[1] 1 Bl. Comm. 14, 79-83, and n. (11) by J. T. Coleridge (afterwards Judge) in 16th ed. (1825); (1533) 25 Hen. 8, c. 19, ss. 1-3; c. 21 (preamble); (1535) 27 Hen. 8, c. 15; (1543) 35 Hen. 8, c. 16.
[2]i.e. "The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church, according to the use of the Church of England, together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the Form or Manner of making, ordaining, and consecrating of Bishops, Priests, and Deacons," which is annexed to the Act of Uniformity of 1662 (14 Cha. 2, c. 4). Similarly the Thirty-Nine Articles of Religion are enjoined on the clergy by (1571) 13 Eliz. c. 12, the Clerical Subscription Act, 1865 (28 & 29 Vict. c. 122), and the Canon made in 1865 and ratified by the Crown in 1866.
[3] Middleton v. Crofts (1736) 2 Str. 1056; 2 Atk. 650; Bp. of Exeter v. Marshall (1868) L. R. 3 H. L. 17.
[4] Gibs. Cod. 956. The Act of 1661 (13 Cha. 2, st. 1, c. 12), which restored the ecclesiastical jurisdiction of archbishops, bishops, and other spiritual judges and officers, contained a proviso that nothing therein contained should extend to confirm "the canons made in the year 1640, nor any of them, nor any other ecclesiastical laws or canons not formerly confirmed, allowed, or enacted by Parliament or by the established laws of the land as they stood in the year of our Lord 1639."
[5] So called "because by his person the church, which is an invisible body, is represented: and he is in himself a body corporate in order to protect and defend the rights of the church (which he personates) by a perpetual succession." 1 Bl. Comm. 384. The term parson is often popularly, but incorrectly, applied to vicars and other clergymen.
[6] The owner of this right was called the patronus or advocatus on account of his duty to patronise, advocate, or defend the privileges of the church and benefice. Hence his right to nominate the rector was styled advocatio or advowson.
[9] (1818) 58 Geo. 3, c. 45, s. 25; (1831) 1 & 2 Will. 4, c. 38, s. 12; (1839) 2 & 3 Vict. c. 49, ss. 2, 8; (1845) 8 & 9 Vict. c. 70, ss. 9, 17. The churches provided under the Church Building Acts and New Parishes Acts may be classified as follows: i. Church of a distinct and separate parish formed under the Church Building Act, 1818 (58 Geo. 3, c. 45, s. 76); ii. Church of a district parish formed under 58 Geo. 3, c. 45, s. 21; iii. Church or chapel of a consolidated chapelry formed under the Church Building Act, 1819 (59 Geo. 3, c. 134, s. 6); iv. Church or chapel of a district chapelry formed under 59 Geo. 3, c. 134, s. 16; v. Church or chapel built or appropriated under the Church Building Act, 1831 (1 & 2 Will. 4, c. 38, s. 2), with or without a particular district formed under s. 10 of that Act; vi. Chapel of ease constituted the church of a separate spiritual parish under 1 & 2 Will. 4, c. 38, s. 23; vii. Church of a Peel parish formed under the New Parishes Act, 1843 (6 & 7 Vict. c. 37, s. 15); viii. Church of a new parish formed under the New Parishes Act, 1856 (19 & 20 Vict. c. 104, ss. 1, 2); ix. Church of a district parish, consolidated district chapelry, or particular district, which under 19 & 20 Vict. c. 104, s. 14, has become a separate ecclesiastical parish in consequence of the Ecclesiastical Commissioners having authorised in such church the publication of banns and the solemnisation of marriages, churchings, and baptisms; x. Church, without a district, built on a site the conveyance of which has been accepted by the Ecclesiastical Commissioners (8 & 9 Vict. c. 70, s. 7).
[10] 31 & 32 Vict. c. 117, s. 2. Under the Parish of Manchester Division Act, 1850 (13 & 14 Vict. c. 41, s. 2), the benefice of every new parish within the area of the ancient parish of Manchester is a rectory.
[11] See the Prayer for the Clergy and People in Morning and Evening Prayer and the Prayer for the Church Militant.
[12] (1784) 24 Geo. 3, sess. 2, c. 35, s. 1; (1819) 59 Geo. 3, c. 60, s. 1.
[13] 28 & 29 Vict. c. 122, s. 4. See ch. ii. § 6 (i.) below.
[18] Ayl. Par. 95. The Dean of the Cathedral has an independent position and dignity in respect of the Cathedral Church, which is outside the general diocesan and archidiaconal jurisdiction; Ib.
[20] Phill. Eccl. Law, Pt. i. ch. v. pp. 194-207; Pt. iv. ch. xi. §3, pp. 1051-1054; 1 Burn, 93-97. According to a table of fees settled under the authority of the Act 30 & 31 Vict. c. 135, and published in the London Gazette of March 19, 1869, the fees to be paid by each parish at either an episcopal or an archidiaconal visitation are 18s.; viz. 2s. to the chancellor or archdeacon (as the case may be), 12s. 6d. to the registrar, and 3s. 6d. to the apparitor.
[21] Ayl. Par. 205; Gibs. Cod. 971-973; 2 Burn, 119-125; Dansey's HorÆ DecanicÆ Rurales (2nd ed., 1844), Pts. iv, v.
[48] 24 Geo. 3, sess. 2, c. 35; 59 Geo. 3, c. 60; 37 & 38 Vict. c. 77, s. 9.
[49] Willis v. Bp. of Oxford (1877) 2 P. D. 192. This includes, in the four Welsh dioceses, inability to preach, administer the sacraments, perform other pastoral duties, and converse in Welsh, subject to an appeal to the archbishop; (1838) 1 & 2 Vict. c. 106, s. 104; Marquis of Abergavenny v. Bp. of Llandaff (1888) 20 Q. B. D. 460.
[50] Ayl. Par. 39-42; Heywood v. Bp. of Manchester (1884) 12 Q. B. D. 404.
[52] The "sufficient testimony" consists, by long-established practice, of a testimonial by three beneficed clergymen, countersigned by the bishops of their dioceses if they are not beneficed in the diocese of the bishop to whom the testimonial is given, that the presentee has been personally known to them for three years last past; that they have had opportunities of observing his conduct, and during the whole of that time they verily believe that he has lived piously, soberly, and honestly, and that they have not heard anything to the contrary thereof, nor that he has at any time held, written, or taught anything contrary to the doctrine or discipline of the Church, and that they believe him to be, as to his moral conduct, a person worthy to be admitted to the benefice.
[53] Bp. of Exeter v. Marshall (1868) L. R. 3 H. L. 17.
[54] Gorham v. Bp. of Exeter (1849) 2 Rob. Eccl. 1; 13 Jur. 238.
[63] This may be the authority of the King in Council, under which the names of the sovereign and members of the Royal Family are changed in the prayers for them (Gibs. Cod. 280), and other forms are from time to time prescribed; or that of the archbishop or bishop, so far as they have power in the matter. See below, ch. v. § 1.
[66] Clarke Proxis, tit. xci.; Gibs. Cod. 810. This oath does not mean that the clerk will obey all the commands of the bishop against which there is no law, but that he will obey all such commands as the bishop by law is authorised to impose; Long v. Bp. of Capetown (1863) 1 Moo. P. C. N. S. 411, at p. 465.
[70] Duke of Portland v. Bingham (1792) 1 Hag. Cons. 157, 161; Carr v. Marsh (1814) 2 Phill. 198, 206; Farnworth v. Bp. of Chester (1825) 4 B. & C. 555, 568; Bliss v. Woods (1831) 3 Hag. Eccl. 486, 501-512; Nesbitt v. Wallace (1901) P. 354.
[72] (1839) 2 & 3 Vict. c. 30; (1840) 3 & 4 Vict, c. 113, s. 72; (1869) 32 & 33 Vict. c. 94, s. 4.
[73] Cripps, 580; Moysey v. Hillcoat (1828) 2 Hag. Eccl. 30, 46; Bp. of Down v. Miller (1861) 11 Ir. Ch. Rep. App. i., ix.; 5 L. T. N. S. 30; Kitson v. Drury (1865) 11 Jur. N. S. 272.
[74] (1688) 1 Will. & Mar. sess. 1, c. 18; (1812) 52 Geo. 3, c. 155.
[75] 18 & 19 Vict. c. 86 (Liberty of Religious Worship Act).
[114] (1838) 1 & 2 Vict. c. 106, s. 82. For the stamp duty on licences, and exemptions therefrom, see (1891) 54 & 55 Vict. c. 39, sch. "Licence."
[115] 28 & 29 Vict. c. 122, ss. 1, 8; see ch. ii. § 6 (i.).
[116] Johns, vol. i. p. 95; see Ex parte Carlyon (1903) Times, Dec. 19; s.c. nom. R. v. Bp. of Liverpool (1904) Times, May 4.
[117] (1838) 1 & 2 Vict. c. 106, s. 98; Poole v. Bp. of London (1859) 5 Jur. N. S. 522; (1861) 14 Moo. P. C. 262; 7 Jur. N. S. 347.
[118] (1536) 28 Hen. 8, c. 11; (1838) 1 & 2 Vict. c. 106, ss. 99-101; Dakins v. Seaman (1842) 9 M. & W. 777; (1885) 48 & 49 Vict. c. 54, s. 10.
[119] 34 & 35 Vict. c. 45 (Sequestration Act, 1871).
[120] Canon 47; (1838) 1 & 2 Vict. c. 106, ss. 75, 76, 81-98, 120-122, 130; (1885) 48 & 49 Vict. c. 54, s. 9.
[121] See ch. ii. § 15; (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105; (1885) 48 & 49 Vict. c. 54, ss. 1-3; (1898) 61 & 62 Vict. c. 48, s. 9.
[122] Hubbard v. Penrice (1746) 2 Str. 1245; Reg. v. Allen (1872) L. R. 8 Q. B. 69; Pinder v. Barr (1854) 4 E. & B. 105; Lawrence v. Edwards (1891) 1 Ch. 144; 2 Ch. 72.
[130] Trebec v. Keith (1742) 2 Atk. 498; Barnes v. Shore (1846) 1 Rob. Eccl. 382; Freeland v. Neale (1848) Ib. 643. As to beneficed clergy, see above, ch. ii. § 11.
[132] 7 & 8 Vict. c. 59 (Lecturers and Parish Clerks Act, 1844), ss. 1, 6.
[133] (1818) 58 Geo. 3, c. 69; (1837) 7 Will. 4 & 1 Vict. c. 45; (1869) 32 & 33 Vict. c. 41, ss. 7, 19; Dawe v. Williams (1824) 2 Add. 130, 139; Ormerod v. Chadwick (1847) 16 M. & W. 367; 16 L. J. M. C. 143; Burnley v. Methley Overseers (1859) 1 El. & El. 789; Rand v. Green (1860), 6 Jur. N. S. 303; 9 C. B. N. S. 470; 30 L. J. C. P. 80.
[134] (1818) 58 Geo. 3, c. 69, s. 2; Wilson v. M'Math (1819) 3 Phill. 67; 2 B. & Ald. 241; Reg. v. D'Oyly (1840) 12 A. & E. 139; 4 Jur. 1056; R. v. Bp. of Salisbury (1901) 1 K. B. 573, 579, aff. 2 K. B. 225.
[135] 58 Geo. 3, c. 69 (commonly called Sturges Bourne's Act).
[141] Stoughton v. Reynolds (1736) 2 Str. 1045; R. v. Bp. of Salisbury (1901) 1 K. B. 573; aff. 2 K. B. 225.
[142] (1818) 58 Geo. 3, c. 45, s. 75; (1838) 1 & 2 Will. 4, c. 38, s. 25; (1843) 6 & 7 Vict. c. 37, s. 17; (1845) 8 & 9 Vict. c. 70, ss. 6, 7; (1856) 19 & 20 Vict. c. 104, ss. 14, 15.
[143] (1838) 1 & 2 Will. c. 38, s. 16; (1845) 8 & 9 Vict. c. 70, s. 7.
[144] Canon 118; Bray v. Somer (1862) 2 B. & Sm. 374: 8 Jur. N. S. 716; Bremner v. Hull (1866) L. R. 1 C. P. 748; Reg. v. Sowter (1901) 1 K. B. 66; rev. Ib. 396. For further particulars as to the qualifications and election of churchwardens of ancient parish churches and the churches enumerated in the note to ch. i. § 6 above, see Sm. Churchw. 22-43.
[148] Sm. Churchw. pt. iii. ch. i.-iii.; pp. 50-84.
[149] 23 & 24 Vict. c. 32. A clergyman can be proceeded against for brawling either under that Act or in the Church courts as an ecclesiastical offender.
[150] Viz. "the building, rebuilding, enlargement, and repair of any church or chapel, and any purpose to which by common or ecclesiastical law a church rate is applicable." (1868) 31 & 32 Vict. c. 109, s. 9. Besides necessary church repairs, sacramental bread and wine, and other articles needed for Divine service, a church rate could, with the consent of a majority of the vestry, be applied to provide an organ and other church furniture, and to pay the salaries of organist, pew-openers, and other lay officials, but not the stipend of the incumbent or a curate. 1 Burn, 388 a, b.
[154] (1819) 59 Geo. 3, c. 134, s. 29; (1856) 19 & 20 Vict. c. 104, s. 9; Reg. v. Ossett (1851) 16 Q. B. 975; Jackson v. Courtenay (1857) 8 E. & B. 8.
[155] Ile's Case (1671) 1 Ventr. 153; R. v. Thame (Churchwardens) (1719) 1 Str. 115; Olive v. Ingram (1739) 2 Str. 1114; R. v. Taunton St. James (Churchwardens) (1776) 1 Cowp. 413; R. v. Minister, &c., of Stoke Damerel (1836) 5 A. & E. 584, 590, sq.; Cansfield v. Blenkinsop (1849) 4 Ex. 234.
[159] 3 Burn, 452; Strype's Annals, vol. i. ch. xiii., XXX. pp. 178-81, 345, sq.; (ed. 1824, pp. 265-69, 514-16); Martyn v. Hind (1776) 2 Cowp. 437, 438-39, 444.
[160] Particulars as to readers and their powers and functions in consecrated buildings and elsewhere will be found in another Handbook of the present Series: Lay Work and the Office of Reader, by Dr. Yeatman-Biggs, afterwards made Bishop of Worcester.
[162] Ch. ii. § 6 (i.); ch. iii. § 1; (1865) 28 & 29 Vict. c. 122, ss. 1, 4-8.
[163] (1559) 1 Eliz. c. 2; (1662) 14 Cha. 2, c. 4; (1872) 35 & 36 Vict. c. 35; Westerton v. Liddell (1857) Moore's Special Report, 187; Martin v. Mackonockie (1868) L. R. 2 P. C. 365, at p. 383; 38 L. J. Eccl. 1, at p. 11.
[169] This applies only to a church served by a distinct minister, and not where there are two churches in one parish. But even in such a case the incumbent has no right wholly to close one church and hold all the Sunday services in the other; Rugg v. Bp. of Winchester (1868) L. R. 2 P. C. 223; 38 L. J. Eccl. 23.
[173] The appointment of such person rests with the incumbent or principal officiating minister; a clergyman in priest's orders is not a "fit" person to collect the offertory money. Cope v. Barber (1872) L. R. 7 C. P. 393.
[174] Sm. Churchw. 80; Reg. v. O'Neill (1867) 31 J. P. 742; Howell v. Holdroyd (1897) P. 198. An incumbent often takes sole charge not only of money collected in church but of money collected by appeals within and outside the parish. He should in all such cases lodge it at a bank on a separate account, and notify in his appeal that this will be done. He cannot otherwise reasonably expect to be entrusted with money by strangers; and if the money is mixed with his own, it may be difficult or impossible to disentangle it in the event of his sudden illness and death.
[175] Moysey v. Hillcoat (1828) 2 Hag. Eccl. 30, at p. 56.
[176] As stated in ch. i. § 4, these decisions are part of our Church law, until reversed or altered by future judicial decisions or by legislation. As intimated in the Preface, no opinion is here expressed as to their correctness, or as to what the law ought to be on the points with which they deal. It has been questioned whether in the Ornaments Rubric and in the Act of Uniformity of 1559 (1 Eliz. c. 2), from which it is derived, the mention of such ornaments as were in the Church by authority of Parliament in the second year of Edward VI. refers to the ornaments sanctioned by the First Prayer Book of Edward VI., the use of which was enjoined by the Act of Uniformity of 1549 (2 & 3 Edw. 6, c. 1), or to those previously in use. It may be observed that this Act is referred to as made in the second year of the reign in the later Act of Uniformity of 1552 (5 & 6 Edw. 6, c. 1, s. 4), and the Book itself is associated with that year in the 36th Article. In the Bp. of Winchester's Case (1596) 2 Co. Rep. 40 a, the Payment of Tithes Act of the same session (2 & 3 Edw. 6, c. 13) is referred to as made in the Parliament holden in the second year of Edward VI. See also Westerton v. Liddell (1857) Moore's Special Report, 156, 160; Martin v. Mackonockie (1868) L. R. 2 P. C. 365, at p. 390; Elphinstone v. Purchas (1870) L. R. 3 A. & E. 66, 94.
[177] Faulkner v. Litchfield (1845) 1 Rob. Eccl. 184; Westerton v. Liddell (1857) Moore's Special Report, 176-185. A variety of embroidered cloths is permissible; Ib.188. But the decision in Re St. Luke's, Chelsea (1904) P. 257, that marble is "stuff" within Canon 82, seems open to question.
[178] Phill. Eccl. Law, 733-5; Liddell v. Beal (1860) 14 Moo. P. C. 1, 14; Durst v. Masters (1876) 1 P. D. 373; Ridsdale v. Clifton (1877) 2 P. D. 276; Bradford v. Fry (1878) 4 P. D. 93, 106; Re St. Matthias, Richmond (1897) P. 70; Re St. Ethelburga (1900) P. 80; Re St. John Baptist, Paignton (1905) P. 111.
[179] Liddell v. Beal, ubi sup.; Elphinstone v. Purchas (1870) L. R. 3 A. & E. 66.
[180] Boyd v. Phillpotts (1874) L. R. 4 A. & E. 297; (1875) 6 P. C. 435; Hughes v. Edwards (1877) 2 P. D. 361; Re St. Mark, Marylebone (1898) P. 115; Davey v. Hinde (1901) P. 95; (1903) P. 221.
[181]Re St. Lawrence, Pittington (1880) 5 P. D. 131; Re St. John, Pendlebury (1895) P. 178.
[182] Westerton v. Liddell (1857) Moore's Special Report 187,8; overruling Faulkner v. Litchfield (1845) 1 Rob. Eccl. 184.
[183]Re Holy Trinity, Stroud Green (1887) 12 P. D. 199; Re St. Mark, Marylebone (1898) P. 115.
[184]Re St. Agnes, Toxteth Park (1885) 11 P. D. 1; Re St. John Baptist, Timberhill (1895) P. 71.
[185] White v. Bowron (1873) L. R. 4 A. & E. 207; 43 L. J. Eccl. 7.
[186] Groves v. Rector of Hornsey (1793) 1 Hag. Cons. 188; Clayton v. Deane (1849) 7 Not. of Ca. 46, 53; Vicar of Tottenham v. Venn (1874) L. R. 4 A. & E. 221; Peek v. Trower (1881) 7 P. D. 21; Nickalls v. Briscoe (1892) P. 269. See also note (1) on p. 146 below.
[187] Ridsdale v. Clifton (1877) 2 P. D. 276. See note (1) on p. 87.
[188] Elphinstone v. Purchas (1870) L. R. 3 A. & E. 66.
[189] Enraght's case (1881) L. R. 6 Q. B. D. 376; (1882) 7 A. C. 240.
[190]Re Robinson: Wright v. Tugwell (1897) 1 Ch. 85.
[191] Sumner v. Wix (1870) L. R. 3 A. & E. 58; The Archbishops on Incense and Lights in Processions: Hearing at Lambeth (1899) Times, Aug. 1 (also published by Macmillan & Co., 1899, price 1s.)
[192] Read v. Bishop of Lincoln (1891) P. 9; (1892) A. C. 644.
[193] Ridsdale v. Clifton (1877) 2 P. D. 276. The First Prayer Book of 1549 prescribed unleavened wafers, but directed that each must be divided and distributed in two or more pieces, in order, no doubt, that the symbolism indicated in 1 Cor. x. 17 might not be wholly lost.
[194] Read v. Bishop of Lincoln, ubi sup. The legality of the usual hymns and music has been long recognised; Hutchins v. Denziloe (1792) 1 Hag. Cons. 170.
[195] Martin v. Mackonockie (1868) L. R. 2 P. C. 365; (1869) L. R. 3 P. C. 52; Read v. Bishop of Lincoln, ubi sup.
[203] This rubric, with the substitution of "Morning Prayer" for "Matins," was repeated in the Prayer Books of 1552 and 1559. On the other hand, in our present Prayer Book, where the allusion to Morning Prayer is omitted from the rubric, the intention that it shall, in the ordinary course, precede the Holy Communion is indicated by the fact that Matt. xxvi. and John xviii. have been removed from the Gospels for Palm Sunday and Good Friday, where they had previously stood with the succeeding passages which form our present Gospels for those days, and have been made the Second Lessons at Morning Prayer. In the earlier Prayer Books no special second lessons were assigned for those two days. But as to the use of Morning Prayer, the Litany, and the Holy Communion together, or in varying order as separate services, see now § 1 above. The Prayer Book does not seem to contemplate Communion more than once in the day. Where the Office is used oftener, it must be repeated entire on each occasion.
[209] The passage in the statement Concerning the Service of the Church at the beginning of the Prayer Book, respecting the bishop taking order for the appeasing of doubts concerning the manner of understanding and carrying out the contents of the Book, might apply to the treatment of such persons.
[216] (1818) 58 Geo. 3, c. 45, ss. 27-29; (1819) 59 Geo. 3, c. 134, ss. 6, 16, 17; (1830) 11 Geo. 4 & 1 Will. 4, c. 18, s. 3; (1843) 6 & 7 Vict. c. 37, s. 15; (1844) 7 & 8 Vict. c. 56; (1845) 8 & 9 Vict. c. 70, s. 10; (1856) 19 & 20 Vict. c. 104, s. 11; Tuckniss v. Alexander (1863) 32 L. J. Ch. 794; 11 W. R. 938; Fuller v. Alford (1883) 10 Q. B. D. 418.
[217] (1836) 6 & 7 Will. 4, c. 85, ss. 26-34; (1837) 7 Will. 4 & 1 Vict. c. 22, ss. 33, 34; Re St. George's Proprietary Chapel (1890) Tristr. Cons. Judg. 134.
[234] For an epitome of the foreign requirements for the validity of marriages in Europe and North and South America, see A Summary of Foreign Marriage Law, by Canon Glendinning Nash, 1903, published by the S.P.C.K., price 6d.
[235] (1540) 32 Hen. 8, c. 38; Canon 99; (1835) 5 & 6 Will. 4, c. 54. As to the Table, see Co. Litt. 235 a. n. (1); 2 Co. Inst. 683; Gibs. Cod. 411-415; 2 Burn, 439-50; Cardwell's Documentary Annals of the Church of England, vol. i. pp. 316-20 (no. lxiv); Sherwood v. Ray (1837) 1 Moo. P. C. 353, note on pp. 355-9.
[236] R. v. Brighton (1861) 1 B. & Sm. 447; Wing v. Taylor (1861) 2 Sw. & Tr. 278.
[237] 4 Geo. 4, c. 76, s. 2; Wynn v. Davies (1835) 1 Curt. 69, at p. 81.
[243] Macdougall v. Paterson (1851) 11 C. B. 755; 21 L. J. C. P. 27; Att.-Gen. v. McLean (1863) 1 H. & C. 750; Alexander v. Jones (1866) L. R. 1 Ex. 133; 35 L. J. Ex. 78.
[244] Tongue v. Allen (1835) 1 Curt. 38; (1836) 1 Moo. P. C. 90; Midgley v. Wood (1860) 30 L. J. P. M. & A. 57; R. v. Billingshurst (1814) 3 M. & S. 250. Where the woman was an illegitimate child, and had the banns published in the name of her mother, which she had never in fact borne, Sir John Dodson, in adjudging the marriage void, said that he had some doubt whether, in the case of an illegitimate child, the publication of the banns in the name of its mother, instead of the name of notoriety and repute, would necessarily be such an undue publication as would nullify the marriage. No doubt the name which a person under such circumstances had fully acquired was that in which the publication of banns should take place; but there might be a case in which, without fraudulent intent, and from an innocent misapprehension of what was correct, the name of the mother might be used instead of that subsequently acquired; Tooth v. Barrow (1854) 1 Eccl. & Adm. 371, at p. 374.
[248] (1836) 6 & 7 Will. 4, c. 85, ss. 1, 11, 15, 16; (1837) 7 Will. 4 & 1 Vict. c. 22, s. 36; (1856) 19 & 20 Vict. c. 119, s. 11.
[249] Canons 101-104; (1823) 4 Geo. 4, c. 76, s. 14.
[250] Tuckness v. Alexander (1863) 2 Dr. & Sm. 614; 32 L. J. Ch. 794.
[251] Bevan v. M'Mahon (1861) 30 L. J. P. M. & A. 61.
[252] Prince of Capua v. Count de Ludolf (1836) 30 L. J. P. M. & A. 71 (n.).
[253] (1823) 4 Geo. 4, c. 76, ss. 9, 19. It is safest to construe this period as lunar months, i.e. twelve weeks; see 2 Bl. Comm. 141; Lacon v. Hooper (1795) 6 T. R. 224.
[265] Hyde v. Hyde (1866) L. R. 1 P. & D. 130; Re Bethell (1888) 38 Ch. D. 220.
[266] Goodman v. Goodman (1859) 28 L. J. Ch. 745; The Breadalbane Case (1867) L. R. 1 H. L. Sc. 182; Geary, 140-142.
[267] Ruding v. Smith (1821) 2 Hag. Cons. 371, at pp. 390, 391.
[268] Brook v. Brook (1861) 9 H. L. C. 193; 4 L. T. N. S. 93.
[269] Reg. v. Millis (1844) 10 Cl. & F. 534; 8 Jur. 917; Culling v. Culling (1896) P. 116.
[270] Com. Dig. tit. Cemetery (B); Gilbert v. Buzzard (1821) 2 Hag. Cons. 333; R. v. Coleridge (1819) 2 B. & Ald. 806; R. v. Stewart (1840) 12 A. & E. 773, 777.
[272] Canon 68; Ex pte. Blackmore (1830) 1 B. & Ad. 122; R. v. Coleridge, ubi sup.
[273] Ex pte. Blackmore (1830) 1 B. & Ad. 122; Fryer v. Johnson (1755) 2 Wils. 28.
[274] (1867) 30 & 31 Vict. c. 133, ss. 9-11; (1868) 31 & 32 Vict. c. 47.
[275] The churchyard is not merely the property of a single departed generation, but is also the common property of the living and of generations yet unborn, and is subject only to temporary appropriations. An exclusive title to a portion of it is sometimes given by faculty to some family or individual possessing a good claim to be favoured by such a distinction. But even a bricked grave, in the absence of a faculty, is an aggression upon the common interests of the parishioners, and carries the pretensions of the dead to an extent which violates the rights of the living. Per Sir W. Scott (afterwards Lord Stowell), Gilbert v. Buzzard (1821) 2 Hag. Cons. 333, at p. 353.
[276] Bardin v. Calcott (1789) 1 Hag. Cons. 14, 17; Littlewood v. Williams (1815) 6 Taun. 277; Sm. Churchw. 73.
[290] Andrews v. Cawthorne (1745) Willes 536; Gibs. Cod. 453; Spry v. Marylebone (1839) 2 Curt. 5, 11; Spry v. Gallop (1847) 16 M. & W. 716; Bryant v. Foot (1868) 37 L. J. Q. B. 217.
[291] Nevill v. Bridger (1874) L. R. 9 Ex. 214; 43 L. J. Ex. 147.
[292] Littlewood v. Williams (1815) 6 Taun. 277; 1 Marsh. 589.
[307] (1852) 15 & 16 Vict. c. 85, s. 32; (1857) 20 & 21 Vict. c. 81, s. 5; St. Margaret's Rochester Burial Board v. Thompson (1871) L. R. 6 C. P. 445; Gell v. Mayor of Birmingham (1864) 10 L. T. N. S. 497; Day v. Barnsley Burial Board (1865) 6 N. R. 156; Cronshaw v. Wigan Burial Board (1873) L. R. 8 Q. B. 217; 42 L. J. Q. B. 137; Ormerod v. Blackburn Burial Board (1873) 21 W. R. 539; White v. Norwood Burial Board (1885) 16 Q. B. D. 58; Stewart v. West Derby Burial Board (1886) 34 Ch. D. 314; Wood v. Headingley-cum-Burley Burial Board (1892) 1 Q. B. 713.
[309] This will include services rendered by a clergyman acting for the incumbent, as well as by the incumbent himself. See 15 & 16 Vict. c. 85, s. 32.
[316] Archbishops' Hearing at Lambeth (1900) Times, May 2. The Prayer Book of 1549 directed that if on the same day there was a celebration in church, the priest should reserve (at the open Communion) so much of the Sacrament of the body and blood as should serve the sick person and so many, if any, as should communicate with him, and so soon as convenient after the open Communion should go and minister the same first to any appointed to communicate with the sick person, and last of all to the sick person himself, after having previously made the general confession and added the absolution and the comfortable words of Scripture as in the Communion Office; and after the administration he was to say the Collect "Almighty and everliving God, we most heartily thank," &c. But if the day were not appointed for the open Communion, then the curate should come and visit the sick person afore noon and celebrate the Holy Communion according to the Order for the Communion of the Sick. But these directions were omitted in 1552, and have not since been restored.
[318] Under the School Sites Acts, 1841, 1844 and 1851 (4 & 5 Vict. c. 38, 7 & 8 Vict. c. 37, 14 & 15 Vict. c. 24), land may under certain restrictions be conveyed to the minister and churchwardens and overseers of the poor, or to the ministers and churchwardens, of a parish, for the purpose of the education of the poor, and when so conveyed will remain vested in them and their successors as if they were a corporate body; but, except where authorised by a special local Act, it cannot be conveyed to the incumbent and churchwardens, or to the churchwardens alone, in perpetuity for any other purpose. (In the City of London, however, churchwardens can, by custom, acquire and hold land as a corporation for ecclesiastical or parochial purposes.) The Bodies Corporate (Joint Tenancy) Act, 1899 (62 & 63 Vict. c. 20), does not give any further power to an incumbent to hold property as a corporation jointly with another corporation or with individuals upon any ecclesiastical or charitable trusts; since the holding authorised by the Act is to be subject to the same conditions and restrictions as attach to its holding by a body corporate in severalty; and an incumbent as above mentioned could not, without a licence in mortmain, hold as a corporation by himself any property upon similar trusts, unless empowered to do so by express statutory authority.
[319] Jones v. Ellis (1828) 2 Yo. & Jer. 265, 266, 273; Batten v. Gedye (1889) 41 Ch. D. 507.
[320] Morley v. Leacroft (1896) P. 92; Neville v. Kirby (1898) P. 160.
[321] Jarratt v. Steele (1820) 3 Phill. 167; Jones v. Ellis ubi sup.; Griffin v. Dighton (1864) 5 B. & Sm. 93, aff. 108; 33 L. J. Q. B. 29, aff. 181.
[322] Harrison v. Forbes (1860) 6 Jur. N. S. 1353; Redhead v. Wait (1862) 6 L. T. N. S. 580.
[323] Daunt v. Crocker (1867) L. R. 2 A. & E. 41; 37 L. J. Eccl. 1.
[324] Greenslade v. Darby (1868) L. R. 3 Q. B. 421; 9 B. & Sm. 428.
[325] Stat. (temp incert.) Ne rector prosternat arbores in cemiterio.
[329] M'Gough v. Lancaster Burial Board (1888) 21 Q. B. D. 321; 52 J. P. 740.
[330] Keet v. Smith (1875) L. R. 4 A. & E. 398; rev. (1876) 1 P. D. 73. The bishop himself decides disputes as to monumental inscriptions on stones in the consecrated portion of a burial ground provided under the Burial Acts; (1852) 15 & 16 Vict. c. 85, s. 38. As to the consecrated parts of cemeteries established by companies under the Cemeteries Clauses Act, 1847, see 10 & 11 Vict. c. 65, s. 51.
[331] Sm. Churchw. 52-57. A faculty is not necessary for mere repairs or redecoration where no alteration is made in the structure or the design, nor for trifling additions such as movable seats or hassocks. But a change in the mode of lighting or heating the church ought to be sanctioned by faculty. The grant of a faculty, besides ensuring that all is done legally and carefully, prevents any ill-feeling being cherished in the parish on the score of the alteration having been made without the knowledge or consent of some of the parishioners; since the application for the faculty affords to all who are interested in the matter an opportunity for submitting their views upon it. The regular mode of obtaining the approval of the parishioners to it is by a resolution of the vestry. But the opinion of the vestry is not conclusive; and a distinction will sometimes be made between the votes of those members of the vestry who are Church people and those who are not; see note (3) on p. 89 above.
[332] Rosher v. Vicar of Northfleet (1825) 3 Add. 14; Pitcher v. The Same (1825) Ib. 15.
[333] Adlam v. Colthurst (1867) 36 L. J. Eccl. 14.
[334] Vicar of Tottenham v. Venn (1874) L. R. 4 A. & E. 221, 225.
[343] Degge, ch. viii.; Sowerby v. Fryer (1869) L. R. 8 Eq. 417. The right to cut timber for the purpose of repairs includes the right to sell timber at a distance from the site of the repairs and buy other timber with the proceeds of the sale; Wither v. Dean of Winchester (1817) 3 Mer. 421.
[344] Holden v. Weekes (1860) 1 J. & H. 278; Ecclesiastical Commissioners v. Wodehouse (1895) 1 Ch. 552.
[349] (1881) 44 & 45 Vict. c. 25; (1887) 50 & 51 Vict. c. 8; (1896) 59 & 60 Vict. c. 13.
[350] (1777) 17 Geo. 3. c. 53, s. 21; (1803) 43 Geo. 3, c. 108; (1811) 51 Geo. 3, c. 115; (1815) 55 Geo. 3, c. 147, s. 5; (1856) 19 & 20 Vict. c. 104, s. 27; (1865) 28 & 29 Vict. c. 69, s. 4. As to the consent of the Board of Agriculture being requisite to a grant of common land, see (1899) 62 & 63 Vict. c. 30, s. 22.
[351] (1815) 55 Geo. 3, c. 147; (1816) 56 Geo. 3, c. 52; (1820) 1 Geo. 4, c. 6; (1825) 6 Geo. 4, c. 8; (1826) 7 Geo. 4, c. 66; (1838) 1 & 2 Vict. c. 23; c. 29; (1839) 2 & 3 Vict. c. 49; (1842) 5 & 6 Vict. c. 54; (1846) 9 & 10 Vict. c. 73, s. 22; (1858) 21 & 22 Vict. c. 57; (1860) 23 & 24 Vict. c. 93, s. 41; (1861) 24 & 25 Vict. c. 105, s. 3; (1865) 28 & 29 Vict. c. 57; (1888) 51 & 52 Vict. c. 20. See also The Sale of Glebe Land Rules 1897 (Weekly Notes (1897) p. 117); Ecclesiastical Commissioners v. Pinney (1899) 1 Ch. 99; 2 Ch. 729; aff. (1900) 2 Ch. 737.
[354] (1842) 5 & 6 Vict. c. 108; (1858) 21 & 22 Vict. c. 57; (1861) 24 & 25 Vict. c. 105; Ecclesiastical Commissioners v. Wodehouse (1895) 1 Ch. 552.
[355] Wise v. Metcalfe (1829) 10 B. & C. 299; Martin v. Roe (1857) 7 E. & B. 237.
[356] 34 & 35 Vict. c. 43. The Act is amended so far as respects the rates of fees thereunder by (1872) 35 & 36 Vict. c. 96; and so far as respects mortgages for loans, by that Act and (1896) 59 & 60 Vict. c. 13 and the intermediate Acts specified in the schedule thereto, and, in the case of extraordinary tithe redemption, by (1886) 49 & 50 Vict. c. 54, s. 12.
[357] The time is not essential, Caldow v. Pixell (1877) 2 C. P. D. 562.
[358]Re Monk: Wayman v. Monk (1887) 35 Ch. D. 538. Consequently if on an incumbent's death the benefice is under sequestration, the sequestrator is not liable for the dilapidations; Jones v. Dangerfield (1875) 1 Ch. 438. On an exchange, the claim for dilapidations may be waived on both sides, with a view to their falling, in the case of each benefice, on the incoming instead of on the outgoing incumbent; Wright v. Davies (1876) 1 C. P. D. 638.
[359] Kimber v. Paravicini (1885) 15 Q. B. D. 222.
[376] 2 & 3 Edw. 6, c. 13, s. 10 (see (1887) 50 & 51 Vict. c. 59, sch.). The four offering days are Christmas, Easter, Whitsuntide, and the feast of the dedication of the parish church; Gibs. Cod. 705.
[380] (1285) 13 Edw. 1, st. Circumspecte agatis; (1529) 21 Hen. 8, c. 6; Wats. ch. iiii. pp. 595-598; Phill. Eccl. Law, Pt. iii. ch. x. § 5, pp. 685-9.
[381] See above, ch. v. § 10; ch. vi. § 15; ch. vii. §§ 5, 6, 8, 9.
[382] Sm. Churchw. 67-71; (1818) 58 Geo. 3, c. 45, ss. 62-66, 73-79; (1819) 59 Geo. 3, c. 134, ss. 6, 26, 27, 30-33; (1822) 3 Geo. 4, c. 72, ss. 23-25; (1824) 5 Geo. 4, c. 103, ss. 10, 11, 18; (1831) 1 & 2 Will. 4, c. 38, ss. 4, 5, 22; (1845) 8 & 9 Vict. c. 70, s. 11; (1838) 1 & 2 Vict. c. 107, s. 18; (1856) 19 & 20 Vict. c. 104, ss. 6-8; (1884) 47 & 48 Vict. c. 65, s. 4.
[387] Report of Select Committee on First Fruits and Tenths and Administration of Queen Anne's Bounty (presented to the House of Commons and ordered to be printed 7th June 1837), p. iv.
[388] In estimating the value of tithe rentcharge, the necessary cost of collection may be deducted, Stevens v. Bishop (1887) 19 Q. B. D. 442; aff. (1888) 20 Q. B. D. 442.
[390] 16 & 17 Vict. c. 34 (Income Tax Act, 1853) s. 52; Charlton v. Inland Revenue Commissioners (1890) 27 Sc. L. R. 647; Lothian v. Macrae (1883) 22 Sc. L. R. 219.
[391] Inland Revenue v. Strang (1878) 15 Sc. L. R. 704.
[392] Turner v. Cuxon (1888) 22 Q. B. D. 150; Herbert v. M'Quade (1901) 2 K. B. 761; rev. on app. (1902) 2 K. B. 631.
