the damage which he has sustained. And these I shall reduce under three general heads; of caufes pecuniary, caules matrimonial, and caufes teftamentary.

1. PECUNIARY caufes, cognizable in the ecclefiaftical courts, are fuch as arise either from the withholding ecclefiastical dues, or the doing or neglecting fome act relating to the church, whereby fome damage accrues to the plaintiff; towards obtaining a fatisfaction for which, he is permitted to inftitute a fuit in the spiritual court.

THE principal of these is the fubtraction or withholding of tithes from the parfon or vicar, whether the former be a clergyman or a lay appropriators. But herein a distinction must be taken: for the ecclefiaftical courts have no jurifdiction to try the right of tithes unless between fpiritual perfons; but in ordinary cafes, between fpiritual men and lay men, are only to compel the payment of them, when the right is not difputed. By the ftatute or rather writ of circumfpecte agatis, it is declared that the court christian shall not be prohibited from holding plea, “fi rector petat versus parochia"nos oblationes et decimas debitas et confuetas :" fo that if any difpute arifes whether fuch tithes be due and accustomed, this cannot be determined in the ecclefiaftical court, but before the king's courts of the common law; as fuch queftion affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fact whether or no the tithes allowed to be due are really fubtracted or withdrawn, this is a tranfient perfonal injury, for which the remedy may properly be had in the fpiritual court; viz. the recovery of the tithes, or their equivalent. By ftatute 2 & 3 Edw. VI. c. 13. it is enacted, that if any perfon fhall carry off his predial tithes (viz. of corn, hay, or the like) before the tenth part

BOOK III. is duly fet forth, or agreement is made with the proprietor, or fhall willingly withdraw his tithes of the fame, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; fuch offender fhall pay double the value of the tithes, with costs, to be recovered before the ecclefiaftical judge, according to the king's ecclefiaftical laws. By a former clause of the fame ftatute, the treble value of the tithes, so subtracted or withheld, may be fued for in the temporal courts, which is equivalent to the double value to be fued for in the ecclefiaftical. For one may fue for and recover in the ecclefiaftical courts the tithes themselves, or a recompenfe for them, by the antient law; to which the fuit for the double value is fuperadded by the ftatute. But as no fuit lay in the temporal courts for the fubtraction of tithes themselves, therefore the ftatute gave a treble forfeiture, if fued for there; in order to make the course of justice uniform, by giving the fame reparation in one court as in the other b. However it now feldom happens that tithes are fued for at all in the spiritual court; for if the defendant pleads any custom, modus, compofition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclefiaftical judges; for the law will not suffer the existence of fuch a right to be decided by the fentence of any fingle, much less an ecclesiastical, judge; without the verdict of a jury. But a more fummary method than either of recovering fmall tithes under the value of 40 s. is given by ftatute 7 & 8 W. III. c. 6. by complaint to two juftices of the peace: and, by another ftatute of the fame year, c. 34. the fame remedy is extended to all tithes withheld by quakers under the value of ten pounds.

ANOTHER pecuniary injury, cognizable in the fpiritual courts, is the non-payment of other ecclefiaftical dues to the clergy; as pensions, mortuaries, compofitions, offerings, and whatsoever falls under the denomination of furplice-fees, for marriages or other minifterial offices of the church: all which injuries are redreffed by a decree for their actual pay

h 2 Inft. 250.

ment,

ment.

Befides which all offerings, oblations, and obventions not exceeding the value of 40 s. may be recovered in a summary way, before two juftices of the peace. But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will iffue out of the temporal courts to ftop all fuits concerning them. As where a fee was demanded by the minister of the parish for the baptifm 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'; but no custom can fupport the demand of a fee without performing them at

all.

FOR fees alfo, fettled and acknowledged to be due to the officers of the ecclefiaftical courts, a fuit will lie therein: but not if the right of the fees is at all disputable; for then it must be decided by the common lawm. It is also said, that if a curate be licenced, and his falary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclefiaftical court" but, if he be not licenced, or hath no fuch falary appointed, or hath made a special agreement with the rector, he must fue for a fatisfaction at common law°; either by proving fuch fpecial agreement, or elfe by leaving it to a jury to give damages upon a quantum meruit, that is, in confideration of what he reasonably deferved in proportion to the fervice performed.

UNDER this head of pecuniary injuries may also be reduced the feveral matters of fpoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a fatisfaction may be fued for in the ecclefiaftical court.

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 fo taken. This injury, when the jus patronatus or right of advowfon doth not come in debate, is cognizable in the fpiritual court: as if a patron first presents A to a benefice, who is inftituted and inducted thereto; and then, upon pretence of a vacancy, the fame patron prefents B to the fame living, and he alfo obtains inftitution and induction. Now, if the fact of the vacancy be difputed, then that clerk who is kept out of the profits of the living, whichever it be, may fue the other in the spiritual court for fpoliation, or taking the profits of his benefice. And it fhall there be tried, whether the living were, or were not, vacant; upon which the validity of the fecond clerk's pretenfions must depend. But if the right of patronage comes at all into dispute, as if one patron presented A, and another patron prefented B, there the ecclefiaftical court hath no cognizance, provided the tithes fued for amount to a fourth part of the value of the living, but may be prohibited at the inftance of the patron by the king's writ of indicavit P. So also if a clerk, without any colour of title, ejects another from his parfonage, this injury must be redreffed in the temporal courts: for it depends upon no question determinable by the spiritual law, (as plurality of benefices are no plurality, vacancy or no vacancy) but is merely a civil injury.

FOR dilapidations, which are a kind of ecclefiaftical wafte, either voluntary, by pulling down; or permiffive, by fuffering the chancel, parfonage-houfe, and other buildings thereunto belonging, to decay; an action alfo lies, either in the fpiritual court by the canon law, or in the courts of common law 9, and it may be brought by the fucceffor against the predeceffor, if living, or, if dead, then against his executors. It is alfo faid to be good caufe of deprivation, if the bishop,, parfon, vicar, or other ecclefiaftical perfon, dilapidates the buildings, or cuts down timber growing on the patrimony of

• F. N. B. 36.

Circumfpete agatis ; 13 Edw. I. ft. 4.

Artic. Cleri. 9Edw. II. c.2. F.N.B.45.

Cart. 224 3 Lev. 268.

the church, unless for neceffary repairs: and that a writ of prohibition will also lie against him in the courts of common law. By ftatute 13 Eliz. c. 10. if any spiritual person makes over or alienates his goods with intent to defeat his fucceffors of their remedy for dilapidations, the fucceffor shall have fuch remedy against the alienee, in the ecclefiaftical court, as if he were the executor of his predeceffor. And by ftatute 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.

2

As to the neglect of reparations of the church, churchyard, and the like, the fpiritual court has undoubted cognizance thereof; and a fuit may be brought therein for nonpayment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which fuits may be inftituted,' in ecclefiaftical courts.

2. MATRIMONIAL caufes, or injuries refpecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though, if we confider marriages in the right of mere civil contracts, they do not feem to be properly of fpiritual cognizance. But the Romanists having very early converted this contract into a holy facramental ordinance, the church of courfe took it under her protection, upon the divifion of the two jurifdictions. And, in the hands of fuch able politicians, it foon became an engine of great importance to the papal scheme of an univerfal monarchy over Christendom. The numberless canonical impediments that were invented, and occafionally dispenfed with, by the holy fee, not only enriched the coffers of the church, but gave it a vaft afcendant over princes of all denominations; whofe marriages were fanctified or reprobated, their iffue legitimated or bastardized, and the fucceffion to their thrones eftablished or rendered precarious, according Roll. Rep. 86. 11 Rep. 98. Godb. 259. Circumfpe&te agatis. 5 Rep. 66. (3 Bulftr. 158, 1 Roll, Rep. 335,

t Warb, alliance. 173.