CHAPTER THE SEVEN T H.

OF THE COGNIZANCE OF PRIVATE

WRONGS.

WE

E are now to proceed to the cognizance of private wrongs; that is, to confider in which of the vast variety of courts, mentioned in the three preceding chapters, every poffible injury that can be offered to a man's perfon or property is certain of meeting with redrefs.

1

THE authority of the feveral courts of private and special jurifdiction, or of what wrongs fuch courts have cognizance, was neceffarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated: which will confine our present inquiry to the cognizance of civil injuries in the feveral courts of public or general jurifdiction. And the order, in which I fhall pursue this inquiry, will be by fhewing; 1. What actions may be brought, or what injuries remedied, in the ecclefiaftical courts. 2. What in the military. 3. What in the maritime. And 4. What in the courts of common law.

AND with regard to the three firft of these particulars, I must beg leave not fo much to confider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of thofe refpective courts; but what the common law allows and permits to be fo. For thefe eccentrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they fubfift and are ad

mitted in England, not by any right of their own, but upon bare sufferance and toleration from the municipal laws, must have recourfe to the laws of that country wherein they are thus adopted, to be informed how far their jurifdiction extends, or what caufes are permitted, and what forbidden, to be difcuffed or drawn in question before them. It matters not therefore what the pandects of Juftinian, or the decretals of Gregory have ordained. They are here of no more intrinfic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, refpectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may confider this matter of jurifdiction. Every nation must and will abide by its own municipal laws; which various accidents confpire to render different in almost every country in Europe. We permit fome kinds of fuits to be of eeclefiaftical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and fucceffions to inteftates' chattels and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In fhort, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in fome cafes punish their judges".

HAVING premised this general caution, I proceed now to confider,

I. THE wrongs or injuries cognizable by the ecclefiaftical courts. I mean fuch as are offered to private perfons or individuals; which are cognizable by the ecclefiaftical court, hot for reformation of the offender himself or party injuring (pro falute animae, as is the cafe with immoralities in general, when unconnected with private injuries) but for the sake of the party injured, to make him a fatisfaction and redrefs for See Vol. I. introd. § 1.

Hal. Hift. C. L. c. 2.

the

the damage which he has fuftained. And thefe I fhall reduce under three general heads; of causes pecuniary, causes matri. monial, and causes teftamentary.

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

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

Book. III. is duly fet forth, or agreement is made with the proprietor, or fhall willingly withdraw his tithes of the fame, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; fuch offender fhall pay double the value of the tithes, with cofts, to be recovered before the ecclefiaftical judge, according to the king's ecclefiaftical laws. By a former clause of the fame ftatute, the treble value of the tithes, 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 statute. 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 courfe of justice uniform, by giving the fame reparation in one court as in the other 1 (1). However it now feldom happens that tithes are fued for at all in the spiritual court; for if the defendant pleads any custom, modus, compofition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclefiaftical judges; for the law will not suffer the existence of such a right to be decided by the fentence of

h 2 Init, 250.

(1) The ftatute enacts, that every person shall justly divide, fet out, yield, and pay all manner of predial tithes in fuch manner as they have been of right yielded and paid within forty years, or of right or cuftom ought to have been paid, before the making of that act, under the forfeiture of treble value of the tithes fo carried away. And in an action upon this ftatute, in which the declaration ftated that the tithes were within forty years before the statute yielded and payable, and yielded and paid, it was held that evidence that the land had been as far as any witnefs knew in pasture, and that it was never known to pay in predial tithe, was not fufficient to defeat the action. The fame action might alle be supported to recover tithes of lands inclofed out of waites, which never paid tithes before. Mitchell v. Walker, 5 T. R. 260.

any

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 40s. 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 ministerial offices of the church: all which injuries are redreffed by a decree for their actual pay

ment.

Befides which all offerings, oblations, and obventions [90] not exceeding the value of 40s. may be recovered in a fummary way, before two juftices of the peace. But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all fuits concerning them. As where a fee was demanded by the minifler of the parish for the baptifm of a child, which was adminiftered 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 supported by a special custom'; but no custom can fupport the demand of a fee without performing them at all.

FOR fees alfo, fettled and acknowledged to be due to the officers of the ecclefiaftical courts, a fuit will lie therein : but not if the right of the fees is at all difputable; for then it must be decided by the common law ". 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 ecclefi