CHAPTER VII.

MINOR OFFICERS.

SECT. 1.-Parish Clerks.

2.-Sextons.

3.-Organists.

4.-Lay Readers.

SECT. 1.-Parish Clerks (a).

Clerk in holy PARISH clerks in holy orders, under the act 7 & 8 Vict. c. 59, have been already considered (b).

orders.

Constitution of Boniface.

How to be appointed.

Canon 91.

A constitution of Archbishop Boniface provides as follows, "We do decree that the offices for holy water be conferred upon poor clerks" (c).

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 that, in after times, aquabajalus was only another name for the clerk officiating under the chief minister.

All incumbents once had the right of nomination of the parish clerks, by the common law and custom of the realm (d).

And by the aforesaid constitution of Archbishop Boniface, "Because differences do sometimes arise between rectors and vicars and their parishioners, about the conferring of such offices, we do decree, that the same rectors and vicars, whom it more particularly concerneth to know who are fit for such offices, shall endeavour to place such clerks in the aforesaid offices, who, according to their judgment, are skilled and able to serve them agreeably in the divine administration, and who will be obedient to their commands" (e).

By Can. 91 of 1603, "No parish clerk upon any vacation shall be chosen within the city of London or elsewhere within

(a) Called originally "æditui," Ayl. Par. p. 409.

(b) Vide supra, pp. 448, 449.

(c) Lind. p. 142.

d) Gibs. p. 214. (e) Lind. p. 143.

the province of Canterbury, but by the parson or vicar; or where there is no parson or vicar, by the minister of that place for the time being: which choice shall be signified by the said minister, vicar, or parson, to the parishioners the next Sunday following, in the time of divine service. And the said clerk shall be of twenty years of age at the least, and known to the said 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. And the said clerks so chosen shall have and receive their ancient wages without fraud or diminution, either at the hands of the church-wardens at such time as hath been accustomed, or by their own collection, according to the most ancient custom of every parish.

Since the making of which canon, the right of putting in Customary the parish clerk has often been contested between incumbents rights of and parishioners, and prohibitions prayed, and always obtained, appointment. to the spiritual court for maintaining the authority of the canon in favour of the incumbent against the plea of custom in behalf of the parishioners (f).

Thus, in Cundit v. Plomer (g), in 8 Jac. 1, the parishioners of the parish of St. Alphage, in Canterbury, prescribed to have the election of their parish clerk, and by the canon the election of the clerk is given to the vicar. It was adjudged in that case, that the prescription should be preferred before the canon, and a prohibition was awarded accordingly.

In Jermyn's Case (h), in 21 Jac. 1, Jermyn, rector of the parish of St. Katherine's in Coleman Street, and Hammond, as clerk there, sued in the spiritual court to have the said clerk established there, being placed there by the parson according to the late canon, where the parishioners disturbed him, upon a pretence of a custom to place the clerk there by the election of their vestry. And upon this surmise of a custom, the churchwardens and parishioners prayed a prohibition; and after divers motions a prohibition was granted; for they held that it was a good custom, and that the canon cannot take it away.

Before the union of parishes in London, effected by 22 Car. 2, In united c. 11, there was a custom in the parish of St. Mildred Poultry parishes. for the parishioners to join with the rector in the election of a parish clerk. By that act the parish of St. Mary Colechurch was united to that of St. Mildred Poultry, the church of the latter parish still remaining; and it was holden that the right of election after the union continued in the inhabitants jointly with the rector; and that an appointment by the rector alone, without the concurrence of the majority of such parishioners, was void. It was not decided whether the election should be made by the rector and the inhabitants of both parishes in

&

Gibs. p. 214. 2 Hughes Abr. Prohibition, p. 1551; Case of Parish Clerks, 13

Co. p. 70.

(h) Cro. Jac. p. 670.

Where incumbent is suspended curate appoints.

Aliter, when only sequestrated.

Mode of appointment.

How to be admitted.

joint vestry assembled, or by the rector with the inhabitants of St. Mildred Poultry alone, and whether the presence of the rector at the time of the election was necessary for the validity of the appointment (k).

Where a vicar was suspended, for misconduct, by the bishop of the diocese, from performing the duties and receiving the profits of the vicarage, for the space of two years, and, further, until he should exhibit a certificate of good behaviour, and during the suspension the parish clerk died, and the curate appointed plaintiff to be parish clerk during the suspension, and the vicar, on the other hand, appointed defendant as parish clerk, who received fees in that character; plaintiff having, during the continuance of the suspension, sued the defendant, in respect of these fees, for money had and received: It was ruled (1) that the curate had the right of appointing the parish clerk; (2) that the appointment of the plaintiff was good; but (3) that a general appointment by the curate would be more advisable than one limited to the time of the suspension (?).

But when the living is sequestrated only, the incumbent does not lose his right of appointing the parish clerk (m).

A pauper was appointed a parish clerk in the following manner: The rector sent for a pauper on a Sunday, and requested him to perform duty on that day, and on coming out of the desk, the rector said to the pauper, "I shall appoint you my regular clerk and sexton, and to follow me in funerals and marriages." It was holden that this was a proper appointment of the pauper as parish clerk, and that the canon did not render it necessary to the validity of an appointment of a parish clerk that the appointment should be signified to the parishioners (n).

Parish clerks, after having been duly chosen and appointed, are usually licensed by the ordinary (o); but this does not seem to be absolutely necessary (p).

And when they are licensed, they are sworn to obey the minister (q).

And if a parish clerk has been used time out of mind to be chosen by the vestry, and after admitted, and sworn before the archdeacon, and he refuse to swear such parish clerk so elected, but admits another chosen by the parson, a writ may be awarded to him commanding him to swear him (→).

(k) Hartley v. Cook, 9 Bing. p. 728; 3 Moo. & S. p. 230; 5 C. & P. p. 441.

(1) Pinder v. Barr, 4 E. & B. p. 105.

(m) Lawrence v. Edwards, 1891, 1 Ch. p. 144.

(n) Rex v. Inhabitants of Bobbing, 1 Nev. & P. p. 166. See Rex v. Rector of St. Ann's, Soho, 3 Burr.

p. 1877, decided on the construction of a local act.

(0) Johns. p. 228.

(P) Peak v. Bourne, 2 Stra. p. 941, infra, p. 1511.

Johns. p. 228.

Walpoole's Case, 2 Roll. Abr. p. 234; 15 Vin. Abr. Mandamus (H. 3), p. 205; 5 Bac. Ab. Mandamus (C.), p. 263.

In Rex v. Henchman (s), official of the consistory court of the Bishop of London, a mandamus was granted to admit one Robert Trott to the office of parish clerk of Clerkenwell, he being elected by the parish, and it being shown that the official had usually admitted to that office.

By the aforesaid constitution of Archbishop Boniface, "If the His salary. parishioners shall maliciously withhold the accustomed alms from the aquabajalus, they shall be earnestly admonished to render the same; and if need be, shall be compelled by ecclesiastical censure" (t).

Alms.]-By which word we may understand that such clerks cannot claim anything by way of a certain allowance or endowment by reason of their office of aquæbajalus: but their sustentation ought to be collected and levied according to the manner and custom of the country (t).

Accustomed Alms.]-For this custom ought to be considered according to the manner anciently observed; which also, inasmuch as it concerns the increase of divine worship, ought not to be changed at pleasure: but hereunto the parishioners may be compelled by the bishop (u).

And a custom of this kind is good and laudable, that every master of a family (for instance) on every Lord's day, give to the clerk bearing the holy water somewhat according to the exigency of his condition; and that on Christmas day he have of every house one loaf of bread, and a certain number of eggs at Easter, and in the autumn certain sheaves. Also that may be called a laudable custom, where such clerk every quarter of the year receives something in certain in money for his sustenance, which ought to be collected and levied in the whole parish. For such laudable custom is to be observed, and to this the parishioners ought to be compelled; for having paid the same for so long a time, it shall be presumed that at first they voluntarily bound themselves thereunto (r).

Admonished.]-Not only by the ministers, but also and more especially by the ordinary of the place (y).

By Can. 91, already quoted (), the clerks are to receive Canon 91. "their ancient wages, without fraud or diminution, either at the hands of the churchwardens, at such times as hath been accustomed, or by their own collection, according to the most ancient custom of every parish."

Ancient Wages.]-In case such customary allowance is denied, Where to be the foregoing constitution, and the practice thereupon, direct sued for. where it is to be sued for, viz. before the ordinary in his ecclesiastical court. That constitution (as we see) calls those wages accustomed alms: and in the register there is a consultation provided in a case of the same nature, for what the writ

(8) 5 Bac. Ab. Mandamus (C.),

p. 263.

(t) Lind. p. 143.

(u) Ibid.

Ibid.
Ibid.

(z) Vide supra, p. 1507.

Parker v.
Clerke.

Pitts v.
Evans.

Fees.

Office cannot

calls largitio charitativa (as being originally a free gift), which by parity of reason may be fairly extended to the present case (y).

But by the common law, if a parish clerk claim by custom to have a certain quantity of bread at Christmas of every inhabitant of the parish, or the like, and sue for this in the spiritual court, a prohibition lies (≈).

In Parker v. Clerke (a), in 3 Anne, the clerk of a parish libelled against the churchwardens, for so much money due to him by custom every year, and to be levied by them on the respective inhabitants in the said parish; and after sentence in the spiritual court, the defendants suggested for a prohibition, that there was no such custom as the plaintiff had set forth in his libel. It was objected against granting the prohibition, that it was now too late, because it was after sentence, especially since the custom was not denied; for if it had been denied, and that court had proceeded, then and not before, it had been proper to move for a prohibition. But by Holt, Chief Justice: It is never too late to move the King's Bench for a prohibition, where the spiritual court had no original jurisdiction, as they had not in this case, because a clerk of a parish is neither a spiritual person, nor is this duty in demand spiritual, for it is founded on a custom, and by consequence triable at law; and therefore the clerk may have an action on the case against the churchwardens for neglecting to make a rate, and to levy it, or if it had been levied and not paid by them to the plaintiff.

In Pitts v. Evans (b), in 12 Geo. 2, a prohibition was granted to a suit in the spiritual court by the clerk of St. Magnus for 1s. 4d., assessed on the defendant's house at a vestry in 1672, to be paid to the parish clerk. For, by the court, he is a temporal officer, or if not, yet he could not sue there for such a rate; for if it is due by custom, he may maintain an assumpsit, if not a quantum meruit, or a bill in equity.

Besides being paid a salary or stipend, parish clerks are paid by fees, especially on marriages (e) and burials (d).

It has been holden that the office of parish clerk cannot be be assigned. assigned, and that the assignor was therefore still parish clerk and could sue for his fees (e).

Does not give vote for Parliament.

Compensation where benefices united.

A parish clerk receiving more than 40s. a year from burial fees was said not to have thereby acquired a 40s. freehold, so as to entitle him to the parliamentary suffrage (ƒ).

On union of benefices in the metropolis compensation may be awarded to parish clerks (g).

(y) Gibs. p. 214.

(z) Marsh v. Brooke, 2 Roll. Abr. Prohibition (F.), p. 286.

(a) 3 Salk. p. 87; 6 Mod. p. 252. (b) 2 Stra. p. 1108; S. C., 13 Vin. Ab. Fees (H.), p. 155.

(c) Vide supra, pp. 632, 634, infra, p. 1515.

(d) Vide supra, pp. 678-684, infra, p. 1515.

(e) Nichols v. Davis, L. R., 4 C. P. p. 80.

(f) Bushell v. Eastes, 8 Jur., N. S. p. 645.

(g) Vide supra, p. 410.