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Land annexed

curacy cannot

be leased by the curate, so

as to bind the successor, without the consent of ordinary and patron.

"to every perpetual curate who is not brought within the to a perpetual section by a subsequent statute, we should clearly see our way before we say that any perpetual curate is now within it. Whether the perpetual curate here has a fee simple, is a very difficult and disputable point; but it is not necessary for me to decide that. For, whether he have a fee simple or not, he has it not in right of his church. I do not think that 1 Geo. 1, stat. 2, c. 10, alters the estate or interest of a perpetual curate: it merely turns the land into a benefice, and makes the endowment indefeasible. But it does not extend the parochial domain: if the land was not held in right of the church before, it is not so now. As there is a curate, there must, of course, be a lay rector; the repair of the church, and other analogous duties, devolve on him. The history of the office of perpetual curate shows that he was a kind of vicar performing ministerial duties, and nothing more. His estate is not altered; and, whether or not he holds in fee, he has no inheritance in right of his church. I need not consider sect. 4 of stat. 32 Hen. 8, c. 28; but I agree that a perpetual curate, if brought within sect. 1, can be so only by a course of reasoning which would bring him within sect. 4. He could be within sect. 1 only as standing in the place of the vicar: if he does so stand, it is difficult to say that he is not within sect. 4. That would lead to the same conclusion as we now arrive at. Nothing that we have said contravenes Jenkinson v. Thomas (o), which was on the construction of a penal statute. It is too late now to say that the same rules of construction are to be applied to penal statutes as to others." Judgment for plaintiff (p).

Not within old

ties.

A perpetual curacy is not an ecclesiastical benefice, but law of plurali- was under the old law tenable with any other benefice, Weldon v. Green, 1772, adjudged by Sir George Hay in a suit by the patron against his clerk incumbent, who had accepted such a curacy after his institution and induction into the benefice, which this suit was intended to make void (q): as, by the ecclesiastical law, the acceptance of any ecclesiastical benefice, of ever so small value, without a dispensation, makes any former ecclesiastical benefice void (r).

Subject to dilapidations.

A perpetual curate is liable like any other beneficed

(0) 4 T. R. 665.

(p) 9 Ad. & El. 571. See also Doe d. Bramall v. Collinge, 7 C.B. 939; 13 Jur. 791 (1849).

(q) Ex relatione Lord Stowell to Mr. Serjeant Hill.

(~) 1 H. Bl. 425-431; 3 Taunton, 463.

clerks for dilapidations (s). For the oaths and declarations to be made, and the acts done by a perpetual curate before or upon his admission to his perpetual curacy, see Chap. XI., Sect. 7, infra.

Westminster.

There are some decided cases of which it is difficult to Herbert v. say whether they relate principally to the category of per- Dean, &c. of petual curates or of the curates of chapels of ease. For instance, Dean and Chapter of Westminster and Dr. Broderick, 1721. Upon the plague which happened in the year 1625, the churchyard of St. Margaret's, Westminster, not being large enough to bury the dead parishioners, the inhabitants of that part of that parish which resorted to the new chapel built there, petitioned the dean and chapter of Westminster (who were lords of the manor) to grant them a waste piece of ground to bury their dead, which accordingly the dean and chapter did under their seals, and it was solemnly consecrated. Afterwards, these inhabitants were at the charge of building a chapel there, having first obtained a royal licence for that purpose. The vestrymen and chapelwardens had, ever since the year 1653, elected the ministers who were to preach there; but now the dean and chapter of Westminster claimed a right to name the minister who should preach and do divine service in this chapel. On a bill brought to settle the right of nominating the parson of this chapel, by Macclesfield, Lord Chancellor : When the dean and chapter gave this ground they did not reserve any power to nominate the preacher, and the inhabitants of the chapelry were at the expense of building the chapel. Now the building and endowing of the church was what at the common law originally entitled the patron to the patronage. Here the inhabitants built the chapel, and (as appears) by the pew money have endowed it. It is not reasonable to say that the dean and chapter, as parson appropriate, have a right to supply every chapel built within the parish with a preacher. It would be an expense and hardship upon them to be obliged so to do, neither ought it to be at their election to supply it. For suppose I build a chapel in my house for myself or my next neighbour, can the parson name one to preach there? I think not. And it will make no alteration if the chapel which I build in my own ground be intended for the use of twenty neighbours besides my own family. But afterwards, on the hearing, the court decreed that the right of nomination of the

P.

(8) Mason v. Lambert (1848), 12 Q. B. 795; 12 Jur. 1045.

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Herbert v.

Westminster.

Per

minister did belong to the dean and chapter (t). Dean, &c. of Lord Northington, Ch.: Whenever a chapel of ease is erected, the incumbent of the mother church is entitled to nominate the minister, unless there is a special agreement to the contrary which gives a compensation to the incumbent of the mother church, or a prescription in which everything is presumed to have been proper (u). And in that case, though the chapel was erected and endowed by a grant of lands from the lord and freeholders of a manor, and though the right of nomination was given by the archbishop in the deed of consecration to the inhabitants, and the vicar of the mother church at the time declared he had no right to nominate, and though the inhabitants had repaired and nominated for ninety years, his lordship decreed the right of nomination to belong to the vicar, as there was no agreement by deed between the bishop, patron, and incumbent, nor evidence of a prescriptive title in the inhabitants.

Right of nomination.

Augmented perpetual curacies.

There are various other cases in which, according to the special circumstances proved, the inhabitants of a parish have or have not been holden to be entitled to nominate the perpetual curate or the minister of a particular chapel (v).

Dr. Burn observes that, with regard to such of the perpetual curacies as have been augmented by the governors of Queen Anne's bounty, there is no doubt but by the act of parliament here next following, the curates thereof are not removable at pleasure. That is, by 1 Geo. 1, stat. 2, c. 10, s. 4, which makes all augmented churches perpetual cures and benefices and the ministers thereof bodies politic.

And as to the rest, it should seem that such curacies are beneficia ecclesiastica. Lord Coke says, beneficium is a large word, and is taken for any ecclesiastical promotion or spiritual living whatever (x). And in the case of Moseley v. Warburton, it was said by the court that a prebend is an ecclesiastical benefice (y). And Dr. Gibson, observing upon the case of Wood v. Birch, where it was held that the curate was removable at the will of the parson, and consequently could not prescribe, says this is true of an

(t) 1 P. Wms. 773.

(u) Dixon v. Kershaw and Others, Amb. 528.

(v) Faulkner v. Elger, 4 B. & C. 449; Arnold v. Rolt, 5 Bing. 316; Kennet's Par. Ant. 589; Att.-Gen. v. Forster, 10 Vesey, 335; Farn

worth v. Bishop of Chester, 4 B. & C. 555; Att.-Gen. v. Parker, 3 Atk. 577; Att.-Gen. v. Newcombe,

14 Ves. 1.

(x) 2 Inst. 29.
(y) 1 Salk. 321.

assistant curate to a resident rector or vicar, but not of a curate properly speaking, who has the curam animarum committed to him pro tempore by the bishop in the absence of the incumbent (z). And in the case of perpetual curacies in particular, the Court of King's Bench will grant a mandamus to the bishop to admit and licence a curate, which implies a right in the person nominated to such office or promotion; as was done by the court in the case of the dean and chapter of Carlisle with respect to the curacy of St. Cuthberts.

It only implies a right until the will is determined; for another at will may have a mandamus (a).

The reasons which have sometimes induced the Court of King's Bench to refuse a mandamus in this case have arisen from the nature of that writ. But that a perpetual curacy was to be considered as a benefice with cure of souls, and that the curate must therefore have obtained the bishop's licence, and subscribe the Thirty-nine Articles and declaration of conformity, before he can be admitted to his benefice and maintain an action of money had and received for the profits of it, was the opinion of the Court of King's Bench in Powel v. Milbank (b). This case was afterwards litigated in the Court of Common Pleas.

declarations.

Statute of
Geo. 1, c. 10,
with respect to

augmented.

By the late act for Clerical Subscriptions (28 & 29 Vict. Present subc. 122), ss. 5, 7, 9, the same oaths and declarations are scriptions and required of one about to be licensed to a perpetual curacy as of one about to be instituted to a rectory or vicarage. The 4th section of 1 Geo. 1, stat. 2, c. 10, referred to above is as follows in substance:-" Whereas the late Queen Anne's bounty to the poor clergy was intended to extend not chapels of ease only to parsons and vicars who came in by presentation or and perpetual collation, institution, and induction, but likewise to such curacies ministers who came in by donation, or are only stipendiary preachers or curates, most of which are not corporations, nor have a legal succession, and therefore are incapable of taking a grant or conveyance of such perpetual augmentation as is intended by the said bounty; and in many places it would be in the power of the donor, impropriator, parson or vicar to withdraw the allowance which was before paid to the curate or minister serving the cure; or in case of a chapelry, the incumbent of the mother church might refuse to employ a curate and officiate there himself, and take the benefit of the augmentation, whereby the maintenance of the curate would be sunk instead of being aug(*) Gibs. 896. (b) 1 T. R. 399. (a) Salk. 428, 429.

Statute of

1 Geo. 1, c. 10,

with respect to chapels of ease and perpetual

curacies augmented.

Any augmented church or chapel having a district to be a perpetual curacy, and

the minister to

be an incum

bent with perpetual succession, &c., and

to have

exclusive cure

of souls within the district.

mented;" it is enacted, that all such churches, curacies, or chapels which shall be augmented by the governors of the said bounty, shall be from thenceforth perpetual cures and benefices, and the ministers duly nominated and licensed thereunto shall be in law bodies politic and corporate, and have perpetual succession, and be capable to take in perpetuity; and the impropriators or patrons of any augmented churches or donatives, and the rectors and vicars of the mother churches whereunto such augmented curacy or chapel doth appertain, shall be excluded from receiving any profit by such augmentation, and shall pay to the ministers officiating such annual and other pensions and salaries, which by ancient custom or otherwise of right and not of bounty they were before obliged to pay.

And by sect. 6, for continuing the succession in such augmented cures, hereby made perpetual cures and benefices, and that the same may be duly and constantly served, if they shall be suffered to remain void for six months, they shall lapse in like manner as presentative livings. By 2 & 3 Vict. c. 49, s. 2, "In the case of any church or chapel which has already been or hereafter may be augmented by the said governors of the Bounty of Queen Anne, and for or to which any district chapelry has already been or hereafter may be assigned, whether before or after such augmentation under the provisions of the said recited acts or some of them, such church or chapel, from and after such augmentation, and the assignment of such district chapelry, shall be and is hereby declared to be a perpetual curacy and benefice, and the minister duly nominated and licensed thereto, and his successors, shall not be a stipendiary curate, but shall be and esteemed in law to be a perpetual curate, and a body politic and corporate, with perpetual succession, and may receive and take to himself and his successors all such lands, tenements, tithes, rentcharges, and hereditaments as shall be granted unto or purchased for him or them by the said governors of the Bounty of Queen Anne or otherwise; and such perpetual curate shall thenceforth have within the district chapelry so assigned as aforesaid sole and exclusive cure of souls, and shall not be in anywise subject to the control or interference of the rector, vicar, or minister of the parish or place from which such district chapelry shall have been taken, any law or statute to the contrary notwithstanding." Sect. 5 saves all the powers and privileges given by 1 Geo. 1, stat. 2, c. 10.

By these statutes the augmented chapels being expressly made perpetual cures and benefices, if the incumbents of

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