ment. Befides 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 muft be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will iffue out of the temporal courts to stop all fuits concerning them. As where a fee was demanded by the minifter of the parish for the baptifm of a child, which was administered in another place; this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minifter even for performing fuch branches of his duty, and it can only be fupported by a fpecial custom1; but no custom can fupport the demand of a fee without performing them at all.

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

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

SPOLIATION is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any

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

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

• F. N. B. 36.

P Circumfpefie agatis ; a 3 Edw. I. k. 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 also lie against him in the courts of common law. By ftatute 13 Eliz. c. 10. if any spiritual perfon makes over or alienates his goods with intent to defeat his fucceffors of their remedy for dilapidations, the fucceffor fhall 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 fhall within two years be employed upon the buildings, in respect 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 fpiritual court has undoubted cognizance thereof; and a fuit may be brought therein for nonpayment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which fuits may be inftituted, in ecclefiaftical courts.

2. MATRIMONIAL caufes, or injuries refpecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclefiaftical jurifdiction. Though, if we confider marriages in the right of mere civil contracts, they do not seem to be properly of fpiritual cognizance'. But the Romanists having very early converted this contract into a holy facramental ordinance, the church of courfe took it under her protection, upon the divifion of the two jurifdictions. And, in the hands of fuch able politicians, it foon became an engine of great importance to the papal fcheme of an univerfal monarchy over Christendom. The numberlefs canonical impediments that were invented, and occafionally dif penfed 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 baftardized, and the fucceffion to their thrones eftablifhed or rendered precarious, according T1Roll. Rep. 86. 11 Rep. 98. Godb. 259. Circumfpete agatis. 5 Rep. 66. (3 Bulftr. 158. Roll. Rep. 335. Warb. alliance. 173.

to the humour or intereft of the reigning pontiff: befides a thoufand nice and difficult fcruples, with which the clergy of thofe ages puzzled the understandings and loaded the confciences of the inferior orders of the laity; and which could only be unravelled and removed by thefe their fpiritual guides. Yet, abstracted from this univerfal influence, which affords fo good a reafon for their conduct, one might otherwise be led to wonder, that the fame authority, which enjoined the ftricteft celibacy to the priesthood, fhould think them the proper judges in caufes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them, foon became too grofs for the modefty of a lay tribunal. And caufes matrimonial are now fo peculiarly ecclefiaftical, that the temporal courts will never interfere in controverfies of this kind, unless in fome particular cafes. As if the fpiritual court do proceed to call a marriage in queftion after the death of either of the parties; this the courts of common law will prohibit, because it tends to baftardize and difinherit the iffue; who cannot fo well defend the marriage, as the parties themfelves, when both of them living, might have done “.

Of matrimonial caufes, one of the firft and principal is, 1. Caufa jactitationis matrimonii; when one of the parties boasts or gives out that he or she is married to the other, whereby a common reputation of their matrimony may enfue. On this ground the party injured may libel the other in the fpiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual filence upon that head; which is the only remedy the ecclefiaftical courts can give for this injury. 2. Another fpecies of matrimonial caufes was, when a party contracted to another brought a fuit in the ecclefiaftical court to compel a celebration of the marriage in pursuance of such contract; but this branch of caufes is now cut off entirely by the act for preventing clandeftine marriages, 26 Geo. II. jects of matrimony and divo:ce. u 2 Inft. 614.

Some of the impureft books, that are extant in any language, are thofe written by the popish clergy on the fub

c. 33. which enacts, that for the future no fuit fhall be had in any ecclefiaftical court, to compel a celebration of marriage in facie ecclefiae, for or because of any contract of matrimony whatsoever. 3. The fuit for reflitution of conjugal rights is also another fpecies of matrimonial caufes: which is brought whenever either the hufband or wife is guilty of the injury of fubtraction, or lives feparate from the other without any fufficient reafon; in which cafe the ecclefiaftical jurisdiction will compel them to come together again, if either party be weak enough to defire it, contrary to the inclination of the other. 4. Divorces alfo, of which and their feveral distinctions we treated at large in a former volume, are causes thoroughly matrimonial, and cognizable by the ecclefiaftical judge. If it becomes improper, through fome supervenient cause arising ex post facto, that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual difeafe, and the like (3); this unfitnefs or inability for the marriage ftate may be looked upon as an injury to the fuffering party; and for this the ecclefiaftical law administers the remedy of feparation, or a divorce a menfa et thoro. But if the caufe exifted previous to the marriage, and was fuch a one as rendered the marriage unlawful ab initio, as confanguinity, corporal imbecility, or the like; in this cafe the law looks upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a separation from bed and board, but a vinculo matrimonii itself. 5. The laft fpecies of matrimonial causes is a confequence drawn from one of the fpecies of divorce, that a menfa et thoro;, which is the fuit for alimony, a term which fignifies maintenance: which fuit the wife, in case of sepa

w Book. I. ch. 15.

(3) It has lately been determined by the court of delegates, that the public infamy of the hufband, arifing from a judicial conviction of an attempt to commit an unnatural crime, is a fufficient caufe for the ecclefiaftical courts to decree a feparation a menfa et thoro. Feb. 1794.