of his contempt, and taking the usual oath to submit to the lawful commands of the ordinary (b).

But now by 3 & 4 Vict. c. 93, s. 1, it is provided, that the Judicial Committee of the Privy Council, or a Judge of any Ecclesiastical Court, may make an order upon the gaoler, sheriff, or other officer in whose custody any person is, or may be hereafter, under a writ de contumace capiendo, already issued, or hereafter to be issued, in consequence of any proceedings before the said Judicial Committee or the judge of the said Ecclesiastical Court, for discharging such party out of custody, and that such gaoler, &c. shall, on receipt of such order, forthwith discharge such party: provided that no such order shall be made without the consent of the other party, or parties to the suit: provided always, that in cases of subtraction of church-rates for an amount not exceeding 51. where the party in contempt has suffered imprisonment for six months and upwards, the consent of the other parties to the suit shall not be necessary to enable the judge to discharge such party, so soon as the costs lawfully incurred (c) by reason of the custody and contempt of such party shall have been discharged, and the sum for which he may have been cited into the Ecclesiastical Court shall have been paid into the registry of the said court, there to abide the result of the suit; and that the party so discharged shall be released from all further observance of justice in the said suit.

(b) Baker and others v. Thorogood, 2 Curt. 632.

(c) These costs do not include costs incurred in the tem

poral courts, but refer only to costs in the spiritual court. Baker and others v. Thorogood, 2 Curt. 632.

Until a recent statute, (2 & 3 Will 4, c. 93), this writ could only be executed within the jurisdiction of the Ecclesiastical Court, whose decree had been disobeyed; but by section 1 of that statute, it may, if the party in contempt shall be domiciled either in England or Ireland, and beyond the jurisdiction of such court, upon significavit of contumaey to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England, if the party in contempt shall be domiciled or residing in England, or to the lord chancellor, lord keeper, or lords commissioners of the great seal of Ireland, if he shall be domiciled or residing in Ireland, be issued out of the high court of Chancery in England or in Ireland, as the case may happen, and duly executed in any part of England or Ireland accordingly.

This writ de contumace capiendo was, until the passing of the last-mentioned statute, the sole means by which the Ecclesiastical Courts were empowered to enforce obedience to their decrees, and, being a process against the person, was, and still is, inoperative against persons having privilege of peerage, lords of parliament, and members of the House of Commons. In no instances whatever, under any circumstances, could the property of an individual be attached by the authority of the Ecclesiastical Courts, or by the assistance of any other tribunal (d).

But this defect of jurisdiction also has been remedied by the above-mentioned statute, by which a power is given of enforcing decrees and orders of the Ecclesiastical Courts for payment of

(d) See Ecc. Law Rep. 67.

money, against all persons, and all decrees and orders of such courts, whether for payment of money or otherwise, against peers, persons having privilege of peerage, and members of parliament, by means of a sequestration against the real and personal estate, goods, chattels, and effects of the party in contempt, to be issued out of the High Court of Chancery, in England or in Ireland, as the case may be, and executed within the jurisdiction of such court, in the same manner and form, and with the like power and effect, as if such sequestration has issued in a cause originally cognizable by and instituted in such Court of Chancery (e).

It only remains to be observed, that the remedy against the persons of Quakers in suits for subtraction of any great or small tithes, modus or composition for tithes, rate, or other ecclesiastical demand, has been taken away by legislative enactment (ƒ).

SECTION III.

On the Extent of the Liability of the Parishioners with respect to the Repairs of Churches; on the making of necessary Church-rates, against the consent of the Vestry; and on the Methods of enforcing the making of Church-rates.

If the vestry grant a rate, not manifestly inadequate and collusive, the churchwardens should

(e) See sects. 2, 3.

(f) See 5 & 6 Will. 4, c. 74, explained and amended by 4 & 5 Vict. c. 36. But quære whe

ther these acts relate to churchrates. See ante, p. 161, note (h).

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Parish bound to repair Church.

accept it, and apply it as far as it goes, and when exhausted, another vestry should be convened for a further rate, for the spiritual court has no power to decide on the quantum of the rate; that is a matter peculiarly for the consideration of the vestry (g).

With a view of ascertaining the duty of the churchwardens in the event of the vestry altogether refusing a rate, it will be desirable, in the first place, to consider a little more fully than has been yet done the nature and extent of the legal obligation imposed upon a parish with reference to the repair of the parish church.

The obligation by which the parishioners, that is, the actual residents within, or occupiers of lands and tenements in every parish, are bound to repair the body of the parish church whenever necessary, and to provide all things essential to the performance of divine service therein, is an obligation imposed on them by the common law of the land (h).

Such, then, being the law of the land, it follows, as a necessary consequence, that the repair of the

(g) Greenwood and Spedding v. Greaves and others, 4 Hagg. 77, and see ante, c. 2.

(h) This obligation of the parishioners to repair the body of the church attaches in all cases where there is no special custom or legislative enactment controlling it. In Varty and Mopsey v. Nunn, 2 Curt. 877, 1 N. E. C. 191, S. C., confirmed on appeal, (see Nunn v. Varty and Mopsey, 3 Curt. 352; 2 N. E. C. 108,) it was argued that

the custom existed only in relief of the incumbent, who would otherwise have been bound to repair, as the freeholder, and that it did not apply to cases where the freehold was vested in third parties, as trustees, &c., but it was held that the obligation was general by the common law of the land, and that the fact of the freehold being out of the incumbent did not discharge the parishioners from this liability.

Parish bound to repair Church.

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fabric of the church is a duty which the parishioners are compellable to perform, not a mere voluntary act, which they may perform or decline at their own discretion; that the law is imperative upon them, absolutely that they do repair the church, not binding on them in a qualified, limited manner only, that they may repair or not, as they may think fit, and that where it so happens that the fabric of the church stands in need of repair, the only question upon which the parishioners, when convened together to make a rate, can by law deliberate and determine, is not whether they will repair the church or not, (for upon that point they are concluded by the law), but how and in what manner the common law obligation so binding them may be best and most effectually, and at the same time most conveniently and fairly between them, performed and carried into effect. The parishioners have no more power to throw off the burthen of the repair of the church, than that of the repair of bridges and highways, the compelling of the performance of the latter obligation belonging exclusively to the temporal courts, whilst that of the former has been exercised usually, though, perhaps, not necessarily exclusively, by the spiritual courts from time immemorial (i).

It seems, therefore, to be quite clear that the parishioners are bound to repair the church, and

(i) Per Tindal, C. J., in delivering the judgment of the Sac. Cam. in Veley and another v. Burder in error, 12 A. & E. 265; 4 P. & D. 475, S.

C. See also this judgment, published from Mr. Gurney's shorthand notes, by Rivington, St. Paul's Church Yard, and Waterloo Place, Pall Mall.