Summary method of recover

ing tithes under

40s. by stat. 7

& 8 W. III. c. 6.

Cognizance of non-payment of ecclesiastical dues to the

clergy; as pensions, &c. and surplice-fees.

[*90 ] Where certain dues under 40s.

fore justices.

Caution neces

will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical, judge, without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40s. is given by statute 7 & 8 W. III. c. 6, by complaint to two justices of the peace: and, by another statute of the same year, c. 34, the same remedy is extended to all tithes withheld by quakers under the value of ten pounds (6).

Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual *payment. Besides which, all offerings, oblations, and obventions, not exceeding the value of 40s. may be recovered in a summary way, before two justices of the peace (i). But care must be taken that these are (i) Stat. 7 & 8 W. III. c. 16.

(6) They may give a compensation, and with costs; but these only to the amount of 40s. Distress and sale lie for the whole. Appeal allowed to the next quarter sessions; the judgment final. But if two years have elapsed before complaint made, sessions cannot interfere, neither has it any jurisdiction if the party insist upon some prescriptive composition, modus, agreement, or title. If he insist upon some composition, &c. the statute prescribes that the party shall deliver the same, subscribed by him, to the justices, who are to take security for costs and damages attending trial at law, in case the verdict shall be against him, and such presumptive composition, &c. not be allowed. By statute 53 Geo. III. c. 127, § 4, the jurisdiction of the jus

tices is extended to tithes, oblations, and compositions of £10 value; by sect. 6, in relation to tithes and church rates due from quakers to £50. And instead of complaint being as formerly made to two, the act provides that it may be made to one justice, who may summon the party to appear before two justices. By stat. 54 Geo. III. c. 68, the like provisions and enactments are extended to Ireland. Upon tithes as a mean of remuneration of a clergy, see notes upon the subject as often as it occurs in the text. When the Christian clergy received, and at length succeeded in establishing a right to, this obnoxious levy, they little thought, in France at least, how nearly they assimilated themselves with the fable of the boy and the goose.

tion will issue.

real and not imaginary dues; for, if they be contrary to sary, or prohibithe common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another place(); this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom (1); but no custom can support the demand of a fee without performing them at all (7).

cers of the

courts; but not the right.

curate.

For fees also, settled and acknowledged to be due to Cognizance for the officers of the ecclesiastical courts, a suit will lie fees due to offitherein: but not if the right of the fees is at all disputable; for then it must be decided by the common law (m). It is also said, that if a curate be licensed, and his salary Of remedy by appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical court (n); but, if he be not licensed, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law (0); either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in consideration of what he reasonably deserved in proportion to the service performed (8).

(k) Salk. 332.

(1) Ibid. 334. Lord Raym. 450. 1558. Fitzg. 55.

(7) If this reason were suffered to pervade or regulate some other pecuniary claims of right, the community would not lose; and yet how much is received by an absent incumbent, or by a lay impropriator, at the hands of the parishioners, or by sinecure official people at the hands of the public, and no duty performed at all" by the receivers.

(m) 1 Ventr. 165.

(n) 1 Burn, Eccl. Law, 438.
(0) 1 Freem. 70.

(8) A certificate by a rector appointing a person curate of his church, containing a promise as to continuing him at a salary, is a contract with the curate, not with the bishop. Martyn v. Hind, Cowp. 443. 1 Doug. 142. S. C. And where the rector gave title to the bishop, and undertook while rector not to remove the curate, he cannot be removed without cause.

Cognizance of spoliation, &c.

Spoliation,

what.

[*91 ]

Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.

2

Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any *right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson doth not come in debate, is cognizable in the spiritual court: as if a patron first presents A. to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the same patron presents B. to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were, or were not, vacant; upon which the validity of the second clerk's pretensions must

But preferred bona fide, the obligation
ceases. Ibid. See vol. i. page 394,
n. (57), where statute 57 Geo. III.
c. 99, is mentioned. By this statute
a very useful controlling power, as to
the amount at which the curate shall
be remunerated, is vested in the dio-
cesan. It is said, that the interference
of the bishop is not often sought; the
question of salary still remaining matter
of private agreement between the par-
ties; yet by the statute the amount is
to be specified in the license, and by
sect. 64, any agreement by which less
than the statutable remuneration is to
be received, is void; and also, whereby
any of the provisions of the statute shall
be sought to be evaded. The curate's

remedy lies by complaint to the bishop, who may summarily determine between the parties; and may enforce his determination when necessary by sequestration of the profits of the church. The scale of remuneration is framed upon the value of the living and the amount of the population. But a curate cannot have the benefit of a proceeding by monition for the recovery of a salary assigned by the bishop, without the consent of the incumbent, the incumbent being resident on his benefice and discharging the duties generally, but desirous of the assistance of a curate. The King v. Bishop of Peterborough, 4 D. & R. 720. 3 B. & C. 47. S. C.

spoliation, the court has no cognizance.

depend (o). But if the right of patronage comes at all Where, in
into dispute, as if one patron presented A. and another respect of
patron presented B., there the ecclesiastical court hath no
cognizance, provided the tithes sued for amount to a
fourth part of the value of the living (9), but may be pro-
hibited, at the instance of the patron, by the king's writ
of indicavit (p) (10). So, also, if a clerk, without any
colour of title, ejects another from his parsonage, this in-
jury must be redressed in the temporal courts; for it
depends upon no question determinable by the spiritual
law, (as plurality of benefices or no plurality, vacancy or
no vacancy,) but is merely a civil injury.

what.

For dilapidations, which are a kind of ecclesiastical Dilapidations, waste, either voluntary, by pulling down; or permissive, by suffering the chancel, parsonage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law (q), and it may be brought by Remedy, also, the successor against the predecessor, if living, or, if at common law. dead, then against his executors. It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiastical person, dilapidates the buildings, or cuts down timber growing on the patrimony of the church, unless for necessary repairs (r): and that a writ of prohibition will also lie against him in the courts of common law (s). By statute 13 Eliz. c. 10, if any spiri- Stat. 13 Eliz. tual person makes over or alienates his goods, with intent

[*92 ]

c. 10, and

stat. 14 Eliz. c. 11, as to dilapidations.

Cognizance for neglect to repair church.

II. Matrimonial

cases.

to defeat his successors of their remedy for dilapidations, the successor shall have such remedy against the alienee, in the ecclesiastical court, as if he were the executor of his predecessor. And by statute 14 Eliz. c. 11, all money recovered for dilapidations shall within two years be employed upon the buildings, in respect whereof it was recovered, on penalty of forfeiting double the value to the

crown.

As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof (ss); and a suit may be brought therein for non-payment of a rate made by the churchwardens for that purpose (11). And these are the principal pecuniary injuries which are cognizable, or for which suits may be instituted, in ecclesiastical courts.

2. Matrimonial causes, or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though, if we consider marriages in the light of mere civil contracts, they do not seem to be properly of spiritual cognizance (†). But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the Romanists; the two jurisdictions. And, in the hands of such able source of power politicians, it soon became an engine of great importance to the papal scheme of an universal monarchy over Christendom. The numberless canonical impediments

The marriage contract converted into a sacrament by

and hence a

and wealth to the pope.

(ss) Circumspecte Agatis. 5 Rep. 66.

(11) As to a mode of recovery for church rate, where the amount does not exceed £10, see page 89, ante, note (6), where statutes 53 Geo. III. c. 127, and 54 Geo. III. c. 68, are abstracted; the first-mentioned statute referring to England, the last to Ireland. But where the validity of the

rate is already in question in the eccle

(t) Warb. Alliance, 173.

siastical court, the one justice cannot summon a defaulter. Neither can the two justices proceed to give any judgment where, upon hearing the complaint, the validity of the rate shall be disputed, or the party shall deny his own liability. See The King v. The Chapelwardens of Milnrow, 5 M. & S. 248.