ecclefiaftical court, in a fuit between the parfon impropriate and the vicar of the fame parish, as if the vicar claim all the tithes within the village of D within the parish, and the parfon all the tithes in the refidue of the parish, and the question between them is, whethy certain lands, whereof the vicar claims the tithe, be within the village of D or not; yet inafmuch as it is between fpiritual perfons, viz. between the parfon and vicar, altho' the parfon be a layman, and the parfonage appropriate a lay-fee, yet it fhall be tried in the ecclefiaftical court. And in this cafe the prohibition was denied. 2 Roll's ・Abr. 312.

And by the 17 G. 2. c. 37. it is enacted, that where there fhall be any difpute, in what parifh or place, improved waftes and drained and improved marth lands lie, and ought to be rated; the occupiers of fuch lands, or houfes built thereon, tithes arifing therefrom, mines therein, and faleable underwoods, fhall be rated to the relief of the poor and to all other parish rates within fuch parish and place which lies nearest to fuch lands: and if on application to the officers of fuch parifh or place to have the fame affeffed, any difpute fhall arife; the juftices of the peace at the next feffions after fuch application made, and after notice given to the officers of the feveral parishes and places adjoining to fuch lands, and to all others interested therein, may hear and determine the fame on the appeal of any perfon interested, and may cause the fame to be equally affeffed; whofe determination therein fhall be final. But this fhall not determine the boundaries of any parish or place, other than for the purpose of rating fuch lands to the relief of the poor, and other parochial rates. S. I, 2.

And by the 2 & 3 Ed. 6. c. 13. Every perfon who fhall have any beasts or other cattle tithable, depafturing in any waste or common, whereof the parish is not certainly known, fhall pay the tithes thereof where the owner of the cattle dwells. . 3.

VOL. III.

F

Parish

Parith clerk.

His qualifica

tion.

How to be appointed.

1.

Parish Clerk.

BONIFACE. We do decree, that the offices for boly water be conferred upon poor clerks. Lind. 142. For the understanding of which conftitution, it is to be obferved, that parifh clerks were heretofore real clerks ; of whom every minifter had at least one, to affift under him, in the celebration of divine offices; and for his better maintenance, the profits of the office of aquabajalus (who was an affiftant to the minifter in carrying the holy water) were annexed unto the office of the parish clerk by this conftitution: fo as, in after times, aquæbajalus was only another name for the clerk officiating under the chief minifter.

2. Can. 91. And the faid clerk fhall be twenty years of age at the leaft; known to the parfon, vicar, or minifter, to be of honeft converfation, and fufficient for his reading, writing, and alfo for his competent fkill in finging (if it may be).

3. All incumbents once had the right of nomination of the parish clerks, by the common law and cuftom of the realm. Gibf. 214.

And by the aforefaid conftitution of archbishop Boniface- Becaufe differences do fometimes arife between rectors and vicars and their parishioners, about the conferring of fuch offices, we do decree, that the fame rectors and vicars, whom it more particularly concerneth to know who are fit for fuch offices, fhall endeavour to place fuch clerks in the aforelaid offices, who according to their judgment are killed and able to ferve them agreeably in the divine adminiftration, and who will be obedient to their commands.

And by Can. 91. No parish clerk upon any vacation fhall be chofen within the city of London or elsewhere, but by the parfon or vicar; or where there is no parfon or vicar, by the minifter of that place for the time being: which choice fhall be fignified by the faid minifter vicar or parfon, to the parishioners the next funday following in the time of divine Service.

Since the making of which canon, the right of putting in the parish clerk hath often been contefted between incumbents and parishioners, and prohibitions prayed, and always obtained, to the fpiritual court for maintaining the authority of the canon in favour of the incumbent, againft the plea of cuftom in behalf of the parishioners. Gibf. 214.

Thus,

Thus, E. 8 Ja. Cundict and Plomer. The parishioners of the parish of St. Alphage in Canterbury, did prescribe to have the election of their parish clerk, and by the canon, the election of the clerk is given to the vicar: It was adjudged in this cafe, that the prefcription should be preferred before the canon; and a prohibition was awarded accordingly. Hughes 275.

T. 21 Ja. Fermyn's cafe. Jermyn, rector of the parish of St. Katherine's in Coleman ftreet, and Hammond as clerk there, fued in the fpiritual court to have the said clerk established there, being placed there by the parfon according to the late canon; where the parishioners difturbed him upon a pretence of a custom to place the clerk there by the election of their veftry. And upon this furmife of a cuftom, the churchwardens and parishioners prayed a prohibition; and after divers motions, a prohibition was granted: for they held that it was a good cuftom, and that the canon cannot take it away. Cro. Ja. 670.

4. Parith clerks after having been duly chofen and How to be adappointed, are ufually licenfed by the ordinary. Johns. mitted.

204.

And when they are licensed, they are fworn to obey the minifter. Johnf. 205.

And if a parish clerk hath been used time out of mind to be chosen by the veftry, and after admitted and fworn before the archdeacon, and he refufe to fwear fuch parish clerk fo elected, but admitteth another chofen by the parfon; a writ may be awarded to him commanding him to fwear him. 2 Roll's Abr. 234. Viner, Mandamus H. 3. 3 Bac. Abr. 531.

And in the cafe of K. and Henchman, official of the confiftory court of the bishop of London, a mandamus was granted, to admit one Robert Trott to the office of parish clerk of Clerkenwell, being elected by the parish; it being fhewn that the official had ufually admitted to that office. 3 Bac. Abr. 531.

5. By the aforefaid conftitution of archbishop Boniface; His falary. If the parishioners shall maliciously withhold the accustomed alms from the aquæbajalus, they shall be carneftly admonished to render the fame; and if need be, shall be compelled by ecclefiaftical cenfure.

Alms] By which word we may understand that fuch clerks cannot claim any thing by way of a certain allowance or endowment by reafon of their office of aquabajalus:

F 2

But

But their fuftentation ought to be collected and levied according to the manner and custom of the country. Lindw. 143.

Accustomed alms] For this cuftom ought to be confidered according to the manner anciently obferved; which alfo, inasmuch as it concerneth the increase of divine worship, ought not to be changed at pleasure but hereunto the parishioners may be compelled by the bishop. Lindw. 143.

And cuftom of this kind is good and laudable, that every mafter of a family (for inftance) on every Lord's day give to the clerk bearing the holy water somewhat according to the exigency of his condition; and that on christmas day he have of every houfe one loaf of bread, and a certain number of eggs at eafter, and in the autumn certain fheaves. Alfo that may be called a laudable cuftom, where fuch clerk every quarter of the year receiveth fomething in certain in money for his fuftenance, which ought to be collected and levied in the whole parifh. For fuch laudable cuftom is to be observed; and to this the parishioners ought to be compelled; for having paid the fame for fo long a time, it shall be prefamed that at first they voluntarily bound themselves thereunto. Lindw. 143.

Admonished] Not only by the minifters, but also and more especially by the ordinary of the place. Lindw. 143. By ecclefiaftical cenfure] Of which there are three kinds: fufpenfion, excommunication, and interdict. Lindw. 143.

And by Can. 91. The faid clerks fhall have and receive their ancient wages, without fraud or diminution, either at the hands of the churchwardens, at juch times as hath been accuftomed, or by their own collection, according to the most ancient cuftom of every parish.

Ancient wages] In cafe fuch cuftomary allowance is denied, the foregoing conftitution, and the practice thereupon, direct where it is to be fued for, viz. before the ordinary in his ecclefiaftical court. That conftitution (as we fee) calls thofe wages accustomed alms; and in the regifter there is a confultation provided in a cafe of the fame nature, for what the writ calls largitio charitativa (as being originally a free gift), which by parity of reafon may be fairly extended to the prefent cafe. Gibf.

214.

But by the common law; If a parish clerk claim by cuftom to have a certain quantity of bread at christmas,

of

of every inhabitant of the parifh, or the like, and fue for this in the fpiritual court; a prohibition lieth. 2 Roll's

Abr. 286.

M. 3 An. Parker and Clarke. The clerk of a parish libelled against the churchwardens, for fo much money due to him by cuftom every year, and to be levied by them on the refpective inhabitants in the faid parifh; and after fentence in the fpiritual court, the defendants fuggefted for a prohibition, that there was no fuch cuftom as the plaintiff had fet forth in his libel. It was objected against granting the prohibition, that it was now too late, because it was after fentence, especially fince the custom was not denied; for if it had, and that court had proceeded, then, and not before, it had been proper to move for a prohibition. But by Holt chief juftice; it is never too late to move the king's bench for a prohibition, where the spiritual court had no original jurifdiction, as they had not in this cafe, because a clerk of a parish is neither a fpiritual perfon, nor is this duty in demand fpiritual, for it is founded on a cuftom, and by confequence triable at law; and therefore the clerk may have an action on the cafe against the churchwardens for neglecting to make a rate, and to levy it, or if it had been levied and not paid by them to the plaintiff. 6 Mod. 252. 3 Salk. 87.

H. 12 G. 2. Pitts and Evans. A prohibition was granted to a fuit in the fpiritual court by the clerk of St. Magnus for Is. 4 d. affeffed on the defendant's house at a veftry in 1672, to be paid to the parish clerk. For, by the court, he is a temporal officer; or if not, yet he could not fue there for fuch a rate: for if it is due by cuftom, he may maintain an affumpfit; if not, a quantum meruit, or a bill in equity. Strange 1108. (n)

*

6. The

(z) S. C. 13 Vin. Ab. 155.

*But to fue for fo fmall a matter, either at law or in equity, feems by no means eligible; as the remedy must needs be abundantly worse than the difeafe. Why it might not be made recoverable before juftices of the peace in like manner as fmall tithes, or in fome other ealy and expeditious method, no fufficient reason seems to have been affigned. Indeed, after all, the manner of recovering this falary, difficult as it may be, is not the greatest difficulty; for by the continual decrease in the value of money, almoft nothing remains to be contended for.

F 3

Two