Abridgment of Ecclesiastical Laws, Treatise · Chapter 12

Abridgment of Ecclesiastical Laws · Treatise · Chapter 12

p. 134CHAP. XII.

Of Churches, Chappels, 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 Emperour 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 alledged, 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, Sepulchres, 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 ſurmize of a cuſtome 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. Chappel; the ſeveral kinds thereof; The Canoniſts Conceits touching the derivation of that word.

p. 13516. Where two Parochial Churches are united, the charge of Reparations ſhall be ſeveral as before.

17. The Emperour Juſtinian's Law Proviſional, touching the Building of new Chappels.

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 Premiſſes.

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 Dioceſs.

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 Chappel 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 Chappel of E…ſe, no diſcharge from repairing the Mother-Church.

p. 13634. 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 meerly 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] foreign, from the old word foreign, h. e. foreign, or rather foreign, 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 miniſtred 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 touch'd 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 Colledges 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) Ratione dotationis. (2) Fundationis. (3) Fundi.

(2.) The Emperour 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 p. 137that in equal goodneſs and quantity, or that it were for the Redemption of CaptivesaaAuth. Coll. 2. & 9. and Coll. 5:. 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 limitedbb1 Jac. c. 3.Jas 3.

(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;In Eaton's Caſe againſt A…liffe, it was ſaid by Hutton, That Seats in the generally are in the power of the Ordinary to diſpoſe. Het…ey's Rep. albeit the diſpoſal of the Pewes in the Body of the Church, or an Iſle or Chappel joyning 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 ſhewing ſome ſpecial reaſon for the ſame. All which appears in the Caſe of Boothby againſt Baily, where Boothby being Executor of Gilbert, brought a Prohibition againſt Baily, and his Surmize was, That whereas Sir Bernard Whetſton was ſeized of the Mannor 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 Chappel adjoyning 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 Chappel of EaſeccCaſe Boothby verſ. Baily. Hob. Rep. Parochiarum prima diſtributio fit per Theodorum Cantuarienſem. An. 668. Spelm. Tom. 1. in Concil. Herefordenſ..

(4.) Touching the Reparation of Churches, it hath been Ruled, That he who hath Land in a Pariſh, though he doth not inhabite 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 ddMich. 19 Jac. Rot. 1791. Caſe Dodderidge verſ. Anthony. Winch. Rep.. And it hath been holden, That if two Churches Parochial p. 138be united, the Reparation ſhall be ſeveral as beforeeeThe Pariſh of Aſhton's Caſe ver. Caſtle-Birmidge Chappel. Hob. Rep.. And although the Lord of a Mannor may preſcribe to a certain Seat or Pew in the Church, by having time out of mind maintained and repair'd 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 Mannor, 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 ProhibitionffCaſe Har…s verſ. Wiſeman. Winch. Rep. 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 Chuch, 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 ggPaſch. 16. Jac. B. R. Bra…in and Fradum's Caſe. Poph. Rep..

(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 Chappel 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 p. 139Bury 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 defence) 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 defencehhCaſe Day verſ. Beddingten and others. Noy's Rep..

(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:Co. lib. 6. fo. 29. b. Green's Caſe. int. Leg. Inae. cap. 6. Qui in Templo pugnaverit, 120 Solidis noxiam facito. Dyer. 23 Eliz. 177. Caſe ult. 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 mark'd with the letter F, in caſe he hath no Ears, and beſides ſhall ſtand ipſo facto ExcommunicatediiStat. 5 Ed. 6. c. 4.. 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 Phyſick, 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, p. 140which 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 offence at the Common Law. But afterwards another Exception was taken by Grimſtone, becauſe the offence was alledged 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 diſchargedkkTrir. 12 Car. B. R. Cholmley's Caſe. Cro. Rep. 3.. 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 alledg'd 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. diſturb'd him in a violent manner; and the Biſhop of the Dioceſs 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 it ſelf may be claimed by Preſcription: and an Action upon the Caſe lies for it at Common Law, Ve. Litt. 121, 122. llCarleton verſ. Hutton. Noy Rep. & Latch. Rep.. 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 p. 141the 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.mmCaſe W. Gilſon verſ. Wright & alios. Noy Rep.. 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 ſurmizes 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 conſequens 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 itnnTrin. 7 J…c. B. R. Sir W. Hall verſ. …llis. Noy Rep..

(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.ooCo. Inſt. par. 3. cap. 14. Brit. fo. 17. Dyer, 1 Mer. 99. 22 Ed. 3. tit. Cor. 264. 22 Aſſ. p. 95. 26 Aſſ. 19.. 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 Arreſtedpp50 E. 3. 5. p. Arreſts 1. Vid. St. 1 R. 2▪ c. 15 Dalt. Juſt. cap. 68. By the Eccleſiaſtical Laws of Ina, K. of the W. Saxons, cap. 5. Si quis rei Capitalis reus ad Templum confugerit, vita potitor.. 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 Sacriledge could not Abjure, becauſe he could not take the priviledge of Sanctuaryqq8 E. 2. cor. 4…. Si quis ſit mortis reus, & ad Eccleſiam confugiat, vitam habeat, In alio Exemplari LL. Eccleſ. Inae, cap. 5.. 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) Countrey, chuſing rather Perdere patriam quam vitam rrCuſt. de Norm. cap. 24. & 8. Inter Leges Inae, cap. 5. & int. Leg, … fo. 105. ca. 3. & Co. Inſt. p. 3. cap. 51.. But this Abjuration founded upon p. 142the priviledge of Sanctuary is wholly abrogated and taken away by an Act made 21 Jac. Reg. whereby it is Enacted, That no Sanctuary or priviledge of Sanctuary ſhould be admitted or allowed in any caſess…1 Jac. in the Continuance of Statutes. &c. Co ubi ſupr.. 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 SanctuaryttCo. ibid. Ubi vid. plene de Abjur. & Sanct.. But as to the other Abjuration in relation to Felonies, Sacriledge excepted, (no Abjuration or Sanctuary being allowed in caſes of Treaſon or Petit Treaſon) the Law was ſo favourable 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-yarduuLib. Int. 532. b. Sanct. 2. Hill. 43 E. 3. Rot. 115. Back. W. Atwell's Caſe. Co. Inſt. p. 3. cap. 101..

(9.) The defacing of Tombs, Sepulchres, or Monuments erected in any Church, Chancel, Common Chappel, 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 Actionww9 E. 4. 14. the Lady Wiches Caſe. & Mich. 10 Jac. C. B. Corven verſ. Pym. Co. Inſt. par. 3. cap. 97.. But the Erecting thereof ought not to be to the hinderance of Divine Service. And albeit the Freehold of the Church is in the Parſon, yet if the Lord of a Mannor, 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 Mannor, 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,Actio datur, ſi quis Arma in aliquo loco poſita delev…t ſeu abraſit, &c. Caſſanae Concil. 29. 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 endeavour to remove him, or place any other there, a Prohibition (as was reſolved in Corven's Caſe) will liexxMich. 10 Jac. C. B. dict. Caſ. inter Corven & Pym.. 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 caſeyy8 H. 7. 12. a. per Huſſy accord. Paſch. 10 Jac. Cam. Stell. int. Huſſy and Layton. Reſol. per le Court. Co. Inſt. par. 3. cap. 97.. But where there is no Preſcription, there the Ordinary for avoiding of contention in the Church, may place the Pariſhioners in the Church or publick Chappel according to their qualities and degreeszz8 H. 7. 12. a. acc. 12 H. 7. 12. per Huſſy. Co. ubi ſupr.. And until the Biſhop hath conſecrated or dedicated Churches or publick Chappels new erected, the Law doth not take knowledge of them qua p. 143tales; for which reaſon it is, That a Church or not a Church; a Chappel or not a Chappel; is Tried and Certified by the Biſhop aa8 H. 6. 32, 37..

(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 Chappels of Eaſe, viz. Rumford and Haveringe Chappels, 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 produc'd 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 CourtbbHill. 5 Jac. B. R. Buck againſt Amco…ts. Noy Rep.. 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 Chappel 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 Chappel, 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 Chappel of Eaſe, and then the Ordinary p. 144and 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 Pariſhoners 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 demurr upon it. Note alſo B. 5 Jac. B. R. a Derbyſhire-Caſe, where a Prohibition in ſuch caſe was denied ccPaſch. 4 Eliz. The Church-wardens of …enford's Caſe. Noy Rep..

(12.) Two Church-wardens ſue S. for Reparation of the Church according to the Tax aſſeſt. S. pleads he alwaies 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 ſeem'd 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 commencedddGore verſ. Stark. Noy Rep..

(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 requireseeCaſe Heal's ver. Church-wardens of Hobleton. Noy Rep.. 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 thatffChamber's Caſe. Noy Rep..

In another Caſe one that was ſued in the Eccleſiaſtical Court for Rates to reparation of the Church, alledged that they had overvalued his Land, Rating them at the value of 100 l. per. annum, they being worth but 60 l. (2) He alledged a Cuſtome 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 pray'd 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, p. 145Noy moved, That although the Principal be a thing Spiritual, yet it is now mixt with a Cuſtome, 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,Mich. 22 Jac. B. R. Holland verſ. Kirton. Rol. Rep. is more to be regarded, and a cuſtome 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 Cuſtome, 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,Cro. par. 1. 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 Chriſtned in the Pariſh, began in the Thirtieth year of Henry the Eighth, by the inſtigation of the Lord Cromwell ggTyrwhite verſ. Kynaſtan. Vid. Noy Rep. poſt dict. Caſ..

(15.) Chappel, Capella, of the French [Chapelleé, 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 Honour, ut ibidem Familiaria Sepulchra ſibi conſtituant; 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 Chappel of Eaſe, being ſerved by ſome inferiour Curate at the charge either of the Rector, or of ſuch as for whoſe convenience it is, according to the cuſtome or compoſition. A Chappel of Eaſe is where there is a Parochial Church in the ſame Pariſh, wherein the Sacraments are adminiſter'd, and not in the Chappel. 8 H. 6. 32. which appertains to the Parochial Church, and the Parſon thereof. Ibid. And a Parochial Church cannot be a Chappel. 8 H. 6. 37. The Third is that which is called a Free-Chappel, which in point of Maintenance and endowment, as alſo in reſpect of exemption from the Ordinaries Juriſdiction, ſeems to differ from both the former,If the King grant a Free Chappel to one, he ought to be put into poſſeſſion by the Sheriff, 14 H. 4. 11. b. and Rol. Abridg. ver. Preſentment, lit. B. pag. 356. and hath perpetual maintenance towards the upholding thereof, by a charitable Endowment thereof, without the charge of the Rector or Pariſhhh37 H. 8. c. 4. 1 Ed. 6. c. 14.. So that a Free-Chappel or Libera Capella is, according to the opinion of ſome, no other than a Chappel 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 p. 146called Free. Notwithſtanding which others are of opinion, and that more probable, That theſe only are Free Chappels, 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 Chappel, 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 iiRegist. of Writs, fo. 40, 41.. 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.. kkIbidem & T. 17 E. 1. Rot. 97. B. R.The King himſelf Viſits his Free Chappels and Hoſpitals, and not the OrdinaryllDav… 1. Proxies 4. 27 E. 3. 85. F. N. B. 42.. The Lord Chancellor executes it for the King. Theſe Chappels were all of them, together with Chantries given to the Kingmm1 Ed. 6. c. 14.: Of this kind is the Free Chappel of St. Martin le Grand nn3 Ed. 4. c. 4.. 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 (è Chapellee, Gallic.) ooRebuff. de pacif. poſſeſſ. nu. 104. Pet. Greg. Synt. lib. 15. c. 29. Jo. Andraeas de Benef. c. 11. nu. 10..

(16.) In the Pariſh of Aſton (in the County of Warwick) which hath a Pariſh Church, is a certain Chappel of Eaſe, called Caſtle-Birmidge Chappel, and a certain Precinct called Caſtle-Birmidge, the Inhabitants thereof reſort to the ſaid Chappel, and there Marry, Chriſten, and receive the Sacraments; there are alſo Church-wardens, and the Inhabitants have a Perambulation there of it ſelf; notwithſtanding all which, when it came in debate, whether the Pariſhioners of the Chappel (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 Chappel of Eaſe is part of the Pariſh, & de communi jure liable to reparations of the Pariſh Church; that ſuch as have a Chappel of Eaſe may reſort to the Pariſh Church, if they ſo pleaſe; and that the Parſon of the Pariſh-Church may Officiate at the Chappel of Eaſe, if he willppCaſe Aſton Pariſh verſ, Birmidge Chappel. Hob. Rep..

(17.) The Emperour 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 Chappel 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 p. 147ſhall 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 Emperour, That the ſacred Myſteries or Miniſteries be not done in private Houſes, but be celebrated in publick places, leſt thereby things be done contrary to the Catholick and Apoſtolick 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 Chappels and places to pray in every man may have in his own Houſe; if any thing be done to the contrary, the Houſe wherein theſe things are done, ſhall be confiſcate, and themſelves puniſhed at the diſcretion of the PrinceqqAuth. Coll. 5. Vid. Ridl. View, cap. 3. Sect. 6. par. 1..

(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. diſturb'd 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 Doderidge 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. Doderidge è 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 CaſerrHutton's Caſe. Latch. Rep.. Note, That a Prohibition may not be granted after a Conſultation ssGaſe Bowry verſ. Wallington. Latch. Rep.. 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 TermttAnonymus. dict. Rep. Latch..

(19.) It was moved in the King's Bench for a Prohibition to the Eccleſiaſtical Court at Worceſter, and ſhewed 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, p. 148That the charge was for the making of new Bells, where there were Four before, whereby it appears that it is meerly 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 alledged, 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 Doderidge in the Book of 44 E. 3. there was a By-law in the Caſe to diſtrain, which is a thing meerly 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 Cuſtome 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 uuMic…. 2 Car. Poph. Rep..

(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;Reparations. and the Inhabitants alledged, 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 pray'd a Citation, &c. But by Richardſon, Harvey, and Crook privately, a Prohibition will lie in both CaſesxxThe Caſe of Roberts and others in Hetley's Rep..

(21.) E. Libels in the Eccleſiaſtical Court againſt A. pretending, that a Seat, that the other claimed alwaies in the Church, belonged to his Houſe,Seats in a Church. 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 p. 149cauſe 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 meerly coram non Judice; and if they cannot meddle with the Principal, it is not reaſon that they ſhould tax Coſts. And a Prohibition was grantedyyEaton againſt Ay…ff…. Hetley's Rep..

(22.) H. Farmer of a Mannor; A. and other Church-wardens Libel againſt him in the Eccleſiaſtical Court for a Tax for the reparation of the Church.Reparation of the Church. Henden moved for a Prohibition becauſe that firſt the Libel was upon a cuſtome, That the Lands ſhould be charged for Reparations, which Cuſtomes ought to be tried at the Common Law. And ſecondly, Becauſe the cuſtome 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 Cuſtome, yet the other Lands ſhall be diſchargeable by the Common Law; but the uſage is to alledge a Cuſtome; and alſo that Houſes are chargeable to the Reparations of the Church, as well as Land. And thirdly, that a cuſtome to diſcharge ſome Lands is not good. Wherefore a Prohibition was grantedzzHill. 4 Car. C. B. Andrews verſ. Hutton. Hetley's Rep..

Note, that where a man ſued in the Eccleſiaſtical Court, preſcribing to have a Seat in a Church ratione Meſſuagii where he inhabited; upon the motion of Serjeant Henden, a Prohibition was granted, for it is a Temporal thingaaNoy's Rep. poſt Caſ. …ore verſ. Stark..

Note, By Coke Chief Juſtice, That the keeping of a Church-Book for the age of thoſe, which ſhould be born and chriſtned in the Pariſh, began in the 30th. year of Henry the Eighth: by the inſtigation of the Lord Cromwel bbPoſt Caſe Tyrwhite verſ. Kynaſton. Nay's Rep..

A man was indicted upon the Statute of Ed. 6. That in the Church-yard, Striking 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 ccHart verſus Arrowſmith. Poſt dict. Caſ. Noy's Rep..

p. 150If there be a Parſon Appropriate of a Church,Trees in the Church-yard. 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 CaſeddRol. Abr. verb. Parſon, nu. 3..

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,Seats in the Church. Brownl. Rep. pa. 1. Caſes in Law, &c. 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. Reparations of the Church.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 joyned 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 meerly 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 dwels in another Pariſh, doth not intend to have benefit by the Ornaments of the Church,Reparations of Church-Seats. 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 adviſeeePaſ…h. 8 Jac. B. R. Wagginer and Wood. Brownl. Rep. pa. 2.. 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.

p. 151(24.) Note, upon a motion for a Prohibition; That if a Parſon contract with me by word,Mich. 8 Jac. B. R. Brownl. ubi ſupra. 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 Dioceſs,S…ats in the Church. 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 conſiderationffMich. 11 Jac. B. R. per Cur. & Mich. 10 Jac. B. …ym's Caſe, per Cur. Hob. Rep. 95. & More Rep.: 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 ggTr. 12 Jac, B Croſs's Caſe Reſolved per Cu…. & M. 13 Jac. B. L…ugh and Huſſey. Reſol. & M. 13 Jac. B. Boothby and Day. Hob. Rep. 95. Rol. Abr. pag. 288.. 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 himhhM. 11 J…c. B. R. per Cur. & dict. Caſe Boothby. Hob. 93.. But with the Seats in the Chappels annexed to Noblemens Houſes, it is ſaid the Ordinary hath nothing to doiiTr. 12 Jac. B. Agreed. Rol Abr. ſo. 288.. If there be a cuſtome in a Pariſh, that 12 of the Pariſhioners may chuſe the Churchwardens, which Churchwardens have power by the cuſtome 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 cuſtome hath fixt 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 PariſhkkPaſch. 16 Jac. B. R. inter Bra…in and Tredennick for a Seat in the Church of St. Breock in Cornwal. Vid. Rol. Abr. verb. Prohibition pag 288..

p. 152(26.) The Eccleſiaſtical Court hath cognizance of the Reparations of the Body of the ChuechllCo. 5. Jeffrey's Caſe 67. Reſolved. Reparations of the Church.. 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 mmCo. ibid. & Tr. 11 Jac. B. Andrews Caſe, per Cur. Contra M. 40, 41. El. B. R. per Cur.. 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 chargednnCo. ibid. Jeffrey's Caſe. Reſol. M. 5 Jac. B.. 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 lieooPaſch. 16 Jac. B. R. Sr. H. Bu…ler verſ. &c. Reſol. Co. 5. Jeffreys 67.; 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 LawppM. 5 Jac. B. Sr. Ro. Lee's Caſe. per Cur..

(28.) If there be a Chappel 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 Chappel 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 Chappel was Ordained only for their eaſeqqM. 13 Jac. B. the Caſe of the Churchwardens of Aſhton, and the Inhabitants of Caſtel Bromage. Hob. Rep. 91.. 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 SurmizerrHob. Rep. 92..

(29.) If a man be rated for the Ornaments of the Church according to the Land which he hath in the Pariſh,Ornaments of the Church. a Prohibition lies, for the Rate for that ought to be according to the perſonal Eſtate ssMich. 20 Jac. B. R.. 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 thatttIbid. Reſol. per Cur.; and it was ſaid by Yelverton, That it had been often ſo Reſolved.

p. 153(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 lieuuMich. 11 Car. B. R. per Cur.. 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 any thing intended to be done for the Ornament of the Church; and therefore in this caſe a Prohibition was deniedxxMich. 2 Car. B. R. per Cur.Mic 2.

(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 Chappel 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 Chappel of Eaſe belonging to his Vicarage: if the Defendant ſuggeſt, that D. is a Pariſh of it ſelf, and not a Chappel of Eaſe, a Prohibition lies, for they may not try the Bounds of a PariſhyyMich. 14 Jac. B. R. Fiſher and Chamberlayn, Reſol. & Hil. 41 Eliz. B. R. Piper and Barnaby, Adjudg'd. & Hill. 13 Jac. B. R. Foſter and Hide, Adjudg'd..

(32.) If a Vicar ſue the Parſon Impropriate for dammages 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 zzMich 12 Jac. B. R. Bellamy's Caſe, Reſolv'd..

(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, preſcrib'd that there is a Chappel 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 Chappel, 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 Chappel of Eaſe in a Village ſhould be diſcharged of repairing the Mother-Church;Hill. 19 Jac. B. R. Rot. 922. Peeter verſ. Roſe Edmonds Wid. Roll. Rep. 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 ſhewed. 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 Mannor may preſcribe for that, and then it ſhall not be p. 154tried 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 Fabrick of the Church the charge is real,Hill. 20 Jac. B. R. Churchwardens Caſe. Roll'. Rep. & 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 paies 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 alledge 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,Cro. par. 2. 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 intereſſed in the Coat, &c. may have an Action of Treſpaſs.

(36.Mich. 18 Jac. B. R. Dawney and Dee's Caſe. Cro. par. 2.) In an Action upon the Caſe, D. ſhewed 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 Chappel 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,Seats in a Chappel. 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 p. 155ſaid Seats. The Defendant ſaid, That the Earl of N. was ſeized of the Honour of F. and the ſaid Chappel was parcel of the ſaid Honour, and that the Defendants being Servants of the ſaid Earl, and reſident within the ſaid Honour, 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 ſhew 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 priviledge; And for the ſecond, it is ſufficient to alledge a general Diſturbance, as is uſual in the Caſe of a Fair or Market.

(37.Paſch. 33 Eliz. B. R. Dethick's Caſe. Cro. par. 1.) 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,Striking in the Churchyard. 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.Penhall… 's Caſe. Cro. ibid. 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,Child's Caſe. Cro. ibid. 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; Corven's Caſe. Co. lib. 10.And Pym, by Serjeant Hutton, moved for a Prohibition upon this Reaſon,Right to Seat… in the Church. 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 Mannor, 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 p. 156to 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 Chappel 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 honour of the decaſed: The ſame reaſon of a Coat-Armour, &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.A Chappel of Eaſe taxed by the Mother-Church for reparations thereof.) In the County of Dorſet there was a Mother-Church and alſo a Chappel of Eaſe within the ſame Pariſh; they of the Mother-Church did rate and tax them of the Chappel 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 alledged, That they themſelves have uſed time out of mind, &c. to repair the Chappel 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,Hill. 7 Jac. B. R. Bulſtr. par. 1. 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 meerly 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 p. 157this was not his Pariſh-Church,A Preſentment ex Officio, for not frequenting his Pariſh-Church. Trin. 9 Jac. B. R. Bulſtr. par. 1. 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 mans 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,Paſch. 8 Jac. B. R. Bulſtr. par. 1. 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 cuſtome 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 meerly 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.Seats in a Church.) 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. Mich. 11 Jac. B. R. May againſt Gilbert. Bulſtr. par. 2.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. Doderidge 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, p. 158to 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. Doderidge 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 Honour, 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 remembred, 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 Countrey, 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.