Prebendary.

other churches in the same diocese, in the same manner as deans. Vid. ante, 291.

Institution. A prebend may be annexed to an archdeaconry, and then induction and institution to the latter constitutes the person so instituted the prebendary, both in fact and in law. 1 B. & Adol. 794; 3 B. & Adol. 95.

Dean and chapter.

Right to appoint officers.

Mandamus, as said above, is to compel an election, in order to fill a vacancy among the canons residentiary; 1 T. R. 652; and a peremptory mandamus, to admit a prebendary to his stall and voice; 1 Stra. 159; but none lies to restore one deprived by sentence of a visitor. 1 Wils. 206.

By the 28 Hen. 8, c. 11, s. 3, the profits of a prebend during vacation are to go to the successor towards the payment of the first fruits; but this seems to apply to such possessions as he has in his separate capacity as a sole corporation. Those that he has as a member of a corporation aggregate, shall it seems, be divided amongst the dean and chapter. Godol. Abr. 52; Burn's E. L. 91.

Where a prebendary has the advowson of a rectory in right of his prebend, and dies whilst the church is vacant, his personal representative has the right of presentation. Rennell v. the Bishop of Lincoln and others, 7 B. & C. 113; 8 Bing. 490; vid. ante, 18.

The dean and chapter as a body are of common right guardians of the spiritualities of the bishopric during vacation; although the archbishop now usually hath that right by prescription or composition; but when the archbishopric is vacant the dean and chapter of the archiepiscopal see are guardians of the spiritualities throughout the province. Godol. Abr. 55. A statute made by dean and chapter to bind their successors and not themselves is void, and is so declared by the Canon law. 1 M. & S. 205. A gift or alienation to the chapter, the deanery being void, is not good; Moor. 52; for it is no perfect corporation without the dean, as it is without the chapter. Bridgm. 148.

Besides the authority which deans and chapters have within their own bodies, they have sometimes an ecclesiastical jurisdiction in several neighbouring parishes and deaneries; and this ecclesiastical jurisdiction is executed by their officials. 2 Burn's E. L. 93; Johns. 56; Wood, b. 1, c. 3. A dean and chapter are of higher rank than an archdeacon. The dean himself is next to the bishop. He is constantly styled in ecclesiastical records "Archi-Presbyter," but an archdeacon " Archi-diaconus." Indeed in some respects a dean is co-ordinate with a bishop, and the dean and chapter in some instances have a control over him. Parham v. Templar, 3 Phill. 242.

With regard to the conflicting rights of deans on the one hand, and prebendaries on the other, to make appointments to

officers.

the choir; or to nominate to preferments belonging to the Dean and chapter. body; and concerning the negative powers of deans, arising out of local statutes and charters, vid. the case of Glou- Right to cester and the opinions of Sir R. Raymond and Sir P. York, appoint the attorney and solicitor generals thereon; and the case referred to three bishops; in which the dean of Bristol and the chapter severally claimed the right to appoint the officers of the cathedral; and a similar case from Gloucester referred to the archbishop of Canterbury, the master of the rolls, and the dean of the arches; in both which last cases it was decided, that the right was in the dean and chapter, and, the dean being absent, in the vice-dean and chapter. 2 Burn's E. L. 110–12.

Defamation.

A cause of defamation (a) is said to be a criminal, or a mixed cause, that is, partly criminal and partly civil; Conset. 335; Oughton, tit. 259; or more accurately perhaps stated by Oughton, ib. note a, causa criminalis civiliter intentata; 1 Add. 125.

66

Where the words used are clearly defamatory, it is immaterial whether they are in writing or used orally. 2 Lee, 105. Oughton says, "A party proved guilty of written defamation ought to be punished more severely than the speaker of defamatory words only." Tit. 263.

By the civil law, a person had his election, whether he would prosecute the defamer "ad vindictam publicam" or "ad privatum interesse." Ridley's View of Civil Law, 216. But both of these, the person defamed could not have; having obtained a sentence against the defamer for his recantation in a suit "ad vindictam publicam," he might possibly have in lieu thereof a pecuniary recompense by way of commu

(a) The Commissioners on the jurisdiction and practice of the ecclesi astical courts, in their general report, p. 63, recommend that as the benefit resulting from the present exercise of the ecclesiastical jurisdiction in cases of defamation, is not commensurate with the evils attendant upon it; that the cognizance of such causes should be wholly withdrawn from the ecclesiastical courts, and that parties aggrieved should have their remedy by resorting to magistrates in petty sessions, who might be allowed a power to fine and imprision.

nisable

When cog- tation. The prosecution "ad vindictam" was left to the ecclesiastical jurisdiction, and the other to the temporal. Much in the spiri- in conformity to what the laws of this realm seem to say, viz.,

tual court.

What words.

Bawd.

Drunkard, &c.

that where the prosecution is merely for punishing sin and ill manners, and no money demanded, there the spiritual court shall take cognizance of the defamation; but where money is demanded in satisfaction of the wrong, there the temporal court shall have jurisdiction, especially if the defamer undertakes to justify the matter, or the words do express or imply a crime, belonging to the cognizance of the common law. Ayliffe Parer. 214.

By the statute of circumspecte agatis, 13 Ed. 1, c. 4, it is enacted, that in cases of defamation, it hath been granted already, that it shall be tried in a spiritual court, when money is not demanded; but a thing done for punishment of sin, the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.

By stat. articuli cleri, 9 Ed. 2, c. 4. It is enacted, that in defamations, prelates shall correct the king's prohibition notwithstanding, first enforcing a penance corporal, which, if the offender will redeem, the prelate may freely receive the money, though the king's prohibition be showed. He who is defamed, cannot sue in the spiritual court for damages, but only pro salute animæ of the defamer. 4 Rep. 20.

It is an uncontrovertible principle of the ecclesiastical courts, that only such defamatory words are cognisable there, which impute an offence which would be punishable there; neither is it sufficient that the words impute an ecclesiastical offence, unless also it be an offence which is not cognisable at common law. Thus, if the words are "that such a person is a bawd," a suit lies in the ecclesiastical court; but if they are that "such a person keeps a bawdy-house," they are out of the jurisdiction of that court, because they may be the subject of an indictment. Cro. Car. 229. For though the latter cannot be charged without charging the other also by inference, it has always been held a ground of prohibition; for the courts of common law have determined that there can be no suit for defamation in the ecclesiastical court when an action would lie at the common law. 1 Hag. Con. 463, in notis, vid. "Prohibition."

A suit in the ecclesiastical court may be had for calling a man a drunkard or usurer; for though there is a statute inflicting a penalty for drunkenness, and also for usury, yet in these cases there is an express saving of the ecclesiastical jurisdiction; but it is different with regard to the words "he is a common swearer," there being several statutes inflicting penalties for swearing, but no saving of ecclesiastical jurisdiction. Harris

v. Buller, Arches, 1798; coram Sir W. Wynne; 1 Hag. Con. 463, in notis.

When cog

nisable in the spiritual

court.

Want of

Custom of

A woman may sue in the spiritual court for defamation, charging her with whoredom; 1 Ld. Raym. 508; or a man, if called "whore-master;" 2 Salk. 692: for in such case, no chastity. action lies at law, fornication and adultery being subjects of spiritual, and not temporal censures; ib. 1004; but to impute incontinence to a woman in London, may, it seems, be by custom cognisable by the temporal courts: so also it is said by London, custom in Southwark; 1 Keb. 418; 1 Sid. 97; and in Bristol, &c. 1 Wils. 62; Andrews, 300. But in order to bring it within the custom, and give the temporal courts jurisdiction, the charge must be of incontinence. In London it is not sufficient if the declaration allege that she resided in London. Robertson v.

Powell, M. T. 57 Geo. 3; 2 Burn's E. L. 134. So, to call a man a pimp, Ld. Raym. 236, or a wittol, 2 Salk. 692; Cro. Car. Wittol. 339, which imputes connivance in his wife's adultery, are defamations punishable in the spiritual court, being all imputations of ecclesiastical offences. A wife may institute a suit in the spiritual Words court without her husband joining, for words charging adultery, imputing because she is liable to do penance; 1 Roll. Rep. 426; 3 Bulstr. adultery. 261; and the husband cannot release the suit, even though divorced, a mensá et thoro, without her assent; for it is to restore her credit. Str. 576; Ld. Raym. 74. But a husband cannot maintain a suit for being called cuckold without his wife joining, for then she is the person defamed. 2 Lev. 66. If a man, having lands by descent, be called a bastard, and sue Bastard. in the spiritual court, a prohibition will be granted, for the charge tends to disinherit him. 2 Roll. Abr. 292.

If a clergyman be defamed in any article relating to the dis- Spoken of a charge of his ministerial functions, it is agreed by the books of clergyman. common law, to be duly triable in the spiritual courts. 2 Burn's E. L. 132; Gibs. 1025. But it is presumed, that the charge to be made must be of such a matter as would subject him only to ecclesiastical censure and punishment: for if the prosecution of the suit in the spiritual court would lead to deprivation, that would be a temporal damage consequent upon the charge, which would give him a ground of action in the temporal courts, and therefore a prohibition would in such a case be granted. 2 Salk. 692; Cro. Jac. 472.

With regard to the mode of defamation, it is immaterial whether it is by writing, or by parol, 2 Lee, 103, or by gestures, caricatures, or the like, Ayliffe Parer. 214.

The rule as to proceedings in the spiritual court in matters of General defamation as extracted from all the cases, seems to be, that principle. scandalous words, which impute to any one a crime indictable at common law, and for which he may suffer corporal punishment,

When cog

nisable in the spiritual

court.

General principle.

Words spo

ceedings.

or the having a contagious disorder, or corruption in any office of trust; or dishonesty, or incompetency in his trade or profession, are actionable in themselves, and therefore cannot be made the subject of a suit in the spiritual court. So, also, words which although not actionable in themselves, yet if the speaking them is or may be attended with special damage to the person of whom they are spoken, he has his remedy by action, and the spiritual court is therefore ousted of its jurisdiction.

If words for which an action will lie, are coupled with words which amount to spiritual defamation, and a suit is instituted in the spiritual court for the whole, a prohibition lies, for it would be vexatious to proceed in both courts; 1 Ed. 3, stat. 2, c. 11; 12 Rep. 43; and it is only for the imputation of matters determinable and punishable in the spiritual court, and there only, that suits for defamation will lie in that court.

For the purpose of founding a suit in the ecclesiastical court, it is not necessary that the very word of infamy should be spoken: there is a variety of cases where circumlocutions of the same import have been held to be sufficient. 1 Hag. Con. 464, 674. The meaning of the words, however, must be clear and definite; not fairly capable of another interpretation. In a case where it was said of a woman, "what do you live with that fellow "for?" meaning W. S., the husband of complainant; "he has 66 a wife in the country that he was married to before he married "you; and she is now living at G.; and how can you be his wife? "and what must you be to live with another woman's husband?" Lord Stowell said, "If there had been any thing expressed to "show that the plaintiff was affected with the knowledge of "there being any other person living in the character of a former "wife, it would amount to a charge of incontinence; but other"wise, the words will not come within the scope and meaning "of defamatory words implying incontinence." Smith v. Watkins; 2 Phill. 106; 1 Hag. Con. 467.

By 1 Ed. 3, s. 2, c. 11, it was recited that, when divers perken in judi- sons, as well clerks as lay, have been indicted before sheriff's in cial protheir tourns, and after inquest procured, delivered to the justices; after their deliverance, do sue in the spiritual courts against such indictors surmising against them that have defamed them to the great damage of indictors; the king will, that in such caseevery man that feeleth himself aggrieved shall have a prohibition formed in the chancery upon such case.

Although the statute in terms only provides for indictors in the tourns, yet it extends to all other courts, and to all witnesses, and to all others who have affairs in the temporal courts. 12 Rep. 43; Ayl. Parer. 213. Thus, in a case of prohibition, where a man sued in the spiritual court for defamation,