Abridgment of Ecclesiastical Laws

CHAP. XII.

Of Churches, Chapels, and Church-yards.

• 1. Ecclesia; what that word imports; the several kinds thereof.
• 2. Possessions of the Church protected by the Statute-Laws from Alienation; the care of the Emperor Justinian in that point.
• 3. To whom the Soyl and Freehold of the Church and Church-yard belong, to whom the use of the Body of the Church, to whom the disposal of the Pewes or Seats, and charges of Repairs.
• 4. The Common Law touching the Reparation of Churches, and the disposal of the Seats therein.
• 5. The same Law touching Isles, Pictures, Coats of Arms, and Burials in Churches; also of Assaults in Churches and Church-yard.
• 6. The penalty of quarreling, chiding, brawling, striking, or drawing a Weapon in the Church or Church-yard.
• 7. Where Prescription to a Seat in a Church is alleged, the Common Law claims the cognizance thereof.
• 8. The Immunities anciently of Church-Sanctuary; as also of Abjuration now abrogated and taken away by Statute.
• 9. The defacing of Tombs, Sepulchers, or Monuments in Churches, punishable at the Common Law; also of Right to Pewes and Seats in the Church.
• 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court.
• 11. A Prohibition upon a surmise of a custom or usage for Contribution to repair a Church.
• 12. Church-wardens are a Corporation for the Benefit, not for the Prejudice of the Church.
• 13. Inheritance cannot be charged with a Tax for Repairs of the Church, nor may a perpetual charge be imposed upon Land for the same.
• 14. When the use of Church-Books for Christnings first began.
• 15. Chapel; the several kinds thereof; The Canonists Conceits touching the derivation of that word.
• 16. Where two Parochial Churches are united, the charge of Reparations shall be several as before.
• 17. The Emperor Justinian 's Law Provisional, touching the Building of new Chapels.
• 18. Whether a Seat in the Church, and Priority in that Seat claimed by Prescription, be Triable at the Common Law by Action upon the Case.
• 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church.
• 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone, without the Major part of the Inhabitants.
• 21. Church-Seats in the generality are in the Ordinaries power to dispose.
• 22. Divers other Cases at the Common Law, pertinent to the subject of the Premises.
• 23. In what respects an Inhabitant in one Parish, having Land in another, may or may not be Taxed, as to the Church of that Parish where the Land lies.
• 24. The difference in Law between a Parsons grant to a man his own Tithes, and his grant to him the Tithes of another man, as to the validity of the Grant.
• 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocese.
• 26. In what respect a man inhabiting in one Parish, shall be charged towards the Reparation of the Church of another, where he hath Land, and in what respects not so.
• 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court; and no Prohibition, notwithstanding any inequality in the Rate.
• 28. Repairers of a Chapel of Ease, not discharged thereby of Reparations of the Mother-Church.
• 29. Land in a Parish not to be Rated for the Ornaments of a Church; That Rate to be according to the personal Estate.
• 30. In what case a Prohibition lies to a Suit for Reparations of a Church; not so, as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church.
• 31. The Bounds of a Parish not Triable in the Ecclesiastical Court, though the difference be between two Spiritual persons.
• 32. Prohibition, where a Vicar sued the Parson Impropriate for Dammages, for cutting down the Trees growing in the Church-yard.
• 33. Prescription of Repairing a Chapel of E • se, no discharge from repairing the Mother-Church.
• 34. The charge of Repairing a Church, refers to Land; of providing Ornaments of the Church, to the personal Estate; and how to be apportioned between Landlord and Tenant.
• 35. Action of Trespas lies for the Heir of such, whose Coat-Armor or Monument in Church or Church-yard, is by any defaced or demolished, be it by the Parson, the Ordinary, or by any other.
• 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church.
• 37. Certain Cases in Law touching striking in a Church and Church-yard, and drawing a Weapon in the same.
• 38. The difference taken between having a Seat in the Isle of a Church, and a Seat in the Body of the Curch.
• 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church, in regard such Prescription is merely Spiritual.
• 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches.
• 41. Towards Church-Reparations, all Lands within the Parish, as well of Foreigners as Parishioners, are ratably liable.
• 42. Controversies touching Seats in Churches, determinable in the Spiritual, not Temporal Courts; In what Cases the Common Law hath took cognizance thereof.

(1.) CHURCH [ Ecclesia ] 〈 in non-Latin alphabet 〉 , from the old word 〈 in non-Latin alphabet 〉 , h. e. 〈 in non-Latin alphabet 〉 , or rather 〈 in non-Latin alphabet 〉 , h. e. evocare, being an Assembly of men gathered out of all Mankind, or evocatus per Evangelium; or from the Hebrew [ Cahal] h. e. Congregatio; the true visible Church being a Congregation of Faithful men, in which the pure Word of God is preached, and the Sacraments duly ministered according to Christ 's Institution, in all things necessary to the same. This in a Theological sense; but the word [ Church ] in a Legal sense, as here chiefly intended, differs from the former as far as Dead Walls do from Living Saints; there being no more here designed to be touched at, than what refers rather to the Place, than to the Persons. Churches are of three sorts, Cathedral, Collegiate, Parochial. The Bishop is the Incumbent of the first: Priors and Abbots were, and Heads of Colleges are, Incumbents of the second: and Parsons of the third; commonly called a Rectory, being either a Parsonage or a Vicarage. And that either (1) Ration dotationis. (2) Fundationis. (3) Fundi.

(2.) The Emperor Justinian Decreed, That the Lands of the Church should not be sold, alienated, or exchanged, unless it were to the Prince's house, or to or with another like Religious place, and that in equal goodness and quantity, or that it were for the Redemption of Captives . But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects, and so as that they shall remain and continue, according to the true intent of their Foundation, to their Successors for ever, to the uses and purposes therein limited .

(3.) By the Common Law, the Church and Church-yard are it seems the Soyl and Freehold of the Parson; but the use of the Body of the Church, and the Repairs and Maintenance thereof is common to all the Parishioners; albeit the disposal of the Pewes in the Body of the Church, or an Isle or Chapel joining to the Body, and the disposing of the charges of the Repairs thereof, belong to the Ordinary; insomuch that no man can challenge a Seat in the Body of the Church without showing some special reason for the same. All which appears in the Case of Boothby against Bailey, where Boothby being Executor of Gilbert, brought a Prohibition against Bailey, and his Surmize was, That whereas Sir Bernard Whetston was seized of the Manor of Woodford-Hall, and that he and those whose Estate he hath in the same, had used time out of mind, to have a peculiar Pew in the Body of the Church, and that the Defendant by Suit in the Ecclesiastical Court, sought to dispossess them of the same. And by the Opinion of the whole Court, this was no sufficient ground of a Prohibition; for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson, yet the use of the Body of the Church, and the repair and maintenance thereof is common to all the Parishioners. And for avoiding of confusion, the distribution and disposing of Seats and charges of Repair belong to the Ordinary, and therefore no man can challenge a peculiar Seat without a special reason. But if it had been Prescribed, That Sir Bernard Whetstone, &c. had used time out of mind at their own costs to maintain that Pew, and had therefore had the sole use thereof, the Prescription might have stood and been warrant for a Prohibition, though the Pew were in the Body of the Church. And so it is in the like case of an Isle or Chapel adjoining to the Body of the Church upon the same difference, whether it hath been maintained by the whole Parish, or by some particular persons, like unto the Reasons of a Chapel of Ease .

(4.) Touching the Reparation of Churches, it hath been Ruled, That he who hath Land in a Parish, though he doth not inhabit there, shall yet be chargeable to the Reparation of the Parish-Church, but not to the buying of the Ornaments of that Church, for that-shall be levied of the Goods of the Parishioners, and not of their Lands, by Sir Hen. Yelverton, and said to be so formerly adjudged . And it hath been holden, That if two Churches Parochial be united, the Reparation shall be several as before . And although the Lord of a Manor may prescribe to a certain Seat or Pew in the Church, by having time out of mind maintained and repaired the same at the proper costs of himself and Ancestors, yet as to the Common Seats of the Church it is otherwise in respect of the Common Parishioners: As in the Case of Harris against Wiseman, against whom Harris had procured a Prohibition, Wiseman having Libelled in the Ecclesiastical Court against him for a Seat in the Church, which did belong to his House; and it was said by Hobart and Winch only present, That a man, or a Lord of a Manor, who had an Isle or a Seat in the Church, &c. and he is sued for that in the Spiritual Court, he shall have a Prohibition; but not every common Parishioner for every common Seat: yet in that case a Supersedeas was granted to stay the Prohibition It hath also been held, That the Grant of a Seat in a Church to one and his Heirs is not good; for the Case of Brabin and Tradum was, That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church, whereupon they disposed of a Seat to one, and the Ordinary granted the same Seat to another and his Heirs, and excommunicated all others, who afterwards should sit in the Seat, and a Prohibition was prayed and granted, for this Grant of a Seat to one and his Heirs is not good, for the Seat doth not belong to the Person, but to the House, for otherwise when the person goes out of Town to dwell in another place; yet he shall retain the Seat, which is no reason, and also it is no reason to excommunicate all others that should sit there, for such great punishments should not be imposed upon such small Offenders, an Excommunication being Traditio diab • la .

(5.) In the Case of Day against Beddington and others, upon a Cross-Bill between the parties, for pulling down of painted Glass, Pictures and Arms, in a Window in an Isle of a Chapel in the Parish of Wellington in Somerset, these points in the Case were Resolved: (1.) If an Inhabitant there, and his Ancestors time out of mind, &c. have used to Repair an Isle in a Church, and to sit there with his Family, &c. and to bury there, that makes that Isle proper and peculiar for his Family; Otherwise if he had not used to Repair it at his own costs, but with the charge of the Parish; then the Ordinary may appoint who shall sit there from time to time, notwithstanding a use to sit there, only, to the contrary. (2.) If any Superstitious Pictures are in a Window of a Church, or Isle, &c. it is not lawful for any to break them, &c. without License of the Ordinary; and if any does to the contrary, he shall bind him to his good Behaviour. And so it was in Prickett 's Case. (3.) That the Ordinary or Church-warden cannot License a Parishioner to Bury within the Church: But it ought to be Licensed by the Parson; for the Franktenement is in him only. (4.) If Coats of Arms are put in a Window, or upon a Monument in the Church or Church-yard, they may not be broken by the Ordinary, Parson, or Church-wardens, or any other; for the Heir shall have his Action upon the Case for that, 9 Ed. 4. 14. for they belong to him, 30 Ed. 3. 9. b. c. (5.) If one be Assaulted in the Church, or within a Church-yard, he may not beat the other, or draw a Weapon (although it be in his own defense) there; for it is a Sanctified place, and he may be punished for that by 2 Ed. 6. And so if in any of the King's Courts, or within view of the Courts of Justice; because a Force in that case is not justifiable, though in his own defense .

(6.) For the penalty of Striking or drawing a Weapon in the Church or Church-yard. Vid. Stat. 5 Ed. 6. cap. 4. whereby 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, upon proof by two Witnesses, to suspend the Lay-Offender ab ingressu Ecclesiae, and the Clerk-Offender from the ministration of his Office, for such time as to the said Ordinary shall seem meet: And if any one shall smite or lay violent hands upon another in any Church or Church-yard, in that case ipso facto, the Offender shall be deemed Excommunicate. But and if any person shall maliciously strike another with any Weapon in any Church or Church yard; or to the intent of striking another with the same, shall but draw a Weapon in any Church of Church-yard; the Offender being thereof duly convicted, shall lose one of his Ears if he hath any, or in one of his Cheeks with a hot-Iron be burnt and marked with the letter F, in case he hath no Ears, and besides shall stand ipso facto Excommunicated . Upon this Statute there was an Indictment against Jasper Colmley and John Colmley of Hoxton in the County of Middlesex, for that they Insultum fecerunt upon John Higham Dr. of Physic, in Ecclesia de Shoreditch praedicta; Et praedict. Joh. Higham adtunc, &c. ibidem in Ecclesia praedict. de Shoreditch, verbaraverunt, vulneraverunt, & male tractaverunt contra formam Statuti, &c. Upon this the Grand Jury find Billa vera quoad Jasper Colmley, and Ignoramus for John Colmley; And hereupon he appeared and pleaded Not guilty, and found against him. Rolls now moved in an Arrest of Judgment, That the Indictment was not good, being Fecerunt, whereas it is found only Billa vera against one. Sed non allocatur, because it was exhibited against Two, and it is but false Latin. Secondly, because the Indictment is contra formam Statuti, and this Offence is not punishable by the Statute, unless that he smote with a Weapon, or drew a Weapon in the Church or Church-yard, or drew a Weapon to that intent, which is not mentioned in the Indictment: And by the Second clause in the Statute, For smiting or laying violent hands, it is Excommunication ipso facto: and it is not mentioned here how he struck, and thereof the Justices doubted. But Jones said, That the Indictment is good for Battery at the Common Law. But all the other Justices were against him therein; for the Indictment concluding contra formam Statuti, It cannot be good as for an offense at the Common Law. But afterwards another Exception was taken by Grimstone, because the offense was alleged to be done in the Church of Shoreditch aforesaid, and Shoreditch was not named before: And upon view of the Indictment, it appearing to be so, all the Court held, that the Indictment was void: And for this cause the Defendant was discharged . In the Ecclesiastical Laws of Ina King of the West- Saxons, cap. 6. Qui in Templo pugnaverit, 120 Solidis noxiam Sarcito. Ibid. Aliud. Exemp. cap. 6. Si quis in Ecclesia pugnet, centum viginti Sol. emendet, &c. [& alias 60. emendet pro vita. ] Also among the Ecclesiastical Laws of Hoel Dha King of Wales, l. 10. De pugna quae in Coemiterio agitur, 14 Librae sunt reddendae. Likewise in l. 1. LL. Eccles. Edovardi Sen. R. Angliae, & Guthurni R. Danorum in East-anglia. Hoc primo Decreverunt, ut Ecclesiae pax intra suos parietes inviolate servetur. And in Cap. 2 & 3. LL. Eccl. Canuti Regis, valde rectum est, ut Ecclesiae pax intra parietes suos semper inconvulsa permaneat; quicunque eam perfregerit, de vita & omnibus in misericordia Regis sit. Et si quis pacem Ecclesiae Dei violabit, ut intra parietes ejus homicidium, hoc inemendabile sit, &c. nisi Rex ei vitam concedat.

(7.) Where Prescription is alleged for Right to a Seat in a Church, or for Priority in that Seat, the Common Law hath took cognizance thereof, as in the case of Carleton against Hutton, where C. claimed the upper place in a Seat in the Church, and H. disturbed him in a violent manner; and the Bishop of the Diocese sent an Inhibition to C. until the matter were determined before him. And by the Court a Prohibition was awarded; because it does not belong ( as Reported ) to the Spiritual Court: And as well the priority in the Seat as the Seat itself may be claimed by Prescription: and an Action upon the Case lies for it at Common Law, Ve. Litt. 121, 122. . The Ordinary hath in him the right of distribution of the Seats in a Church, yet so as that prescription shall take place, whether it refers to the right of any particular Parishioner, or to the power of the Church-wardens. The Case was, G. brought an Action of Trespass for the breaking of his Seat in the Church, and cutting of the Timber in small pieces, and carrying them away, &c. The Defendant pleads in Bar, That they were the Church-wardens: and that the Plaintiff had erected that Seat without the License of the Ordinary, and it was an hindrance to the Parishioners, &c. and that, they as Church-wardens, the said Seat, &c. the which is the same Trespass. The Plaintiff demurrs, and Judgment for him: For admitting that the Church-wardens may remove Seats in the Church at their pleasure, yet they cannot cut the Timber of the Pew. And thereupon they confessed the Trespass. Ve. 6 E. 4. 7. 9 E. 4. 14. 8 E. 4. 6. 18 E. 4. 8. 21 H. 7. 21. 12 H. 7. 27. 11 H. 4. 12. . Where there is a Parson Impropriate, he hath the best right to the chief Seat in the Chancel, as was Resolved in Sir William Hall 's Case again Ellis, where E. Farmor of a Rectory Impropriate Libels in the Ecclesiastical Court pro Sedile in dextra parte Cancellae, and in his Additional Libel he Libels pro loco primo, and principally in dextra parte Cancellae. The Defendant there surmises to have a Prohibition, Quod est antiqua Parochia & antiqua Cancella: and that he is seized of an Ancient Messuage in that Parish, and that he and all those, &c. have used to sit in dextra parte Cancellae praedict. to hear, &c. And it was Resolved by the Court, That of common Right, the Parson Impropriate, and per consequence his Farmor, ought to have the chief Seat in the Chancel; because he ought to repair it: But by Prescription another Parishioner may have it. But in this case a Consultation was awarded, with a quoad, &c. because the Libel and the Additional that now is all one, is pro primo Loco, &c. and the Surmize is only pro Sedile in dextra parte, and not pro loco primo in it .

(8.) The Church in construction of Law, is Domus mansionalis Omnipotentis Dei, and therefore it is Burglary for a man to break and enter a Church in the night, of intent to steal, &c. . And so sacred is the Church and Church-yard reputed in Law, That Ecclesiastical persons, whilst they are doing any Divine Service in either of them, or in any other place dedicated to God, may not be Arrested . Yea Anciently the Church and Church-yard was a Sanctuary, and the foundation of Abjuration; for whoever was not capable of this Sanctuary, could not have the benefit of Abjuration; and therefore he that committed Sacrilege could not Abjure, because he could not take the privilege of Sanctuary . This Abjuration was, when one having committed Felony, fled for safeguard of his life to the Sanctuary of a Church or Church-yard, and there before the Coroner of that place within 40 days confessed the Felony, and took an Oath for his perpetual Banishment out of the Realm into a Foreign (not Infidel) Country, choosing rather Perdere patriam quam vitam . But this Abjuration founded upon the privilege of Sanctuary is wholly abrogated and taken away by an Act made 21 Jac. Reg. whereby it is Enacted, That no Sanctuary or privilege of Sanctuary should be admitted or allowed in any case . And here Note, That this kind of Abjuration hath no relation to that of Recusants by force of the Stat. of 35 Eliz. cap. 1. because such Abjuration hath no dependency upon any Sanctuary . But as to the other Abjuration in relation to Felonies, Sacrilege excepted, (no Abjuration or Sanctuary being allowed in cases of Treason or Petit Treason) the Law was so favorable for the preservation of Sanctuary in the Church or Church-yard, That if a Prisoner for Felony had before his attainder or conviction escaped and taken Sanctuary, and being pursued by his Keepers or others were brought back again to the Prison, he might upon his Arraignment have pleaded the same, and should have been restored again to the Sanctuary of the Church or Church-yard .

(9.) The defacing of Tombs, Sepulchers, or Monuments erected in any Church, Chancel, Common Chapel, or Church-yard, is (it seems) punishable by the Common Law; and for which the Erectors or Builders thereof during their lives, and after their decease their Heirs, shall have the Action . But the Erecting thereof ought not to be to the hindrance of Divine Service. And albeit the Freehold of the Church is in the Parson, yet if the Lord of a Manor, or any other that hath an House within the Town or Parish, and he and all those whose Estate he hath in the Mansion-house of the Manor, or other House, hath had a Seat in an Isle of the Church for him and his Family only, and have repaired it at his own proper charges, it shall be intended that some of his Ancestors, or of the parties whose Estate he hath, did build and erect that Isle for him and his Family only; and therefore if the Ordinary endeavor to remove him, or place any other there, a Prohibition (as was resolved in Corven 's Case) will lie . It hath also been further Resolved, That if any man hath a House in a Town or Parish, and that he and those whose Estate he hath in the House, hath had time out of mind a certain Pew or Seat in the Church, maintained by him and them, the Ordinary may not remove him (for Prescription, according to Sir Ed. Coke, maketh Certainty, the Mother of Quietness) otherwise a Prohibition will also lie in the case . But where there is no Prescription, there the Ordinary for avoiding of contention in the Church, may place the Parishioners in the Church or public Chapel according to their qualities and degrees . And until the Bishop hath consecrated or dedicated Churches or public Chapels new erected, the Law doth not take knowledge of them qua tales; for which reason it is, That a Church or not a Church; a Chapel or not a Chapel; is Tried and Certified by the Bishop .

(10.) Touching the Reparation of Churches, the cognizance thereof appertains to the Ecclesiastical Court, as was Agreed by the Court in Buck 's Case against Amcotts, where in a Prohibition the Defendant said, That in Hornechurch in Essex are Chapels of Ease, viz. Rumford and Haveringe Chapels, and that they of Haveringe have used time out of mind, &c. to contribute to the Reparation of Rumford: and that in the time of H. 4. virtute Literar. patent. & concurrentibus iis, &c. And Rumford was pulled down, and erected in a more convenient place within this precinct and circuit, viz. twenty eight foot longer and fourteen foot broader. Noy, That it does not lie. (1) Virtute Literàr. patent. in general is not good. But the Patent ought to have been shewn in haec verba, or produced in Court; by which the Court might judge: For a new Church cannot be erected without Letters Patents, because it is a Sanctuary, Ve. 5 E. 3. 26. 1 H. 7. 25. & 22 E. 4. the Lord Lisle 's Case. (2.) The Prescription is gone, by the erecting in another place, and longer, &c. as aforesaid, ve. 4. Rep. P. 6. And that shall be taken strict, Perkins 761. 7 E. 4. 27. 10 E. 3. 23. But the Court was on the contrary, because it is pro bono Publico, and in such a case a Pleader, by Concurrentibus iis, is good. As in an Union, 11 H. 7. 8. And that the Cognizance for Reparation of the Church; appertains to the Spiritual Court; and is not like the Case of a Tenure, 4 Rep. 86. because the Tenant by that is put to a greater charge, and no profit or benefit accrues to the Tenant, as it does to the Parishioner. And Easter Term ensuing, a Consultation was granted by the Court . He that hath the Impropriation of a Rectory or Parsonage, ought to repair the Chancel, and so he ought to contribute to the reparation of the Church, if he hath any Land in that Village. Mich. 18 Jac. B. R. Serjeant Davies Case. Roll. Rep. par. 2.

(11.) The Church-wardens of Denford, an Ancient Church in the County of Northampton, sue the Inhabitants of Kingstead in the same Parish, where there was a Chapel of Ease, for contribution to repair the Church of Denford. And they pray a Prohibition upon suggestion, That time out of mind, &c. they have used to Repair their own Chapel, and only a part of the Wall of the Church-yard of the said Church of Denford. And it seemed by the better opinion of the Court, that it was not good. For their Ease shall not be a disease to the rest of the Parishioners. For Popham said, That the Assent is not requisite to build a Chapel of Ease, and then the Ordinary and the Parson cannot charge the Parishioners with greater charge. By Yelverton, That the Parson ought to repair the Wall of the Church-yard. But by Fenner, The Parishioners in the Spiritual Court shall be compelled to do it, although that the Frank-tenement be in the Parson. Yelvert. objected, and by Kemp secondary, That the Parishioners of repair the Wall of the Church-yard. Yet now it was ordered, that a Prohibition shall be granted, and the D • fendants if they please may demur upon it. Note also B. 5 Jac. B. R. a Derbyshire -Case, where a Prohibition in such case was denied .

(12.) Two Church-wardens sue S. for Reparation of the Church according to the Tax assest. S. pleads he always offered to pay. By which the Sentence in the Ecclesiastical Court passed against them. Then they Appeal, and Sentence is repealed, and 15 l. Costs given to them, and they sue for that 15 l. in the Ecclesiastical Court. S. pleads a Release of one of the Church-wardens. And in a Prohibition it seemed to the three Justices, That that Release is a Bar against the other, and that if it be disollowed in the Spiritual Court; by the Court it was said a Prohibition shall lie. 7 Jac. B. R. rot. 852. A Consultation in such case was granted, for the Church-wardens in such a case are a Corporation for the benefit, but not for the prejudice of the Parish. 13 H. 7. 9. 11 H. 4. 12. And they shall recover the Costs to the use of the Church, and the Release shall be well enough determined there, where the Suit was commenced .

(13.) In Heal 's Case against the Church-wardens of Hobleton, it was agreed by the Court, That for a Tax assest for the Reparation of a Church a Rate made perpetuis duratura temporibus, it is not good to bind the Inheritance; but yet it is good by way of direction, how and how much shall be levied as need requires . And in Chamber 's Case a Prohibition was awarded to the Court of the Bishop of Oxford; for that, that Chambers was sued there for a perpetual charge imposed upon his Land, for the Reparation of the Church. For by the Court, an Inherritance cannot be charged with that .

In another Case one that was sued in the Ecclesiastical Court for Rates to reparation of the Church, alleged that they had overvalued his Land, Rating them at the value of 100 l. per. annum, they being worth but 60 l. (2) He alleged a Custom in the Parish, that they ought to be rated not according to the value of their Farms and Houses, but only according to the value of their Sheep-walks, and on that matter he prayed a Prohibition. As to the first, all the Court (except Whitlock ) Resolved, that it is not material, because the Rates ought to follow the value of the Land, and for that the valuing of the Land properly belongs to them. As to the second, Noy moved, That although the Principal be a thing Spiritual, yet it is now mixed with a Custom, as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction. Houghton Justice, It seems so as to other things; but the Church being the House of God, is more to be regarded, and a custom in prejudice to the Reparations of the Church, is void; for of common Right the House and all Lands are chargeable to the Reparations. And the Court commanded him to make a Suggestion of the Custom, omitting the value, and then they would consider, whether a Prohibition should go or no.

In Stephenson 's Case it was Resolved, that if one hath Lands in one Town, and doth inhabit in another; he shall be compelled to be contributary to the Reparation of the Parish Church where the Lands are.

(14.) Note, by Coke Chief Justice, That the keeping of a Church-Book for the Age of those which should be Born and Christened in the Parish, began in the Thirtieth year of Henry the Eighth, by the instigation of the Lord Cromwell .

(15.) Chapel, Capella, of the French [ Chapellee, that is, aedicula ]. Of this there seems to be three sorts; the one such as adjoyns to the Church, as parcel of the same, built by Persons of Honor, ut ibidem Familiaria Sepulchra sibi constituent; Another, that which is separate from the Mother-Church in a Parish of a large extent, built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church, and thence vulgarly called a Chapel of Ease, being served by some inferior Curate at the charge either of the Rector, or of such as for whose convenience it is, according to the custom or composition. A Chapel of Ease is where there is a Parochial Church in the same Parish, wherein the Sacraments are administer'd, and not in the Chapel. 8 H. 6. 32. which appertains to the Parochial Church, and the Parson thereof. Ibid. And a Parochial Church cannot be a Chapel. 8 H. 6. 37. The Third is that which is called a Free-Chapel, which in point of Maintenance and endowment, as also in respect of exemption from the Ordinaries Jurisdiction, seems to differ from both the former, and hath perpetual maintenance towards the upholding thereof, by a charitable Endowment thereof, without the charge of the Rector or Parish . So that a Free-Chapel or Libera Capella is, according to the opinion of some, no other than a Chapel founded within some Parochial precincts for Divine Service, by the bounty of some well disposed person (over and above the Mother-Church) to which it was at the Parishioners choice or liberty (for whose convenience it was erected) to repair or not, and endowed with Maintenance by the Founder, and therefore called Free. Notwithstanding which others are of opinion, and that more probable, That these only are Free Chapels, which are of the Foundation of Kings, and by them exempted from the Jurisdiction of the Ordinary; but the King may also License a Subject to Found such a Chapel, and by his Charter exempt it from the Visitation of the Ordinary; in respect of which exemption, and from the Jurisdiction of the Diocesan, it appears by the Register of Writs to be called Free . H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat. ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub, &c.. The King himself Visits his Free Chapels and Hospitals, and not the Ordinary . The Lord Chancellor executes it for the King. These Chapels were all of them, together with Chantries given to the King : Of this kind is the Free Chapel of St. Martin le Grand . The Canonists are not agreed touching the derivation of this word; some take it ( à capiendo Laicos, ) others ( à Capra, ) because they conceive that they resemble those Cottages which were wont to be covered over with Goat-skins. Others ( à cappa Divi Martini ). Others ( e Chapellee, Gallic.) .

(16.) In the Parish of Aston (in the County of Warwick ) which hath a Parish Church, is a certain Chapel of Ease, called Castle-Birmidge Chapel, and a certain Precinct called Castle-Birmidge, the Inhabitants thereof resort to the said Chapel, and there Marry, Christian, and receive the Sacraments; there are also Church-wardens, and the Inhabitants have a Perambulation there of itself; notwithstanding all which, when it came in debate, whether the Parishioners of the Chapel (the Parish-Church of Aston being in decay) might be Taxed towards the Reparation thereof, they obtained a Prohibition on a Surmize, which not appearing to be true, a Consultation was awarded; yet in that case it was held, That if two Churches Parochial be united, the Reparation shall be several as before. And that a Chapel of Ease is part of the Parish, & de communi jure liable to reparations of the Parish Church; that such as have a Chapel of Ease may resort to the Parish Church, if they so please; and that the Parson of the Parish-Church may Officiate at the Chapel of Ease, if he will .

(17.) The Emperor Justinian in the fifth Collation of his Novel Constitutions, commonly called the Authenticks, emitted by him after the Digest and the Code, hath Ordained, That no man build a Chapel in his House without the leave of the Bishop, and before he consecrate the place by Prayer, and set up the Cross there, and make procession in the place; and that before he build it, he allot out Lands necessary for the maintenance of the same, and those that shall attend on God's Service in the place. In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity, established in this Realm against Seditious Conventicles; For in that Collation it is likewise Ordained by the said Emperor, That the sacred Mysteries or Ministries be not done in private Houses, but be celebrated in public places, lest thereby things be done contrary to the Catholic and Apostolic Faith, unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made, or those who are thereunto deputed by the Bishop. But Chapels and places to pray in every man may have in his own House; if anything be done to the contrary, the House wherein these things are done, shall be confiscate, and themselves punished at the discretion of the Prince .

(18.) A. the Father had all his life the chief place in a certain Seat in the Church, and H. his Son likewise claimed the same, and C. disturbed him in a violent manner; the Archbishop of York, in whose Jurisdiction this was, granted an Inhibition against C, till the matter were determined before him, and Excommunicated him for Disobedience. C. claimed the place by Prescription, and for that Reason prayed a Prohibition: And it was said, That the Excommunication was only for his Contempt: And it is lawful for the Bishop to grant such an Inhibition for the peace of the Church. And Doddridge agreed, That if the Bishop did Inhibit any from making a disturbance in the Church, it was good; and therefore would not grant a Prohibition for well-doing. Crew & Jones, &c. but here he had not done well. Doddridge e contra. Then it was said, That here the Bishop had Inhibited till the matter were determined before himself. And the whole Court agreed, That a Seat in a Church claimed by Prescription, and the priority therein likewise claimed by Prescription, is Triable in this Court by an Action upon the Case, and not in the Spiritual Court. And at last it was agreed by the parties, that H. should remain in possession till the matter were tried by Prohibition. And a Prohibition was awarded in the Case . Note, That a Prohibition may not be granted after a Consultation . And as it seems, by the course of Proceedings in the Court of the King 's Bench, a Prohibition shall not be granted the last day of a Term, and such a Motion ought not then to be made; but upon a motion there may be a Rule to stay proceedings till the next Term .

(19.) It was moved in the King's Bench for a Prohibition to the Ecclesiastical Court at Worcester, and shown for cause (1) That the Suit there was for Money, which by the assent of the greater part of the Parishioners of D. was Assessed upon the Plaintiff for the Reparation, viz. for the Re-casting of their Bells; The truth is, That the charge was for the making of new Bells, where there were Four before, whereby it appears that it is merely matter of curiosity, and not of necessity, for which the Parishioners shall not be liable to such Taxations, and herein it was relied upon 44 E. 3. 19. by Finchden. (2) The party there is overcharged, of which the Common Law shall judge. (3) The party hath alleged, that he and all those who have an Estate in such a Tenement, have used to pay but Eleven shillings for any Reparation of the Church. But the Prohibition was denied; and by Doddridge in the Book of 44 E. 3. there was a By-law in the Case to distrain, which is a thing merely Temporal, for which the Prohibition was granted & per Curiam; in this case the Assessment by the major part of the Parishioners binds the party, albeit he assented not to it: And the Court seemed to be of opinion, That the Custom was not reasonable, because it laid a burden upon the rest of the Parish. Littleton of Counsel of the other side, Suppose the Church falls, shall he pay but Eleven shillings? Whitlock, If the Church falls, the Parishioners are not bound to build it up again, which was not denied by Justice Jones .

(20.) Roberts and others of East-Greenwich were cited in the Ecclesiastical Court to pay money that the Church-wardens had expended in Reparation of the Church; and the Inhabitants alleged, That the Tax was made by the Church-wardens themselves, without calling the Freeholders, and also that the Moneys were expending in the Re-edifying Seats of the Churches, which belonged to their several houses: And they never assented, that they should be pulled down. And now the Allegation was not allowed in the Ecclesiastical Court, but Sentence was given against them. And then they Appealed to the Arches, where this Allegation was also rejected; and for that he prayed a Prohibition: And the Court agreed, That the Tax cannot be made by the Church-wardens, but by the greater number of the Inhabitants it may, and a Prohibition was granted. But by Yelverton, if they be cited by Ex Officio, a Prohibition will not lie; for so it was Ex insinuatione, &c. For the Wardens came and prayed a Citation, &c. But by Richardson, Harvey, and Crook privately, a Prohibition will lie in both Cases .

(21.) E. Libels in the Ecclesiastical Court against A. pretending, that a Seat, that the other claimed always in the Church, belonged to his House, and Sentence in that Court was given against E. and Costs pro falso clamore. And he Appealed to the Arches, and there when they were ready to affirm the Sentence, he prayed a Prohibition. And it was moved by Davenport, that it might be granted; and he cited one Tresham 's Case 33 Eliz. where in such a case a Prohibition was granted after an Appeal. Richardson, There is no cause for any Prohibition, but in respect of the costs. Hutton said it was a double vexation, and the party shall not have Costs for that. Hitcham said, they came too late to have a Prohibition for the Costs. Richardson, That is not like to the Probat of a Will, where a thing may fall out Triable at the Common Law. But there the Principal was tried at the Common Law; for they had it as in right. Hutton, Seats in the generality are in the power of the Ordinary to dispose; It is the Prescription which makes that triable at the Common Law; and if Prescription be made there, and it be found, then he shall pay Costs. Richardson, All Disturbances appertain also to them: if it be not upon the Statute of 5 Ed. 6. But if a Title be made there by Prescription, it is merely coram non Judice; and if they cannot meddle with the Principal, it is not reason that they should tax Costs. And a Prohibition was granted .

(22.) H. Farmer of a Manor; A. and other Church-wardens Libel against him in the Ecclesiastical Court for a Tax for the reparation of the Church. Henden moved for a Prohibition because that first the Libel was upon a custom, That the Lands should be charged for Reparations, which Customs ought to be tried at the Common Law. And secondly, Because the custom of that place is, that Houses and Arable Lands should only be taxed for the Reparations of the Church, and Meadow and Pasture should be charged with other Taxes. But the whole Court on the contrary: First, although that a Libel is by a Custom, yet the other Lands shall be dischargeable by the Common Law; but the usage is to allege a Custom; and also that Houses are chargeable to the Reparations of the Church, as well as Land. And thirdly, that a custom to discharge some Lands is not good. Wherefore a Prohibition was granted .

Note, that where a man sued in the Ecclesiastical Court, prescribing to have a Seat in a Church ration Messuagii where he inhabited; upon the motion of Serjeant Henden, a Prohibition was granted, for it is a Temporal thing .

Note, By Coke Chief Justice, That the keeping of a Church-Book for the age of those, which should be born and christened in the Parish, began in the 30th. year of Henry the Eighth: by the instigation of the Lord Cromwell .

A man was indicted upon the Statute of Ed. 6. That in the Church-yard, such a day, extraxit gladium against J. L. & ipsum percussit; and because the Statute was, If any person maliciously strik another, or shall draw any Weapon with an intent to strike any person: And the Indictment was quod extraxit, but does not say ad percutiendum: And because it is quod percussit without saying malitiose, the party was discharged upon Judgment .

If there be a Parson Appropriate of a Church, and also a Vicar endowed of the same Church, the Trees in the Church-yard do there belong to the Vicar, and not to the Parson; for that there the Vicar ought to repair the Church, and he shall have the Trees which ought to repair the Church. Dubitatur. Mich. 13 Jac. B. R. Bellamie 's Case .

The Lord Coke said, That for the Body of the Church, the Ordinary is to place and displace; in the Chancel the Freehold is in the Parson, and it is parcel of his Glebe; Trespass will lie by the Heir for pulling down the Coat-Armor, &c. of his Ancestors, set up in the Church. A Pew cannot belong to a House.

(23.) An Inhabitant of the Parish of D. hath Land in his occupation in the Parish of S. The Church-wardens of S. and other the Parishioners there make a Tax for the Reparation of the Church, for Ornaments of the Church, and for the Sexton's wages, amounting to the sum of 23 l. and the Tax of the Church being deducted, cometh but to 3 l. only. The Foreigner which dwells in D. is sued in the Ecclesiastical Court by the Churchwardens of S. for his part of the said Tax; and he prays a Prohibition. Henden said, he well agreed the Case of Jefferies, 5 Coke, that he should be charged, if this Tax had been for the Reparation of the Church only; for this is in nature Real. But when that is joined with other things, which are in nature personal, as Ornaments of the Church, or Sexton's wages, with which, as it seems, he is not chargeable, then Prohibition lies for all. Flemming Chief Justice, and Williams Justice, thought fit that he should not have a Prohibition: for as well the Reparations of the Church, as the Ornaments thereof, are merely Spiritual, with which this Court hath nothing to do; and Flemming said, That such Tax is not any charge issuing out of the Land, as a Rent, but every person is taxed according to the value of the Land: But Yelverton and Fenner to the contrary, that a Prohibition doth lie, for the same diversity which had been conceived at the Bar; and also they said, That he which dwells in another Parish, doth not intend to have benefit by the Ornaments of the Church, or for the Sexton's wages: And for that it was agreed by all, by the Chief Justice, Williams, and the others, That if Tax be made for the Reparation of Seats of the Church, that a Foreigner shall not be taxed for that, because he hath no benefit by them in particular; and the Court would advise . In Penner and Crompton 's Case, it was held, That none shall be chargeable for contribution to Church-reckonings if he do not inhabit there, or consent to them. More 's Rep.

(24.) Note, upon a motion for a Prohibition; That if a Parson contract with me by word, for keeping back my own Tithes for three or four years; This is a good Bargain by way of Retainer: and if he sue me in the Ecclesiastical Court for my Tithes, I shall have a Prohibition upon this composition. But if he grant to me the Tithes of another, though it be but for a year; This is not good, unless it be by Deed.

(25.) The disposal of Seats in the Body of the Church doth belong of common right to the Ordinary of the Diocese, so as he may place and displace at his pleasure. If a man and his Ancestors, and all those whose Estate he hath in a certain Messuage, have used time out of mind, &c. to repair an Isle of the Church, and to sit there, and none other: the Ordinary may not displace him; for if so, then a Prohibition lies, for that he hath it by prescription upon reasonable consideration : Likewise if a man prescribe, That he and his Ancestors, and all those whose Estates he hath in a certain Messuage, have used to sit in a certain Pew in the body of the Church time out of mind, &c. in consideration that he, &c. have used time out of mind to repair the said Seat. If the Ordinary remove him from that Seat, a Prohibition lies, for in this case the Ordinary hath not any power to dispose thereof; for that is a good prescription, and by intendment there may be a good consideration for the commencement of that prescription, although the place where the Seat is be the Parson's Freehold. In this case a Prohibition was granted to the Bishop of Exeter for one Cross . But if a man prescribe to have a Seat in the Body of the Church, generally, without the said consideration of repairing the Seat, the Ordinary may displace him . But with the Seats in the Chapels annexed to Noblemen’s Houses, it is said the Ordinary hath nothing to do . If there be a custom in a Parish, that 12 of the Parishioners may choose the Churchwardens, which Churchwardens have power by the custom to repair the old Seats, and erect new in the Body of the Church, and to appoint who shall sit in them; And the Churchwardens so elect, erect a New Seat in the Body of the Church, and appoint a certain person to sit there; and after the Ordinary decree, That another shall have the Seat: In this case it is said a Prohibition lies, for the custom hath fixed the power of disposing the Seats in this case in the Churchwardens, and a Prohibition was granted: But it was also partly granted, for that the Sentence of the Ordinary was, That T. should have the Seat to him and his Heirs, and that none should disturb him on pain of Excommunication, which is unreasonable; and by that Sentence he and his Heirs shall have it, although they do not Inhabitants within the Parish .

(26.) The Ecclesiastical Court hath cognizance of the Reparations of the Body of the Chuech . If a man that dwells in one Parish, hath Land in another, the which he keeps in his own hands and occupation, he shall be charged for that Land for the Reparation of the Church of that Parish where the Land lies, for that he may come when he will, and it is a charge in respect of the Land . But if an Inhabitant in one Parish, lease out his Land which he hath in another Parish, reserving Rent, he shall not be charged where the Land lies, in respect of the Rent, because there is a Parishioner and an Inhabitant that may be charged . And a man cannot be charged in the Parish where he doth inhabit, for Land which he hath in another Parish, to the Reparation of the Church, for that he may then be twice charged, for he may be charged for that in the Parish where the Land doth lie ; in which case Prohibition hath been granted.

(27.) If a Citizen of London erect a House in the Parish of A. with intent of dwelling there in time of Sickness at London, and hath not any Land in the Parish, and after is Assessed 20 s. for Reparation of the Church, where others who have 100 acres of Land in the same Parish, pay but 6 d. yet no Prohibition shall be granted on a Suit for the said 20 s. in the Ecclesiastical Court, for that they have Jurisdiction of the thing, and for which reason they may order it according to their Law .

(28.) If there be a Chapel of Ease within a Parish, and any persons of the Parish have used time out of mind, &c. alone and by themselves without others of the Parishioners to repair that Chapel of Ease, and there to hear Divine Service, and to Marry, and all other things, only they Bury at the Mother-Church; yet they shall not be discharged of Reparations of the Mother-Church, but ought to contribute to the same, for the Chapel was Ordained only for their ease . But if Inhabitants within a Chappelry prescribe to be discharged time out of mind, &c. of the Reparation of the Mother-Church, and are sued in the Ecclesiastical Court for the same, a Prohibition lies on that Surmize .

(29.) If a man be rated for the Ornaments of the Church according to the Land which he hath in the Parish, a Prohibition lies, for the Rate for that ought to be according to the personal Estate . Also if a man who is not any Inhabitant within the Parish, but hath Land there, be rated for the Ornaments of the Church according to the Land, a Prohibition lies, for the Inhabitants ought to be rated for that ; and it was said by Yelverton, That it had been often so Resolved.

(30.) If all the Parishioners are not rated for the Reparation of the Church, but some are and some are not, and those that are rated be sued in the Ecclesiastical Court, a Prohibition will lie . But if the major part of the Parishioners of a Parish, where there are four Bells, doth agree that there shall be a fifth Bell made, and it be made accordingly, and a Rate made for payment of the same; it shall bind the lesser part of the Parishioners although they did not agree to it, for otherwise any obstinate persons may hinder anything intended to be done for the Ornament of the Church; and therefore in this case a Prohibition was denied .

(31.) The Ecclesiastical Court may not try the Bounds of a Parish; if therefore there be a Suit there depending for that, a Prohibition will lie; as where the difference is between two Vicars concerning a Chapel of Ease; As when the Vicar of a Parish Libels against another to avoid his Institution to the Church of D. which he supposes to be a Chapel of Ease belonging to his Vicarage: if the Defendant suggest, that D. is a Parish of itself, and not a Chapel of Ease, a Prohibition lies, for they may not try the Bounds of a Parish .

(32.) If a Vicar sue the Parson Impropriate for damages for cutting down the Trees growing in the Church-yard, a Prohibition lies; for that if the Trees belong to him, he may have Trespass at Common Law; And in this case a Prohibition was granted .

(33.) One being sued in the Ecclesiastical Court for money for reparation of the Church, prayed a Prohibition and had it, and after it was moved for a Consultation. The case was this, viz. The party that was sued, prescribed that there is a Chapel within the same Village, in which they have had at all times Sacramenta & Sacramentalia, and that he nor the Inhabitants of that Village which resort to the said Chapel, have ever used to repair the said Church; the first point in this case was, whether the Prescription were good; and the Chief Justice said, that it is contrary to Common right, that they who have a Chapel of Ease in a Village should be discharged of repairing the Mother-Church; and it may be that the Church being built with Stone, it may not need any Reparation within the memory of man, and yet that doth not discharge them without some special cause of discharge shown. The second point was the taking away of an Objection, as they said, viz. That a Prescription which is incident to Ecclesiastical things, shall be tried in the Ecclesiastical Court, and so that Objection removed, and commonly the Churchwardens are chosen in the Ecclesiastical Court, yet the Lord of a Manor may prescribe for that, and then it shall not be tried in the Ecclesiastical Court, although it be a Prescription of what appertains to a Spiritual thing.

(34.) Note, that in the case of Churchwardens, the Chief Justice said, That for the repairing the Fabric of the Church the charge is real, & charges the Land and not the person; but for the Ornaments of the Church it is personal, and there if a man be not an Inhabitant within the Parish, he is not chargeable in respect of his Land, for such Tax doth charge the Goods only. And to this Chamberlain Justice agreed, and none denied it; but where there is a Farmor of the Land, there the Farmor alone shall not be charged, for it is not reason that a poor Husbandman, who pays Rent for his Land, and perhaps to the utmost value, should build Churches; but it may be unknown to the Parishioner and the Churchwardens who hath the Fee in reversion, and therefore they may impose the whole Tax on the Farmor, and he by way of Answer may allege in the Ecclesiastical Court that he is but the Farmor, and thereupon the Tax shall be divided between him and his Landlord, according to the Rate which the Land is worth more than the Rent, and on the Landlord according to the quantity of the Rent; quod quaere, for in Jeofferie 's Case 5 Coke it is Resolved, That the Farmor alone is chargeable, and that a Consultation was granted, but not for that reason, but for that the Reversioner had pleaded an insufficient plea in the Ecclesiastical Court, viz. That he was not an Inhabitant within the Parish, which is not a good plea, as also for the great delay which he had used, having made or brought two Appeals, and after a Prohibition, and so had put the Parish to 60 l. charge for the recovery of 6 l. and for that reason chiefly, and not on the matter in Law was the Consultation granted.

(33.) In Frances and Ley 's Case, it was Resolved by the Justices, That Coats of Arms placed in Windows, or a Monument placed in the Church or Church-yard, cannot be beaten down and defaced by the Parson, Ordinary, Churchwardens, or any other: And if they be, the Heir by descent interested in the Coat, &c. may have an Action of Trespass.

(36. ) In an Action upon the Case, D. shown he was seized of a Messuage and Land in P. to the same belonging, and in the Parish of P. time whereof, &c. and yet is a Chapel in the North part of the Chancel, called the Parsons Chancel, and the Plaintiff and all those, &c. have used to sustain and repair the said Chancel, and have used for him and his Family to sit in Seats of the said Chancel, and to Bury there the persons dying in the said Messuage, and that none other during all the said time, &c. without their License, have used to sit there, or to be buried there, and that the Defendants Praemissorum non ignari, malitiose impediverunt him to enter, and sit in the said Seats. The Defendant said, That the Earl of N. was seized of the Honor of F. and the said Chapel was parcel of the said Honor, and that the Defendants being Servants of the said Earl, and resident within the said Honor, did divers times in the time of Divine Service sit in the Seats of the said Chancel, by the command of the said Earl; upon which it was Demurred: Exceptions were taken to the Declaration, because he prescribes to have a Liberty appertaining to his House, and doth not show it is an Ancient House. And (2) That the Allegation of the disturbance was ill, being general, without alleding a special Disturbance, and how he was disturbed. Resolved, That when it is supposed he is seized in Fee of a Capital Messuage, and time, &c. it is there included, that it is an ancient Messuage, and so might have such a privilege; And for the second, it is sufficient to allege a general Disturbance, as is usual in the Case of a Fair or Market.

(37. ) D. was Indicted upon the Statute of 5 E. 6. for striking in Paul 's Church-yard; he pleaded that he was by the Queens Letters Patents created Garter King of Arms, and demanded Judgment because he was not so named: It was the opinion of the Court, that because it was a parcel of his Dignity and not of his Office only, and because the Patent is, Creamus, coronamus, & nomen imponimus de Garter Rex heraldorum, that therefore in all Suits brought against him, he ought to be named by this name; and thereupon he was discharged of the Indictment. And in Penhallo 's Case, who was Indicted upon the same Statute, for drawing of Dagger in the Church of B. against J. S. and doth not say, with intent to strike him; for which cause the Judgment was quashed. Likewise in Child 's Case, who was Indicted for striking in the Church-yard; and it was apud generalem Sessionem Pacis tent. apud Blandford, and it was not said [ in Comitatu praedicto ] for which reason the party was discharged, though the County was in the Margin.

(38.) In Pym 's Case before-mentioned; Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire; And Pym, by Serjeant Hutton, moved for a Prohibition upon this Reason, That himself is seized of a House in the said Parish; and that he and all whose Estate he hath in the House, have had a Seat in an Isle of the Church: And it was Resolved by the Court, That if a Lord of a Manor, or other person, who hath his House and Land in the Parish, time out of mind, and had a Seat in an Isle of the same Church; so that the Isle is proper to his Family, and have maintained it at their charges; That if the Bishop would dispossess him, he shall have a Prohibition: But for a Seat in the Body of a Church, if a question ariseth it is to be decided by the Ordinary, because the Freehold is to the Parson, and is common to all the Inhabitants. And it is to be presumed, That the Ordinary who hath cure of Souls, will take order in such cases, according to right and conveniency; and with this agrees 8 H. 7. 12. And the Chief Justice, Damc Wick her Case, 9 H. 4. 14. which was, The Lady brought a Bill in B. R. against a Parson, Quare tunicam unam vocatam, A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms, and a Sword, in a Chapel where he was buried; and the Parson claimed them as Oblations: And it was there held, That if one were to sit in the Chancel, and hath there a place, his Carpet, Livery, and Cushion, the Parson cannot claim them as Oblations; for that they were hanged there is honor of the decased: The same reason of a Coat-Armor, &c. And the Cbief Justice said, The Lady might have a good Action, during her life, in the case aforesaid, because she caused the things to be set up there; and after her death the Heir shall have his Action, they being in the nature of Heir-Looms which belong to the Heir. And with this agrees the Laws of other Nations. Bartho. Cassanae, fo. 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit, &c. And in 21 Ed. 3. 48. in the Bishop of Carlisle 's Case. Note, That in Easter-Term it was Resolved in the Star-Chamber, in the case between Hussey and Katherine Leyton, That if a man have a House in any Parish, and that he and all those whose Estate he hath, have used to have a certain Pew in the Church; that if the Ordinary will displace him, he shall have a Prohibition; but where there is no such prescription, the Ordinary will dispose of common and vulgar Seats.

(39. ) In the County of Dorset there was a Mother-Church and also a Chapel of Ease within the same Parish; they of the Mother-Church did rate and tax them of the Chapel of Ease, towards reparations of the Mother-Church, for the which, upon their refusal to pay the same, being sued in the Ecclesiastical Court, they prayed a Prohibition, and for cause alleged, That they themselves have used time out of mind, &c. to repair the Chapel at their own proper cost, without having any Contribution at all from them of the Mother-Church, and that they have been exempted from all charges and reparations of the Mother-Church, and yet for their refusal to pay this Tax, they were libelled against in the Ecclesiastical Court, and a Sentence there passed against them; they therefore prayed a Prohibition. By the opinion of the whole Court a Prohibition lieth not in this case, in regard, that this Prescription is merely Spiritual, and therefore a Prohibition denied per Curiam.

(40.) One was presented ex Officio in the Ecclesiastical Court, for the not frequenting of his Parish-Church; he there pleads, That this was not his Parish-Church, but that he had used to frequent another Parish Church, and to resort unto that: And because they in the Ecclesiastical Court would not receive his plea, the Court was moved for a Prohibition, for that by the Law, in the time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches, neither are they there to Judge, what shall be said to be a man's Parish-Church: And so was the Opinion of the whole Court, and therefore by the Rule of the Court a Prohibition was granted.

(41.) Touching the Reparations of a Church, and who were liable thereunto, this being a question coming in debate before the Judges: It was Resolved by the whole Court, That for and towards the Reparation of a Church, the Land of all, as well of Foreigners there not inhabiting, as of all others, is liable thereunto, and this is so by the general custom of the place; and this is to be raised by a Rate imposed according to the value of the Land, and that in the nature of a Fifteen, and this is not merely in the Realty, Williams and Yelverton Justices, and Flemming Chief Justice, Not the Land, but the person of him who occupieth the Land is to be charged. Yelverton Justice, A man is chargeable for Reparations of a Church by reason of the Land; and for the Ornaments in the Church, by reason of his coming to Church. Williams Justice and Flemming Chief Justice, If the person have Land there he is chargeable for both, whether he come to Church or not, for that he may come to Church if he please.

(42. ) In a Prohibition the Case was this: The Defendant did Libel before the Bishop of London in the Consistory Court, for a Seat in the Church; Sentence there passed against the Defendant; whereupon he Appealed to the Arches. The Court was moved for a Prohibition, in regard the Title to the Seat or Pew was grounded upon a Prescription: The Court answered, &c. As for the Title we are not here to meddle with it, this being for a Seat in the Church. Haughton Justice, This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary; and to this purpose is the case of 8 H. 7. fo. 12, and Sir William Hall's case against Ellis. Doddridge Justice, I moved this case in the Court of C. B. and it was for a Seat in the Church: An Action there brought for Disturbance, and I there cited Hall 's case; and 9 E. 4. fo. 14. The Case of the Grave-Stone and Coat-Armor: for the taking of which an Action of Trespass lies at the Common Law, and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church; but there the Judges did all of them say, That they would not meddle with the deciding of such Controversies for Seats in the Church, but would leave the same to them, to whom more properly it belonged. Croke Justice, Hall 's case was this, where a man did build an entire Isle in the Church, and was at continual charge to repair it; if he be disturbed in the use of this, he shall for this Disturbance have his remedy at the Common Law, and so it hath been adjudged; But the Judges all said, We are not here to meddle with Seats in the Church. Doddridge Justice, This Appeal here is like unto a Writ of Error at the Common Law; but it doth differ in this, By the Appeal the first Judgment or Sentence is suspended, but after a Writ of Error brought, the first Judgment still remains until it be reversed. Coke Chief Justice, It was Pym 's Case in the Common Bench, and 8 H. 7. fo. 12. that the Ecclesiastical Court hath 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 to Bury there, and there hath his Ensigns of Honor, as a Grave-stone, Coat-Armor, or the like, which belongs not unto the Parson; if he take them, the Heir may well have an Action of Trespass: Otherwise it is, where the same is repaired at the Common charge of the Parish, there they have the disposing of them: Ellis and Hall 's Case remembered, a Kentish Case, there the Seat was repaired by him, and was belonging to his Capital Messuage by Prescription, and so triable at the Common Law: And so where the Case is Special, that the party doth wholly and solely repair the same, in such a case, if a Suit be there concerning such a Seat, a Prohibition well lieth, but not otherwise: 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; and upon the former difference was Pym 's case adjudged in the C. B. in this principal Case, a Prohibition was denied by the whole Court.

CHAP. XIII.

Of Churchwardens, Questmen, and Sidemen.

• 1. What such are in construction of Law; how the choice of them is to be made, and wherein the Office doth consist.
• 2. What Actions at Law may lie for or against them.
• 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors.
• 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve.
• 5. Cases in Law touching the Election of Churchwardens.
• 6. What Sidemen or Questmen are, and their duty.
• 7. Action at Law against Churchwardens, touching Distress taken by them for money for relief of the Poor.
• 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles, Action thereon.
• 9. What remedy in case the Archdeacon refuses to Swear the Churchwardens Elect.
• 10. The Injunctions of King Ed. 6. touching all Marriages, Baptisms, and Burials to be Registred in the presence of the Churchwardens.
• 11. Whether the Release of one Churchwarden, shall be a Bar to his Companion, in an Ecclesiastical Suit commenced by them both?
• 12. Prohibition, where Churchwardens have pretended a Custom to choose the Parish-Clerk.
• 13. The like upon a Presentment by Churchwardens against one, in matter more proper for a Leet, than the Ecclesiastical Court, to take cognizance of.
• 14. The prevalency of Custom against a Canon, in choice of a Churchwarden, in reference to a Vicar and the Parishioners.
• 15. If question be, whether Lands next adjoining unto a Churchyard shall be charged with the repairs of the Fences thereof, and Custom pleaded for it, in what Court cognizable.
• 16. In Action of Account by Parishioners against Churchwardens, by whom a Release of C • sts is pleaded, but disallowed in the Ecclesiastical Court; whether Prohibition lies in that case?
• 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church?
• 18. The Churchwardens disposal of Goods, belonging to the Church, without the assent of the Sidemen or Vestry, void.
• 19. Churchwardens not Ecclesiastical Officers, but Temporal employed in Ecclesiastical Affairs; Before whom are they to Account?
• 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time?
• 21. Whether the Parishioners by force of a Custom, or the Parson by virtue of a Canon, shall choose the Churchwarden; and whether Prohibition lies in that case?
• 22. Whether Churchwardens, as a Corporation, may prescribe to take Lands to them and their Successors, to the use of the Church?

1. CHurchwardens, or Guardiani Ecclesiae, are certain Officers Parochial, annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners, according to the Custom of the place, to look to the Church and Church-yard, and to take care of the concernments thereof, and of such things as appertain thereto; as also to observe and have an inspection into the Behaviour, Lives, and Conversation of their Parishioners, touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction. These Officers are a kind of Corporation, enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish; and have as their Assistants, certain Sidemen or Questmen, who according to the custom of the Parish are yearly likewise chosen, to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid; for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid ; nor are they obliged to Present oftener than twice a year, except it be at the Bishop's Visitation; yet they may present as oft as they shall think meet, if good occasion shall so require ; but they may not (on pain of being proceeded against by their Ordinaries, as in cases of willful Perjury in Courts Ecclesiastical) willingly and wittingly omit to present such public Crimes as they knew to have been committed, or could not be ignorant that there was then a public same thereof . Moreover, the Old Churchwardens are to make their Presentments before the New be Sworn; till which time the Office of the old continues; the usual time for the New Churchwardens to enter upon their Office, is the first week after Easter, or some week following, according to the direction of the Ordinary; before which, the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments, and shall not be suffered to transmit or pass over the same to those that are newly chosen . By the Ninetieth Canon the choice of Churchwardens, Questmen, Sidemen, or Assistants is to be yearly made in Easter -week; and that by the Joynt-consent of the Minister and the Parishioners, if it may be; otherwise, the Minister to choose one, and the Parishioners another; who at their years end, or within a month next after, shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church, and shall deliver over what remains in their hands belonging to the Church, unto the next Churchwardens by Bill Indented .

(2.) One brought Action on the Case against Churchwardens, for a false and malicious Presentment of him in the Spiritual Court, and found for the Defendants; They prayed double Costs on the Statute of 1 Jac. But Jones, Crook, and Berkley, Justices, denied it, for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes . They have their Action of Trespass at the Common Law for such things taken away out of the Church, as belonged to the Parishioners in reference to the Church . And the Release of one of the Churchwardens, is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church, Action of Trespass lieth against him at Common Law, and not in the Ecclesiastical Court . So if one lay violent hands on an Ecclesiastical person, an Action lies in the Ecclesiastical Court, but he shall not there sue for damages . If the Organs, or Parish-Bible or the like, be taken away out of the Church, the Action lies at the Common Law and not in the Spiritual Court for the same, for the Churchwardens may have their Action at Common Law in that case : But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased, his Widow (if she did put it there, and it be taken away in her life time) may have her Action of Trespass at Common Law, or after her decease the Heir may have the same Action .

(3.) Trespass brought by the Churchwa • dens of F. and declared, That the Defendant took a Bell out of the said Church, and that the Trespass was done 20 Eliz. It was found for the Plaintiffs. It was moved in Arrest of Judgment, that it appears by the Declaration, That the Trespass was done in the time of their Predecessors, of which the Successor cannot have Action: and Actio personalis moritur cum persona, Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action. Coke contrary, and that the present Churchwardens shall have the Action, and that in respect of their Office, which the Court granted. And by Gawdy, Churchwardens are a Corporation by the Common Law, Vid. 12 H. 7. 28. by Frowick, That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors; Contrary by Yaxley. Vid. by Newton and Paston, That the Executors of the Guardian in whose time the Trespass was done, shall have Trespass .

(4.) It is the duty of Churchwardens not only to take care of the Concernments of the Church, and to present Disorders, as aforesaid, but also to provide Bread and Wine against the Communion, the Bible of the largest Volume, the Book of Common Prayer, a decent Pulpit, a Chest for Alms, Materials for repairing the Church, and fencing the Church-yard, and the like, all at the Parish-charge, and shall, what in them lies, prevent the profanation of Churches by any usage thereof contrary to the Canons. It was agreed by the Court in Robert 's case, That a Tax for the Church cannot be made by the Churchwardens only. Hetley 's Rep.

(5.) In Butt 's Case, Moore Serjeant moved at Court for a Prohibition, because where the custom of the Parish or Village was, that the Parishioners have used to elect two Churchwardens: and at the end of the year, to discharge one and elect another in his room, and so alternis vicibus, &c. By the New Canon now the Parson hath the Election of one, and the Parish of the other; and that he that was elected by the Parishioners, was discharged by the Ordinary at his Visitation; and for that he prayed a Prohibition. Et allocat. as a thing usual and of course. For otherwise (by Hubbard ) the Parson might have all the Authority of his Church and Parish . The like Case to this we have elsewhere reported, viz. The Parson and Churchwardens in London by the Custom are a Corporation, and the Parishioners time out of mind, &c. have used at a certain day in the Vestry to Elect Churchwardens; They elect A. and present him to the Archdeacon, who refuses A. and forbids him to exercise the Office of a Churchwarden, because the Parson pretended, that by the new Canon the Election of a Churchwarden belonged to him to dispose, &c. and exercise the Office of Churchwarden. And A. is sued ex Officio in the High Commission-Court, amongst other things touching that: A. prays a Prohibition, because the Canon does not take away the Custom. Also it would be very mischievous, if the Parson should Elect whom he please to be Churchwarden. And the Parson and Churchwardens being a Corporation, then they may dispose of the Goods and Lands of the Parish as they please. Coke Chief Justice said, That a Convocation hath power to make Constitutions for Ecclesiastical Things or Persons, 20 H. 6. 14. 21 E. 4. 46. But they ought to be according to the Law and Custom of the Realm. And they cannot make Churchwardens that were Eligible, to be Donative without Act of Parliament; and the Canon is to be intended where the Parson had nomination of a Churchwarden before the making of the Canon. And now Rule was given for a Prohibition, if cause be not shewn to the contrary, &c. ex motione Serjeant Foster .

(6.) As touching Sidemen, otherwise called Questmen, they are only such as are annually chosen, according to the custom of every Parish, to assist the Churchwardens in the enquiry and presenting such Offenders to the Ordinary, as upon such Presentments are prosecuted and punishable in the Ecclesiastical Court.

(7.) In an Action of Trespass against the Churchwardens, where by the Statute of 43 Eliz. cap. 2. if for a Distress taken by them, for money for the relief of the Poor, Trespass be brought against them, and Verdict pass for them, the Defendants shall recover treble Dammages with their Costs; And that to be assest, &c. by the same Jury, or by Writ of enquiry of Dammages, it was Resolved (1) That the Costs shall not be trebled, but only the Dammages. (2) That the treble Dammages are well assest by the Jury, although that it be not done by the Court. Because the words are [ by the same Jury to be assest ] and not Dammages to be trebled by them .

(8.) Upon an Habeas Corpus the Case was returned to be, That H. being Churchwarden, refused to take the Oath of Enquiry of the 39 Articles touching Ecclesiastical matters. And the warrant of the Commitment of the High Commissioners was to retain him, and until we shall give order for his delivery. By the Court, &c. Until we, that is, All we, 12 Ed. 4. 3. a. 1 H. 7. 7. a. that is not good; for if then any of them dies, or be removed, The party shall never be delivered by that means: But it ought to be, Until he shall be lawfully delivered. But notwithstanding the Churchwarden was not out upon Bail, because now also he refused to take that Oath: But with a So far forth as the Articles do agree with the Law of God and the Land. Note, that such subscription or consent to the Articles 13 Eliz, by a Parson is not good. As it was Adjudged in 33, & 34 Eliz. B. R. Clark against Smithfield: But afterwards the Churchwarden was delivered by the High Commissioners .

(9.) If the Parishioners have time out of mind used to choose two Churchwardens yearly, and to present them to the Archdeacon to be Sworn, and he have used to Swear them, and upon such election and presentation to him to be Sworn he shall refuse to Swear them, a Writ may issue out of the King's Bench, directed to the Archdeacon, commanding him to Swear them, Mich. 15 Jac. B. R. such Writ was granted for the Churchwardens of Sutton Valence in Kent; for although there was a Canon made primo Jac. to the contrary, yet that cannot take away the custom, Tr. 15 Car. B. R. The like Writ was granted for the Churchwardens of the Parishes of Ethelborough and St. Thomas Apostles in London, after divers motions, and upon hearing of the Council on both sides, Pasch. 4 Car. B. R. Rot. 420. between Draper and Stone. The like Writ was granted for the Churchwardens of Holberton in Devon . If one be chosen Churchwarden, and the Official of the Bishop refuse to Administer his Oath to him, he shall have a Special Writ directed to the Official, commanding him to give him his Oath. Trin. 17 Jac. B. R. Bishop 's Case. Roll Rep. Note, That an Attorney cannot be a Churchwarden: if he be chosen, and refuse, and be sued for such a Refusal in the Ecclesiastical Court, he may have a Prohibition. Pasch. 14 Car. 1. B. R. in Wilson 's Case, & Trin. 15 Car. 1. B. R. Barker 's Case. Roll 's Cases, 2. par. fo. 272.

(10.) By the Injunctions of King Ed. 6. An. 1547. to all the Clergy as well as Laity of this Realm, it is required, That the Parson, Vicar, or Curate, and Parishioners of every Parish within this Realm, shall in their Churches and Chapels keep one Book or Register, wherein they shall write the day and year of every Wedding, Christening, and Burial, made within their Parish, &c. and therein shall write every persons Name that shall be so Wedded, Christened, or Buried. And for the safe keeping the said Book, the Parish shall be bound to provide of their common charges, one sure Coffer, with two Locks and Keys, whereof the one to remain with the Parson, Vicar, or Curate, and the other with the Wardens of every Parish-Church or Chapel, wherein the said Book shall be laid up: Which Book they shall every Sunday take forth, and in the presence of the said Wardens, or one of them, write or record in the same, all the Weddings, Christnings, and Burials made the whole week before; and that done, to lay up the Book in the said Coffer, as before. And for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church three shillings four pence, to be employed to the Poor men's Box of that Parish .

(11.) A man taxed by the Parish for Reparation of the Church, was sued for the Tax by the Churchwardens in the Ecclesiastical Court: Depending this Suit one of the Churchwardens released to the Defendant all Actions, Suits, and Demands; the other Churchwarden proceeded in the prosecution of the Suit, and upon this the Defendant procured a Prohibition; upon which matter shown therein was a Demurr joined. Davenport moved for a Consultation. The Question was, where two Churchwardens sue in the Ecclesiastical Court for a Tax, and one of them Release, whether that Release shall bar his Companion or not? It seemed to him, that this Release shall not be any bar to his Companion, or impediment to sue; for he said, That Churchwardens are not parties interested in the Goods of the Church, but are a special Corporation for the benefit of the Church; for which he cited the Case in 8 E. 4. 6. The Churchwardens brought Trespass for the Goods of the Church taken out of their possession, and they counted Ad damnum Parochianorum, and not to their proper damage; and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. where it is said expressly, That the Wardens of a Church are a Corporation only for the benefit of the Church, and not for the disadvantage thereof; but this Release sounds to disadvantage of the Church, and therefore seems to be no Barr: Also this Corporation consists of Two persons, and the Release of one is nothing worth; for he was but one Corps, and the moiety of the Corps could not Release; and for these Reasons he prayed a Consultation. Yelverton to the contrary, and he took a difference and said, That he agreed, that if the Wardens of the Church have once possession of the Church, there in Action of Trespass brought for these Goods one Warden cannot Release: But this Tax for which they Sue is a thing merely in Action, of which they have not any possession, and there he cannot Sue alone; and therefore this Release shall bar his Companion. The Court interrupted him and said, That clearly Consultation shall be granted; Fleming Chief Justice, We have not need to dispute this Release, whether it be good or not? and there is a difference where Suit is commenced before us, as if Churchwardens brought Trespass here for Goods of the Church taken, and one Release, then we might dispute whether this Release were good or not; but when the matter is originally begun before them in the Ecclesiastical Court, and there is the proper place to sue for this Tax, and not anywhere else, we have nothing to do with this Relase; for which reason by the whole Court a Consultation was granted. In an Action in the Ecclesiastical Court by two Churchwardens, if the Defendant plead the Release of one of them, that shall be tried there, and no Prohibition shall be granted. Vid. Roll. Abr. ver. Prohibition, pag. 306. nu. 3.

(12. ) If the Churchwardens of a Parish have used time out of mind, &c. to choose the Parish-Clerk, and Suit be in the Ecclesiastical Court to remove him, and to put in one of the Parson's choice, a Prohibition lies, as in Walpool 's case; but there the Prohibition was granted by the consent of parties, to try the custom. The like Prohibition was granted between Brown and Crawshawe for White-Chapel Parish. And the like granted between Beaumont and Westley for the Parish of St. Cuthberts in Wells.

(13.) If a Presentment be made by the Churchwardens of a Parish in the Ecclesiastical Court, That J. S. one of the Parishioners is a Railer and sower of Discord among his Neighbors, a Prohibition lies; for that belongs to the Leet, and not to that Court, unless it were in the Church or such like place.

(14. ) Where the Parishioners of a Parish have used time out of mind, &c. to choose one Churchwarden, and the Vicar another; and afterwards a Canon is made, That the Vicar shall choose both, and so he doth accordingly, and the Parishioners shall choose one according to the custom, and the Ordinary disallow him, and confirm the Two chosen by the Vicar, a Prohibition hath been granted in this case. So likewise a Prohibition was granted against the Churchwardens, chosen by the Parson of St. Magnus near London-Bridge by force of the Canon, on a surmise, That the Parish had a custom to Elect both Churchwardens. The like also was granted for Abchurch in London.

(15.) Where the Churchwardens sued in the Ecclesiastical Court J. S. supposing in their Libel, that he and all those whose Estate he hath in certain Land next adjoining to the Church-yard, have used time out of mind, &c. to repair the fences of the Church-yard next adjoining to the said Land: In this case it was said, that a Prohibition lies, and that it ought to be tried at Common Law, for that it is a charge to the Temporal Inheritance.

(16.) If the Parishioners sue the Churchwardens of the Parish in the Ecclesiastical Court to make an Account, and in that Suit costs of Suits are Taxed for the Parishioners against the Churchwardens, and after the Churchwardens pay the costs to one of the Parishioners, and thereupon he that receives the costs gives a Release to the Churchwardens for the said costs, and that Release is after pleaded by the Churchwardens against the other Parishioners in the Ecclesiastical Court, and they there disallow it; yet no Prohibition granted, for that they have cognizance of the Original, viz. the costs, they shall have cognizance also what shall be a sufficient payment thereof. And in this case a Prohibition was denied.

(17.) The Churchwardens cannot prescribe to have Lands to them and their Successors, for they are not any Corporation to have Lands, but for Goods for the use of the Church. And therefore it seems at the Common Law, if a Feoffment be made to the use of the Churchwardens of D. it is a void use, for they have no capacity for such purchase.

(18.) The Churchwardens gift of Goods in their custody without the assent of the Sidemen or Vestry, is void. If a man take the Organs out of the Church, the Churchwardens may have Action of Trespass for them, for the Organs belong to the Parishioners, and not to the Parson; therefore the Parson cannot sue him in the Ecclesiastical Court that takes them away. The Churchwardens by the assent and agreement of the Parishioners may take a decayed Bell, and deliver it to the Bell-Founder, and that by their agreement he shall have 4 l. for the casting thereof, and retain it until the 4 l. be paid; and that Agreement of the Parishioners shall excuse the Churchwardens in a Writ of Account brought against them by their Successors Churchwardens; for the Parishioners are a Corporation to dispose of such personal things as appertain to the Church.

(19.) B. Churchwarden of the Church of S. was sued in the Ecclesiastical Court to Account for the Moneys which he had received and expended by reason of his Office the last year past, and for obtaining a Prohibition he suggested, That per Legem terrae, he ought to Account before the Minister of his Parish, the succeeding Churchwardens, and a great number of the Parishioners; and that he had Accounted accordingly. Henden, the Ecclesiastical Judge ex Officio may compel him to Account before him: I agree that Churchwardens for all personal things concerning the Church are a Corporation 8 E. 4. 6. and for Goods of the Church they may have Action, and count to the damage of the Parish, and the succeeding Churchwarden may have Action against his Predecessor as against a Stranger, but not as against an Officer for what he did ration Officii, and then if he shall not be enforced to Account in the Ecclesiastical Court, then there will be no remedy against him, vid. 12 H. 28. (2) He is an Ecclesiastical Officer, and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account; And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees, which are called Largitiones Charitativae, vid. Register fo. 52. for he is quodammodo an Officer Spiritual, 21 E. 4. 47. But notwithstanding this, a Prohibition was granted; And Montague Chief Justice said, That a Churchwarden is not an Ecclesiastical Officer, but Temporal employed in Ecclesiastical business; Quaere, Whether in that case the Minister may require him to render an Account? and if he refuse, Whether the Ecclesiastical Judge may compel him to Account.

(20.) In Trespass by Churchwardens, for taking a Bell out of the Church in the time of their Predecessors, it was Adjudg'd, That the Action did lie, whereas it was declared ad damnum ipsorum; which shall be supposed ad damnum Parochianorum.

(21.) The Parishioners of the Parish of Al-Hallowes in London, did prescribe to choose their Churchwardens every year, and they chose W. their Churchwarden; The Parson by virtue of a late Canon, that he should have the Election chose C. to be Churchwarden, and procured him to be Sworn in the Ecclesiastical Court; and a Prohibition was prayed, for that it being a Special custom the Canons cannot alter it, and if every Parson might have Election of the Churchwardens without the assent of the Parishioners, they might be much prejudiced: And so it was said, That it had been Adjudg'd, Pasch. 5 Jac. in the case of the Parishioners of Walbrook in London.

(22.) Although (as aforesaid) the Law doth make Churchwardens a kind of Corporation, and enables them by that Name to take moveable Goods and Chattels, and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish; yet they cannot take an Estate of Lands to them by name of Churchwardens; nor can Churchwardens prescribe to have Lands to them and their Successors, for they are no Corporation to have Lands, but for Goods of the Church only.

CHAP. XIV.

Of Consolidation or Union of Churches.

• 1. Consolidation, what; whence so called; by whom, and in what cases it may be made.
• 2. The several kinds of Consolidation.
• 3. The reasons and grounds thereof in the Law.
• 4. The Requisites of Law in order to a Consolidation.
• 5. How Consolidation is practiced here with us, and how in France.
• 6. The division or distinction which the Canon Law makes of Consolidation.

(1.) COnsolidation is the uniting, combining, or consolidating of two Churches or Benefices in one . This cannot be done without the consent of the Bishop, the Patron, and the Incumbent. This word thus used in an Ecclesiastical sense, takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together, which in that Law is called, Consolidatio ususfructus & proprietatis; As when a man having the Usufruct of certain Lands by way of Rent, Devise, or otherwise, doth then and at the same time purchase the Fee or Inheritance thereof; hoc casu Consolidatio fieri dicitur. Instit. de Usufruct. §. 3. So that in such Secular concerns, according to that Law, it properly signifies an Uniting of the possession, occupation, or profit, with the Property of the thing so prepossessed; which is sometimes called an Unity of possession, being a Joynt-possession of two Rights in the same person by distinct and several Titles. By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one, whereof the value of the one was not above six pounds in the King's Books of the First-Fruits, and not above one mile distant from the other. And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the Diocese, Mayor, Bailiffs, &c. of any City or Town Corporate, and the Patron or Patrons, to unite two Churches or Chapels in any such City, Town, or the Liberties thereof; provided the Churches so united exceed not the annual value of an hundred pounds, unless the Parishioners esire otherwise. See the Statute at large.

(2.) By this Consolidation or Union of Churches one of the Benefices becomes void, yea extinct in Law, Illud enim quod alteri unitur, extinguitur, neque amplius per se vacare dicitur. DD. in c. cum access • ssent. de Constit. & Iudo. Gomez. in Regul. Cancell. Gall. de Trien. possess. q. 8. Jo. Andr. ad Clem. 1. de Supplen. Neglig. Praelat. Again, the Law in express terms says, That intereunt Beneficia Unione, quando duo vel plura Beneficia in unum in perpetuum conjunguntur. c. Sicut unire. de Excess. Praelat. Of this Consolidation or Union the Law makes a threefold distinction, or it may be done three several ways in construction of Law, (1) When one and the same person is set or appointed over two Churches. Can. & temporis qualitas. 16. q. 1. c. 1. Ne Sede vacante. This with us amounts to a Plurality, but not unto a Consolidation or Union. (2) When one Church is so united to another, that that which is United, amittit jus suum, & eo utitur cui fit unio. c. Recolentes. §. sin. de Stat. Monac. & Lindw. de Locat. & Conduct. c. licet glo. verb. Appropriationum. (3) When Two or more Churches or Benefices are so united together, as that the one is not subject to the other, in which case Quod melius est, retinetur. arg. c. Medicamentum. de poenit. dist. 1. gl. in regu. 11. Cancell. Innoc. 8.

(3.) There are several Causes or Reasons in the Law for this Consolidation, Incorporation, Annexation, or Union of Churches; and they are chiefly these five, (1) An unlawful dividing of those Churches or Ecclesiastical Benefices, precedent to their reintegration or intended reconsolidation, as when such as had been formerly united, were illegally divided. Otho. Constit. Ne Ecclesia una, c. cum sit ars. gl. ib. in ver. Reintegrentur. (2) For the better Hospitality, and that the Rector might thereby be the better enabled to relieve the Poor. 25. q. 2. posteaquam. §. his ita. & dict. gl. Otho. Const. (3) The overnighness of the Churches each to other in point of Situation, insomuch that one Rector may commodiously discharge the Cure of both, by reason of the vicinity of the places. Arg. extr. de Praebend. c. Majoribus. (4.) For or by reason of a want or defect of Parishioners, as when one of the Churches is deprived of her people by some incursion of an Enemy, or by some mortal Disease or Sickness, or the like. 11. q. 1. Unio. & gloss. ubi supra. (5.) For and by reason of the extreme Poverty of one of the Parishes. Extr. de eta. & qua. eam te. Extr. de Praebend. vacant. in fin. vid. Tholos. Syntagm. jur. lib. 17. cap. 5. nu. 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John de Aton in his Gloss upon Cardinal Otho 's Constitutions, and whatever other causes of Consolidation are asserted by the DD. may be all refer'd to one or other of the foresaid Reasons. Likewise, there are certain Solemnities required by the Canon Law, to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices, the impracticability whereof in this Realm, having otherwise provided in such cases, can have no such malign influence in Law, as to invalidate the thing for want of some Circumstantials, so long as there is a retention of the Essentials, according to the Laws and Constitutions of this Kingdom. Unio facta ab Episcopo debet intervenire Consensus Capituli sui. Clem. si Una. de reb. Eccl. non aliend. Item requiritur Consensus Patroni. Clem. in agro. §. ad haec de Stat. Mona. Item, Nullum habet effectum vivente Beneficiato. Card. Zab. in dict. Clem. Si una, &c. Item, Verus valor Beneficiorum Exprimi debet, &c.

(4.) In all Consolidations regularly there ought to be Causa Necessitatis vel Utilitatis: Also the just and true value of the Benefices ought to be known, as well of that which is to be united, as of that to which the other is unitable; in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value, at which all persons pretending Interest, are to be or may be present upon Summons or Notice thereof timely given them to that end; for no Consolidation or Union of that kind ought to be made non vocatis vocandis. Rebuff. Resp. 195.

(5.) This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France; which, though there appears nothing therein but what seems consonant to Reason, yet the Statute-Laws of this Realm have herein made other provision in this matter: And that which we now commonly call Consolidation, the Canon Law, which is best and most properly acquainted with this matter, calls Union; Touching which there are in use and practice many things in divers Nations and Countries, which were Incognita to the Interpreters of that Law, and not in all things consonant to each other; thereby rendering this Subject the more perplexed by reason of the several modes of practice, diversified according to the various Constitutions of several Nations respectively; for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty, as may be said Infallible in Law; only they all agree in some certain Essentials to an Union, as also (for the most part) in this Definition thereof, viz. That Unio est Beneficiorum seu Ecclesiarum ab Episcopo, vel ab alio Superiore facta annexio. To which this also may be added by way of description, though not by way of definition, That quando fit unio, Ecclesia in proprietatem concedi solet. Cap. in cura. de jur. Patronat. and it must be Unio Beneficiorum, for there cannot be an Union unless there be plura Beneficia in the case. L. 1. & per totum. ff. de Optio. Legat. Also it is Beneficiorum seu Ecclesiarum, because the word [ Benefice ] is in itself a general term comprehending all Benefices, great and small, Regular and Secular, Dignities and Offices: C. 1. de reg jur. in 6. c. extirpandae. §. qui vero. de Praebend. So that Bishoprics, as well as other Benefices, may be united and annexed; But a Bishopric, which the Law calls culmen Dignitatis, doth not regularly fall under the name or notion of Benefice: c. pen. de Praebend; and yet two Bishoprics may be united. c. Decimas, & seq. 16. q. 1. Rebuff. de Union. Benefic. nu. 4, 5.

(6.) This Consolidation or Union at the Canon Law, is either Perpetual or Temporal; if Perpetual, then it must be so expressed in the Union, that in perpetuum univimus: c. exposuisti, de Praeb. if Temporal, then it is only for his life in whose favor the Union is made, c. 1. ne Sede vacante, and at his death it expires, c. quoniam Abbas, de Offic. Delegat. But the Practice with us knows nothing of the Temporal Member of this distinction; nor is the practice thereof at this day received in France, Rebuff. ubi supr. nu. 9. such Temporal Unions being only in contemplatione personae, non Ecclesiae, whereas the Law is, Ecclesiae magis favendum est, quam personae. Dic. c. 1. & c. requisisti, de Testa. & Oldr. Consil. 257. And where two Parochial Churches are consolidated or united, that Church to which the other is united, shall be the Superior and principal, the other which is united, is the Inferior and Accessory, yet shall enjoy the Privileges of that Church to which she is united. c. recolentes, in fin. de stat. Monach. Lastly, The more worthy Benefice is never united to the minus digno, and therefore a Parochial Church may not be united to a Chapel, sed e contra. Sic c. exposuisti, de Praebend.

CHAP. XV.

Of Dilapidations.

• 1. What Dilapidation signifies; how many ways it may happen; the Remedies in Law in case thereof; and to what Court the cognizance thereof properly belongs.
• 2. Provision made by the Canon for prevention of Dilapidations.
• 3. Dilapidation twofold in construction of Law; An Exposition of the said Canon; the Bishops power of Sequestration in case of Dilapidation.
• 4. By whom the Body of the Church, and by whom the Chancel shall be kept in repair; How the charge of Repair in the case of Dilapidations shall be apportioned; and what the Law in such cases, where one Parish is divided into Two.
• 5. Dilapidation of Ecclesiastical Edifices, a good cause in Law of Deprivation.
• 6. The Injunction of King Ed. 6. for prevention of Dilapidations
• 7. Leases made by a Parson, void by Statute for Non-residence, to prevent Dilapidations.
• 8. The wasting the Woods of a Bishopric, a Dilapidation in Law; such Woods being the Dower of the Church.
• 9. A Vicar felling down Timber Trees and Wood in the Churchyard, is a Dilapidation, and good cause of Deprivation.

(1.) DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruin or decay, neglecting to repair the same; It extends also to his committing or suffering to be committed any willful Waste in or upon the Glebe-woods or other Inheritance of his Church. Against which provision is made by the Provincial Constitutions, whereof Sir Simon Degge takes notice in his Parsons Counselor ; though in truth the Canon there provides rather as to satisfaction for, than prevention of such Dilapidations. Lindw. c. si Rector alicujus Ecclesiae, & Gloss. ibid. But the Canon Law is express and full in all respects relating to this implicit Sacrilege, nor doth the Custom of England or the Common Law leave the Church without sufficient Remedy in this case, albeit it postpones the satisfaction of damages for Dilapidations to the payment of Debts, as the Canon Law prefers it before the payment of Legacies. Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time, for wasting the Woods belonging to that Bishopric . Also of the Archbishop of Dublin 's being Fined three hundred Marks for disforresting a Forest belonging to his Archbishopric . Likewise, that by several Books of the Common Law, a Bishop, &c. wasting the Lands, Woods, or Houses of his Church, may be deposed or deprived by his Superior . And in case any Parson, Vicar, &c. shall make any Conveyance of his Goods, to defraud his Successor of his Remedy in case of Dilapidations; in that case it is provided by the Stat. of 13 Eliz. c. 2. that the Spiritual Court may in like manner proceed against the Grantee, as otherwise it might have done against the deceased Parson's Executors or Administrators : and all such Grants to defraud any person of their just actions, were made void by a later Statute . It is agreed, That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction, and no Prohibition to lie in the case; or if such happen to be granted, then the same to be superseded by a Consultation : yet it seems Actions upon the Case grounded upon the custom of England, have been brought in this case at Common Law, and Dammages recovered . It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon damages for Dilapidations, shall be expended in and upon the Houses, &c. dilapidated .

(2.) Cardinal Othobon in his Canon [ De Domibus Ecclesiarum resiciendis ] hath constituted and ordained, That all such Ecclesiastical persons as are Beneficed, take special care, that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require; unto which duty they are earnestly and frequently to be exhorted and admonished, as well by their Diocesans as by the Archdeacons. And if they shall for the space of two months next after such Monition 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 profits and fruits of his Church and Benefice, taking only so much and no more as may suffice for such Repairs; And the Chancels of Churches to be in like manner repaired by those who are obliged thereto. And as to Archbishops, Bishops, and other inferior Prelates, they are by the said Canon enjoin'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione. Constit. Othobon. de dom. Eccl. re • i • . Sub divini Judicii attestatione (h. e.) damnationis aeternae in extremo Cal • ulo. glo. in ver. Sub divini. Const. Othobon. de resident. Archiepisc.

(3.) By the Gloss on that Canon it is infer'd, That a Parson may be guilty of Dilapidations, or of a Neglect in that kind two ways, viz. either by not keeping the Edifices in good repair, or by not repairing them being gone to decay. That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical, and that not only of all Parsonages and Rectories, but also of all Bishoprics, and of all Curates and Prebends, and of all others having Ecclesiastical Livings; but not specially (by the words of this Canon ) unto their Farm-houses, though they also are by the Canon Law provided for in case of Dilapidations. And such as neglect the Reparations aforesaid, may be accused and convicted thereof before the Diocesan, who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid, Gloss. in ver. cessaverit. in dict. Can. such Fruits thereof being in construction of Law, as it were tacitly hypothecated by a certain kind of Privilege for such Indemnity; and for that reason the Bishop in some cases may for that end sequester the same.

(4.) And whereas in the abovesaid Canon it is said, That Chancels shall be kept in repair by such as are thereunto obliged, it is to be understood, that that is spoken by way of allusion to the common Custom in England, whereby the Body of the Church is usually repaired by the Parishioners, and Chancels by the Rectors, who notwithstanding ought to be at the care, though not at the costs, of the other also; he being annually accountable to the Bishop for the same, if the Bishop so please; for which reason the Rector hath power to audit the Accounts of the costs and charges about the same, as also what shall be given or bequeathed by way of Legacy for that end and purpose. And where this custom prevails, That the Parishioners shall repair the Body of the Church, it is not to be understood, that this is incumbent on them as a Real, but as a Personal duty or burden; yet every Parishioner proportionably to that quantity of Land which he holds within the Parish, and number of Cattle he feeds on the same: Gloss. ibid. in ver. ad hoc tenentur. And in case one Parish be by legal Authority divided into Two, in that case, if such division were made by and with the consent of these Four, viz. the Bishop, the Patron, the Parson, and the Parishioners, then the more Ancient Church shall not contribute to the Reparations of the New, for that now they are two dictinct Parishes. Gloss. ibid.

(5.) Sir Ed. Coke in the third part of his Institutes, having spoken of erecting of Houses and Building, &c. tells us what he finds in the Books of the Common Law and Records, touching Dilapidations and decay of Buildings, and having Margined as here in this Margent, says, That Dilapidation of Ecclesiastical Palaces, Houses, and Buildings is a good cause of Deprivation.

(6.) By the Injunctions of King Ed. 6. An. 1547. to all his Clergy, 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 decay, the fifth part of their Benefices, till they be fully repaired; and the same so repaired, shall always keep and maintain in good estate . Consonant to which is the Thirteenth Article of Queen Elizabeth's Injunctions, given to all the Clergy, An. 1559.

(7.) The Case was, where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett, rendering the ancient Rent, the Patron and Ordinary confirmed it, the Lessee lett part of the term to the Defendant, the Parson died, the Successor entered and leased to the Defendant; against whom the Lessee brought Debt upon the former Lease, who pleaded the Statute of 13 Eliz. which made all Leases void, where the Parson is not resident, or absent for 80 days: It was Adjudged, That the Lease was void by the death of the Incumbent; for the Justices said, The Statute doth provide against Dilapidations, and for maintenance of Hospitality; and therefore provided the Leases shall be void not only for Non-residence, but by death or resignation; for otherwise Dilapidations should be in the time of the Successor, and he cannot maintain Hospitality.

(8.) The wasting of the Woods belonging to a Bishopric, is in the Law understood as a Dilapidation, as was formerly hinted. Note, By Coke Chief Justice, a Bishop is only to fell Timber for Building, for Fuel, and for his other necessary occasions, and there is no Bishopric but the same is on the Foundation of the King; the Woods of the Bishopric are called the Dower of the Church, and these are always carefully to be preserved; and if he fell and destroy this, upon a motion thereof made to us (says the Lord Coke ) we will grant a Prohibition: And to this purpose there was a great Cause which concerned the Bishop of Duresm, who had divers Cole-Mines, and would have cut down his Timber-Trees for the maintenance and upholding of his Works; and upon motion in Parliament concerning this, for the King, Order was there made, that the Judges should grant a Prohibition for the King; and we will here (says he) revive this again, for there a Prohibition was so granted. And so upon the like motion made unto us in the like case, we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause, unless it be for necessary Reparations (as if he sell the same unto a Stranger) we will grant a Prohibition: And to this purpose I have seen (said he) a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm (as before) for cutting of Timber-Trees for his Cole-Mines, and there agreed that in such a case a Prohibition did lie; and upon motion made a Prohibition was then granted; and the Reason then given, because that this Timber was the Dower of the Church; and so it shall be also in the case of a Dean and Chapter; in which cases, upon this ground we will grant (as he said) Prohibitions; and the whole Court agreed with him herein. Also in Sakar 's case, against whom Judgment being given for Simony, yet he being by assent of parties to continue in the Vicarage for a certain time, this time being now past, and he still continuing in possession, and committing of great Waste, by pulling down the Glass-windows, and pulling up of Planks, the Court granted a Prohibition, and said, That this is the Dower of the Church, and we will here prohibit them, if they fell and waste the Timber of the Church, or if they pull down the houses: And Prohibition to prevent Dilapidations, and to stay the doing of any Waste, was in that case awarded accordingly.

(9.) In a Prohibition, the Case was this: A Vicar lops and cuts down Trees growing in the Church-yard; the Churchwardens hinder him in the carriage of the same away, and they being in Trial of this Suit: The Churchwardens by their Counsel, moved the Court for a Prohibition to the Vicar, to stay him from felling anymore. Coke Chief Justice, This is a good cause of Deprivation, if he fell down Timber-Trees and Wood, this is a Dilapidation; and by the Resolution in Parliament, a Prohibition by the Law shall be granted, if a Bishop fells down Wood and Timber-Trees. The whole Court agreed clearly in this, to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber, this being (as it is called in Parliament) the Endowment of the Church. Coke, we will also grant a Prohibition, to restrain Bishops from felling the Wood and Timber-Trees of their Churches. And so in this principal Case, by the Rule of the Court a Prohibition was granted.

CHAP. XVI.

Of Patrons, & de jure Patronatus.

• 1. What Patron properly signifies in the Law; the Original thereof; and how subject to corruption.
• 2. In what case the Bishop may proceed de jure Patronatus, and how the Process thereof is to be executed.
• 3. How the Admittance ought to be, in case the same Clerk be presented by two Patrons to the same Benefice.
• 4. In what cases of Avoydance, Notice thereof ought to be given to the Patron; and what course in that case the Bishop is to take, in case he knews not the true Patron.
• 5. Several Appellations in Law, importing Patron.
• 6. How many ways a Church may become Litigious.
• 7. Whether an Advowson may be extended?
• 8. In what case the Patron may Present, where the King took not his turn upon the first Lapse.
• 9. A Patron may not take any benefit of the Gl • be during a Vacancy.
• 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop, prevent the incurring of the Lapse to the Ordinary.
• 11. The King is Patron Paramount, and Patron of all the Bishoprics in England: The Charter of King John, whereby Bishoprics from being