;

any part of the personal assets, whether specifically given by the will or otherwise, because this sale or pledge is held to be primâ facie consistent with the duty of an executor. Generally speaking, he does become a party to the breach of trust by buying or receiving in pledge any part of the personal assets, not for money advanced at the time, but in satisfaction of his private debt, because this sale or pledge is primâ facie inconsistent with the duty of an executor. I preface both these propositions with the term 'generally speaking,' because they both seem to admit of exceptions. Thus, a sale or pledge for the private debt of the executor has been supported under special circumstances in Lord Hardwicke's two cases of Nugent v. Giffard,1 and Mead v. Orrery, though not entirely to the satisfaction of every succeeding judge; and Lord Eldon seems to consider the case of M'Leod v. Drummond as an exception to the first proposition. It was upon the principle of these propositions that Sir W. Grant proceeded in the case of M'Leod v. Drummond ; he there supported the pledge of the testator's bonds, because they were deposited in respect of advances made at the time. In the same case of M'Leod v. Drummond Lord Eldon on an appeal admitted these principles; but, as I have already observed, he seemed to consider the circumstances of that case as forming an exception to the general rule. The advances, though made at the time, were made to two executors, who were partners as army agents, and were made to them in the course of their business of army agents, and necessarily, therefore, for their private purposes; and he inclined to think that the bankers were, for that reason, as much parties to the breach of trust as if they had applied the money to pay the private debts of the executors. I cannot but lean strongly to Lord Eldon's view of that case :-' If a party, dealing with an executor for the personal assets, pays his money to the executor, so that it may be applied to the purposes of the will, he is not responsible for the executor's misapplication of it, but if, in dealing with the executor, he does in truth pay his money for the private purposes of the

1 1 Atk. 463, 464; S. C. Ves. 269.

3 Bonney v. Ridgard, 1 Cox, 145.

+ 14 Ves. 358, and S. C. on appeal, 17 Ves. 172.

2 3 Atk. 237.

executor, he is equally a party to the breach of trust, whether he applies his money to the private debt of the executor, or to the private trade of the executor.""

In Hill v. Simpson1 relief was granted to a pecuniary legatee, against bankers, with whom part of the assets had been deposited by the executor, who was also residuary legatee, within a month after the death of his testator, to secure his private debt, the transaction was attended with circumstances of gross negligence in the bankers, but unaccompanied by fraud.

The party to whom personal estate is specifically bequeathed may, if he be executor, or shows the assent of the executor, mortgage or sell the same as his own, or settle it on his marriage,3 and the party so acquiring it will hold it free from the claims of the creditors of the testator, unless he have notice at the time of the transaction that debts were unpaid. In Taylor v. Hawkins just cited, a mortgage by a specific legatee was supported, though made only three months after the testator's death.

4

The bankers, or other agents of an executor, are not responsible, though they may have reason to believe that their principal is misapplying the assets of his testator, for that would be to make every trustee accountable for his conduct in the trust to every agent whom he happened to employ, and would carry the principle of constructive trust to an inconvenient, and, indeed, to an impracticable length.5

W. C. W.

1 7 Ves. 152, and see Scott v. Tyler, 2 Dick. 724; S. C. 2 Bro. C, C. 431. 2 Taylor v. Hawkins, 8 Ves. 209.

4 Crane v. Drake, 2 Vern. 616.

3 Spackman v. Timbrell, 8 Sim. 260. 5 Keane v. Roberts, 4 Madd. 332, 356.

ART. V.-IS A CLERGYMAN WHO REFUSES TO PERFORM THE MARRIAGE CEREMONY, PUNISHABLE AT COMMON LAW?

In the recent case of Davis v. Black,1 which was an action on the case against a clergyman for refusing, under a licence, to marry the plaintiff to Mary Ann Hogg, deceased, whereby the plaintiff suffered damage, Denman, C. J. observed, "I am by no means prepared to say that such an action as that might not be maintained upon the declaration raising a proper complaint of a public officer neglecting his public duty, to the temporal, and it might be to the very great damage of an individual. Such a neglect of the duty of a clergyman may be actionable if it be malicious and without probable cause." The declaration having been held bad after verdict for some material errors in pleading, no decision upon the legal points of the case was of course pronounced, and doubts seemed to be entertained whether such an action would lie. The civilians maintain that such a breach of duty is cognizable only in the Ecclesiastical Courts: many other lawyers are of the same opinion, and the matter having never been decided, we think an investigation into it may not be uninteresting.

There is no question that the refusal to obey the ordinary's licence is punishable in the Ecclesiastical Court. Othobon (cited in Gibson's Codex, page 431) thus writes:- "districtius inhibemus ne quis matrimonia contracta legitimè quo minus in facie ecclesiæ solemnizentur impedire præsumat. Episcopi vero, quorum interest sacra tueri, condignè studeant hujusmodi punire præsumptores." In the case of Argen v. Holdsworth,1 which is the only decision in point we have been able to discover, it was adjudged that the clergyman so refusing was punishable; the judge, Sir George Lee, saying, "I was of opinion a licence was a legal authority for marriage, and that a minister was guilty of a breach of his duty who should refuse to marry pursuant to a proper licence from his ordinary." But as the punishment by spiritual jurisdiction would be only suspension, or, in some very flagrant case, perhaps deprivation, no satisfaction would be accorded to the injured party, who might be thus damnified in the dearest interest of his life. It

remains, therefore, to inquire whether a court of law has power to afford him redress.

We do not intend to enter into the question, whether the presence of the priest was necessary by the laws of England before the statute of George the Second. There are many whom Lord Stowell's elaborate judgment in Dalrymple v. Dalrymple has failed to convince, and as it is a moot point on which lawyers of the greatest eminence have differed, and still differ, we will not allude to it.

We assume then, that at Common Law the presence of a priest is essential to the validity of a marriage.

The propositions we mean to advance, and the deductions we wish to draw, are these:

1. The jurisdiction of Ecclesiastical Courts is bounded and confined by those of Common Law. A priest being essential to a marriage, he is as liable at Common Law for any wilful obstruction of the ceremony, as he would be for wrongful interference in any civil transaction, the Courts of Common Law being of higher authority and superseding those of Spiritual Law.

2. That Courts of Common Law and Courts Ecclesiastical unite to punish those who transgress against both, and that in no case can they do so with more propriety than in the present, where the offence is an infringement of ordinances spiritual and legal.

3. That the Ecclesiastical Courts cannot, proprio vigore, make any canons, constitutions or ordinances repugnant to the laws of the land; and that, as these laws punish all wrong doers without distinction, no exclusive privilege of punishing its own officers or ministers belongs to the Ecclesiastical Courts, unless where, since the Reformation, it has been confirmed to them by statute, or was of good authority before.

4. That an action on the case will lie against a parson as a wrong-doer for his refusal, by the analogy of all preceding

cases.

If it be argued that the Courts of Common Law are chary of interfering with the spiritual, we answer in the words of old Wingate (Maxims, 551), "that the law suffereth against principles of law rather than the party be without remedy." We

believe it is admitted on all hands, that suspension would be no remedy for a plaintiff thus aggrieved.

I. In Wingate's fourth Maxim we read as follows: "The jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law. The spiritual laws mentioned in Littleton, (Tract 648) are such Ecclesiastical Laws as are allowed by the laws of this realm, viz. which are not against the Common Law, nor against the statutes or customs of this realme, and (regularly) according to such Ecclesiastical Laws the ordinarie and other ecclesiastical judges do proceed in causes within their cognizance, and this jurisdiction was bounded by the ancient Common Lawes of the realme, and so declared by act of parliament."1

In Wood's Institutes, Book iv. page 500, "As in imperial causes the king by his judges doth hear and determine the same by temporal laws, so in cases spiritual or ecclesiastical, the king by his ecclesiastical judges doth determine the same by his ecclesiastical laws. Therefore where the right is spiritual and the remedy only by the Ecclesiastical Law, the cognizance doth belong to the Ecclesiastical Court. But where the Common or Statute Law giveth remedy, whether the matter be temporal or spiritual, the cognizance belongs to the king's temporal courts; and though the matter is spiritual, it shall be tried by a jury; and the Court being assisted by learned advocates in that profession, may instruct the jury in the Ecclesiastical Law as they usually do in the Common Law." In support of this the following case may be cited, and it would be difficult to say how it is more open to temporal jurisdiction than the injury sustained by a man whom a clergyman refuses to marry.

Kenton v. Wallinger. Action upon the case. Whereas sentence of excommunication was against one Harris, the instrument whereof was delivered to the defendant, being curate of the parish where the said Harris and plaintiff inhabited, to publish in the church, that he maliciously had razed out the name of Harris and put in the plaintiff's name, and read it in the church, whereupon he was inforced to be absent from divine service, and to be at the expense to procure a dis

'Co. Inst. 1, 344 a; Co. 1. 5, 1, 32, b. Jurisdiction; Stat. 35 Hen. VIII., s. 19; 33 Hen. VI. 34; 32 Hen. VI. 18.