any of the

aforesaid Li

good and of Force in Law.

Nature soever it be, for such Causes as the Tax was wont to be cences shall be iv. li. or above, so granted by the Archbishop, and confirmed under the Great Seal, and all other Licences, Dispensations, Faculties, Rescripts, and Writings hereafter to be granted by the Archbishop, by Virtue and Authority of this Act, whereunto the Great Seal is not limited of Necessity to be put to, by reason that the Tax of them is under iv. li. shall be accepted, approved, allowed, and admitted good and effectual in the Law, in all Places, Courts and Jurisdictions, as well Spiritual as Temporal, within this Realm, and elsewhere within your Dominions, and as beneficial to the Persons obtaining the same, as they should have been if they had been obtained, with all Things requisite, of the See of Rome, or of any other Person by Authority thereof, without any Revocation or Repeal hereafter to be had of any such Licences, Dispensations, Faculties, Rescripts or Writings, of what Nature soever they be.

Licences to
marry, and

Children born
after the same
Marriages.
25 H. VIII.

c. 22, S. 4.
Hob. 248.

"Section 8. And that all Children procreated after Solemnization of any Marriages to be had or done by Virtue of such. Licences or Dispensations, shall be admitted, reputed and taken legitimate in all Courts, as well Spiritual as Temporal, and in all other Places, and inherit the Inheritance of their Parents and Ancestors within this your Realm, and all other your Dominions according to the Laws and Customs of the same; and all Acts to be done, had or executed according to the Tenor of such Licences, Dispensations, Faculties, Writings, or other Instruments, to be made or granted, by Authority of this Act, shall be firm, permanent, and remain in Force; any foreign Laws, Constitutions, Decrees, Canons, Decretals, Inhibitions, Use, Custom, Prescription, or any other Thing had, or hereafter to be made to the contrary notwithstanding."

CHAPTER IV.

ORDINARY LEGAL PROCEEDINGS.

SECTION I.-Difference between Civil and Criminal Suits. HE ordinary proceedings which may be instituted before the ordinary Ecclesiastical tribunals will be in either a civil or criminal form. It is often of considerable importance to determine which mode of procedure should be adopted; and though this is easy enough in most cases, it is not always so. Most matters are manifestly either civil or criminal, e.g. a suit to establish a right to a pew plainly belongs to the former category, while proceedings on account of immoral conduct, or the enunciation of false doctrines, belong to the latter. But sometimes a doubtful case arises.

Often difficult to distinguish civil from

criminal mat

ters.

ham.

In Bluck v. Rackham (e) the Privy Council determined that Bluck v. Rack"a proceeding in the Consistorial Court to recover penalties for non-residence under statute 1 & 2 Vict. c. 106, ss. 32, 114, is not a criminal suit within statute 3 & 4 Vict. c. 86, s. 23, but a civil suit, and, therefore, is not to be instituted in the mode pointed out by section 3 of the latter Act."

Dr. Lushington, in delivering the judgment of the Judicial Committee, said, after citing the enactment of statute 1 & 2 Vict. c. 106, s. 114 (down to "no other person whatever"):

(e) 5 Moo. P. C. C. 305, 313.

Parbam v. Tem

plar.

6

"Now do these words import a proceeding in the criminal form or in the civil? The words suing and recovering' are wholly inapplicable to the well-known criminal form. Had it been intended to require the criminal form, surely the expressions would have been wholly different; power would have been given to promote the office of the judge, and power to the judge to affix the penalty. Not only does not this section contain any words importing that the criminal form should be adopted, but the whole practice of the Ecclesiastical Courts has been to the contrary. There is no instance, that their lordships have been apprised of, in which penalties have been sued for in the criminal form, or any pecuniary forfeiture decreed. On the other hand, though from the limited jurisdiction of these courts there cannot be many classes of cases, yet we find the proceedings to recover tithes under the statute 2 & 3 of Ed. VI., where double the value in addition is given by way of penalty, to be recovered before the Ecclesiastical judge, have always been in the civil form."

Parham v. Templar (ƒ) may be cited in connection with the present question. It was a suit instituted in a criminal form in the Court of the Dean and Chapter of Exeter for perturbation of a pew. No objection was raised in this court to the form of the suit. From the decree made the promovent appealed to the Court of Arches, and the judge thereof, Sir John Nicholl, decided that, upon the merits, he had failed to establish his claim. Sir John Nicholl, however, doubted whether the proper proceedings had been taken. He said: "The suit is brought and conducted in rather an extraordinary form, viz., as a criminal suit by articles, not as a civil suit for perturbation of seat. The citation is taken out against the Rev. John Templar, the curate of Ashburton, to answer to articles to be administered to him by virtue of the office of the judge, touching and concerning his soul's health, and the lawful correction and reformation

(f) 3 Phill. 223, 515.

of his manners and his excesses, for having altered or caused to be altered a certain seat or pew in the nave or body of the church at Ashburton, belonging to Benjamin Parham, gentleman, &c., whereby he has taken away and reduced the length thereof two feet two inches, or thereabout, without the license or faculty of the ordinary, or any other lawful authority whatever in that behalf, and also to show cause why he should not be compelled and admonished to restore the said seat or pew in all respects to its former condition.

"The articles are for having, without authority, altered the pew, to the great injury and prejudice of Parham, but not in violation of the general law.

"The first article sets forth that Parham and his family had sat in the pew from time immemorial.

"The second, that in December, 1817, he had made the alteration in question.

"The third, that when the churchwardens were informed of the alteration, they expressed their disapprobation at it.

"The prayer is that the pew should be restored to its original state, and costs given against Mr. Templar.

"Looking at these articles, both as to the heading and averments, the objects seem rather to be that of a civil suit to obtain redress and restitution of the seat, and it ought undoubtedly to have been proceeded in by a suit for perturbation of seat; but being brought as a criminal suit, it becomes subject to all the rules of a criminal suit. Here, however, answers have been called for to which the promovent is not entitled in a criminal suit.

"The judge of the court below seems to have considered it in a mixed light, both as a criminal and a civil suit."

In the Duke of Portland v. Bingham, (g) a license to preach in a chapel was not allowed to be impeached by proceedings on

(g) 1 Hagg. Cons. 157. Compare Molyneux v. Bagshaw, 9 Jur. (N. S.)

553

Duke of Portland v. Bingham.

Liddell v. Rains

ford.

Fagg v. Lee.

Plaintiff must have an interest.

the part of the impropriator in a civil suit, he not showing an interest that would entitle him to maintain such a suit.

Liddell v. Rainsford (h) is another case illustrative of the distinction now in statement. Here the Court declined to order a decree or a citation in a criminal suit to issue against a clergyman officiating in a chapel to which no district was assigned, for refusing to pay over to the incumbent and churchwardens of the church of the district in which such chapel was situated, the alms collected at the offertory in such chapel, there being no satisfactory evidence before the Court that the district had become a separate parish. It ordered a citation to issue in a civil suit, calling upon the clergyman to show cause why he should not pay over to the incumbent and churchwardens of the district church the monies he had received at the offertory in his chapel. In Fagg v. Lee (i) the Dean of Arches decided that a monition, calling upon the churchwardens of a parish to remove certain alleged unlawful ornaments in the parish church, or to appear and show cause against such removal, must disclose on its face such an interest in the person at whose instance it issued, as would have entitled him to institute and carry on a civil suit commenced in the ordinary way by citation, and must, therefore, contain an allegation that the party taking proceedings has the status of a parishioner of the parish.

SECTION II.-Civil Suits.

I. Who may be Plaintiff.

SHE difference between civil and criminal proceedings is
marked from the very commencement.
"The criminal

suit is open to every one, the civil suit to every one showing

(h) 37 L. J. Eccl. 83; 38 L. J. Eccl. 15.

(i) L. R. 4 Adm. & Eccl. 135; affirmed 30 L. T. (N. S.) 801; Hopper v. Davis, 1 Lee, 640; Reg. v. Bishop of Chichester, 2 E. & E. 209, 29 L. J. (Q. B.) 23.