Parish bound to fupport its

its roads.

churches, where in former times there was but one; "and fo the tithes and profits of the priests are much di"minifhed." Ken. Par. Ant. 586, 587.

And now, the fettling the bounds of parishes depends upon ancient and immemorial cuftom. For they have not been limited by any act of parliament, nor fet forth by fpecial commiffioners; but have been established, as the circumftances of times and places and perfons did happen, to make them greater or leffer. 1 Still. 243.

In fome places, parishes feem to interfere, when some place in the middle of another parifh belongs to one that is diftant; but that hath generally happened by an unity of poffeffion, when the lord of a manor was at the charge to erect a new church, and make a distinct parish of his own demefnes, fome of which lay in the compafs of another parish. 1 Still. 244.

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

[1. (B.) Prima facie the whole parish is bound to fuppoor, and repair port 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 affift fuch a fubdivifion of a parish on the ground of conveniency. Rex v. Inhabitants of Leigh, 3 T. Rep. 746. The parish at large is alfo bound to repair all high roads lying within it, unless that burden be thrown on others by prefcription or tenure; and therefore, if a parish be partly fituate 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 T. Rep. 498, contra Rex v. Wefton, 4 Bur. 2507. If the inhabitants of a township, bound by prefcription to repair the roads within the township, be exempted by the provisions of an act of parliament, from repairing any new roads which may be made within it, the charge will fall on the reft of the parish. Rex v. the Inhabitants of Sheffield, 2 T. Rep. 106. Where one fide of a common highway is fituated in one parish, and the other fide in another, two juftices may determine what parts fhall be repaired by cach. 34 G. 3. c. 64.]

Perambulation

2. By a conftitution of archbishop Winchelfey; the paof the boundarishioners fhall find at their own charge banners for the rosies of parishes. gations. Lind. 252.

And

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. Goodday and Michell. Trefpafs for breaking his clofe, and for breaking down two gates, and three perches of hedge. The defendant juftifies; for that the faid clofe was in the parifh of Rudham, and that all the parishioners there for time immemorial had used to go over the faid close upon their perambulation in rogation week; and because the plaintiff ftopped the two gates and obftructed three perches of hedge in the faid 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 juftify the going over any man's land in the perambulation, according to their ufage, and abate all nufances 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 houfe or lands in virtae of cuftom. The making good fuch a right on that foot, hath been twice attempted in the fpiritual courts; but in both cafes, prohibitions were granted, and the custom declared to be against law and reafon. Gibf. 213. 2 Roll's Rep. 259. 2 Lev. 163. 3 Keb. 609.

Thefe perambulations (tho' of great ufe in order to preferve the bounds of parishes) were in the times of po pery accompanied with great abufes; viz. with feaftings and with fuperftition; being performed in the nature of proceffions, with banners, hand bells, lights, ftaying at croffes, and the like. And therefore when proceffions 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 fhould once in the year, at the time accustomed, with the curate and the fubftantial 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 faid 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 increase and abundance of his fruits upon the face of the earth; with the faying of the 103d pfalm. At which time alfo the faid minifter was required, to inculcate these or fuch like fentences, Curfed be be which tranflateth

Bounds of parifhes, where to be tried.

tranflateth the bounds and dolles of his neighbour; or fuch other order of prayers, as should be lawfully appointed. Gibl. 213.

But the fuperftitions here laboured against, were not so easily fuppreffed; as may be gathered from the endea vours used to fupprefs them fo late as the time of archbishop Grindal: And now, fince that hath been long effected, it were to be wifhed, that perambulations were held more regularly and frequently than now they are; to the end the limits of parifhes may be the better kept up and afcertained. Gibf. 213.

3. The bounds of parishes, though coming in queftion in a fpiritual matter, fhall be tried in the temporal court. This is a maxim, in which all the books of common law are unanimous; altho' our provincial conftitutions do mention the bounds of parishes, amongst the matters which merely belong to the ecclefiaftical court, and cannot belong to any other. Gibf. 212. (m)

And in the 14 C. when a prohibition was prayed to the fpiritual court, for proceeding to determine a cafe 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 ecclefiaftical court. Gibf. 213.- But this was between two fpiritual perfons, the rector and vicar. 2 Roll's Abr. 312.

And in the cafe of Ives and Wright, H. 15 Car. If the bounds of a village in a parish come in queftion in the

(m) The bounds of a parish may be tried in an action at law; but a bill will not lie for an iffue or commiffion to afcertain 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 cuftom, in which case the right of all is tried by trying the right of one; or where all parties concerned are before the court. 1 Bro. 40. The parish of St. Luke Old freet v. the parish of St. Leonard Shoreditch. Anstr. 395. Atkyns v. Hatton; where a commiffion was prayed, in the court of exchequer, to ascertain the bounds of a parish upon a prefumption that all the lands within it would be titheable to the parfon, but denied; and where it is faid, that the first mentioned decifion was, upon a bill brought by the parish of St. Luke, to avoid confufion in making the rates, a number of houses having been built on wafte land, and it being doubtful to which parifh the different parts of the wafte belonged.

eccle

ecclefiaftical court, in a fuit between the parfon impropriate and the vicar of the fame parish, as if the vicar claim all the tithes within the village of D within the parish, and the parfon all the tithes in the refidue of the parish, and the queftion between them is, whether certain lands, whereof the vicar claims the tithe, be within. the village of D or not; yet in afmuch as it is between fpiritual perfons, viz. between the parfon and vicar, altho' the parfon be a layman, and the parfonage appropriate a lay-fee, yet it fhall be tried in the ecclefiaftical court. And in this cafe the prohibition was denied. 2 Roll's Abr. 312.

And by the 17 G. 2. c. 37. it is enacted, that where there fhall be any difpute, in what parish or place, improved waftes and drained and improved marsh lands lie, and ought to be rated; the occupiers of fuch lands, or houfes built thereon, tithes arifing therefrom, mines therein, and faleable underwoods, fhall be rated to the relief of the poor and to all other parish rates within such parish and place which lies nearest to fuch lands: and if on application to the officers of fuch parish or place to have the fame affeffed, any difpute fhall arife; the justices of the peace at the next feffions after fuch application made, and after notice given to the officers of the feveral parishes and places adjoining to fuch lands, and to all others interested therein, may hear and determine the fame on the appeal of any perfon interefted, and may caufe the fame to be equally affeffed; whofe determination therein fhall be final. But this fhall not determine the boundaries of any parish or place, other than for the purpose of rating fuch lands to the relief of the poor, and other parochial rates. . I, 2.

And by the 2 & 3 Ed. 6. c. 13. Every perfon who fhall have any beafts or other cattle tithable, depafturing in any waste or common, whereof the parish is not certainly known, fhall pay the tithes thereof where the owner of the cattle dwells. . 3.

VOL. III.

F

Parith

Parish clerk.

His qualifica

tion.

How to be appointed.

I.

ΒΩΝ

Parish Clerk.

ONIFACE. We do decree, that the offices for boly water be conferred upon poor clerks. Lind. 142. For the understanding of which conftitution, it is to be obferved, that parish clerks were heretofore real clerks ; of whom every minifter had at least one, to affift under him, in the celebration of divine offices; and for his better maintenance, the profits of the office of aquabajalus (who was an affiftant to the minifter in carrying the holy water) were annexed unto the office of the parish clerk by this conftitution: fo as, in after times, aquæbajalus was only another name for the clerk officiating under the chief minister.

2. Can. 91. And the faid clerk fhall be twenty years of age at the leaft; known to the parfon, vicar, or minifter, to be of honeft conversation, and fufficient for his reading, writing, and alfo for his competent skill in finging (if it may be).

3. All incumbents once had the right of nomination of the parish clerks, by the common law and cuftom of the realm. Gibf. 214.

And by the aforefaid conftitution of archbishop Boniface; Because differences do fometimes arife between. rectors and vicars and their parishioners, about the conferring of fuch offices, we do decree, that the fame rectors and vicars, whom it more particularly concerneth to know who are fit for fuch offices, fhall endeavour to place fuch clerks in the aforefaid offices, who according to their judgment are skilled and able to ferve them agreeably in the divine administration, and who will be obedient to their commands.

And by Can. 91. No parish clerk upon any vacation fhall be chofen within the city of London or elsewhere, but by the parfon or vicar; or where there is no parfon or vicar, by the minifter of that place for the time being: which choice fhall be fignified by the faid minifter vicar or parfon, to the parishioners the next funday following in the time of divine Service.

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

Thus,