shall judge necessary; and if any person refuses to pay them, the commissioners may levy the same by distress on his goods and chattels; or they may by statute sell his freeholds and copyholds also, in order to pay such scots or assessments.

This court, will soon, however, be classed with the many other tribunals known to law, which have become obsolete. The duties of these commissioners, when appointed, are obviously so much more of an administrative than of a judicial nature, that in modern times powers similar to those possessed by the courts of sewers have been freely conferred on vestries, borough councils, and other local representative bodies, charged with the improvement and police of towns and other populous places. And the functions of the commissioners of sewers are thus so effectually superseded, that these courts are not likely to be ever again called into active operation.

These are all our private, or special courts; concerning which it is to be observed: that these jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges most explicitly warrants.

CHAPTER IV.

OF THE COGNIZANCE OF PRIVATE WRONGS.

WE are now to consider in which of the courts, mentioned in the preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress. And the order, in which I shall pursue this inquiry, will be by showing-1. What actions may be brought, or what injuries remedied in the ecclesiastical courts. 2. What in the Probate, Divorce, and Admiralty division of the High Court of Justice. And, 3. What in the several divisions of the High Court of -Justice itself. I adopt this course, because each of the divisions of the High Court retains the special jurisdiction of the court whose designation it bears; and I shall point out as I proceed what other remedies are, in particular cases, open to the parties

injured, and especially when it may be more desirable to resort to the Chancery division, whose jurisdiction will form the subject of a separate chapter.

With regard then to the ecclesiastical courts, I shall not consider what has at any time been claimed to belong thereto; but what the common law permits to be so. For these tribunals subsist, not by any right of their own, but upon the sufferance of the municipal laws, and must have recourse to those laws to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be drawn in question before them.

Having premised this general caution, I proceed to consider,

I. The injuries cognizable by the Ecclesiastical courts—such, I mean, as are offered to private persons, or individuals; which are here cognizable, not for reformation of the offender, pro salute animæ, as is the case with immoralities in general, but for the sake of the party injured, to make him a satisfaction for the damage which he has sustained. These wrongs were formerly treated of under three heads-causes pecuniary, causes matrimonial, and causes testamentary; but the jurisdiction of the latter branches having been transferred to other tribunals, the Courts Christian now take cognizance only of

Pecuniary causes, which arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff; towards obtaining a satisfaction for which he may institute a suit in the spiritual court. The principal of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator, where the right does not come into question, but only the fact, whether or no the tithes allowed to be due are really subtracted. But it now seldom happens that tithes are sued for in this way; for various statutes have provided a summary method of proceeding before magistrates in petty sessions, except where the actual title to the tithe or the actual liability or exemption of the land is in question. And tithes themselves will ere long be a thing of the past, those not previously commuted by agreement being

now convertible into rent-charges, recoverable by distress, in the same manner as rent reserved on a lease.

Another pecuniary injury, cognizable in the spiritual court, is the non-payment of ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual payment. For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein; but not if the right of the fees is at all disputable; for then it must be decided by the common law.

Under this head of pecuniary injuries may also be classed spoliation and dilapidation.

Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right, but under a pretended title, which is remedied by a decree to account for the profits so taken. For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down, or permissive, by suffering the chancel, parsonage, or other buildings to decay, an action also lies, either in the spiritual court, or in the ordinary courts of law: and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. But under a modern statute, diocesan surveyors are appointed who have authority to inspect ecclesiastical buildings, and to report what repairs are necessary, and these repairs the incumbent must execute; otherwise the benefice may be sequestered, and the repairs made by the bishop. In case of a vacancy, the cost of the repairs is a debt due from the late incumbent, recoverable either at law or in equity, so that the spiritual court is not likely to be much resorted to.

This court formerly took cognizance of the neglect of reparations of the church, churchyard, and the like, and a suit might have been brought therein for non-payment of a rate made by the churchwardens for that purpose. But after years of controversy, suits for church rates were prohibited, and such rates therefore practically abolished.

The method of proceeding in these courts is according to the

civil and canon laws. The ordinary course is—first, by citation, to call the party injuring before them. Then by libel, or formal allegation, to set forth the ground of complaint. To this succeeds the defendant's answer upon oath; when, if he denies or extenuates the charge, they proceed to proofs either in open court, or by having witnesses examined, and their depositions taken down by an officer of the court. If the defendant has any circumstances to offer in defence, he may make a defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proof. When the pleadings and proofs are concluded, they are referred to the consideration of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definite sentence at his own discretion: from which there generally lies an appeal, in the several stages already mentioned.

But the point in which these jurisdictions are defective, is that of enforcing their sentences; for which they have no other process but excommunication; the less and the greater. The less excludes the party from the participation of the sacraments: the greater excludes him not only from these, but also from the company of all Christians. Heavy as this penalty is, considered in a serious light, there are many obstinate or profligate men who would despise ecclesiastical censures, for non-payment of fees, costs, or other trivial causes. The common law, therefore, steps in to the aid of the ecclesiastical jurisdiction, by giving the writ de contumace capiendo, upon which the person who is contumacious may be imprisoned, until released by a writ of deliverance, or discharged from custody in due course of law.

II. The matters of which the Probate, Divorce, and Admiralty division of the High Court of Justice takes cognizance, are either testamentary, matrimonial, or maritime causes.

Testamentary suits were until recently appropriated to the Court of Probate; whose jurisdiction in this respect previously belonged to the ecclesiastical courts. These causes were originally cognizable in the county court; but afterwards transferred to the jurisdiction of the church, by the favour of the crown, as a natural consequence of granting to the bishops the administration of intestates' effects.

This spiritual jurisdiction was for nearly eight centuries a peculiar constitution of this island; and was principally exercised in the consistory courts of every diocesan bishop, and in the prerogative court of the metropolitan; and was, and still is divisible into two branches; the probate of wills, and the granting of administrations. These, when no opposition is made, are granted merely ex officio et debitio justitiæ, and are then the object of what is called the voluntary, and not the contentious jurisdiction. But when a caveat is entered against proving the will or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who has a right to administer; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by a decree, either establishing the will or granting the administration.

Matrimonial causes, or injuries respecting the rights of marriage, formerly constituted also a branch of the ecclesiastical jurisdiction. They are now cognizable in the Probate, Divorce, and Admiralty division of the High Court, and of these the first and principal is,

1. The suit for a divorce, on the ground of adultery, which is brought either by the husband against the wife and her paramour; or by the wife against the husband; being maintainable by the husband in respect of the simple adultery of the wife; but not by the wife against the husband, unless his adultery has been coupled with desertion, without reasonable excuse, for two years, or with such cruelty as would entitle the wife to a judicial separation, or he has been guilty of bigamy, incestuous adultery, rape, or an unnatural offence.

2. The suit for a judicial separation, which lies, when it becomes improper that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual disease, and the like. This unfitness for the marriage state is looked upon as an injury to the suffering party; and for this the law administers the remedy of a judicial separation.

3. The next species of matrimonial cause is a consequence drawn from one of the two former, which is the suit for alimony, or maintenance: which suit the wife may have against her