposition, the high
probability of the bequests would have had much influence
^n the decision ; but as proof that the instrument is not a

mms. 929

forgery, the probability of the bequests is of very little weight ; ^**'^,*""
for a person sitting down to forge a will would introduce into
it probable bequests, and also bequests to those persons who
would be best able to prove it a forgery, in order to conciliate
and quiet them. Probability of disposition is, therefore, con-
sistent either with the supposition that the paper is forged, or
that it is genuine. I should hardly venture to pronounce for
this paper, unless proof were supplied of the connection of the
instrument in some manner with the deceased ; as for instance,
either by being found or seen in her possession, or distinctly
recognised and referred to by her as her act ; what would be a
sufficient connection must depend upon all the circumstances of
the particular case." As to the probability of a will being
genuine from its conformity with previous wills, vid, 1 Add, 168 ;
4 Hag. S28, A will may be established, it is true, against
the evidence of all the subscribing witnesses, but such a case
would require to be supported by the whole res gesta ; by
strong probability arising from the conduct of the parties, and
by the improbability of the practice of fraud, circumvention, or
undue influence ; or it may be rejected on the evidence of the
attesting witnesses. 1 Curt. S94 ; 2 Hag. ^19,558. It is of
course, necessary in all cases, to shew the identity of the testator,
as well as of the will. 1 Lee, 349.

It is the principle of a court of probate, in ascertaining what Evidence.
instruments, or what parts of instruments, a testator meant to q..
operate as and compose his will, to collect the grounds of its tion.
opinion from all the circumstances of the case, 2 Add. S39; the
intention of the party being, as we have seen above, the guide to
the discretion of the court ; but in ascertaining intention, de-
clarations unaccompanied by any immediate acts, are looked
at with great caution, and their weight depends upon the cir-
cumstances accompanying and connected with them. S Hag.
187. Therefore, it has been said, that in order to rebut a pre-
sumption of law, viz. as to the destruction of a will by a testator,
declarations unsupported by circumstances strongly marking
their sincerity, and confirming their probability (especially when
their stringency depends on the exact words of a casual ex-
pression), cannot safely be relied on. 2 Hag. 345 ; 1 P/fill.
S67; I Add. 207; 3 Add. 33.

It has been decided that the statute of frauds does not pro-
hibit parol evidence to prove that a will has existed subsequently
to the will found on the death of the testator. 1 Lee, 472; vid.
SPAitf. 584.

In the ecclesiastical court the inquiry is upon ambiguities or the
arising upon the /actum of the instrument, not upon its con- Z"*^'""-
struction ; not whether a particnlar clause will have a particular
effects but whether the deceased meant that particular clause to

o o o

930.

mm*

Evidence

Of the
factum.

BCTOCft-

tion.

All wnu

reTOcable.

b^ part of t)ie ui8l;nsD9^t» S 4^ ^^ i or wl^thes a codidl vaa
i^aint to republish a former or ^Mbsequent viU; the reference
ioi the codicU being to a will nojt existing ; Lard iSt* Helem v»
MarchioneSf^ of J^xeter, S PhilL 461 n. ; whether a residuary
clause was fraudulently iotroducedt Barton ▼• JRobim, Dele-

Sates, 1769 ; 8 Phili. 4/55 ; whether a residuary clause was acci-
en tally on^tted^ Jausen y. J^ofner,, jQelegates, 1783 ; 3 PhUL
458 ; or whether an instrument be subscnbed^^ in order to
aui^ienticate it as memoranda for a future will, or to execute it
a^ a final will, as in Mathews v. fVamer^ 4 Ves. SU ; 3 PhUL
477 ; 2 £/flg. 76.

Where a will has nothing doubtful on the face of it the court
will pronounce for it in its actual state, and no evidence is ad-
missible to show that the testator meant otherwise than the will
eacpresaes, 3 Add. 232 ; Zl^hill. 476 ; 2 Hag. 537 ; 8 Hag. 570 ;
but where there is ambiguity on the face of the instrument,
there parol evidence is admissible to explain it. 1 Hag. 677,
67a; 3 PAitf. 462.

In cases of omissions, where there is no patent ambiguity,
parol evidence has be^n admitted to suggest and connect mis-
takes. 1 Curt. 300; 3 jP/if;/.4^..

With, regard to wills made subsequently to 1st January, 1838,
the recent statute, 1 Vict. c. 26, by s. 20, has enacted,. ** thst
no will or codicil shall be revoked: otherwise than by marriage,
or by another will or codicil executed as require4 by that act;
or by some writing, declaring an intention to revo^Le, the same,
and executed, as a wilj is by that apt, required, to be executed;
or by burning, tearing, or otherwise destroyi|:^g th^ same, bj
the testator, or by some person in his presence, or by his
direction, with the intention of revoking the same."

With regard to wills executed, before the 1st January, I83S,
there, may have been revocaljons, indirect and implied, direct
and. express.

The olgect of the l^w is, a^ bj^ as possible, to ascertain what
was the last will of a testator, but as it is impossible to say w hat
is a man's last will till his death, " Omne testamentum wnorte
consummatum est, voluntas est ambulatoria usque ad extremum
titaeJ* The consequence is, that every will is m its very essence
a revocable instrument.

A will of personalty may, before the l^t January 1838, have
been revoked by act, as by cancellation or destruction ; or bj
the declaration of its author that he does not intend that it
should any longer operate as his will ; but as the declaration of
a man's will,^except in the case of nuncupative wills, can only be
made by writing, so also it is required, that if a ipan does not
destroy the instrument itself, but allows it toco^^ue* to aB
appearance, an effective instrument, he i^ould^dflclipfi^ bhjntrii-

mma. 931

tion to revoke it, by a document as capable of being satisfac* R^'oc'-

torily provoked as the instrument to be revoted; as, therefore, i!?l?l

there can be no parol will there can be no parol revocation of a
will ; on the other hand, whatever description of instrument is
admissible to probate as a will, is admissible also for the pur-
pose of revocation ; nor is it necessary that the latter should
expressly revoke the earlier instrument ; for if it be inconsistent
with it, it in effect, alters and destroys it ; if it be consistent
with it, it becomes part of it, and may be proved with it.

Again, another species of revocation takes place by operation By open-
of law, as if a man makes a will of lands, and* marries, and ha* tion of Uw.
children, the law revokes such will, unless it contaiil a provision
for such children ; if the will be of personal property, the
ecclesiastical law does not unconditionally revoke it; yet it pre-
sumes that the testator intended to revoke it, and, therefore,
unless he has explicitly declared his intention to the contt'ary,
such' presumption of law will take effect.

With regard to wills of lands, the statute of frauds, 29 Car. 2, Canwlla-

c. 3, has enacted what acts shall amount to a revocation, «. 6, .^

providing " that no will of lands shall be revocable otherwise
than by some other will or codicil in writings or other writing
declaring the setme, or by burning, cancelling, tearing, or
obliterating the same, by the testator himself, or in his presence,
and by his directions and consent;" andUhe late statute, 1 Vict,
c. S6, #. 20, which applies to all wills and revocations subse-
sequently to 1st January, 1838, limits the acts of cancellation to
*' burning, tearing, or otherwise destroying the same, by the
testator, or by some person in his presence,: and by his* direction,
with the intention of revoking the same*^ The latter statute, ir
will be observed, in terms required that the act done shall be
" with the intention of revoking the same."

But the introduction of these words makes no alteration in
the law; for it has always been held that the mutilation of
entire destruction of a will did not necessarily amount to a'
revocation, unless it were done " animo revocandi.*\a) The

(a) Though the* words " with intention to revoke the same," intro-
duced into the late statute have not altered the law, because the inten-
tion was always implied in cases upon the statute of frauds ; yet by
bringing all property within its range, and declaring that no will^
nor revocation of a will, shall be good| except it be in accordance with
its provisions ; it seems to have put an end tb a distinction taken in
some late cases between a cancelling which may have been sufficient at
common law, and a cancellation under the statute of frauds. In a case
where a will was thrown into the fire, but nofbumt, it was said thai
there are certain modes of revocation permitted by that statute, of wbieh
burning is one^ it follows that there must be a bnnnng of the will to

o o o 2

932

mma.

Cancella-
tion.

Cutting
with 6cis<

sors.

tnaxim of the civil law upon this subject is, " incauie, factum
pro non facto habetur." A will, therefore, cancelled through
accident, or by mistake, is not revoked; Cowp. 52; or if only
cancelled preparatory to a fresh will, and death before execution
of the second will. 1 Hag. 143. So the cancelling a former
will, on a presumption that a latter will, devising the same lands
to the same uses was effective, which latter will, however,
turned out to be void, was no revocation of the former, so as to
let in the heir. 1 P. Wms. 345 ; 1 Hag, 378. At the same
time, although revocation is not the necessary ^ it is the ordiwny
inference from every act of cancelling. 2 P/iilL 24. In order,
therefore, to bar its application to any particular case, two
things at least are requisite, 1st, that the cancelled paper should
have once existed as b, finished will; 2dly, that the testator
adhered to it throughout in mind and intention, notwithstanding
its cancellation. I Add. 52 ; 1 PhilL 401.

In a case where the three sheets of the instrument were con-
nected by tape, sealed by the seal of the testatrix, the same seal
annexed to the will itself, but the whole of the margin had been
carefully cut down with scissors, so that the body of the instru-
ment was detached from its frame, and the attestation clause
was cut through : — The court said, " It is my duty to put a
'' rational construction upon this act, and in my judgment it
'* must have been done for the purpose of cancelling, revoking,
** and destroying the validity of this instrument, but the pre-

some extent to satisfy such enactment, and, therefore, if a testator throw
his will on the fire, though with an intent to burn it, yet if no part is
burnt, there would be no revocation, at least of such part of it as par-
ported to devise freehold property ; notwithstanding the act of throuirg
into the fire may have been with the intention to destroy sach will :
but the same principle does not apply to a devise of copyhold lat.ds,
because they are not devisable by the statute of wills, and therefort- ic
such a case an attempt made to bum the will with an intention to
revoke, though imperfect and insufficient under the statute, may be
sufficient at common law, and the intention to revoke may be evidencrfl
by conduct as well as words. 6 Ad, <$* EU, 209 ; 1 CurU 580 ; 8 Al
^ EU, 12 ; but as all revocations must now be under the provisions of
the statute, a mere attempt can in no case be sufficient ; in the lattff
case it further appeared that the will had been taken off the fire bj *^
devisee, that the testator had expressed his annoyance that she loi
recovered possession of it, and his intention to make anew vnll ; butbd
taken no further steps towards its destruction, or towards making a uev
will ; it was considered by the court that the continuing in existeIK^
of a will intended to be destroyed, with no wish to restore its efficacy;
but great displeasure at its rescue from the fire, was not evidence of the
testator's acquiescence in its continuance. 8 Ad, ^ EU. 12.

jmma, 933

" sumption that the act was done to cancel the instrument may Cancelia-
*' be repelled, by shewing that it was done for some other pur- ^°°'
*' pose, or by some other person/* 1 P/nlL 401.

The drawing a pencil mark through some legacies has been
held to be an equivocal act, to be explained by evidence ; an
erasure in pencil is as perfect an act as an erasure in ink, but
more equivocal as to intention. 3 PhilL 32\,

In the case of Lord John Thynne v. Stanhope^ 1 Add, 5^.
Sir J. Nicholl said, *' In legal consideration, a will may be can-
** celled without being revoked. The cancelling itself is an
*^ equivocal act, and in order to operate as a revocation, must be
" done * animo revocandi* A will, therefore, cancelled through
'' accident, or by mistake, as in the instance put by Lord Mans-
*' field, in the case of Burthenshaw v. Gilbert, Cowp. 52, and
** similar ones, is not revoked. On the same principle it was
" held by Lord Chancellor Cowper, in the case of Onions v.
" Tyrer, I P. Wms. 345 ; 2 Vern. 743 ; Prec. Chan. 459, that
*' cancelling a former will, on a presumption that a latter, de-
" vising the same lands to the same uses, was effective, which
" latter will, however, proved to be void, was no revocation of
" the former to let in the heir ; I assent, therefore, to the general
" legal proposition, that the cancellation of a will does not ne-
** cessarily inter any intentional abandonment of the dispositions
'' contained in it, or consequently any revocation of it; at the
'' same time, it is obvious that this is the ordinary inference
** deducible from every act of cancelling ; 1 Add. 455 ; 1 P.
" Wms. 343 ; Cowp. 62 ; 1 Saund. 279 ; I Eg. Cas. Abr. 408 ;
1 4 East, 440 ; 1 Brod. ^ Bing. 650 ; 1 Hag. 143 ; 4 Eait, 419 ;
7 Ves. 372. The principle that every cancellation will be pre-
sumed to have been done " animo revocandi," till the contrary
is shewn, is again asserted by the same able judge in the case
of Richards v. Mumford^ 2 Phill. 28. " The act of cancellation
or destruction is primd facie, done animo revocandi, and a pre-
sumptive intention to revoke till the contrary is shewn. The
reason is, that the act of voluntarily destroying the instrument,
implies the intention of revoking its whole ell'ect." Thus, a will
found in the repository of the deceased with the seal torn or cut
oft, it will be presumed to have been done animo cancellandi,
Lambell v. Lambell, 3 Hag. 568 ; 1 Lee, 444.

Where a will has been destroyed without the authority of the
testator, it is not in law revoked. I PhilL 149; 1 Add.\62\
I Hag.244f; 1 Lee, 413 ; or, if it be done by the testator when
not in sane mind. 1 Add. 74 ; 3 Hag. 754.

It seems immaterial whether cancellation took place under a
mistake of law, or of fact. In Perrott v. Perrott, ] 4^ East, 440,
it was asked, if a man cancelled his will in the belief that a se-
cond will which he had made applied to property, to which the

»34

mm.

Cancella-
tion.

Partial
cancella-
tion.

Of codicil.

Of dupli-
cate.

firyt applied, and he was iniaftaLeii io that respect, vtiefcherit
woald be a valid capcellatioii. The rule seems to be, that
where a testator, ihou^ using the mews of revocatioii, could
not intend what he did for any other purpose but to give effect
to another disposition of his property, thcmeh if it had been a
mere renrocation, it would have liad that e&et, yet the object
being only to make way for another disposition, if the instra-
tnent cannot have that effect, ii will not be a revocation. 7 fet,
872.

Where a second will has been made under a filse belief that a
first will is not in existence, probate, it seems, may be granted to
the first will, ^ second not having been intended to rev<dce it;
1 Hag. 378 ; but this case was decided upon consent, and with
a doubt as to the validity of the second will, which was nunco-
pative. And vid. 2Ak.S6i S Ve$. 337.

The ^ect of partial cancellations, mutilations or obliteration!,
may be to revoke the whole will or a part only, or a particular
clause in a will, according to what may be proved to have been
the intentions of the testator. The tearing or cutting off the
seal and signature, though only a partial destruction of the in-
strumeut itself, yet being the ordinary mode in which a man
destroys tl^e legal effect of the whole instrument, leads to the
inference that be intended to revoke the whole. 1 Add**l%\ S
Hag. 568; lLe(S,444f.

cut the obKteration of a particular clause operates only as a
revocation pro fanto of that particular clause. lAdd.li\^
Hag. 552 ; 3 fiof. & Pull. 16 ; 4 East, 419.

If it be proved that alterations and interlineationa have bees
introduced without the authority of the testator, that wooU
amount to ^. case of forgery pro tanto, and the court would ex-
punge such interpolations, and grant probate of the will restored
to its original ferm. ^Hag. 3^.

A codicil being jar%m& jacie dependent upon a will, the cao-
cellatiop of the will is impliedly a cancellation of the codicii«
^Hag. 361; but where an intention is proved that theeodid
shall operate, notwithstanding the cancellation of the will, thi$
rule does not apply. 2 Lee, 335 ; 2 Add, 231 ; I Curt. 992.

If a will be executed in duplicate, and the testator keep ooe
part himself, and deposits the other with ^ome other penoa
and the testator cancels the part in his own custody, it is a ie>
vocation of both; 2 Hag. 266; and the cases there cited;-
Phill. 23 ; 2 Lee, 5S2 ; the same presumption prevails where
both instruments are in the testi^tor s custody, even though k
alters the one before he destroys it, but the preaumption i>
necessarily weaker. 13 Ve$. 310. A testatrix executed her
will in duplicate in 1814, keeping the will herself, and det
vering the duplicate to her solicitor, who returned it up to ber

935

in 1887 ; both will and duplicate w6re found in her port&Ko on Cancellft^
her death, in 1^30. The will was enclosed in an envelope, in- ^^'

dorsed by herself, *'my will,** with the additional word " mine" Of dupH-
written in pendl ; the duplicate had been altered, by cutting out ^^
the names of several devisees. It was held su6h mutilation was
neither « total, nor a partial revocation. 3 Hmg. 548.

So with regard to the custody of wills, if a will be found
cancelled, or not found at all, the presumption is, that it has
been cancelled or destroyed tmimo revoeandi ^ 3 Hag. 184, 568 ;
1 Lee^ 47£ ; 3 PhiU. 126. So^ if a testator has the custody of one
of two dui^icate wills, and cancels that ; S PhiU. 2S \ St Hmg.SeS.

As it is the last will in point of date which takes efifect, such ByambM-
will may by express words (a) destroy any former will or wills, quentwUl.
or it may, by implication, revoke any previous testamentary dis-

f30sition inconsistent with its own provisions; in cases of wills of
ands by the statute of fraudsi and of wills made since the Ist
of January 1838, by the 1st Vici. c. S6, s* SO^ certain solemnities
are requisite for the purpose of revocation ; but a will of per-
sonalty made before that day, and as it would seem revoked
before that day, may have been totally or partially revoked by
any informal will, codicil, or other instrument, which may be
held by the ecclesiastical court to be final and testamentary, and
consequently entitled to probate as a will 1 Lee, 47S ; 2 PhiU.
35; 2L€e,9nO.

We have seen above, anie, 917, that instructions, if reduced to
writing in the lifetime of the testator, may operate as a will, and
it has been held that such a will will, under circumstances,
revoke a prior executed will ; 1 Lee, 509 ; 3 Hw. S49. So if
the execution of a second will be proved, havmg a different
executor and residuary legatee, it is a revocation of the first,
though such second will do not appear. 1 Lee, 472.

As different testamentary papers may operate together, as locon^t-
containing in their combination the last will of the deceased, or ^"^^'^^
different independent codicils may be proved, so a subsequent pa^^n7
testamentary paper, containing provisions inconsistent with some
former disposition, or a codicil inconsistent with a former codicil.

(a) Where a party tinder a power executes a will with two witnesses,
in conformity with such power, and afterwards executes another will,
attested by one witness only, the power requiring two ; the latter will,
which contained a clause Revoking all former wills, was held sufficient to
revoke the first will. The court said, *' the former paper, so far as regards
this court, is revoked, and is no longer a wiU. How can this court
grant prohate of a former paper, as containing, together with a complete
will, revoking all former wills, the will of the deceased ?" RiekerS9$h
y.B0rryt9Heg.2i9\ Mndvid.4Hag.62\ hBdSHeg.S72.

936

wtansL

Reroca*

tion.

By a sub-

sequeofc

will.

Two wills
of the same
date.

Revocation
implied.

would reToke the formery but only pro ianio^ and as far as it
was irreconcileable with the former dispositioD. ZHag.^\
Cro.Eliz.72\; 3Mod.203; 2 PhiU. 50, 312 ; 1 ^rfd.448.

We have seen above that the presumption of law is alwap
against any unfinished and incomplete instrument ; it is onne-
cessary again to recur to those cases ; such presumption is still
stronger where the effect of an unfinished paper will be to re-
voke, control, or alter a will deliberately made and regularh
executed. To establish a paper under such circurostancesy
there must be the fullest proof of capacity, volition, final inten-
tion and interruption by the act of God ; 4^ Hag. 410; lAdi
448 ; 1 Hag, 504. Unfinished instructions are not to be con-
sidered as a codicil in addition to the will, but revocative as fir
as they go, and they are to be taken in conjunction with the
will. 2 PhiU. 3]2.

Where a subsequent will, disposing of real as well as of per-
sonal property, and containing a clause of revocation, reroained
uncancelled; it was held not to be revoked, and a former will
revived, by the merely reading over the former will, tboogb
parol declarations by the testator, were also proved that the
latter was not the testator's last will ; and though it appeared
that the former will was found carefully deposited and locked
up in a drawer, whilst the latter will, though in the same
drawer, was lying among useless papers, and all the devises
and legacies lapsed. Daniel v. Nockolds^ 3 Hag. 777. The
animus repocancU in such a case must be clearly established,
otherwise the last dated will uncancelled will remain in force;
slight circumstances will not amount, in such a case, to repabli-
cation. 1 PhiU. 386.

If there be found two inconsistent wills of the same date; or
without date, and there is no evidence to shew which is the
latest, both are necessarily void, and intestacy is the conse-
quence; but if they can be reconciled, probate may be granted
of the whole ; 7 Bro. P.C.443; 2 Hag. 80 ; aud vid. 1 Curi*
568.

In a court of probate, parol evidence is admissible to shew the
intention of parties where ambiguities of this description arise,
and if it be shewn that a subsequent codicil, though not ex-
pressly revocatory of a former was intended as a substitute for
it, it will be considered as revoked, though not cancelled. 2
PhiU.^\6\ 2 Add. 239. General bequests, however, without
evidence to show the contrary, are to be taken as cumulative.
3 PAiU. 319 ; 4 Hag. 198 ; 1 Add. 448.

As the law declares that a subsequent will, when irrecon-
cileable and inconsistent with a former will, revokes it, so also,
it declares that the status and condition of the party making a
will, may be so changed as to be irreconcileable and inconsistent

mnii. 937

with the diaposition of his property made by such will, and con- R«voca.
sequently that the will is revoked by such change of circum- pJlej™'
stances. *-

Thus marriage and the birth of children has been held to be ^^ """"
a revocation of a will made before marriage, but the ecclestas- b^f^ of
tical courts have hitherto held it to be a presumptive revocation issue,
only^ depending upon intention, and consequently a presump-
tion, which may be rebutted by evidence ; and they have, for
that purpose, admitted the evidence of parol declaration of the
testator in concurrence with other circumstances. 1 PhilL 469 ;
2Lee, 198; 1 Hag.705; 2Hag.56l ; 1 Car/. 404; Dougl.SS;
1 Lord Raym. 441 ; 2 Salk. 592 ; ante^ 41 1. The presumption,
however, that the will was not intended to be revoked, must be
unequivocal ; 2 Add. 455. In the very recent case of Marston
.V. Roe dem Fox, 8 Ad, Sf EIL 54, Tindal, C J., pronouncing the
judgment of all the judges, except Lord Denman, said,-— ''We
all concur in opinion, that the revocation of the will (made before
marriage, without provision for issue born of the marriage) takes
place in consequence of a rule or 'principle of law, independently
altogether of any question of intention of the party himself, and
consequently that no evidence of intention is admissible.** The
learned judge, however, added : — " The question now before us
relates to the revocation or non-revocation of a will devising real
property; it is a question whether such revocation shall be
allowed to depend upon evidence of intention, that is, upon evi*
dence, of which parol evidence of the testator's declarations may
confessedly form a part, whilst the statute of frauds has anx-
iously and carefully excluded evidence of that nature, with
respect both to the original making and revoking of wills of land.
The ecclesiastical courts, on the other hand, are concerned in
the granting probates of wills and testamentary papers relating
to personalty only, in which cases no statutory enactment has
excluded parol evidence of the intention of the testator as to
what shall or shall not be a testamentary paper ; or what shall
or shall not amount to a revocation or republication of a will.
On the contrary, the evidence bearing on these points is gener-
ally mixed up with declarations of the party, and frequently
consists of those declarations alone. The decisions, therefore,
in the ecclesiastical courts may be sound decisions with respect
to the subject-matter to which they relate, and may yet furnish
no authority now in judgment ; vid, the elaborate judgment of Sir
H. Jenner on this case in the ecclesiastical court." 1 Curt, 494.
The learned chief justice afterwards stated the rule of law ^ule of
on this subject, ** That in the case of a will of an unmarried law.
man having no children by a former marriage, by which will he
devises away the whole of his property which he had at the

938

aNflitf.

B«VOGt«

tion.

By mar-
riage and
birth of

ttSIM*

1 VicL
c. 26.

Death of
child will
DOt revive
a will re-
▼oked.

time of annuIKng the will, and leaves no proviitoti for aify child
of the tnarriage, the law annexes the tacit condition that auch
subsequent marriage and the birth of a childi operates as a
revocation/*

In the above case it was, however, further contended, that an
after purchased estate not passing by the will, but descending
on the child, became a provision for him, and prevented the
revocation of the will ; but it was answered by the court, that
such a proposition was incompatible with the nature of the
condition annexed to the will, which, so far as it relates to the
existence or extent of the provision, must, in its own nature,
have reference to the state of things existing at the time the
will was made ; 8 Ad. ^ EU. 63.

It may, therefore, now be considered as settled, in the com-
mon law courts at least, that marriage and the bir^ of children
is an absolute revocation of a will made before marriage, if
on such marriage no provision is made for expected issue.

The late act, I FicL c. 26, s, 18, expressly provides for the
future, that '* every will made by a man or woman shall be
revoked by his or her marriage, (except a will made in exercise
of a power of appointment,) when the real or personal estate
thereby appointed would not, in default of such appointment,
pass to his or her heir, customary heir, executor, or adminis-
trator, or the person entitled to his or her next of kin under
the statute of distributions."

The statute further provides, by s. 19, '^ that no will shall be
revoked by any presumption of an intention on the ground of
any alteration in circumstances."

It seems always to have been held, that if the will, under the
circumstances of the case, were revoked by the birth of a child,
its death would not again revive it. 1 Phill. S4& ; S PkUL 966;
nor did it interfere with such presumption, that the will was
made in favour of children by a former marriage, the testator
being a widower, if the issue of the second tnarriage were left
unprovided for, 1 PkiU.S39\ or that the child was posthunioas.
5 T. R. 49. In Johmton v. Johnston, 1 PhiU. 447, it has been
held also, that a will made q/Ver marriage was revoked by the
birth of other children left unprovided for* In Doe v. Burford^
^M.^S. 10, the birth of a posthumous child was held not to
revoke a will made after marriage, although there had been no
other child of the marriage, and although neither the testator nor
his wife, at the time of his death, knew that she was pregnant
In neither of these cases does it seem that marriage, after the
making the will, was considered as necessary to the revocation ;
by the late act it is made the only requisite.

The principle upon which, in the ecclestastica) courts, it was

mtas* 939

held, and has lately been beld by ali the judget. thafc marria^ and Revoca.
birth of iasue revoked a will laade before marriage^ was founded ^'*^°'
on the presomptioD that Bucb issue were left unprovided for,
where, therefore, it appears that there is a provision for such
issue, the presumption in the eoclefiiastical court is repelled.
2 Hag. 564 ; 1 Hag. 705 ; and the rule of law, as stated by
Tindal, C. J., ante, 987, does not apply.

It seems now to be admitted as a principle of law that tl)e Effector,
revocation of a later will does not neoeitsarily revive a former in revWinK
uncancelled will. Lord McMufield^ indeed, is reported to have ^<b""®'^11-
said that, ** if a man, by a second will,4^voke a former, yet if he
keep the first wUl undestroyed*. and afterwards destroy the
second, the first will is revived.*^ 4 BurUf 2512. This principle
is not, however, to be admitted without limitation. 1 Phitt. 419.

In the ecclesiastical courts, the rule seems to have been
different ; in Wilson v. fViUon, 3 PhiU. 554, Sir J. NichoU,
alluding to the above opinion of Lord Mofufield, said, " in
these courts, as applies to wills of personalty, the presumption
has been rather the other way, and against the revival of the
former testament ; it has been held that it requires some act to
show an intention of such revival ;" vid. cases collected, 1 PkUlf
A\2i€t seq.

The prevailing opinion now seems to be that the legal pre-
sumption arising upon such a state of facts is neither adverse to,
nor in favour of, tne revival of a former uncancelled will, upon
the cancellation of a subsequent and revocatory one ; but that it
is a question depending upon all the circumstances of the case.
2 Add. 125 ; $ed vid, 1 Hag. 327. In which case. Sir J.
NiehoU said, '' it is not quite settled whether the principle of
law is that on the revocation of a later will, a former uncancelled
will is presumed to revive or not ; the presumption may depend
primd facie on the nature and contents of the wills themselves,
exclusive of circumstances, dehors the will. If the latter will
contains a disposition of a different character, the law may Effect of,
presume such a complete departure from the former intention JP rtvvi'mg
that the mere cancellation of the later instrument may not cancelled"
lead to a revival of the former, but intestacy may be inferred, will.
If, however, the two wills are of the same character, with a
mere trifling alteration, it may be presumed, (because it is a
rational probability,) that when the testator destroyed the latter
he departed from the alteration, and reverted to the former
disposition remaining uncancelled;" and vid. 1 Lee^ 511. But
surely, in the instance put by the learned judge, the pre-
sumption does not arise out of the mere fact of the cancellation
of the subsequent will, but upon the general circumstances,
though those circumstances are derived out of the contents of
the wiUs themselves, and not from matter dehors the will.

940

wBma.

Revoca-
tion.

EflTectof,
io reviving
former uq-
cancelled
wUl.

Republica-
tion of.

With regard to wills made after the Ist January, 1838, it
is now expressly provided by the 1 f^ict. c. 26, s, 22, " that
no will or codicil, or any part thereof, which shall be in any
manner revoked, shall be revived, otherwise than by the re-
execution thereof, or by a codicil executed in manner herein-
before required, and shewing an intention to revive the same;
and when any will or codicil, which shall be partly revoked, am)
afterwards wholly revoked, shall be revived, such revival shall
not extend to so much thereof as shall have been revoked
before the revocation of the whole thereof, unless an intention
to the contrary shall be shewn.**

A will of personalty, previously revoked, may have been re-

f>ublished before I Hct. c. 26, by any writing, whether codicil-
ary, testamentary or otherwise, distinctly disclosing the intention
of the testator, to republish such will. So also, it should seem, by
any declaration to that effect. In contemplation of law, every
original will required publication ; and in a case before Lord
Hardwicke the only question was, whether the testator had
published his will, there being no doubt of its having been duly
executed and attested. 3 Atk. 161. And it has always been
considered that, whether a party had published his will, that is,
whether or no he intended any particular document to operate
as his will, might be collected from his conduct, or declared by
word of mouth ; if then an original will can be published by
other modes than by writing, it cannot be doubted but that a
revoked will may be re-published in the same manner.

In the ecclesiastical court, therefore, anything which shews
an intent to republish a will, is sufficient to do so. The mere
conservation of a will for many years may be sufficient. 3 Add,
264. So the referring to a will, in order to have a codicil made
to it, though the will at death was found cancelled. 2 Lee^ S4.

The declaration that it is the will, distinctly made by a widow,
and a beginning to read it when testatrix was interrupted, was
held enough to republish a will made before marriage. 3 Add,
48. Or the delivery of a box by a widow to an executor, and in
which a will was found at her death, saying it contained her
will, was held to republish a will made before marriage. 2 Hag,
209.

But where a testator, in mistake, spoke of a will as his will,
but it appearing that there was no animus republicandi, it was
held that there was no republication. 2 Atk. 599.

But although declarations by the deceased, are admissible for
the purpose of shewing an intention to republish a will, yet
when two wills are found entire and uncancelled, declarations
with reference to the will, prior in date, will not republish it,
because then such declarations would have also the eflect of re-
voking the former will. The court said, this is not like theca^e

mum, !^4i

of a later will cancelled, because the very act of cancellation RepubHca-
revokes the former, and lays a foundation for the inference, ^^° ° ' _
that the testator intended the former will to operate. 3 Hag,

A will made by a person incapable by law of making a will,
may, by republication, when competent, become a valid will, in
the same way that republication restores a revoked will. Swinb,
88. The 1 Fid. c. 26, s. 2, providing, that that act shall not ex-
tend to any will, made since the 1st January, 1838, enacts,
that, " every will re-execute<i, or republished, or revived by any
codicil, shall, for the purposes of this act, be deemed to have
been made at the time at which the same shall have been re-
executed, republished, or revived."

When or how the ecclesiastical courts of this country obtained Probate
cognizance of wills, seems uncertain, Spelman states, that in ?°^^o™"*'

Scotland, wills were matters of ecclesiastical jurisdiction so early

as the reign oi Henry the first o( England f and the statute 18
Ed, 3, recites, that *' causes testamentary notorioushj pertain to
the cognizance of the holy church ;" Str, 669.

Lyndwood, p, 174, says, that this jurisdiction arose by cus-
tom ; it may, hbwever, be fairly surmised, that it was acquired
by encroachment of the church. The fact that some lords of
manors still retain the right to have wills proved in their courts,
seems referable to this idea, as shewing that the owners of such
lordships refused to submit to any invasions of their rights.

The spiritual courts generally have exclusive jurisdiction
over wills of personal property, which they require to be proved
in their courts, in order to be registered ; and also in cases of
intestacy, have exclusive power to grant administration ; in niat-
ters concerning personalty, nothing but the probate of the will,
which is the authenticated copy, can be exaibited in evidence
to prove the contents of the will. A man wishing to prove
himself an executor can only do so by producing the probate,
which shews him to be the executor named. An administrator,
who is named by the court, and not by the will, must shew
letters of administration, under the seal of the ecclesiastical
court, as his title to administer the property, (a)

An executor may be appointed by express words or by nece&- Executor,

eary implication. , . ^^t of.

Where a man declares, by his will, that one shall have ms

(a) The vaUdity of wills is subjected to different modes o^ J"^^«
according to the nature of the property m litigation ; in devises of land,
juries decide on vivd voce evidence; in bequesU of personalty, the
spiritual judge decides on depositions. But courts of eqmty disclaim
all jurisdiction in either case. 13 Ves, 597.

942

wim.

Exeeulor.

Appoint-
ment of.

Nominees.

good« after bis death, to pay bis ddbts^ and olberwise to dispose
of them at his pleasure, or to that efiect ; such person is made
executor. Cro» EUz^ 43.

So where A., B., and others were directed to receive and pay,
it was held» that they were executors, for a power to receive and
pay, implies everything necessary to execute* such power.

So where a man, by his will, appointed trustees for certain
purposes connected, with his real estates, and also directed them
** to pay his debts, funeral expenses^ and the expense of proving
his will.** The court said, ^' there can be no doubt that the
parties, for whom probate is now prayed, are executors accord-
ing to the tenor." I Hag. 81 . Where a will named a nephew,
S. L.» being a minor, residuary legatee, and by a last codicil
also added, " I appoint my nephew, S. L., my residuary I^atee,
to discharge all lawful demands against my will and codicils,
signed of different dates,'' and at the making this codicil the
nephew was on the point of coming of age. It was held, that the
words " residuary legatee," in the codicil, were onl^ descriptive,
and that the words which followed expressed the real object of
that instrument. 3 PhilL 1 18.

Where a will gave a legacy to M. L., and then added, " if
the said M. Lu be not living, I do constitute E. T. my whole
and sole executrix,!' and eive. her the residue ; and £. T. died
before the testator, but IM. L. was living at his death. Sir G.
Lee held, that M. L« was constituted executrix by implication.
2 Lee, 54. A person appointed executor by a will, for a
limited purpose only, may, by implication, be appointed general
executor by a oodioiL 1 Hag* 386. So an executor named in
a codicil, may propound both will and codicil, where the codicil
is part of the will. 2 Lee, 506. Where a testator appointed
his wife executrix, and another person to assist her, it was held,
that such other person might be executor according to> the
tenor. 3 PhiUA 18.

If a testator give a power to his legatees to* name exeentors,
the court will grant probate to the persons appointed by them.
1 Hi$g, 648. Such a practice is said not to be uncommon in
Scotland, and the testator in the above case, seems to have been
domiciled in that country.

The same will may contain an appointment for distinct and
independent purposes ; one as executor for general purposes,
and another for a limited purpose. 3 Phill. 4^.

The appointment of an executor may be general, or it may be
limited as to the time during which bis office is to last ; or to a
particular portion of the testator's* effects to which it is to apply.
Totter an Eweeutor^y 36, or conditional as to the time within
which he proves the will. XCurt. 1.

mm. 943

Iq theae easesi if no per aon is. named to be exMutor during Executor.
the interval ; or to administer such of the effects as the power of A^^^btT"
the appointed executor does not include^ the ordinary may mentof.
commit administration to aaoAher person, cum ie^ktMmento annewoy
posL

Wtiere aa executor is appointed by a formal insteuoent, the Rflvocatioa
revocation of such appointment must be express, or by neces- ^^'
sary implication. 2 Phill. 255.

Generally, an executor substituted, cannot propound a wilL Substi-
till the person first named has been cited to accept or refuse^ ^"^*
2 Lee, 557.

Where a testator appointed two executors, and provided that
on the death of either of them two others, should be substituted ;
and on the dleath of the testator one executor only proved
the willy and at his death probate was granted to one of the
substituted executors, it appearing to have been the testator's
intention that the substitution should take place on. the death
of either the original executors, whether happening m the tes-.
tator's lifetime or otherwise ; in this case, there was also a proxy
of consent from the other original executor,, who had not joined
in mnyving die will. 1 Hag. 2^5.

The office of executor is transmissible by operation of law. Office of
If A. be sole executor to B., and prove the will, the executor of traMmiiri-
A., on his death, is the executor and representative of B* But. ^'
if A*, die before B., or die before he has proved the will, then
the executorship is determined, and application must be made*
for administration cum teatametiio annewo,^ But if several be
appointed, and one survive, the whole survives to. that one, and
is transmissible through him to his own executor; so if one
rencHince, no intecest is transmissible whilst such person lives.
Williams on Executors, 145 ; 2 Lee, 24iS,

A married woman, execulvix, having separate property, over
which she had, and exe^B<nsed an appointing and disposing
power^ may, by appointing an executor, continue the chain of
representation* &aag. 750« But where a widow is left execur
trix, with a stipulation, that in the eveotof her seconds marriage
she is to concur in the appointment of trustees for the^ manage-
ment of the prop^ty, and she marries without appointing, her
executorship expires with her second marriage. 2. LeetSll. As
to the ttAnsmiSttbility of admintalration, wk post.

An executor hi^ an election either to undertake the office MayrefiMe.
which devolves upon him or not; butif be. once accept or com-
mence the administration of the effects, the ordinary may. compel
him to prove the wilL Where a man was both trustee ami.
executor^ and acted under the will, by releasing a debt due
from a. debtor, which he could not do otherwise than as exe-
cutor, he was held to have determined his option oftaUng upon

944 2infll0.

Executor, inm the executorship, and was assigned to take probate, 1 Lee^

In the case of Long v. Symes, Sir J. NichoU said, — " There

is no doubt on the law, if a person named executor intermed-

But not ^\gs, he cannot afterwards refuse probate. There are some

after having acts of necessity, such as feeding cattle and the like, which do

acted. nQi bind, but slight circumstances are obligatory, and sufficient

to compel a person to take probate if really executor. The

most safe course is not to meddle at all, but utterly to abstain/'

In Bacon's Abridgment, Executors, E. IQ, it is said, whatever

acts will make a man liable as executor de son tort, will be

deemed an election of the executorship.

In the above case o{ Long v. Symes, advertisements had been
put into the newspapers, requesting persons, who had claims on
the estate of the deceased, to send in their accounts, and to pay
all money to A. or to B., *' his executors in trust/' Sir J. NichoU
said, *' that nothing can be more strong to shew an intermeddling
than the insertion of such an advertisement, it does not merely
shew an intention to accept, but it is an absolute acceptance of
the executorship, and being a joint act binds both.*^

It seems, that the merely taking the executor's oath is not an
intermeddling, so as to bind a party to the executorship ; 3 Hag.
21G; but it would seem sufficient to indicate an intention to
accept the office.
How to '^ ^^ executor wish to renounce, he must do it in such a

renouDce. manner as to be recorded in court, for until the renunciation be
recorded, no person can take administration. 3 Hag. 776.
Therefore a refusal by word of mouth only, is insufficient j
ib. 774.

An executor who has renounced, may, at any time before
administration is passed under the seal of the courts retract
such renunciation ; 3 Hag. 212 ; for till the court has acted by
its seal, the renunciation is not binding, ibid. Where one, of
several co-executors who proved the will, renounced, he may
after their deaths take probate as a matter of course. 3 Add.Z'tS,
Where an executor renounced, and upon his renunciation, ad-
ministration with the will annexed, was granted to the widow and
residuary legatee for life, and she died, leaving effects of the
testator unad ministered, it was not permitted to such executor
to retract his original renunciation, and obtain administration ;
3 Add. 273 ; after the taking administration, a new chain of
representation seems to have commenced.
Cited to An executor may always be cited, by any party having an in-

prove. terest under the will, to bring it in and prove lit; but if such
party resorts to formal and expensive proceedingSi without a
necessity for so doing, 1^ will be condemned in cosU« SAdd.
50L Where an executor is cited to take probate, and rproc-

Winia, 945

tor appears for him, and states his readiness to do so, the court Executor.
will not require a regular proxy ; the act of taking probate is Custody of.
sufficient. 4? Hag. 403.

If a will be proved to have been in the custody of a third Third
person, such person may also be cited, and it is no cause for P*f*y- 1

withholding a will that the executor is indebted to such person, f

but the court will peremptorily order it to be brought in. i Lee,
158. (a) Nor can an attorney set up a lien on a will as a reason j

for withholding it. 2 Ad. ^ Ell. 45. Nor it seems, can a party,
so retaining a will, be allowed to dispute the jurisdiction, and
put the party citing to the proof of bona notabilia. 1 Add. 345.

A party holding an instrument is not to judge whether it be
testamentaiy or not. Where, therefore, it was objected that the
paper called for had never been seen by the deceased, the court
said, there is a possibility, nevertheless, that the paper may be
of a testamentary character, it may contain instructions drawn
up in the lifetime of the deceased. 2 Phill. 325.

A will may be proved either Probate.

In common form ; or.

In solemn form ; or as sometimes said, by form of law, or
per testes. Swinb. 448 ; 4 Bum's Ecc. L. 248.

In order to prove a will in common form, the executor must in common
appear before the judge, and produce witnesses to testify on form.
their oaths that the testament exhibited is the true, whole and
last will of the deceased, upon which probate is granted. Swinb.
448 ; Conset, 12 ; 4 Burns Ecc. L. 249, The executor is also
required to make affidavit that he believes it to be the true will
of the deceased, that he will pay the debts of the deceased as
far as, the goods extend, and the law binds, and that he will
exhibit a true inventory and account ; vid. form 4 Burns Ecc.
i.254; Conset, 12.

The personal attendance of the executor before the judge or
his surrogate, is required by Canon 192 ; but " if by reason of
sickness or age, or any other just let or impediment, he shall
not be able to make his personal appearance before the judge ;"
the judge may grant a commission to some grave ecclesiastical
person abiding near the party, to minister the accustomed oath
to the executor, or suitor for such administration. 4f Burn's
Ecc. L. 254.

(a^ Disputed wills ought to be lodged in the registry of the court, for
safe cQstody. Practitioners have no right to keep wills in their posses-
sion ; tbe expense necessary to get a will out of the hands of a party,
roust fall on those who withhold it. 2 Phiil. 250 ; 1 Lee, 662. \ ^^1
plicate of a will is a part of a will, and is considered a testatnentaiy
paper. 1 Lee, 662.

F P P

946

mim.

P^obate^ If tbe executor live at a distancei or be infirm, it is usual to
In common grant Buch Commission. 4f Burn's JScc.L, 251 ; 09iglitan,SiZ,
form. This commission is generally directed to two clergymen ; if

the executor is directed to be sworn before a notary public, it
has been held that such commission was not sufficiently exe-
cuted where the oath had been administered before two wit-
nesses, instead of a notary. 2 PhiU. 241.

If a will be complete and perfect on the face of it, and Aere
is no subscribing witness, it is only necessary for probate in
common form, that an affidavit should be made by two per-
sons that tbe signature to the will is in the handwriting of tbe
testator. 3 Add* 224f ; 1 Hag* 58, n. So probate has been
granted in common form of an unattested will, on the affidavit
of one person only to handwriting, and the consent of the person
solely entitled in distribution. The court saying, " The affidavit
of Mr. L, is very full and satisfactory, and the statement of the
sister, who would be more benefited under an intestacy, may be
taken, in proof of the handwriting, as equal to a second affi-
davit." 4 Hag. 209. Again, in a case where no person was able
to make the usual affidavit as to the handwriting of the deceased,
and the parties interested consented, probate was granted on
the affidavit of a solicitor, who had once seen the party execute
a deed, and who was allowed to make affidavit of his belief of
tbe handwriting, having compared the signature to the will with
the signature to such deed ; and a stockbroker, who had com-
pared the signature to the will, with the signatures of tbe de-
ceased, in the dividend book at the Bank of England.
Witnessef . If the will IS attested by one subscribing witness, the affidavit
of one person to handwriting is only required ; and if by two
witnesses, then no affidavit of handwriting is necessary. 3 Add,
224. If either attesting witness be a legatee, the atat 1 FicL
c*26,s, 15, as to wills made sipce the 1st January 1838, by
making such legacy void restores his competency ; but as to
wills made before that date, such witness being incompetent, is
considered as no witness, and his place must be supplied by tbe
affidavit of an independent witness to handwriting. 3 Add. ^o.
Consent. Probate of a will written entirely in pencil by the deceased a

few days before her death, may be granted in common form, on
evidence that she said that she intended it to operate in that
state, which was consistent with former declarations ; 1 Hag*
219 ; in this case the consent of parties interested under a
former will, appears not to have been given. So probate was
granted of a will altered in pencil, and cancelled, preparatory
to the execution of a formal will, by consent of all interested.
1 Hag. 143.

Generally, however, if the will be imperfect, whether such im-
perfection consists in its being incomplete in the body ; or in its

mim* 947

execution^ from the want of a signature, from the want of witnes- Probate.

ses where this is an attestation clause^ or the like ; then such will in common
cannot be proved in common form, even with the consent of all foi"^-
persons who would otherwise be entitled, unless upon affidavits,
which, if established by plea and proof, would in solemn form of
law sustain a disputed instrument. 1 Hag. ^25, ^53, 485. And
even if it be so proved^ still the court requires the consent, ex-
press or implied, of all parties interested ; 1 Hag. 225, 550,
695, 698 ; which cannot of course be had where minors are
interested. 1 Hag. 376, 47 1 -, 4 Hag. 180.

If the deceased be illegitimate, and the crown interested, the Consent.
consent of the crown must be had. 1 Hag. 643.

Consent, however, is not always necessary in cases of slight
imperfections ; thus, where a paper having an attestation clause
in the phiral number, but only one attesting witness, and the
date of the year was written on an erasure. Probate in com-
mon form was decreed, though one of four persons entitled in
distribution, refused to consent, but had entered no caveat ; the
executor swearing to a recognition, and the attesting witness to
the time and intention of executing^ 1 Hag. 478, 479.

The meaning of proving a will in solemn form, is; that per- xn «olemn
sons interested in an intestacy, should be cited to be present form.
at the proof of the will ; that the witnesses to the will should
be examined upon pleas or allegations, and that the parties
cited should have an opportunity of cross-examining them by
interrogatories, or if they choose of opposing it by making a
substantive case against it. Swinb, 448 ; 4 Burns Ecc. L. 250*
Where the will has not been set up in plea and proved, and
where there is no party before the court (opposition having
been withdrawn,) nor parties cited, the court will only grant
probate in common form. 4 Hag. 379 ; post, 980.

A party having an interest, may at any time compel an exe- p
cutor who has proved a will or codicil in common form, to prove
it per testes in solemn form ; and there seems to be no time
expressly limited beyond which a party may not insist on this.
3 Phill. 331. In one case, probate of a codicil granted in com-
mon form in 1808, was revoked in 1818; 3 Pfiill. I ; and one
granted in 1807 was revoked in 1820 ; 3 Phill. 405; ;^o*f, 980.

To provide against the possibility of being called upon to
prove a will in solemn form after lapse of time, and the witnesses
possibly dead, an executor may, in the first instance, prove a
will in solemn form, citing the next of kin, and all others pre-
tending interest in general, to see the will proved by witnesses ;
which being done, the will shall not be set aside afterwards
when the witnesses are dead, provided there has been no irre-
gularity in the process. 4 Burns Ecc. L. 252 ; post, 980.
It seems, that next of kin, though not regularly cited, if they

p p p 2

in)«!.

d48 wkm.

^^Q^^^' knew of the suit, are considered as barred also. 2 PAiff.224;

In solemn 1 -^dd. 372.

form. If no one, having a right to oppose, appear to contest, the

court is not bound ex officio to cite the next of kin ; if the evi-
dence satisfy the court that the instrument contains the last wiQ
of the deceased, it is bound to grant probate; 1 Lee, 551; but
it seems that the court will require a party, interested in ao
instrument propounded, to appear, before it can reject it
SPhilL 4^10.
Next of The next of kin are entitled of common right to call for proof

^z\Uo^ of a will in solemn form, and so is a legatee; nor will the re-
proof?' ceipt of a legacy by a legatee under sucn will, bar such right ;
2 Lee, 241 ; 1 Add. S70 ; & fortiori legatee, who has renounced,
may call for proof ; 2 Lee, 2il ', nor is a party barred
merely by the receipt of an annuity under the will, though it
has been received for five years. 1 Aild, 374. Still long acqui-
escence unexplained, and an adoption by acting under the pro-
visions of the will, no reasonable suspicion attaching to the will
itself, would amount generally to a waiver of the right to con-
test it ; 2 PhiU. i^30. A creditor has not, as such, an interest
entitling him to dispute a will; 1 Lee,5M; 1 Phill. 159; but
having obtained administration, he may defend it. Before
a legatee, who has received all or any part of his legacy, can
insist on an executor proving the will in solemn form, he must
deposit the amount which he has received in the registry of the
court, there to abide the event of the suit. 3 Add. 256; 1 Add,
374.

A legatee cannot set up a will after it has been litigated be-
tween the executor and next of kin, and pronounced against;
unless he can shew collusion ; 2 Lee^ 250 ; and eid. 1 Hag. 71 ;
if he wishes to take a part to protect himself, he must intervene
in the suit; ibid, ante, 480, 689. Where the executor pro-
pounds the will, a next of kin privv to the proceedings, is not
allowed to contest it afterwards, although not formally cited*
2 Phill. 224 ; 1 Add. 372.
Cofts. If a next of kin, or legatee, interferes vexatiously to call

upon the executor to prove his will in solemn form, the court
will punish him in costs; ante, 261, 262, 263.
Form of. As a will may be considered as partly good and partly bad, it

follows that probate maybe limited to such part only as i^
adopted by the court as the last will of the testator. 1 Phili.
187; 3 PAttf. 455, ».(*.)

So also part may be supplied by evidence, ante, I Hag-
244; 2Add.9l24t\ I Phitt. 154; or if torn, the frs^gnents put
together may be treated as the instrument upon which probate
ought to be granted. 1 Add. 462 ; 1 Hag. 244. If a wiU be
wholly or in part destroyed, or cancelled by the testator^ whilst

in an unsound state of mindi probate may be panted of it, as Probate.
it existed whilst bis mind was unaffected ; if tnat can be satis- Form of.
factorily proved. 1 Add, 74. But all such cases must be esta-
blished by the clearest proof. 1 Hag, 115.

If a probate be lost, the spiritual court never grants a second,
but an exemplification of the probate from their own records
may be had, which is evidence of the will having been proved.
7 Ad. ^ Ell. 240.

A man is said to die intestate (a) when he leaves no testa- Adminis-
mentary disposition of his property. ^^^^°°'

Without inquiring into the origin of administrations, or how
the ecclesiastical court became possessed of them. It is suffi-
cient for the present purpose, that the ordinary is the person
whom the law appoints to have the charge or administration of
the goods and chattels of a party who dies intestate, or quasi
iniestatus. 2 Inst. 397 ; 4f Burn's Ecc. L. 272 ; 1 P/iilL 124, n.
The Stat. 13 Edw, 1, stat, 1, c. 19, did not give the ordinary the
power of disposing, but supposes it to be already in the ordinary,
the statute being as to this only in affirmance of the common
law ; 2 Inst. 397 ; 4 Bum's Ecc. L. 270 ; 5 Rep. 83.

The persons who are called administrators, are the officers of Adminis-
the ordinary, appointed by him in pursuance of the above ^^o™-
statute, and their title and authority are entirely derived from
the ecclesiastical judge, by a grant which is usually called letters
of administration. 2BL Comm. 495.

Before the ISEdw.l, stat. c. 19, ordinaries might have
granted administration to whom they pleased, but by that act
*' they shall depute of the next and most lawful friends of the
dead person intestate to administer his goods.'* By 21 Hen. 8,
c. 5, ttie former statute was extended and explained, this latter
statute enacting, that the ordinary shall grant administration
** to the widow of the deceased, or to the wear/ of kin, or to both,
as by the discretion of the same ordinary shall be thought good,"
and in case where divers persons claim the administration as
next of kin, which be equal in degree of kindred to the testator,
or person deceased ; and where any person only desireth the
administration as next of kin, where indeed divers persons be
in equality of kindred; in every such case the ordinary to be
at his election and liberty to accept any one or more, making
request, where divers do require the administration.

(a) Administration is sometimes granted, oa presumption of death;
Thus, where a person sailed on board a vessel from Manilla, in July
1835, on a voyage to London, and the vessel was never beard of ,on^
February 16, 1837, nor any one on board. Administration was granted
on presumption of death. I Curt. 595.

950

mtmi.

AdmiDtt-
tratiou.

Next of kin
al time of
death.

HuabamU

Cases with-
in 2) H. 8.

Widow.

In cases, tliereforey within the statutes, the court may select
between the widowi and next of kin, living at the time of the
death of the intestate.

But the statute 21 Hen. 8, c. 5, only applies to such are next
of kin at the time of the intestate's death, and therefore the
ordinary is not bound to grant admitiistration to one who bj
the death of intermediate persons, may have become next of kin
at the time the application for administration is made. 2 Hag.
App. 152. The rule of office, as stated by Sir W. Wynnes and
which is stated to apply to original administrations, as well as
to administrations de bonis non^ is to grant to the interest and
not to the persons who were not next of kin at the time of the
death, but have since become so. 2 Has* App. 151. And
again, by Sir Edward Simpson^ ** when the next of kin, who

were so at the death of the intestate, are dead, then it is in

the heart of the court to grant it to the next of kin or the
" interest, and the grant does not depend upon the statute^ but
'' the rules of the court ; who may grant it to the next of kin,
** or to the interest, without regard to greater or less interest
'' according to the circumstances.*' 2 Hctg. App. 154.

In the case of husbands, they are entitled under the excep-
tion of the 29 Car. 2, c. 3, s. 5, to all their wive's property, and
also '' to demand and have administration of their rights, credits,
and other personal estates, and recover and enjoy the same as
they might have done before the making the said act," the
22^28 Car. 2, c. 10, (the Statute of Distributions.) The right
of the husband is, therefore, considered as a civil aind not as an
ecclesiastical right, although administered in the ecclesiastical
court. 2 PAill, 19 ; 2 Hag. App. 149. In the case of a husband
as he takes in right of his title as husband, proof of the legality
of the marriage seems required. 2 Phiil. 19, 69 ; 2 Add, 173.
The same strictness seems not to be required where a widow
applies, as such, to the discretion of the ordinary. 3 Hag. 557;
2 PhiU. 332, post, 951, n. (a).

The statute 21 Hen. 8, c. 5, leaves it open, aa has been seen,
to the ordinary to grant administration either to the widow or to
the next of kin ; and though it is usual to prefer the widow,
yet it has always been held, and repeatedly decided that the
widow may be set asidcs and administration, at the discretion of
the court, granted to the next of kin ; this discretion, however,
like all other cases of judicial discretion, is not to be exercised
arbitrarily or capriciously, but on reasonable considerations.
Str. 552; 1 Salk. 86; 3 Hag. 657, 570; 1 Hag. 312; 1 Add.
495; \ Lee, SO,

But although the ordinary having a right to choose, usually
appoints the widow, yet the rule is different if she has, by

settlement or otherwise, barred herself of all right to her hus- Adminii-
band's personal estate ; 2 Lee, 660 ; or, has so misconducted '^*^'*^°' —
herself as to be an unfit person for the management of it. 1 Add.
495 ; 1 Lee^ 30, 386. Thus though she has been preferred to
a mother ; 2 Lee, 254 ; or a brother, 1 Add. 494. Yet where she
had eloped from her husband, and cohabited with her paramour
till her husband's death, when she married him, the court re-
jected her. S Hag, 217, Or ifshe were divorced. Bunb, 16. So
where she was extremely old and imbecile ; 3 Hag. 217 ; 2 Phill.
54 ; or a lunatic. 3 Hag. 217. But it is not of itself a sufficient
objection that she has married again. 1 Add. 4d4. But it was
said, that where there are children, who are entitled in distribu-
tion to two-thirds, and the widow to only one-third, and one child,
supported by the others, claims against a mother, who has married
again, the court might adopt a different rule. Ibid.

A marriage, in fact, would, it seems, in the case of a widow be
considered sufficient, {a) 3 Hag. 557 ; 1 Lee, 571 ; 2 Lee, 35,
274, 382, 487 ; 2 Phill. 332. So, in proving kindred it is not
necessary to plead and prove marriage of the common ancestor,
in Eaton v. Bright, 2 Lee, 85, Sir G. Lee, said, in a case of in-
terest it was sufficient to prove owning and acknowledging and
common reputation of relationship. Sed vid. 4 Hag. 377.

It seems to have been considered at one period that the Sta- Next of kin.
tate of Distributions must be construed according to the common
law ; and that the degrees of kindred, consequently, were to be
calculated by that law ; but it is now settled that the nearness of
kin is to be computed according to the civil and not according
to the common law. 2 liee, 420 ; 10 Mod. 616 ; 4 Burns s Ecc.
L. 480, and the cases in the note. Mr. Williams, inhis Law of
Executors, ^c. 273, says, " that it is an established principle in
the ecclesiastical courts that the right to administration of the
effects of an intestate follows the right to the property in them,
whence it seems to follow that all the cases which have decided
what persons are next of kin, so as to be entitled to a share of
the intestate's personal estate, under the Statute of Distributions,

(a) The distinction between this case and that of a husband who is
required to prove the validity of his marriage, 2 Phill, 19, 69, would
seem to be, that in the latter he claims under an absolute right conferred
on him by the statute, which the court being bound to concede, they
have no power to inquire whether he is a fit person or not, and therefore
call on him, who insists on his right, to prove it strictly ; but in the case of
a widow, if they are satisfied that she is a fit person, they are satisfied
with primd facie evidence of the marriage. If a next of kin, shewing
his pedigree, prove a marriage in fact, cohabiting and owning, it seems
primd facie h sufficient. 1 Zee, 122.

962 maoss.

Admiois. are authorities upon the queBtion as to wb«t parties are neit of
^^^'^°' kin, so as to be entitled to administration under the statutes of
Nextofkin. administration/' and vid. 4i Burn's Ecc. L. ^79.

The following rules are abridged from Mr. Williams' useful
work.

1. Relations bv the fathers and mother's side, are in eqosl
degrees of kindred, for dignity of blood gives no pre-
ference.

S. The half blood is admitted on equal terms with the whole
blood, but the whole blood is generally preferred. 2 Lee^
499 ; 3 Salk. 21 ; I Ventr. 424 ; 4 Bum's Ecc. L. 279.

8. Primogeniture gives no right to preference in the grant of
administration. 1 Phill. 123.

4. The right of administration follows the proximity of blood
though ascendant, and therefore where a child dies intes-
tate, without leaving widow or child, his father, or if the
father does not survive, then his mother, is entitled to
administration exclusive of all others. So a grandfather
or grandmother is nearer than uncle or aunt. 4 Burns
Ecc. L, 279. A great-grandmother is equally entitled
with an aunt. Bla. Descents. 8; 4 Burns Ecc. Z. 404.
However our law does not go to the extent of the civil law,
in preferring ascendants, of whatever degree, to collaterals
except in the case of brothers and sisters ; but prefers the
next of kin, though collateral, before one who though
lineal, is more remote. But in case of a minor, as between
grandfather and uncle, it is usual to appoint the uncle.
1 Hag. 381.

5thly. There ia no preference of males to females, though in
practice sons have been preferred to daughters. 2 Let^
559, vide post, 957.

To these rules are added the following exceptions:—

1. Though parents and children are both in the first degree,
our law prefers children, as well as their lineal descendants
to the remotest degree. 2 BL Com. 504; Ambl. 192.

2. Where a grandfather or grandmother, brothers or sisters,
according to the above rules, are the nearest relations to
an intestate, the latter are entitled to administration in ex-
clusion of the former. 2 BL Com. 504. If there be grand-
father, father, and son, and the father die intestate, the son
shall have the administration, and not the grandfather.
4 Burns Ecc. L. 279. Where a party has a right under
the statute, he must generally 1>e cited or consent before ad-
ministration will be granted to one more remote. 1 Curt* 592,

To the par- Where there are several persons standing in an equal degree
ties having of kindred, and the ordinary has consequently to make a.selee-
beneficiai tion. The court looks to the interest of the estate and to the

interests.

parties intefested in the case. When one party has an interest, ^^^*^
and another party has none whatever, the court will place the ^ ^°'

property in the hands of that person who has an exclusive pwcreuoo
interest. 2 PAitf. 248. It being the general practice to give ^"^'^"^"K-
the management to the person who has the beneficial interest.
Ibid. Where the next of kin, therefore, has no interest, he is by
the spirit of the statute excluded, consequently a residuary
legatee excludes the next of kin ; if the residuary legatee de-
ctines, it is usual to grant it to the next of kin ; but there have
been cases, where the court thinking the next of kin excluded,
has eranted it to creditors. 3 Phill, 38 1 , post.

Where one person unites in himself the majority of interests,
he is usually preferred, unless there is some objection or reason
for preferring another. 2 Phill. 1 1 5 ; 2 Lee, 573 ; 2 Add. 353.
But administration is not always granted to the majority of
interests, 2 PhiU. 248, nevertheless that circumstance always
has weight; 4 Hag. 376; unless, therefore, the person, on
whom the majority of parties interested fix on, is an improper
person, he would generally, it seems, be adopted by the court;
2 Phill. 101 ; ceteris paribus also a man of business is to be
preferred. Ibid.

The having been twice a bankrupt, there being the last time
no dividends, is an objection ; for if a man has tal:en such bad
care of his own property, he cannot be a preferable person to be
trusted with the property of others. 2 Phill. 23.

Administration is only granted to a creditor £uling other
representatives, but when a man is both next of kin and creditor,
the union of the two characters is rather adverse than favourable
to a preference to others, equally entitled. 1 Add. 488.

But the being a debtor to the estate seems not a serious ob-
jection to the being administrator, for he must charge his debt
as part of the property, produce an inventory, and give security.
2 Phill. 55.

In case of a bastard, who iBjilius nulUus, the king is entitled Bm^ iu.
as uliimus hares, but if he leave wife or children, or debts, ad-
ministration would be granted to the widow, children, or a
creditor, as in ordinary cases. 3 P. Wms. 33 ; 4 Burns E. L.
277; 1 Salk.S1\ \ Hag. 92. ^ , .

So, also, if a man, though legitimate, die without relations,
the property vests in the crown, but the most remote relation-
ship would defeat the king's title. 2 Lee, 896. B^P^*«^i^
and mutual ownings seem to be sufficient. 2 Lee, J^, «7 ,
ante, 951. But, in the case of bastards, the crown acts liberally,
and grants the principal part of its interest to blood relations,

if there are any. 3 Hag. 222-

A next of kin cannot be compelled to take upon himselt the Nextofkin.

954

mm.

AdauDis-
tratioo.

NeJLtofkio.

Creditor.

Trustees for
creditors.

Notice.

oflSce of administrator, even though he may have intermeddled
with the effects. 1 PkilL 24S.

Admimstration may be granted to a person, under a power of
attorney, from all the next of kin, provided they reside out of
Uie province, and if the efiects are under £30, whether they are
so resident or not. 3 Add, 25.

If the next of kin do not take out administration, it may
be granted to a creditor, for administration is only granted
to him, failing any other representative. In which case there
being nobody to sue, unless the creditor be himself adminis-
trator, and so able to pay himself, he must almost of necessity lay
out of his debt. 1 Add. 498 ; 1 PAill. 177. Administration
may also, upon the same grounds, be granted to the executors
of a creditor. 3 PAUL 635.

A creditor may call on all who have a right to administer. If
a next of kin claims administration, or if a will be produced the
creditor has no right to oppose either the one or the other, for
in either case there is a representative to collect and distribute
the property, and the creditor gets all he has a right to. 1 Phill.
177. But though he has no right to contest with an executor
or next of kin in the first instance, yet having obtained adminis-
tration he has a right to maintain it against them, ibid; and in
one case he was suffered to contest the interest of a person
claiming under a nuncupative will, no relations having appeared.
ibid.

Executor and universal legatee under a will, having aoa^ned
his interest to trustees for the benefit of his creditors, adnnnis-
tration, with the will annexed, was granted to two of the trustees,
he having been first cited. 1 Curt. 593.

Where a creditor applies for administration, the course is to
issue a citation for the next of kin in particular, and all other
persons in general, to accept or refose letters of administration,
or show cause why administration should not be granted to the
creditor making the application ; posit 980 ; if it be found prefer-
able that the grant should be made to a creditor, different from
the one who applies for it, such creditor may be substituted in
the administration grant, on the day assigned for the appearance
of the parties interested. 1 PkUl. 53 ; 1 Hc^. 697.

By the present practice administration will not be granted to
a creditor on a general citation on the Royal Exchange, without
a particular notice, when it is known where the party first
entitled resides ; where he resides abroad, ^e decree most be
served on his agent, or an affidavit that he has no ag^it in this
country. 3 Hag. 194, 218 ; 1 PAUL 175. Where a cieditor
made affidavit that he had inquired, and could not hear of any
relations of the deceased, and said that he believed he had

none, and prayed a decree to be hung on the Royal Exchange, Adminis-
contra omnesy to show cause why administration should not be

granted to him as a creditor, and the decree was duly served, Creditor.
and nobody appeared, administration was decreed to the
creditor. 2 Lee^ ^3, %S, posty 980. Service on the Royal Notice.
Exchange is not to be considered as mere form, where a party
is in the East Indies, the object of it is to give notice to his
friends, or to any agent be may have here, therefore the court
will not dispense with the form of awaiting the return of the
process, though the case may be urgent. 3 PhilL 315. Where
parties interested live in the West Indies, notice must be given
them by requisition. 3 Hag. 278.

Where the property is large, and exceeds, to a considerable
amount, the interest of the party applying for the grant, the
court, even when the party first entitled is abroad, sometimes
requires to be satisfied that he has had notice of the intention
to apply for such grant, and frequently directs the matter to
stand over, till sufficient time has elapsed, since service of the
decree, for an appearance to be given. 3 Hag. 195.

Before granting administration to a creditor it is absolutely Affidavits.
necessary that an affidavit of the amount of the effects should
be produced whenever there has not been personal service on
the parties entitled in the first instance. 2 Add.4f55. A further
affidavit also is required of the amount of the debt, and that the
creditor has no other security. 3 Hag. 193.

There seems to be no objection to a bond creditor, though as
such he has a lien on freeholds, 3 Hag* 557 ; indeed, it has been
held that he has a superior claim to administration. ZLee, 324,
502. Nor is there any objection to a mortgagee of leasehold
property, which ia subject to simple contract debts and the claim
of creditors generally ; in case of a mortgage of real property,
there might be a reason why administration should not pass to
him, because it would give him a priority, and exclude simple
contract creditors. 3 Hag. 557.

Where the intestate had been joint assignee with A. to a
bankrupt's estate, and had applied a sum or money to his own
use, which he had not accounted for at his death ; A. claimed
administration as a creditor, but Sir G. Lee held he was not a
creditor for such purpose. 2 Lee^ 411.

Where the party is out of the province, 3 Add. 25, the Persons
court will grant administration to a person delegated by those without
entitled ; but generally this can only be done by a regular *°^'®**'
power of attorney, 1 Hag. 93 ; but, under circumstances, a
special power of attorney for the particular purpose is not
requisite, 2 Lee^ 576, sometimes a power is dispensed with
altogetiier; thus, where A., dying abroad, made her mother
executrix and residuary legatee, and, subsequently to the will,

956

mma.

Adminis-
tratiun.

PersoDs
without ill'
terett.

JoioL

she wrote papers of a testamentary import, probate of which
was granted to R. M., as executor, according to the tenor, who
collected the property abroad, and transmitted it to England to
B. M., deceased's brother, with a letter, saying, *' I felt gratified
in hearing from you, as it enabled me to entreat your good
offices to act in the will of your lamented sister, and to conclude
my executorship/* The court said, " there is no occasion in the
present instance for the court to require a regular power of attor-
ney ; the letter to the brother so manifestly authorises him to act
in the management of the deceased's property, that its hand-
writing being proved, and the consent of the mother's (the ori-
S'nal executrix) executor being given, administration may issue,
ut sureties must justify.'' In this case the executor was at
Bombay ; 4 Hag. 210 ; 1 Hag, 146. But in another case, there
being no regular power of attorney, and the creditor, who prayed
administration, residing in Germany, the court limited the grant
to proceedings in Chancery ; but on a regular power being pro-
duced it was extended to the receipt of a debt. 1 Hag» 93.

So a grant has been made to a party acting as a substituted
attorney under a regular power. 2 Add, 461 .

If neither the next of kin nor creditors pray administration, it
may be committed to any fit person at the discretion of the
ordinary.

Where a party died intestate, and the brother, a sole next of
kin, waived his right, his son, the nephew of the deceased, was
allowed to take the administration. 1 Hag. 692 ; 2 Hag. 83.

Where a brother and sole next of kin refused to take admin-
istration, on a religious scruple to take an oath, the court, on
motion, directed a citation to issue to such next of kin, calling
on him to accept or refuse letters of administration, otherwise
to shew cause why the same should not be granted to R. P.,
solicitor to the executrix of a bond debtor of the deceased,
limited to the collection of all the personal property of the said
deceased, and giving discharges for all the debts which might
have been due to her estate, on payment of the same, and doing
whatever further might be necessary for the preservation of the
property aforesaid, and to the safe keeping or the same, to abide
the directions of the court. 2 Add. 233.

The court prefers a sole to a joint administration, since the
administrators must join and be joined in every act. I Pkill,
126 ; and consequently never compels a joint administration
upon unwilling parties; 2 PhiU. 22^55} iHag. S9S; and in
cases of joint administrations, it is said to be the orffinanr prac-
tice of the court of Canterbury, not to join more tbaDi! three in
an administration. IHag. 682. **''

Besides the above, which are cases of genefaradnmiisinUion,

mm* 957

there are others, which are limited administrations ; of these, Admink-
the chief are, administration cum iestamento annexe ; adminis-

tration de bonis non ; administration durante minore iBtate ; and ^}^^ ^^^
administration ad litem. There are also other limited adminis' Q^^ed^
trationsi which may be required by the exigencies of particular
cases.

Administration with the will annexed may be necessary, where
a man dies, leaving a will, but appoints no executor ; he is
therefore quasi intestatus ; or, if he appoint an executor, if the
executor die before the testator, or before he has proved the
will ; or if he refuse to act, or is incapable of acting ; in all
such cases, the ordinary must grant administration with the will
annexed.

So though the executor, prove the will, yet if he die in«
testate before he has completely administered the estate, the
duties are not transmitted to his own executor, but there must
be a grant of administration de bonis non.

The only one of the above cases, which is governed by the
statute 2\ Hen. 8, c. 5, is, that where the executor refuses to
act; none of the others are within the statute. In such cases as
stated above, ante^ 950, it is the rule of office to grant it to the
interest.

The usual course seems to be thus ; to look in the first in-
stance to the residuary legatee, who is said to be the testator's
choice, and the next person in his election to his executor ; even
though such residuary legatee only takes as trustee. 3 Add. 27.

If there be no residuary legatee, it is usual to grant it to
the next of kin ; if the next of kin decline it, or be incapable,
I Hag. 477, it may be granted, as in the case of other admin-
istrations, to a legatee or a creditor. 3 Phill. 381, 531. Where
there were two universal legatees, administration with the will
annexed was granted to one, a decree with intimation having
issued to the other, who was since dead, without citing the next
of kin ; I Hag. 55 ; on the same principle the representative of
a residuary legatee beneficially entitled, has a similar preference
over the next of kin, as the residuary legatee himself had, and
has therefore been preferred to the widow ; 1 Lee^ 341 ; and to
a creditor, 3 PAiU. 635 ; and vid. 2 PhiU. 243 ; 2 Hag. Jpp.
151. On the principle of interest, a sister legatee has been
preferred to a brother not named in the will ; 2 Lee, 326.

But in all these cases, as the ordinary is not fettered by the
statute, ante^ 949, and may appoint accordinff to his discretion ;
the above, though the usual course, may, and is departed from,
if the circumstances of the case require it.

Nor will a mandamus be granted to compel the appointment Mand%,
of any particular person. 2 Stra. 956. It has been said, that «^«»-
where tne same person is both next of kin and residuary legatee,

960

tmmn*

AdmJnit*

tratioD.

Durante

minort

tctate.

Infant in
t>enlre sa
mtre.

Guardians
appointed
by minors.

children. The next of kin whom the court usually appoints, is
the grandfather, but he is superannuated ;'* upon foil justifying
security the administration was granted to the uncle ; 1 Mttg.
381. So, where the intestate, a domiciled Scotchman, died a
widower, leaving infant children, the court granted administra-
tion to the agent of the deceased, who had been appointed, on
the petition of the only next of kin, by the Court of Session in
Scotland, to be factor loco iuioris to the infants. 4fHag. 183;
1 Hag. 237.

If the minor be under seven years of age> the court, ea^ offieto^
appoints the guardians ; a minor above that age may nominate
his own guardians. But the court may judge of the fitness of
such person, and may refuse to grant guardianship, and conse-
quently administration, to an improper person. 2Le€j 330. If
a wife be sole next of kin, she may elect her husband to be her
guardian. Toller, 92.

The court will not grant guardianship and administration to
trustees, merely as such ; 2 Lee, 243, 336 ; 3 Add. 27 ; espe-
cially when contending against the next of kin. 2 Lee, 394.

Unless cause therefore be shown to the contrary, the court
will make the grant to the next of kin; 1 Hag^SSl ; 2 Lee,
£94 ; or to the widow, if there be any, particularly if she is in-
terested.

If an intestate die, leaving a widow pregnant, and a daugh-
ter, each of whom pray administration, it was granted to the
daughter, the widow having barred herself of all interest in her
husband's personal property ; and the court being of opinion
that it had no power to assign her to be guardian to a child
unborn. 2 Lee, 560, ante, 930.

In West V. If'elby, 3 PhiU. 379, Sir John NichoU said, " there
were many instances where the court had granted the adminis-
tration to persons not guardians of the minors, and had also
refused to grant it to persons nominated by them ;*' he added,
speaking of the particular case, '* the choice of minors would
have no great weight here, as the eldest is not fourteen. If be
were nearly of age, it would be otherwise ; when the case is out
of the statute, the leaning of the court in the exercise of its dis-
cretion is, to guide itself by the interest in the property, and to
make the ffrant to the person most likely to dispose of it to
advantage.*

If the estate be insufficient to pay debts, the court has pre-
ferred a creditor to the guardian; 3 PhiU. 379; 1 PkilL 137;
and in one case it was said, by Lord Hardwicke, when the guar-
dian and next of kin was very poor, administration ought not to
be granted to him. WUIiamg on Executors, 9St&.

Whilst the right of administration, or to the executorship, is
in contest in the spiritual court, it is competent to the ordinary

tmmi. 961

to appoint an administrator pendente lite. But such adminis- AdmtDis- j

tration ought not to be granted without good reason^ shewing ILJ^ — I

that it is necessary for the benefit of the estate. 1 Lee. S07 ; 9 fmdMwu \

Lee, ^9. i.1*. I

Such an administration is never granted on motion^ except by |

consent. In Northey v. Cock, I Add. 3S9, Sir J. NichoU said : i

'' If the parties are agreed, both, that an administration is neces-
sary, and who the administrator is to be, it may be granted on
motion. In any other case, an act upon petition must be gone
into, and the necessity of such an administration shewn. The
court must be satisfied of the fitness of the administrator pro*
posed, or must be placed in a condition to determine between
the two» one being proposed by each party ;" and vid. 1 Hag.
221.

It must be shewn, that the property is in jeopardy ; that the
party sought to be dispossessed is irresponsible, and has refused
to give adequate and reasonable security, before it will take the
property out of the hands of a person, merely because he is one
of the litigant parties ; 1 Add. SSO ; 1 Lee, 5S8 ; on the other
hand, the court has constantly declined putting a litigant party
in possession, by granting administration to him pending the
suit, always granting it when requisite to a nominee, presumed
to be indifferent between the two parties. 1 Lee, 357 ; I Add*
330; iLee,50, I Hag. Si.

By consent however, administration pendente lite may b6
committed to one of the litigant parties. 2 Hag. 613.

Or, it may be granted to the nominees of the two parties
jointly. 1 Lee, 281 ; 1 Hag. 221.

If the court adopts the nominee of either party, it will be
on the ground that such party has the greatest interest in the
preservation of the estate. 1 Lee, 338.

An administrator pendente Ute is the nominee and officer (a)
of the court, to hold the property till the suit terminates, and
then he is to pay over all he has received, to such persons as^ the
court decides are entitled ; and the court will grant a monition
to compel him to transfer everything in his possession, and which
he has become possessed of, under the authority derived from
the court. \ Hag.SSl.

At common law, if an executor or next of kin be out of the ^^^}^
realm, there may be a temporary administration, before probate " • •
or general administratioD have been granted, called an adminis-

F
1

I
I

(a) A recMver may be appointed by the Court of Chsneery, notwitk-
standing administration pendente Ute has been granted in the eoclestaa.
tical court. I Ve$. 4* B. 542.

Q a Q

962

tmrns*

Adoiinif-
tration.

Durante

absentid.

38 Geo. 3,
c. 87.

Special and
limited.

trattott durante absentid; ILatw.SiS; 2 Lard Maym, 1071,
Such admioiatratioiiB are now directed to be limited in term^t
until the executor, 2 P. Wms..579t or party entitled to adminis-
tration, should duly apply for, and obtain probate or admin-
istration. 4 Hag. 360.

If probate were once granted, it was thought that the eccle-
siastical court had not power to make a grant of a^inistration
durante absentid^ but now by 38 Geo. S, c. 87, which, by #. 1,
reciting, that the laws in CKistence are not sufficient to ^afbrce
a speedy distribution of the effecta of deceased peraons, where
the executor, to whom probate of the will has been granted, is out
of the jurisdiction of the courts of law and equity, enads, *'that
if at the expiration of twelve months from the death of any tes-
tator, the executor or executors to whom probate of the will shall
have been granted, are or is then residing out of the jurisdictioa
of the courts of law and equity, it shall be lawful for the ecx^Iesias-
tical court, which hath granted probate of any such will, upon the
application of any creditor, next of kin, or legatee, grounded on
affidavit (a) hereinafter mentioned, to grant aueh special admin-
istration as is hereafter mentioned, to be written on paper or
parchment, and stamped with a five shilling stamp, and no more.

It has been held, that the statute applies to executors living
out of the jurisdiction, though not living out of the realm ; as in
the case of an executor livmg in Scotland. 2 Add» 5M, 605 ;
but still it is limited to cases where there are proceedings
pending in Chancery. 2 Hag, 79.

Where an administrator has been appointed under the statute
during the absence of the executor, bis authority is not at an
end by the death of the executor. 3B.fP.S4f; 7 Fes. 460.

Other special and limited administrations may be required, and
granted, to meet the exigences of particular cases, besides the
limited administrations above enumerated. Thus, where a tes-
tator a few days before his death stated that his will was in

(a) The form of the affidavit, as given in the statute, is as follows :
I, A. B., of y do swear, that there is due and owing to

me, on bond or simple contract, [or, on account unsettled, om the cesf
may happen to be, (in which latter case he shall stpear to the best of
his belief only)"], from the estate and effects of deceased, tl^

sum of , and that C. D., the only executor capable of acting,

and to whom probate hath been granted, hath departed this kmgdoni«
and is now out of the jurisdiction of his Majesty's courts of law and
equity, and that this deponent is desirous of exhibiting a hiii in equity,
in his Majesty's court of , for the purpose of Mng paid lus

demand out of the assets of the said testator. 38 Geo* 3, e. 87, s. 2.

963

India, administration was granted for the limited purpose ** of AdtnioM- 1

receiving, and investing, the stock and dividends due, or to be- ^'^^°°'
come due, on certain stock of the deceased, and for receiving and Special and
investing the amount of an India bill, and for otherwise pro- ^^^'^^^'
tecting the property of the deceased." 1 Add. 343.

And again, a second administration issued in the same case,
to the purpose only, of answering to a suit in the court of Chan-
cery. 2 Add. 351, n. (a.) j

So administration has been granted, in the case of a will
having been lost and its contents unknown ; but limited till the
will be found. 1 Hag. 693 ; 2 Hag. 555.

So a special and limited administration may be granted,
although a general administration has been granted previously ;
as where the representatives of a trustee, in whom a term is
vested, are dead. Administration may be bad for another tru8«
tee for the purpose of making an assignment ; in such a case it
is not the custom of the office to annex the will to the letters of
administration. 3 Add. 36.

So where dividends are left to a legatee for life, and after
decease of legatee for life, to another, and the legatee for life is
made executor, who dies intestate ; administration de bonis noiti
with the will annexed, may be had by the representative of the
substituted legatee, limited to the particular sum in the funds i

from whence such dividends arise, and to the arrear of dividends ^

thereon, since the death of the legatee for life. 2 Hag^ 59.

So limited administrations have been granted for proceedings
in equity. 3 PhiU. 315 ; 1 Hag. 93.

By the 22 % 23 Car. 2, c. 10, *. 1, extending the previous Bood.
statute 21 Hen. 8, c. 5, s. 3, it is provided, that all ordinaries
and ecclesiastical judges, having power to commit adminis-
trations of the goods of persons dying intestate, shall, and
may, upon their respective granting and committing of adminis«
trations of the goods of persons dying intestate, of the respective
person or persons to whom any administration is to be committed,
take sufficient bonds, with two or more able sureties, respect
being had to the value of the estate. The statute then proceeds
to give a form for such bond, the conditions of which are five,
vid. 3 Hag. 783.

1st. To make a true and perfect inventory of the goods,
chattels, and credits of the deceased, which shall have
come to his hands, possession, or knowledge, or to the
hands and possession of any other person for him, and the
same to exhibit, or cause to be exhibited into the registry

of the court.
2ndly. To administer the same well and truly. . .

3dly. To make a true and just account of his administration.
4thly. To deliver and pay the rest and residue remaining upon

Q Q Q 2

964

mm*

Adminis-
tratioQ.

Bond.

Sureties
jastifyiog.

Party
abroad.

Sureties
abroad.

such account, the same being first examined and aUowed by
the judge ; and deliver and pay the same as the judge shall
appoint*

5thly. If any last will shall appear, and the executor therein
named do exhibit the same, and request to have it allowed,
to render and deliver the said letters of administration, (a)

Justifying security is called for by the court at its discretion,
according to the circumstance of each case; but there is one
general rule, that in all cases where there has not been personal
service of the decree on the party or parties having a prior
claim to the grant, justifying securities are required* 3 Hag.
194 n. ; 2 Add. 348.

Where an application is made by the next of kin, for iustifying
securities, or there has been a citation or decree witnout per-
sonal service, the court is bound to grant it. 4 Hag, 376, 386;
3 PhiU. 189 ; 1 Hag. 4fiS; sed vid. 2 PhiU. 280.

Where administration with the will annexed went to the next
of kin, there being neither executor nor residuary legatee, and
justifying security was applied for by the party who had
failed to shew a right to the administration, claiming deri-
vatively from the residuary legatee, the court refused to order
it, as being contrary to long established practice* 2 PhilL
280.

Where executors have renounced, or one renounced and the
other become lunatic, and the administration is committed to
residuary legatees for life only, justifying security is required.
3 PhiU. 139; 1 Hag. 487. So where a will was lost and tem-
porary administration was granted to the widow, till the will
should be found ; the widow and only daughter, a minor, were
the only parties entitled in distribution, justifying securities
were required of the widow* 2 Hag. 555.

In cases of administration pendente lite, justifying securities
are required* 1 Hag. 221. So in the case of a person acting
by delegated authority from another. 1 Hag. 143.

Where administration is granted to a person living abroad,
and it is necessary to have sureties, they ought to be resident
within this kingdom* 1 Hag. SSI, 316 ; 2 Lee, 41 1* Where
a husband living abroad takes administration to his wife, and
creditors apply for security, one surety onlv is required, but he
roust be resident within the jurisdiction of the court* 4 Hag.
207.

(a) Administration bonds are said to be too frequently tieated »
mere matters of form* It is the duty of practitionerB not to eoonte-
nance that notion, by being privy to parties becoming suredei, who to
their knowledge are not xespoasible. 3 Add. 78.

■ It seems to be doubtful whether even on grants of adminis- AdminM-

tration to foreigners of the property of foreigners generally, the ^11^:

administrator is not to be directed to give bond here, and for Sureties.
the sureties to be British subjects. S Add, 439.

Where there are two administrators, they are to enter into a ^^^ ^^<*-
joint bond, they cannot, like executors act independentiv, they
must act jointly. I Hag. 222. This was a case of limited
administration, pendente lite^ but the reason of the rule seems
to apply generally; nor will the court allow separate bonds
although the security given applies to part only of the property.
2 Add. 348.

Where there has been an administration pendente minore Amouot.
ijetatCf and the minor on coming of age takes the administration,
security must be taken to the same amount as was given in the
first instance. 2 P/tilL 578. Conset says, p. 15, ''if the
deceased leaves children in minority, the next of kin takes ad-
ministration to the use of those children, and gives good security
to the court for their poi*tions."

If upon the face of the inventory, the security appears not to
be sufficient, the court will order further security, which if not
given, the court may call in and revoke the letters of administra-
tion. 2 Lee, 246. As to amount of security, vid. 1 Lee, 557.
An administratrix seems not called on to give security for her
own share. Ibid., and 4 Haff. 376. Where there was admin*
istration with the will annexed, granted to one sister, a legatee
for £1000, there being another sister entitled to another legacy
of £1000, and a brother entitled to the residue. The court
required security to cover the legacy to the sister as well as the
surplus, unless the sister consented. I Hag. 480.

It is sufficient if the sureties are jointly worth the sum speci- j^.^^
fied. 1 Lee, 429. amount of

The administration bond cannot be put in suit, nor the payment security.
of it enforced in the ecclesiastical court, it must be sued upon at
law ; nor will the ecclesiastical court pronounce it forfeited, (a)

(a) In a previous case the court seemed to think itself bound to
pronounce the bond forfeited, if called on so to do, not with a view,
indeed, of enforcing the rights of the parties claiming on the ground of
such forfeiture, but for the purpose of ascertaining whether, in a case
-where it considered the bond as forfeited, the sureties were by the
conduct of the parties applying, to be considered as so clearly exo-
nerated as to be entitled to their dismissal. 3 Add. 74. But in a
later case, the court refused to pronounce the bond forfeited, saying,
that if it directed the bond " to be attended with," the party would
have the same advantage, for it must ultimately rest with a court of law,
to say whether the bond was forfeited or not. 3 Hag. 788.

966

wim.

Adminu-
tntion.

Bond.

Suits upon.

To be " at-
tended
with."

all that the ecclesiastical court can do, is to order the bond
to be ** attended with," in aid of justice. 8 Hag* 788. In a
case where had been no distribution, the court directed the
bond " to be attended with.'* Ibid. 790.

When an application is made for the " bond to be attended
with" the sureties, may, it is conceived, appear and state any cir-
cumstance to induce the court not to grant the application of
the party seeking, to proceed against them.

Letters of administration were committed to a brother, who
died without making distribution, but left a considerable sum
of the intestate's at his bankers : the next of kin to the intestate,
who were entitled in distribution, then took aabninisiraiion de
boniSf and made application to the executors of the original
administrator, for payment of the balance of the intestate s
estate, which was refused, on which an action, in the arch*
bishop's name, was brought against them by the administrators.
An application was made for the bond to be '' attended with/
on afndavits, stating, that the parties were advised they couM
not proceed without the bond, a breach of which was assigned ;
that the action was brought solely against the executors of the
original administrator, and not against the sureties; that the
parties applying were willing to give securities as to costs. The
application was granted, but the court thought it fit, as the
action was brought in the archbishop's name, that he should be
indemnified against costs. 1 Hag, 139.

But the court will not, on the mere nonnlelivery of an inven-
tory, within the time assigned by the bond, and without calling
on the administrator to bring it in, permit the bond to be
** attended with," for the purpose of its being put in suit : 1
Curi. 458 ; nor when an action is brought against sureties b;
parties who had directed their agent to take administration,
who died insolvent, they never having called on such agent for
an account, and having given him a term of three years to psj
the money, ib. 580.

Creditors may, it seems, sue on the bond when an inventory
has not been delivered, but cannot do so on the ground of i
breach by non-payment of debts. In a note to Dr. PAiUhnores
reports of decisions by Sir G. Lee, 2 Lee, S52, it is said,
** The result to be arrived at from the examination and compa-
rison of the several cases, seems to be, that it is not competent
to a creditor to assign the non-payment of a debt due to him is
a breach of an administration bond, but it is competent to assign
as a breach, the not delivering an inventory ;" and vid. Cowp
140 ; 3 Atk. 248 ; 1 Cromp. % Mees. 7U ; 8 lyrw. 417.

It frequently becomes a matter of consideration in what court
a will should be proved, or letters of administration obtained.

mma* 96?

If all a man's goods lie within the diocese or district where he Probata
diedy probate or administration must be granted out of the |^^^*
court of the ordinary of such diocese or district ; in the case of where ob-
a diocese the bishop is jure communis the ordinary. If a man Gained.
die within a peculiar, ante, 643, then the will must be proired,
or administration obtained, in the court of such peculiar, or if
within a manor, or district, having prescriptive iorisdiction^
then in the proper court of such manor or district. Swinb.
427 ; 2 Bl. Com. 508 ; 1 PAiU. 201 , n. 0. ; 8 Hag. 763 ; ante,
643, 691.

If, however, all the goods of which a man die possessed, do Preroga-
not lie within one diocese, peculiar, or district, and if at the u^l^^'
time of his death he had bona notabilia, within some other ' '
diocese, peculiar or district, then the will must be proved, or
administration had, in the prerogative court of the province ;
out of which court only can an executor in such a case obtain
probate, or a next of kin, letters of administration ; 1 Roll. Abr.
908 ; ^Insi. 335 ; 2 Bl. Comm. 510.

There is a prerogative court in each of the provinces of Can"
ierbury and York^ and in each of the provinces of Ireland ; of
these, the respective archbishops appoint the judges.

These courts are wholly distinct and independent of each
other ; 4 Inst. 855 ; Fin. Abrid. Execuiore, G. ; 2 Lev. 86 ; 3
Keb.\6S\ 8 Hag. 200.

If a man die in the province of Canterbury^ leaving bona
notabilia in different dioceses or jurisdictions in that province,
proceedings must be had in the prerogative court there.

So, if a man die in the province of York^ leaving bona noia^
bilia in different dioceses or jurisdictions there, the proceeding
roust be in the prerogative court of York.

If a man die in one diocese, not having goods there, but
having 6011a notabilia in another diocese of the same pro*
vince, this is sufficient to found the archbishop a jurisdiction,
because the ordinary where he dieth, is to take as much care
of his goods, as the ordinary where the goods are ; RolL Abr.
908.

But if a man die on a journey, the goods he has with him On a jour-
shall not be as bona notabilia , to give jurisdiction to the prero- ^^y-
gative court; 9ZA Canon^ ante; Swinb.4SS\ this exception
has been extended to the case of a man, who having met with
an accident, was carried to an infirmary in a different diocese
from that in which he usually lived; the principle of the
Canon being, that for the purposes of jurisdiction, the goods
of a party so dying, are supposed to be where he is do-
miciled, notwithstanding his personal absence. 2 B.% Ad.

423.

If a man had bona notabilia in more than one diocese of each

906 mshs.

Protete province, probate or administratton mmt be bad from tbe pre-
UitntiMf^ rogative courts of each ; for probate granted in one province is
wbereob- TOid as to goods in the other. Venir.46'f 4 J3»nt*# Eee. X«2S4f
taioed. IXeg, 79; 2Lee,86.

So» if there be bona noiabilia in one diocese of the province
of Canterbary, and in mare than one diocese of the province of
York ; then probate must be granted by the particnhir bishop of
the province of Canterbury, in whose diocese the goods are, for
in such case there is no need of a prerogative probate ; and
another probate in the prerogative court of Yori, in respect of
their being bona notabilia in more than one diocese of that pro-
vince. Wentw. 47 ; 1 Hag. 625.

But if there be bona noiabilia in one diocese only in each
province, there will be no necessity of a prerogative probate at
all ; each bishop must grant his own probate. 5 J3. ^ C. 493.

Where one dies possessed of goods in the diocese of an arch-
bishop, and in a peculiar within such diocese, it has been said
there ought to be several administrations or probates; Cro. EUx.
718; but it has been decided, that in such a case a prerogatiTc
probate is certainly not void, even if it be voidable ; JLpsons
and another v. Barrow, S Bing. N. C 480 ; Vin. Abrid, Exe-
cutors, B. 2 ; sed vid. Cro. Elix. 4^7 ; 2 JB. 4 Ad. 424.

But where there are goods within a peculiar, and other goods
in a diocese of the same province there, a prerogative probate
is as necessary as if the goods had been in several dioceses of
the same province. 1 Lee, 78.

We have seen above, ante, 643, that royal peculiars are su-
perior to, and independent of the authority of the archbishop,
where, therefore, goods were left in two royal peculiars, in one of
which a man died, and other goods in one diocese only within
the province, the will was rightly proved in the royal peculiar
where the party died. 3 Hag, ISl.

If a man die in a place not in any province, and consequently
out of any diocese, the archbusbop, and the bishop of the dioce»
in which his goods were at his death, are said to have concurrent
jurisdiction, (a) 1 Hag. 626; for though there are some aotho-

(a) As personal property follows the person, the domidle of a de-
ceased will generally determine how far a probate or administration in
this country is required for personal property not situate in this country ;
the rights of the representative of a person domiciled in England are not
limited to the personal property in England, bat extend to his property
wherever locally situate, though a testator may appoint different persons
for the representation of his property in diSbrent places. Ixi l^fraU ▼.
Harrii, 4 Hag.AOd, it was held that a person, resident partfy in'^aoce,
bat domiciled in England, having made a testamentary Apoiitlon of

mm* 969

rities which aeem to show, that the death of the partyi wiAin a ^'^^ .
diocese, is necessary to found the ordinary jarisdiction of the n^trmiknl
bishop, and that, consequently, where a party dies out of any where oh-*
diocese, the archbishop of the province has exclusive jurisdic- ^"^'
tion, yet the practice has been to consider the bishop as having
jurisdiction abo; Suffer, 83; Freem* 256; Fin, Abrid. Ex-

personal property in France, and of personalty and realty in England; and
a second paper relating solely to personalty in France, but appointed no
executor, nor residuary legatee, his widow was entitled to administration
with the paper annexed, which related solely to property in France, as
well as with that which related to property in England and France also ;
«ndvid.2Jdd, 17, 25.

But if the property be situated in this country, then, whether the
testator, or intestate, be altogether a foreigner, or be domiciled in Scot-
land, or Ireland, or in the Colonies, his will, if he leave any, though
proved according to the law of the place where he died or was domiciled,
must be proved also in a court of probate here ; and, if he died intestate,
administration must be obtained here. 1 Hag, 237, 497 ; 2 Lee, 261 ;
3 Hag. 766, 767.

In decreeing probate, or in granting letters of administration, in such
cases, the court here is usually regulated by the grant as made, by a court
of competent jurisdiction, in the place where the testator was domiciled.
1 Hag. 237, 382, 476, 549 ; 2 Add. 25 ; 3 Hag. 767. If no probate
has been granted elsewhere ; then in granting probate here, the court
will adopt the law of the country in which the party was domiciled, both
in considering the validity of the will itself; and, also as to who are the
proper parties to whom probate or administration ought to be com-
mitted. 1 Hag. 237 ; and vid. 1 Add, 340 ; 2 Add. 460.

In the case of Stanley v. Bemes, 3 Hag, 374, the rule, that a will
must be executed according to the law of the country where the party
was domiciled, was extended to the case of a British subject domiciled in
a foreign state; it being held in that case by the Delegates, that two
codicils, disposing solely of property in the British funds, and made by a
person bom an English subject, but domiciled in Portagal, were not
entitled to probate, as not being executed according to the law of
Portugal, his acquired domicile. But the mere residence of a British
subject abroad does not withdraw the will from the operation of the law
of his native country. 2 Add, 21 ; 4 Hag, 346.

Where there is personal property in the colonies, as well as in this
country, the grant of administration will not extend to the property
generally, though he be domiciled here there must be another probate.
Ambl. 416.

If a foreigner die in his own country, leaving property here, as in the
British funds, the succession to that property is to be regulated by the
law of his own country, and not by that of England. 2 Add. 14.

The effects of a Scotchman domiciled in this country, both Scotch
and English, are to be distributed by the law of this oountr}*, and nut
according to Scotch law, the intestate's domicile of origin. 3 Add. 14 .

970

mmi.

Probftla

andftdmi-

Datretion,

wlitreob*

Uined.

Will of
bishop.

Jnritdic*

tionbv

offictftl.

Jttrisdic-
lion not
locil.

eeuiors, F* ; thereforci where m man died in Seaikiiid, leaTiBg
properly in the diocese of ZfOnc/oitoDly, and the will was proicd
in the conaiatory court of that dioceae, and probate passed; Sir
J. NichoU, as judge of the prerogative court of Can^ertsry,
refused to interfere by taking the probate out of the haDdi of
the consistory court of London ; and the r^istrar of that court
appearing to protest against the iurisdiction of the prerogatiTc
court ; he refused to overrule such protest*

But if it appear that a prerogative probate is necessary for
any purpose, a limited one may, it seems, be obtained for suck
particular purpose. 1 Hag. 625 ; 1 P. Wms, 75S.

The probate of a bishop s will, or administration of his goods,
belongs to the archbishop, although he had nothing out of his
own jurisdiction. 4 InsL 335.

Probate or administration, if obtained from the prerogative
court, is not void, but only voidable, though it may appear
that the deceased had in truth btma noiabiUa in one diocoe
only ; but in case of probate or administration from a diocesiB
or otherinferior jurisdiction, if it be shewn that there were iosa
twiaUKa in more than one diocese or jurisdiction in the pro-
vince, such probate or administration would be absolutely Yoid;
it is considered generally safer, therefore, in a case of any doubt,
to obtain a prerogative probate or administration at once, fftl-
Hams on ExeeuiorSf I96«

The ordinary may exercise his jurisdiction by his official or
other officer, the jurisdiction itself in no way concerns him in his
spiritual capacity. Ft it. Abrid. Ewecuiors, J5. 2 ; Bae* Abrii
Executors* E.4f\ or he may constitute particular persons to be
his commissaries for exercising jurisdiction in particular districts:
when he does, each acts with episcopal authority, so that io
the case of there being i^fia noiabilia in diffiMrtnt (Sstricts, oae
probate or administration is sufficient, provided all aiaeb districts
be within the diocese ; .the commissary is the bishop, for the
purpose of proving such wills as he is authorised to prove.
5 ilf. ^ iS*. 1 19 ; lin. Abrid. Executors, B. 8.

The power of granting probates, &c. is not local ; therefore
a bishop may commit administration of things within his diocese,
though he at the time b personally absent from his diocese.
Godb, 33 ; 6 Mod. 14f5. So, likewise, of commissaries, tbej
may make such grants though personally absent from their du-
tricts. Godb. 342.

During the vacancy of a see, whether metropolitan or dio-
cesan, the dean and chapter are to grant probates and admistri'
tions. Brook. Administrator , 276, as he adds, per omnes L^
Peritos, and by those of the Arches. Fin. Abrid. Executors, G>
ante, 111.

The amount of goods to constitute bona notabiHa is regu*

mm. 97 i

lated by dmon 9S, which reciting, amongst other thingSi that ^f** **'^*
many persons have beeni both by inferior courts, and the courts "*'
of the archbishop's prerogative, much distracted, and diversly Cmoa i)2.
called and summoned for probate of wills, or to take administra**
tion of the goods of persons dying intestate ; constitutes and
appoints, that all chancellors, &c. or any others exercising eccle*
Bias tical jurisdiction shall, at the first, charge with an oath, all
persons called, or voluntarily appearing before them, for the
probate of any will, or the administration of any goods, whether
they know, or firmly believe, that the party deceased had, at
the time of his or her death, any goods or debts, in any othev
diocese or dioceses, or peculiar jurisdiction within that province,
than in that wherein the said party died, amounting to the
value of £5. ; and if the said person cited, or voluntarily appear*
ing, shall, upon his oath, affirm that he knoweth, or firmly
believeth, that the said party, deceased, had goods or good
debts in any other diocese, &c. within the said province, to the
value aforesaid, and particularly specify and declare the same ;
then shall dismiss him ; neither shall exact any other charges of
the said parties than such as are due for the citation and other
process, but shall plainly declare that the said cause belongeth
to the prerogative of the archbbhop of that province : admo*
nishing the party to prove the said will, or require administra*
tion of the said goods, in the court of the said prerogative, and
to exhibit before him, the said judge, the probate or administra-
tion under the seal of the prerogative, within forty days next
following; any chancellor, &c, or other exercising ecclesias-
tical jurisdiction whatsoever, or any their register, offending
herein, let him be ipso facto suspended from the execution of
his office, not to be absolved or released until he have restored
to the party all expenses by him laid out, contrary to the tenor
of the premises ; and every such probate of any testament, or
administration of goods so granted, shall be held void and
frustrate to all effects of the mw whatsoever. Furthermore, we
enjoin that the register of every inferior judge do, without
delay, certify and inform the apparitor of the prerogative court,
what executors or administrators have been by his said judge,
for the incompetency of his own jurisdiction, dismissed to the
said prerogative court within the month next before, under
pain of a month's suspension for every default therein. Pro*
vided that this Canon, or any thing herein contained, be not
prejudicial to any composition between the archbishop and any
bishop, or other ordinary, nor to any inferior judge that shall
grant any probate of testament, or administration of goods to
any party that shall voluntarily desire it, both out of the said
inferior court, and also out of the prerogative. Provided
likewise, that if any man die in itinerc, the goods that he hath

972

mm.

Bmm noui* si^ut ijini lit that present shall not cause his testament or ad
1_^1_^ ministration to be liable unto the prerogative court.

CtDon 93.

Nature of
debt!.

And by Canon 93. Furthermore, ve do agree and ordain,
that no judge of the archbishop's prerogative shall henceforward
cite or cause to be cited, ex officio^ any person whatso e^er^to
any of the aforesaid intents, unless he have knowledge that the
party deceased was at the time of his death possessed of goods
and chattels in some other diocese or dioceses, or peculiar
jurisdiction within that province, than in that wherein he died,
amounting to the value of £5 at the least ; decreeing and de-
claring, that whoso hath not goods in divers dioceses to the
said sum or value, shall not be accounted to have bona noiahalia*
Always provided, that this clause here, and in the former con-
stitution mentioned, shall not prejudice those dioceses where,
by composition or custom, bona notabilia are rated at a greater
sum. And if any judge of the prerogative court, or any hb
surrogate, or his register or apparitor, shall cite, or cause any
person to be cited, into his court, contrary to the tenor of the
premises, he shall restore to the party so cited all his costs and
charges, and the acts and proceedings in that behalf shall be
held void and frustrate ; which expenses, if the said judge, or
register, or apparitor, shall refuse accordingly to pay, he shaD
be suspended from the exercise of his oflSce until he yield to the
performance thereof.

These Canons would not be binding on the laity if they had
attempted to alter the law, ante, 136 ; but as in many other cases
they seem only to have declared the law as it then was, \OMol
272 ; Vin, Abrid. Execntors, H. 10, 212 ; and the intention not
to alter the law seems manifest irom the proviso that where, bj
composition or custom in any diocese, bona notabilia are rated
at a greater sum, the same shall continue not altered. Besides,
even if it had been an alteration of the law, it does not concern
the laity, for it is merely a regulation among the bishops them-
selves, for the purpose of distributing the fees of administration
between the archbishops and bishops and their respective
officers. 2 Aik. 659.

Simple contract debts, however difficult to be collected;
specialties, judgments of all kinds, are bona notabUiay so that
they are above the value of £5, nor does it make any difierence
that the debts may be hopeless, or very unlikely to be paid.
Wentw.4f7; Fin. Abrid. Executors, St. IL If a bond, with

Eenalty above £5 be forfeited, that is not bona n^tabiUai if i<
e to secure a less sum. Wentw, 107, 108. But a debt doe
ftom the king, who cannot be sued, and which eaUonlybe
obtained by petition is, Wentw, iUd. A lease of hoiii, itoB.
Abr. 9D8, or annuity out of a parsonage are' Mtit'iUpiteMfa*

Widbi^ 973

Fin. Abrid. Executors^ H. 8 ; but not land given to executors ^«« ^^*
for payment of debts and legacies, though they are equitable ^'^'^'
assets. Fin. Abrid. ibid.

As to where the debt shall be considered as due for the pur- Where and
pose of jurisdiction, it has been said, 2 Lee, 534, that where the ^"^"^ due.
debt was due upon a simple contract, it was personal, and would
make bona notabilia, where the debtor lived. fVentw. 46 ; 4
Burn's E. L. 233 ; Carib. 373 ; 5 B. ^ C. 4S7. Debts in spe-
dalty would make bona noiabilia, where (he specialty happened
to be at the death of the deceased. Roll. Abr. 908 ; 4 Bum's
E. L. 233; Cro. Eliz. ¥12; 2 Mees. 4 W. 87. Judgments,
statutes, or recognizances are bona notabilia in the place where
they are given or acknowledged. 2 Lord Raym. 855 ; 4 Bum's
/!f. Lt ^33.

Stock in the public funds is supposed to be within the arch-
bishoprick of Canterbury, 5 Price, 262, though administration
thereof, by the bishop of London, is not void. 1 Hag. 625.

A lease of lands, or an annuity out of a parsonage shall
be taken to be bona notabilia where the land or parsonage lie.
Hn. Abrid. Executors, H.

Where a canal ran through the two provinces of Canterbury canal
and lor*, but the office for transacting the business of the shares, &c.
concern was in Canterbury. Probate in that province was suffi-
cient. 2 WUs. C.Rep, 166. So, where a canal passed through
difierent dioceses of the same province, a diocesan probate lor
one of those dioceses in which also the public office was situated,
where transfers of the shares were filed, and the dividends paid,
was held sufficient ; for the purposes of probate the right of a
shareholder might be considered as locally situate in that diocese.
7J5.4C.632.

If probate or letters of administration have been committed Relocation
to a wrong party, the practice is to recall and revoke them, of probate.
With regard to cases within the 21 Hen.%, c. 5, it is expressly ^^^"^"^

provided that this cannot be done, except for just cause ; it '- —

is the same with those cases which are not governed by that
statute. It having been held, that if administration has been
once granted, it cannot be repealed, except sufficient cause be
shewn for so doing ; but where a party has renounced adminis-
tration, he or she may retract such renunciation, before adminis-
tration granted to another has passed the seal. 3 PhiU. 379.

It is not intended here to notice those cases where the grant
of probate or administration by an inferior court, has been, by
the effect of an appeal to a superior court, revoked or set aside.
In such cases, the facts and circuaistances being the same in
both courts, the principles of law are differently applied in the
one court from what they bad been in the other, or the superior
judge comes to a different conclusion upon the facts : the object

974 mmt*

Scvocation here will be to see what difference of facts and circumstances
or admiob- ii^^uce a judge to Cancel his own act, and withdraw a grant
iration. previously made by him.

- It seems to be generally admitted, that if a will can be shewn

when it was supposed there was no will ; or that a will subse-
quent in point of date to that proved, or if fraud can be proved
in obtaining the first grant, such first grant will be set aside
and a fresh probate, or administration decreed. 1 PhiB. 177.

Where a party obtained administratbn, pretending to be a
creditor, and that there were no relations, but afterwards a
dauffhter appeared with a will, appointing her executrix and
residuary legatee, and called on the administrator to shew cause
why probate should not be granted to her, and the adminis*
trator appeared and opposed the will, which however was folly
proved. Six Q.Lee gave sentence for the will, revoked the
administration, and condemned the party who had obtained
administration, in (ull costs. 1 Lee, 13, 14, 167.

So where administration has been granted on a false sug-
gestion, it has been revoked. 1 Lee, 357, 419.

Where administration was obtained, on a belief that the
intestate died unmarried, but a child of such marriage appeared
and claimed administration, proving a marriage in fact, cohabit-
ation and owning, and there was no case made on the other side,
the first administration was revoked. 1 Lee, 122, ISS.

The taking administration, with the will annexed, which vill
was in litigation in a different court, (the Irish Prerogative
Court,) is at least practising a deception ; especially when such
administration had been obtained after knowledge that a eateat
bad been entered, but never warned, and such caveat expired;
the administration thus taken without notice to the other party,
was revoked and declared void, and the party condemned io
costs. 3 Hag. 248.

A will cannot be proved in form of law, till an admiDistra-
tion previously granted has been revoked ; 2 Lee, 91 ; but
the court cannot revoke administration on the mere suggestion
of a will- 1 Phill. 177.

Where there has been a /tms^ecifgrant of admifristration under
a bond fide belief that there is no will, and a will is afterwards
produced, it is no ground for revoking the administration, but a
aeierorum grant should be applied for. 2 Hag. 69*

Where a party has set up an instrument as testamentary, and
obtained administration with such instrument annexed, and it is
contended afterwards successfully, that sucb paper m tiot testa-
mentary, but merely a danaiio inter vivos, inch administration
will be recalled. 8 Hag. »IS.

The court has greater authority over an administration, with
the will annexed, than over an administration under the statute,

QKOItf. 975

and thereforei where upon a renonciaUoD by the executor, ad- H«vo€ation
ministration was granted to a creditor, who having settled his ^^ admil^'.
own debt^ ran awajtj the court said, it saw no other remedy tratlon.
than that the administration should be revoked, and.the executor
retracting bis renunciation, should be. allowed to take probate
of the will, otherwise loss might ensue, and injustice done. 3
Phill. 33.

If a diocesan administration has been obtained by one next
of kin, when the case required that the administration should
have been issued from the prerogative court ; the course to be
adopted, is to cite the diocesan administrator to bring into the
registry of the court, '* the pretended letters of administration
granted to him, and to show cause why the same should not be
declared null and void, as having been unduly obtained.** 1 Hag.
683; 1 Lee, 159.

An administration Umited to a particular purpose, may, bv Refocation
agreement and consent of all parties, be revoked, and a fresh of a valid
one granted, in order to suit the convenience of the case. The J^"***"^^*
court, indeed, at first doubted, saying, that there was a difficulty
in revoking an administration, effective as to all the purposes
for which it yras originally granted, but on a subsequent day
decreed a revocation of the original grant, and a fresh grant in
the form prayed. 1 Hag. 24^2.

All persons may be executors or administrators, except those Ezecutora
who are expressly forbidden. P^ admin-

With regard to aliens, it seems admitted than an alien friend ^^ ^^l
may be executor, but it has been thought that the case of an not be.

alien enemy, being here without the king's license, is different. 77

H'illiams on Eareeuiors, 126, n. (/). But alienage does not in-
capacitate a next of kin from being administrator.

Infants of whatever age may be appointed executors ; Swinb. Inraota.
331 5 4 Burns Ecc. L. SJ82; but by 38 Geo. 3, c. 87, s. 26, an
infant cannot act till he attains the age of twenty-one, ante, 959.
If a minor be entitled, administration durante minore €etate will
be granted to his guardian or next of kin, anie, 960.

Married women cannot take upon them the duties of an i^^^^^
executrix, without the consent of their husbands ; if they them- women,
selves be unwilling, it seems that the husband cannot force the
duty on them; coverture incapacitates a woman from taking ad-
ministration, unless her husband consent, for it is he who is to
give the administration bond, she cannot. Administration ought
not to be committed to her jointly with her husband, otherwise,
if he survive her, he would continue administrator, which would
be against the act. 4 Burn's Ecc. L. 284.

Persons disabled by law from suing in their own right, are felons &c.
still not disabled from suing in auier droit, and consequently
may be executors.

976

mmg*

Executors
and admin-
istratoii,
who may
not be.

Lunatic.

InTentory.

Nor can probate be refused to an executor^ on account of hb
being in mean and low circumstances^ insolvent of a bankrupt ;
but under such circumstances the court of Chancery will appoint
a receiveri or will compel him to give security.

If an executor become a lunatic, administration, with the will
annexedi de bonis non^ will be committed to some one else ; is
one case it was committed to joint residuary legatees, the conn
mittee of the lunatic consenting ; 3 Add* 35. In another ease,
though there was no consent, personal citation was proved, and
there was no dissent expressed ; ibid. 56 ; atUe^ 959, n. (a)

It is said that where a sole executor becomes lunatie* the or-
dinary practice of the court is, to make a limited grant to his
committee, for his use and benefit during the lunacy ; 2 Add.
336 ; or there may be a formal appointment of a committee, to
whom administration may be granted for the benefit of the
Ijanadc, 1 Hag. 4S7.

Where an executor in trust became lunatic, administration
with the will annexed, was granted to a legatee beneficially enti-
tled to the residue, the court saying, " it was hardly to be ex*
pected that the family of the executor, who had no beneficial
interest, would appoint a committee.** 3 Phill* 499.

It is also the practice of the ecclesiastical court to grant ad-
ministration to the next of kin, for the use and benefit of the
lunatic, although there has been no inquisition finding him to be
so. 2 Myln. ^ JiT. 4 ; Williams on Executors^ 353.

By Stat. 21 Hen. 8, c. 5, s. 4, executors and administrators
are directed to make a true and perfect inventory of all the
goods, chattels, wares and merchandize, as well moveable as not
moveable whatsoever, of the person deceased ; " and tlie same
shall cause to be indented, whereof the one part on their oaths,
to be taken before the bishops or ordinaries, &c., or other
person having power to take probate of testaments, to be good
and true, and the same shall deliver into the keeping of the
said bishop, &c. ; the other part to remain with the said ex-
ecutor or administrator. No bishop, 8cc. to refuse to take such
inventory, to him, presented or tendered, to be delivered.*
2Lee,262i 1 PhiU.240.

We have seen above also, that the delivering an inventory is
otoe of the conditions of the administration bond required by
22 and 23 Car. 2, c. 10, *. 1, ante, 963.

The court always inquires into the interest of a party who
requires an. inventory, but, when it sees any kind of interest, it

{a) It was said by Sir J^ Ntchoil^ that it it* required by the Cnmanj,
and was the old practice of the court, and is still of some couatry
jurisdictions to require an inventory befixre probate. 1 PhiU, 240.

anarc(. 977

enforces that duty, which by law is generally required ; 1 PhUL inventory.
247; but it has no jurisdiction to decree it otherwise. ILee, who may
US, ante, 701, 70i. c»"for.

But it has been laid down in a variety of cases, that a pro-
bable interest is sufficient, because the inventory was so much
a matter of duty, (a) that the executor was bound to exhibit it,
even where there was only an appearance of interest in the party
calling for it; and parties hanging back have been generally
condemned in costs. 1 PMU, S41 ; S Lee, S99, 846. So, a
contingent interest has been held sufficient ; 2 PkilL 57.

A residuary legatee is not prevented from calling for an in-
ventory, though he may be joint executor, for the whole of the
effects may have got into the hands of the co-executor without
his privity. 2 Add. S37.

A creditor is entitled to an inventory on swearing to a certain Creditor,
sum due to him. 1 Lee, 251, 471, 561 ; 2 Lee, 188. A physician
is not a creditor for his fees ; 1 Lee, 102. Though a bond may
be controverted in an action at law ; a bond creditor is not, on
that account, the less entitled to an inventory. 2 Add. 234.
Where the debt sworn to by a creditor, appeared to be barred
by the statute of limitations, it was said, that though the statute
was properly pleadable at common law, the court could not take
notice of it for this purpose. 2 Lee, 845. A minor, on coming
of age, having renounced in favour of a creditor, the creditor
has a right to call on the administrator, durante minore €etate,
for an inventory and account. 1 Lee, 15.

Sir G. Lee decided, that an administrator pendente lite, is Who to
bound to exhibit an inventory and account, although a bill in •'^i^*
Chancery may have been filed against him for a discovery of
the deceased's efiects ; 2 Lee, 131 ; but Sir W. Wynne, 1 PkiU.
247, seems to have considered the pendency of such a bill in
Chancery, a ground for refusing to compel an inventory, as the

(a) The duty of exhibiting an inventory is so imperative, that the
court must enforce it on all occasions. Therefore, the giving a release
by a residuary legatee, does not bar him from insisting upon an inven-
tory, for the court cannot judge of, nor notice such an instrument.

1 Hag, 105. But in one case, a release was held a bar till set aside in
equity ; 1 Lee, 525 ; in another case, where the executrix by her answer,
admitted assets to pay a legacy and costs ; an inventory was refused, as
useless. 2 Lee, 101.

In some cases the court directs an inventory ex officio, 1 Phill. 240,
as in the cases of minors. 2 Lee, 399 ; 2 Add. 238.

Where property has been conveyed away by the deceased, by a bill
of sale, an inventory from the administnitor cannot be insisted on.

2 Lee, 856.

R R R

978

mm.

loventory.

What to
contain.

When it
may be
ealled for.

party should not proceed in both courts ; and so indeed did
Sir 6. Lee in a subsequent case. 2 Lee, S69.

The representatives of a joint executor, who, as there was a
surviving executor, did not represent the original testator, may
be called upon for an inventory, if there be reason to believe they
have received any part of his effects, it Add* SS4; andvid, 1
Hag. 139, So there seems no objection to the executors of a
creditor, who, upon the renunciation of the widow of the de-
ceased, took out administration with the will annexed, being
called on by the executor of the widow of the son of the ariginal
testator, who also took administration with the will annexed, of
such son, and also administration of the goods of the widow of
the original testator, who was his universal legatee. 1 Add. 144.

When the court decrees an inventory, it expects a fiill and
satisfactory one to be deUvered, 1 Lee, 6S3, as it is the only
source from whence the court can collect the value of the
estate for bond securities or otherwise, 2 Lee, 244 ; but if a busi-
ness be carried on by representatives, the court cannot require
the inventory to include the profits of the business since the
death. 1 Hag. S50, and vide 2 Phill. 57. Where the adminis-
tratrix durante minore ataie carries on business for a minor, she
has been spoken of as a trustee and obliged to account, 53 Lee,
508 ; but in that character, she cannot, it is conceived, be called
on by the ecclesiastical court, but only by the court of Chancery.
So the ecclesiastical court cannot direct the inventory to include
a leasehold held on a mortgage, the mortgagee being acoountaUe
only in chancery. 1 Lee, 431. Nor, it seems, need the inventory
contain an account of effects without the jurisdiction, as of pro-
perty in a foreign country, Germany, S Lee, 554, nor oat of the
province; for instance, the prerogative court of Canierbur^
cannot require an inventory of effects in the province of Yoriix
in Ireland; ibid. 555; in such cases there must be separate
probates ; ante, 968. IJP an inventory be insufficient there may be
a decree for a further inventory. 2 Lee, 271, 3S2, sed posi^ 979.

The law has not fixed any time beyond which an inventory
cannot be called for, and therefore time cannot be pleaded as a
bar to the demand ; still> in reason and practice, it may operate
as a bar ; where, therefore, an inventory was called for after a
lapse of forty-five years, and the general circumstances of the
case led to a reasonable presumption that the estate had been
fully administered, an inventory was refused; 1 AdcL 144:
4 Hag. S4<3 ; 2 Add. 81 1 ; but as no inventory nor any accouot
in any sort had been exhibitedt the application, thaugb dis-
missed, was dismissed without costs; Hid. 157; Kodvid. I PAil^.
24f2. But in another case, where from lapve of time, acquies-
cence, and the general circumstances of the case, the court con-

aaSOISt. 979

sidered there was no gronnd for the application, the application inventory. ,'

was dismissed with costs. 1 Hag. 251. Where thirty-five years <

had elapsed, and there was no reason to suppose the executor to I

be in possession of any of the property of the testatrix, the ap-
plication for an inventory was dismissed with costs. 4 Htxg^ S41.
So where seventeen years had elapsed, and a declaration of the
debts and effects of the deceased had been given, but no regular
inventory, the court dismissed the application. 4 Hag. S4^.

Whether the ecclesiastical court can entertain objections to Objections
an inventory is a matter upon which the ecclesiastical and com- ^^* I*

mon law courts are not agreed : hitherto the ecclesiaetical courts
have allowed allegations in objection to inventories, and answers
to be taken upon such allegaticMis, 1 Lee^ 847 ; £ Lee^ 561 ;
8 Hag. 784; but they have not permitted witnesses to be- ex-
amined upon the allegations, in order to falsify the inventory.

2 Add. Sdl, 336; 2 Phill. 189 ; at least, they would not permit
witnesses to be examined in opposition, except perhaps in a
case where the answers were unsatisfactory. 2 Add. 336. The
court of king's bench has, however, held that the ecdesiasdcal
judge acts merely ministerially^ and issued a prohibition, on a
suggestion that he was about to hear exceptions to the inventory,
and compel a fresh one. 5M.^S. 406 ; and vid. 3 Burr. 1922 ;
5 Ad. ^ EU. 623 ; and Mr. WiUiafM's observations on this
point. Williams on Execuiors^ 714.

In testamentary causes the proceeding is sometimes com- i*ettameB.
menoed by a caveat entered by a party interested in the effects tary tuiu,
of the deceased person against the grant of any representation,
either by probate or letters of administration, without notice
being first given to him who enters the caveat. 2 PhiU. 315 ;

3 Hag. 248. This caveat is then u>amed{a) by the party claim-
ing the representation either as executor or administrator,
which is in effect a notice to the proctor entering the caveat,
that he must appear and take further steps, if he intends to
continue his opposition. Both parties are then assigned^ by
order of the court to set forth their respective claims, and the
suit thus commences, either to try the validity of an alleged wiU
or the right to administration, either as under an intestacy, or
with a will annexed. Rep. Eccl. Cam. 16; 3 Hag. 616; 1
PhiU. 132, 179, 347 ; 3 PAi«.314; I Lee, 655.

Again, another mode of commencing a suit in testamentary
causes, is, for the executor or other person, claiming to take the
grant of probate of a will or other testamentary instrument, to
cite the next of kin, and other parties interested under mi intes-
tacy or a former will, to appear and see the will propounded and

(a) Of warning a caveat, vid. 2 Phill. 432 ; 3 Hag. 248.

» o n 9

R R R 2

980 mm.

Testtmen- proved by witnesses ; and if the parties do not appear and op-

tary sqita. ^^^^ ^j^^ probate, they are barred from afterwards contesting

its validity; unless on account of absence out of the kingdom, or

the like sufficient cause for non-appearance, be shewn. Rep.

Ecc. Com* 15.

So again, the next of kin or other parties entitled, either to the
grant of administration, or under a former will, may cite the exe-
cutor or other person apparently benefited under a suggested will
or testamentary instrument, to appearand propound it; or other-
wise show cause why administration should not be granted, to the
deceased, as having died intestate, or probate decreed of a for-
mer will ; and the parties cited, not appearing, are bound from
afterwards setting up the will. But if probate or administration
be taken in common form^ without citing persons having an ad-
verse interest, the grant may afterwards be called in, and the
executor or administrator cited, and put upon proof of his right,
as if no such common form had issued ; ante^ 947.

Again, where no grant is applied for by the person primarily
entitled to it, such as an executor, residuary legatee, or next of
kin, process may be taken out by any person claiming an interest
in the effects of the deceased, such as a legatee, a party in dis-
tribution, or a creditor, calling upon the persons primarily
entitled to accept or refuse the grant, or otherwise to show
cause why it should not pass to such person claiming an
interest; afil^, 954.

If a person he dead intestate, without leaving any known
relations, a creditor may obtain the grant, upon advertising for
next of kin in the Giixetie^ and a morning and evening news-

faper, serving a process on the Royal Exchange, and on the
in^*s proctor, the crown having a right to take the grant, if
desired ; ante^ 954, 955.

In all these and similar cases, the facts must be supported by
affidavit, all due notice is required to be given, and the grant u
moved for before the court, at its sitting.

With regard to the changes in various dioceses by 6 ^7
Wm. 4, c. 77, ante, S68. It is provided, by s. 9St of that act,
that the law of bona notabilia shall not, for one year, be altered;
this exception has been continued, by 1 VicL c. 71, and i %i
FicL e. 55, to the 1st of August, 1840, or, if parUament be then
sitting, to the end of the next sessions.

981

APPENDIX.

Cj^utti) l^te.

At common law.

By whom made.
Vestry.

Churchwardens on refiiaal of Testry.
^ By statute.

Purposes for which made.
By whom made in extra^parochial places.
On what property,
^ Real property generally.

^ Personal property.

^ Exemptions.

Mandamus to make a rate.
I Form of the rate.

1 Objections to, when and how made.

I By caveat to confirmation.

By defence to a suit for substraoUon of.
Not by proceeding to quash.
^ Objections.

^ Sufficiency of.

On the ground of overrating.
Omission of other parties.
How recovered.

Proceedings in ecclesiastical court.
Summary before magistrates.
Appeal against.
Confirmation of by ordinary.
Of retrospective rates.

S Y the laws and custom of the realm^ the body of the church. At com-
the belfry, and all public and common chapels within or adjoin- "^^ ^^^'
ing to the church, are to be re-edified, maintainedi and repaired
at the charge of the parishioners and landholders within the
parish. Degge, 202; ante, 163, it. (a), 166, I67» 168.

The fund for repairing the church is obtained by a rate
usufidly called a church rate, equally assessed upon all the pro-
perty in the pariah ; the persons in occupation of the property
being rated in respect thereof, and held responsible for the
amount of the rate assessed, vid, post^ 989, n. a. But besides the
repair, the expenses attending the service of tbe church are to be

982

€t)mti) ^tt*

At com-
men law.

By whom
made.

defrayed out of the church rate. The duty of attending to tbe
repairs^ and providing for the service of the church, belongs to
the churchwardens, who are the oflScers of the ordinary for that
purpose ; and if they neglect this duty they may be proceeded
against, criminally as well as civilly, in the ecclesiastical court
In one case, the churchwardens having admitted tbe charge b;
an affirmative issue, a monition issued against them to repair
and re-instate, in its original form, the spire of the church,
which had been destroyed by lightning, 3 PhiU. 501 ; tnUe, 165.
It is conceived, however, that both in the return to a mandamus
under the church-building acts, and in answer to a monitioo is
above, if the churchwardens show that they had used all diligence
to make and collect a rate, and had been guilty of no default,
either in the making or collecting ; no attachment would issue,
nor would they be visited by punishment upon informing the ec-
clesiastical court of their difficulties; vid. Miller and another ^.
Palmer and Another ^ 1 Curt, 540 ; post Addenda, no. 19.

It being then the duty of churchwardens to take care that
the fabric of the church is kept duly repaired, and that aD
things necessary for the decent performance of divine serm
are provided, and the law imposing on the parishioners the
burthen of raising, by a church rate,(a) the funds necessary to
pay the expenses. The churchwardens ought, in prudence,
soon after their election, tojsummon a vestry for the purposes of
considering, prospectively, what expenses are likely to be
incurred during their year of office, either in the repair of the
body of the church, or in providing what is requisite for tbe
service of it. 1 Curt, 36S. If the parishioners, being dolf
summoned to meet in vestry for the purpose of making a churck
rate, shall refuse or neglect to meet for that purpose, it seem*
admitted, both on authority and on general principles, that the
churchwardens are then competent, of their own aathority
merely, to make the necessary rate.(£) But supposing the

(a) It was said by the court, Dr. Lushington, iu the case of Swihoii
Moze V. Keats, 4 Hag, 278, " There can, I think, be no doubt or &
" ficulty in assuming that church rate has existed in this country &^
'' time immemorial ; for there is no evidence that it was introduced ai
'* any particular period, nor can. I find any distinct notice of its cox-
" mencement.'*

(Jb) Where there are no churchwardens chosen, or there was a su?"
posed custom in a parish not to choose any, the court of King's Bench
granted a mandamus to the parishioners liable to contribute to tlit
church rate to meet and assemble in vestry with the minister oftb^
parish, to elect two fit and proper persons to be churchwardens. 2 o-
^ Adol. 197. The return to such writ, which stated that there va^a
custom in the parish to have no churchwardens, was quashed, and ^
peremptory mandamus was awarded, ihidy 203.

Cburd) 3SiliU^ 983

parishioners do meet, and the majority of them refuse to make At com.
a rate, whether the churchwardensi supposing the church to ^'^^ **^*

need repair, are then competent to make a rate of their own au- By whom
thority, contrary to the decision of a majority of the parishioners ; ******••
supposing also that the refusal on the part of the vestry to make
the rate be wilful and contumacious, is a question which must be,
for the present at least, considered as undecided (b) ; post
Addenda^ 19.

(5) It was hoped that the decision of the court of Queen's Bench
upon this important point, would have been given in time to have been
included in this article, which has been kept open for the purpose of its
being added. The question has arisen in Uie case of Veley and JosUn
v. Burder, I Curt, 372, Michaelmas Term, 1837, which was a suit
for substraction of church rate, promoted by Feley and Joslin, church-
wardens of Braintree. The libel pleaded in substance that the church
stood in need of repairs, that the inhabitants were duly assembled
in vestry on the 2nd June, 1837, for the purpose of making a rate
for the repair of the church, that an estimate was produced, that neither
the necessity of repair nor the amount of the estimate was disputed, and
that on a rate being proposed, an amendment was put and carried, that
the consideration of the rate be postponed till that day twelve months.
It then proceeded to state, tliat, after the parishioners and inhabitants
had so refused to make a rate, on the 10th day of June, the church-
wardens did rate and tax all and every the inhabitants and parishioners
for and towards the necessary repairs of the church, and the other
expenses necessarily and legally incident to the office of churchwardens
for the remainder of their year of office. This libel being opposed, its
admissibility was debated. Against the admissibility, it was argued
that the whole current of authorities went to negative the churchwardens
having such power, and that an anonymous case in VerUris^s Reports,
1 Ventr, 367, and the case of Gaudem v. Selby, reported from the mss.
notes of two gentlemen at the bar, could not be considered as of sufficient
weight to overturn all the previous authorities on the subject ; on the other
hand, it was argued that the opinions of writers of authority were not
uniform, that the case in Ventria had been adopted into Viner^s and
Bacon*s Abridgments, and that the case of Oaudem v. Selhy^ A^rches^
1799, 1 Curt. 394, was a binding authority, and that in that case Sir W.
Wynne had distinctly decided that if a vestry refuse to make a necessary
church rate, a churchwarden may make a rate himself. The learned
judge. Dr. Lushington^ after stating, that in his judgment, the postpone-
ment of a church rate for twelve months was, under the circumstances
of the case, equivalent to a total rejection, said that he felt bound by the
case of Gaudem v. SeJhy^ and consequently the libel must be admitted,
but that whether the law of that case were good or bad, or what ought to
be the law was a question, upon which he did not consider himself bound
to pronounce any opinion. Upon this, a rule nisi for a prohibition was
obUiined in the Queen*s Bench in Michaelmas Term, 1837, and an
arrangement having been aAcrwards entered into, it was agreed that the

made.

Notice of
TMtry.

£>84 CtwrOi iUite,

^^ ^' ?" considering the amounti the veslry is not botind by tbe

', estimate of the churchwardensi nor can chorchwardeoi or

?!7^**" ▼cstrymen be considered as acting contumaciously inTOting fori
lower estimate than the one proposed; therefore, in a catt
{>efore the Delegatesi it was decided, that where a vestry net,
and two churchwardens out of four proposed an estimate of
repairs, amounting to £ 1 1 1 , which the two other churehwaideoi,
with some of the other parishioners, thought too high, and Toted
for a lower sum of £50. 17 s, ; such last mentioned churchwardens
and parishioners cannot be proceeded against by articles. The
court remarked, in the course of the argument, that the qaetdoD
was as to two assessments, which might easily vary, and that if
the court were to adopt the higher estimate, it would tiiefl
decide on the quantum a question which it had no power to
decide. If it had been alleged that the parishioners had con-
tumaciously and obstinately refused to make a rate, or that the;
would only make such a rate as was manifestly collusive, there
might have been some ground for proceeding against then.
Greenwood v. Greaves, 4 Hag, 82.

Although by 58 Geo. S, a notice of the business at a yestij
is necessary, yet before that act, no such notice was requi-
site ; where, therefore, it was pleaded that a vestry was heU
without due notice, but it was admitted that some notice had
been given and a vestry held, and its proceedings confirmed
at subsequent vestries, the notice appearing only to be "that

party libelled should issue prohibition, and that the two points to be raised
by the declaration and demurrer thereto, should be, Ist, the validity of
such rate, and 2ndly, the power of the court to issue a writ of prohibition is
such a case. Both questions were argued at great length on one of the
five days after Trinity Term, 1839 ; but the court has not yet given its
judgment. In this state of things it would be useless to attempt to
give an abstract of the able and elaborate arguments urged on tltft
occasion, and very unbecoming to pretend to anticipate the opinioc of
the court. The whole of this case, including the application for the
rule for prohibition, has been published in a separate pamphlet hj Mr.
Cuthheri Johnson,

The circumstances of the ease of R, v. the Chwrehwardem of ^
Peter' 8^ Thet/wdy 6 7. R. 364, are not altogether unworthy of notice; ii
that case, Bower^ on moving for a mandamus to the churchwardem, stated
that the inhabitants had refused to make a rate, and that though in geneial
the rate was to be made by churchwardens and inhabitants, yet, if tb
latter refused, the churchwardens might make a rate without them, as^
eited the case, I Ventr. 367 ; the court of King*s Bench did notrepndia^
this case, or refuse the rule on the ground that the application to graot i
mandamus to the churchwardens ahne was wrong in form, hot denied it
on the general ground that church rate was a subject j^r^ of ecde-
siastical cognisance.

Ctmttt) i&atr; 965

the chiefs of the parish were desired to meet after service.** NoUm of
The court determined, that after the expiration of three yearSy y^^^*
and no suggestion of impropriety in the rate, or in the conduct
of the officers, the notice was sufficient. Clution ▼. Cherry, 2
PkiU. 372. If a rate be illegal in its origin, as if made by a
commission from the bishop, yet if assented to afterwards by a
majority of the parishioners, it seems that it is good. 2 P/ulL
S87.

The common law powers of churchwardens with regard to
church rates have, however, been varied and extended by the
acts for promoting the building of churches ; they have by those
acts, and by some special and local acts, the power to borrow
money, and to charge the rates with the payment of the interest
on the sums borrowed, and in some cases with the payment
of an annual sum for providing a fund eventually to repay the

1>rincipal ; such loan, therefore, becomes a civil debt between the
ender and the parish ; churchwardens have, in some instances,
express authority of themselves to make a rate ; and the court
of Queen's Bench, will, in all cases where the right of the
lender to have his money, is apparent, interfere by man-
damus, to compel churchwardens, and also inhabitants, if
necessary, to make rates for paying the interest, and for pro-
viding a fund as a security, if there be a provision by statute
to that effect, and in all respects to perform the terms of the
lending.

Where the commissioners for building and enlarging churches, geleci
under their special powers to do so, have appointed a select veitiy.
vestry, it has been held, that the number required to constitute
a good assembly of such vestry, there must be present a majority
of the whole number : thus, in a select vestry of twenty-six,
fourteen would be required to be present, and a rate made for
the repair of the church, was illegal, unless made by such a ma-
jority. 9J8.*C.851.

By the first act for promoting the building of churches, 58 f^^ «„.
Geo, 3, c. 45, «. 59, a power was given to churchwardens, with largiiu^ or
the consent of the vestry, or persons possessing the powers of sxtioduig;
vestry, and of the bishop and incumbent, to borrow and raise,
on the credit of the rates, such sums as shall be necessary for
defraying the expense, or any part of it, of enlarging, or oiheT'
wise extending the accommodation in the then existing churches,
and to make rates for the payment of the interest of the sums
borrowed, and for providing a fund, of not less than the amount
of the interest upon the sum advanced, for the repayment of the
principal thereoi; or for repaying such principal, in such manner
and at such times, and in such proportions as shall be agreed
on with the person advancing the money: provided one-half of

988 €bmtb l^ate^

By statute. coUect the rate so ordered to be raised by the power and autbo-
rities, and subject to such penalties as are inapplicable to the
making, raising, levying, or collecting church rates.
Eitra- Provisions having been made in some of the above acts for

i«rochal building churches and chapels in extra-parochial places ; where
P ***•• there were no churchwardens, it became necessary to substitute
officers, in order to make, levy and collect the rates, and oons^
quently it has been enacted by the 58 Geo* S, c. 45, «. 57, that
where sumsof money have been expended in purchasing sites, or
advanced by the commissioners for any extra-parochial place in
which no church rates shall have been collected ; justices of die
peace may, from time to time as the case may require^ appoint
two or more persons to make, raise, collect and levy rates for al
the payments or repayments required by that act; such person
to have the powers of churchwardens, and are thereby required
to make, collect and levy the rates, and all sums so expended
or advanced, shall be charged on such rates, and paid thereout,
at such times, and in like manner, and under the uke proTisiont
as if such had been, and was, a parish in which church rates
were made and levied by law ; and all such rates shall be deemed
church rates, ybr the purposes of this act, and made, levied lod
accounted for as such ; and all acts of parliament on, and
penalties and forfeitures contained in, any acts, and all powers,
authorities and laws, ecclesiastical or others, for making,
collecting or levjring church rates, shall apply and be en-
forced with regard to such rates, when the same become
necessary.
Genend By ^8 Geo. 8, c. 45, s. 58, a further general power is given

power. for the churchwardens of any parish, or persons appointed in
any extra parochial place, with the consent in any parish of the
vestry or select vestry, or persons possessing, under any act or
acts of parliament, the powers of vestry, and with the coosenti
in any extra-parochial place, of the majority of the persons who
would be entitled to vote in vestry, if the same had been a parish
assembled at any meeting called for that purpose, with notice
given in the church or chapel of the extra-parochial place, or
in the church or chapel nearest adjoining thereto, to borrof
any money upon the credit of the rates of the parish, or extra-
parochial place so to be made as aforesaid ; and they aretherebj
empowered and required, in any case in which such money sb^
have been borrowed, to raise by rate, a sum sufficient from tin*
to time, to pay the interest of the money so borrowed, and one-
twentieth part of the principal sum borrowed out of the prod<^
of such rates, until the whole of the money so borrowed abaU
be paid.

Generally, all property ought to be rated, and though) i"

Cftttltft aSUitt* 989

form, the rate is upon the person in respect of the land, yet in ^^ '^^'^
substance, it is the land which is chargeable (a). ?to?tny.

A person may be chargeable for some land (6), and not
for other, as the spiritual rector or lay impropriator is exempt
from church rates, in respect of his glebe, because that is
chargeable with the repairs of the chancel ; but if he hold
cV '*"^* ^^ '^ chargeable for that, in common with the rest
of the parish, to the repairs of the nave or body of the church.
2 Rott. Rep. 21 1 ; Gibs. Cod. 221 ; ante, 165, 166. It is the
privilege of the land which exempts the person ; no privilege
of the person, except in the case of the crown, honoris causd,
can exempt the land. By a constitution of Archbishop Sirai-
ford, It is ordained, "that all persons, as well religious as
others, having possessions, farms or rents, which are not
of the ^lebe or endowment of the churches to be repaired,
living within the parish, shall be bound to contribute with the
rest of the parish, to all charges incumbent on the parishioners
concerning their church and the ornaments thereof." 1 Burns
Ecc. Z. 381. Lindwood expounds this, by saying, that if there
be lands in the parish belonging to another church, and which
are of the glebe and endowment of such other church, yet they

(a) The rate for the poor, is, in the very terms of the statute, a per-
sonal tax upon " inhabitants and occupiers." still the l^slatuie have
considered the land as charged, and the occupier as the xepresentative
of the land ; and have, therefore, in many instances, as well by local
acts as by the general statute, 59 Geo. 3, c. 12, a. 19, enabled vestries
to transfer the charge from the actual occupier, to his immediate lessor,
where the smallness of the rent, and the uncertainty of the term, made
it expedient to have a more solvent representative of the house than
the actual tenant was likely to be ; indeed, Jeffmfs case, 5 Re^. which
is said to have established the rule, that it is the person, and not the
land which is charged, shows, by the second resolution, in what sense
that proposition is to be undersrood.

*' If Jtffer^ should not be charged to the reparation of the church,
for lands which he himself occupies, then no person would be ehmrged
for them, upon which great inconvenience would ensue ; for one who
inhabits in the next town, may occupy the greatest part of the lands
in another town ; and so churches in these days t»ould come to ruin j
but it was resolved, when there is a £urmer of the same lands, tbe
lessor, who receives rent for them, shall not be charged in respect of
his rent, because titere is an inhabitant and parishioner who may he
charged^ and the receipt of rent doth not make the lessor a parishioner. **
(b) Though incorporeal hereditaments are generally not rateable, yet
if a local act g^ives a power to rate *' all tenements and hereditaments
rateable to the poor," tithes become subject to church rate by the effect
of such provision. 6 Ad. ^ EU. 388.

990

€f)mtb iUitt^

Real
properly.

Rate for
oraaments.

Personal
property.

who have sudi lands ought to contribute to the repairs and a-
dowment of the church of that parish within which tiiey lie. ^

It seems from thisj that all lands and hoases in a parish aic
to he rated ; and the parties in actual manarance and ocoi-
pation of such lands are to be considered as repreaentiDf
those lands, and are the persons on whom the charge is to be as-
sessed and levied, whether they reside within the parish or sot

Formerly there was a distinction between a rate made for
support of the fabric ef the church, and a rate for the on»
ments ; 2 Roll. Abr. 291 ; Lindw. 255; that in the former cas,
non-inhabitants might be charged, but in the latter, the rate
was to be limited to inhabitants only ; but such a distinctiao
has been long disallowed. 1 BuUir. £0; 1 SalA. 164; 1 Bm)
Eec.L. 379; Degge, 138.

In the late case of Chesterton v. Farlar, I Curt. S56, it wa>
contended, amongst other things, that where a district ciiuni
was built under the authority of the 58 Geo. 3, e. 46, that the
district, though liable for the repairs of the chuich, was ao^
liable for the incidental expenses, the words of the statute,
«• 71, being, that ''the district should remain liable for trentj
years to the repair of the original parish church;" but the judge,
Dr. LushingtOH, said, that according to the tme constructioo of
that clause, the inhabitants of the district were liable to be as-
sessed to the incidental expenses, in the same manner as the;
were, to the repairs of the mother church, and that if it vefv
otherwise, it would lead to great inconvenience and oonfusioD.

Furthermore a church rate is to be made upon persoiultr.
and stock in trade, if the usage of the place sanctions such i
course, " According to the ecclesiastical law that hath pre-
vailed in this realm, the laying of the church rate ought to be
according to the lands, and the stock which the parishioDers
have within the parish ; and so say John of Athan and LynJr
woodf the antientest and best of our canonists;" Prideaux, Bi)
86; 2 BoU. Abr.id89,L 40; Wood's Jnst. 6, c.7 ; tid. po^^
" the order of thirteen civilians."

In a late case before the Delegates, the liability of stoduo
trade to be assessed to the church rate, was much discus^ j
it was an appeal from an order or decree made by the principv
official of the Peculiar, and exempt jurisdiction of Great Qat-
ford and Poole, ** in which he admitted to proof a libel, pkaa-
ing a church rate," including " stock in trade :" it was pleaded,
that the rate was made by order of the vestry, " agreeably to
the then present poor rate, and according to the usvol OJ^
customary mode of making the church rate within the saw
parish," and then added by the fourth article, that the defen-
dant Miller was assessed at the sum of £4. Is., being at the rate

€Wva} Katr^ 99i

of nine shillings for every hundred pounds in value of the stock Personal
in trade of the said defendant ;" it appeared that the usage in P^QP^^y*
Poole, was to assess stock in trade to the poor rate. The dele*
gates decided against the appeal, and that the libel was properly
admitted to proof. Miller v. Bloomfield^ 1 Add* 499 ; thereby
deciding, that in the particular parish, stock in trade was rate-
able. 2Add.S0.

Generally speaking, the poor rate is a fair criterion ; it is Poor rate
assessed by the parish themselves, and they naturally employ ^. ^^^' ^"^
impartial persons to make the assessments, and beinff much
higher thaii the poor rate, is generally scrutinised with much
jealousy and accuracy, and from these circumstances would
seem to be a safer and fairer criterion than the king's taxes,
vid. 4 Hag. 100. So in Thomson v. Sanford, 8 Pkill. 642, Sir
W. Wtffme said he thought a church rate made according to
the poor rate was just and prudent. In Sewell v. Twyford^
2 Leey 150, Sir 6. Lee said, ''property is to be assessed at its
real value, and not according to the rent only, for supposing it Real value.
to be a custom in the parish for landlords to reserve very small
annual rents, and to take large fines, there would be Uttle or
nothing to be assessed, and so the church must go to ruin.
Before the value of property was so rigidly investigated, as
at present, the rates were usually made by common estimation,
ana when that has been done, small inequalities are not to be
considered as sufficient to set aside a rate. 1 Lee^ 58 ; 3 Philip
639, 640, in notis.

It has been stated above, that all property is primd facie Exempt
chargeable to the church rate, there may, however, be exemp* ^od>-
tions. Thus, the glebe b not rateable by reason that the
rector, who holds the glebe, is liable to the repair of the chancel.
It has also been said that there are cases in which a patron may
allege that his lands are exempt by prescription derived from the
original founder of the church. Degge^ 140. But there seems to
be no known instance of such a prescriptive exemption. 4 Hag.
S79. There are also cases where the inhabitants of a division of a
parish, by immemorial usage, and the repairs of a parochial
chapel, have claimed an exemption from the repairs of the
motner church, vid. post, 992. Where property is in the king
or queen's own occupation, directly or indirectly, it seems to be
the better opinion that such property is altogether exempt,
honoris gratid. 4 Hag. S80.

But property of royal demesne, transferred to another party, '^y^\ de-
does not retain its privilege of exemption from church rate, for ™^^^-
the consequence would necessarily follow that all the lands in
the country, which had ever been royal demesnes, and from
time to time transferred to individuals, or to bodies corporate,

992

C^tircl^ state.

£zeaii»-
tions.

Royal de«
metoet.

Chapelfiei.

Stalls.

would become exempt from church rate. The moment such
property passes from the crown, the privilege of exemptioD
is at an end. 4 Hag. 281. It has been decided, therefore,
that the governor of Greenwich hospital, though originallj
part of a royal demesnei to which an unconsecrated chapel,
chaplain, and burial ground were attached, but the ofBcen
of which occasionally bury, christen, marry, and have pern
at, and resort to, the parish church, and vote at the vestrj, u
liable to be assessed to the church rate in respect of his pte*
mises in such hospital in his own beneficial occupation. 4 /fa;.
275.

A parish church and a chapelry may exist within the
same boundaries, without the relation of mother and ofispring,
but independently of each other, and probably coeval; there-
fore, in the late case of Crapen v. Sanderson and othert,!
Ad. % Elk 880, in which an inhabitant of the parish of W.
being libelled for non-payment of church rate, objected tbst
the rate was bad on the ground that the chapelry of H. bad
not been indkided in the rate; having declared in prohi-
bition, it was pleaded that there had immemorially been s
chapel in H., in which the inhabitants of H. had receireJ
aU divine rights and serpioes, and the costs of repdring die
chapel had been immemorially defrayed by the inhabitants of
H. and no others ; and that from time whereof, ftc. no rate for
repairing the parish church had been laid upon any person in
H., and that the inhabitants of H. had, from time whereof,
&c. been exempt from contributing to the repairs of the parbli
church. A verdict having been given for the defendants on i
traverse to this plea, it was held on motion for judgment no*
obstante veredicto^ that the court must, after verdict, intend tbe
chapel to have been coeval with the church, although the pies
was not in that form, and that the church and chapel being
coeval, and the inhabitants having always been exempt from
church rate, no rate for repairing the church could now be im-
posed upon them, vid. 1 Salk. 1&5, anie^ 154, 155.

If was also heM in the same case, that under the S Geo* f
c. 73, «. 20, which directs thai chapels built under the 68 Gt(^^
S, e. 45, and the 59 Geo, 3; c. 134, or under Ae3 6^i
c. 12, shall be repaired by the parishes or places at large, to
which they belong ; the new chapels built within the parish of
W. were repairable by the district which repaired d>e cbarch,
viz. the parish of W. minus the township or chapelry of E
ibid, 897; and Did. Chesterton v. Farlar^ I Csiri.858; ante,^

If a small tradesman take a standing, for rent to be paid bj
him, in the waste of the manor within the marked finr two«
three hours every market-day, to felt his^ cemaodilieii tke

market being holden there one day every weeki but he inhabited 0° "^^^
in another parisbi he may not be rated to the* repairs of the p^p^*.^
church for this standing. 2 Boll. Abn 289 ; and vid. 2 Lee,
150.

The following directions are said to have been agreed as to the
mode of making church rates. 1 Bwrns E. L. 384 ; GodoL.
Abr. App. lOj 11.

1. Every inhabitant dwelling within the parish is to be
charged according to his ability^ whether in land or living,
within the same parishi or for his goods there; that is to say,
for the best of them, but not for both.

2. Every farmer dwelling out of the parish , and having lands
and living within the siud parish in his oocupation, is to be
charged to the value of the same lands or living, or else to the
value of the stock thereupon ; even for the best, but not for both.

3. Every farmer dwelling out of the parish, and having lands
and living within the parish, in the occupation of any farmer or
fitrmersj is not to be charged ; but the fanner or farmers thereof
are to be charged in particularity, every one according to the
value of the land which he occupies, or according to the stock
thereupon ; even for the best, but not for both,

4. ^very inhabitant and farmer occupying arable land within
the parish, and feeding his cattle out of the parish, is to be
charged for the arable lands within the parisn, although his
cattle be fed out of the parish.

5. Every farmer of any mill within the parish is to be charffed
for that mul ; and the owner thereof (if he be an inbabitaot) is
to be charged for his liability in the same parish, besides the
mill.

6. Every owner of lands, tenements, copyhold, or other, here-
ditaments, inhabiting within the parish, is to be taxed accord*
ing to his wealth in regard of the pariah, although he occupy
none of them himself; and his fiurmer or farmers also are to be
taxed for occupying only.

7. The assessors are not to tax themselves, but to leave the
taxation of them to the residue of the parish, (a)

13. The form of die church rate mav be thus : — *' We, the How made.
churchwardens and other parishioners of the parish of

(a) Vid, the comments upon this order, 1 Add, 505, 521. This
order, though given in most of the books of authority, cannot now be
acted upon; the direction in No. \, to charge a man for his " land or
living," or for "his goods,*' is erroneous; . personal property in the
case of an inhabitant, being chargeable, in addition to land, if the custom
of the parish wanasts a chaige on personalty. So, No. 6» is direetly
opposed to the second lesdhitbn, in Jefarie^t case, oale, 989.

ss s

904 Chvxtb Jaatr.

On wte in the county of and diooeae of whose mbni

^"^ ^' are here to subeeribed, do hereby this day of

Form of. in the year at our vestry meeting for that purpoie

assembled, rate and tax all and every the inhabitants and pi-
rishioners of the parish aforesaid, here under-mentioiied, for
and towards the repairs of the church of the said parish, far
this present year, the several sums following ; vis.

A. B. . .£120

CD.. ..080

And BO on.

c!d } Churchwardens.

e! F. -1

O. H. vParishioofn.
&c. J
Maadanus. Church rate being a matter purely of eeelesiastiosi cogni-
sance, the court of ILing's Bench will not interfere by lun-
damus, to compel churchwardens to make a rate where tk
inhabitants have refused to do so. 6 T. R. S64; 5 D. ^il
6QS. The making a church rate is an act requiring judgmeal
and discretion, 9 B. Sf C 858 ; not merely ministerisl, s
swearing churchwardens or the like, where the swearing u
only the perfecting a temporal right acquired by election; or
like a mandamus to the ecclesiastical court to grant proto
or administration ; for though the spiritual court is to detl^
mine whether there be a will or not, yet if there be a will the
executor baa a temporal right, 1 Sir. 672; 5 Bmrr. 2295; lo
in case of administration, if the court refuse to a bittbtfid
administration of his wife's effects, a mandamus will be granted,
2 Sir. 1118, he having a temporal right under the statotf
AfUe.

But the court will gcant a mandamus to assemUe, in ortbr
to inquire and agree whether it be fit that a rate diouldk
made. 4M.if S. 252. So they have granted a maadssDOi ^
inhabitants, liable to contribute to the church rate, to meet
and assemble with the minister to eleet chnrekwardeai, b
die churchwardens and inhabitants to make a rate. 2 & ^^^
202.

Where a party has lent money upon the credit of cbarcii
rates, such loan having been made under the powers of an a0
of parliament, giving authority to raise money on the rates ; i
is a temporal debt, and the making a rate to pay such debt, w|
being a matter of ecctesiaatical ccNinisancey a mandamus ^
issue to compel its being made. 3&A AM* 654, ostfr.

Where a parish bad been divided by statuti^ balM perf-
nent division aoknaUy made, and the rates ostttiBoaAj^
although eaeb ef th* sepamted parishes iwd> ile own t^^

warden^; and there waa a provision in the act, that till auch per- Mandmmt.
iiianent divisioni the vestries of the two parishes should meet to
divide, ascertain, and apportion the rates, and the churchwar*
dens of the one division, the church of which Was out of repair,
gave notice of a vestry meeting, to meet the churchwardens of
the other parish, to consider of a rate, but the churchwardens
of the other division refused, or neglected to give a notice of
vestry, the court of King's Bench directed a mandamus, to
compel them to convene a meeting, to inquire and agree whether
a rate should be made. R, v. St. Margaret* s and St. John'i^

So where a statute exempted parishioners from paying tithe,
and in consideration, enacted, that the churchwardens, over-
seers, and certain inhabitants of the parish, were to make a rate
in lieu thereof, out of which certain salaries were to be paid,
and the residue applied to the repairs of the church, or to such
other church matters as the churchwardens should think fit ;
and a subsequent statute substituted the vestry for the officers,
and churchwardens, and the vestrv refused to make a rate ;
the salaries being unpaid, and the church dilapidated, the court
vrill compel them by mandamus. 7 Ad. ^ Ell. 925.

So, where " a tax, rate, or assessment'* was required to be
imposed by an act of parliament, for certain purposes therein
specified, which was to be allowed by two justices, and there
was an appeal given to the quarter sessions against such rate,
the court seemed to think, that the mere provision for allowance
of the rate by two justices, clearly prevented it from being a
matter of ecclesiastical cognizance ; a mandamus was, therefore,
granted to the vestry to make a rate. 7 Ad. ^ Ell. 986,
937, n.

Where a church was rebuilt under the authority of a local
act, and trustees were thereby empowered to borrow money,
and make rates for repayment, and in case of non-payment of
such ratei there was a power of distress, but a magistrate had
refused a warrant of distress, under a doubt whether the par-
ticular property waa rateable; the court of Queen's Bench,
being oi opinion that the property waa rateable, granted a man-
damus. 6 Ad. ^ EU. S88.

The ecclesiastical courts have the exclusive power of deciding Objections

on the vaKdity of the rate, or the liability of the person to pay it. ^ ^

5 T.R.S64f; 5 M. f S. SS2. This power arises necessarily When and
out of the 18 Edw. 1, which reserves the question of repairs of how taken.
churches, altogether, for spiritual cognizance, and therefore the
judging of rates and enforcing them is of absolute necessity to
render that statute efFectual. OibB. 19fi; 8 Imi. 487, 489;
9 BoU. Abrid. 889. Purammt to tfaia genetml doetrine, pro-
hfbitiona'lnnrr been on mny oeeaaiona denied, or eonaultationa

sss 2

996

Cburdb iUiU*

Objectiotii
to:

Whpii and
how taken.

Quakcrf.

CttVHit to

confirma-
tioD.

No original
proceeding
to qaaah.

Defence to
suit for aub-
atraction.

f ranted by the temporal courts ; Cro. Eliz. 659 ; Pcpham 197.
f indeed the boundaries of a parish come in question, and
the party assessed, deny that his land is within the parish,
and pray a prohibition, on the ground that the spiritual court is
about to try the question of boundary, it will be granted, aidt,
616, 724. So, if a custom be pleaded and denied ; 2 Kehle. 778 ;
S Do. 528, 527 ; 1 Salk, 334; or proof be refused, which ought
to have been received, &c., ante^ 730, 739. But if these be not
denied, or no prohibition applied for, the spiritual court will
proceed to decide upon them, as upon the legality of the con-
stitution of a select vestry. S Hag. 372; ante.

By 7 ^ 8 Wm. 3, c. 34, s. 4, and 1 Geo. I, si. 2, c. 6, «.3.
Where a quaker refuses to pay church rates, two or more jus-
tices shall hear and determme the same, if not exceeding £10
value ; and now the 53 Geo. 3, c. 127, s. 6, extends their power
to £50, and one justice may receive the original complaint, and
summon the parties to appear before two or more justices, as in
cases under 7^8 JVm. 3, c. 6, «. 1.

If a rate payer wishes to dispute the validity of a rate, or the
amount of his assessment, he snould, in the first instance, as s
matter of precaution, attend at the vestry, and state bis objec*
tions, if he has an opportunity of so doing ; if he has not, or if
he has, and his objections are not removed, he may either enters
caveat against the confirmation of the rate, which seems to be
the mode when the rate is generally unequal ; 3 Phill. 648 ; or
he may refuse to pay his assessment, and then, if proceeded
against in the ecclesiastical court, in order to enforce payment
in a suit for substraction of rate, he may, as a matter of
defence, shew that the rate was illegally made, or that he has
been overrated. 4 Hag. 87 ; 3 Phill. 645. The entering s
caveat against the confirmation of the rate is an appeal to the
ecclesiastical judge, who will see right done. S PhUL G40;
Wood, Inst. 6, c. 7.

But a rate payer cannot, by an original proceeding in the
ecclesiastical court, raise objections to toe rate for the purpose
of quashing it altogether, on the ground of the inequality of his
own assessment; for the court has not jurisdiction to entertats
such a suit, and by such a mode of proceeding, one rate, payer
could eflectually prevent the vestry from making or collecting
any rate, and there might be as many suits as there are
assessments ; but he may, as defendant, object to anything which
shews a legal ground why he should not pay the rate. 4tHag~
84,90.

Such objections, however, are considered as eirieii JmriSf
therefore, where a rate payer in his defensive allegat|6ii to a
suit for substraction originally objected to his assessment; on
the sole ground of his being overrated, as compared wilAi two

Other persons, he cannot, in additional articles, introduce a ObjectioM
fresh objection, namely, that a railway passing through the }^ .

fjarish, had been altogether omitted out of the rate ; 4 Hag. 91 ; ^Vhen and
or such new objection would not support the original ground ^^"^ "** **
of the suit, that other persons were underrated in comparison
with himself. Und, ante, 658.

The burthen of proof also in such a case, lies upon the rate-
payer resisting; he must satisfactorily prove the inequality; if
the matter be lefl doubtful, he fails in his defence; thus, where
a rate was made in open vestry, the same as in former years,
and there was no suggestion of either fraud or oppression, the
presumption is strondy in favour of the assessment ; ibid, 183 ;
S Phill. 647, ». ; and where against such a rate, the rate payer
failed to make out his defence, he was condemned in costs. 4
Ha^. 107 ; SPhill. 647, n., 650; ante, 259.

1 he omission in the rate of a person bound to pay, primd
facie, makes the rate unequal, but it seems that there is no ob-
jection to a person being omitted, if too poor to pay, if done
without fraud, and by consent of the parish ; therefore, a rule
to omit persons not parishioners, not renting to the value of
£10, acted upon for fourteen years, seems not to have been
considered as illegaL Thompson and Sanfords. Cooper, 3 Phill.
640 ; in notis, sea. vid. 1 Cart. 346.

But although it is conceived, the omission of a person who
ought to be rated would be fatal to a rate, 2 Add. 33, yet it
has been decided, that the omission is not of itself fatal, but
that it would be so, only in case the court was dissatisfied with
ttie reason assigned, as the ground of omission.

In Chesterton v. Farlar, 1 Curt. 3*5, one of the objections vvhat^um-

pleaded to the rate was, that about three hundred and sixty cienu

persons had been omitted out of the rate ; in the allegation in OrowMonof
answer, it was averred that by certain local acts, 17 Geo. ^> *^^ Sf^niTu.
7 Geo. 4, the landlords of all houses, the annual value of wmcU
does not exceed £20, and not the occupiers, are made liable to
be assessed to the poor rates, and that two hundred and seventy
out of the three hundred and sixty persons omitted, ^^^"^ lu t
lords rateable to the poor under those acts, as landlords, du
not rateable to the church, as not themselves occupying tue
houses of which they are such landlords, and that it was no
the custom to rate tenants of houses whose landlords were ^^ ^

landlords should be assessed to the churcb, the acts ^® ^ * tViat
as to church rates; that all property ought to be rated, f'^y^^^^Yi
though it was not the duty of church'wardens to ^^^? cou\A
rates from persons in a state of pauperism, and that ot

998 Ci^ttrd^ Slatr.

Objection! not reftise to pay rates, on the ground that they omhted to do

^ so, yet that all should be rated, and therefore rejected tbe ex-

\yhat tuffi- planatory allegation in answer.** On appeal to the Arches, Sir

cieat. ]^^ Jenner said, that the explanations contained in the abore

wi«I wif allegation were fit to be proved, in order to enable the court to

of the rate, decide on the validity of the grounds assigned, for omitting the

above persons, and therefore that such allegation was proper to

be admitted; on appeal to the Judicial Committee of the Prny

Council, that court agreeing with the dean of the Arches in that

respect, directed that the allegation should be retmned (a)«

of'book!'°° "^ ^ ^^^' ^^^ substraction of church rate, the court will not,

at the prayer of the defendants, issue a monition for the pro*

duction of parish books, which are not shown to apply isam-

diately to the question at issue ; the defence being, the Don*

existence in the parish of a select vestry legally constituted.

Goodall and another v. Wkitmore and another ^ 2 Hag, ST4. If

the inspection of such books is necessary, tbe proper way is to

apply to the court of King's Bench for an order to inspect, u

order always granted when conformable to law, ib. ; or if u

(a) The poor rate being roade under the powers of an act of parlii-
ment, does not admit of any discretion in the mode of rttiag; tk
ehurch rate depending upon usage, there seems to be no reason why ^
rate should not be assessed and collected according to thai mode vbB
may be agreed upon by the parishioners as the most equitable.— Sir V.
Wynne seems to have thought, that it was discretionary with the vestjy
to omit persons having smidl occupations, if it were for the benefit of tbe
parish that they should be omitted. In Thompson v. Sanford, 3 Plf^
642, n., he said, '' Most undoubtedly primd facie, the omission of apena
bound to pay, makes an unequal rate ; but was it ever broadly had dovs,
that no person can on any account be omitted because he is poor; wooii
it be to consult the interest of the parish so to do ?" Again, iQ ^
same case where a party was rated for premises, not iu his own occQpi*
tion, he said, '* The answer is, that these premises were inhabited bj
poor persons, who being assessed, the parish found it difficult to get t^
rates, this party therefore undertook to pay at the rate of £30 for tliefl);
both he and the minister say, that the arrangement was &ir, and profit'
able for the parish/' Again, " it is objected, that In the poor rates tbe
occupier must be rated, or they cannot see the circumstances of thera>«>
and there may be ground for collusion. Supposing, that in no cas^ ^
poor rates could be so assessed, the rule does not spply so strictly ^
church rates ; but that the parishioners in vestry, coidd aot, ff ^ ^
it advantageous, accept such offer, there is no suA rule } there it ^
reason why they should accept it if it is not an advantage; ^ ^^
determined it to be so, and I think with good li^t, and diatitvM^
ftfae benefit of the parish ;" and he disallowed the o^jeorioib

actioD ii pending, the court of Common Pleas will grant an \![^^^
order, witbcmt directions as to tbe oosts of the person attending ^ — ^— 1~
to exhibit the books. 6 Bing, 565.

Previously to the 63 Oeo.% c* 127, there was no summary ^^^^
jurisdiction in cases of church rates, but that statute, by s. 7,

provides for cases where the sum to be recovered ia under £10, Sammvy
and where there is no question as to the validity of the rate, or jp™<lic*
the liability of the party assessed. " If any one duly rated to a ^^^
church or chapel rate, the validity whereof has not been ques*
tioned in any ecclesiastical court, shall refuse or neglect to pay
the same sum at which he is so rated, it shall be lawful for any
one justice of the peace of the county, &c. where the church or
chapel is situated, &c., upon the complaint of any churchwarden
or chapelwarden, who ought to receive and collect the same, by
warrant under the hand and seal of such justice, to convene be-
fore any two or more such justices of the peace, any person so
refusing or neglecting to pay such rate, and to examine upon
oath (which oath the said justices are hereby empowered to
administer) into the merits of the said complaint, and by order,
under their hands and seals, to direct the payment of what is
due and payable in respect of such rate, so as the sum ordered
and directed to be paid as aforesaid do not exceed ten pounds
over and above the reasonable costs and charges, to be ascer*
tained by such justices f and, upon refusal or neglect of such
party to pay according to such order, it shall be lawful for
any one of such justices,rfoy warrant under his hand or seal, to
levy the money thereby ordered to be paid, together with the
amount of such costs and charges, by the distress and sale of
the goods of such offender, his executors or administrators ;
rendering only the overplus to him or her, the necessary charges
of distraining being thereout first deducted and allowed by the
said justice ; and any ^rsonfinding him or herse^ aggrieved by
any judgment given by two or more such justices, may appeal Appeal.
to the uexi general quarter sessions for the county wherein the
church or cnapel is situated, and the justices, or the major part
of them, shall proceed finally to hear and determine the matter,
and to reverse the said judgment if they shall see cause ; and if
the justices, or the major part of them, shall afiSrm the judgment
given by the first two or more justices, the same shall be decreed
by order of sessions, with costs against the appellant, are to be
levied by distress and sale of the goods and chattels of the said
party appellant : Provided, that in case any appeal be made as
aforesaid, no warrant of distress shall be cranted until after
such appeal be determined ; provided also, that nothmg herem
contained shall extend to alter or interfere with the junsdicUon
of the ecclesiastical courts to hear and determine causes toucbiag
the validity of any church or chapel rate, or from proceeding to

1000

ClHtrclb liait.

How re-
covered.

Sumnmry

jttrisdic-

tioo.

Goods oat
of the
county.

Notice to
magistrates
that rate is
disputed*

enforce the payment of any such rate» if die same shall exoeed
the^ sum of ten pounds from the party proceeded agamst : Pro*
vided likewise, that if the validity of such rate^ or the liability of
the person from whom it is demanded to pay the same be dii-
puted^ and the party disputiiM;. the same gL?e notice thereof to
the justices* the justices shall forbear giving judgment then-
upon^ and the person or persons demanding the same may then
proceed to the recovery of their demand according to doe
course of law, as heretofore used and accustomed : Provided
likewise, that nothing therein contained shall affect any reguk-
tjpns that may have been made by authority of parliament
respecting the church rates, or chapel rates of any partkulir
parishes or districts.

And by 54 Geo* 3, c. 170, the goods of any neglecting to
pay any sum legally assessed on him, for any church cess, for
seven days after demand made, may he distrained, notoolj
within the district, parish, &a in which it is made, but also
within any other district, parish^ &c. within the same countj.
&c. And if sufficient distress cannot be found within socb
county, &c. then on oath thereof made before any one or
more justice or justices of the peace of any other county, &cio
which any of the goods of sudi person shall be foimd, vbidi
oath such justice, &c. shall administer and certify by indorsing
his or their name or names on the warrant granted to nab
such distress and sale in such other county, &c« and may, under
such warrant and certificate, be distrained and sold, as if iom
within the district, &c. in and for which the rate was due.

The question as to what is sufficient notice to the justices, ^
the party's intention to dispute the rate, and thereby to vitli-
draw the matter from their jurisdiction, has been con^derei
more than onoe, in one case a party saying, " I wilt bring id
action against any person who ventures to levy the rate, I w»
I have no right to pay, / have no claim or seat in the ehr^i
was considered sufficient. 6 M. ^ S. £48 ; 4 Ad* ^ EU, 334.
In a subsequent case, where the attorney of the party sp*
peared before the justices, and stated, on his behalf, that k
disputed the validity of the rate, and that a eqveai had beeo
entered for the purpose of trying the. question, which was tk
fact, but did not say on what ground ine rale was ob/ecUd to;
and the magistrates dismissed the complaint without any ^^'
amination or oath, although the attorney objected to be s^oi^*
a mandnmus was granleiC commanding, them to hear^ l^
Tenterden saying, '^ when they have heard they will beabktB
say more of this case, if, upon hearing, the par^ satisfies die
justices there is a boJid Jide intention to dispufe.the rate, the
proceedings before them will go no further.*^ 8 JB. i *^^'
648.

€ffmtb »atf. ^^^

If it appear that the validity of the rate is in question, or the ^^^^^^JJ;

liability of the party to pay, the ecclesiastical jurisdiction is not

taken away, aUhough the party refusing to pay has not been ?"?2c^
summoned before a magistrate ; and although it appears on the tion.
face of the libel that the sura for which the suit was commenced
in the ecclesiastical court was under £10. A prohibition applied
for after sentence, on the ground that it appeared by the pro-
ceedings that the ecclesiastical court had no jurisdiction, as the
sum was under £10, was refused, the court saying, that although
the sum appeared to be under £10, yet it appeared, also, flrom
the proceedings, that the validity of the rate was disputed, and
that the moment it appeared that the question was not merely
one for enforcing payment, but touching the validity of the rate,
the summary jurisdiction of the magistrates was at an end, and
the ecclesiastical jurisdiction attached. Rickets v. Bodenhamt
4 Ad. Sf EIL 438. It seems, also, from the above case, that the
court, for the purpose of ascertaining whether or no the validity
ofvthe rate has or has not been questioned, will examine the pro-
ceedings in the ecclesiastical courts only, and not look to the
affidavits, ibid^ 443 ; but where it apeared by affidavit that the
party had appeared personally in the ecclesiastical court, and
had objected to the validity of the rate, the court refused to
compel the justices by mandamus. 4 Ad. ^ EU. 854.

It has been seen above, that any one aggrieved by the de- ^PP^
cision of the magistrates may appeal, under the 68 Geo. 8, •*•*
c. IS7, s. 7, to the next quarter sessions for the county wherein
the church is situate. Where a party, under this provision,
appealed against the order of justices for payment of a church
rate under 58 Oeo. 8, r. 127, s. 7, he need not give notice of
trial of the appeal to the justices making the order, it is sufficient
to give it to the churchwardens, 4 Ad. if EU. 84^, for they are
the real parties. It will be observed, that the statute is alto-
gether silent as to any notice of appeal at all. The above case
was decided on a rule of practice or the particular sessions, which
required, in all cases of appeals against convictions and orders ot
justices, that notice of appeal against any conviction or order
should be served on each justice maVins the conviction or order.
By s. 12 of the above act, it is provided, " That if any action
shall be brought for anything done in pursuance of the said
act, every such action shall be brought within three calendar
months after the fact committed.

In Theobald v. Criehmore^ I B. % A. ««7, it was held, that if
the officer acted in the band Jlde execuflon of his duty, he was
entitled to the above protection, though hfe exceeded his autho-
rity, and therefore, an action brought against him after the ex-
piration of three months, could not be sustained.

1004 €tmtti) iutf.

BMtampte-^ Item to the court of Arches; th^ leanied demof the Arches
^ OTomiled Iho decision in the consistory courts saying — '' With

In R. y. Wavell^ DaugL 116, a rate for the relief of the poor and /or
the payment of money borrowed for repairing, ^c. the workhouse^ was
quashed on certiorari, on the gronnd that the payment of money bor-
rowed was illegal, and that such part of the title conid not be rejected
as surplusage. R, v. the Mayor, S^e, of QUmcesier^ 5 T. R. 546, a rate
made under the authority of a local statute for £26. bs, for the relief of
the poor, and for £80 for the expenses which the churchwardens and
orerseers might be put to in the discharge of their offices, fte. being
appealed against, the sessions found that the sum of i^O lor the
above expenses was reasonable and necessary, and confirmed dke rate,
subject to the opinion of the court. The court being satisfied that
the rate, in point of form, was made in conformity to the local act, which
they said was the only question before them, confirmed the order of
sessions, Lord Kenyan adding, ^' I studiously avoid ' saying anytfaisg;
whether the money, when it is collected under that rate, will or will
not be properly applied in paying the £80, as that question may be
agitated on an appeal against the overseers' accounts.**

In all these cases the single question before the court was, whetbfr
the rate itself was a legal and valid instrument, that is, whether it con-
formed to the statutable authority under which it was made ; and as od
the one hand the court would not repudiate a rate sufficient m form,
though assured that it was made for illega] purposes ; neither on Ae oUier.
would it enibrce a rate extending to purposes beyond die limitatiott d
the statute, though it might consider, as in Tounmy*^ ease, the proposed
application of the money was fair and reasonable, and such as in ques-
tioning the overseers* accounts it would allow without hesitation.

Church rates, however, depend upon the custom of the reidin, and
are not founded on, nor governed, nor limited, by statute ; it would seen,
therefore, that if a church rate be made for purposes which the court
may deem fidr and reasonable, and which are sanctioned by the cede-
siastical usages of this kingdom, the ecclesiastical judge may dctenmne
the question according to all the circumstances of the case, not being is
a court of law is, limited to an inquiry as to the form of the raSe. la
the opinion of the learned judge of the consistory court all xeCroapee-
tiveness is not ill^al, but wheti^ such an objection be well Ibiaided or
not must depend upon the tiatiire and amount of the retrospeetivo ^Kt»,
whith of course must, in each case, depend upon the dismtiott' of tbe
court ; if so, there seems to be no reason why such a rate shonld %e held
invalid, if those purposes are declared on the face of the rate M the fint
instance. If it be tiie law of that court that a rate piospeetlfo^^ paist
of form is not to be upheld, if it be for purposes whro sie re^itiaj^eotrre
and illegal, so neither ought a rate to Be quashed metely beoMss it
appM's to be retrospective, if Its retrospectlvefMs he • nOtrlllflMeDt
either in the anK>unt or the nature of ^T6tr6s))^l9^e>ifi^este So render
it invalid ; in other words, if a ptv&sp^ttve fyhf^he ^bttitowed to cover

€1mctb ilftte. 1005

regard to the second objection, that the rate was intended to be HMHMpoe-
applied to the arrears of the debt of former churchwardens, and ^^^'

retrospective purposes, which would not be sanctioned by the court ;
so neither should a retrospective form vitiate a rate, if its purposes,
though retrospective/ would be sustained by the court; in short, it
would seem that a rate ought to be valid or invalid, according to its real,

. not according to its professed objects.

In Dawson v. fVilUanuonf Andrews, 1 1 , more fully given, in Cos. temp.
Hardw. 381 ; it was decided, that the spiritual court has not Jurisdic-
tion to order churchwardens to make a retrospective rate ; it is conceived
that they had no jurisdiction to order churchwardens to make any rate
at all, for such an order would assume that they had the power, inde-
pendently of the vestry ; any observation, therefore, upon the purpose
of the rate, seems to have been obiter.

In LanekesUr v« Thompson^ 5 Mad, 4, it was decided, that the cir«
cumstanoes of the case did not warrant the special interference of a court

' of equity, to order churchwardens, to call or concur in calling a vestry
meeting to make a rate. In R, v. The Chapelwardens o/Hauforth, 12

' East^ 556. The case of R. v. St PauTs, Thetford^ would appear to have
been a sufficient answer to this application, because there it was decided,
and is taken for law, that church rates are a matter purely of ecclesiastical
cognizance, and that courts of law will not interfere to compel their being
made; the only ground, therefore, upon which the question could have
been entertained at all, seems to have been on the ground of the custom
stated, but which is not put forward at the bar, or by the bench.

By analogy to poor rates, it is, however, said in that case, that if the
form had been prospective, the circumstances of its purposes being
partly retrospective, would not vitiate it ; the same is in effect, said, by
Bestf C. J., and Burroughf J., 2 Bing. 861, and by Lord Denman, with
the acquiescence of the other judges, in 4 Ad, 8f Ell,

On the other hand, BaUify v. Cook^ 2 Vem, 246, and other cases,
shew that formerly, at least, retrospective church rates were not con-
sidered as bad ; in that case there was a bill against the defendant, late
churchwarden, and also against the existing churchwardens, because they
refused a rate to reimburse the plaintiff, who had been churchwarden of
a still preceding year, according to the vote and order of the vestry.
The case went off, on the ground that the plaintifis had received
more than sufficient to cover what they had laid out for repairs,, and as
to what they laid out for the building new galleries, the court could
give no relief; no objection was then taken, on the ground that the
rate was retrospective, and two precedents for bills for making retro-
spective mttti were shewn to the court; vid,f this case mora fully re-
ported, Prec, Chan, 42 ; Fiu. AMd^ CbirehwardenSf C 4.

Again, in Nieholsan ▼• MatUre^ Vin. Abrid* ihid., which was a bill
against ninety parishionen, by the ejLeoatiix of one of the churchwart
dens, to be reimbursed money laid out by the testator as chuschwar- .
den, for rebuilding the steeple of the chorch. Iiord Hareomrtf Chan*

1006 C&urd) ll«tr.

R«tMipee. to current enpenses, and that it ia t6 that extent retrospectiTe;

^'^^ circomstances are now pleaded in this allegationi explanatory and

contradictory of the defendant's plea» and the sole question now
before the court is^ whether the facts and circumstances stated in
this allegation^ are such, as if proved^ might have an effect on the
judgment of the courts this not being an abstract question, whether
a rate, retrospective on the face of it, be good or not| but whether
this rate, under all the circumstances stated, might be supported
and enforced ?** Again, ** In the present case, whatever was
done, was done with full knowledgedf the vestry, not a select, bat
an open vestrv, duly assembled, at which seventy perscfna assem-
bled, the whole accounte were before them, and the rate granted^

cellor, said, it was a case proper for relief, and that there were msDV
precedents of the like nature ; one in the time of Cowper^ ohanodltf ,
against the churchwardens of St. Clement's, for the (ngaa of their
church. It is not immaterial to recollect, that Taumay^s case was de-
cided in 1702, and Lord Cowper was not appointed chancellor till 1707-
So that, at that period, the analogy between poor rates and church ntn
in this respect, was not insisted on.

In the ecclesiastical court, the objection seems also to have been oat
of modern times; in Brettelir. WUmot;2Lee^ 549, theiiite appears te
have been retrospective, but made by a churchwarden, to reimburse hiia-
self during his year of office, and no objectron was taken to It on tint
ground, but solely on the ground of inequality ; and Sir ChriMiopket
RMnaany in 1812, on the authority of a case before Dr. Ha^^ in 1770,
rejected an allegation of a defendant resisting a church imte, on tk
ground that it was retrospective for one year. 1 Cwri. 305.

In Tawnay^9 case, much stress is laid upon the laches of T^owa^,
who did not help himself when he might by a rate, in formprospectird;
the same argument is also pressed in most of the other cases ; tiis
does not apply to churchwardens. Overseers invested with the poven
of the statute, make rates by their own authority, and without oonsolt-
ing the parish ; but churchwardens are, or at least have hithexto cos-
ceived themselves to be, dependent upon the parish. If an overseer ii
mistaken in his calculations, he makes a rate, prospective in farm, be:
in fftct to r^ay himself; such an application of the money ooUected
by the rate, is legal. But, supposing, in the case of a chuicbward^
the estimate sanctioned by the parish for the repair of Che cbvtch, doe
not cover the expense ; he pays the excess, and the vestry^ dming bs
year of office, make a rate to reimburse himt could it be cantended cb;
sueh a rate was illegal ; and if not ill^al in fact, could it be illegs] is
form, if the object of ^e rate were stated in the tide, there being ao
statutable form requisite as in Tawnaifs and other eases of pcN>r latci ;
and surely, it is more desirable if no technical objeetioas piewant sncfe
a oottise, for the bondjide purpose of the rate to appear in ite title, the
to eflhct dMi olgeet by means ^ an evasion.

Cfturtft »att» 1007

with full knowledge of the facts, and for the purposes for which ^^^^^'

the rate was intended to be applied. Without then taking — !

upon myself to decide at the present moment, whether this rate
can eventually be supported, or not, I am of opinion that the
facts are proper to be laid before the court for its information,
and therefore that the allegation ought to be admitted. On this,
an appeal was made to the judicial committee of the privy
council, who reversed the decision of the court of arches, deter*
mining that the explanatory allegation was rightly rejected by
the judge of the consistory court. As no reasons were given by
the judicial committee, it cannot be known whether this decision
proceeded, on the ground that when a church rate is once
shewn to be retrospective, it is absolutely bad, so that no expla-
nation or circumstances can justify it ; or whether the explana-
tion in the particular case, was considered not satisfactory.

So, except where the principal is to be paid off by instal-
ments, the rates under tne church building acts, should be
raised whilst the repairs are going on, therefore, where it ap-
peared that repairs had been done in the years 1824, 1825, and
1826, at an expense of £1,585, and that in 1832, £350, remained
unpaid ; and that A. B. had lent that sum, under a deed, regular
in form, with the consent of the bishop, incumbent, and vestry ;
it was held, that the 59 Geo. 3, c. 134, «• 14, did not authorise
the borrowing money, and charging the rates, with this balance,
for byegone repairs. R. v. Churchwardens of Dursley, 5 Ad.
% EU. 10.

The real objection to retrospective rates, however, is, that parishionen
being a flactuatiiig body, it is unfair for persons coming into a parish,
to be bnrthened with the debts of their predecessors, but this, which is a
substantial objection, applies to all retrospective rates, whether they are
retrospective in form or not. It is an objection also, which presses far
more strongly against poor rates, than against church rates ; in the first
place, the overseer can, of his own authority, make a rate when he
chooses, and it his duty to see that the burthen is fairly distributed and
borne ; in the case of church rates, it is the parishioners themselves who
make the rate, and persons coming into a parish, roust be bound by the
majority in that, as in other cases ; besides, in the case of church
repairs, the usual ground of complaint, the objection does not seem to
apply, for it is those who come into the parish who have the benefit of
the outlay of money, not those wbo have left it.

1009

Griffin r. Ellis — in Prohibition.

This was a case of substraction of church rate, and the Griffin v.
libel stated, in substance, that in October 1834, the vestry of ^1!!!: —
the parish of Portsea resolved that a church rate of Sd, in
the pound should be made ; and by the title, as set forth,
the rate appeared to be " for and towards the repairs of
the church for the present year.'* The defendant was rated
in the sum of 78. 6d, and refused to pay the same. The
defensive allegation pleaded, that the sum, which would be
produced by the rate in question (£400), was not needed for
the repairs of the church for the current year; that it was
admitted, that the sum necessary for the current year was
about £148, but that the remainder was intended to pay debts
which had been previously incurred of about £252.

The rejoinder of the churchwardens to this defence, set
forth the following facts :

At a vestry holden on the 7th October, 1833, a rate was
proposed to sustain the fabric of this church, and for the
performance of divine service, to which proposal an amendment
was carried, ''that, in the opinion of tnis vestry, the rate
proposed is unjust and oppressive on the inhabitants at large,
and, therefore, that this meeting do adjourn to take the
subject under its consideration on the first Wednesday in
October, 1834." The churchwardens being thus left without
funds incurred debts during that year to the amount of £250.
No vestry meeting took place on the first Wednesday in Oc-
tober, 1834; but on the 29th of October, 1834, the rate in
question, of 3d, in the pound, was granted by the vestry then
assembled, to enable the churchwardens to discharge the
debts so due from the said parish, and to defray the expenses
of the current year ; it was further averred, and not denied,
that no part of the sum to be raised, was ever intended to
be applied to, nor had the debts been incurred for, objects to
which church rates were not legally applicable ; and that the
application of the money for the discharge of the outstanding
debts was expressly sanctioned by a majority of the inhabitants.

The state of the poll was, for the rate, . - - 1034

Against it, - - - 588

Majority - - 446

1010'' 3aetro9(pettibt eJbnttb Bate.

Griffin r. Tbis explanatory rejoinder having been admitted by the
^^^^^'_ _ Dean of the Arches, a prohibition was applied for, on the

frround that a retrospective rate was bad in law, and that the
acts stated in the rejoinder afforded no justification ibr such a
rate ; a rule nisi having been granted.

Sir F, PoUock, Rogers and Poulden were heard against the
rule in Hilary Term, 1836, and

The Attorney General, Sir W. FoUeti and Wig/Unum, m
support of it.

The Court directed the party to declare in prohibition, which
declaration being demurred to, the case was argaed in the
sittings in banc, after Trinity Term, 1839, by Rogers, in support
of the demurrer, and Wightman^ contrd, (a)

At the sittin^rg in banc after Hilary Term, 1840, judgment
was given in favour of the demurrer.

The following b the substance of what was said by Lord
Denman delivering the judgment of the Court.

** The proceedings in the Court of Arches shew a rate dok
made in vestry, by the churchwardens with the assent of the
parishioners, good in all respects on the face of it. The rate
was objected to in the court below, as designed to pay debts
previously incurred ; in answer, the churchwardens allege, that
on the 7th of October, 1 833, a vestry was convened to consider
of a church rate, — that the church required repair — ^that as
estimate of the sums required was laid before it — and that the
meeting was adjourned for a year, and no rate granted, wherebj
the churchwardens were obliged to incur a debt ; and that, at i
subsequent meeting, the vestry made a rate in order to pay the
debt so incurred.

^' Various pmnts were made in the argument.

" 1st. That the rate being regular, the objection that it mm
vitiated by a design to employ it in an unlawful manner migfaEt,
if such design were carried into effect, and the money nnkv-
fully expended, be made on appeal against the charohwaidem
accounts.

*^ Sfdiy. Whether this rate is bad as being retrospective under
the peculiar circumstances of the case, thie debt having bee:
incurred by the neglect of the parish to vote a church rate
when wanted, as admitted by the vote of the vestry afterwards,
when the debt was expressly sanctioned.
1 '' 3dly. Whether, even if these defects should be held fatitl
they wtitle the plaintiff to this writ of probibitioii, whid
assumes the Court Christian to have ei^oeeded Us jmiBdictMff

(a) A» it is intended to giVe a nota only, and not a repoit of th?
6ase, the argomefits bt counsel, With the cases cited, hove been eniitted

or whether it was only ground of appeal, the suit itself being Griffin v.
matter of ecclesiastical cognisance, and the defendant's state- ^^'^'
inent being such as the Ecclesiastical Court is able, and indeed
bound, to give effect to, if valid in point of law. On this last
ground, it seems to us, on the authority of many cases, that the
demurrer must prevail

" It has been often held, that an erroneous judgment on a
matter within its cognizance, does not entitle a party to t>ro-
hibition to the Ecclesiastical Court, his remedy in such case
being by appeal; if, on appeal, the sentence shows a want of
jurisdiction on the face of the proceedings, prohibition may be
had. In the meantime, we must presume tne Court Christian
will correctly administer the law. Chesterton v. Farlar, I Curt.
845, ante^ 1002, cited to show this rate to be illegal, was de-
cided by a superior spiritual court on appeal ; andBretieUv.
Wilmot, 2 Lee^ 648, (a) on which Chesterton v. Farlar was

(a) The case of Breitell v. WUrnot, 2 Lee, 548, according to the
report, was in suhstance as follows : — The church being much out of
repair, the vestry, on the 20th of September, 1756, agreed that the church
should be repaired, and the repairs were begun in April, 1757 ; on the
20th October, 1757, a rate of 2*. Ad. in the pound was made to pay
the workmens* bills, which rate amounted to £612. 165. BreitelVs pro-
portion of the rate was £3. 145. 8rf., for which he was libelled in the
Consistory Court oi London.

The judge of the Consistory Court admitted the libel, on which
Brettell appealed to the Arches, and his counsel insisted that the rate
was illegal, because it was made without any estimate of what would be
the amount of the repairs, and, knowingly for a greater sum than the
workmens' bills came to ; that the bills only amounted to £511 . l^'*^.^*'
but the rate was for £612. 16e. ; that a eiMnreyoT, to whom these bUls
were referred, reduced them to £463. 5«, ; and that on the 4tli ot
January, 175S, the vestry appointed a committee to settle the biUa and
adjust a rate, whereby they departed from the rate of the 20th October,
1757. ,

Sir G. Lee was of opinion that the libel was righly *^™^^^^\ ^^^iv
Court could take notice of no act of the vestry, except that of tne 20
October, 1757 ; that, as to the grand objection, that this rate was lora
greater sum of money than was wanted, it was gratis dictuittt Jor a
head of the rate it was said to be made for the repairs of the churcli ana
other disbursements of the churchwardens in their office ; he J^ ^^^^V,
remitted the cause, and condemned Brettell in iSlO for costs ; but lie a^<lec,
•' If it should appear that the rate was ftSade only tor repairs ox «ie^
church, I should be clearly of opinion it was iUegal to raise so^awciv
more money than was wanted, and therefore it would be advi8at>i|e W
the churchwardens to drop this rate and suit, and to get ^ ^}^ ^ %^lr,
the sum remUy wanSed; and as to an estimate, it would l^a.vo i[>e€(sv

1012'' iUtrodpecttbe Cj^ttrd^ iUUt.

Gnffin V. mainly foundedi occurred also in the Court of Arches, on appeal
' "• from the Consbtory Court of London."

proper before the repairs were made, but the work was done before the
rate was made, and the rate was now grounded (as far as concemt these
repairs) on the tradesmens* bills.'"

In the foregoing note, p. 1 006, it is stated, that the objecdon nude
in the above case, was on the ground of Its inequality, which is income;
the objection was that it was excessive ; but no objection teoni ts
have been taken that it was retrospective, either at the bar or Lench :
on the contrary, the learned jadge giving judgment, on the iKt of
December, 1758, advises the churchwardens " to make a new rate b
the sum really wanted ;" but a rate made after the 1st December, 17^^
to cover expenses incurred between April and October, 1757} wovic
be more objectionable than a rate to meet such expenses made on tbe
20th of October, 1757, not only because it wonld be further remoftd
from the time when the work was done, but as being beyond the yes
of the churchwarden's office ; it would seem, therefore, that die ob-
jection of retrospectiveness could hardly have passed through the rnisd
of that learned judge at the time he made the above suggestion.

ADDENDA.

loeo

ADDENDA,

ADVOWSON.— P. 9. It ooffht to have been noticed, that with regard to Ko. 1.
devises in wills made since Ist Januaij« 1838, it is enacted, by 1 Vict. c. 26,
s, 28, that a devise of real estates, without any words of limitation, shall
be construed to pass, the fee simple, or other whole estate, which the
testator had power to dispose of by will, unless a' contrary intention shall
appear bv the will; and, by«. I » it is provided that the words ''real estate*'
snail include advowsona. But a presentation to a church is excepted out of
s. 30 ; which eoads, that where any real estate (other than, and not beinff,
a presentation to a church) shall be devised to any tru$t€e or executor, suclh
devise shall be construed to pass the fee simple, or other the whole estate or
interest, which the testator had power to aispose of by will in such real
estate, unless a definite term of years, absolute or determmable, or an estate
of freehold, shall thereby be given to him expressly or by implication.

As to evidence in ^luire inif>edit, vid, Tke Bishop o/Meath v. The MarguU
qf Wimekester in error. 3 Bmg. N, C. 183.

P. 17. Where a papist is seised of an advowson as tenant in common No. 2.
with another person, who is not disqualified to present, the right of pre-
sentetion is in such other person alone ; for the right of presentation is
given to the universities by 3 Jae» 1, c. 5; 1 9V.^M,c.26i and 12 Aune,
s, 2, c. 14, only where one sole patron, or all who have the right of pa-
tronage, is, or are, disabled by professing the Roman Catholic religion,
and not in the case of the disability of one Catholic patron out of many not
disabled. Edwarde v. I%e Bishop^ Exeter, 5 Bing. N. C. 652.

P. 18. The case ofRenneU y,neBi$hop (flancohhas, as noticed, |i. 294, No. 3.
been confirmed by the House of Lords, by the opinions of Bosanquet. J^
BoUtmd, B., J. Parire, J., Qaeeke, J., LitUedale, J., Bayley, J., Tindal, C. J.,
and against the opinion of Park, J.

llie question submitted to the judges being this, " An advowson belongs
to a prebendary in right of his prebend, and the church becomes vacant, and
the prebendary dies without having presented, does the right of presentetion
belong to his personal rqireaentative V*

ALIMONY.-»P. 36. Where the husband is an insolvent debtor, or an Xq. 4.
uncertificated bankrupt, it seems, not competent to the court to make an
order for alimony ; but, in a case where h husband brought a suit for divorce
against his wife bjr reason of adultery, and it appeared that he had been
discharged by the insolvent court, and was possessed of no property, and
had no business or profession, but that upon the death of his father he
would be entitled to certain property; the court said, that proceedings
should be staid until some small sum, by way of maintenance, was afforded
to the wife. Bruere v Bntere, 1 Cnrt. 566 ; post. No, 9.

The court will not forbear to enforce an oraer for payment of alimony, on No. 5.
the ground that thamiis retains her children in disobedience of an order of
the court of king's Bench made upon habeas corpus, and that she had left the

T T T

1010 ADDENDA.

country in order to avoid an attachment againat her ior conteaqit GreB-
hiU v. GremhiU. 1 Curt, 465.

No. 6. CHURCHWARDENS.^P. 219- A Quaker having been Reeled dnird:^

warden, and having refused to take upon himself the office, the ecdcmHtg.
court refused to interfere to compel him. Ade^ v. Theobald, 1 Cmrt. 447.

No. 7. P. 231, 233. It has been determined^ in a late case* that ehuidiwss!

are not criminally responsible, unless wilfuUy disobedient. In the astd
Millar and another v. Palmer, 1 Curt. 540, the judge of the Consiatary cor
expressed himself thus : " if the church be out qf repair, and aJbrUofi, if ur
archdeacon order the repairs, there*are two modes of proceeding, aeranbe
to circumstances ; but these two modes cannot be resorted to mSac^
minatdy. Fu'st, Si the churchwardens are wilMIy disobedient, and nqtir
to tidce all the clearly legal means in their power to haw the church »
paired, a criminal proceeding may properly be instituted against thesL '.
conceive this court has adequate authority to punish any n^;lect of ^
conmiitted to their charge.'^

" Secondly, I apprehend that if no fault is ascribed personally to the disrel-
wardens, but a ouestion arises as to the propriety of the rqmirs, or if th
churchwardens ao, or are willing to do their duty, but obstacles out of tiisr
power intervene, then the proper mode of proceedinff is in the civil fens; .
have come to this opinion, partly from precedent and partly on fmiciple. I:
Lord Maynard v. JB^and, 3 Phiu, 601 , it was stated tnat proceedisfCB bq^
have been taken in the civil form, which was not denied by the court, k
instance, if a monition, calling upon the churchwardens to repmrthe chisd
they should return that they had called a vestry, and that suck vestry r^
a rate; ao far, I think, the churchwardens would be ezeolpated, for n^
is more clear than that they are not bound, and that it is illegal in tkeas
expend their own money or to incur debt. The question would then ssf.
whether, by law, churchwardens are enabled, and this coort can oo^
them, to make a rate against the vote of vestry by their own authority, f*
court is not called on in this case to express any opinion upon that quesfis
Hie only question is, therefore, have the churchwardens been gimty d :
dereliction of duty ?

" The articles state, first, that the church is out of repair, and, seeaetd^-
thatin October, 1835, the archdeacon ordered the repairs to be done. lb
delictum charged is, that the churchwardens refused to agree to the repot r
the committee appointed to consider what repairs were necessary, and t^
they refused to sign a contract.

" These are the special breaches of duty alleged, but I am not prepazeii^
say, that they were bound to do either one or tiie other. I do not br«
that it has even been contended that the churchwardens are boand to vie*
acts ; and 1 think it could not be contended with effect ; I am of opos*
therefore, that these two special charges fall to the ground.

"What then remains } can I, btcaua^ the church is out of repair, aad::
archdeacon has made an order to repor, infer wyiol ^tobedraice ; it t
pears to me, that every principle of justice mifitates^against sfiidi an ^
ence. The speeidl char^^es of delinquency are no charges at alL If ^
church^vardens have faded in their duty, why were not the particcfi:
stated ; for instance, if they refused to call a vestry to make a rate, or ki^-^
money in hand, refused to repair, that would have been a sabstanthre di^
it would have been a neglect of that which was in their power, and V3^
part of their duty. There is no such chaige made, but it dioes appe'<^
though not very distincdy, from the exhibits, numbers two and four, -
only exhibits proved in the cause), that a vestry was eaUedto adce a n^
what was done at that vestrv, does not clearly appear, even, daoicfere. ^
it possible to presume, in the absence qf eoiience, that the choichw^^

ADDENDA. 1011

KAd been gnil^ of neglect of duty in not calling a vestry to make a ratei
&ere such presomption would be against the evideace.

*' It is not alleged that the churoiwardens had money in hand. I am then
»£* opinion, that unless the mere fact of a church bein^ out of repair, would
uflti^ this court in punishing churchwardens; there is no deUetmm proved,
Lzid thenfore I dismiss the defendants/'

This judgment was appealed to the Arches, where the learned judget Sir
EI. Jenner, agreeioff with the view taken by the learned judge of the Consis-
tory court, affirmeci the sentence, with costs.

CHURCH PATH.--P. 239. Although the 60 Geo, 3, c. 134, s. 39, incor- No. 8.
porates the form of notice given in the 55 Geo. 3, c. 58, it does not hereby,
a.od by implication, give an appeal to the <|uarter sessions, against the order
of the commtssiooers for stopping up a highway, for an appeal cannot be
eriven by implication. Q. v. Stock, 8 Ad. 4- SU. 406.

COSTS OF WIFB.--P. 258. Where the wife had a separate income of No. 9.
dB236 per annum, and the husband, a captain in the navy, had, when em-
ployed, an income, averaging £610 per annum; the court thought he was
not exonerated from having the wife s costs taxed against him. BMker v.
Belcher, 1 CuH, 444.

In a suit of divorce, by reason of cruelty of the husband, he applied to
l>e allowed to carry on the proceedings ta formd pauperie ; this application
iv^s refused ; but on application to have the wife's costs taxed against him,
the couit refused, on the ground that he was earning only twenty^five or
thirty shillings per week ; that he had been a bankrupt, and subsequently
discharged by the insolvent court. WMer v. WaOter, 1 QwrU 664. but the
husband, on his part, having prayed that the cause might be heard, the court,
under the circumstances, refused to make such order. Und, ante, No. 5.

MARRIAGE VOIDABLE.— P. 449, 650. Where a man and his wile. No. 10.
and six children, were removed by an order of magistrates, which order was
confirmed on appeal, but afterwards the marriage was dissolved, as inces-
tuous ; the settlement of a child bom subsequently to the order, but before
the marriage was dissolved, was hcdd not to be governed by it, and the mar-
riage of his parents having been set aside: such child was decided to be
illegitimate. Q. v. Wye, 7 Ad. ^ EU. 761 .

LECTURER.— P. 491. It seems doubtful whether lecturers can strictly No. 11.
be called ministers : in the case of R. v. Tke Mayor, 4rc. ^ Liverpool,
8 Ad. 4r JSIL 176, it was held, ^at the provision in the municipal cor-
poration act, 5^6 Wm. 4, c. 76, s. 68, " that stipends, which, for seven
yeari before 5th June, 1835, have been usually paid to the minister of any
church or chapel, shall be secured by bond, under the corporation seal, to
the p«rson entitled or accustomed to receive the same," extends to a person
appointed lecturer of a church in the borough, by the corporation, who
occasionally married, baptiaed, and buried tlkore ; although there waa an
incumbent of the said cnurch appmnted under a local statute, which oob«
stituted him, and not such lecturer minister of that church.

PERSONAL ANSWERS.— P. 667. " In criminal suits, a party is not No. 13.
bound to criminate himself, thouch ever so remotely, so as even to form a
link in the chain of evidence ; and in a civil suit, where adultery is chaiyed,

T T T 2

1019 ADDENDA.

a pirty is not bound to answer those charges, which intolve an expieii a
implied charge of cHminaGty ; and it seems farther, that a party is entitlei
to protection, not only if the answer tend to criminate, but even to dognJ^
bnn. The answers must be as to facts, not as to meaning and isleotioii,!
the intention would subject him to punishment or degradation ; and tbooifi
tf party may be compeued to answer as to belief of htu, he caDDot Ix
cottnened to answer as to his belief of what was pasaing in the miodd
enottier person. 5iPt^ v. Sw^, 4 Hag. 1S5.

No 13. PROCESS.— proceedinflrs in panam.'—P. 681. In a cause of diTorrr

broiijght by a wife against her husband, the proctor for the wife returned ;h^
dtatioo, toe officer not having been able to serve the same personlly ; o^
^s, a decree by ways and means issued ; this decree was senred atdu ^
known residence of the husband, add also on the parish church, and ac^
left with his brother: a letter having been received from him by therlr.
ftatiag the place of his address, a further decree by wa^s and means we
Served at such place, and also at the church of the pansh in which js:
place was. On application to pronounce the husband in contempt, in orkr
to carry on proceedings «» pctuam cotUumacug, the court sai49 thm ^
peared nothing to fix any residence in the diocese; when. once fixed, &'
conrt would presume it to continue till the contrary was shown, thereforr <?
an affidavit that the party resided in London before die service of the ci>
tion, the husband was pronounced in contempt, and the cause proceedev*
ptrnam, CardeH v. Cardem, 1 Cwi. 558.

No. 13. ' P. 697. Hie S 4- 3 Wm. 4, e, 92, which recited that great incoDTous-^
2 & 3 Wm. ^^ ^>^° found to anse by reason of the process of the several ecdefia^^f
4, c. 92. tourts in Bngland and Ireland being inoperaUve and unavailable, out d^
limits of the respective Jurisdictions of such courts » and agaioit pf^^'
' having privilege of peerage, lords of parliament, and members of the Hs*',
of Oonmions ; and diat it was expedient that the process and the meio^ ^'
enlbrcing obedience to the same, snould be of equal force, as well in Ir^
as in England, and against persons having privilege ; it was enacted, t>
when an}r persons, whether privileged or not, duly cited to appear in 2:
' ' . ' eeelesiastiad court in Bngland or in Ireland, or required to comply with &
kwfbl order or decree, as well final as interiocutory, made by any such&c
respectively, shall neglect or refuse to pay obedience to such lawful order >
decree, or shall commit a contempt in the face of such comt, or anT<<^
contempt towards such court, or the process thereof, it shall be lawfi^''
the judge or Judges out of idiose court the citation or process hath alio?
Miftued or may hereafter issue, or whose lawful orders or decrees hxn itf|<
ihall not have been obeyed, or before whom such contempt in the f»ttf>
eoort shall be committed, or by whose order or authority such pncesil
Mpect df, or towards, which any such contempt shall have been coafl*
has been or shall be awarded or issued ; or the successor or snece^
office of such judge or Judges respectively, to pronoun^ mvAi p0'«j
persons contumacious and in contempt; and within ten days after r
person or persons shall have been so pronounced to be cdnttiiiM>riiw*sf
oontempt, to signify the same to the lord chancellor, lordlEeMwrorl
eeMmissioners for the custody of the great sea! of En^lMid mr thei
Mm^ r^^iectiwly, Menever the person or persons whb aUll hate *^
'^*'»iK>unc«d contumacious and in contempt ^hall bfedomidUiilf k*)
rland ; ^nd within the lilce period of ten da^rs to dgnlKr'J^ saioe
[chancellor, lord keeper, or lords commissioners jot mcfiilod/^
IfrettI HM of Ireland for the time being respectively, ^H/kaia^ibe \
p€mfti8 #ho shall have been so pronounced cotitimubUmf^ifA in
shiffi* b<r domidftd or residing in Irahmd; inthefiMnpiArito

ADDENDA. 1013

Geo. 3, c. 127 ; and in case the person so reputed to be in contempi thall No. IS.
not be a peer, lord of parliament, or member of the Houac of Commons, a
writ decontumace capiendo shall issue from his Majesty's said high court. ^ ^"'•
of Chancery in England or in Ireland, as the case may hapi)en to be^ directed *• *• ''*•
to the same persons to whom writs de excomnuiiMcato capiendo were by law,^
returnable before the passing of the said act of parliament, and w same
shcall be returnable in like manner as the writ ae exeommimicaio agpiendo
had been heretofore by law returnable, and shall have the same force and
eti'ect as the last-mentioned writ ; and all rules and regulations not altered
by the 53 Geo. 3, c. 127> particularly the provisions oi the 5 EHm^€^ 23, shall . , . ,;

extend and be applied to the said writ de contumace capiendo, and the pro-
ceedings following thereupon, as if the same were herein particularly repeated
and enacted; and the proper officers of the courts of Chancery In England
and Ireland are hereby authorized and required to issue such writ de contu^
mace capiendo, Bccordmaij ; and all sheriffs, gaolers, and other officers i|)
I'^nirland and in Ireland, to execute the same, by taking and detaining t^
body of the person or persons against whom the said writ shall be so direct^
t(i be executed; and upon the due appearance of the partjr or parties so cite4
and not having obeyea as aforesaid, or the due submission of th^ ijartv or
parties so haying committed a contempt in the face of the court, or other*
wise, as hereinbefore is mentioned, the judge or judges of such ecclesiastical
court, whether in England or in Ireland, as the case mav be, shall pronounce
such party or parties absolved from the contumacy ana contempt aforesaid,
and shall forthwith make an order upon the sheriff, gaoler, or other officer in
whose custody he, she, or they shall be, in the form to the said act of the
53 Geo. 3, c. 127, annexed, for discharging such parties out of cmstody ; and , ,,

such sheriff, gaoler, and other officer shall, on the said order being shewn to
him, as soon as such parties have discharged the costs lawfully incurred by
reason of such custody and contempt, forthwith discharge them.

By s 2. In all cases which are or may be cognizable in any or either qfiha Process by
said courts, when any persons who have or shall hereafter have privilege of sequestra-
]ieerage, or are or shall be lords of parliament or members of the House of tioo may
Commons, and others who shall be domiciled or residing either in England issue in
or in Ireland, have been ordered or required, by the lawful order or decree, «*»« of
final or interlocutory, of any such court, to pay any sum or sums of money,^ cootumacy
after having been duly monished, shall refuse or nu|;Iect to comply with such •8*»"'^.
monition, and to pay the sum or sums of money therein orderea to be paid v'^q?
by him or them, within the time and in the manner in any such order oc °^' '
decree mentioned or expressed, or a peer or lord of parliament or member at
the House of Commons shall refuse or withhold obedience, or shall in any
way neglect to perform or shall not perform a^ decree or order, fioa^ m
interlocutory, of such courts as aforseaid, it shall be lawful for the )udge oi^
fudges who shall have made such order or decree, or his or their successor
or successors in office, to pronounce the person or persons so neglecting or
refusing to comply with such order or decree contumacious and in co&tenq[>t|
and within ten days after such person or persons shall have been so pnH
nounced contumacious and in contempt, to cause a copy of such order or
decree, under the seal of the court, wherein the same shall have been made«
or under the hand or hands of such judge or judges, or one of them, to
be exemplified, and certified to the lord chancellor, lord keeper, or lords
commissioners for the custody of the great seal of England, whenever the
person or persons so pronounced contumacious shall oe domiciled or re^
siding, or shall be seised or possessed of, or entitled to, any real or personal
estate, goods, chattels, or effects, situate, lying, or being m Bnglapd : ai4
the lord chancellor, &c. of England, shall frathwitk cause such copy of
such order or decree, when it shall be presented to hiniy ^c.» so exem^
pliBed, to be inrolled in the rolls of the high court of Chancery in Englnnda
and shall thereupon cause process of sequestration to issue against the real

1014

ADDENDA.

2 Ac 3 Win. ^^^ personal estate, goods, chattels, and effects, in Eng^d, of the pnty «
4, c. 92. parties a^nst whom such order or decree shall have been nnde, in order te
enforce obedience to and performance of the same, in the same manner ss-i
form, and with the like power and effect, as if the cause whermn such ordc
or decree sh^l have been made had been originally cognisable b? and iotfi-
tuted in the said conrt of Chancery in England, and as if all ana ereiy i^
process of the said court of Chancery in England ordin^rilv issuing in caiw
there pending antecedent to process of sequestration baa been doly ie%^
and returned in the last-mentioned court; and it shall and may be hwi*-
for the said lord chancellor, lord keeper, or lords commissioaen of the groi
seal in England, to make such order and orders in respect of or cooMqiRC
upon such sequestration, or in respect of the real or nersonal estate, gouis
chattels, or effects sequestrated by virtue thereof, as he or tbey shall frs
time to time think fit, or for payment of all or any of the monies levied (r
received by virtue thereof into the bank of England, with the prifity ofil^
accountant general of the said court of Chancery in England, to the creii:
and for the benefit of the party or parties who shall have obtained such od?
or decree, if the same was for payment of money, or if not, to Uie eredit^
the high court of chancery ; and the governor and company of the huk^
England are hereby authorized and required to receive and hold sllss^-
monies, subject to the orders of the said court of Chancery; pror.i<
always, that no such monies shall be charged with or subject to pcuodv:
when the same shall be paid out by order of the said court.

By «. 3. The like provision is made with regard to persons posae8iin|i^
and personal estate in Ireland, mutatis mutandit.

By 5. 4. These provisions are not to extend to any order or decree, & '^
refusing or neglecting to perform any order or decree, made moretha^'
years before the passing of the act.

By 8. 5. Any action or suit to be brought ftMMmy thing done iopnrRB^
of the act, shall be commenced within three calendar months next aftff!^
&ct committed, and not afterwards, and shall be laid and tried in the city '
county wherein the cause of action shall have arisen, and not elsevk;
and the defendant may plead the general issue, and give this act is^'^^
special matter in evidence, that the same was done in pursuance or bf-'
authority of this act ; and if the same shall appear to have been so ^''
if any action shall be brought after the time limited, or laid inaayo^'
city, county, or place than as aforesaid, then the judge shall find k^^
defendant ; and upon such verdict, or if the plaintm be nonsuited, or <&•'
a discontinuance after the defendant or defendants shall have appesi»^
if upon demurrer judgment shall be given against the plaintiff, the d^^
shah have treble costs, and shall have such remedy for the sazoe is ^'
defendant hath for costs of suit in any other case by law.

Limitation
of actiona.

Geoeral
iasae.

Treble
costs.

No. 13. SERVICE OF MONITION.— P. 697. In Buuenum t. IBtama, ^

i Curt, 469, which was a proceeding to enforce the pavment of aBsf^
pendente lite: the party could not oe personally served ; the initnsf
was thereupon stuck up at the Royal Exchange, and on the ehapd^^
Mr. Hinxman wasin the habit of officiating ; and the court, upon oonader:'
this, Mr. H. must have cognizance of the proceeding, pronounced hnA^"^
tumacious, and a significat issued.

In OreenhiU v. Oreenhill, I Curt. 462, also a decree to pay ahinoDy- >'
return of the officer was read, who stated, that he attended to serretbe'
nition at A. Place, Marylebone ; that the house was to be let foinisbed;^
upon inquii^ of a femsde in the service of Mr. GreenhilUhe was i!ifonM|i'
was out of town, and would not return for six months; and that ehe did :
know his place of abode in the country ; that he read the monitioo U) ^

ADDENDA, IQ15

and left ak copy ; Ui^t he fupocaoded to Mr. G.'a adicttori, who told him he was
not in London, but dacUned to give any information aa to where he was, and
that he left with them a copy of the monitioh. The court. Dr. Lushingion,
said, " that if he could see that the aenrice had been really iBvaded, he should
have no. hesitation in pronooncing the party in. contempt, and signifying it,
but as the partv had appeared on the monition, he should let the matter
stand over til} the next court day : in the mean time the party might take
out a fresh monition. Another monition having been taken but, and it ap^
pearing by the r^turQ, that every attempt had been made to serve the moni-
tion, Mr. 6. was pronounced m contempt, and the exemplification was
directed to issue according to the act. 2^3 fVm, 4, c. 92 ; ante^ 1013.

PROXY OF CONSENT.— P. 700. Where a prox^r of consent has been ^^ ,4
given, and a sentence of a court of competent jurisdiction has been founded
upon it, such sentence is conclusive ( unless it can be strongly shewn 'that
such proxy was obtained by fraudulent misrepresentation, concealment, or
contrivance, or perhaps by surprise. fVatkin and another v. Brent, 1 Curt.
264.

COSTS IN PROHIBITION.— P. 765. Where a new trial has been jy^, ,5,
granted without any mention of costs in the rule ; the rule Hil. 2 Wm. 4,
c. 64, directs, that the costs of the first trial shall not be aUowed to the
successful party, though he succeed on the second ; this applies to prohibi-
tion as well as to other cases, though the 1 Wm. 4, c. 21, «. 1, gives "the
costs attending the application, and subsequent proceedings." Therefore,
where the master, on taxation, had refused to allow any costs for the first
trial, or for shewing cause against the rule for the second, and the costs of
the first trial were not mentioned in the rule, the court refused to direct the
master to review his taxation.

LETTERS OF REQUEST.— P. 790. Utters of request go from the ^^ ,5^
commissary of Buckingham direct to the court of Arches, and not to the
chancellor of the diocese of Lincoln. Taylor v. Morley, 1 Curt, 481.

VISITATION.— P. 894. By 6 4- 7 Wm, 4, c. 77, and by several orders in No. 17.
:ouncil, made under the authonty of that act, certain portions of dioceses
vere transferred to new jurisdictions, and became portions of other dioceses.
3y 1 4* 2 Vict. c. 108, s. 3, it was provided, that nothing in the first act
(hould prevent the visitations of bishops, or archdeacons, within their
lioceses or archdeaconries ; but that they might do all things by custom,
ippertaihin^ to their jurisdiction and autnority, in the places assigned to
heir jurisdiction and authority, under and by virtue of tne first mentioned
ict; and any bishop might consecrate a new church, chapel, or burial
^ound within his diocese, so assigned. By s. 9, it was further provided, that
very bishop to whom any portion of another diocese shall have been trans-
erred, shall during his visitation of such portion of his diocese so trans-
erred, be assisted by his own chancellor or commissary, and attended by
lis own registrar : and that during any such visitation, the chancellor or
ommissary aforesaid, shaU, in the name of such bishop, and in confwuuity
irith the usages observed in such diocese, inhibit all inferior and concnrrent
orisdiction, receive presentments, admir churchwardens to thwr offices,
3sue marriage licenses, grant probates of wills, and letters of adminiatrn^on
0 the effects of inUsUtes, and exercise in every respect the same juxisdic'

1016

ADDENDA.

tion, which the chancellor or commusary of any pnoedm^ btahop has a-
ercised in such portion of his diocese so transfemd, pending the Tisitatka
of the diocesan, and the duration of any inhibition mich may haTe istw^
in consequence of such visitationy anyUiing in the laat recited act to tk
contrary notwithstanding; and that all acts which have bem, or shall be
done by any chancellor or commissary, so assisting such bxadiop as sfen-
said, shall oe taken to be good and valid in law, to all intents and pmpoie!
whatsoeyer. This section was repealed by 2 ^ 3 Fid. e. 9.
The provision by section 3, was further continued by S 4r 3 V^sef. c. 55, «.i

No. 18.

WILLS.-— P. 934. In Ta^mt v. Hooper, 1 Cmri. 292. The doctrine tbt
a codicil, not dependent upon a will, is not revoked by the destractkni cr
non-appearance of the will, to which it was originally added as a eodkil, i
it a]>pear that it waa not intended b]r the lestatoc that thfi.Godkil shonldbi
contiji^ent on the existence of the to1» was recognised and confirmed.

"C*' ' '-VC '

1017

INPEX.

Adjmict0--«ominiMi<m of. wlien grmtea, 44. n. a.
AftauBiatntion, m what court granted, vid. btma notabUia, 967.
antwm^r of ecdeeiaatical roriadictioD, 946.
huaband entitled to of right under 39 Car. 2, c. 3, 259.
caaea nnder 21 Hex. 8. e. 5.

granted to widow or next of kin. 949.
next of kin at time of the death. 960.
nroal to jnrefer widow. 960.
not 60, if no intereat in peraonal estate. 951 .
nor. if ahe haa roieoonducted herself. 961.
or, haa heen divorced. 951.
no objection that ahe haa re-married. 951.
MM. a marriage in fact sufficient in case of a widow.
951.

supposed ground of diatinction between her and fauaband.
who ie to prove hie right atrictly, 951. ». a.
to next of kin, 951.

who are next in proximity, 952.

sereral in equal degree, court looks to interest of

estate, 952, 953.
majority of intereaU, 953.
next of kin bankrupt, 953.
creditor on estate, 953.
debtor to estate, 953.
bastard intestate ; kinff iiMmis hmm, 953.
inteatate without relations. 953.

proof of relationship. 953.
next of kin cannot be compelled to take administration. 953.
to creditor, next of kin lefusing, 954.
trustees of creditors, 954.
notice to next of Idn by creditor, 954.
what required, 955.
to peraona wtthovit interest, 955, 966.
in what cases, 956.
joint, 956.

is never compelled^ 956.
limited.

cum tetiammUo amnemo, 957.

not within 21 Hen. 8, e. 5, except where the executor refuses

to act, 957.
other caaes in discretion of ordinary, 950, 957-
reaiduary legatee preferred, 957.
the ordinary looka to the interest, 957-

1018 INDBX.

Administration — eonHnued,

representatiTes of husband preferred to wife's next of kin,
958.
de bonis non,

nature of, and occasion for, 958.
not within 21 Hen, S, c. 5, 958.
choice, in discretion of ordinary, 958.
grant usually follows intereet, S^S^ 959.
may be limited to particular legacy, 959.
durante mtnore aiate,
nature of, 959.

now limited by 38 Geo, 3, e. 87, 959^
one of joint executors of full age, 959.
not within 21 Hen, 8, c. 5, 959-
discretionary with ordinary, 959-
grant usually made to guardian, 959*
court ex officio may appoint guardiai^ if infant under aeven

years, 960.
infant in ventre sa mere, 960.
infant may choose* when> 960^
court not hound to adopt his chpice, 9QP«
pendente lite, 961.

granted by consent, when* 961 .
grounds on which granted* 961.
who appointed nominee, 961*
nominee is officer of the court, 961.
durante absentid,

executor or next of kin out of the realm* 961.
provisions of 38 Geo. 3, c. 87> 962.
applies to executors oi:^ of jurisdictioni 902.
authority not at an end by death of ^x^fnitof, 9^2.
Other special administrations, 9^29 963.
bond, 963.

conditions of, 963.
sureties in, 964.
justifying, 964.
m wliat cases, 964.
party abroad, 964.
sureties abroad. 964, 965.
joint, 965.

amount of security, 966.
joint amount, 065.
not put in suit in ecclesiastical co^r^ 965^^ 9^»
when ordered to be " attended with,'' 9Q^*
non-payment of debl Wf breaph o{, 966.
revocation of, 973.

committed to wrong pev«on» to be re^allqd apd myt^tfi, 973.

will after administration granted, 974.

8ubse<juent will, 974.

administration on false suggestipD, Q74*

obtained by fraud, 974.
valid administration, 975.
Administrators, who may h^ vid. '* Executors," 975.
Admission of libel, how and when contested, «^. '' JPlkadikg," 664,

658,665.
Admttendmn clerum, writ of, 34.
Adultery, divorce for, vid, ** Divobce," 324.

latitude in pleading in cases of, vid, " Plkading,'* 659.

INDEX. loie

Adultery— -^cmfjfiiiMf.

citation for cmelty, adultery may be pleaded, and wee- vend, 665.

et]pnology of the word, 327*

evidence of, what generally sufficient, 327> 328.
ADVOCATE— must be doctor of ciyil law, 1.
mandamus to admit, not granted, id.
how admitted, id.

not to practise for one year after hia admission, 2.
oaths of, id,

stamp on admission of, 3.
Adcoeatio medietatis, what, 15.
ADVOWSON— what, 6.
origin of, 4, 5.
appendant,

to a manor, 6.

to demesnes, 6.

not to rents and services, 6.

passes under grant of manor, 6.

to an honor, quart, 6.

two to one manor, or one to two manors, 6.

not to incorporeal hereditaments, 6.
in gross,

not attached to corporeal estate, 6.

once severed for ever in gross, 6.

excepted from grant of manor, 6.

in cases of coparcenary, 6.

may be re-annezed, 6,
how re-annezed, 6, 7<
title to,

may be held in trust,

in fee, in tail, 8.

lies in tenure, 8.

descendible, 8.

how assets, 8.

options, 8.

may be devised, 8.

presentations to trustees or executors, by I Vict. c. 2C, «.3Q,

Addend, No. 1.
by what words, 9.
by 1 Vtct. c. 26, 9. 28, words of limitation notneeeaasvy.if^Uflac. Jni .

conveyance of, 9*

nezt or any number of preaentaliMU, 9-
alienations of, now restrained, 10.

of nezt preaentations, 10, 11.
right of presentation, by whom eMicaaad* M.
coparceners, 12.
joint tenants, and tenants ia
trustees, 14.
purchasers, 14.
right to present wbmi it

advocaiu} meatettaUt la.

medietas advocatkmm, XU
tenant by the cnrt^tf, 1&.
in dower, 15.
infant, 16.
lunatic, 16.
mortgagee* 16.
sUtute mcstskMH. U

109«

1N0£X.

ADVOWSON— coii/tiiMil
buikrnpt, 16.
alien, 17.

papist, 17, Add, JVo. 2.

patron dying before fffomaUHk/hf Add, IfiK S^
executor presents, 8, 17. -

prebends and donatives, IS. ' -' " .

prerogative preaentattoiis, 19*
presentation revocable, 19.
chureb litigious, 20.

caveat, 20.
jus paittmaidt, 20.
notice of , 20.
jury in, 20.

how summoned, 20.
swearing; 2dL

five articles* 20.-
verdict, 21.
darrein preteiUmmUf 22,
writ of right advowsoD» 22.
quare trnfedUy 22.

who may h«f«, 33.
proeeediiigs» 94.
proeeas, 25.
. . asrvioo of» 26.

defendant a lunatic, 25.
fe«#e of aummoos, 25.
new rules of pleading, 25.
dedantioB, when iBedy^Sv

may be amended, 26. '

pleas in, 26.

by ordkiary, 26.

cannot coonterpkad plonliS' V tfiHii, 27
traverse, 28.
replication in, 29*^

issue, 29. /,.:•: J ' '

Jadgmeiit,JO^ ..i. ',■...

nonnnt, ao«
writ of inquiry, 30.
damages, 30, 31.
costs, 31.

by4 4'5ll%i4, o;39,3i;
evidence, 31, 32, JtUniiiJVb^l.

registry of praeevtatio^, ^2.

mandamus to inspect, 32.

grant from crown when presumed, 32^

answers in ChancasyyBt. •

witnesses, competency of, 32.

limitation of actions xtr^ti

bv 3 4 4 Wk. 4; 0. 27% «r. 80» Sl'^Wi'SB/lMMI
Affinity, marriage void for, 556.
AHen, patron, who to present, 17.
presented to benefice, fsuere, 455.
may be executor or administrator, when, 9751
' will of, 910.
ALIMONY^what, 35.

principles on wluch granted^ 36.

wUe complainant, aiM no charge against licr* 36/

•• .I-

♦ 1

A-

iW* -Ilk

■ J . .7

n..'. •• •

INDEX. 1091

ALIMONY— cMi/tiiiierf.

not allowed till marriage proved, 36»
pendaUe Uie, 36.
aU^gatioii of fociiltie8> 36*

peraooal answer of toabMid Mqttirad, 36.

answer seldom disputed, 36, 37.

inquisitorial scrutiny not usual, 37.

particulars of partnership no^ required, 37<

admissions of husband, 37.
one-fifth of income usual proportion, 37.
permanent alimony, one-half sometimes given, 87.
cases where principle varies, 37.
wife separated bf misconduct of husband, ettlitled to be supported as

if living with him, 38.
separate income of wife, 38. '

husband insolvent, Addend. No, 4, and No. 9*
application, when to be made, 38«
alteration oi circumstances, 39*
from what time due, 39.
in cases of appeal, 39*
arrears of, 40.

monition to enforce granted, notwithstandiBg-wife'wiibliolds the chil-
dren, in contempt of an oider of court of K. B., Addend. No, 5.
payment of, how enforced by 2 ^ 3 fVm. 4, c. 92, Addend. No, 13.
Allegation responsive and rejoining, vid, ^ Pi«BAinira«" 658. 656.

in answer to' a libel, must plead a legal defisBBc^ 668*

first plea in testamentary causes flo csll6di^663i
every plea subsequent to libel or artklia^ ii «o laiM^ 663.
ALTERAGE— what, 41.
Alterations in a will when considered part of a iriB,. 98S.

in churches, when fuulty necessary for, 168.*
Ambassadors chapels, manriages in,. 576.

marriages of persons in suite of, 575.
Amendment in pleadings in prohibition, 757«
America, vid. ** United Stotea."

Answers personal of defendant, vid. ** Plbaoiho,*^ 599. 656. 658.
party not required to criminate or degrade himadf. Addend, No, IS.
must be as to facts, ibid.
when to be brought in, 383.
APPEAL,

to Rome, put an end to by 36 Hen. 8« c; IS^^-^iS.

how it proceeds, and effect of, 43, 64.

now to ''judicial committee of privy oooaeil,'.' 44.

right of appeal favoured, 49*

may be waived, 49.

how waived and perempted* 49*'
who parties to, ta.
from ''grievances,*' 50. 689« 699. '^.l^.a: .:

what are «ppeahib)eKriSTaooss,.66t

' '. V

when to be made, 51. . u\ .t»1 kov f5i;.i**iiri .\'» i«< v

time, how computed, 52. . \ : J;: <r n ; m .;fif .(k<i..

from "definitive sentences," 51, ^2I» ^'^a , iv i • 'i ^ t^- ^i^
stamp necessary, 53. -. 'v «.jf.-N ^ ..»:.•-'>• -'
protocol of, 53.

mhilntion, vide, "Inhibition," 689. i • -

in appeals from "grievances,'* cause of, liibe-stated« 59« 689» 69O.
" Attentate" penmng appeal, mde "A;r9BiiTA«B,":64*' •

1022 INDEX.

AP?EAlr-c<mtinued.

new facts in, 55.
who to begin in, 56.
costs in, id.
in cases of refusal of license to hold two besefioesy 677.
Appeals under 1 4* 2 Vict, c, 106, 832.
mode of proceeding in, 832.
to be in writing, 832.

security for costs as archbishop may require, 832.
inquiry to be by archbishop or a oommission, 833.
decision in writing, 833.
costs, 833.
against stopping up church path. Addend, No. 8.
church not void during, 67.
Appearance, party living in or out of London, 682.
under protest, 683.

waives objection to jurisdiction, 710, 752.
Appendant Advowson, vide " Advowson."
APPROPRIATIONS— what, 56.

when, and how, and why made, 57, n. a. 892, n. a.
how a church may be " disappropriated," 58 — 892, n. a.
Aqua bmduBt origin of parish dierk, 635, 636.
Archbisnop, vide " Bishop."
ARCHDEACON— officer of the bishop, 59.
inferior to dean, 59.
authority derived from grant, 59.
or by prescription, 59.
when concurrent with bishop, 60.

visitations by, 695, Adiewd. No. 17.
must be twenty-five years of age, 60.
a ministeri^ officer, whan, 61 .
to attend to repair. of churches, IQS^ Addmd. No. 7.
ARCHES— court of, 61.
dean of, 62.
Arrest, clergy protected from, when, 241.
ArticuH eleri, 707.
ARTICLES— of the church, opinion of Lord Stowell, 63. 65, n. a.
who to subscribe, 64.

in pleading, what, vide "Plbadino," 653, 654.
" Attentats," what, 54.

how to proceed in. 54.
Auditors of parishes, how elected, under 1 & 2 Wm. 4, e. 60 — 889.
powers and duties of, 889*
accounts, when audited, to be signed in presence of vestry cleik,

who is also to sign, 889.
abstract of accounts, when audited, 889.
AVOIDANCE— what, 66.

by death, or resignation, 66.
cession, or consecration, 66.
by deprivation, or act of law, 67, vide " Lapsb."
acceptance of second benefice, 66. 672, 673.

makes benefice, as to patron actually void and not voidable, 672.
Ballot, election by, in parishes, 625.

by vestry act, in election of auditors and ve8ta7men, 886.
Bankrupt patron, who to present, 16.
Banns, puDlication of, 513.

aiAnriagea by, vide " Marbiaob," 508, 509,
place of, 529, 630.

INDEX. 1028

BAPTISM—nile of the rubric, 67.

used to be administered publicly^ 68.
on Sundays and holidays, 68.
ministers not to refuse on those days, 68.
notice to be given by parents, 68.
godfathers and godmothers, 68.
regulation by canons as to names, 69.
names changed at confirmation, qtuere, 69.
form of, 69.

Erivate, only in danger of death, 69.
ly, 69.

case of " Kemp v. JVickes," 70,
children of Dissenters, 70.

of Roman Catholics, 71*
baptism of adults, 71.
fee on, 71.

not affected oy 6 4* 7 Wm. 4, c. 80—72.
registration of, by that statute, 72, and vide title ** Register."
fees for, in cases of division of parishes, or consolidation of parishes
under church building acts, and vide title, " Church Building
Acts," 208.
BASTARD — general principle of Law of Bastardy, 75.
by civil law, and law of England, 75.
general basterdy, what, and bow tried, 75. 76.
special bastardy, 76.
who is bv common law, 77*

1. Bom before marriage, parents marrying, 77.

In Scotland, France, Germany, and Holland, 77, 103.
In different States of America, 77.

2. Bom of void marriage, 77,

3. of voidable marria.ge, 77, Addend. No, 10.

4. during valid marriage, 77^

1. after divorce of parents, 78.

2. impotency of husband, 78.

3. non-access of husband, 78.

unsatisfactory state of the law, 79> 80
cases,

Fbxcroffs case, considered, 81, 82.

RadweWs case, 83.

PendreU v. PendreU, 83.

Lomax v. Hobnden, 84.

Qoodright dem Thompson v. Saul, 84.

Smyth V. Chamberlain, 85.

Bmtledge v. Camtthers, 86.

R, V. Luffe, 87.

Brouffhton v. Broughton, 88.

Bantmry case, 88, 89, 90, 91.

Head v. Head, 92, 93.

Morris v. Davies, 94, 95.

Cope V. Cope, 96.

Bury V. Phihot, 97.
widows marrying, 98.

period of gestation, 98.

240 days, or 40 weeks, the ordinary period, 99.

1024 INDEX.

BASTARD— conltMwil.
period of geiUlion.

Code yapoietm, 100.
Qardmer Peerage caae, id, 102.
writ, de vmtrt iMMpScumdo^ 101.
name of, 102. 530.

bastard e^ii^ and mmUerpmtmit 103.
bastard infants^ cnatody of, 104.
BigamT, marriage void for, 554, vide ** Mabriaob."
Kus ot costs of proctors, cannot be taxed, 713.
may be referred, 703.

if extortionate, proctor may be punished, 703.
BISHOP — presides over a city and diocese, 105.
archbisnop over a province, 105.

formerly took all the tithes of the diocese, 106. 163, «. a.
dection and consecration of, 108, 109*
residence of, Hi9.
attendance in parliament, 109.

visitations unaer new arrangement of dioceses, Addemd, No, 17.
deposition and degradation of, 1 14.
deprivation of, 114.

sufiraj^an and co-adjntor bishops, 115, 116.
Bishopncks in Wales, by whom founded, 107.
in Ireland still donative, 108.
dean and chapter, ffuardians of spiritualities. 111.
crown, gnardian of temporalities, 113.
Blind persons, how their wills considered, 907*
Bom Notabi&a, 113.
in two dioceses of same province, prerogative probate necessary, 967-
so, in one diocese, and a peculiar, 967*
in two dioceses of different provinces, a diocesan probate in each

diocese, 967*
death in one diocese, bona notabiUa in another diocese d same pro-
vince, prerogative probate necessary, 967-
party dying out of diocese on journey, 967. 97 1 .
Boma molabUia, in two dioceses of one province, and in one of another,

two probates necessary, prerogative and diocesan, 968.
in cases of royal peculiars, 643. 968.
where party dies out of any province, 968.
where partj is domiciled aoroad, 968, ». a. ^

where toreiffner dies abroad leaving property in this country, 968, a. e.
British subject domiciled abroad, 968, n. a.
will of bishop proved in prerogative court, 970.
amount of bona notabiUa^

regulated by canon 92 ; 971.
further regulations by canon, 93. 972.
what constitute bona notabiUa, 972.

nature of property and in what place, 972.
simple contract debts, 972.
lease of lands, annuities, 972.
specialties where, 973.
stock in public Ainds, 973.
canal shares in what diocese, 973.
questions of, not yet affected by portions of diocese being CransfierrBd
under 6 A- 7 mn. 4, c. 67. 77. 981, Addend. No, 17.
Boundaries of parishes, perambulations of, 617*
triable at common law, 617.
prohibition, in respect of, 724.
of vills, VMN'^. 617.

INDEX. 1035

BRAWLING and SMITING— oidt " Smiting/'

at common law, 118.

B^ 5 4- 6 Eel. 6, 118.

witnesses necessary, 118.

what amoonts to, 118.

in vestry room, 1 19*

punishment of, 124.

who may promote, 124.
Bifcer, IfortNi, qmesre, whether consulted on the English Liturgy, 761, ». a.
BURIAL— ancient modes of, 125.

right of, in En^hmd, 126. 162. 208.

where parish divided under Church Building Acts, 126. 207*

in churchyard, 126.

in the church, 127.

prescription for, in separate vault, 127.

fee for, by custom, 127> 128.

under Church Building Acts, 208.

taUe of fees for to be sanctioned by the ordinary, 128.

in metal coffins, 129.

in woollen shrouds, 129.

who not entitled to, 129» 130.

persons shipwrecked, 130, 131, 132.

registry of death, ffide tide '' RnoiSTn," 231, 132, 133.

distance of graves from walls of church, under Church Building Acts,
211.

Cokrin, 91MWV, whether consulted on the English liturgy, 761, n. a.
CANON LAW— wha^ 134.

when introduced into England, 134, 135. 138.

canon, not without license from the crown, 252.

onlv partially adopted, 135«

authority of, 137. 509. 582.

divorce not allowed by, 323, 324, ». a.

canons of 1603 — 137. *

cannot supersede or control common law, 582« 683.
or custom, 636.
Canterbury, province of, what dioceses it contains, 105. 364.

archbishop of, primate and metropolitan of all England, 106«

precedence of, 107.

nas prelates for bis officers, 106.

dioceses of province, how altered, 364.

diocese of, what to contain, 362.

archbishop of, income how regulated, 366. 967.
Cathedrals, origin of, 138.

differ from churches conventual, 138.

exempt from archidiaconal jurisdiction, 139*

visitation of, by archbishop, 139.

cathedral pieferment what, b}r 1 4- 2 Vict. c. 106, u.2ami 124^139. 679.
churches of new foundation, 140.

new at MtmehesUr and Runm, 141.
CAVEAT— what,

at common law, of no effect, 142.

institution after, void by canon law, 142, 143.

to marriage licenses, 541« 543, vide, " Marbiaos."

u u c

1036 INDBX.

Causes, plenary and sammaiy, 6S2.

in prerogative, and before delegates, summary, 652.

all other, plenary, 662.
Chancel, repair of, 165, 166.

discharge for repairs of church, 167.

pews in, control of ordinary over, 186, 187*
CHANCELLOBr-Hliocesan, office of, 143.

origin and antiquity of, 143, 144.

canonical age ol, 145.

a spiritual officer, 145.

powers of, 145.

cannot grant licenses to lecturers, 146.
CHAPELS— four sorts of, 147.

1. private, 147. 149.

2. of ease, and parochial, 147. 150.

3. free, 147. 152.

4. proprietarv, 147* 153.

power of churcnwardens of parish extends to, 234.

who to consent to erection of, 147» 152.

right of nomination to, 148.

new provisions for building, 150. 154, 155.

of ease, visitable as parish churehes, 152.

repairs of exempt from repair of mother church, wheng 150. 154« 155. 993-

church or chapel, to be tried at common law, 152.

consecration of, in portions of dioceses transferred. Addend. No. .16.

proprietary chapels may be closed, 153.
Chanter what 292
CHURCH— consecration of, 156, 157. Addend. No. 16.

what form generally used, 157.

service of, vid. title " PuBmc Worship," 157^

additional services in, 157.

ornaments of, vid. ** Ornaments,'^ 161,

repairs of, otd. " Repairs," 163, n. a. 164, et $eq.

alteration and enlargements in, vid. title " Faculty," 164.

taking down, 170.

pews in, vid. " Pews."
CHURCH-BUILDING ACTS,

1. Building, enlarging, endowing.

Commissioners, under 58 Geo. 3, c. 45, «. 8, 9 ; 59 Geo. 3, c. 134, f. 3—
194.
a body corporate, 194.
duration of commission, 194.
object of, 194.

powers of, limited bv population 195, «. a.
parishes may assist oy rates, 195.
commissioners may build or rebuild, 196.

buildingpartly by subscription, partly by rates, 5 Geo. 4, c. 1 03 — 196.
building under 1^2 Wm. 4. c. 88 — 197*
preference by that act given to enlaT|;iiig, 197.

2. Divisions of parishes and ecclesiastical dis^cts, 197. 201.

. consolidation of parts of parishes, 198.

district parishes and ecclesiastical distriets, 198.
district churches, 198. '

district chapels, 199-

substitution of for parish church, 199.

chapel of ease made parish church, 800.

churchwardens, choice of, 216,

3. Patronage.

II^PEX. , 1027

CHURCH-BUILDING ACTS— cwi/iiwedL

minister or curates, when nominated by incumbent, 200, 201.
when by the bi^op, 200, 201.
when by patron, 201.
by trustees under 5 Geo. 4, e. 103 — 201.
when building by subscription, 203.

by person buUding and endowing by 1 & 2 IVm. 4, c. 36 — ^202.
commissioners may declare the right of, 204.
preliminary statement necessary, 204.
objections by patron of parish church, 204.
pr^erence to him to build and endow, 205.
instrument of nomination, 205.
churchwardens, how chosen under these acts, 234.

4. Stipends, 205.

assigned out of pew rmt, when, 206» 207.
fees and offerinffs, 206.
assignments to be registered, 206.
difficulty attending assignments* 207.
when church built by subscription, 207.

built and endowed under 1 & 2 Wm, 4, c. 38 — 207.

substitution pf for parish church, 207.

5. Division of tithe, glebe, fees and dues, 207.

distinct and district parishes, 208.
consolidated chapebries, 208.
fees, baptisms and burials, 208.

6. Sites for churches and churchyards, 209.

commissioners may accept, 209.
who may grant, 209.
compulsory provision for, 210.
parties compelled to sell land for, 209.
commissioners may advance money to buy, 210.
in whom site of church to be vested, 210.

7. Sites for churchyards and cemeteries, 211.

distance of graves from walls of church, 21 1 .

8. Pews and pew rents.

pews may be let, 212.

to persons not inhabitants, when, 213.

recovery of pew rents, 212.

9. Tables of fees, may be fixed by commissioners with consent ci bishop
and vestry, 213.

10. Remission of duties by excise and customs, and materials granted for
building churches, 213.

CHURCH RATEr^Avpendix, 981.

for repair ana service of church, 981.

antiquity of, 163, ». a. 982»«. a.
at common law, 982.

made by churchwardens and parishioners, 982.

wilful neglect of churchwardens to repair. Addend. Nv. 7.

by churchwardens alon^ the parishioners refusing, qumrep 983, ». b,

amount of, 984.

parishioners not bound to particular estimate, 984.

notice of vestry for making, 984, 985.
by statute to pay interest and repay pnncipal of sums borrowed on the

credit of rates, 985.

for enlar^ng and extending, 985.

for repairing, 986.

for rebuilding, 986.

V V J3 2

1018 iin>£x.

CHURCH RATE--eoiilMti«l.

for building new church or chapel* 967*

money taken with consent of Testry^ dmrehwaidem may
make rates, 987*
in extra-parochial places, 988.

ffeneral power to raise money on credit d the rates» 988.
on what the rate is charged, 988.

on the person in respect of property, 989*
but substantially on property, 989> n. a*
real property, 989*

occupier to be rated wheAer iohabHittg' or not, 989f «. «- 990.
no distinction in rating for ornaments or repnrs, 990.
in cases of district churches, 990. 999.
personal property, 990.

according to usage of the parish, 990, 991 »
poor rate a fair criterion, 991 •

pro|)erty to be assessed at real vshie, 991.
rate not set aside for smdl inequalities, 991*
all property to be rated, 991*
Exemptions firom, 991*

fflebe by reSson of repair of chaned, 991 .
unds exempt by prescription, 991.
in occupation of the crown, 991.
royal demesne not in occupation of the cmwn, 991» 99S*
Greenwich hospital, 992.

lands of chapelry in respect of repair, &e. of chapel, 998.
stalls in market, 992.
directions for making, 993.
form of, 993.
mandamus to compel, 994.

in what cases, 995.
objections to, 995.

when and how taken, 995.

in ecclesiastical court, 996, 9^-*

cases of Quakers, 996.
by eaoeai to confirmation, 998.
defence to suit for substracdon, 998. -
not by an original proceeding to quash, 998.
what sufficient, ^7.

omission of piirties out of, 997*
how recovered by nmnmaiy juritdidifm, 999.

53 Geo. 3, c. 127 ; 54 Geo. 3, c. 170— 998> 1000.

notice to magistrates, 1000.

appeal against magistrates' order, 1001.

whatsufficient notice of trial, lOOl. *' ~

need not be confirmed by ordinary, 1002.
retrospective rate, 1003, et teg,
CHURCHWARDENS— may be but one by custom, 21 ».
custom to haye no churchwardens, bad, 982, n. b.
when chosen, 215.
right of choosing, 215.
by canon, 215. 217.
by custom, 215.
by vestry or particular number of parishioners, 218.

custom tried at law, 217*
by lord of a manor, 217.

in new parishes, 218. '' '*'

under Church Building Aets, 234.

INDEX. lOM

CHURCHWARDENS.— comiMMil.

in London, 3l9r.
mode of eloction> 217-

omission to elect, 218.
wbo liable to be chosen, 218.

ceasing to be inbabitant« 233.

ezeniptions, 219» 220.

Quaker not compellable to serve, AdtUmL No, 6.
swearing of, and form of oath, 220, 221.

ordinary cannot refuse to swear, 220.

numdmmu tocompel swearing, 22 1,
may not dispose of goods of parish, 222.
how fu a corporation, 221.

to bring actions, 222.

to take chattels only, not lands, 222.

provisions of 9 Geo. 1, c. 17, and 59 Oeo. 3» e. 12 — 223.

cases of, Jaek$on v. HUew, 224.

Doe dem Higas v. dhurchwardau qf Readmit 224*
Doe dem Hobhe v. CocheU, 225.

may take lands by custom, 225.

may do so in London* with mixuster, by custom, 22^.

mav enter into agreements, when, 225, 226.
actions Dy, do not abate by death of, 226.

what maintainable by« 227.

to be brought in their individual names, 227.

against their pcedecessora in office, 233.
actions against, may plead general issue, 227*

double costs in, 227*
duties of,

to present ecclesiastical offences, 228.

n^lecting to present, 228.

to attend at visitations and make presentments, 897> 898
must not mterfere in church service, 158. 229- 230.
not to allow nnlicensed preadiers, 229«
to repress irregularities, 229.
to inovide elements for communion, 161. 229.

to keep church and churchyard in repair, 229* 230. 236, ^7. Addend, 7.
to arrange pews, M. " Psws," 181.

complaints against their arrangements, how made, 180. 182^183.
in cases of sequestration, vid. title " Ssqus8tration»'' 231.
accounts of, to be laid befiore vestry, 231. 233.
spiritual court cannot decide on cnvges, 231.
how protected in respect of, 231, 232, 233.
howre-imbursed, 232.
retrospective rates, by, 1003, n. a.

Sroof of disbursements by them, 232.
ismissed for misconduct, 233.
or proceeded against for neglect, 233, 234.
but n^lect must be wilful to make them criminally chargeable. iliUnul.

No. 7.
authority of, extends to all parU of a parish, though in different
counties, 234.
and to proprietary chapels, 234.
maybe summoned to visitations, 894.
Churchwav, may be claimed in spiritual court. 233.
new ^tn cannot be made without a faculty, 238.
stopping up provisions of 59 Geo, 3, c. 134 — 239.
in case of such order, no appeal againat* Addend, 7

1030 INDEX.

CHURCHYARD— freehold of, in minister, 236.
trees, in, cut for repair of house or chancel, 237-
to he repaired hy parishioners, 236.
right to the grass in, 237.
nuisance in, an ecclesiastical offence, 238.
Circumspect^ agatis, statute of, 708.
Citetion, different kinds of, vid. " Process,'' 680, 681.
service of, 681.
publishing of by proclamation, 682. 955. Addend, Nas, 12, 13.

distinction between, and personal service, 682.
variance in, 684.
Citinf? parties out of jurisdiction, 690. 710. 752. Addend, No. 12.
CLERGY — may not purchase next presentations, 5. 11. 844.
who included in term " clergy,'* 239, 240.
age of ordinatioD, by the canon law, 239, 240.
privileg:es of, by papal law, 240
exemptions from temporal offices, 241.
correction by ecclesiastial law, 241.
for drunkenness, 242.
immorality, 242. 305.
irregular aischarge of clerical duties, 242.
non-residence, 243.
unsound doctrine, 243.

cutting trees in churchyard for illegal purposes, 243.
examination, before license or admission to a benefice, 457-
hmitation of suits against, by 27 Geo, 3, c. 44 — ^243.
disabilities of, 244.

not to engage in secular pursuits, 244.
may not tr^e, 245.
exceptions, 246.
punishments for trading, 246, 247.
Clerk, vid, " Parish Clbrk," 635.
CodicU,wd. "Will."
Colleges, heads of, to subscribe articles, 64. '

when excused residence on benefices, 796.
Consecration of bishops, form of, 109.
. Constitutions provincial, «id. "Canon Law.**
Co-adjutor bishops, 116.
CoUative advowsons, 18.
COMMENDAM— what, 247.
nature of, 248.

abolished by 6 & 7 Wm. 4, c. 77, *. 18—248.
Commissary, what, 144, 146.
Compulsory, to enforce attendance of witness, 384.
Condonation, vid, " Divorce," 332, 337, 339, 346.
Confession, 330, 331.
Confrontation, decree for, 330. 410.
Connivance, vid. " Divorce."

when to be pleaded, 332. 340, 341.
Consanguinity, marriage void or voidable for, 556, 566.
CONSUm'ATlON— nature of the writ, 248. 708, 709.
rendered unnecessary by 1 Wm, 4, c, 21 — 248.
ConteetaHo litis, what, 656.
CONTUMACY, 249.

writ de contumace capiendo, 423. 696.

by 63 Qeo. 3, c. 127, and 2 4- 3 Win, 4, c. 93—697, Addend. 13.
persons not obeying orders of court, 424. 697, A^UML 13.
or committing contempts in -face of the court, 697, Addend, 13.

INDEX. 1031

CONTUMACY— conrtmicd. / .

or anv other contempt, 424.

may be pronounced contumacious, 423.697> Addend, 13.
witnin ten days' to signify the same to chaAcellor, 697,

Addend, 13.
if not a peer, lord of Parliament, or member of the House of
CommonSf writ de contumace may issue, 6979 Addend. 13.
if party in Ireland, to Chancjallor of Ireland, Addend, 13.
person may be taken and detained, 697i Addend. 13.
on appearance and submission, discharged, 697y Addend. 13.
gaoler to discharge on payment of costs^ 423. 697> Addend, 13.
in what cases Ecclesiastical Judge may pronounce party contu-
macious, ilcic/cfu^. 13.
within ten days copy of decree to be exemplified and certified
to the Chancellor ol England or Ireland according to the party's
domicile. Addend. 13.
the chancellor, &c., to cause a copy of order exemplified to be
enrolled in Chancery ; process of sequestration to issue against
the real or personal estate in England or Ireland, as the case
may be, to enforce obedience or performance of the same order,
in the same manner, and with the like eflfect as if the order had
been made in a cause in the Court of Chancery, Addend, 13.
CONVOCATION— limited to assembUes of the clergy, 250.
their jealousy of king's writ, 250.
led to provincial synods, 250.
act of submission, 25 Hen, 8. c. 19 — 251.
restraint to make canons without license, 252.
proctors returned for dioceses in province of Canterbury, 252.
for each archdeaconry in province of York, 252.
waiver of privilege ox taxing the der^y* 254.
disputes as to adjournment of, 255.
prorogjatioii of^ 256.
COStTS.— m ecclesiastical courts, 255, 256.

1. for dismissal of suit, 256.

2. contumacy, 256.

3. delaying tne progress of the suit, 256.

4. general costs, 256.

generally in discretion of court, 256, 257.
ow far they depend on mode of conducting case, 257.
in matrimonial suits, 258.

wife to have costs taxed de die in diem, 258, 259.
where separate property of her own, 258, Addend. No, 8.
husband insolvent. Addend, No, 8.
restitution of conjugal rights, 258.
nullity of marriage,
suits for perturbation of church pew, 259>
when right to be tried, 259.
churchwarden acting Mrly, 259.
for substraction of churco|rates, 259.
suits for of correction of clergymen, 259.
brawling, 259.
incest, 258, 260.
defamation, 260.
applications for faculties, 260.
interest causes, 260.
testamentary causes, 260.

costs out of the estate> 260.

m* INDBX.

COSTS— eonitmiad.

justa causa Ugitandit 960.
party acting hco evculorif, 260.
ezecttton when personally liable, 360.

haying acted and renoundng ornfafeiBg uvmBtoiy» ^1.977.
next of kin, 262, 263, 265.

giving in allegation, 263.
legatee acting looo eatecni^ria^ 263» 866.
acting for his own benefit, 263.
not so &vonrably regarded as next of Idn, 262.
in criminal cases, 264.
on appeal, 264.

in |)rohibition, 264. 755, 7&6g Addend, 16.
divisible, 264.
taxation of, 265.
how enforced, 265.
security for, 266.

no distinct issue on costs allowed, 266, 267.
proceedings in pmnam, 267.
suing in formd pauperis, 268.
taxation suspended, 268.
giving or refusinff appealable grievance, 268, 269*
release of, by husoand in defamation, 300.
sentence for in a writ de coiihifnace,651.
GOURTS-^cclesiastical, 269.

list and jurisdiction of, 270 et seq.
separation of ecclesiastical from civil, 59« «» a, 269.
jurisdiction of, continued by 2 & 3 Viet, c, 55, s, l^H^Sl, AdienL 17-
Cruelty, divorce for, 324. 343.
cannot be pleaded in bar of adultery. 337* 666.
legal definition of, 343.

citation for adultery, when it may be pleaded, and vice vmrei, 666.
Customs triable at common law, 217. 729> 730.
prohibition to tr^, 727* 728.

no prohibition if custom bad on face of pleadings, 731.
CURATO, STIPENDIARY,
who is, 274.
how nominated, 275.

not by bishop without consent of incumbent, 275.
must be licensed, 275.

1. must shew nomination, 275, 276.

2. letters ofoiders, 275. 277.

3. letteK% ^stimonialf 275. 277*
license not necessary for occasional service, 275.
going into another oiocese, 2J6*
8ubscrii>tion to artidee* ^7fi*

declaration of conformity, 276.

i oaths, 276.

Provisions of 1 & 2 Vict. c. 106, as to curates, 276. . j

absolute appointment of, by bishop, in what cases, 274. 877* 90^i*
license and revocation of, 280.

I stipends, scale of, 280, 281 .

depend upon population imd vakte of benefice^ 381.
bishop may vary, 281. ^

doing duty interchangeably, 281. ••.<«,

incumbents instituted before Jaly» id 13-^81. ... > ':^ h

differences as to stipend, how settled, 289« \ /• r:

INDEX. loas

eURATB, STIPENDIARY— con/Miwd.
payment and recovery of atipendSy 382.
incumbent lunatic, or benefiee seqoestimted, 3B3.
deductions out of stipend, 283.
hiring honae of reddenoey 284.
oblif^ to ^uit curacy, 286.
himself desuous to quit, 286.
curates under Church Bnildiag Acta, 280, 287.

DEAN AND CHAPTER,

origin of, 288.
1. Deans of chapters, 289.
2« of peculiars, 289.

3. rural, 289. 291.

4. of colleges, 289>

5. honorary, 289*

6. of provinces, 289.

of spiritual promotion, 290.
of lay promotion, 290.
their appointment may be, 290.

1. by election, 290.

2. by donation, 290.
may be without cure, 290.
oa||ht to visit, 290.
residence and preaching of, 291.
higher in rank than archdeacon, 43.

Dean and chapter, 292. 294, 295.

may be wifhout episeopal see, 292.

episcopal see without oean, 292.

cnapter without see or dean, 292.

canons, prebends, and prebendaries, 292, 293.

prebendaries, without cure, 293.

prebendaries with jurisdiction, 293.

now to hold two prebends in same church, 293.

institution of prebendary, 294.
Decrees, history of, 134.
Deereium Qratiani, 134.
Decretals, 134.

Deed of (^ when entitled to probate as a wiB, 919.
Deeds, how pleaded, 671*

substance only to be set out, 671.
to be left in registry, when pleaded, 671 •
how proved, 416.

in custody of third party, or of opposite party, 416.
DEFAMATION— cause of,

pardy civil and partly criminal, 296.

m speaking as well as by writing, 296.

rule of dvU law, 295.

when cogninble in spiritual court, 296.

what words amount to, 296, 297.

general principles, 298.

words spoken in judklaLproeeedingB, 29B, 99^.

limitation of suits in, 299.

witnesses necessary, 300.

1M4 INDEX.

DEFAMATION— ctw/imted.
punishment, 300.
mutual defamations, 300» 301 .
prohibition in cases of, 718.
DEGtRADATION— what, 301, 302.
summary or verbal, 301.
solemn or real, 301.
how performed, 301.
Delegates, court of, abolished, 44.
former constitution of, 44, n. a,
DEPRIVATION— what by canon law, 302.
of a bishop, 114.
without sentence, 302.
by sentence, 302.

for what offences, 303, 304, 305, 306.
for dilapidations, 316.
who has power to deprive, 65. 305. 307.
instances of, 65.
of a parish clerk, 639, 640.
DILAPIDATIONS,

what are, and who liable for, 308. 313. 315» 316.
permissive or wilful, 308.
what amounts to, 308, 309> 310.
executors chargeable for, 310.
not curates licensed, 31 1 .

of augmented curacies, 311.
amount of, how ascertained, 312, 313, 314.
money obtained, how applied, 312.
estimates may be contradicted, 312.
remedies for, 314.

in ecclesiastical court, 314.
by action at law, 315.
punishments for, 316, 317<
proceedings for prevention of, 317.

by 1 & 2 Viet. c. 106, ss. 39, 42—318.
Dioceses divided into archdeaconries, when, 60.
in the province of Canterbury, 105.
in the province of York, 105.
new arrangement of, by 6 & 7 Wm, 4, c. 77' — ^364.
changes not to affect bonanotabiUa, 980, and vid. Append, 17.
DISPENSATION— how it diffenfrom a license, 319-
regulated by 26 if en. 8, c. 21 — 320.
by whom grantable, 321.
tax upon and stamp, 321, 322.
Dissenters, baptism of, 70.

burial of, 130.
Dissenting ministers, baptism by, 70.

marriages by, at common law, quare good, 594.
formerly not allowed, 586.
Disturbance of pnew, action for, 172, 175.
declaration in,

general form of declaring, 175, 176.
against ordinary, 176, .177.
evidence to support prescription, Ipl*
DIVORCE— general law of, 324, n. a.

a separation a mensdettkoro only; 324, 55i/S.
for adidtery, 325.

marriage firat to be proved, 326.

IND£X. 1035

DIVORCE— cmHfifieil.

For aduUery.

What sufficient proof of, 327.

not necessary to state time and place, 328.

fects leading to general presomption of, 328.

ante-nuptial incontinence, 329*

confessions of wife, 320, 329.
of paramour, 330.

letters from wife to paramour, 331.
from paramour to wife, 331.
libel to plead conclusion of adultery, 331.

specific acts need not be pleaded, 331.

case brought forward at once, 332.

facts not existing at commencement, 332. 669, 660.

verdicts at law, 332.

condonation or connivance roust be pleaded, 333. 340. 342.
Pleas in bar to divorce for adultery, 333.

1. Recrimination or compensatio criminum, 333.
single act of adultery sufficient, 334.

act during separation, 335.

evidence in, not so strong as in substantive charge, 336.

solicitation of chastity, 336.

divorce may be had on recriminatory plea, 336.

cruelty not pleadable in recrimination, 337.

2. Condonation, 337.

subsequent to knowledge of adultery, 337.
may be implied, 338, 339.

cohabitation after knowledge, 338.

not so strong afpdnst a wife, 338.
facility of condonation, 338.
condoned adultery may be revived, 339*
solicitation of chastity or cruelty will revive condoned adul-
tery, 339.
is only conditional forgiveness, 339*

3. Connivance generally to be pleaded, 333. 340. 342.

different from condonation, 340.

evidence of corropt intention, 340.
knowledge of wife's conduct, 34 1 .
cohabitation subsequent to, 341.
criminal negligence, 341.
malicious desertion, bow far evidence of, 342.
allegation of does not admit adultery, 342.

available though not nleaded, when, 342.
long antecedent, semb, no oar, 343.
cruelty cannot be pleaded in bar to, 343.
nor desertion, though malicious, 342.
For cruelty, 343.
may be by husband, as weU as wife, 342.
what is seevitia, or legal cruelty, 343.
acts of, 343.

threats inducing reasonable apprehension, 343.
mere injury to teeUnffs not sufficient, 343.

suit for restitution of conjugal riights, not necessanly a bar to, 344.
words of passion, 344.
induced by complainant* s misconduct, 344.
Pleas in bar to divorce for cruelty, 346.
condonation, 345.

1«M INDEX.

DIVORCE— cohMmmL

reoriminatioD no bar, 345.
may be joined to adultery, or to maUcioua deaertionj 346.
For Bodomitical or indecent conduct, 346.
Malicious desertion, 346.

no ground per $e for a divorce, 347.
No limitation in time for suits for diToree, 348.
delay in bringing suit, 349.
foreign divorces, 349. 555. 578, n. a.
Domicile, as affecting question of divorce, 350, 351. 578, ». a.
in America, a <|ue8tion much consideredi 349« n, 4i,
as affecting legitimacy, 103.

as affecting questions of probate or administration^ 968, «» a.
or right to administration, 968, n. a.
DONATIVE— rule as to void turn o& 18. 355.
why so called, 352.
supposed origin of, 352, ». a»
distinguishea from sinecures, 353.
not visitable, 354.

pays no procuration, vid. " Visitation^*' 899.
incumbent of may be corrected^ 3^
may become presentable, 354.

1 600. 1, 9t, 2, c.lO; I & 8 Vid.e, 106, #.124-7354, 355.
having received Queen Aane's Bounty, subject to oniiniiry juriadictioa,

645.
executor does not present to. when» 355.
donative or presentative, triable at common law^ 355.
no mandamus to admit to, 355.
Qii«re, within statute 31 MUe* c. 5, a^nst simony, 856.
Dower, tenant h% may prosentto beneMe, 15.
Drunkenness, wiU made in a state o(t 906.
Dumb persons, how their wills to be considered, 907.

♦-

Ecclesiastical courts, history and list and jurisdietioni ot, 269 s^^asff*

report and recommendation of the commiesioiMn
upon, 271, ». e.
ECCLESIASTICAL COMMISSION— 5 & 0 Wm.4, e.30| 647 J^m. 4,
c. 67 ; c. 77—356.
appointment of commissioners, 360.
constitution of commission, 360,361.
to propose schemes, and modify ti^m, 361, 362.
new arrangement and ordering of dioceses, 363, 364.
new bishopricks of Manchester and R^pon, 365. . . - . ■^••!

orders in council, 368 to 379. - V •

Election of bishops, 108.

in cathedrals, 139. v.. *';->-

of churchwardens, 217*
in parishes, 6l9«

>T » -

in vestries, mode of, oui. "Vestry." , ,*.. \.',S .

Enlargements in churches, when faculty necessary foe, iUM^i .'. , -.p;.

Erasures in a will, practice with regard to, 923. , :,Ickf\

Escheats ofbishops, 112, 113. . ;.,x ,; ^ .^^-T

INDEX. 10^7

EvidMice in quar$ impedii, 32, Addend. No. l.

to rapport preecnption for a pew, in an action at law. 101. 1M

IS vlUENCE^nncipleg of in ecclesiastical courts, 380.
1 erm probatory. 38 1 .

may be renewed or extended, 382, 383.
open to both parties. 403.

w;J^* "^* ^i"*®' '''^™' ^^27, and HtI.Tenn. 1830-^382.
Witnesses ; number required. 407, 300.

attendance of, how compeUed. 383.

" compulsory." 384.

commission to examine, 384.

dtation a£f oaJMiulttm, 384.
how examined, 384.

designation of, 384.

forms to be observed, 386.

examined in secret, 386, 407.

deposition to be read over, 385.

signed, 365.
. repeated, 385.

how cross-examined, 385.
nproduction of to be re-examined, 386.
competency, 388.

interest, when released, 389.

objections to, how and when tsffcen, 390.
credit, how attacked, 391 .

exceptive allegations, 299» 391 <

1. Ctmira personam, 391, 392, 393.

2. Contra dicta, 391. 394, 395. 396, 397.

contradictions to be predse, 398.
witness produced bv party objecting, 399, 400; 401.
witnesses compelled to answer, 408.

to produce documents, 408.
examined de bene esse, 408, 409.
pubhcation of. 403.

no fresh evidence after without leave, 403.
fects, novker perventa, 332. 404. 669, 660.
exhibits, 406.

evidence of foreign law, 409.
decree for confrontation, 410.
declarations. 411.
entries in family Bibles, 41 1.
letters addressed to an imputed lunatic. 41 2«
comparison of handwriting, 412.
evidence of handwriting, 412.
confidential commuiiications, 413.
confessions. 413.
▼erdicto at law» 414.
acts of feIony» 414.
written docaments. proof of, 415.
in custody of tbird parties. 416.
of opponents, 416.
of foreign law of marriage, 581.
of intention of testator, 929, 930.
where ambiguity on factum of will, 930.
where no patent ambiguity, 930.
Exceptive aUeffations. 391.
cause of defamation for untrue exceptions, 299-

lOdS INDEX.

EXCHANGE— of benefices, what, 41 1.

conrai>t, punUhable by 31 Elits. c. 6 — 417, 843. otd. ** Simony."
provisions for, by 65 Geo, 3, c. 147—418.

how altered and amended by 6 Qeo. 4, c. 8—418, 419.
commissions for, by 55 Geo. 3, c. 147—419.

extended by 1 Geo, i, e, 6, and 6 600. 4, c. 8—420.
Excommunicated persons not entitled to burial, 129.

wills of, 910.
EXCOMMUNICATION, trid. " Contumacy."
at common law, 421.
by 5 EUz, c. 23—421.
provisions of 53 Geo. 3, c. 127^422.
sentence of stiU to be passed, 423.
rigt^yicaoit, writ of, 423, 424. 427. Addend. No, 13.
cause to be set forth in writ, 428.
direction of writ, 428.
form of, 429.

writ, how quashed, if irregular, 429» 430.
objection to, when to be taken, 430.
error in, new writ to be had, 431.
first monition upon, 431.
party not dischargeaDle under 48 Geo, 3, c. 123—431.
escape, 431.

action for illegal excommunication, 432.
Executor, appointment of, 941.
by what words, 942.
may be by implication, 942.
may be general or limited, 942.

absolute or conditional, 942.
revocation of appointment of, 943.
substitution of, 943.
oflice of, transmissible, 943.
may refuse appointment, 943.
having acted, cannot refose, 944.
what acts make a man liable, 944.
how he may renounce, 944.
may retract renunciation, 944.
not after administration has passed the seal, 944.
may be cited to prove the wiU, 944.
how and where will to be proved, 945, vid. " Probate."
Executor and administrator,
who may be, 975.

diens, 975'
infants, 975.
married women, 975.
felons, 975.
lunatics, 976.
Executor or administrator becoming lunatic, 976.
sole executor becoming, 976.
executor in trust, 976.
Exemplification of copy of decree to Lord Chancellor, for process of
questration, under 1 Ar 2 Wm. 4, c. 92, Addend, No. 13.

INDEX. 1039

Factories British, marriages at, 575.
Factum of a will, what it means, 927.

of marriage, 325.
Faculties, allegation of, 36, vid, " Alimony.'
FACULTY — distinguished from dispensation, 319^ 320.

1 . Of public nature, for benefit of parishioners generally, 433.

ffeneral principles on whicn granted, 433.
for an organ, discretionary, 433.

majority of parishioners applying for, 434.

in cathedrals. 434.

in parish churches, 434.

providing for future expenses, 434.
for alterations and enlargements, 168, 169-
for taking down a church, 170.
to remove organ, 435.
to erect gaUerv, 170, 435
to level churcnyard, 435.
to make church patJi, 435. Addend, No. 8.

2. Of private nature, for benefit of individuals, 435.

for exclusive right to a pew, 189. 436.
to erect tombstone or monument, 187. 437-
to remove tombstone or monument, 188. 437-
to make a vault, 187. 437. 440.
to have tablet in church or chancel, 187* 438.
may be revoked, 440.
granted by local ordinaries, 440.
practice in granting, 441.
articles for proceeding without faculty, 441.
improper grant of, no ground for prohibition, 722.
Fees, table or, under Church Building Acts, 213.
division of, under, 208.
for baptism, 71.
burial, 128.

suits for, by parish clerk, 641.
Felon executor or administrator, 975.
Felon, will of, 910.
Felonious acts, when pleadable, 669*
Fleet marriages, legal oefore Marriage Act, 506. 530,

prevalence of them* 588.
Font, provision as to, by canon 81---68. I60.
Foreign marriages, 581.
Divorces.

law when to be pleaded, 66;^. 670.
how proved, 681.
FMerqffs case considered, 81, 83. 584.
France, law of marriage in, 573, 580.
of divorce in, 324, n. a,
FIRST FRUITS AND TENTHS,
regulated by 25 Hm. 8, o^ 20-^41.
how asaesaed, 442.
exemptions from. 443.
how to be paid or compomided for, 443.
value, how ascertuned, 443.
deductions, 443.

1040 INDEX.

FIRST FRUITS AND TENTHS-coiiImnmI.
amount for archbialiopt and biahopa, 444.
deans, 444.

rectors and ricars, 444«
receipts for, 445.
when paid, 445.

defaulters, how proceeded against, 445.
payment hy successor, 446.
Queen Anne's bounty, 446.
corporation for, established, 446.
constitution of, 447.

eighteen rules of, for distribution, 447, 448, 449.
r^^ted by later statute, 449, 450.
grants and augmentations by, 450, 451.
agreement with patrons for patronage, 452.
Fraud, effisct of, on mamage, 523. 533. 564.
on wills, 911. 913.

administration obtained Inr, revoked, 973, 974.
in eases of, minuteness of pleading allowed, 669.

Gallerjr, when faculty necessary for erection of, 170. 260.
Gestation, period of, not accurately fixed, 99.

opinion of Dr. Hunter, 99*

ordinuy period, 280 davs, or forty weeks, 99, 100

prorisions of code Ntg^oieon in respect of, 100.

Gardmer peerage case, 101.

writ devenire m^ndendo, 101.
Grierances, appealable, what are, pkk *' Appeal," 50.

form of appMling in respect of, 52.

cause of grievance to be stated, 53. 477*

court below, not restrained till inhibition, 53, 54.

Handwriting, comparison of, 412, 413.

similarity of, shght to authenticate disputed wiU^ 928.
Hedj^ and fences, neglect of, 309.
Homilies, book of, to be provided by churchwardens, 161.
Houses of clergy, repair of» 31 1 .

Identity, decree of confrontation in order to prove, 410*
Idiots, marriages of, 552,

wills of, 900.

who are, in legal consideration, 552. 900.
Imbecility or weakness of inteDect aflfecting wUl, 905.
Impotency, marriage vcndable for, 561, 562. vkL *' Maruaob«

in cases of bastardy, 78.
Impropriator, lay to repair chancel, 166, 167«

may DC discharged by custom, 166.

how oompdled, 167.

9»

INDEX. j04i

•et aside, children lUegitimate, Addend. No. 9. ' ^ - 738. n. «•

punuhment for, 648.

INCUMBENT-four things necessary to be, 453.

1. Presentation, 453.

who may be presented, 454.

ffuire deacon or layman, 454.
alien, 455.

provisions as to Welsh lanflruaffe, 45S
how made, 455.

by parol, 455.
revocation of, 456.
varying of, 456.

2. Admission, 456.

examination, 457.

time for, 459.

fefosal by bishop, 459.

if patron a layman, 459.
duplex querela, 460.

3. Institution or coUation, 461. 463. 72U

requisites preliminary to, 46 1»
mode and form of, 463.
by whom and where, 463«
how tried, 464.

4. Induction, 465. 721.

how it differs from insUtntion, 46^,
who may induct, and form of, 466, 467.
certificate of, 467, 468.
accepting second benefice^ first aaually void, 673-
actions by, 468. J »

evidence in, 469.
charges on benefice by, 469.

operation of 13 EUz. c. 10 ; 43 Geo, 3, c M» ■
469.
Cases,

Moyes r. Leake and another, 470.
Doe dem Bro/ughton ▼. 6ii%, 470.
Doe dem Wilkes v. Kamsden, 470.
Newland y. Watkin, 470.
Alchin V. Hopkins, 471.
Flwhtv. Salter, 471.
SaUmarshe ▼. Hewoitt, 471,

897.
Britten v. WaUe, 472.
Gibbons r. Hooper, 471.
Kirlew v. Butts, 473
Faircloth v.
Colebrook r. .^^
Infant patron, who to
mamage of, 651.
executor or " ^ ^
guardian 0^
INHIBITION

tobesiffnedbf
grant oCluN ~
when it c
laju ncti«B

1042 INDEX.

INTERVENER— what, when allowed, and eflfiBCt of, 479» 4S0,
in matrimonial causes, 479» 481.
in causes of benefice, 480.
in will causes, 480. 948.
nature of interest, 480.
time of intervention, 481.
JnvBntory, executors and adminiaferaton diraeted to make, 741. 976.
delivering of, a condition of administration bond, 976.
who may call for, 977.
who to exhibit, 977>
what it ought to contain, 978.
when it may be called for, 978 •
objections to, 979.
Ireland, marriages in, 586.

not governed by marriage acta, 588.
persons residing or domiciled in, may be attached for diadbedieiioe of
orders of English Ecclesiastical Courts, Addmd. No, 13, wide " Com-

TUMACY."

significavit in such case, to be directed to the Lord Chancellor of Irdsad,

Addend. No. ) 3.
ecclesiastical judges in Ireland like manner to signify disobedience of

their orders to Lord Chancellor of England, Addend, No. 13.
estates in Ireland may be sequestered to enforce obedience of orden,

made by judges of English Ecclesiastical Courts, Addemd. No. 13.
ecclesiastical judges in Ireland, may signifv disobedience of their orden

to Lord Chancellor of England, who thereupon may aaquerter ml

and personal estates in En^^d, to enforce obedienoe ol tiie ssow.

Addend. No. 13.
Isles in churches, what,
repair of, 168.

burying, and monoments in, 127. 163.
pews in, 188.

persons not parishioners prescribing for pews in, 189.
Isaue in prohibition, 757.
Issue may be directed hj judicial committee, 47.
tried at bar, or niiipmu^ 47.

out of Chancery, not granted to try bounds of paiiahea, 41S.
affirmative, admits the libel or articles, 656. 381.
negative, denies the libel or articles, 656. 381.

JACTITATION OF MARRIA6E--^82.
a criminal proceeding, 482.

formerly a mode of trying validity of marriage, 483.
three defences to charge of jactitation, 483.

1. General denial of the words, 483.

2. Admission of, and pleading marriage, 483.

3. Admission of, but pleading license to aaeume tbe ebmcter of
wife, 483.

Duchess of Kingston's case, 482, a.
sentence for defendant, a valid marria^ may be decreed* 484.
for plaintiff, may impose silence, 485.
Jews, marriages cf, 537. 539. 579ff 580.
Judicial committee of Privy Council, 44.
substituted for Court of Delegates, by 2 & 3 Wm. 4, e.
constitution of, by 3 & 4 Wm. 4, c. 41—45.
who to be members of, 45.

INDEX. 104S

Judicial committee of Priiry Council,
four members to be present, 46.
majority to decide, 46,
otlier members may be summoned, 46.
may examine witnesses, vivd voce, 46.
may bear additional evidence, 46.
may direct feigned issue, and direct aa to the reception of eTideaea and

examining parties, 46, 48.
witnesses to be examined on oath, 47.

liable to punishment for perjury, 47.
provisions for tr3ring issues and for new trials, 47» 48.
orders and decrees to be enrolled, and costs, 48.
reference to master, 48.
may summon witnesses, 48.
Jury, clei|fy cannot be compelled to serve on, 341.
Jms Pairmai4$f what, 20.
proceedings in, 20.

LAPSE — ^what it is, and when introduced, 485, 486, »• a.

principle of, 485, 486.

devolution of right to present, 485. 489.

how incurred, 486, 487.

time in respect of, how reckoned, 488.

when it begins to run, 488.

same person, patron and ordinary, 488*

notice of avoiaance, 489.

avoidance occasioned by union of churches, 489.

provisions of 1 & 2 Viet. e. 106, in respect of, 490.

avoidance on aimoniacal contract, six months' notice, 843.
Lateran Ck>uncil, Canons of, adopted into Canon Law, 66. 486* 678.
Law, genera], need not be pleaded, 670. 664.

peculiar or foreign, when to be pleaded, 664. 670.

foreupi, how proved, 409.
LECTURERS— what, 491.

seem to have come in with Reformation, 491* »• a.

semb. not generally to be called ministers. Addend, No. 10.

may be by immemorial custom or statute, 491.

if not, must be nominated with consent of incumbent, 491, 402.

endowment, when it leads to presumption of custom, 492.

election of, vide " Parish," 492, 493.

to subscribe thirty-nine articles, 64.

entitled to security for stipend, under muaidpal act,

election of, 492.

right to vote in election of, 493.

equitable right of nomination, 493.

license by bishop, 494.

mandamus to license, 494, 495.

requisites to obtain license, 495.
Legades, suits in spiritual court £ar, 727.

if out of land, not, 727*
libel, vide " Plbadino."

spiritual court bound to give copy of. 7^1
License, marriage by, vide " Maaai4nr '' &^^

special, what, 526, 529.

1044 INDEX.

License — continued.
bow obtained, 529.
to wbom usually granted, 529.
Litigious, cburcb wnen so called, 19.
Liturgy, Englisb, 65, n. a. 762.
history of, 761, n. a,
bow regelated by statute, 762, 763.
LORD'S DAY— fairs and sporto on, 496.

exercising trade of butcber, 3 Car, I, e. 1— 497'
ordinary callings, 39 Car. 9» e. 7—497.
contracts, 498.
birings, 49S.
sales, 498.

by agents, 498.

contract must be complete, 498.
exposing to sale, 499.
excepted cases by statutes, 499» 600, 501.
hackney coaches, 500, 501.
serving process on, 502.
recovery of penalties, 503.
Lunatic, who considered to be in law, 901, n, 6.
lucid interval, what, 552, 902, 903.
distinction between delirium and flx«d insanity, 903.
rationality of act, test of capacity, 902, n. a.
partial insanity, meaning of phrase, 562, 904.
patron of benefice, who to present, 16.
marriages of, vid. *' Marbiaqb,'* 552.
effect of commission of lunacy on, 553.
lucid intervals and partial ittsani^, 553. 904.
wills of, 901 .

executor or administrator, 976.
becoming so after appoiirtment, 976.
incumbent becoming, committee may pay stipend of corate out of

profits of benefice, 283.
committee of may institute proceedings for divorce, 347.

Manchester, new cathedral at, 142.

new diocese at, 142, 366.
Mandamus to admit to parish oflices, 626, 627» 638.
to restore, 629.

not granted to compel administration where the ordinary has dis-
cretion, 957.
nor to particular person, where several entitledj 967*
what a sufficient refusal to |^und application for, 633.
granted if a first election void, 633.
Marines, wills of, 913, ». a.

Marriage— English common law of prevails in Ireland and many of the
colonies, 581, 582.
intervention of a priest at eommon law, semb. necessary, SSI, eiseq,
MARRIAGE— 605.

1. Of the contract, 506.

Qmtre, civil only, 506, and vid, 581, s.

2. By banns, 508.

mode of publication, 509.
place of, 509* 510.

INDEX. 1045

MABBIAGBf—ctmtimted.

churches and chapels with chapelries, 510. 629, 530,
in populous places, 510. 529» 530.
under Church Building Acts, 510. 529, 530.
demolished or repairing, 511 .529,530.
extra-parochial places, 511. 529, 630.
residence of parties, 511.

living in different districts, 512.
no iMToof of required after marriage, 612.
notice to minister, 512, 513.
of void publications, 513.

unaer 4 Geo. 4, c. 76—514.

both parties cognisant of fraud, 515.
one party only cc^nisant of, 515.
under 26 Geo. 2, c. 33— -516.
total variation of name, 517.

names acquired by r^ute, 519, 520, 521.
Quare fraud to be shewn, 514.
partial variation of name, 521.

different degrees of variation, 522.
evidence of nrand, 523.
under 3 Geo. 4,c. 75—524.

affidavits required, 524.

3. By license, 525.

license, what, 525.
parties of full age, 525.
underage, 526.
consent, ^at necessary, 526. 543. 549.
cases of illegitimate minora, 527.
wrong name in license, 528.
special licenses, 528, 529.

4. Place and hour of mazriages by banne, and by surrogate's license, 510,

511.529,530,531.
marriage, when void in respect of place. 531.
time of, canonical hours, 532.

5. Marriages, under 6 & 7 fVm. 4, c. 85 — 533.

registrar's certificate, 533.

how obtained, 534.

issue of, 535.
registrar's license, 535.

residence, and consent in cases of minors, 536.

oath, 536.
place of celebration, 536.

registered building, 537.

superintendent's office, 537.
time and form of celebration, 537, 538, n. a.
registration of, and vid, " Rsgibtbr," 539«

6. Dissent to banns, forbidding certiiicates and caveats to licenses, 539.

caveats to licenses, 539.

consent not neceasary in banna, 540,

dissent, how declaroa, 540.

forbidding certificate under 6 & 7 Wm. 4, c. 85 — 540.

manner of, 541.
caveats, to surrogate's license, 541.

to registrar's license, 541.

observations on, 542, 543.

7. Of the consent necessary to marriages of minors by license, 543^

parents, 543. 549-

1046 INDEX.

MARRIAGE— coiiftiiKA/.
guardians, 544.

how appointed, 544.
illegitimate minora, 544.
consent may be implied, 544.
maybe retracted, 545.
subsequent, cannot ralidate, 545.
consequences of want of consent, 545.

retroepectiye clause of 3 Oto. 4, c. T5 — 545, 546, 547.

8. Of Toid and voidable marriages, distinction between, 3S6. 549» S50.

Void.

1. impnberty, 551, 552.

of the age of marriage by the Oanon Law, 552.
by the Code Nepoleon, 552, ». a.
in the United States, 552, ». «.

2. idiotcy and lunacy, 552.

lucid interrals and partiaiinsanity, 553, andmcf. 901, 902. 001.
commission of lunacy, effect of, 553.

3. bigamy, 554.

second marriage contracted abroad, 554.
marriage after foreign dirorce, 549* 555.
evidence in cases of, 556.

4. consanguinity or affinity, marriage after 3 1st August, 1835 —

556.
illegitimate relations, 55/.

5. non-compliance with provisions of Marriage Acts, 558. 514.
516, et seq,

cases before 4 Oeo, 4, e. 76 — 558, 559» 560.
within that statute, 531. 560.
under 6 & 7 Wm, 4, c, 85-— 561.
Voidable,

1. impotency or frigidity, 326. 561, 562.

oefects supervening after marriage, 663.
inspection and certificate, 563.
trienniaUt cokMiatiOt 562. 564.

2. force, 564.
fraud, 564.
error, 565.

pertoMBf 565.

fortunm, or eondUUmU, 565.

quaUtatit, 565.

3. consanguinity, before 3l8t August 1835«-566, AddauL No, 9-

4. pre-contract, 566.

9. Consequences of irregular marriages, 567.

punishments and forfeitures by 3 Geo. 4, e. 75 — 568.

forfeitures by 4 Cho. 4, e. 76, and 6 & 7 Wm, 4, e. 185--531. 568.

information to be within a year, 569*

settlements on marriage void, 569*
punishments by 4 Creo. 4, c. 76 — 570.

by 6 & 7 fVm. 4, c. 85, and I Viet, c. 22—570, Sfl, 572.

10. Foreign marriages, 572.

the kx loci to govern, 573. 576.

exceptions to that rule, 574. 576.

marriages at Madras, 474.

with the army abroad, 574, 575.

ambassadors' chapels, 4 Qto, 4, o. 91 — 575.

British factories, 575.

of persons in suite of ambassadors, 575.

INDEX. 1047

MARRIAGE— «ofilt»ii«/.

of minora abroad, 576.
ffeneral result of aathorities, 577.
Scotch marriaffea, 578, 579.

marriages of Jews and Quakers, 537. 539* 57 9» 580. 59 i.
marriages in France, 580, 581.
proof of marriage according to foreign law, 409. 581.
Matrimonial causes, marriage to be admitted, or denied, 382.
Metropolitan power of archbishops, 113.

Monition, what sufficient service of, under, 53 Gfo, 3, c. 99 — 698.
what sufficient imder I & 2 IVm. 4, c. 92, Addend, ^o. 13.
what sufficient for proceedings t» pcenam. Addend, No. 12.
to stay dilapidations and do repain, 318.
Month, how computed, I 8i 2 Vict, c, 106, $. 121 — 807.
Monuments and tombstones, wd. "Tombstones," 162. 187.

defacing, 162.
Ne Bweat lUgno, writ of, in cases of alimony, 40.
New trials of issues directed by judicial committee, 48.
costs of, in prohibition. Addend. No. 15.

Nomination to benefice, as distinguished from presentation, 5.

to offices in parishes, 626.

by proxy, muere, 625.
Non-access, old doctrine of, exploded, 78. 83.

consideration of modern law of, 79» et seq.

cases on that question, 8\,et aeq.

principles of, as laid down in the Banbury peerage case, 88.
NOTARY— when first known in England, 595.

anciently a scribe or scrivener, 595.

how caUed by civil and canon law, 595.

by whom appointed, 596.

provisions oi 41 Geo. 3, c. 79 — 596.
Noviter perventa, facts may be pleaded after publication, 394, 396. 404. 660.
Nullity of marriage, pleadmg in cases of, 663.
Nuncupative wills, 924.

formalities in requisite, 924.

no will except in writing, since 1st January 1838 — 924.

OATH — different kinds of, in the civil and canon law, 598.

1. oath ex officio, 598.

whereby a person is called on to pur^e himself of crime, 598.
unlawful in criminal matters, by 31 Car. 2 — 598.
not allowed in answera in criminal suits, 599.

2. oath decisory, 599.

become obsolete, 599.

3. oath of calumny, 599.

of malice, 600.

4. oath suppletory, 600.

used in cases where there is only semiplena prehetHo, 601.
oath affainst simony, 836.

of executor on proving a will, 945.

104S IND£X.

Offertory money, 153, 161.
Official principal of the Court of Archea, 62.
jurisdiction of> 62.
settled by 23 Hen. 8» c. 9-^2,
Offices, prohiDition in cases of title to, 723.
Options, what, 8. 112.

go to representative of archbishop and not to succeaaor. 8. 112.
Oratory, how it differs from a church. 149-
ORDINATION— 601.
orders, what, 602.
in Romish church, 602.

qualifications for in the church of England, 602.
age, 602.
title, 604.

provisions by Canon, 83, 604.
letters dimissory, 604.
letters testimonial, 604.
examination, 605.

by whom, 605.
times for ordination, 606.
place, 607.
form of, 607.

oaths and subscriptions necessary, 607> 608.

general instructions for candidates for orders, aa to what forms to bi
observed, 608, ei $eq.
Ornaments in bishop's chapel go in succession, 139.
of the church, 159.

what retained at Reformation, 159.

interference of temporal courts prevented by 13 Rdw. 1, sf.4— 1^
communion table, 159.
pulpit, 160.
reaaing desk, 160.
surplice, 160.
font, 160.
charity box, 160.
bread and wine, 161.
beUs and ropes, 161.
bier, Bible, Common Prayer, 161.
book of homilies, I6I.
register, vid, title " Rbgistbr," I6I.
table of prohibited degrees, I62.
of commandments, 162.
rate for, 990.
Outlaws, wills of, 910.

Papist patron, who to present, 17, Addtnd, No. 2.
Papists, baptisms of, 71.
Parishioners, what, 62 1 .

Sersons who pay rates, whether they inhabit or not, 621,
SH--parocAta, what, l63, n. a., 613.
when country divided into parishes, 613, 614.
number of in reign of Edwurd the Third, 614.
boundaries of^ 614.

perambulations, 614, 615.
entry of houses, 615.

u. enable dflfeodaiit W «m-
,rty may croM-e^wm"-

666-

.v,il. r.68, M9-

1050 INDEX.

PECULIARS— what they are, vid. " Appba^l*"

1. Royal peculiars, 42, 43. 643.

exempt from all jurisdiction, 643.
except the kinff in chancery, 653.

2. Of archbishops ana bishops, 43. 644.

origin and jurisdiction of» 644» 693.

3. By composition^ 644.

aecumuiativif, 645.

privatM, 645.
provisions with regard to in Church Building Acta* 645» 646.
recommendation of commissioners as to, 646.
Paws in churches, summary of law of, 171.

few before the Reformation, 172*

ordinary has the disposal, 171. 173. 1 79* 184.

churchwarden, his officers for that purpose, 171. 173* IM.

prescriptive right to, 173.

for house out of the parish, qvuere, 189.

may be transferred with a house, 173.
or apportioned, 174.

priority or seat maybe prescribed for, 174.

action for disturbance of, 172. 175.

declaration in action for, 175, 176, 177.

suit for perturbation in spiritual court, 172. 175. 177.
is a civil suit, 178.

prescription the only right against the ordinary, 178.

possessors of, entitled cmteru parUnu to a preference, 178. 160.

arrangement of, 179.

authority of ordinary not to be capriciously exercised by thi
churcnwardens, 180. 184.

families not to be mixed unnecessarily, 179*

equitable claims to not to be disregarded, 179i 180.

under Church Building Acts, ItjO. 212.

not to be let without a statuteable authority, 180. 213.

objection to arrangements hj churdiwardena, how made, 181,181

license of churchwardens gives no permanent right, 184.

qtuere, whether churchwardens by custom have power independeatlf
of the ordinary, 185.

chance], semb, the power of the ordinary extenda to pews in, 186,
187.

faculties for, 189, vid. "Faculty."

evidence to support prescription for, 191.

possession or user sufficient at common law, 191.

longer possession seems reauired in the spiritual eovot* 193-

provisions for under Chnrcn Building Acts, 212 ; vid. ''Chuici
Building Acts,"
PLEADING,
causes.

plenary, 652.

summary, 652.
libel, 653.
articles, 653.
admissibility of may be objected to, 654.

facts in, how far assumed to be true, 654.

court not bound by admitting, 654, 655.
eotUestatio litis, 656.
personal answer of defendant, 656.

(qualities of, 657.

in criminal cases cannot be had, 657*

INDEX. 1051

PLEADING— €«m/ifiiiMr.

causes may be heard on, 658.
counierpleas,

allegation responsive, 666.
allegation rejoining, 658.
supplemental allegations, 322. €58, 659*

in adulterjr not limited to original charge, 332. 659*
after pubhcation, 659.
facts nofriter perventa, 660.
when aTerments not sufficiently specific, 660.
criminal charges.

whole case to be stated at once, 661.
latitude with regard to exhibits, 661.
libel.

fonn of, 662.
what to contain, 331. 662.
how far limited by citation, 662. 666.
distinct averment of complaint, 331, 662.
need not be minute, 663.
law when to be jdeaded, 664.
articles, form of, 664.

in brawling and smiting, 120.
limited by pf-ttiertim, 664.

charges to be laid sufficiently precise to enable defendant to con-
tradict, 665.
allegations in answer, or counterpleas, 665.
should contain legal answer, 665.

need not contain nets to which party may cross-escamine, 666.
allegation rejoining, how limited, 667*
exceptive allegations, 402.
matters irrelevant, 667, 666.
history of the case, 668.
matter introductory and explanatory, 668.
minuteness in cases of fraud allowed, 668, 669>
felonious acts how hr pleadaUe, 669.
verdicts in courts of law, 332. 670.
general law need not be pleaded, 670.
peculiar laws or customs, hew fiiir, 664, 670.
foreign law should be pleaded, 664, 670.
deeds or documents, substance only to be set out, 671*
PLURALITY— provisions of 21 Hen. 8, e. 13*~673.

of I 4r 2 Viet. e. 106—674.
one benefice and cathedral preferment, 675.
two or more benefices or cathedral prdforment, 675.
archdeacons, 676.

offices in catliedrals generally, 676.
depends on population and annual value, 676, 677*

scale ot, 677.
license or dispensations, 677i 678.
appeal, 677> 678.

annual value, how computed, 678.
cathedral preferment, what, 679.
benefice, what, 679*
Presentation to benefices may be by parol, 466.
prerogative, 19.

may be varied, and is revocable, 19. 456.
Presentments at visitations once a year only, 897.
Privy council, vid. " Judicial Committee.'*

1052 INDEX.

•

PROCESS— Citation, suit ccHnmenced by, 68a
mandatory, 680.
decree with intimation, 680, 681.
to see proceedings, 681. 689.
service of, in ordinary cases, 681.
by whom, 681.
mode of service, 681.
service vii$ ei modis, 68 1 .
how pnblished, 682.
appearance to, 682.
absolute, 683.
under protest, 683.

extension of protest, 683.
Citation, what it ought to contain, 684.
l.Titleof judge, 685.

consequence of mistake in, 685.

2. Names of parties, 685.

what certainty required, 686.

variance, 685.

residence, 686.

of coiporations, 686.

3. Cause ot action, 686.

how suitlimited by statement of,6A6,6a7.

4. Day of apnearance, 687-
how obtainea, 680. 687.

of a novel kind to be moved, 68a.
inhibitions, 689, 690.
bUl of citations, 691.
exceptions in, 692.
what an inhabitancv, 692.
party may waive objection^ 693. 752.
to compd specific act to be done, 693, Adimti. 12, 13.
monition in nature of munmons, 694.

not absolute in first instance, 694, Mdtmi. 12, 13.
must be personal service, 693* 694.
decree for personal answers, 695.

service on proctor sufiicient for many puipoaea, 696.
not sufficient far imprisonment, 696, AddmtL No. 12.
siffniifieaivit, 698.
monition, eervice of, 698, 699.
under 2^3 Wm. 4, e. 92, tnd. *' Contumacy," Adimd. No. 13.
against peers and members cf the House of Commons, Urid,
against persons out of jurisdiction, Addmtd. No. 13.
in cases of continued refusal to obey order or deowe, AdUlemd. No. 13.

sequestration of real and personal property. Addend. No. 13.
no action for things done under authority of act, after tiuw

months, ilddeiKL No. 13.
what sufficient service to bring party into contempt, Addend. M
12, 13.
PROCTOR— what and how appointed, 699.
appointed ad Ktem, 700.

specially, to do particular acts, 700.
proxy, nature and extent of, 700.

not revocable after comtntmtio UHe, 700;
not essential in all cases, 700, 701,
by whom given, 701.
married women, 701.
minors, 701.

INDE^. 1053

PROCTOR— eon/tmitftf.

husbands for their wives, 701.
extent of, 702.
substitation of, 702.
is domima litis, 702. 704.
court cannot notice attomies or solicitors, 702.
bills of costs not taxable, 702, 703.
may be referred, 703.
pronibition in respect of, 725.
under control of court, 703.
ought to be furnished to client, 703.
no mandamus to restore, 704.
may be suspended for misconduct, 704.
answers by, 704.
how admitted, 705.
stamp and annual certificate, 705.
may not act as magistrate, 706.
exempt from parochial offices, 706.
Procuration, nid. "Proxies."
Probate of wiUs— where to be had, vid. '* Bofur notahOia.**
proof of wills, how made.
1. In common form, 945.

executor to appear and swear to will, 946.
conunission to swear, 945.
when f(ranted, 945.
to whom directed, 945.
how executed, 946.
if will complete, 946.

incomplete and unfinish^, 946, 947.
witnesses, 946.

consent when neoessarv, 946, 947.
if crown interested, 947.
cases of slight imperfections, 947.
3. In solemn form, 947-
what it means, 947.
party interested may ahr*ys call for proof in solemn form«

947.
no time limited for so doing, 947.
executor may prove in solemn form in first instaiice, 947.
next of kin entitled to call for proof in solemn form, 948.
legatee also entitled, 948.
creditor no such right, 948.
costs, 262* 948.
will in what form to be proved, 948.

wholly or in part destroyed, 948, 949.
probate lost, exemplification granted, 949.
in what diocese granted, 967, 968.

prerogative probate, when necessary, 967* 968, vid. " Bona notabUia."
revocation of, vid. " Administration, revocation of," 973.
PROHIBITION— history of the writ, 707.
what it is, 709.
when granted, 710.

pro d^fMujwrisdictumig, 710.
in respect of the court, 710.
in respect of the matter of the suit, 710.
matter merely temporal, 7 U .
matter ecclesiastical, 712.
want of jurisdiction, 7 1 3.

1054 INDEX.

PROHIBITION— conlMMMl.

exceeding jnriadictioii, 714.
criminal cases* 715.

capital, 717.

perjury, 717.

defamation, 718.

brawling and smiting, 130.
cases partly temporal, 718.
concurrent juriaoietion, 719-
matter ecclesiastical, right in question tsmponl, 790.

right of presentation, 721.

induction, 731.

title to tithes, 723.

between spiritual persons, 783.

title to offices.

church, or chapel, 734.

highway, 734.

modus, 724.

heir, 724.

boundary of parishes, 734.

contracts, 736.

fees and stipends, 73ft.

legacy out of land, 736.

trusts, 726, 727.

2. Pro drfeoiu iriaiumii, 737.

umkIus, prescription, or cnstooB, 738.

not unless pleaded, 730.

court proceeding to try, 731*
custom, &c. set .out bad, 731.
custom not denied, 733, 733.
does not necessarily put an end to the suit, 79S.
finding of custom, &c. by jury, conclusive, 733.

3. For proceeding as the l&w does not warnoit, 733.

1 . In trial of temporal incidents, 734.
to be tried as at law, 735, 736.
proof sufficient at law refused, 736.
in ecclesiastical incidents, judges of their own law and prac-
tice, 737, 738.
3. Refusal of legal defence, 739.

defence must be of temporal cognisaace, 741.
sufficient at law, 741.
3. Erroneous construction of statutes, 749.

not before decision in ecclesiastical court, 744.
Quomsqme, 744.

rdfusing copy of libel, 745.
pending trial of custom, &c. 745.
of tempond incidents, 745.
Qhooc^ 746, 746.

when to be a^^ilied for, 746, 747.

when unwanranted step taken, 747.
After sentence, 748.

1. Want of original jurisdiction, 749.

defect need not appear on pleadings, 740.
where there is general jurisdiction, 749«

defect must appear on proceedings, 749.
3. For proceeding as law does not warrant, 749.
Exceeding jurisdiction, 749.
Trial of temporal incidents, 750.

INDEX. 105$

PROHIBinON-H*ofi/uNieil.

erroneous constmctioii of statutes, 750.
not jwo defectu triaiumis, 751.
nor for citing out of diocese, 752.
after execution, not grantable, 759, <

after appeal grantable, 752.
bow obtained, 753. 757*

1 tVm. 4, c. 21—753.
practice before statute, 754.
dedaration, 755.;
pleas, 755. 757.

several majr be pleaded, 755.
damages, 755.
costs, 756» 757.

effect of new rules on. Addend, No, 15.
issue, 755.
verdict, 757.
amendments, 757.

{'ndgmenty 757.
»y what courts granted, 758.
wno may have, 758.
who may join in the writ, 750.
writ of error, 759.
contempt in disobeying writ, 759.
Protest, extension of, what it means, 683.
Proxies, or procurations for visitations, what, 898*
origin of, 898.
fixra sum now paid, 898.
paid for impropriations, 898.
suable onlv in spiritual court, 899.
only one for parsonage and vicarage, whan, 899>
donatives oav none, 899-

paid to arcndeacone in year of visitation by bishop, 899.
Proxy, vote by at parish elections, 625.
Proxy of consent, vid. " Proctor."

decision founded on not set aside, unless fraud shewn. Addend, No. 14.
PUBUC WORSHIP, vuf. "Worship," 157,158.
Publication, pleading after, 659.

no evidence after without leave, 403.
of notices, &c. in churoh, now prohibited. 767.
Pulpit, 160.
Purchaser of advowson when he may present, 14.

Quakers, marriages of, 537. 539. 579. 580. 694.

registry of marriajOfes of, 779. 783, 784, vid. " Rbqistbb."
excused from servmg office of churchwarden, Addend. No. 6.

Qnare Impedit, proceedings in, 22. vid. " Advowson."

Quare non Admisit, writ of, 30. 34.

Queen Consort may make a will without consent, 960.

Quo Warranto, party applying for, must shew that those who voted for the
party elected had no right to vote, 633.

Qnoad, prohibition, 745.

Qnousque, prohibition, 744, 745.

1056 INDEX.

Reading desk in churches, 160.
" Reading in," fonnof, 466.
Recrimination in adulterv, 333, 334, 335, 336.
cruelty cannot be pleaded in, 345.
may he pleaded at any time before sentence, 334, 335.
single act proved in, will bar a divorce, 334.
no bar to criminal proceedings, 335.
solicitation of chastity not sufficient, 336.
divorce may be founaed on recriminatory, plea, 336.
Reformatio Legim EcclesiasHearum, a book of authority as to practice of thi

times, 136.
Registrar, reference to, by judicial committee, 48.

of judicial committee appointed by the crown, 48.
Reimburse, rate to, vid, " Church Rate,'' 938.
Rejoinder, vid, " Pleading," 667.
Repair of churches, 163, n. a.

in care of archdeacon, 16S, Addmd, No, 7.
of monuments in, 162.

chancel, how far a discharge for repair of church, 167.
in cases of unions of churches, 168.
of isles and particular pews, 168.
stateof to be viewed every tiiree years, 16S.
of churches under Church Building Acts, 902, 303.
of churchyard, 237.

by whom done in the Anglo-Saxon period, Qiuere, 163, n. a.
Semb, not out of tithes since parochial endowments, 163, ». a.
to be inquired into at visitations, 896.
REQUEST^ LETTERS OF,

exception in bill of citations, 789*
judge obUged to receive, 789.
may be of^red by two judges conjointly, 790.
ordinarily lie in same course as appeal, 790, Addend. No. 10.
in cases of brawling and smiting, 123.
Rescinding conclusion of clause, when allowed, 332.
Residence liouse, procuring of, under 58 Geo, 3. c. 45 — ^206.
R£GISTER—by the Canon law, 770*
origin of, 770.
by 52 Oeo, 3, c. 146, repealed as to marriages, 771.
books transmitted to clergy, 77 li 772.
entries, 772.

ceremony out of the parishi 772.
books kept by rectors, 8cc. may be removed, 773*
to make entries, 772.

for inspection and search, or copying, 77^*
to be produced in evidence, 772.
copies transmitted to registrar, 773.

form of, 773.
registrars to report to bishop, 773.
churchwardens to certify defaults, 773.
extra-parochial places, 773.
search, 774.
penalties, 774.

making false entries, 774.

forging, &c. parts or copies of registers, 774*

INDEX. 1057

destroying or defacing, 774.
certifying false entries, 774.
amending erroneous entries, 774.

7how to be done, 774.
fees, 74.

no stamp to duplicates or copies, 774.
penalties divided, 774.
Civil register of births, deaths and marriages, 6 & 7 fKm. 4, c. 86, and I Vict.

c, 22—775.
Registrar general, 775.

may appoint deputy, 775.
may msdie regulations, 775.

annual abstract of births, deaths and manages, 77S.
Registrar's districts, 775.

guardians of unions, to make, 775.
neglecting, poor law commissioners may, 776.
districts to be published, 775.

to be called by distinct names, 775.
places not parts of unions may be included, 776.
districts mav be united, 776.
or diWaed, 776.
Superintendent and district registrars, 776.

clerks of unions, if qualified, to be superintendents, 77^-
refusing, guardians to elect, 776.

and supply vacancies, 77^-
may appoint deputies, 776.
deputies to act till successor appointed, 776.
civilly responsible for their respective deputies, 777
removed, notice of removal to be publisned, 777.
appointment of, free from stamp, 777.

registrars exempt from juries, corporate or parochial offices, 777.
Superintendent registrars' offices, 777 *
provided by guardians of unions, 777.
who may borrow money for, 777'
refusing^ to repair, lords of treasury may, 777.
till provided, rooms substituted, 778.
office taken to be within the district, 778.
District registrars, 778.

' and deputies to dwell within the district, 778.
Register boxes, 778.
Register books of births, deaths and marriages, 778.

of births and deaths to be furnished to superintendents, 778.
for use of district registrars, 778.
for marriages, 778.

to incumbents, &c. of parishes, 778.
to registering offices or Quakers, 779.
to secretaries of Jewish synagogues, 779.
to registrars of marriages, 779.
superintendent on removal to deliver books to successor, 779.
refusing to do so may be committed, 779.
Births. 78<),

form of registry by 6 & 7 H^m. 4, c, 86, s, 18 — 780.
place of, maybe added, 780.

who to give information, 780. _

registry to bo made within forty-two days, 780. ^

if forty-two days expired, mode ofBegistry,780.
no registry after six months, 781.

Y Y Y

1058 INDEX.

addition to baptismal namt*, 781.
certificate of minister, 781.
Deaths, 781.

form of rejpstry, 781.

place of death may be added. 782.
who to give informatioQ, 7S2.
in cases of inquests, 782.
certificate for barial, 782.

form of, 782.
order of coroner, 782.
form of, 782.
births and deaths at sea, provisions for, 793.
Marriages, 783.

registry of to be made in duplicate, 783.
by whom to be made, 783.
form of, 783.

how made under the several acts, 784.
information in respect of, how obtained, 7S4.
Quarterly accounts to be fumiahed by reaistFan, 784.
Certified copies, sent to superintendent, 784.
by registrars of births and deaths, 784.
form of marriage register, 785.
superintendent to verify and sign, 766.

if no entrv, registrar to certify, and superinttndent to eountersign, 7S5.
by incumbents, &c. of marriages, 785.
forwarded by superintendent to registrar general, 7S5.
Sureties and certified copies, 785.

searches allowed and copies given, 785.
searching indexes, 786.
Evidence, 786.

certified copies to be sealed or stamped, 7S6.

no register of birth to be evidence, if made forty.two days after, 786, 7^7

except registered in mode prescribed, 786,
none eviaence if made six months after, 786.
nor unless signed by informant, 767.
Penalties, 787-

registering birth after forty-two days, except in mode reqobred, 787

after six months, 787*
burying without certificate, or order of coroner, 767.
refusing to register birth, death or marriage, 787.
losing or injuring register book, 767.
recovery of, in a summary way, 767.
appeal, 787.

notice of, 787*
recognisances, 788.
costs, 788.
Punishments, 788.

wilfully making any false statement, 768.
wilfully destroying or injuring register book, 768.
making or counterfeiting a register book, 788.
inserting false entries in, 788.
giving false certificate, 788.

nilse copies or extracts, 788.
forging or counterfeiting registrar's seal, 768.
Entries, amending, 788.

errors in entnes may be amended, 789.
mode of amendment, 789.
provisions by statutes, 792.

INDEX. 1059

RESIDENCE— necessity of, by Canon law, 791.
Non-residence, by 1 & 2 Vict. e. 106 — ^792.
wilful non-residence, 793, ». a.
absence for three months at one or more periods, 792.
What sufficient residence^ 793*
incumbent of two benefices may reside on either, 793.
houses purchased by Queen Anne's bounty, 793.
vicar or curate in rectory house, 793.
license of bishop, for other than house of residence, 793.
prebendary, &c. of cathedral, 794.

of collegiate church, 794.
fellows of Eton and Winchester, 794.

not to be absent more than five months, 794.
Penalties for non-residence, 794.
absences, not exceeding 6 months, one-third annual value, 794.
6, not exceeding 8 months, one-half, 794.
exceeding 8 months, two-thirds, 794.

for one whole year, three-fourUia, 794*

Value, how ascertained, 704.

bishop or the court may inquire into, 795.
decision as to, by bishop, nnal, 796*
Recovery of penalties, 795.

incurred by spiritual persons holding benefices to be sued by

authority of the bishop in his court, 796.
evidence of incumbency, 76&i

incurred by persons not spiritual, or spiritual not holding benefices,
by action of debt, 795.
Penalties to be enforced in bi8hop*s court by monition and sequestration,

795.
Application of profits of living during 8eauestration,795.

to improve benefice or house of resiaence, 795.
if not provided for to be paid to treasurer of Queen Anne's

bounty, 795.
to be recovered within the year, 795.
fees and costs in suits for, 799.
Residence maybe enforced by monition and sequestration^ 798.
thirty days between service and return of monition, 798.
retnm of fact to be verified, if required, 798.
if no return made, 798.
if the return not satisfisclory, 798.
if the return, or facts, not verified, 798.
Bishop may order tesidence thirty days from service of roonition,798.
may sequester profits on non-compliance, 799*
may direct application of profits, 799.
1st. to serving cure, 799.

2ndly. to penalties, if any, and coats of monition, 799.
3dly. to repairs, 799*

4thly. to pay creditor's sequestration, if any, 799.
5thly. to augment or improve the benefice house or
gldi>ey or to be paid to Queen Anne's bounty, 799
may direct any portion to be repaid, 799.
appeal to archoishop, 799.
sequestration in force during appeal, 799.
costs to be paid notwithstanding order obeyed, 799.
wilful absence after commencement of residence, sequestration
may issue without further order, 790.
appeal as in case of first order, 800.
sequestration for a year ; or two in two years, benefice void, 800

YT T 2

1060 INDEX.

RESIDENCE— cofi*inti«^.

remission of penalties by archbishop or bishop» 800.

statements of cause of, by archbishop to council; by bishop to

archbishop, 800.
decision of archbishop final, when, 800.
Exemptions from, 796.

heads of colleges or halls at Oxford or Cambridge, 796.
warden of university of Durham, 796.
head master of Eton, Winchester or Westminter, 796.
principal or professor of East India College, 796.
persons actually discharging duties, 796.
deans of cathedrals, &c.

professors or readers lecturing in either University, 796.
chaplains of roval family, 796.

of archbisnops and bishops^ 796.
of House of Commons, 796.
clerk or deputy clerk of closet, 796.
chancellor, vicar general or commissary, 796.
dean, sub-dean, reader, &c. in any queen's or king's

chapels, 796.
preacher in the inns of court, 797.
provost of Eton, warden of Winchester, &c. 797.
holders of offices in possession before 14th August 18 i^,
the day of passing the 1 & 2 Ftc/.c. 106 — 797.
Exemptions in 57 Geo, 3, c. 99> 797» «• <>•
License for non>residence, 800.
power of queen to grant, 801.
claimed exclusively by the popes, 801, n. a.
soverigns always claimed right in opposition to pope, 801, n. a.
causes for under, 1 & 2 Vict. c. 100, s. 43.

1. incapacity of mind or body» 802.

2. dangerous illness of wife, or child, part of tlie family, 802.

3. no house of residence, 802.

4. house unfit for residence, 802.

5. occupying his own house in the parish in cases not
enumerated, 802.

causes for, under 57 Creo. 3, c. 99, still contiAuing, 800.
application for, what it ought to specify, 802.
may be revoked, 805.

appeal against revocation, 805.
duration of, 805.

not void by death of grantor, 805.
fee for, 805. 807.
who to grant during vacancy of see, 805.

copies of licenses and of revocations and statements of
grounds of exemption to be filed in ragisOy, and
transmitted to churchwarden, 805.
to be transmitted by bishops to queen in council, 806.
returns of licenses granted or approved and allowed, to
be transmitted by archbishop to queen in cottncil, 806.
incumbents to answer questions contained in achedule to 1 & 9
Vict.c, 106—807.
RESIDENCE, HOUSES OF.
Provisions for building, purchasing, and improvement of, 809.
By mortgage.

17 Geo. 3, c. 53, and 1 Vict, c. 23.

three years' income, charge for thirty-five years, 810.
1 & 2 Vict, c. 106.

four years' income, charge for thirty- five years, 811.

JNDEX. 1061

RESIDENCE, HOUSES OF— «m/iiiti«/.

preliminary inquiry by bishop, 811.
commission to inquire, 811.
heads of inquiry, 811.
report of commissioners, 811.
conies of report, plans and estimates sent to patron and incum-
bent, 812.

if not expedient to mortgage, bishop to state reasons to queen in

council, 812.
if mortgage, to be a counterpart, 812.
nominee, money paid to, 812.
duty of nominees, 812.

special directions for, 812, 813.
money, how applied by, 812,
accounts of, how kept and audited, 813.
money recovered for dilapidations, 813.
nominee may purchase or build, 813, 814.
lands, &c. bought conveyed to patron, 814.
governors of Queen Anne's bounty may lend money at 4 per cent.

814, 815,816.
colleges and halls, &c. majr without interest, 814, 815, 816.
payment of principal and mterest, 815.

17 Geo. 3, amended by 21 Geo, 3, c. 66; 5 Geo. 4, c.89 — 816.
1&2 Fic^c. 106.

apportionment between outgoing and incoming incum-
bent, 816, 817.
remedies for by distress, 817.
nominees.

allowance to, 817.
By bene&ction,
archbishops and bishops enabled to make grant, 817.
all persons may give three acres or £500 — 817.

limitations, 817.
the king, how far, 818.
bodies corporate,

governors of Queen Anne's bounty, 819.
By sale or exchange, 818.
by persons under disabilitv, 818, 820.
house may be exchanged oy incumbent, 818.
old house may be sold, 819-
timber on glebe, may be sold or used, 819.
old house converted into farm house of glebe, 819-
application of money or surplus money, 819» 820.
Archbishops and bishops may obtain money by mortgage, 820, 821.
amount £2000, or three years' net income, 820.
interest and one-ihirtieth of principal to be repaid, 821.
mortgage money paid to nominees, 821.
duty of nominees, 82 1 .
how and to whom to account, 821.
Insurance from fire, 821.
RESIGNATION— what, 822.
to whom made, 822.
in cases of donatives, 822.
RESTITUTION OF CONJUGAL RIGHTS— natura of suit, 823.
may become suit for nullity of marriage, 823.
divorce may be decreed in, 823.
how suit for may be barred, 823.
where faults on both sides, 824.

1062 INDEX.

RESTITUTION OF CONJUGAL RIGHTS— coii/m«erf.

deeds of separation not noticed in ecclesiastical courts, 895.
Review, commission of, abolished by 2 & 3 JVm. 4,e. 92—44, n. a.

what it was, 44, n. a.
Revocation of wills, 930, 931 .

of administration or probate, 973.
Ripon, new diocese of, 141.

new cathedral at, 142, 365.
Rubric, directions with regard to baptism, 67. 71, and vid. ''Public
Worship."

Sabbatarians, marriages of, 586, 587.
Sabbath, vid. " Lord*8 Day."
Scotland, law of marriages in, 578, 579.

law of divorce in, 325, if. a., 347, 578.
Seamen, wills of, 913, n. a.
Sentence, prohibitions after, when grantable, 748,749-

never pro defectu triatkmis, 751.

not for citing out of the diocese, 752.

in cases of penance should be certain, 650, 651.
Separation of husband and wife no bar to divorce,

no answer to recriminatory adultery, 335.

deed of, considered illegal in spiritual court, 346.
SEQUESTRATION.

1 . issuing on king's writ, 826.

diflferent sorts of, 826, 827.
how executed, 827.
practice in, 827.

may be set aside on motion, 827.
a continuing execution, 828.
effect of, 828.

land bound by delivery of writ to bishop or appointment of
sequestrator, 828.

no retrospective effect, 829.

in cases of insolvency, 829.

2. issuing originally out of bi8hop*s court, 829*

for dilapidations, 316. 319. 829.

for not msuring, 829. 831. #

for neglect of cure, 830.

for non-residence, 790. 798. 800.

for illegally trading, 831,

non-payment of curate's stipend, 83 1 .
Cases under 1 & 2 Vict. c. 106 — 830.

profits of benefice, how applied, 831.

costs of, 831.

priority of, 831.

monitions for, service of, 823.
return of, 832.

party may shew cause, 832.

appeals, proceedings in, 832, 833.
Sequestrators, appointment of, 832, 833.

duty of, 833.

must account, 833.

refusing to deliver up charge, 83^3.

balance, to whom paid, 833

allowance to, 833.

INDEX. 1063

SEQUESTRATION— con^wttfd.

under 2 & 3 IVm, 4, c. 92.

in case of continued contumacy, sequestration to issue upon
exemplification of decree against real and personal estate.
Addend. No. 13.
Settlement, deed of, when entitled to probate as a Mrill, 919.
SEXTON, 834.

by whom chosen, 834.
appointment for life, when, 834.
mandttmus to admit, 834.

to restore, S34.
women may be, 834.

and may vote in elections of, 834.
recovery of fees of, 834, 836.
Quo Warranto in case of, qnare, 633. 835.

new parishes under Church BuUding Act, provisions for, 306. 835.
m cases of divided parishes, 206. 835.
SIMONY, 836, 837.

forbidden by Canon law, 836.
provisions against, at Reformation, 836.
oath against, by Canon 40 — 836.
definitions of, 837.

simoniaci, how punished, 837j 838.

sinumiack promoH cannot be deprived, 837, 838.
Canon law could not avoid corrupt contract, 838.
jurisdiction of ecclesiastical court not taken away, 839.

purchase of a void turn, 10. 839. 845.

?wBre, whether offence at common law, 840.
Provisions against, by 31 EUx. e. 6-— 840. 843, 844.
elections in colleges, &c. 840.
resignations in colleges, 841.
in presentations, s. 5 — ^841.

presentation void, 841.

Queen may present, 841.

parties to foneit double value, 841.

presentee disabled ever to take the same benefice, 841.
in institutions, 8. 6^841, 842.

person instituting to forfeit double value, S42.

institution merely void, 842.
in ordinations, 842.

person ordaining, to forfeit £40 — 842.

person ordained, to forfeit same, 842.

promoted within seven years, benefice to be void, 842.
in resignations, 842. .

corruptly resigning or exchanging, giver and taker to forfeit

double value, 843.
Purchases of next presentations, 844. 847, 848.
by clergy under 12 Ann, c. 12 — 844.

presentation and institution void, 844.
agreement declared simoniacal, 844.
the Queen may present, 844.
presentee disabled to take same benefice, 845.
act only applies to clergy purchasing for their own benefit, 845.
Purchase of a void turn, 10. 839. 845.

only void quoad such vacancy, 846.
Purchases of advowsons, 845.

made with corrupt intent, 845.

1064 • INDEX.

SIMONY— con/tfiued.

agreement for immediate resignation, 845.
void only for presentation on such resi^ation, 845.
incumbent in danger of dying, not airooniacal, 846, 847.
agreement for benefit to presentor, 848.
marriage contracts having reference to, 848.
object of contract immaterial, 849.
reservation of annuity to widow of last incumbent, 849-
Resignation bonds, 849.

general, always considered illegal, 850.
special, formerly considered good, 851.

now held to be illegal, 851.
retrospective act of 7 4" 8 Geo. 4, c. 25 — 851.

provisions of that act, 851.
prospective provisions of 9 Geo. 4, c. 94 — 852.
resignation in favour of one or two persons named and

related, or connected with patron, 852.
relationship or connection specified, 852.
presentation not void by such bond, 852.
parties not subject to penalties, 853.
Dond to be deposited with registrar, 853.
resignation by reason of, valid, 853.
Taking above usual fees, 854.
Consequences of simony by stat. 31 Elit. e. 5 — 854.

crown presenting after death of simoniacal presentee^ 855.

Stat. 1 Wm. 3, c. 16 — 855.
cases of donatives, 856.
good defence in actions for tithes, 856.

not in actions on compositions, or in actions for use and
occupation, 856.
crown cannot dispense with disabilities of the statute, 856.
eflfect of general pardon on, 856, 657.
Sinecures distinguishable from donatives, 353. 890.
induction and institution to, 466.
SMITING AND BRAWLING— and vid. " Brawling."
smiting by statute 5 <5* 6 Edw. 6, c. 4 — 1 19.
nothing snort of actual blow, 119
indictment at common law, 1 1 9-
maliciously striking with weapons, 5 & 6 Sdw. 4 — 1 1 9.
place of, church or churchyard, 120.
limitation of suits, 120.
form of articles in proceedings for, 120.
provocation no justification, 121.
motives of promoter important for costs, 121.
punishment at common law and statute, 122.

for smiting with weapons, 123.
who may promote, 124.
Sodomitical practices, divorce for, 346.
Stipends of curates, scale of, 280, 281 .
power of bishop to vary, 281.

different promions {or,vid. '* Curatb Stipendiary."
agreements respecting contrary to law void, 282.
how enforced and recovered, 283.
incumbent lunatic committee may pay, 283.
deductions out of, 283, 264.

of incumbents of district churches, &c. under the Church Building
Acts, 205. 207.

INDEX. 1065

Suffragan bishops, 116.

Suicides not entitled to burial by rubric, 129-

Temporalities of bishop's see in time of vacation, 113.
Term probatory, what it is, 381.

may be extended, 383.
extension of, when refused, 383.
is open to both parties, 403.
lathings, annexation to parishes, provision for, 834.
Tombstones and monuments, 162, vid. ** Churchyard, Faculty."
custom to set up in a church without leave of rector bad, 1 62. ]87<
how repaired, 162.
defacing of, 162, 163.
Tower of church, repair of, 165.
Trees in a churchyard, 237.
Triefuiialis cohabitatio, what and when required, S62. 564.

Uniformity in church service, 65, n. a.

leading jprinciple in English ritual, 763.
enforced by statute, 764, 765.
breach of now punished, 764, 765.
UNIONS AND DISUNIONS.

union of two benefices, what it is, 857.

at common law, ordinary patron and incumbent consenting, 857.
in cases of poor churches without consent of crown, 857.
if of reasonable value, such consent necessary, S57.
37 Hen. 8, e. 21.

did not exclude the common law, 857.
church united to a prebend, 858.
patrons of united parishes have distinct rights, 858.

17 Car. 2, c. 3, applicable to unions in corporate places, 858.
reparations at common law continued several, 858.
provisions of 4 Wm, 3, c. 12, in cases where one of the united churches

demolished, 858.
payments of first fruits and tenths, 859.
validity of union at common law triable in spiritual court, 859.

by statute tried in temporal court, 859.
53 Geo. 3, c. 123, redemption of land-tax, 859.

1 4^ 2 Vict, c. 106, fresh prorisions for uniting benefices, repealing
37 Hen. 8, c. 21, and 17 Car. 2, c. 2 — 859.
does not affect unions already made, 859.
s. 16. Preliminary inquiry, 860.
notice ; order in council, 860.
course of patronage, 860.
presentations, how to take place, 860.
8. 17, income of limited benefices more than sufficient^ poorer

benefice may be augmented, 861.
«. 18. Grants under hand and seal, consent of bishop under epis-
copal seal, 862.
DiBUNiONS of benefices, 859. 862.
«. 21. Preliminary inquiry, 862.

lOM INDBX.

UNIONS AND DISUNIONS— coji/ttiiterf.

order in council for teparaiaoD. 86*2.
righto of patronage* 862.
benefice separated to he dutinct, 863.

s. 22. Incumbent of united benefice may resign on separation, 863.
s. 23. Tithes, &c. may be apportioned, 863.
S.2S. House of united benefice inconvenient or too large, after

disunion may be sold or exchanged, d63» 864.
s. 27. Disputes may be adjusted by supplemental order in council,
864.
alteration of contents of |)anshes not to affect secular rates,
864.
United States of America,
laws of le|[itimacy in, 77.

vary m different states, 77,
law of divorce in, 324, n. a.

domiciled in one state and divorced in another, 349, n. a.
Usage, what it is, 620. 622.

resorted to to cut down words of a charter, 620.

Variance in citation, 684.

in title of judge, 684, 685.
in name of party cited, 685.
in description of the cause, 686.
Vault, no right without consent of rector, 187.

lay rector not entitled of right without consent of ordinary, 187.
Ventre inspiciendo, writ d«, 101.
origin and nature of, 101.
modern instance of, 101.
practice in conduct of, 101.
granted on petition to Chancellor, 102.
VESTRY— why so called, 865.

meeting need not be in vestry room, 865.

if m room adjoining church, apiritual court has jurisdiction, 119.
866.
at common law all parishioners might attend, 866. 8/2.
General at common law, 866.

how regulated by 58 Geo, 3, c. 85 — 867.

notice of to contain purpose of, 867, and vid. 767» 768.

appointment of chairman, 867. 872.

cnairman to have casting vote, 867.

minutes to be kept and signed, 867.

manner of voting* 867. 871-

rated under 50/. entitled to one vote, 868.
one for every 25/., up to six votes, 868.
party coming into parish since a rate, may vote, 869-
inhaoitancy not necessary, 869.
corporations, 869.

party refusing to pay rates not entitled, 869.
parish hooks and papers to be preserved* 869.

penalty for retaining or injuring books, 869.
provisions of act to extend to other places than parishes, 870.
statutable times for holding vestries not altered, 870.

INDEX. I06T

VESTRY— coji/iitiierf.

special vestries not affected hj act, 870.

meetinj^ to be called b^ church wardeos with eonsent d mtnister, 87 1 .

majority may bind roiiMMrity to all legal acts, 872.

demaDd of poll, 625. 87^^.

may be adjourned for cooTenience, 873, 874.

duty of chairman, 873, 874.

persons excluded from voting, 873.

poll adjourned to a place which is private property, 876.

duration of poll, 877*

allowing time to pay rates, 878.
according to custom, 878.
Select by custom, 879.

custom must be immemorial and reasonable, 879.
custom may be tried incidentally in spiritual court, 880.
cannot elect vestry to manage poor by 59 Geo, 3, c. 12. — 880.
Select by statute,

in London, by 10 Anne, c. 1 1 — 880.

how appointed and continued, 880.
By 59 Geo. 3, c. 134 ; 3 Geo. 4, c. 72.

distinct and district parishes, chapelries and consoUdated dis-
tricts, 198 — 880.
how apiK>inted and continued, 880, 881.
number necessary to constitute majority, 985.
cannot impose church rate, 881.
under local acts, for promoting building of churches and regu-
lating populous parishes, 881.
By 1 & 2 IVm, 4, c. 60—881.
how adopted, 882.
notice of intention to adopt, 883.
who to vote in adoption of, 882.
how votes taken in adopting, 883.
inspection of votes, 883.
notice of having adopted, 883.
election of vestrymen and auditors after the act has been

adopted, 884.
elections annual, 884.
day of, 884.

number of vestrymen depends on population, 884, 885.
what vestrymen to go out of office, 885.
qualifications of vestrymen, 886.

1. Not in police district or London, nor having 3000 resident
householders,
rated on a rental of lOZ. per annum, 885.
3. In police district, in London or in parish, having 3000
resident householders,
rated on rental of 40/. per annum, 885.
rating sufficient without occupation, 886.
election and notice of, 886.
who may vote, 886.
votes taken by ballot, 886.
inspectors to examine votes after ballot, 887.
penalties and punishments, 887.
churchwardens refusing to call meetings, 887.
persons falsifyinj^ voting papers, 887.

obstructing elections, 887.
inspectors making false return of votes, 887.

1068 INDEX.

VESTRY— coii/tiMei/.

such vestry to have all privileges of a vestry, 887.
how many vestrymen to constitute quorum, 888.
vestry mav not be held in a church or chapel, 888.
books ana accounts of, 888.

inspecting and copving, 889.
auditors, election of, vid. " Auditors,'* 889.
vestry to make lists of charitable foundations, &c., and to specify who
are benefited by them, 889.
Vestry-room, what,

when faculty necessary for erection of, 170.
Vicar-general, 144.
VICAR— who so called, 890.
VICARAGE— what, 890. 893.

may be appurtenant to a manor, 5.

or rectory, 5. 892.
mav have been augmented by bishops, 167.
endowed, is benefice distinct from parsonage, 890. 892.
sinecure distinguished from vicarage, 891.
may be dissolved, 891.
the not presenting to, not presumptive evidence of re.-uoion with rectory,

891.
parson and not patron of rectory is patron, 892.
no vicarages at common law, 893.
Vills, boundaries of, ^utBre, whether triable in ecclesiastical court, 617.
VISITATION — ^DTovisions with regard where portions of dioceses, have been
transferrea by 6 & 7 Wm, 4, e. 77, Addnui. No. 17.
circuit of inquiry of bishop through his diocese, 894.
clergy and ecclesiastical officers may be summoned to, 894.
order of visiting by Canon law, 894.
parochial visitations bv bishops discontinued, 894.
origin of archdeaconal visitations, 895.
repairs to be inquired into at, 896.
all spiritual persons visitable, 896.
during, all inferior jurisdictions inhibited, 896.
bishop to gain knowledge of his clergy at, 896.
clergy to exhibit letters of orders at, 896.
presentments at, 897.
procurations, vid, ** Proxies," 898.
>Vife, entitled to alimony, pendente Ute, 36.
to permanent alimony, 37.
proportions of, vid, " Alimony," 37.

entitled to have her costs taxed de die in diem, md, ** Costs," 40. 259.
entitled to monition for alimony, though withholding her children

in contempt of an order of King's Bench, Addend. No. 5.
when entitled to have her costs, though possessed of separate

income. Addend. No. 8.
no order made for her costs where husband a discharged insolvent.

Addend. No. 8.
may make a will with assent of her husband, 908.
of a husband banished may make a will as a/^me sole, 910.
confession of, not alone suflBcient to prove adultery, 330.
condonation by, not so strictly presumed as in case of a husband,
337. 338.
Witnesses, competency of, in Qnare Impedii, 32.

may be examined mvd voce bv order of judicial committee, 46.

may be examined on oath before judicial commitlee, 47.

liable for penalties of perjury, 47. ^

INDEX. 1069

WITNESSES— co»/t«if«f.

may be summoned by judicfid committee, 48.

wnt8 o{ subpama for, before judicial committee, 48.

attendance of, how compelled in the spiritual court. 384

citation a(/atu/t«ic;tim,what, 385,

how examined, 385, 386.

number requisite, vid. " Evidsnob," 380. 406, 407.

reproduced to be re-examined, 387.

to be cross-examined, 387, 388.
amending: deposition, 387.
designed to particular part of a plea, 395.
contradicting, 395, 396, 397, 398.
denying attestation other evidence admissible, 400.
party contradicting his own witness, 401.
additional after publication, when allowed, 403.
compellable to answer, 408.

to produce documents, 408.
WIIjIjiS.

inca|)acities for making, 900.
idiotc^, 900.
insanity, 900, 901, n. b.

to be proved, 900, n. a.

lucid intervals to be proved, 902.903.

caution necessary in giving credit to, 902.

rationality of act itself, 902, n. a.

deliriuinand fixed insanity, distinction in lucid intervals. 903

partial insanity, 904.

meaning of expression, 904.

insanity subsequent to making a wUl, 905.
weakness of intellect, 905.

drunkenness, 906. , j

physical infirmities, 906.

old age, 906.

last stage of sickness, 906.

deaf and dumb, 907.

blind, 907.
of persons unable to read, 907.
of infants, 907.
of married women, 908.

will made before marriage, 908.
during coverture, 908.
during first widowhood, 908.
of widow marrying secondly, 908.

by assent of husband, 909.

assent or not^ triable at law, 909.

under powers, 909, 910.

husband banished, 910.

husband subject of a foreign state, 910.
of persons attainted of treason or felony, 910.
of outlaws, 910.

of excommunicated persons, 910.
aliens, friends and enemies, 910, 911.
by actual duress or threats, 911.
obtained by fraud, 911.

1 . deception producing mistake and enwr, 91 1 .

2. influence.

most amount to force or coercion, 911.

1070 INDEX.

WILLS— co«fiffH«f.

relation of parlies, 912.

huslMind and wife, 912.
f^ardian and ward, 912.
attorney and client, 912.
Form and making
External form, unfinished papers, 914.

1 . instrument whoUy incomplete.

disposition determined on, 915.
intention never abandoned, 916.
execution prevented by act of God, 915.
stage of maturity important, 915.

2. Invtmment partially incomplete, not being executed, 916.

presumption against, slight, 916.
execution prevented by duress, 916.
delay of execution, 916.

3. instrument partially incomplete, not being attested, 916.

presumption against, slight, 9i6.
still must be rebutted, 916.
will of realty and personalty unattested, 917.
case of Mathin's v. Wam/er^ 917.
declarations of intention, 411.
where bequest of personalty takes efl^t, 917,«. a. 714.
instnictions for wills, 917*

reduced into writing in testator's lifetime. 919.
instnictions unfinished, 918.

if final, entitled to probate as far as they go, 916.
copy of a will, 918.
Internal form and character, 918.

if intended to he a wiU, form immaterial, 918.
deeds of gift, 919.
settlements, 919.
checques on bankers, 919
letters, if testamentary final and disfiositive, 919.
heads of a will, 919.
heads of instructions, 920.
papers annexed to a will, 920.
Codicils, what, 920, 921.

when dependent upon a will, 921.
when independent of, 921.
not revoked by destruction of will, 92 1 .
need not originate with testator, 921.
written in pencil, 921, 992.
two of same date, 922.
Alterations, finally completed and intended to operate, 922.
when final, 922.

in pencil or in ink, distinction, 922.

sumcient if testator sane when alterations were directed, 922.
provisions with regard to, by 1 Vki, c. 26, «. 21-^^22.
when admitted on parol evidence, 923.
Will destroyed, unknown to testator, 923.
by accident, 923.
torn fragments collected, 923.
omissions, when allowed to be supplied, 923.
erasures, practice with regard to, 923.
Nuncupative, 924.

Hogatio te$ihim, 924.

INDEX. 1071

W I LLS — continued.

formalities necessary to, 924.
Form and making by 1 Vict, c. 26 — 925.
signature to be at foot of will, 925.
mark a sufficient signing, 926.
each sheet to be signed, 926.
to be acknowledged in presence of two witnessea pretent at ths

same time, 926. i

attestation of witnesses, 926.

no form of attestation necessary, 925. 927- I

Factum of a will, what it means, 927. 929.
How authenticated, 927.

paper propounded to be connected with deceased, 928.
nand writing notsufficient» 928.
similarity of handwriting, 928.
probabibty of disposition, 928.

mtention, evidence of, 929» 930. !

Revocation, 930, 931. '

by cancellation, 93 1 .

provisions of Statute of Frauds, 93 1 . .

must be done animo revocandi, 931. 933. ;

declarations of intention evidence, 411.

attempt to cancel sufficient at common law, 931, n. a.

cancellation by mistake of law or fact, 932, 933, 934.

cutting with scissors, 932. i

destroyed without authoritv of testator, 933.

mutilation or partial cancellation, 934. '

of a codicil, 934. *

of a duplicate will, 934.
by subsequent will, 935.

last will takes effect, 935

will under power, 935.

last will unfinished and incomplete, 936.

two wills of same date, 936.
by operation of law, 937.

marriage and birth of children, 937*

if child provided for, rule does not apply, 938, 939.

Srovision of 1 Vict.c. 26 — 938.
eathof child does not revive will revoked by its birth, 938.
will made after marriage, how far revoked by subsequent
issue, 928.
effect of in reviving former will, 939.
question depends upon circumstances, 939-
provisions of 1 Vict. c. 26 — 940.
Republication of.

what sufficient to shew intention to republish, 940.
must be the animo republicandi, 940.
provisions of 1 Vict, c, 26 — ^940, 941.
of probate, and vid. ** Probate," 941.
executors, appointment of, rti. "Executor,'' 941.
Custody of, 945.

in custody of third person, 945.
cannot be withheld for debt of executor, 945.
disputed wills to be deposited in registry, 945, n. a.
How proved, vid, " Probate."

1072 INDEX.

WORSHIP, PUBLIC— how regulated, 65, u. a. 760-
alteration of at Refonnation, 762.
uniformity, 763. 65, «. a.
behaviour in church, 768.
publication of notices during, now forbid, 768.
proclamations during, forbid, 768.
disturbing congregation, punished, 769.
additional services in churches by 53 G^. 3, c. 45, t. 65, and 2 & 3

Vict. c. 106, s. 80—157.
ornaments in churches, vid. " Ornaments," 159.

THE END.

LONDON:

RAVNRR Atrn ilODOBt, PRIVTBRS,

109, Fetter Lane, Fleet Street.

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