(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A practical arrangement of ecclesiastical law"

Google 



This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http : //books . google . com/| 



L 'L 

>(L. UK. 

L> 00 



\ 





PEACTICAL ARRANGEMENT 



OF 



ECCLESIASTICAL 



LAW. 




BY 



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 

a2 



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- 



w 



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 

67 

74 

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. 



A. 



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 



B. 

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 

IS 

726 

723 

25 

665 

176. 191 

400 

51 

639 

930 

110.257 
685 

1005 (n) 

590 

43 

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 



u 



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 

39 

789 

617 

436. 440 

729 

188 

714.731. 

747 



C. 



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 



D. 



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 . 



IV 



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 

82 

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 



H. 



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 



K. 

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



14 

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 



L. 

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



580 
354 
933 
397 



VI 



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 



M. 

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 



N. 



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. 



vu 



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 



O. 



Oldham ▼. Oldham - 40 

Oliver v. Oliver 823, 824 

Oliver v. Hobart - 307 

Onions v. Tyrer • 933 

Orpington, Curate of, ease 311 



P. 

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 



Q. 



Queen's case - 397 

Queen v. St. Mary. Lambeth 872, 

873 

V, Stock - 1011 

V. Wye . 1011 



R. 



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 



S. 



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. 



IX 



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 



T. 

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 

49 

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 



V. 



Veley and JosUn v. Burder 988 



W. 

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 



y. 



Young v. Jones 
« y. Manby 



849 
316 



Z. 



Zacharias v. Collis 



912. 927 



LIST OF CASES CITED 



BY AUTHORITIES WITHOUT NAMES. 



A. 

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 



xn 



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 



B. 



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) 

23 

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) 

49 

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 



C. 



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, 

38 

V. Cowper (2 Lee, 388) 918 

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

b 



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 



D. 



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 

62 



XK 



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 



E. 

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 



F. 



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, 

27 

(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) 

55 

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 



f! 



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 



G. 



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 



H. 

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) 

66 

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 



I. 



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 



J. 



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 



K. 



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 



L. 



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 



M. 

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) 

95 

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 



N. 



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. 



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 



P. 



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) 

11 



Q. 



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) 

24 

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 



R. 



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) 

17 

▼. 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. 

23 



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) 

34 

— 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 



S. 

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) 

78 

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) 

11 

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 



xl 



LIST OF CASES CITED 



T. 



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) 

19 

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) 

23 

Turton v. Tuiton (3 Hag. 338) 

831. 333. 335. 340. 342. 703 

Tyrell v. Jenner (6 Bing. 283) 25 



U. 



Uxquhart v. Fricker (3 Ad. 60) 

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

939 



V. 



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 

W. 



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 



^i 



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) 

24 

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 



Z. 



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 



OP 



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 

B 



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. 



8 



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- 



12 



^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. 



14 



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. 



16 



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; 

c 



18 



^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 



20 



^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 



24 



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« 



28 



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 



30 



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. 



32 



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. 



<( 



« 



is 



^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^ 



34 



^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 



38 



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. 



40 



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^ 



42 



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- 



46 



^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. 



48 



^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 

E 



60 






Against 
whom an 
appeal may 
be made. 



Of two 

sorts. 



What are 

appealable 

grievances. 



t( 



u 



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 



(i 

(( 



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 



54 



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 



it 



C( 



Si 



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. 



56 



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. 



»€ 



it 



^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 



62 



9b:tbt^ 



a 



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. 









64 



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. 

F 



it 

U 

«« 



$t 






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 



70 



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 






tt 



it 



tt 



it 



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 

register^of ^^^ child, herein mentioned, has been made by me in the re- 
birth, giater of the birth of the said child. 

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 ; 



ti 



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 



78 



Bas(tarli» 



Parents 
divorced. 



Im 



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 



it 



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 

o 






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 



H4 



2as(tar)i. 



NoQ access. 

Peadrell v. 
Pendreil. 



Lomax v. 
Holmden. 



Do€ dem. 
Goodright 
V. Saol. 



(( 



<i 



(t 



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 



ii 



it 



€t 



it 



t( 
it 
a 



a 



tt 



if 



it 



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 



a 
it 



it 



it 



tt 

(C 









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 



92 



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 



it 



94 



iUi0tar)v« 



Head V. 
Head, be* 
fore lord 
cliaocellor. 



Morris v. 
Davis. 



it 



€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 



u 



€t 



€t 



it 
tt 



tt 



tt 



tt 



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 ۥ ^ 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 



96 



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- 

H 



44 



98 



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 



ti 






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- 



ii 



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 

I 



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. 



ti 



« 



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.** 



f^ 



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 tie ac h iii^ 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. 

K 



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- 



u 



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 



<i 



<« 



cc 



€fmn laU}4 137 






M 
«l 



44 



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. < 



4t 



€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, 

L 



CI 

it 
tt 
it 



146 



Ct)amfUi)r0, ^r. 



Offices or. 



Grantiog 
lireDMft. 



ii 



*i 



tt 



a 



it 



tt 



9t 



tt 



tt 



tt 



it 



tt 



" 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 

l2 



it 



€1 



$t 

ti 



it 



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 



« 

u 
«« 
<c 

€t 
i< 
M 
f« 
i* 

« 
it 
tt 
€t 
tt 
€S 



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£ 



a 



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. 



U 



ۤ 



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- 

m2 



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. 



if 



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 



CI 

ft 



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. 






ti 



tt 



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. 

N 



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. 



to 



" 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. 



It 



it 



<i 



it 



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. 



(C 



<< 



II 



tt 



11 



(( 



It 



i< 



u 



" 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," 



i 



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 



u 



(( 



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 






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, 



it 



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. 

o2 



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. 



i 



€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/. 

p2 



It 



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* 



it 



€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 



(( 



ti 



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 



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 



it 



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 

Q 



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* 

q2 



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. 

R 



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. 

r2 



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 

s 



it 



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 
nia i 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. 

s2 



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 



it 



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 



it 

ti 



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 
€€ 



ft 



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 

t2 



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« 



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 

u 



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 



b. 



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- 



te 



(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. 



It 



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. 

X 



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 

x2 



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 



It 

ti 



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€ 



«< 



ts 



it 



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/ 



f* 



L 



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 

ft 

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- 

y 



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