Philip Vernon Smith

1. The legal possessions and revenues of the benefice of an ancient parish consist of (i.) the church and churchyard (subject to the use of both for the benefit of the people), (ii.) the parsonage house and glebe lands and buildings, (iii.) the tithe, (iv.) any modern endowments, including perpetual annuities granted by the Ecclesiastical Commissioners, (v.) ordinary dues and offerings, (vi.) mortuaries, and (vii.) fees; and some of these possessions and revenues are also attached to the benefice of a new ecclesiastical parish, which has, moreover, in certain cases a further source of revenue in (viii.) pew-rents.

2. The incumbent for the time being, whether of an ancient or new parish, has a freehold interest for his life, if he so long remains incumbent, in the possessions of the benefice, and for the purpose of holding them is a corporation sole, with a continuous succession in himself and all future incumbents. As such, he is subject to the general laws respecting corporations, and also to those which regulate the acquisition and holding of landed property for charitable purposes, except so far as the law has made special exemptions in his favour. Accordingly, except to the extent expressly permitted by statute, he cannot in his corporate capacity, with perpetual devolution to his successors in office, (a) acquire or hold additional landed property without a licence in mortmain or in a manner inconsistent with the provisions of the Mortmain and Charitable Uses Acts, 1888 and 1891,[317] or (b) hold landed property upon any trust or for any purpose other than as part of the possessions of the benefice.[318]

3. The rights of an incumbent in the church and churchyard differ according as the benefice is an ancient or a new parish, and in the former case according as it is a rectory or a vicarage. The freehold of the whole church in an ancient parish (except where a chapel or aisle or a pew belongs to a private individual), and of the churchyard, belongs to the rector, whether he be the incumbent or not;[319] and the chancel is repairable by him, except where there is a custom for the parishioners to keep it in repair. His duty in this respect can be enforced by suit in the ecclesiastical court, and the churchwardens cannot safely repair the chancel themselves and then sue him for the cost.[320] But the incumbent and churchwardens (subject to the rights of the bishop) have the possession and custody of the whole church, including the chancel, and a lay rector cannot interfere with their proper use of it; nor can any person claim to enter it, when not open for Divine service, without their permission.[321] And the incumbent has the paramount right to keep the keys of the church and to control the use of the organ and the ringing of the bells.[322] But ringers are not liable to criminal proceedings in the ecclesiastical court for ringing the church bells without his consent, unless it was done against his express desire.[323] Moreover, Canon 88 contemplates that the churchwardens and sidesmen should have some control over the bellringing; for it enjoins upon them not to allow the bells to be rung superstitiously upon holy-days or eves abrogated by the Prayer Book, nor at any other times without good cause to be allowed by the incumbent and by themselves. And as regards the churchyard, unless there is a special provision to the contrary in connection with his endowment, a vicar, as against the rector impropriate, is only entitled to the possession of the churchyard for spiritual purposes. The rector has a right to the profits of the soil, and he or his tenants can depasture it with sheep.[324] But a rector is only at liberty to fell the trees in the churchyard when they are required for the repair of the chancel, or when the body of the church requires repair and he voluntarily allows the parishioners to use them for the purpose.[325] In new parishes the freehold of the church and churchyard and of the vaults belonging thereto is vested in the incumbent, except where it has been vested in the vestry under a local Act and they have not consented to part with it.[326] Neither incumbents nor rectors impropriate are liable in respect of the church and churchyard to rates, nor to contributions towards the expense of making and paving new streets.[327] So, too, an incumbent was held not liable as owner for expenses incurred by a local authority under a statute in removing a part of the church which had become a dangerous structure.[328]

4. The rights of the incumbent are, moreover, qualified and controlled by the rights of the bishop on the one hand and of the parishioners on the other. He has a general authority from the bishop to decide as to allowing or disallowing the erection in the churchyard of tombstones with inscriptions, not being of an unusual character in respect of size or otherwise, as well as glass shades for wreaths and other additions to the contents of the churchyard.[329] But any person interested may appeal against his decision to the bishop's court, which has power to determine the matter, subject to appeal to the higher tribunals.[330] He cannot, however, authorise the erection of monuments or tablets in the church itself, nor monuments of abnormal size in the churchyard. These, as well as other additions to or alterations in the church or churchyard, require the sanction of a faculty either from the bishop's consistory court or, if there refused, from the provincial court or the Judicial Committee of the Privy Council. A faculty for the purpose will, in proper cases, be granted on the application of the incumbent and churchwardens supported by a resolution of the vestry.[331] If there is a rector impropriate, his consent will be necessary to any proposed change in the chancel. As already noticed (Ch. VII. § 1 above), the incumbent cannot validly, on his own authority, sell grave spaces in perpetuity in the churchyard; and a faculty will not be granted for a vault or space for exclusive burial unless it is clearly improbable that it will inconveniently diminish the available ground for the burial of the parishioners.[332] It is an offence on the part of any one to remove earth and bones from the churchyard[333] or to desecrate it in any other way; but a faculty will in a proper case be granted for diverting the course of an ancient footpath through a churchyard when necessary for the enlargement of the church;[334] and for throwing a portion of a churchyard, which is not required for interments, into a highway.[335] A wall of a churchyard which has been wilfully pulled down does not require a faculty for its restoration.[336] A faculty has been granted to secure for ninety-nine years an easement of light and air to the lower windows of an adjoining house through the railings of a churchyard, on payment of an annual rent of £22 to the rector for the time being.[337] Where a churchyard or other burial ground has been closed or is no longer used for burials, a faculty may be obtained for laying it out as a garden with footpaths, and removing the tombstones and placing them against the walls of the church or churchyard;[338] but the erection upon it of any building, except for the purpose of enlarging a church, chapel, or other place of worship, is unlawful, and no faculty can be granted for it.[339]

5. Every ancient church ought of right to have glebe as well as a manse or parsonage house attached to it.[340] In a parish where there is an impropriate rectory and a vicarage, glebe may be attached to both or either. Rectorial glebe is not liable to pay vicarial tithe to the vicar, nor is vicarial glebe liable to rectorial tithe to the rector.[341] Since the interest of the incumbent in the house of residence and glebe is limited to his life or tenure of the benefice, he cannot deal with them in a way prejudicial to the rights of the patron or of his successors in the incumbency. His powers of selling, exchanging, and leasing are strictly defined by statute. He must not commit what is technically called "waste"—that is to say, any spoiling or destruction of houses, gardens, or other glebe of the benefice, or of the trees thereon, to the detriment of his successors. In cultivating the glebe lands himself, he is not restricted to any particular mode of cultivation, nor accountable to his successors for neglect or mismanagement.[342] But he must not cut down trees, except so far as they may be required for the repairs of the buildings of the benefice, including the chancel of the church, if he is the rector and is liable to repair it.[343] He may not on his own account open mines, quarries, or gravel-pits under or upon the glebe land, nor work those which have been unlawfully opened; but he may work those which are already lawfully open;[344] and even as regards minerals or gravel unlawfully taken by him, if he is not restrained at the time, his successor cannot maintain an action for damage against his representatives after his death.[345]

6. In modern times the provision of parsonage houses and of other necessary buildings on glebe lands, and the repairs of chancels liable to be repaired by rectors, have been facilitated by special legislation. In 1777 and 1781 the Gilbert Acts were passed,[346] which, as amended by Acts of 1826 and 1838,[347] enabled an incumbent, with the consent of the bishop and patron, or, during a vacancy in the living, the bishop, to borrow money for the purpose of providing a parsonage house, or rebuilding it in case of its having become ruinous, upon the security of a mortgage of the income of the benefice for thirty-five years. The loan was not to exceed the amount of the gross net income of the benefice, and was to be repayable with interest by thirty yearly instalments. The Governors of Queen Anne's Bounty were empowered to lend money for the purposes of the Acts; and, in practice, the loans are generally obtained from them. A later statute[348] extended these provisions to the purchase of land convenient to be used with the parsonage house or existing glebe land, and to the repair of the chancel in cases where it is repairable by the incumbent, and to the building or improving of farm houses or buildings or labourers' dwelling-houses on the glebe land; and subsequent Acts have extended the time for repayment of the loans.[349] Another series of enactments has specially sanctioned gifts and bequests for providing parsonage houses and glebe;[350] and under a third series incumbents are empowered to sell the parsonage houses and glebe lands of benefices, or exchange them for others of greater value or more conveniently situated, and to acquire new parsonage houses and additional glebe lands.[351]

7. When an incumbent has a licence from the bishop to reside elsewhere than in the parsonage house, he may let the house, subject to an obligation on the part of the tenant to give up possession on the bishop ordering the incumbent to resume residence therein.[352]

8. An incumbent may either himself farm his glebe (see Ch. 1. § 16 above) or let it to tenants. The tenants, however, will have no rights against his successors unless the leases to them are made in accordance with the statutory provisions for the purpose. These provisions enable an incumbent, subject to certain restrictions and with the consent of the bishop and patron, to let the glebe on farming leases for fourteen years or, in some cases, for twenty years,[353] and under special conditions to grant leases of it for longer periods for building and mining purposes.[354]

9. An incumbent, as having an interest in the parsonage house and other buildings of the benefice only during his incumbency, was always bound to keep them in repair for the benefit of his successors.[355] His exact liability in this respect and also in respect of insuring against fire is now regulated by the Ecclesiastical Dilapidations Act, 1871.[356]

10. Under this Act diocesan surveyors are appointed in every diocese to inspect and report as to requisite repairs and to certify as to their due execution. The proceedings vary according as they take place (a) upon a vacancy in the benefice, or (b) at other times. But in either case, after they have taken place, a certificate of the diocesan surveyor that the requisite works have been completed in the parsonage house and other buildings (including walls and fences, and, in the case of a rector liable for its repair, the chancel of the church) will (in the absence of wilful waste or of loss or damage by fire where the incumbent has not kept up a sufficient fire insurance) confer exemption from liability for dilapidations, in respect of those buildings, for the next five years.

11. (a) Within three months after a benefice has become vacant,[357] unless the late incumbent was for the time being free, in respect of all the buildings of the benefice, from liability to dilapidations, the diocesan surveyor will inspect the buildings or such of them as have not been included in the exempting certificate, and will report to the bishop what works and what sum, if any, are required for making good the dilapidations. Either the new incumbent, or the late incumbent or his executors or administrators, may send to the bishop objections to the report, and the bishop will make an order specifying the repairs to which the late incumbent or his estate is liable and the cost of them. The amount of the cost thereupon becomes a debt from the late incumbent or his estate to the new incumbent and may be recovered as such.[358] Any money received in respect of it is to be paid to the Governors of Queen Anne's Bounty, and they, with the consent of the bishop and patron, may lend on the security of the possessions of the benefice, any part of the cost which they have not received from the new incumbent. Any additional balance required to make up the total amount of the cost of the repairs must be paid to them by the new incumbent, and in case of non-payment may be raised by sequestration of the profits of the benefice. All the sums received or lent by them are to be placed in the first instance to a dilapidation account. If a vacancy occurs in a benefice between the time of an inspection of the buildings and the certifying of the completion of the works, the former incumbent or his estate will be liable for any portion of the cost of the required repairs remaining unpaid by him, as a debt due to the new incumbent. But the new incumbent, whether he recovers that portion or not, will be under the same liability to pay for the outstanding cost of the repairs as the former incumbent would have been had he continued to hold the benefice; and any amount which he fails to recover from the former incumbent or his estate may with the consent of the bishop and patron be lent to him by the Governors of Queen Anne's Bounty on the security of the profits of the benefice.

12.(b) On a written complaint of the archdeacon, the rural dean, or the patron, that the buildings of a benefice are dilapidated, or at the request of the incumbent himself, the bishop, although no vacancy has occurred, may direct the diocesan surveyor to inspect the buildings, unless, in the case of a complaint on the subject, the incumbent is himself ready to put the buildings in proper repair, and the bishop is satisfied that this is actually done. Such inspection may also be directed within six months after the sequestration of a benefice, and is to be renewed in every fifth year while the sequestration continues. The surveyor, in like manner as in the case of a vacancy, will report to the bishop the works needed and their probable cost. The incumbent or the sequestrator may state objections to the report, and the bishop will give his decision in writing. If the benefice is not under sequestration, the Governors of Queen Anne's Bounty may, with the consent of the bishop and patron, lend on the security of the possessions of the benefice the whole or any part of the cost of the required works. The amount of the loan will be placed to a Dilapidation Account, and it will be the duty of the incumbent to execute the required works in the prescribed manner. If he fails to do so, the cost may be raised by sequestration of the benefice, and the same course will be taken as if that had occurred before the dilapidation proceedings had commenced. In the case of a benefice under sequestration, the cost of the required works is to be a charge on the income of the benefice which comes into the hands of the sequestrator, and out of that income, after providing for the performance of the duties of the benefice, he is to pay the amount of the cost to the Governors of Queen Anne's Bounty, to be placed by them to a dilapidation account. The proceedings are not to be affected by any vacancy occurring in the benefice before the works are executed, except so far as modification may be made in them as the result of the report of the surveyor after his inspection consequent on the vacancy, and except that if the benefice was under sequestration, any unexpended amount standing to the dilapidation account of the sequestrator is to be carried to the dilapidation account of the new incumbent in reduction of the amount payable by the former incumbent or his estate. A sequestrator who spends more on the repairs than is authorised by the surveyor's report is personally liable for the excess.[359]

13. When the surveyor certifies from time to time, until the whole of the repairs have been executed, that a certain sum ought to be paid in respect of the required works, such sum is payable out of the money standing to the dilapidation account, and when all this money is exhausted, must be paid by the incumbent himself. It is his duty to cause the repairs to be executed, unless with the consent of the bishop and patron he decides to rebuild or to alter or remodel any structure. In that case, if the repairs are superseded or rendered unnecessary, the money standing to the dilapidation account may be applied towards the cost of the new work.

14. It is the duty of an incumbent to keep the parsonage house and other buildings of the benefice (including the chancel of the church in the case of a rector liable for its repairs) insured against loss or damage by fire to the satisfaction of the Governors of Queen Anne's Bounty, in the joint names of the incumbent and themselves, in at least three-fifths of the value of the buildings; and the receipt for the current year's premium in respect of the insurance must be exhibited at the next visitation of the bishop or archdeacon. The money received in respect of any destruction or damage of a building which the insurance office does not cause to be reinstated at its own expense, is to be paid to Queen Anne's Bounty, and dealt with in the same manner as money standing to a dilapidation account. If the building cannot be reinstated for the amount for which it was insured, the diocesan surveyor is to certify the additional sum required for the purpose, with the same liberty to the incumbent or sequestrator to object and the same final order of the bishop as in the case of a report as to dilapidations. The prescribed sum is to be paid to Queen Anne's Bounty, if the benefice is not sequestrated, by the incumbent (with power to the bishop, in default of payment, to raise the amount by sequestration of the benefice), or, if the benefice is under sequestration, by the sequestrator, in the same way as dilapidation money is payable by the incumbent or the sequestrator, as the case may be; and the money so paid to Queen Anne's Bounty will be paid out on certificates of the surveyor during the progress of the works, as in the case of dilapidation repairs.[360]

15. The provisions of the Act do not apply to buildings let on lease where the lessee is liable to insure, rebuild, and repair; but the diocesan surveyor has power to inspect any such buildings.[361]

16. Although there is no positive rule of law on the subject, an incumbent should, as a matter of prudence, obtain a faculty, or at any rate the written consent of the bishop and patron, before making any substantial alteration in the parsonage house or other buildings of the benefice. If he fails to do so, he proceeds at the risk of himself and his estate; and if his action is afterwards challenged, it will lie upon him or his executors to prove that it was justifiable.[362] The precaution should never be omitted in the case of removing a building without erecting another in its place. With regard to any building belonging to or forming part of a parsonage house which appears to be unnecessary, the bishop, on the application of the incumbent, and with the written consent of the patron, is expressly empowered to authorise its removal; and any net proceeds of the removal will be applied to the improvement of the benefice in such manner as the bishop and patron may agree.[363] The foregoing remarks do not apply to structures such as movable sheds or garden frames, which are not regarded in law as affixed to the soil and therefore hereditaments like the land on which they stand, nor to fancy structures with which the succeeding incumbents ought not to be burdened.[364]

17. Upon the vacation of a benefice, the incumbent or his estate ceases to be entitled to the income and house of residence of the benefice. But on the death of a married incumbent who was at the time occupying the house of residence, his widow has a right to remain in occupation for two months after his death;[365] and in every case, until the question of dilapidations is settled, the late incumbent or his executors or administrators may, at reasonable hours, with a surveyor, enter upon the premises of the vacated benefice.[366] If the vacancy occurs otherwise than by resignation, the late incumbent or his executors or administrators have a right to emblements, that is to say, to reap and enjoy any crops which he sowed before the vacancy occurred but which have not ripened until afterwards.[367] Where, however, the glebe land is not cultivated by the incumbent himself, but is let to tenants, the current rents are in all cases apportionable between the late incumbent, or his estate, and the new incumbent, up to and from the date of the occurrence of the vacancy; and the same rule applies to tithe rentcharge and to any other income from endowments.[368] Subject to these rights and to provision being made out of the revenue of the benefice for the service of the cure during the vacancy,[369] the new incumbent, on his admission, becomes entitled to the temporalities of the benefice as from the date when the vacancy took place.

18. Under the Tithe Act, 1836,[370] and various amending Acts, a tithe commutation rentcharge has now been substituted for all the ancient tithes, except tithes of fish or of fishing, personal tithes (other than the tithes of mills), mineral tithes, payments instead of tithes within the City of London, permanent rentcharges or other payments in lieu of tithes calculated on the rent or value of houses or lands in a city or town under a custom or private Act, and tithes commuted or extinguished under a previous Act. And any of the excepted tithes and payments, as well as Easter offerings, mortuaries, and surplice fees, could be brought within the operation of the Acts by special provisions inserted in the parochial agreements framed under the Acts and approved by the Tithe Commissioners.[371] Where the rectory is impropriate and there is a vicarage, the tithe commutation rentcharge payable to the rector has been assessed in lieu of the rectorial or great tithes, namely, those on corn, hay and wood, and the rentcharge payable to the vicar has been assessed in lieu of the vicarial or small tithes, those on fruits, herbs, live stock, poultry, milk, cheese, and eggs. Under the earlier Acts an extraordinary tithe rentcharge was leviable on lands for the time being cultivated as hop gardens, orchards, fruit plantations, and market gardens; but this special rentcharge has since been abolished, the lands which had been in practice liable to it having been made liable to a fixed additional rentcharge instead.[372] The ordinary tithe rentcharge varies with the average prices of wheat, barley, and oats during the preceding seven years. It was originally assessed on the footing that £33, 6s. 8d. would buy 94.96 bushels of wheat, or 168.42 bushels of barley, or 242.42 bushels of oats; so that £100 of rentcharge was equivalent to those amounts of the three grains. The actual amount of £100 nominal rentcharge in any year is accordingly the sum which would buy those amounts of the three grains at the septennial average prices published in the London Gazette at the beginning of the year.[373]

19. Tithe commutation rentcharge is payable half-yearly by the owner of the land on which it is assessed. If it is in arrear for more than three months, it may be recovered on application to the county court, (a) if the owner is in occupation of the land, by distress, or, if there is no sufficient distress, by proceedings to obtain possession of the land under section 82 of the Tithe Act, 1836, and (b) in other cases, by the appointment of a receiver of the rents and profits of the land.[374] Special facilities are given for the recovery of tithe rentcharge payable in respect of land in the hands of a railway company which is in arrear for twenty-one days or upwards, by distress upon the goods of the company on any part of its line.[375]

20. The dues payable to the clergy are of two kinds: (i.) ordinary dues and offerings, and (ii.) dues or fees payable for special services or special concessions. Both kinds vary considerably by law or custom in different places, and, as regards the former, an Act of 1548 provides that all persons who by the laws or customs of the realm ought so to do, shall yearly pay their offerings to the parson or vicar of the parish in which they dwell at the accustomed four offering days, or in default thereof at the next following Easter. Generally speaking, Easter offerings are the only offerings of this description which are still payable.[376] They are enjoined by the rubric at the end of the Communion Office and are due of right, and are recoverable under the Small Tithes Recovery Act, 1696,[377] before two justices, subject to an appeal to quarter sessions. Their legal amount, in the absence of custom to the contrary, is twopence per head, or, in London, fourpence per house.[378] But these sums were fixed when the value of money and the wealth of the country were very different from what they are at present; and it is reasonable that voluntary Easter offerings should now be made on quite another scale. The vicar of a new ecclesiastical parish has the same right to Easter offerings as the incumbent of the ancient parish out of which it was carved.[379]

21. Mortuaries or offerings at the time of a person's death are due in certain places by custom, and, where so due, are recoverable in the ecclesiastical courts. But by an Act of 1529, they were limited to 10s. as the maximum and to small amounts where the deceased died worth less than £40 in movable goods, none being payable if the deceased was not a householder and worth at least ten marks in movable goods, and a penalty was attached to demanding an illegal amount.[380]

22. Dues or fees payable for special services or concessions have already been mentioned in connection with churchings, marriages and burials, including in the last mentioned category those payable for the funeral itself, for the grave, and for any tombstone or monument to be erected upon it.[381]

23. In some cases the incumbent's stipend depends wholly or in part upon pew rents. They can only legally be taken where authorised by a special or general Act of Parliament. In some churches they have been sanctioned by a special Act, which prescribes their application, and the proportion (if any) which shall go towards the incumbent's stipend. They are also sanctioned in certain cases by the Church Building Acts and New Parishes Acts. Where pew rents are fixed under these Acts, the incumbent is entitled to such portion of them as may be settled in the manner therein prescribed;[382] and he can recover that portion from the churchwardens by an action at law.[383] An incumbent, who has a vote for a parliamentary borough as a resident therein, and who receives for his own use part of the pew rents of the church, which is also situate in the borough, but which is his freehold, has a parliamentary vote for the county as a freeholder, since he does not occupy the church within the meaning of 2 & 3 Will. 4, c. 45, s. 24.[384]

24. The incumbents of certain ancient benefices above the yearly value of £50 are liable to the payment to Queen Anne's Bounty of first fruits in the first year of their incumbency and tenths in succeeding years. The first fruits are the amount of one year's value of the benefice as recorded in the valor beneficiorum or King's Books compiled in the sixteenth century, and the tenths are one-tenth of the same amount. They were originally paid to the Pope, and were annexed by Henry VIII. to the Crown, until Queen Anne bestowed them on the Bounty which bears her name, to form a fund for the augmentation of poor livings. Where they are payable, first fruits are due three months after admission to the benefice, and tenths annually at Christmas. An incumbent is only chargeable with the whole of the first fruits if he remains incumbent at the end of two years from the occurrence of the vacancy which he was appointed to fill. He is liable to none, or to one-fourth, one-half or three-fourths, if he dies or is removed within the first, second, third, or fourth half-year after that event.[385] Two Acts passed in 1706 and 1707[386] discharged from the payment of first fruits and tenths all benefices which at the time were under the annual value of £50, except that those of which the tenths had been previously granted away by the Crown to other parties were still to continue liable to tenths only. Other exemptions have been granted in favour of particular benefices at different times; and in 1837, out of 10,498 benefices with and without cure of souls, only 4898 remained liable to tenths, 4500 of that number being also liable to first fruits.[387]

25. Income or property tax is payable by an incumbent under schedule (A) in respect of his house of residence, glebe lands, and tithe rentcharge.[388] In respect of any landed property (other than a house of residence) actually occupied by him, income tax is also payable on one-third of its annual value, except that if he occupies it for the sole purpose of husbandry and can show that his profits fell short of that one-third, the tax is payable on the actual amount of the profits.[389] The tax is also payable by him in respect of all other stipend, fees, perquisites and profits accruing to him by reason of his incumbency. But in estimating these a clergyman or other minister of religion may deduct money paid and expenses incurred wholly, exclusively, and necessarily in the performance of his ministerial duties. In two Scotch cases these deductions were held to include the expense of visiting members of his congregation, attending church meetings enjoined on him as part of his duty, outlay on stationery, and communion expenses; but no deduction was allowed in respect of part of the manse used as an office for his clerical business, or for the cost of books or for a voluntary contribution made by him towards the stipend of an assistant minister.[390] There is sometimes a difficulty in determining whether sums of money which are granted or given to a clergyman, but are not part of his legal or recognised stipend, are taxable perquisites or profits accruing to him by reason of his office or not. The true test, namely, whether the gift is made to him in respect of his office or is personal to himself, is not easy to apply in particular instances. In another Scotch case it was held that a voluntary contribution made by parishioners to their minister, and received by him in respect of the discharge of the duties of his office, was taxable.[391] A grant to a curate by the Curates' Augmentation Fund in recognition of upwards of fifteen years' faithful service is not taxable, not being made in respect of performing present duties. But a grant to an incumbent from the Queen Victoria Clergy Fund, being made in respect of the poverty of his benefice, was decided by the Court of Appeal to be taxable, although the Divisional Court below had held the contrary.[392]