Abridgment of Ecclesiastical Laws, Treatise · Chapter 13
CHAP. XIII.
Of Churchwardens, Queſtmen, and Sidemen.
1. What ſuch are in conſtruction of Law; how the choice of them is to be made, and wherein the Office doth conſiſt.
2. What Actions at Law may lie for or againſt them.
3. Whether Actions lie for the New Churchwardens in Treſpas done in time of their Predeceſsors.
4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preſerve.
5. Caſes in Law touching the Election of Churchwardens.
6. What Sidemen or Queſtmen are, and their duty.
7. Action at Law againſt Churchwardens, touching Diſtreſs taken by them for money for relief of the Poor.
8. A Churchwarden refuſing to take the Oath of Enquiry on the 39 Articles, Action thereon.
9. What remedy in caſe the Archdeacon refuſes to Swear the Churchwardens Elect.
10. The Injunctions of King Ed. 6. touching all Marriages, Baptiſms, and Burials to be Regiſtred in the preſence of the Churchwardens.
11. Whether the Releaſe of one Churchwarden, ſhall be a Bar to his Companion, in an Eccleſiaſtical Suit commenced by them both?
12. Prohibition, where Churchwardens have pretended a Cuſtome to chuſe the Pariſh-Clerk.
13. The like upon a Preſentment by Churchwardens againſt one, in matter more proper for a Leet, than the Eccleſiaſtical Court, to take cognizance of.
14. The prevalency of Cuſtome againſt a Canon, in choice of a Churchwarden, in reference to a Vicar and the Pariſhioners.
15. If queſtion be, whether Lands next adjoyning unto a Churchyard ſhall be charged with the repairs of the Fences thereof, and Cuſtome pleaded for it, in what Court cognizable.
16. In Action of Account by Pariſhioners againſt Churchwardens, by whom a Releaſe of C…ſts is pleaded, but diſallowed in the Eccleſiaſtical Court; whether Prohibition lies in that caſe?
17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the uſe of the Church?
18. The Churchwardens diſpoſal of Goods, belonging to the Church, without the aſſent of the Sidemen or Veſtry, void.
19. Churchwardens not Eccleſiaſtical Officers, but Temporal employed in Eccleſiaſtical Affairs; Before whom are they to Account?
20. Whether Churchwardens may have Action for Treſpaſs done to the Church in their Predeceſſors time?
21. Whether the Pariſhioners by force of a Cuſtome, or the Parſon by virtue of a Canon, ſhall chuſe the Churchwarden; and whether Prohibition lies in that caſe?
22. Whether Churchwardens, as a Corporation, may preſcribe to take Lands to them and their Succeſſors, to the uſe of the Church?
1. CHurchwardens, or Guardiani Eccleſiae, are certain Officers Parochial,Oeconomi, vel Eccleſiae Guardiani. annually elected or choſen by and with the conſent of the Miniſter and a ſelect number of the chief Pariſhioners, according to the Cuſtome of the place, to look to the Church and Church-yard, and to take care of the concernments thereof, and of ſuch things as appertain thereto; as alſo to obſerve and have an inſpection into the Behaviour, Lives, and Converſation of their Pariſhioners, touching ſuch faults and diſorders as are within the cognizance and cenſure of the Eccleſiaſtical Juriſdiction. Theſe Officers are a kind of Corporation, enabled to ſue and be ſued for any matters or things belonging to the Church or Poor of their Pariſh;Churchwardens, if elected by Veſtry, where good, and capable to pu…chaſe Lands. Vid. St. Savi…urs in S…uthwark's Caſe. Lane Rep. and have as their Aſſiſtants, certain Sidemen or Queſtmen, who according to the cuſtome of the Pariſh are yearly likewiſe choſen, to aſſiſt the Churchwardens in the Enquiry and preſenting ſuch offenders to the Ordinary as are within the Eccleſiaſtical cognizance and cenſure aforeſaid; for which they are not to be ſued or troubled at the Law by any ſuch Offenders ſo preſented as aforeſaidaCan. 115.; nor are they obliged to Preſent oftner than twice a year, except it be at the Biſhop's Viſitation; yet they may preſent as oft as they ſhall think meet, if good occaſion ſhall ſo require bCan. 116.; but they may not (on pain of being proceeded againſt by their Ordinaries, as in caſes of wilful Perjury in Courts Eccleſiaſtical) willingly and wittingly omit to preſent ſuch publick Crimes as they knew to have been committed, or could not be ignorant that there was then a publick ſame thereofcCan. 117.. Moreover, the Old Churchwardens are to make their Preſentments before the New be Sworn; till which time the Office of the old continues; the uſual time for the New Churchwardens to enter upon their Office, is the firſt week after Eaſter, or ſome week following, according to the direction of the Ordinary; before which, the old Churchwardens ſhall exhibit the Preſentments of ſuch enormities as happened in their Pariſh ſince their laſt Preſentments, and ſhall not be ſuffered to tranſmit or paſs over the ſame to thoſe that are newly choſen dCan. 118.. By the Ninetieth Canon the choice of Churchwardens, Queſtmen, Sidemen, or Aſſiſtants is to be yearly made in Eaſter-week; and that by the Joynt-conſent of the Miniſter and the Pariſhioners, if it may be; otherwiſe, the Miniſter to chuſe one, and the Pariſhioners another; who at their years end, or within a month next after, ſhall in the preſence of the Miniſter and the Pariſhioners make a juſt Account of what they have received and disburſed for the uſe of the Church, and ſhall deliver over what remains in their hands belonging to the Church, unto the next Churchwardens by Bill IndentedeCan. 89..
(2.) One brought Action on the Caſe againſt Churchwardens, for a falſe and malicious Preſentment of him in the Spiritual Court, and found for the Defendants; They prayed double Coſts on the Statute of 1 Jac. But Jones, Crook, and Berkley, Juſtices, denied it, for that the Statute doth not extend to Churchwardens for things of their office in Eccleſiaſtical CauſesfMich. 8 Car. B. R. Caſe K…rcheval verſ. Smith & alios. Jon… 's Rep.. They have their Action of Treſpaſs at the Common Law for ſuch things taken away out of the Church, as belonged to the Pariſhioners in reference to the Churchg11 H. 4. Tri…. 12 Jac. B. R. Buckſal… 's Caſe. Roll. Rep.. And the Releaſe of one of the Churchwardens, is no Bar in Law to the otherh14 Jac. B. R. in Motam's Caſe. Roll ibid. If one take away the Chalice or Surplice out of the Church, Action of Treſpaſs lieth againſt him at Common Law, and not in the Eccleſiaſtical CourtiPer Dod. Mich. 13 Jac. B. R. Bellamie's Caſe. Roll Rep.. So if one lay violent hands on an Eccleſiaſtical perſon, an Action lies in the Eccleſiaſtical Court, but he ſhall not there ſue for dammageskIbid.. If the Organs, or Pariſh-Bible or the like, be taken away out of the Church, the Action lies at the Common Law and not in the Spiritual Court for the ſame, for the Churchwardens may have their Action at Common Law in that caſelDict. Buckſal…'s Caſe. It is Felony and Sacriledge to ſteal away the Pariſh-Bible cut of the Church, and ſuable at Common Law.: But if the Parſon take away out of the Church the Scutcheon or Banner of ſome perſon deceaſed, his Widow (if ſhe did put it there, and it be taken away in her life time) may have her Action of Treſpaſs at Common Law, or after her deceaſe the Heir may have the ſame Action mCo. 9 Ed. 4. & Trin. 12 Jac. Buckſale's Caſe. Roll. Rep..
(3.) Treſpaſs brought by the Churchwa…dens of F. and declared, That the Defendant took a Bell out of the ſaid Church, and that the Treſpaſs was done 20 Eliz. It was found for the Plaintiffs. It was moved in Arreſt of Judgment, that it appears by the Declaration, That the Treſpaſs was done in the time of their Predeceſſors, of which the Succeſſor cannot have Action: and Actio perſonalis moritur cum perſona, Vid. 19 H. 6. 66. But the old Churchwardens ſhall have the Action. Coke contrary, and that the preſent Churchwardens ſhall have the Action, and that in reſpect of their Office, which the Court granted. And by Gawdy, Churchwardens are a Corporation by the Common Law, Vid. 12 H. 7. 28. by Frowick, That the New Churchwardens ſhall not have an Action upon ſuch a Treſpaſs done to their Predeceſſors; Contrary by Yaxley. Vid. by Newton and Paſton, That the Executors of the Guardian in whoſe time the Treſpaſs was done, ſhall have TreſpaſsnHill. 31 Eliz. C. B. The Churchwardens of Fetherſtone's Caſe. Leon. Rep..
(4.) It is the duty of Churchwardens not only to take care of the Concernments of the Church, and to preſent Diſorders, as aforeſaid, but alſo to provide Bread and Wine againſt the Communion, the Bible of the largeſt Volume, the Book of Common Prayer, a decent Pulpit, a Cheſt for Alms, Materials for repairing the Church, and fencing the Church-yard, and the like, all at the Pariſh-charge, and ſhall, what in them lies, prevent the prophanation of Churches by any uſage thereof contrary to the Canons. It was agreed by the Court in Robert's caſe, That a Tax for the Church cannot be made by the Churchwardens only. Hetley's Rep.
(5.) In Butt's Caſe, Moore Serjeant moved at Court for a Prohibition, becauſe where the cuſtome of the Pariſh or Village was, that the Pariſhioners have uſed to elect two Churchwardens: and at the end of the year, to diſcharge one and elect another in his room, and ſo alternis vicibus, &c. By the New Canon now the Parſon hath the Election of one, and the Pariſh of the other; and that he that was elected by the Pariſhioners, was diſcharged by the Ordinary at his Viſitation; and for that he prayed a Prohibition. Et allocat. as a thing uſual and of courſe. For otherwiſe (by Hubbard) the Parſon might have all the Authority of his Church and PariſhoBut… 's Caſe. Noy Rep.. The like Caſe to this we have elſewhere reported, viz. The Parſon and Churchwardens in London by the Cuſtome are a Corporation, and the Pariſhioners time out of mind, &c. have uſed at a certain day in the *Veſtry, from Veſtments, the place where the holy Veſtments are kept. This is uſed once in the Bible, and but on…, 2 Ki…. 10. 22. where the Ba…li…es kept thei… Veſtments.Veſtry to Elect Churchwardens; They elect A. and preſent him to the Archdeacon, who refuſes A. and forbids him to exerciſe the Office of a Churchwarden, becauſe the Parſon pretended, that by the new Canon the Election of a Churchwarden belonged to him to diſpoſe, &c. and exerciſe the Office of Churchwarden. And A. is ſued ex Officio in the High Commiſſion-Court, amongſt other things touching that: A. prays a Prohibition, becauſe the Canon does not take away the Cuſtome. Alſo it would be very miſchievous, if the Parſon ſhould Elect whom he pleaſe to be Churchwarden. And the Parſon and Churchwardens being a Corporation, then they may diſpoſe of the Goods and Lands of the Pariſh as they pleaſe. Coke Chief Juſtice ſaid, That a Convocation hath power to make Conſtitutions for Eccleſiaſtical Things or Perſons, 20 H. 6. 14. 21 E. 4. 46. But they ought to be according to the Law and Cuſtome of the Realm. And they cannot make Churchwardens that were Eligible, to be Donative without Act of Parliament; and the Canon is to be intended where the Parſon had nomination of a Churchwarden before the making of the Canon. And now Rule was given for a Prohibition, if cauſe be not ſhewn to the contrary, &c. ex motione Serjeant Foſter pMich. 4 Jac. C. B. Noy Rep. Theſe Sidemen were called Teſtes Synodales, anciently ſtyled Synods men, thence corruptly called now Side-men..
(6.) As touching Sidemen, otherwiſe called Queſtmen, they are only ſuch as are annually choſen, according to the cuſtome of every Pariſh, to aſſiſt the Churchwardens in the enquiry and preſenting ſuch Offenders to the Ordinary, as upon ſuch Preſentments are proſecuted and puniſhable in the Eccleſiaſtical Court.
(7.) In an Action of Treſpaſs againſt the Churchwardens, where by the Statute of 43 Eliz. cap. 2. if for a Diſtreſs taken by them, for money for the relief of the Poor, Treſpaſs be brought againſt them, and Verdict paſs for them, the Defendants ſhall recover treble Dammages with their Coſts; And that to be aſſeſt, &c. by the ſame Jury, or by Writ of enquiry of Dammages, it was Reſolved (1) That the Coſts ſhall not be trebled, but only the Dammages. (2) That the treble Dammages are well aſſeſt by the Jury, although that it be not done by the Court. Becauſe the words are [by the ſame Jury to be aſſeſt] and not Dammages to be trebled by themaOkely verſ. Salter. Noy's Rep..
(8.) Upon an Habeas Corpus the Caſe was return'd to be, That H. being Churchwarden, refuſed to take the Oath of Enquiry of the 39 Articles touching Eccleſiaſtical matters. And the warrant of the Commitment of the High Commiſſioners was to retain him, and until we ſhall give order for his delivery. By the Court, &c. Ʋntil we, that is, All we, 12 Ed. 4. 3. a. 1 H. 7. 7. a. that is not good; for if then any of them dies, or be removed, The party ſhall never be delivered by that means: But it ought to be, Until he ſhall be lawfully delivered. But notwithſtanding the Churchwarden was not out upon Bail, becauſe now alſo he refuſed to take that Oath: But with a So far forth as the Articles do agree with the Law of God and the Land. Note, that ſuch ſubſcription or conſent to the Articles 13 Eliz, by a Parſon is not good. As it was Adjudged in 33, & 34 Eliz. B. R. Clark againſt Smithfield: But afterwards the Churchwarden was delivered by the High CommiſſionersbWharton's Caſe. Noy's Rep..
(9.) If the Pariſhioners have time out of mind uſed to chuſe two Churchwardens yearly, and to preſent them to the Archdeacon to be Sworn, and he have uſed to Swear them, and upon ſuch election and preſentation to him to be Sworn he ſhall refuſe to Swear them, a Writ may iſſue out of the King's Bench, directed to the Archdeacon, commanding him to Swear them, Mich. 15 Jac. B. R. ſuch Writ was granted for the Churchwardens of Sutton Valence in Kent; for although there was a Canon made primo Jac. to the contrary, yet that cannot take away the cuſtome, Tr. 15 Car. B. R. The like Writ was granted for the Churchwardens of the Pariſhes of Ethelborough and St. Thomas Apoſtles in London, after divers motions, and upon hearing of the Council on both ſides, Paſch. 4 Car. B. R. Rot. 420. between Draper and Stone. The like Writ was granted for the Churchwardens of Holberton in Devon cRoll. Abr. verb. Prerog. lit. L.. If one be choſen Churchwarden, and the Official of the Biſhop refuſe to Adminiſter his Oath to him, he ſhall have a Special Writ directed to the Official, commanding him to give him his Oath. Trin. 17 Jac. B. R. Biſhop's Caſe. Roll Rep. Note, That an Attorney cannot be a Churchwarden: if he be choſen, and refuſe, and be ſued for ſuch a Refuſal in the Eccleſiaſtical Court, he may have a Prohibition. Paſch. 14 Car. 1. B. R. in Wilſon's Caſe, & Trin. 15 Car. 1. B. R. Barker's Caſe. Roll's Caſes, 2. par. fo. 272.
(10.) By the Injunctions of King Ed. 6. An. 1547. to all the Clergy as well as Laity of this Realm, it is required, That the Parſon, Vicar, or Curate, and Pariſhioners of every Pariſh within this Realm, ſhall in their Churches and Chappels keep one Book or Regiſter, wherein they ſhall write the day and year of every Wedding, Chriſtning, and Burial, made within their Pariſh, &c. and therein ſhall write every perſons Name that ſhall be ſo Wedded, Chriſtned, or Buried. And for the ſafe keeping the ſaid Book, the Pariſh ſhall be bound to provide of their common charges, one ſure Coffer, with two Locks and Keys, whereof the one to remain with the Parſon, Vicar, or Curate, and the other with the Wardens of every Pariſh-Church or Chappel, wherein the ſaid Book ſhall be laid up: Which Book they ſhall every Sunday take forth, and in the preſence of the ſaid Wardens, or one of them, write or record in the ſame, all the Weddings, Chriſtnings, and Burials made the whole week before; and that done, to lay up the Book in the ſaid Coffer, as before. And for every time that the ſame ſhall be omitted, the party that ſhall be in the fault thereof, ſhall forfeit to the ſaid Church three ſhillings four pence, to be employed to the Poor mens Box of that PariſhdVid. Biſhop Sparrow's Collection, &c. pa. 5..
(11.) A man taxed by the Pariſh for Reparation of the Church, was ſued for the Tax by the Churchwardens in the Eccleſiaſtical Court:Hill. 7 Jac. 1609. B. R. Barton's Caſe. Brownl. Rep. p…r. 2. Depending this Suit one of the Churchwardens releaſed to the Defendant all Actions, Suits, and Demands; the other Churchwarden proceeded in the proſecution of the Suit, and upon this the Defendant procured a Prohibition; upon which matter ſhewed therein was a Demurr joyned. Davenport moved for a Conſultation. The Queſtion was, where two Churchwardens ſue in the Eccleſiaſtical Court for a Tax, and one of them Releaſe, whether that Releaſe ſhall barr his Companion or not? It ſeem'd to him, that this Releaſe ſhall not be any barr to his Companion, or impediment to ſue; for he ſaid, That Churchwardens are not parties intereſſed in the Goods of the Church, but are a ſpecial Corporation for the benefit of the Church; for which he cited the Caſe in 8 E. 4. 6. The Churchwardens brought Treſpaſs for the Goods of the Church taken out of their poſſeſſion, and they counted Ad damnum Parochianorum, and not to their proper dammage; and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. where it is ſaid expreſly, That the Wardens of a Church are a Corporation only for the benefit of the Church, and not for the diſadvantage thereof; but this Releaſe ſounds to diſadvantage of the Church, and therefore ſeems to be no Barr: Alſo this Corporation conſiſts of Two perſons, and the Releaſe of one is nothing worth; for he was but one Corps, and the moiety of the Corps could not Releaſe; and for theſe Reaſons he prayed a Conſultation. Yelverton to the contrary, and he took a difference and ſaid, That he agreed, that if the Wardens of the Church have once poſſeſſion of the Church, there in Action of Treſpaſs brought for theſe Goods one Warden cannot Releaſe: But this Tax for which they Sue is a thing meerly in Action, of which they have not any poſſeſſion, and there he cannot Sue alone; and therefore this Releaſe ſhall barr his Companion. The Court interrupted him and ſaid, That clearly Conſultation ſhall be granted; Fleming Chief Juſtice, We have not need to diſpute this Releaſe, whether it be good or not? and there is a difference where Suit is commenced before us, as if Churchwardens brought Treſpaſs here for Goods of the Church taken, and one Releaſe, then we might diſpute whether this Releaſe were good or not; but when the matter is originally begun before them in the Eccleſiaſtical Court, and there is the proper place to ſue for this Tax, and not any where elſe, we have nothing to do with this Relaſe; for which reaſon by the whole Court a Conſultation was granted. In an Action in the Eccleſiaſtical Court by two Churchwardens, if the Defendant plead the Releaſe of one of them, that ſhall be tried there, and no Prohibition ſhall be granted. Vid. Roll. Abr. ver. Prohibition, pag. 306. nu. 3.
(12.Mich. 22 Jac. B. R. Between Walpoole and Coldwell for the Clerk of S. Tho. Apoſt. Lond. Intratur Hill. 22 Jac. Rot. 466. P. 19 Jac. B. R. Rot. 177. P. 11 Car. B. S…i…h and Pannel's Caſe. Hob. Rep. Caſe 311.) If the Churchwardens of a Pariſh have uſed time out of mind, &c. to chuſe the Pariſh-Clerk, and Suit be in the Eccleſiaſtical Court to remove him, and to put in one of the Parſon's choice, a Prohibition lies, as in Walpool's caſe; but there the Prohibition was granted by the conſent of parties, to try the cuſtome. The like Prohibition was granted between Brown and Crawſhawe for White-Chappel Pariſh. And the like granted between Beaumont and Weſtley for the Pariſh of St. Cuthberts in Wells.
(13.) If a Preſentment be made by the Churchwardens of a Pariſh in the Eccleſiaſtical Court, That J. S. one of the Pariſhioners is a Railer and ſower of Diſcord among his Neighbours, a Prohibition lies; for that belongs to the Leet, and not to that Court, unleſs it were in the Church or ſuch like place.
(14.P. 5 Jac. B. R. The Pariſhioners of Rolvendon in Kent. Adjudg'd. Tr. 7 Car. B. R. between Shirley and Brown. Rot. 1, 91. P. 4 Car. B. R. Rot. 420. Draper and Stone.) Where the Pariſhioners of a Pariſh have uſed time out of mind, &c. to chuſe one Churchwarden, and the Vicar another; and afterwards a Canon is made, That the Vicar ſhall chuſe both, and ſo he doth accordingly, and the Pariſhioners ſhall chuſe one according to the cuſtome, and the Ordinary diſallow him, and confirm the Two choſen by the Vicar, a Prohibition hath been granted in this caſe. So likewiſe a Prohibition was granted againſt the Churchwardens, choſen by the Parſon of St. Magnus near London-Bridge by force of the Canon, on a ſurmize, That the Pariſh had a cuſtome to Elect both Churchwardens. The like alſo was granted for Abchurch in London.
(15.) Where the Churchwardens ſued in the Eccleſiaſtical Court J. S. ſuppoſing in their Libel, that he and all thoſe whoſe Eſtate he hath in certain Land next adjoyning to the Church-yard,Mich. 14 Car. B. R. The Churchwardens of Claydon and Duncombe. Roll. Abr. pag. 287. have uſed time out of mind, &c. to repair the fences of the Church-yard next adjoyning to the ſaid Land: In this caſe it was ſaid, that a Prohibition lies, and that it ought to be tried at Common Law, for that it is a charge to the Temporal Inheritance.
(16.) If the Pariſhioners ſue the Churchwardens of the Pariſh in the Eccleſiaſtical Court to make an Account, and in that Suit coſts of Suits are Taxed for the Pariſhioners againſt the Churchwardens, and after the Churchwardens pay the coſts to one of the Pariſhioners, and thereupon he that receives the coſts gives a Releaſe to the Churchwardens for the ſaid coſts, and that Releaſe is after pleaded by the Churchwardens againſt the other Pariſhioners in the Eccleſiaſtical Court,Mich. 15 Car. B. R. inter Homes & Go…d in per Cur. and they there diſallow it; yet no Prohibition granted, for that they have cognizance of the Original, viz. the coſts, they ſhall have cognizance alſo what ſhall be a ſufficient payment thereof. And in this caſe a Prohibition was denied.
(17.) The Churchwardens cannot preſcribe to have Lands to them and their Succeſſors,Paſch. 37 El. B. inter Longley & Meredine. for they are not any Corporation to have Lands, but for Goods for the uſe of the Church. And therefore it ſeems at the Common Law, if a Feoffment be made to the uſe of the Churchwardens of D. it is a void uſe, for they have no capacity for ſuch purchaſe.
(18.) The Churchwardens gift of Goods in their cuſtody without the aſſent of the Sidemen or Veſtry, is void. If a man take the Organs out of the Church,38 El. Methold and Win…'s Caſe, cited by Coventry. the Churchwardens may have Action of Treſpaſs for them, for the Organs belong to the Pariſhioners, and not to the Parſon; therefore the Parſon cannot ſue him in the Eccleſiaſtical Court that takes them away.Trin 12 Jac. B. R. per Cur. Adjudg'd. Mich 37, 38 Eliz. B. R. Mithold and Winn's Caſe, ut ſup…. Adjudg'd. The Churchwardens by the aſſent and agreement of the Pariſhioners may take a decayed Bell, and deliver it to the Bell-Founder, and that by their agreement he ſhall have 4 l. for the caſting thereof, and retain it until the 4 l. be paid; and that Agreement of the Pariſhioners ſhall excuſe the Churchwardens in a Writ of Account brought againſt them by their Succeſſors Churchwardens; for the Pariſhioners are a Corporation to diſpoſe of ſuch perſonal things as appertain to the Church.
(19.) B. Churchwarden of the Church of S. was ſued in the Eccleſiaſtical Court to Account for the Moneys which he had received and expended by reaſon of his Office the laſt year paſt, and for obtaining a Prohibition he ſuggeſted, That per Legem terrae, he ought to Account before the Miniſter of his Pariſh, the ſucceeding Churchwardens, and a great number of the Pariſhioners; and that he had Accounted accordingly. Henden, the Eccleſiaſtical Judge ex Officio may compel him to Account before him: I agree that Churchwardens for all perſonal things concerning the Church are a Corporation 8 E. 4. 6. and for Goods of the Church they may have Action,Hill. 16 Jac. B. R. Biſhop's Caſe. Roll's Rep. and count to the damage of the Pariſh, and the ſucceeding Churchwarden may have Action againſt his Predeceſſor as againſt a Stranger, but not as againſt an Officer for what he did ratione Officii, and then if he ſhall not be enforced to Account in the Eccleſiaſtical Court, then there will be no remedy againſt him, vid. 12 H. 28. (2) He is an Eccleſiaſtical Officer, and therefore proper to the Eccleſiaſtical Judge to have Juriſdiction of his Account; And a Clerk of a Pariſh may ſue in the Eccleſiaſtical Court for his Fees, which are called Largitiones Charitativae, vid. Regiſter fo. 52. for he is quodammodo an Officer Spiritual, 21 E. 4. 47. But notwithſtanding this, a Prohibition was granted; And Mountague Chief Juſtice ſaid, That a Churchwarden is not an Eccleſiaſtical Officer, but Temporal employed in Eccleſiaſtical buſineſs; Quaere, Whether in that caſe the Miniſter may require him to render an Account? and if he refuſe, Whether the Eccleſiaſtical Judge may compel him to Account.
(20.)Hadman and Ringwood's Caſe. Cro. par. 1. In Treſpaſs by Churchwardens, for taking a Bell out of the Church in the time of their Predeceſſors, it was Adjudg'd, That the Action did lie, whereas it was declared ad damnum ipſorum; which ſhall be ſuppoſed ad damnum Parochianorum.
(21.)Warner's Caſe. Cro par. 2. The Pariſhioners of the Pariſh of Al-Hallowes in London, did preſcribe to chuſe their Churchwardens every year, and they choſe W. their Churchwarden; The Parſon by virtue of a late Canon, that he ſhould have the Election choſe C. to be Churchwarden, and procured him to be Sworn in the Eccleſiaſtical Court; and a Prohibition was prayed, for that it being a Special cuſtome the Canons cannot alter it, and if every Parſon might have Election of the Churchwardens without the aſſent of the Pariſhioners, they might be much prejudiced: And ſo it was ſaid, That it had been Adjudg'd, Paſch. 5 Jac. in the caſe of the Pariſhioners of Walbrook in London.
(22.)…inch. lib. 2. cap. 17. p. 179. Roll's Caſes. par. 1. fo. 393. Although (as aforeſaid) the Law doth make Churchwardens a kind of Corporation, and enables them by that Name to take moveable Goods and Chattels, and to ſue and be ſued at Law concerning ſuch Goods for the uſe and benefit of their Pariſh; yet they cannot take an Eſtate of Lands to them by name of Churchwardens; nor can Churchwardens preſcribe to have Lands to them and their Succeſſors, for they are no Corporation to have Lands, but for Goods of the Church only.