Judgment — Sir  George  Lee. I  was  of  opinion  that  no  fee  was  due  by  law
where  no  service  was  done ;  anciently  no  fee  was  demandable  for  marriage,  but  only
a  voluntary  offering  was  made  of  what  sum  the  party  married  thought  fit  to  give,
which  appears  from  Lindw. lib. 3,  tit. 16,  cap. "Quia  quidam,"  in  these  words :  "Quia
quidam  maledictionis  filii  in  nubentium  solemniis,  purificationibus  mulierum,  mor-
tuorum  exequiis,  et  aliis  in  quibus  ipse  Dominus  in  ministrorum  suorum  personis
solebat  oblationum  libamine  populariter  honorari  ad  unius  denarii  vel  alterius  modicre
quantitatis  oblationem,  populi  devotionem  restringere  moliti  sunt,  residuum  oblationis
fidelium  suis  pro  libito  vel  alienis  usibus  multoties  applicantes ; "  therefore  excom-
municating the  instigators,  and  Lindw. Gloss,  verb. Nubentium  solemniis,  sets  forth
the  times  when  it  was  lawful  to  marry,  and  when  not ;  and  therefore  the  Constitution
must  speak  of  off"erings  for  marriages  actually  performed. If  then  no  law  has
estJiblished  a  fee  for  actual  marriage,  it  can  be  demandable  only  by  custom,  and
accordingly  Watson's  Clergyman's  Law,  chap. 52,  p. 572,  says  "Accustomary  pay-
ments for  marriages,  christenings,  churchings,  and  burials,  properly  belong  to  the
parson  or  vicar  of  the  church  where  they  are  made,  and  are  recoverable  by  law  where
there  is  a  custom  for  the  payment  of  certain  sums  upon  the  performance  of  these
several  duties  ; "  and  in  chap. 53,  p. 575,  "  un-[394]-der  offerings,  called  also  oblations
and  obventions,  are  comprehended  all  customary  payments  for  marriages,  christenings,
churchings,  and  burials,  and  have  been,  and  yet  are  recoverable  in  the  Ecclesiastical
Court,  as  is  notorious."

And  notwithstanding  the  statute  of  Circumspecte  agatis,  and  of  2  &  3  Edw. 6  if
the  custom  is  denied,  a  prohibition  will  go  to  try  it  at  common  law,  and  it  must  be
immemorial ;  and  so  it  was  held  by  the  whole  Court  of  King's  Bench,  Hill. 7  Geo. 