the damage which he has fuftained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes teftamentary. I. PECUNIARY caufes, cognizable in the ecclefiaftical courts, are fuch as arise either from the withholding ecclefiastical dues, or the doing or neglecting fome act relating to the church, whereby fome damage accrues to the plaintiff; towards obtaining a fatisfaction for which, he is permitted to institute a fuit in the fpiritual court. : THE principal of these is the fubtraction or withholding of tithes from the parfon or vicar, whether the former be a clergyman or a lay appropriators. But herein a distinction must be taken for the ecclefiaftical courts have no jurisdiction to try the right of tithes unlefs between fpiritual perfons"; but in ordinary cafes, between fpiritual men and lay men, are only to compel the payment of them, when the right is not difputed. By the ftatute or rather writ of circumspecte agatis, it is declared that the court chriftian shall not be prohibited from holding plea, “ fi rector petat verfus parochia nos oblationes et decimas debitas et confuetas:" fo that if any difpute arises whether fuch tithes be due and accustomed, this cannot be determined in the ecclefiaftical court, but before the king's courts of the common law; as fuch question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fact, whether or no the tithes allowed to be due are really fubtracted or withdrawn, this is a tranfient personal injury, for which the remedy may properly be had in the fpiritual court; viz. the recovery of the tithes, or their equivalent. By ftatute 2 & 3 Edw. VI. c. 13. it is enacted, that if any perfon fhall carry off his predial tithes (viz. of corn, hay, or the like) before the tenth part e Stat. 32 Hen. VIII. c. 7. d 2 Roll. Abr. 309, 310. Bro. Abr. c. jurifdiction. 85. e 2 Inft. 364. 489, 490. is duly fet forth, or agreement is made with the proprietor, or fshall willingly withdraw his tithes of the fame, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; fuch offender fhall pay double the value of the tithes, with costs, to be recovered before the ecclefiaftical judge, according to the king's ecclefiaftical laws. By a former claufe of the fame ftatute, the treble value of the tithes, fo fubtracted or withheld, may be fued for in the temporal courts, which is equivalent to the double value to be fued for in the ecclefiaftical. For one may fue for and recover in the ecclefiaftical courts the tithes themselves, or a recompenfe for them, by the antient law; to which the fuit for the double value is fuperadded by the ftatute. But as no fuit lay in the temporal courts for the fubtraction of tithes themselves, therefore the ftatute gave a treble forfeiture, if fued for there; in order to make the course of juftice uniform, by giving the fame reparation in one court as in the other ". However it now feldom happens that tithes are fued for at all in the fpiritual court; for if the defendant pleads any custom, modus, compofition, or other matter whereby the right of tithing is called in queftion, this takes it out of the jurifdiction of the ecclefiaftical judges; for the law will not suffer the existence of fuch a right to be decided by the sentence of any fingle, much lefs an ecclefiaftical, judge; without the verdict of a jury. But a more fummary method than either of recovering fmall tithes under the value of 40 s. is given by ftatute 7 & 8 W. III. c. 6. by complaint to two juftices of the peace and, by another ftatute of the fame year, c. 34. the fame remedy is extended to all tithes withheld by quakers under the value of ten pounds. ANOTHER pecuniary injury, cognizable in the fpiritual courts, is the non-payment of other ecclefiaftical dues to the clergy; as penfions, mortuaries, compofitions, offerings, and whatsoever falls under the denomination of furplice-fees, for marriages or other minifterial offices of the church: all which injuries are redrefled by a decree for their actual pay 2 Inst. 2501 ment, ment. Besides which all offerings, oblations, and obventions not exceeding the value of 40 s. may be recovered in a fummary way, before two juftices of the peace. But care must be taken that thefe are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all fuits concerning them. As where a fee was demanded by the minifter of the parish for the baptism of a child, which was administered in another place; this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minister even for performing fuch branches of his duty, and it can only be fupported by a special cuftom'; but no cuftom can fupport the demand of a fee without performing them at all. FOR fees alfo, fettled and acknowledged to be due to the officers of the ecclefiaftical courts, a fuit will lie therein; but not if the right of the fees is at all disputable; for then it must be decided by the common law ". It is also faid, that if a curate be, licenced, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclefiaftical court: but, if he be not licenced, or hath no fuch falary appointed, or hath made a special agreement with the rector, he must fue for a fatisfaction at common law °; either by proving fuch special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in confideration of what he reasonably deferved in proportion to the service performed. UNDER this head of pecuniary injuries may also be reduced the feveral matters of fpoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a fatisfaction may be fued for in the ecclefiaftical court. SPOLIATION is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any iStat. 7 & 8 W. III. c.6. k Salk. 332. 1 Ibid. 334. Lord Raym.450. 1558. Fitzg. 55. m 1 Ventr. 165. ni Burn. eccl. law. 438. 1 Freem. 70. right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowfon doth not come in debate, is cognizable in the spiritual court: as if a patron first presents A to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the fame patron prefents B to the fame living, and he also obtains inftitution and induction. Now, if the fact of the vacancy be disputed, then that clerk who is kept out of the profits of the living, whichever it be, may fue the other in the fpiritual court for fpoliation, or taking the profits of his benefice. And it fhall there be tried, whether the living were, or were not, vacant; upon which the validity of the fecond clerk's pretenfions must depend. But if the right of patronage comes at all into difpute, as if one patron presented A, and another patron prefented B, there the ecclefiaftical court hath no cognizance, provided the tithes fued for amount to a fourth part of the value of the living, but may be prohibited at the inftance of the patron by the king's writ of indicavit ?. So alfo if a clerk, without any colour of title, ejects another from his parfonage, this injury must be redreffed in the temporal courts: for it depends upon no question determinable by the spiritual law, (as plurality of benefices or no plurality, vacancy or no vacancy) but is merely a civil injury. FOR dilapidations, which are a kind of ecclefiaftical waste, either voluntary, by pulling down; or permiffive, by suffering the chancel, parfonage-house, and other buildings thereunto belonging, to decay; an action alfo lies, either in the fpiritual court by the canon law, or in the courts of common law, and it may be brought by the fucceffor against the predeceffor, if living, or, if dead, then against his executors. It is also faid to be good cause of deprivation, if the bishop, parfon, vicar, or other ecclesiastical perfon, dilapidates the buildings, or cuts down timber growing on the patrimony of o F. N. B. 36. Circumfpecte agatis ; 13 Edw.I.ft.4. ` Artic. Cleri. 9Edw. II. c.2. F.N.B. 45. 4 Cart. 224. 3 Lev. 268, the church, unless for neceflary repairs and that a writ of prohibition will alfo lie against him in the courts of common law. By ftatute 13 Eliz. c. 10. if any fpiritual perfon makes over or alienates his goods with intent to defeat his fucceffors of their remedy for dilapidations, the fucceffor shall have fuch remedy against the alienee, in the ecclefiaftical court, as if he were the executor of his predeceffor. by ftatute 14 Eliz. c. 11. all money recovered for dilapidations shall within two years be employed upon the buildings, in refpect whereof it was recovered, on penalty of forfeiting double the value to the crown. And As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof; and a fuit may be brought therein for nonpayment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which fuits may be inftituted, in ecclefiaftical courts. 2. MATRIMONIAL caufes, or injuries refpecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclefiaftical jurifdiction. Though, if we confider marriages in the right of mere civil contracts, they do not seem to be properly of spiritual cognizance. But the Romanists having very early converted this contract into a holy facramental ordinance, the church of courfe took it under her protection, upon the divifion of the two jurisdictions. And, in the hands of such able politicians, it foon became an engine of great importance to the papal scheme of an univerfal monarchy over Christendom. The numberless canonical impediments that were invented, and occafionally dispenfed with, by the holy fee, not only enriched the coffers of the church, but gave it a vaft afcendant over princes of all denominations; whofe marriages were fanctified or reprobated, their iffue legitimated or bastardized, and the fucceffion to their thrones eftablished or rendered precarious, according I 1 Roll. Rep. 86.11 Rep. 98. Godb.259. Bulftr. 158, 1 Roll. Rep. 335. s Circumfpecte agatis. 5 Rep. 66. to |