Manx Church Law in the 19th Century

Extract from the Report of the Royal Commission on the Ecclesiastical Courts (1883, C.3760) vol. ii pp. 317-337

Note A: Jurisdiction of the Ecclesiastical Courts of the Isle of Man


[Handed in by Sir James Gell.]

[320]

NOTE A

Castletown, 9th December 1876.

Sir

I have the honour to acknowledge receipt of your Excellency's letter of the 25th ultimo, requesting me to report with respect to the best mode of transferring such part of the business of the Ecclesiastical Court as is not purely spiritual to the temporal courts, and I beg to submit my views to your Excellency.

I think it will be well if, before making suggestions, I show the constitution and jurisdiction of the ecclesiastical courts both in spiritual and temporal matters. By this means the subject may be better understood. I shall arrange my remarks under three heads:-

I. The Nature and Extent of the Jurisdiction of the Ecclesiastical Courts in this Island;
II. The Ecclesiastical Courts; and
III. Suggestions.

I. NATURE AND EXTENT OF THE JURISDICTION

The jurisdiction of the ecclesiastical courts may be considered as of three descriptions:- 1, Spiritual; 2, Ecclesiastical; 3, Temporal.

By spiritual jurisdiction I means that which relates to the Church in its spiritual capacity, irrespective of its position as the Established Church of the country. By ecclesiastical jurisdiction I mean that which has reference particularly to the Church as the Established Church. And by temporal jurisdiction I mean that which has reference to matters which do not concern the Church. In all these cases the coercive jurisdiction is derived from the Crown as the fountain of justice, and has, doubtless, been conferred on the Ecclesiastical Court for the reason that the Church is established.

1. The spiritual jurisdiction embraces the following subjects:-

(a) The Government of the Church, including matters relating to presentations to benefices or incumbencies. (In England cases respecting presentations in which the bishop of the diocese may, as patron, be interested, are, by statute, heard by the archbishop of the province. No such statute is in force here.)

(b) Discipline of the Clergy, including questions of heresy and doctrine.

(c) Discipline of the Laity. - A branch of the spiritual jurisdiction, which (except in cases of [321] brawling in church, and of matters relating to or connected with churches and churchyards as consecrated places) is practically in disuse. It has been generally exercised by means of presentments made by clergy and churchwardens for offences against the ecclesiastical law. It has been generally exercised by means of presentments made by clergy and churchwardens for offences against the ecclesiastical law. Such presentments are now chiefly confined to cases against women who have given birth to illegitimate children, and are made use of for the purpose merely of affiliating the children, an object certainly not that originally intended by a presentment. The corrective power of the court has been allowed to sleep, and, in fact, in recent times, in some cases where it has been deemed advisable or necessary to resort to church censures, the court has in a manner (of doubtful legality) deputed its authority to the incumbent of the parish of the offenders to attend before the incumbent for admonition, &c.

The jurisdiction of the court in matters of defamation (which come under this head) is virtually obsolete.

(d) Conduct of Divine Worship, including questions as to illegal or unauthorised alterations of or additions to, or decorations of the fabric or furniture of churches, or as to the use by the minister of unlawful vestments, &c. The mode of procedure and the exercise of jurisdiction in some of the cases which may arise under this head are materially affected by the Act of Parliament - the Public Worship Regulation Act 1874 (37 & 38 Vic. c.85).

2. The ecclesiastical jurisdiction comprises the following matters:-

(e) Tithes.- Previous to the Exchequer Court Act of 1777, which declares the "determining the right of Tithes" to be "properly cognizable in the Court of Exchequer", the ecclesiastical court determined questions as to the right or title to tithes, as well as enforced the render of them. Now the jurisdiction is confined to the latter purpose, and if a question as to title be raised, the court can proceed no further. But as to tithes, the jurisdiction (at any rate so far as the Church is concerned) has practically ceased, it being now confined to uncommuted impropriate tithes which are in the hands of laymen. The rentcharge payable in lieu of tithes under the Tithe Commutation Act of 1839 is recoverable in the temporal courts.

(f) Church rates, both the validity and the enforcement of the payment of. - In England, church rates have been abolished, save in parishes where the rates had been legally charged or mortgaged before the Abolition Act was passed.

Previous to the passing of the Education Act 1872, the church rate included expenses connected with the repair and support of the fabric of the parish schoolhouse, the theory being that the maintenance of a school was a necessary part or adjunct of the ecclesiastical establishment. Under the Education Act, no parochial rates can now be levied for school purposes.

Under this head must be included questions as to rates of a purely temporal character - namely, rates for payment of damages occasioned to property during riots. By the Riot Act of 1836 such damages are to be by the churchwardens levied and raised in the manner in which church assessments are levied and raised. In this case the ecclesiastical machinery is merely made use of for the sake of convenience.

(g) Clergy Dues and Fees. - Under this head are included Easter offerings, as well those payable to the clergy as to the Crown in certain parishes, which are styled in the Manx Law "Vicarages of Pension". In those parishes the offerings were, previous to the Reformation, payable to the abbey; but the payment of Easter offerings has, I believe, well nigh ceased.

(h) Parish Clerk's Dues and Fees. - The dues include the "smoke penny" payable by each householder, and "plough groat", payable in respect of each plough used by any husbandman.

(i) Sumner's Dues, which include a sheaf of three bands of the three "principal corns", to be rendered by every husbandman.

(j) Churchwardens, election and admission of. - In England questions as to the validity of the election of churchwardens are triable in the temporal courts. It was recently decided by the staff of Government that in this Island they are triable in the ecclesiastical court.

(k) Faculties. - Cases under this head are chiefly applications for authority to make alterations in, or additions to, the fabric, or ornamentation of churches. Very few cases of this description come before the Insular Court, but the jurisdiction is a very important one, in the interests of parishioners particularly.

(l) Sequestration of Livings. - Sequestration is the remedy given by various Acts for enforcing in the ecclesiastical courts payment by incumbents of moneys payable in respect of, or chargeable on, their livings. But under this head I refer now to it as used in aid of the temporal courts - namely, to make the profits of a living, beyond the necessary charges for providing for the ministerial and pastoral work in the parish, available for payment of the incumbent's debts. It has been doubted whether the provision in the Act of 1737, that "no sequestration shall be laid upon the profits of any lands, tenements, mills, or hereditaments whatsoever, by any court or magistrate within the said isle, but in extraordinary cases, and the same not to be done without the consent of the governor, officers, deemsters, and keys of the said isle, any custom or practice to the contrary notwithstanding," does not take away the jurisdiction of the ecclesiastical court; but that court has since the passing of the Act acted as if the provision alluded to has no application to such court.

Under the Ecclesiastical Jurisdiction may also be classed certain statutable powers conferred on the ecclesiastical court. They are as follows:

(m) Glebe Houses, erection or enlargement of. - By the Act of 1734, two-thirds of the necessary outlay may be a charge on the living, the outlay to be ascertained by a jury to be appointed under order of the ecclesiastical court. The Act imposes no effectual check on the outlay, and as the proceedings are ex parte, no contest can arise. (It seems to me that, in any case, the patron ought to be a party to proceedings of this description.)

(n) Dilapidations. - Under the same Act, damages under this head to buildings can be recovered by an incumbent from his predecessor, the amount to be ascertained by a jury to be appointed by order of the ecclesiastical court. In this case there are, of course, two parties to the suit; and though nothing is said on the subject in the Act, it is probable that, by necessary implication, it would be held that the court has power to review the finding of a jury, and order a new trial.

The power of the ecclesiastical court is confined to houses and out-houses on glebe land; it does not apply to fences, as to which the common law remedy only is available.

It is also to be observed that the Act of 1734 applies only to the buildings on the glebe lands [322] of a rector or vicar, both as regards erection, or improvement and dilapidation.

(o) Valuation of Crops on Glebe Lands unlet on avoidance of an incumbency. - By the Ecclesiastical Persons Act of 1844, an incoming incumbent is entitled to have the growing crops on paying for the seeds and plants and labour - the value in case of difference to be ascertained by a jury, to be sworn under the authority of the ecclesiastical court. Probably, in such a case, though the Act is silent, it would be held by necessary implication that the court has power to review the finding of a jury and order a new valuation.

This Act applies to the bishop, rectors, vicars, chaplains curates, parish clerks, and schoolmasters.

(p) Parish Registers. - By the Parochial Registers Act, 1873, the ecclesiastical court has power, on the application of persons interested, to correct erroneous entries in parish registers kept under the Parish Registers Act, 1849.

This is virtually a revival of a practice which obtained as to registers kept previous to the Act of 1849.

3. The Temporal jurisdiction relates to the following subjects:-

(q) Probate of Wills &c. - Under this head are included questions as to the validity of wills and grants of probate and letters of administration. Though in the ecclesiastical court the proceedings have effect as to personal estate only, yet probate in that court is held as prima facie proof of a will in the temporal courts. In England this jurisdiction has been taken away from the ecclesiastical courts.

(r) Debts, recovery of, when due by or to the estates of deceased persons, within certain limits as to the time of the exercise of the jurisdiction prescribed by statute.

(s) Legacies and Residues of estates of deceased persons. recovery of, so far as the legacies are payable out of personal estate, and so far as the residues consist of personal estate. But the court has not jurisdiction as to the administration of the trusts under which legacies may be subject by a will.

(t) Administration and Winding up Estates of Deceased Persons. - Under this head are included proceedings for the discovery and recovery of assets; as to the sale of disposition of effects; disputes between the executors or administrator themselves; the examination and revision of the accounts of executors and administrators; and the distribution of estates, when insolvent, amongst creditors, and otherwise between the next of kin.

It may be observed that the jurisdiction under the foregoing heads - (r), (s), (t) - is peculiar to the Isle of Man.

(u) Guardianship of Minors. - I think the jurisdiction as to the appointment of guardians has been exercised in respect of infants under 14 years of age only. But, in these days, guardians are rarely appointed by the ecclesiastical court, and an appointment by the Chancery Court supersedes one by the former court.

(v) Matrimonial Causes. - The jurisdiction is similar to that which was exercised by the ecclesiastical in England before the Court for Divorce and Matrimonial Causes was constituted. The causes are those for divorce a mensa et thoro for adultery, cruelty,, &c., nullity of marriage, jactitation of marriage, restitution of conjugal rights, &c.

(w) Affiliation and Maintenance of Illegitimate Children. - Cases of this class are in England dealt with by justices of the peace. Here the Ecclesiastical Court, besides adjudication as to the affiliation, enforces at the instance of the mother from the putative father payment of one moiety of the expenses attending the birth, and until the child be 14 years of age, one moiety of the expenses of maintenance, clothing, and education. Generally speaking, all such expenses are allowed according to an uniform and fixed scale adopted by the court.

It is possible that in the foregoing enumeration the subject matters of ecclesiastical cognizance I have made some omissions, and probably my classification may not be in all respects considered correct. I have made it solely according to my own views.

II. - THE COURTS

The jurisdiction of the ecclesiastical courts was, until the passing of the Ecclesiastical Courts Act 1874, in some respects divided between the courts of the bishop and the archdeacon. By that Act the jurisdiction of the latter court was transferred to the bishops' courts.

The courts now are the Consistory Court, the Chapter Court, and the Vicar-General's Court.

The Vicar-General's Court is one of summary jurisdiction - the proceedings being (except in some cases by petition) without written pleadings. Suits for the recovery of debts and moneys are the chief, and probably the original, business of the court. It is difficult and perhaps impossible to draw a line between the respective jurisdictions of the Consistory and Vicar-General's Court. In fact, in those matters which formerly were considered as consistory business are commonly disposed of in the Vicar-General 's Court. Ordinarily in this court witnesses are examined at the bar; whereas in consistory business the depositions of witnesses are generally taken formally before the registrar.

The Chapter Court is a circuit court held in various places twice in the year after public notice. At this court wills are proved, and letters of administration granted summarily (without any written petition and without notice to next of kin) in all cases of death since the previous court appearing on returns made to the court by the clergy - which returns, taken from the registers of burials, are treated as evidence of the death of each person named in them. The proceedings in this court are less expensive than in the other courts. In the Chapter Court churchwardens are admitted and sworn, and presentments are made and disposed of summarily. In some cases, such as disputed wills, and in other matters on cause shown, the depositions of witnesses are ordered to be taken before the registrar, and thereafter the cases are disposed of in the Consistory Court.

The Consistory Court is considered the principal ecclesiastical court. It has a general jurisdiction in all matters of ecclesiastical cognizance. The proceedings are always commenced by petition and there may be formal pleadings. In former times the bishop frequently sat in this court along with the vicar-general.

The judge of the courts is the vicar-general. By law there may be two vicars-general, but when, on the retirement of Vicar-General Hartwell, the Crown granted a salary to his colleague, Vicar-General Corlett, there was an understanding that the bishop should appoint one vicar-general only. When there were two vicars-general, they generally sat together in the consistory and chapter courts; and as to the Vicar-General's Court, the Island was divided into two districts, each vicar-general acting for one of them.

There is a registrar of the courts called the episcopal registrar. He keeps the records, makes office copies, takes depositions of witnesses, and makes distributions of estates when ordered by the court, and reports on matters referred to him by the court.

The surrogates in the Island act in respect of the grant of marriage licences only.

The vicar-general, registrar, and surrogates are appointed by the bishop, but their offices are vacated [323] on the avoidance of the see. During a vacancy in the see they are appointed by the governor. The oaths of office of the vicar-general and registrar on all occasions of appointment, and those of the surrogates when appointed by the governor, are taken before the governor or the clerk of the rolls.

The sumner-general, who has in certain cases to take letters of administration of the estates of deceased persons, and thus act as a kind of public administrator, and who is the apparitor of the ecclesiastical courts, is appointed by the governor, but he takes the oaths of office before the bishop of vicar-general. His duties as apparitor are chiefly performed by his parochial deputies - the sumners.

There is one other official connected with the courts - the clerk of the vicar-general. He is appointed by the governor, and his salary is paid by the Crown.

I have not thought it necessary to go into the matter of appeals from the ecclesiastical courts.

III. SUGGESTIONS

In my remarks I shall assume that a transfer of any part of the present ecclesiastical jurisdiction to the temporal courts will be to such courts as are at present constituted. The time has perhaps come when it may be advisable to consider the whole judicial system with a view to the amalgamation of the superior courts and the deemsters' courts in one court. But the question of such amalgamation need not delay legislation as to the ecclesiastical courts. In fact. like the transfer of the jurisdiction of the archdeacon's court to the bishop's courts, the work now contemplated may facilitate or simplify future arrangements.

Before referring particularly to the branches of jurisdiction to be transferred, I shall allude to a few matters of a general character bearing on the subject of transfer, and which require consideration.

1. The Office of Record for the business to be transferred. - Some of the business might, like suits for debt in the deemster's court, be dealt with in like manner, without any record or registration of the proceedings or judgments. To my mind, however, the great defect in the deemster's court is that there is no such record; the want of it is a great public disadvantage. All judgments of, and in many cases other proceedings in, the ecclesiastical court are matters of record. But in much of the business to be transferred the proceedings must of necessity be matters of record.

In this island the rolls office, as one general office of registry, might be the record office for the island. But for public convenience there might be two local registries at Douglas and Ramsey, worked somewhat on the principle of the local registries in bankruptcy. Under the Bankruptcy Act the deemster's clerks are registrars, and their offices are in fact local registries as to pending proceedings. On the close of a case the proceedings are transferred to the rolls office; but with the increase of jurisdiction more permanent offices would have to be provided.

2. The mode of enforcing judgments and orders. - An order or judgment of the ecclesiastical courts, involving the payment of money, is served by the sumner, who requires immediate payment, and in case of non-payment the governor's writ of contempt is sued out, and the person making default is imprisoned until discharged by purging the contempt, or in case of inability to pay, by failure of the judgment creditor to pay the statutable allowance for gaol maintenance after an order for payment of such maintenance, or by obtaining relief under the Bankruptcy Act. In the temporal courts orders or judgments for the payment of money are ordinarily enforced by execution against the effects of the person liable to pay; and in any transfer of jurisdiction I presume the present practice of the temporal courts will be applied to the new business. Other orders of the ecclesiastical court are in case of disobedience enforced in like manner as orders of the temporal courts, namely, by means of writs of contempt.

3. Security given by Executors and Administrators. - By an Act passed in 1643 it is provided that the goods of a deceadant shall be made good by the ordinary or his spiritual officers if he or they, upon proving a will or making a decree [grant of letters of administration] where no will was made, do not take sufficient security for the same. I think no such liability ought to attach to the judge. Where grants are made to the sumner-general (who is appointed by the governor) no security its taken beyond the customary bond given on appointment to his office. In England security is given only where there is a grant of letters of administration, and the judge is not liable if the security taken prove insufficient.

The probable reason why executors on taking grants of probate in England do not give security is that, as an executor is appointed by the testator, the court is not responsible for the appointment; whereas where letters of administration are granted the administrator is the officer of the court. But, on principle, no testator ought to be permitted to place his effects in a position which may prejudice his creditors, and, therefore, it is not unreasonable that in the case of a grant of probate security should be required, so far as the debts are concerned. There is no reason, however, why security should be required from an executor with respect to legacies which are the gifts of the testator, who may surely prescribe his own mode of making them. A legatee has no moral claim to require an executor to give security before he be permitted to take the office to which he was appointed by the testator who bequeathed the legacy. And there is a hardship in a court having power to control the act of the testator in the appointment of an executor so far as relates to the voluntary gifts of the testator. In the case of a transfer of jurisdiction the law of 1643 ought not to apply to the new judges, or it ought to be amended so as to exempt the judge from liability, and to require from an executor security for the payment of debts only.

4. Limitation of claims against estates of deceadants. - The Act of 1738 prescribes the time of limitation for the prosecution of such claim, - namely, in the Ecclesiastical Court, for claimants within the isle, one year, and for claimants out of the isle (or "transmarines," as they are called), 3 years from the time of the grant of probate or administration; and afterwards in the temporal court, for claimants within the isle four years, and for transmarines five years from the cause of suit or claim. There are some exceptions, to which it is not necessary here to refer. I think the whole of the provision as to limitation of suits against estates of deceadants quite unnecessary in these days. These suits may very well be subject to the law as to limitation of other suits, with a provision to prevent the time running during the period intervening between the death. and the grant of probate or administration. There is no sound reason that I can see for the distinction made between the respective jurisdictions of the ecclesiastical and temporal courts; and, in these days of speedy and frequent intercourse between the Island and other countries, I think the reason for the longer time given to transmarines does not now exist. At the same time the law as to the limitation of personal suits and actions generally requires revision.

5. Liability of Executors and Administrators. - I am strongly impressed with the belief that until some of recent decisions of the Court of Chancery it was understood to be the law in this Island that the personal representatives of deceadants are personally liable for the judgments against them in their representative capacity, and must answer for the debts of their testator or intestate in their own persons or property until they take steps to relieve themselves of personal responsibility. The right of a creditor to obtain a judgment for the debt due to him irrespective of the question of assets or no assets has been, I consider, established by a long course of practice, and with [324] good reason, on the ground that, if assets be not available at the time, they may be at some future time, when the means of proving the debt might not otherwise be forthcoming. A personal representative who has no assets, or insufficient assets, has always had the means of protecting himself by petition to the court whose judgment is being enforced, and thereupon the estate is administered by order of the court, and judgments stayed. Until the personal representative choose by the very simple and ready process open to him to protect himself, there is no hardship in presuming assets to discharge all claims, and consequently in treating all judgments against executors or administrators is judgments which they are personally to discharge. What has been understood as the Manx course of proceeding is, I feel confident, the most simple in its operation; it is not unfair or unjust to executors or administrators, and it casts on them, on whom it ought to rest, the onus of bringing the estate into a regular course of distribution ; but at the same time the onus is one very readily removed. I think that any doubt on this matter which may be the result of recent decisions ought to be removed.

6. Office of Sumner - Though appointed by the Governor, the Sumner-General and his deputies are officers of the Ecclesiastical Court, but in case of the temporal jurisdiction of such court being abolished the duties of these officers would be confined to apparitors' work. The principal duty of the Sumner-General is I think with regard to grants of administration in certain cases which are made to him officially. A very valuable part of the ex officio duty of Sumners is the power by means of a jury to inquire as to and make an inventory of the assets of a deceased person as well before as after a grant of probate, &c. After the grant the Sumner acts at the instance of the personal representative. These duties ought to be continued in the new jurisdiction, or substituted provision aside.

From what I have stated under former heads it can be tolerably well seen, if not what part of the jurisdiction of the ecclesiastical court is purely spiritual, that which is purely temporal.

The descriptions of business which I have arranged under the head of ecclesiastical jurisdiction are to a large extent of a mixed character. I shall for the purpose of making suggestions first refer to the purely temporal jurisdiction.

(q) Probate of Wills &c. - I propose that this branch of the business be transferred to the deemster's courts, but with considerable modifications as to its exercise.

The chief part of the business under this head is of the most formal character, and could as well be transacted in chambers as in court, and as well by a registrar as a judge. It consists merely, after notice (general and public is to the chapter court) to the next of kin, of proof of the execution of' the will, the taking the administration bond, and swearing the executor or administrator. I suppose that for the last twenty years there have not been on an average three cases of contested wills yearly.

Deeds affecting real estate are prima facie valid if the execution be proved before a deemster or high bailiff (at the instance of any one concerned, and without notice to any one else), and the deed be then recorded in the office for the registry of deeds. I see no reason why, under ordinary circumstances, wills should not be proved in a similar manner, though not necessarily before the same officials. In England proof of the execution is ordinarily dispensed with, but I would not here dispense with such proof. It has been held here that, even as to the heir-at-law with respect to lands devised, the probate is treated like a recorded deed - that is prima facie evidence of due execution, doubtless for the reason that in order to obtain probate the execution must be proved.

What I propose, therefore, under this head is that nothing similar to the chapter court procedure be continued in the temporal courts. That wills be (except in cases of difficulty) proved before the registrar by subscribing witnesses, or one of them, the registrar taking the security - probate then issuing as of course. That cases of difficulty be reserved for the consideration of the judge, who may, if he think proper, require the case to be heard in court on petition. That administration of intestates be issued as of course to persons entitled to the administration, on affidavit as to the death and intestacy being laid before the registrar - grants to other persons being subject to the order of the court, - and that contested cases of testacy or or intestacy be heard in court by the judge, he having power, when he may think it necessary, to direct issues to a jury. In the case of a contested will affecting real estate, I would suggest that power be give to cite the heir-at-law of the testator - the proceedings in such case being as to the validity or otherwise of the will binding on him. Disputes as to the right to administration would, of course, be heard in court.

In this Island, as in other countries, the ecclesiastical court has, in the case of a will proved out of the jurisdiction, accepted the will as proved, for the purpose of a grant of probate, or of administration cum testamento annexo here. This practice would, of course, continue; but, according to a recent decision of the ecclesiastical court, in order to obtain a Manx probate in such a case, it is necessary that the foreign probate (which includes a copy of the will) be produced. The effect of this decision might be an absolute prohibition to any person having an interest in property in this island under the will, to set up the will where the executor (who alone is entitled to the foreign probate) may not be interested in a Manx grant, or may choose to oppose it, or may, for any reason, decline to send the foreign probate to the Island. I am inclined to think that formerly in England in a like case a grant would be made on production either of the foreign probate or of a certified copy of the will from the registry in which it is filed, and there are here precedents of a similar kind. I think that any doubt in this respect ought to be removed.

(r) Debts. - As to debts due by the estates of deceadants the ecclesiastical court has (as before pointed out) for a limited time exclusive jurisdiction.

As to debts due to such estates the ecclesiastical courts and the temporal courts have concurrent jurisdiction.

I would suggest that all matters of debt, whether due to or by the estates of deceadants, be cognizable in the temporal courts only, as in other cases of debts. The effect of the transfer in this respect would be to bring nearly all the cases into the Deemsster's Court.

I think that in suits against executors or administrators for debt the temporal court should have power, on cause shown, to suspend the issue of or stay execution, in order that time may be given to get in assets, or to institute proceedings for the administration of the estate.

(s) Legacies, &c. - Except when in connection with the administration of an estate in the Court of Chancery, or when trusts are involved, which trusts would be under the jurisdiction of the Court of Chancery, the ecclesiastical court may be said to have exclusive jurisdiction for enforcing payment of legacies and residues, so far as they affect the personal estate.

I would propose to transfer the jurisdiction of the ecclesiastical court to the temporal courts in suits for legacies and ascertain residues in like manner as in the matter of debts. The effect would be to remove to the Deemster's Court the greater number of cases arising under this head. At the same time, I am inclined to think that at present suits for legacies and ascertained residues or shares of residues are few in number.

In this case, as in the case of debts, the temporal court, possessed of a cause, should have power to suspend the issue of or stay execution, to give time to the executor or administrator to realize assets, or institute administration proceedings.

(t) Administration and winding-up estates. - Here the Chancery and Ecclesiastical Courts have concurrent jurisdiction, though suits for the administration of the personal estates of deceadants are not of very [325] frequent occurrence in the former court. The jurisdiction of the Ecclesiastical Court is confined to the person estate; and if it be insufficient for the payment of debts, and if there be real estate available, then as to such real estate the Chancery Court has jurisdiction. In this case, when the real estate is sought to be applied in aid (as it is termed) of the personal estate, the proceedings in the Chancery Court are usually on petition, after the personal estate has been wound up and distributed in the ecclesiastical court.

I think that all questions as to the accounts and distribution of an estate can be dealt in the Chancery Court more conveniently than in any other court. I would propose that this branch of the jurisdiction of the Ecclesiastical Court be transferred to the Chancery Court; the proceedings to be as a rule of a summary character; and the court having power to stay all orders of judgments against the personal representative - much in the same manner as is usual in the Ecclesiastical Court.

In many cases it may be possible to save considerable expense by by administering the real and personal estate together, when it appears clear that there is an insolvency. And in cases where the personal estate is first administered, and where there is a possibility that the real estate may have to be looked to, expense and litigation might be saved by citing the heir or divisee of the real estate to attend (if he think proper) the proceedings as to the personal estate, the accounts of which would thus finally disposed of. At present the heir or devisee, as such, is not a party to proceedings in the Ecclesiastical Court, and it is open for him in the subsequent proceedings in the Chancery Court as to the real estate to raise questions as to the accuracy of the accounts of the personal estate. The proceedings in the Ecclesiastical Court are considered prima facie evidence only as against the heir or devisee.

Under this head I ought to mention one matter which may possibly require amendment - namely the funeral expense in the case of an insolvent estate. It used to be considered as a kind of common law that in such a case, funeral expenses should not he the sum of 2l., late Manx currency, or 1l. 14s. 3½d. British. If the personal estate alone were insolvent, in the distribution in the Ecclesiastical Court the above sum only was allowed ; but if afterwards there were real estate sufficient to restore solvency, then the whole funeral expenses were allowed by the Chancery Court. 1l. 14s. 3½d. is a sum manifestly inadequate for the purpose, and it is unfair that the friends of a deceased person who, probably no having no knowledge of the state of his affairs, undertake a necessary duty, should suffer loss. I understand that recently the vicar-general has decided that the court has power to allow the necessary funeral expenses in an insolvent, though they may exceed 11. 14s. 3½d. Any doubt ought to be removed.

(u) Guardianship of Minors - This branch of the jurisdiction is not practically of much use. There need be no transfer of it. It is more convenient that the Chancery Court have the exclusive jurisdiction.

(v) Matrimonial Causes. - I have greater difficulty in making suggestions on this head than on any other. I think the proceedings must not be of a summary character, and that the present system of pleading ought to be substantially continued. In England a new court was constituted on the business being removed from the Ecclesiastical Court, and the same thing was done in Ireland on the disestablishment of the Church of Ireland. The English Court has more extensive powers than the Ecclesiastical Court had it can grant divorces a vinculo in cases of adultery. The Irish Court is practically limited to the jurisdiction which was formerly exercised by the Ecclesiastical Court.

Of course it is not necessary here to create a new court. The present business is very meagre. I should hardly think that there has been an average of two cases yearly for the last twenty years. I think the transfer had better be to the Chancery Court or Common Law Court. If to the former, it could be provided that the issues be tried before a deemster, with or without a jury. If to the latter, it might be provident that the petition be presented to a deemster at any time without waiting for the ordinary quarterly sittings of the court when actions are filed. And in this court it might be provided that the issues may, in some cases, be tried before the judge without a jury.

(w) Affiliation and Maintenance of Illegitimate Children. - I rather think there are a good many cases under this head in the Ecclesiastical Court, and many of the affiliation cases are contested. With respect to the recovery of moneys by the mother for lying-in expenses, sometimes an order for the payment of such expenses accompanies the adjudication as to the affiliation; sometimes such expenses are recovered in a separate suit, and sometimes they are combined with the expenses of maintenance in one suit. The latter expenses are generally recovered in suits for one half-year's maintenance - though I suppose it is within the power of' the court to give order for payment for shorter periods, the court having, by its control over the costs, power to cheek too frequent applications to the court.

In England, I believe, affiliation suits are heard before justices of the peace, and that, as to maintenance, one order fixing the amount to be paid from time to time for a certain period is made, thus avoiding the necessity of frequent suits to recover expenses of maintenance.

I would suggest that the transfer of jurisdiction be either to the Deemster's or High-Bailiff's Courts. I think this class of cases could be well dealt with by the high-bailiffs. 1 should also suggest that the English mode of ordering payment of expenses of maintenance be adopted.

It would be well to consider whether payment of moneys should be enforced by execution according to the ordinary practice of the Deemster's and High-Bailiff's Courts, or by order such as that made by the Ecclesiastical Court. 1 rather think that in this class of cases the latter course is to be preferred.

It is necessary, I think, to preserve a record of the adjudications and orders made. If the high-bailiffs have the jurisdiction, they ought, on the close of the case, transmit the proceedings to the Rolls Office.

I shall now refer to the matters which I have included under the division of ecclesiastical jurisdiction.

(e) Tithes. - The jurisdiction of the Ecclesiastical Court is simply with reference to the enforcing payment in kind when the tithe is not in dispute. I think this jurisdiction might well be transferred to the Deemster's Court. Cases seldom arise.

(f ) Church Rates. - I think the trial of questions as to the validity of Church rates may be left in the Ecclesiastical Court. These questions may involve matters of spiritual jurisdiction.

I would suggest that payment of rates be enforced as matters of debt in the Deemster's or High-Bailiff's Courts. If a question as to the validity of the rate be raised, the matter could be held over until the validity be tried.

I do not think that questions as to the validity of a rate or assessment under the Riot Act can be tried in the Ecclesiastical Court. The damages in case of dispute are to be ascertained by suit in the Court of Common Law, and disputes as to the assessment are to be tried in the Court of Exchequer.

At present it is only in case of non-disputed rates that payment is enforced by the Ecclesiastical Court. This jurisdiction of such court can be transferred in like manner as that with respect to the enforcement of the payment of Church rates.

[326] (g) Clergy Dues and Fees.
(h) Parish Clerks' Dues and Fees.
(i) Sumner's Dues and Fees.

I consider that the business under these several heads, so far as it relates to payments in money, may be transferred to the Deemster's and High-Bailiff's Courts as if such money payments were debts, and, so far as it relates to dues to be rendered in kind, to the Deemster's Court.

(j) Churchwardens. - As the admission of churchwardens must be considered as appertaining to the spiritual jurisdiction, I think it would be convenient to continue within the jurisdiction of the Ecclesiastical Court disputes is to the election of churchwardens, the decision of such court being as at present open to appeal to the staff of government. I would suggest the same course as to disputed elections of parish clerks.

(k) Faculties.
(l) Sequestration of Livings.

I consider that these two matters of jurisdiction, which are intimately connected with the government of the Church, ought to be continued in the Ecclesiastical Court.

(m) Glebe Houses, erection, &c. - This subject forms part of the statutable jurisdiction of the court; and it is one which I think ought to be, under any circumstances, transferred to another court. But to deal with the subject effectually the Act requires amendment. It ought not to be left to a clergyman to erect houses or buildings at his own will on glebe lands. The matter is is one which might very well be managed by Commissioners, but otherwise I consider that the Chancery Court would be best fitted to exercise the jurisdiction.

(n) Dilapidations. - The proceedings under this head are very similar to those in the Deemster's Court in cases of dispute between landlord and tenant, under covenants as to repairs, when the damages are capable of being ascertained by a view without evidence. The jury, by an examination of the premises to which the proceedings relate, estimate the amount to be paid by one party to the other. I would suggest, therefore, that the transfer of jurisdiction under this head be to the Deemster's Court. I consider that the law is to dilapidations requires revision. But in any case the summary proceedings which may be taken under the Act ought to extend to fences as well as houses and offices.

(o) Valuation of Crops on avoidance of Living. - This is a matter which is to be dealt with by a jury of survey, though probably a dispute would involve the taking some evidence as to the expenditure by the outgoing incumbent on seeds and labour. I would suggest that the jurisdiction under this head be transferred to the Deemster's Courts. I never heard of a case under the Act which confers this jurisdiction.

(p) Parish Registers. - I think this matter may properly be left to the jurisdiction of the Ecclesiastical Court.

I have now completed my remarks and recommendations as to the jurisdiction of the ecclesiastical courts, and I humbly submit them to your Excellency's consideration. But, before legislation be undertaken, I would respectfully suggest that the views of judicial members of the Council be ascertained. Some of them have had much more extensive experience of the working of the ecclesiastical courts than I have had. The vicar-general has been for fifteen years judge of those courts, and I am sure he would be well able to advise, especially as to the matters of spiritual jurisdiction, or connected therewith, which ought to be retained in the Ecclesiastical Court.

In some cases I have ventured to make statements as to the extent of business in the ecclesiastical courts. It is right that I should say that I have done so from my own personal observation merely. I have had no statistics to me. My views in this respect may be very erroneous, but correct information could easily be had in the Episcopal Registry.

I have the honour to be,
Sir,
Your obedient servant,

J. GELL

His Excellency the Lieut.-Governor.

Note, March 1882. - By the Ecclesiastical Residences and Dilapidations Act, 1879 (an Act passed by the Insular Legislature), the jurisdiction of the Ecclesiastical Court as to houses of residence of the clergy, and dilapidations, was abolished, and other provisions substituted.


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