and their parishioners, about the conferring of such offices, we do decree, that the same rectors and vicars, whom it more particularly concerneth to know who are fit for such offices, shall endeavour to place such clerks in the aforesaid offices, who, according to their judgment are skilled and able to serve them agreeably in the divine administration, and who will be obedient to their commands.

And by Can. 91. No parish clerk upon any vacation shall be chosen within the city of London or elsewhere, but by the parson or vicar; or where there is no parson or vicar, by the minister of that place for the time being: which choice shall be signified by the said minister, vicar, or parson, to the parishioners the next sunday following in the time of divine service.

Since the making of which canon, the right of putting in the parish clerk hath often been contested between incumbents and parishioners, and prohibitions prayed, and always obtained, to the spiritual court for maintaining the authority of the canon in favour of the incumbent, against the plea of custom in behalf of the parishioners. Gibs. 214.

Thus, E. 8 Ja. Cundict and Plomer. The parishioners of the [67] parish of St. Alphage in Canterbury, did prescribe to have the election of their parish clerk, and by the canon, the election of the clerk is given to the vicar: It was adjudged in this case, that the prescription should be preferred before the canon: and a prohibition was awarded accordingly. Hughes, 275. (5)

T. 21 Ja. Jermyn's case. Jermyn rector of the parish of St. Katherine's in Coleman street, and Hammond as clerk there, sued in the spiritual court to have the said clerk established there, being placed there by the parson according to the late canon; where the parishioners disturbed him upon a pretence of a custom to place the clerk there by the election of their vestry. And upon this surmise of a custom, the churchwardens and parishioners prayed a prohibition; and after divers motions, a prohibition was granted: for they held that it was a good custom, and that the canon cannot take it away. Cro, Ja. 670.

[By 59 G. 3. c. 134. § 29. The clerk in every [new] church and chapel built under 58 G. 3. c. 45., 59 G. 3. c. 134. &c., shall be annually appointed by the minister. The office is for life, though the term for which he shall have it, is not mentioned on his nomination. Townsend v. Thorp, 2 Raym. 1507. So though he is in without deed. 2 Salh. 536.]

4. Parish clerks, after having been duly chosen and appointed, How to be are usually licensed by the ordinary. Johns. 204.

(5) 13 Rep. 70. S. C. for the custom of election is a thing merely temporal, and the party chosen is a mere temporal man, and see The King v. Warren, Cowp. 270. infra.

admitted.

His salary.

And when they are licensed, they are sworn to obey the minister. Johns. 205.

And if a parish clerk hath been used time out of mind to be chosen by the vestry, and after admitted and sworn before the archdeacon, and he refuse to swear such parish clerk so elected, but admitteth another chosen by the parson; a writ may be awarded to him commanding him to swear him. 2 Rolls. Abr. 234. Viner, Mandamus, H. 3. 8 Bac. Abr. 531.

And in the case of K. and Henchman, official of the consistory court of the bishop of London, a mandamus was granted, to admit one Robert Trott to the office of parish clerk of Clerkenwell, being elected by the parish: it being shewn that the official had usually admitted to that office. 3 Bac. Abr. 531.

5. By the aforesaid constitution of archbishop Boniface; If the parishioners shall maliciously withhold the accustomed alms from the aquabajalus, they shall be earnestly admonished to render the same; and if need be, shall be compelled by ecclesiastical

censure.

Alms] By which word we may understand that such clerks cannot claim any thing by way of a certain allowance or endowment by reason of their office of aquæbajalus: But their susten[68] tation ought to be collected and levied according to the manner and custom of the country. Lindw. 143.

Accustomed alms] For this custom ought to be considered according to the manner anciently observed; which also, inasmuch as it concerneth the increase of divine worship, ought not to be changed at pleasure: but hereunto the parishioners may by compelled by the bishop. Lindw. 143.

And custom of this kind is good and laudable, that every master of a family (for instance) on every Lord's day give to the clerk bearing the holy water somewhat according to the exigency of his condition; and that on Christmas day he have of every house one loaf of bread, and a certain number of eggs at Easter, and in the autumn certain sheaves. Also that may be called a laudable custom, where such clerk every quarter of the year receiveth something in certain in money for his sustenance, which ought to be collected and levied in the whole parish. For such laudable custom is to be observed; and to this the parishioners ought to be compelled; for having paid the same for so long a time, it shall be presumed that at first they voluntarily bound themselves thereunto. Lindw. 143.

Admonished] Not only by the ministers, but also and more especially by the ordinary of the place. Lindw. 143.

By ecclesiastical censure] Of which there are three kinds: suspension, excommunication, and interdict. Lindw. 143.

And by Can. 91. The said clerks shall have and receive their ancient wages, without fraud or diminution, either at the hands

of the churchwardens, at such times as hath been accustomed, or by their own collection, according to the most ancient custom of every parish.

Ancient wages] In case such customary allowance is denied, the foregoing constitution, and the practice thereupon, direct where it it so be sued for, viz. before the ordinary in his ecclesiastical court. That constitution (as we see) calls those wages accustomed alms; and in the register there is a consultation provided in a case of the same nature, for what the writ calls largitio charitativa (as being originally a free gift), which by parity of reason may be fairly extended to the present case. Gisb. 214.

But by the common law; If a parish clerk claim by custom to have a certain quantity of bread at christmas, of every inha- [ 69 ] bitant of the parish, or the like, and sue for this in a spiritual court; a prohibition lieth. 2 Roll's Abr. 286.

M. 3 An. Parker v. Clarke. The clerk of a parish libelled against the churchwardens, for so much money due to him by custom every year, and to be levied by them on the respective inhabitants in the said parish; and after sentence in the spiritual court, the defendants suggested for a prohibition, that there was no such custom as the plaintiff had set forth in his libel. It was objected against granting the prohibition, that it was now too late, because it was after sentence, especially since the custom was not denied; for if it had, and that court had proceeded, then, and not before, it had been proper to move for a prohibition. But by Holt chief justice; it is never too late to move the king's bench for a prohibition, where the spiritual court had no original jurisdiction, as they had not in this case, because a clerk of a parish is neither a spiritual person, nor is this duty in demand spiritual, for it is founded on a custom, and by consequence triable at law; and therefore the clerk may have an action on the case against the churchwardens for neglecting to make a rate, and to levy it, or if it had been levied and not paid by them to the plaintiff. 6 Mod. 252. 3 Salk. 87.

H. 12 G. 2. Pitts v. Evans. A prohibition was granted to a suit in the spiritual court by the clerk of St. Magnus for 1s. 4d. assessed on the defendant's house at a vestry in 1672, to be paid to the parish clerk. For, by the court, he is a temporal officer; or if not, yet he could not sue there for such a rate: for if it is due by custom, he may maintain an assumpsit; if not, a quantum meruit, or a bill in equity. Strange, 1108. (l)

(2) S. C. 13 Vin. Ab. 155.

*But to sue for so small a matter, either at law or in equity, seems by no means eligible; as the remedy must needs be abundantly worse than the disease. Why it might not be made recoverable be fore justices of the peace in like manner as small tithes, or in some

How to be removed from his office.

6. The parish clerk ought to be deprived by him that placed him in his office; and if he is unjustly deprived, a mandamus will lie to the churchwardens to restore him (6): for the law looks upon him as an officer for life, and one that hath a freehold in his place, and not as a servant; and therefore will not suffer the ecclesiastical court to deprive him, but only to correct him for any misdemeanour by ecclesiastical censure. 3 Roll's Abr. 234. Gibs. 214. God. 192.

T. 13 G. Townshend and Thorpe. The plaintiff declared in prohibition; that he was indicted for an assault with intent to commit sodomy, notwithstanding which he was proceeded against in the spiritual court for the same offence, and for drunkenness. The defendant pleaded, that the plaintiff was a parish clerk, and that the suit there was not only to punish him for the incontinency, but also to deprive him of his office. Demurrer thereupon. And as it was going to be argued, the court proposed to stay till the indictment was tried; and it having been tried, and the defendant convicted and pilloried, the court, without ordering the declaration to be amended, granted a consultation as to the proceeding to deprive, and confirmed the prohibition as to any other punishment. They said, he was an ecclesiastical officer as to every thing but his election. Str. 776. [but see next case.]

M. 6 G. 2. Peak and Bourne. The plaintiff declared in prohibition, that he was sued in the spiritual court for executing the office of deputy parish clerk, without the license of the ordinary. On demurrer, three points were made: 1. Whether a parish clerk be a temporal or a spiritual office. 2. Whether he can make a deputy, 3. Whether the license of the ordinary is requisite. It was argued three several times upon all the points. But the court in giving judgment founded themselves only upon the last; as to which they held, that a license was not necessary, and therefore gave judgment for the plaintiff in prohibition. [71] They said the canon did not require it, and indeed it would be a transferring the right of appointment to all intents and purposes

other easy and expeditious method, no sufficient reason seems to have been assigned. Indeed, after all, the manner of recovering this salary, difficult as it may be, is not the greatest difficulty; for by the continual decrease in the value of money, almost nothing remains to be contended for. Two pence or three pence, or a like diminutive sum, for each house, when these salaries first became established, and for a long time after, were of more real intrinsic worth, than ten times the same nominal sums at present, and are decreasing in value every day. Insomuch that unless some other course shall be taken to bring this matter back nearer to the original standard, very few persons will be found who will accept the office, and many parishes already are become entirely destitute.

(6) Ile's case, I Ventr. 148. The King v. Warren, infra.

to the ordinary. As to the two other points, the court strongly inclined that he was a temporal officer as to the right of his office; and that he might make a deputy. And as to the first, when the court were pressed with their own authority in Townshend and Thorpe, they said it was a hasty opinion, into which they were transported by the enormity of the case. Str. 942.

T. 30 & 31 G. 2. Tarrant and Harby. A motion was made for a prohibition to the consistory court of York, to stay their proceedings against Tarrant the present parish clerk of St. Osith in York; which proceedings were there instituted at the instance of Haxby the deprived parish clerk, for the restoration of the said Haxby. It was urged that the office is temporal; and therefore that the spiritual court hath no jurisdiction concerning his deprivation. This Haxby, they said, was deprived by the parson and the whole parish, for drunkenness during divine service, and other misdemeanours: Whereupon the parson appointed Tarrant in his room. Against whom, Haxby libelled in the consistory. court; where there was a monition, and they were proceeding to restore Haxby. And all this was suggested. Upon which, a rule was granted to shew cause. And now cause was to have been shewn. But the counsel, being satisfied that it was too strong against them, gave it up. And the rule for the prohibition was made absolute. 1 Burr. 367.

That

H. 16 G. 3. K. and Erasmus Warren, clerk. In the last term cause was shewed against a mandamus to restore William Readshaw to the office of parish clerk of Hampstead. It was stated, that the clerk was appointed by the minister: that he had since become bankrupt, and had not obtained his certificate. he had been guilty of many omissions in his office; was actually in prison at the time of his amoval; and had appointed a deputy who was totally unfit for the office. Against which, it was insisted, that the office of parish clerk is a temporal office during life: that the parson cannot remove him: and that he has a right to appoint a deputy. Lord Mansfield then said, there was an application of this sort in a cause of K. and Proctor, M. 15 G. 3. where the parson removed a parish clerk appointed by the former incumbent. There the right of amotion was in question, and all agreed it must be somewhere, but that case was not decided. (7) Lord Mansfield asked, what remedy is there in Westminster-hall

(7) Parish clerks are regarded by the common law as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived by ecclesiastical censure, 2 Roll. Ab. 234. Parish clerks in the new churches or ecclesiastical districts or parishes, &c. built and erected under 58 G. 3. c. 45., 59 G. 3. c. 134. and 3 G. 4. c 72., are to be annually appointed by the minister thereof, 59 G. 3. c. 134. s. 29. See Churches.