barton against ashton and grey arch court easter term may that a proceed  against a parish clerk for deprivation ought to be plenary and by article if a  parish clerk be nominate by the parishioner he be a temporal officer whereas  if he be nominate by the incumbent he be a spiritual officer see further pp  post a appeal from Lincoln dr Simpson for Ashton and grey the cause arise on  revoke a licence and Henderson v French maul and Selwyn seem at first sight  and to a certain extent at least to militate against this exercise of  jurisdiction on the part of the ecclesiastical court while on the other hand  the high authority of sir George lee in this case and that of sir William win  in shackleton v Lord Barrymore prerog Hilary term and the more recent decision  of sir John nchol in Telford v Morrison prerog Michaelmas term be strong in  support of the contrary doctrine undoubted this jurisdiction whether find or  not have the sanction of ancient practice and be support by the venerable name  of Lynwood and Swinburne and other acknowledge oracle of the ecclesiastical  law see Lynwood b swim p S it be to be observe that in the case last decide  videlicet that of Telford v Morrison no prohibition be move for nor have any  appeal be interpose the administratrix submit to the jurisdiction of the  prerogative court and bring in a further inventory at the prayer of the  creditor lee er p grant to Luke Barton to be parish clerk of Louth in  Lincolnshire and grant a new licence to grey to be clerk the vestry agree to  indict Barton for embezzle the poor bread and the vicar be request by the  parishioner in vestry to revoke the appointment of Barton and he accord do  revoke Barton appointment and appoint grey in his stead citation against  Barton to show cause why his licence shall not be revoke and a new one grant  to grey upon the vicar new appointment lee the judge reject Barton allegation  and give sentence upon a viva voice examination against he dr Paul for Barton  Cause begin at a publichouse in may Louth be a prebendal jurisdiction and the  prebend refuse to revoke the licence and then they apply to the surrogate of  the chancellor of Lincoln the office of parish clerk be a freehold and he can  be deprive but by article Barton be call to show cause but they reject his  allegation and examine witness viva voice evidence for Ashton and grey order  of vestry that march order prosecution against Barton at the session for steal  the poor bread April that resolve that Barton for his misbehaviour be remove  by the vicar and the vicar do thereupon discharge Luke Barton and appoint  Edward grey parish clerk sign by Ashton the vicar and attest by several  parishioner Act that may spend at a inn allege that Ashton discharge Barton  for his scandalous behaviour in steal the poor bread and that Ashton then  appoint grey that Wilson prebendary at Louth refuse to revoke the licence upon  ashton presentation thereupon the surrogate of the chancellor grant a citation  Act that may in court citation return proctor exhibit proxy for Barton ashton  proctor allege Barton have behave ill to Ashton c exhibit vestry book and  produce and examine witness viva voice on the part of Ashton no libel  allegation or article lee objection take that these witness can be read dr  Simpson we insist that this be a summary proceed and therefore viva voice  examination be right a parish clerk be a temporal officer removable by the  vicar the licence be only a approbation the proceed be therefore summary it be  not a cause to deprive if it have be such there must have be article when a  parish clerk be nominate by the parish a mandamus will lie dr hay same side  the appeal be both from the sentence and from reject a allegation witness not  necessary it be sufficient to show that the vicar have revoke the appointment  of the clerk parish clerk be a temporal office a clerk name by the parishioner  by custom must be admit by the ordinary a Gaudeys case with dr Newman a  prohibition be grant against dr Newman chancellor of Canterbury for have by  sentence deprive a parish clerk who have be elect by the parishioner because  his election be against the canon and the court accord to the reporter hold  that one parish clerk be a mere layman and ought to be deprive by they that  put he in and no other and if the ecclesiastical court meddle with deprivation  of the parish clerk they incur a praemunire and the canon which will that the  parson shall have election of the parish clerk be mere void to take away the  custom that any parish have to elect he in another part of the case it be  state and it be resolve that if the parish clerk I presume the parish clerk so  elect misdemean himself in his office or in the church he may be sentence for  that in the ecclesiastical court and excommunicate but not to deprivation  Brownlow part the principal point rule in that case seem to be saint that the  custom of the realm can be take away but by act of parliament and idle that  prohibition lie as well after as before sentence this case be also report by  Hugh see also d roll Abr Gibs godb a Brownlow d part a clerk can be deprive by  the spiritual court but must be deprive lee er p by the power that lee appoint  he a licence be only a power to the clerk to sue for his due give he no right  to his office judgement sir george lee I be of opinion that Ashton and grey  shall have appeal from the decree of the prebend to the chancellor which be  not do and thereby the prebend refusal become absolute but if the chancellor  have a original jurisdiction he have proceed wrong in examine witness viva  voice that he ought to have proceed plenarily by article in order to deprive  and therefore these witness can not be read that no acquiescence or even  consent of the party can warrant a judge to proceed summary in the way he have  do in a criminal cause which be in its nature plenary that where a parish  clerk be appoint by the parishioner by custom he have be hold to be a temporal  officer and of that sort be the case cite by dr hay but where he be nominate  by the parson he be a spiritual officer and so it be hold in b r Geo in the  case of townsend and Thorpe a townsend v Thorpe Str in that case the court lie  down that a parish clerk be a ecclesiastical officer as to every thing but his  election but in a late case which be to be find in the same report that of  peak v bourn Str the court seem to have doubt whether this proposition have  not be too broad assume in townsend v Thorpe and strong incline that he be a  temporal officer as to the right of his office in aid of the proposition the  follow case be cite e   cro pal mark keb roll Abr pl Brownlow lev vent lev  salk godb old bendl lev Fitzherbert annuity Hugh parson law it be however to  be collect from the report that no positive opinion be give on this point the  only point decide in the case be that a parish clerk may execute his office  without the licence of the ordinary a where a consultation lee be grant to the  spiritual court to proceed to deprive a parish clerk that in this case the  clerk be nominate by the vicar he be subject to the spiritual court and they  ought to have proceed against he by article and that these summary proceed be  therefore null I accord pronounce for the appeal reverse the sentence below  and dismiss Barton from the suit with l cost