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founder of it. Thus certainly began the increase of parishes, when one too large and diffuse for the resort of all inhabitants to the one church, was by the addition of some one or more new churches cantoned into more limited divisions. (2) This was such an abatement to the revenue of the old churches, that complaint was made of it in the time of Edward the confessor: "Now (say "they) there be three or four churches, where in former times [62]"there was but one; and so the tithes and profits of the priest 66 are much diminished." Ken. Par. Ant. 586, 587.

Bounds of parishes.

Parish bound to

poor, and repair its roads.

And now, the settling the bounds of parishes depends upon ancient and immemorial custom. For they have not been limited by any act of parliament, nor set forth by special commissioners; but have been established, as the circumstances of times and places and persons did happen to make them greater or lesser. 1 Still. 243.

In some places, parishes seem to interfere, when some place in the middle of another parish belongs to one that is distant; but that hath generally happened by an unity of possession, when the lord of a manor was at the charge to erect a new church, and make a distinct parish of his own demesnes, some of which lay in the compass of another parish. 1 Still. 244.

But now care is taken (or ought to be) by annual perambulations to preserve those bounds of parishes, which have been long settled by custom. 1 Still. 244.

[1. (B.) Prima facie the whole parish is bound to support its support its poor jointly; but a ville or township may have separate overseers of its own, under the 13 & 14 C. 2. c. 12.; and the court of K. B. will assist such a subdivision of a parish on the ground of conveniency. Rex v. Inhabitants of Leigh, 3 Term Rep. 746. The parish at large is also bound to repair all high roads lying within it, unless that burden be thrown on others by prescription or tenure; and therefore, if a parish be partly situate in one county, and partly in another, and a highway in one part be out of repair, the indictment must be against the whole parish, and not against the inhabitants of that part only in which the road lies. Rex v. The Inhabitants of Clifton, 5 Term Rep. 498. contra Rex v. Weston, 4 Bur. 2507. If the inhabitants of a township, bound by prescription to repair the roads within the township, be exempted by the provisions of an act of parliament, from repairing any new

(2) Some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and deserts, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial: and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them for the good of the church. 1 Bla. Comm. 113. 283. see 17 G. 2. c. 37. infra.

roads which may be made within it, the charge will fall on the
rest of the parish. Rex v. The Inhabitants of Sheffield, 2 Term
Rep. 106. Where one side of a common highway is situated in
one parish, and the other side in another, two justices may de-
termine what parts shall be repaired by each. 34 G. 3. c. 64.]
2. By a constitution of Archbishop Winchelsey; the parishioners
shall find at their own charge banners for the rogations. Lind.

252.

And upon the account of perambulations being performed in rogation week, the rogation days were anciently called gange-days; from the Saxon gan or gangen, to go.

M. 37 & 38 El. Godday and Michel. Trespass for breaking his close, and for breaking down two gates, and three perches of hedge. The defendant justifies; for that the said close was in the parish of Rudham, and that all the parishioners there for time immemorial had used to go over the said close upon their perambulation in rogation week; and because the plaintiff stopped the two gates and obstructed three perches of hedge in the said way, the defendant being one of the parishioners broke them down. And by the court; It is not to be doubted but that parishioners may well justify the going over any man's land in the perambulation, according to their usage, and abate all nuisances in their way. Cro. Eliz. 441.

In the perambulation of a parish, no refreshment can be claimed by the parishioners, as due of right from any house or lands in virtue of custom. The making good such a right on that foot, hath been twice attempted in the spiritual courts; but in both cases, prohibitions were granted, and the custom declared to be against law and reason. Gibs. 213. 2 Roll's Rep. 259. 2 Lev. 163. 3 Keb. 609. (3)

These perambulations (though of great use in order to preserve the bounds of parishes) were in the times of popery accompanied with great abuses; viz. with feastings and with superstition; being performed in the nature of processions, with banners, hand bells, lights, staying at crosses, and the like. And therefore when processions were forbidden, the useful and innocent part of perambulations was retained, in the injunctions of Queen Elizabeth, wherein it was required, that for the retaining of the perambulation of the circuits of parishes, the people should once in the year, at the time accustomed, with the curate and the substantial men of the parish, walk about the parishes, as they were accustomed, and at their return to the church make their common prayers. And the curate, in their said common perambulations, was at certain convenient places to admonish the people, to give thanks to God (in the beholding of his benefits), and for the in

(3) Welby v. Herbert

Perambulation of the

boundaries of parishes.

[63]

;

crease and abundance of his fruits upon the face of the earth with the saying of the 103d psalm. At which time also the said minister was required to inculcate these or such like sentences, [64] Cursed be he which translateth the bounds and dolles of his neighbour; or such other order of prayers, as should be lawfully appointed. Gibs. 213.

Bounds of parishes,

where to be tried. (4)

But the superstitions here laboured against, were not so easily suppressed; as may be gathered from the endeavours used to suppress them so late as the time of archbishop Grindal: and now, since that hath been long effected, it were to be wished, that perambulations were held more regularly and frequently than they now are; to the end the limits of parishes may be the better kept up and ascertained. Gibs. 213.

3. The bounds of parishes, though coming in question in a spiritual matter, shall be tried in the temporal court. This is a maxim, in which all the books of common law are unanimous ;

(4) The bounds of a parish may be tried in an action at law; but a bill will not lie for an issue or commission to ascertain boundaries between two parishes: except perhaps the parishioners have a common right, as where all the tenants of a manor claim a right of common by custom, in which case the right of all is tried by trying the right of one; or where all parties concerned, or who have a probable interest, are before the court. St. Luke's v. St. Leonard's, 1 Bro. C.C. 40. 2 Anstr. 386–395. Atkyns v. Hatton, 2 Anstr. 386. S.P. in this last case a commission was prayed in exchequer to ascertain the bounds of a parish, upon a presumption that all the lands within it would be titheable to the parson, but denied; and it was said, that St. Luke's v. St. Leonard's was, upon a bill brought by the former parish to avoid confusion in making the rates, a number of houses having been built on waste land, and it being doubtful to which parish the different parts of the waste belonged. On bill to establish a modus, and that a neighbouring rector may interplead as to the tithes to be covered thereby, and that a commission may issue to ascertain the boundaries of each rectory, the court refused the commission; for the rectors have different claims, one claims in kind and the other a modus. Woolaston v. Wright, 3 Anstr. 801. See Johnson v. Atkinson, id. 798. A commission was granted to ascertain and distinguish or to set out boundaries on a bill by a prebendary against the lessees of the prebendal lands, and also against the owners of other lands in the parish with which the prebendal lands had become intermixed and confounded by reason of the unity of possession. Willis v. Parkinson, 2 Meriv. 507.; and the plaintiff is entitled to name as many commissioners as his lessees. S.C. 1 Swanst. Rep. 9. This jurisdiction is deduced from the writs de rationabilibus divisis and de perambulatione facienda. Speer v. Crawter, 2 Meriv. Rep. 416. The granting the commission is not of course as respects the boundaries of legal estates: there must be some equitable circumstances in the case. Wake v. Conyers, 1 Eden. Rep. 331. 2 Cox, 360. S. C. In every bill praying a commission it must be clearly shewn

although our provincial constitutions do mention the bounds of parishes, amongst the matters which merely belong to the ecclesiastical court, and cannot belong to any other. Gibs. 212.

And in the 14 C. when a prohibition was prayed to the spiritual court, for proceeding to determine a case of tithes, the right to which depended on the lands lying in this or that vill; it was denied by the whole court of king's bench, who declared, that the bounds of vills are triable in the ecclesiastical court. Gibs. 213.-But this was between two spiritual persons, the rector and vicar. 2 Roll's Abr. 312.

And in the case of Ives and Wright, H. 15 Car. If the bounds of a village in a parish come in question in the ecclesiastical court, in a suit between the parson impropriate and the vicar of [65] the same parish, as if the vicar claim all the tithes within the village of D. within the parish, and the parson all the tithes in the residue of the parish, and the question between them is, whether certain lands, whereof the vicar claims the tithe, be within the village of D. or not; yet inasmuch as it is between spiritual persons, viz. between the parson and vicar, although the parson be a layman, and the parsonage appropriate a lay-fee, yet it shall be tried in the ecclesiastical court. And in this case the prohibition was denied. 2 Roll's Abr. 312.

And by the 17 G. 2. c. 37. it is enacted, that where there shall be any dispute, in what parish or place, improved wastes and drained and improved marsh lands lie, and ought to be rated; the occupiers of such lands, or houses built thereon, tithes arising therefrom, mines therein, and saleable underwoods, shall be rated to the relief of the poor and to all other parish rates within such parish and place which lies nearest to such lands; and if on that without the assistance of the court the boundaries cannot be found; and a foundation must be laid for this species of relief by shewing not merely that they are confused, but that the confusion has arisen from some misconduct of the defendant, or of those under whom he claims, of which the party has a right to complain, and which renders it incumbent on the defendant to co-operate with him in re-establishing them. Where it arose out of the unity of possession by plaintiff's own tenants, and before the land came into defendant's possession, and nothing was stated in the bill but the mere fact of confusion, the court refused to interfere, Miller v. Warmington, 】 Jac. & Walk. Rep. 484. Commissioners of perambulation must make a return, and if they cannot agree in making it, must report specially. But before such return or report is made, the court will not grant a new commission on allegation of their disagreement. Carbery v. Mansell, Vern. & Scriv. Rep. 112. A.D. 1787.

The parson cannot give evidence on a question relating to the bounds of his parish, for he is interested to enlarge them, and consequently his tithes. Wharton v. Robinson, 7 Mod. or Farresl. Rep. 63. See 2 Ves. 425. Dougl. 142. Cowp. 437.

application to the officers of such parish or place to have the same assessed, any dispute shall arise; the justices of the peace at the next sessions after such application made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all others interested therein, may hear and determine the same on the appeal of any person interested, and may cause the same to be equally assessed; whose determination therein shall be final. But this shall not determine the boundaries of any parish or place, other than for the purpose of rating such lands to the relief of the poor, and other parochial rates. § 1, 2.

And by the 2 & 3 Ed. 6. c. 13. Every person who shall have any beasts or other cattle titheable, depasturing in any waste or common, whereof the parish is not certainly known, shall pay the tithes thereof where the owner of the cattle dwells. § 3.

[Commissioners of inclosure of commons, &c. are to examine witnesses on oath as to the boundaries of parishes, &c., and if they do not appear to them to be sufficiently ascertained, shall ascertain the same to remain the boundaries thereof. Persons dissatisfied with their decision may appeal to the sessions. 41 G. 3. (U.K.) c. 109. § 3.]

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Parish clerk.

His qualification.

How to be

Parish clerk.

1. BONIFACE. We do decree that the offices for holy water be conferred upon poor clerks. Lind. 142.

For the understanding of which constitution, it is to be observed, that parish clerks were heretofore real clerks; of whom every minister had at least one, to assist under him, in the celebration of divine offices; and for his better maintenance the profits of the office of aquabajalus (who was an assistant to the minister in carrying the holy water) were annexed unto the office of the parish clerk by this constitution: so as, in after times, aquabajalus was only another name for the clerk officiating under the chief minister.

2. Can. 91. And the said clerk shall be twenty years of age at the least; known to the parson, vicar, or minister, to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in singing (if it may be).

3. All incumbents once had the right of nomination of the appointed. parish clerks by the common law and custom of the realm. Gibs. 214.

And by the aforesaid constitution of archbishop Boniface ;Because differences do sometimes arise between rectors and vicars

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