to the taxation of them, it shall discharge them, because nothing appears in certain to be due for costs, before they are taxed. id. 3. Also, if a person be imprisoned on a writ de excommunicato capiendo, for his contumacy in not paying cofts, and afterwards the king pardons all contempts, it seems that he shall be discharged of such imprisonment, without any fcire facias against the party; because it is grounded on the contempt, which is wholly pardoned: and the party muft begin anew to compel a payment of the costs. 2 Haw. 394. 4. But it seems agreed, that a pardon shall not discharge a fuit in the spiritual court, any more than in a temporal, for a matter of interest or property in the plaintiff; as for tithes, legacies, matrimonial contracts, and fuch like. Also it is agreed, that after costs are taxed in a fuit in such court at the profecution of the party, whether for a matter of private interest, or pro reformatione morum or salute animæ, as for defamation, or the like, they shall not be discharged by a subsequent pardon. id. 5. A person admitted to the benefit of clergy, is not to be deprived in the spiritual court, for the crime for which he hath had his clergy. For a pardon frees the party from all subsequent punishment, and confequently from deprivation. 2 Haw. 364. 6. By the statute of the 20 G. 2. c. 52. (which is the last act of general pardon) all contempts in the ecclefiaftical court in matters of correction are pardoned; but not in causes which have been commenced for matters of right. Parith. First infitution I. (A.) A of parishes. T first there were no parochial divisions of cures here in England, as there are now. For the bishops and their clergy lived in common; and before that the number of christians was much increased, the bishops sent out their clergy to preach to the people, as they faw occafion. But after the inhabitants had generally embraced christianity, this itinerant and occafional going from place to place, was found very inconvenient, because of the constant offices that were to be administered, and the people not knowing to whom they should refort for fpiritual spiritual offices and directions. Hereupon the bounds of parochial cures were found necessary to be settled here, by those bishops who were the great instruments of converting the nation from the Saxon idolatry. At first they made use of any old British churches that were left standing; and afterwards from time to time in succeffive ages, churches were built and endowed by lords of manors and others, for the use of the inhabitants of their several manors or districts, and confequently parochial bounds affixed thereunto. 1 Still. 88, 89. And it was this which gave a primary title to the patronage of laymen; and which also oftentimes made the bounds of a parish commenfurate to the extent of a manor. Ken. Impropr. 5, 6, 7. Many of our writers have ascribed the first institution of parishes in England to archbishop Honorius, about the year 636; wherein they built all on the authority of archbishop Parker. But Mr. Selden seems rightly to understand the expression provinciam fuam in parochias divifit, of dividing his province into new dioceses; and this sense is justified by the author of the defence of pluralities. The like distinction of parishes which now obtains, could never be the model of Honorius, nor the work of any one age. Some rural churches there were, and some limits prescribed for the rights and profits of them. But the reduction of the whole country into the fame formal limitations was gradually advanced, being the work of many generations. However at the first foundation of parochial churches (owing sometimes to the fole piety of the bishop, but generally to the lord of the manor) they were but few and consequently at a great distance: so as the number of parishes depending on that of churches, the parochial bounds were at first much larger, and by degrees contracted. For as the country grew more populous, and persons more devout, feveral other churches were founded within the extent of the former, and then a new parochial circuit was allotted in proportion to the new church, and the manor or estate of the founder of it. Thus certainly began the increase of parishes, when one too large and diffuse for the refort of all inhabitants to the one church, was by the addition of some one or more new churches cantoned into more limited divisions. This was such an abatement to the revenue of the old churches, that complaint was made of it in the time of Edward the confeffor: "Now (fay they) there be three or four " churches, Parish bound to fupport its its roads. " churches, where in former times there was but one ; " and so the tithes and profits of the priests are much di" minished." Ken. Par. Ant. 586, 587. And now, the fettling the bounds of parishes depends upon ancient and immemorial custom. For they have not been limited by any act of parliament, nor fet forth by special commiffioners; but have been established, as the circumstances of times and places and persons did happen, to make them greater or leffer. 1 Still. 243. In some places, parishes seem to interfere, when fome place in the middle of another parish belongs to one that is distant; 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 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 pers ambulations to preserve those bounds of parishes, which have been long settled by custom. I 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. d. 12.; and the court of K. B. will assist such a fubdivision 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 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 T. 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 roads which may be made within it, the charge will fall on the rest of the parish. Rex v. the Inhabitants of Sheffield, 2 T. Rep. 106. Where one side of a common highway is fituated in one parish, and the other fide in another, two juftices may determine what parts shall be repaired by each. 34 G. 3. c. 64.] Perambulation 2. By a constitution of archbishop Winchelsey; the pa of the bounda- rishioners shall find at their own charge banners for the rories 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. Trespass for breaking his close, and for breaking down two gates, and three perches of hedge. The defendant juftifies; 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 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 justify the going over any man's land in the perambulation, according to their usage, and abate all nusances 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 cafes, 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. These perambulations (tho' 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 fuperftition; being performed in the nature of proceffions, with banners, hand bells, lights, staying at crosses, 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 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 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 saying of the 103d pfalm. At which time also the said minister was required, to inculcate these or such like fentences, Cursed be be which translateth ! Bounds of pa- translateth the bounds and dolles of his neighbour; or such other order of prayers, as should be lawfully appointed. Gibf. 213. But the superstitions here laboured against, were not fo easily suppreffed; 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 now they are; to the end the limits of parishes may be the better kept up and ascertained. Gibf. 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; altho' our provincial constitutions 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 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 ecclefiaftical court. Gibf. 213. - But this was between two spiritual 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 question in the (m) 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 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 custom, in which cafe 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-ftreet v. the parish of St. Leonard Shoreditch. 1 Anstr. 395. Atkyns v. Hatton; where a commission was prayed, in the court of exchequer, to afcertain the bounds of a parish upon a presumption 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 waste land, and it being doubtful to which parish the different parts of the waste belonged. eccle |