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3 Mer. 108.*

Southgate, Q.C., and G. Lovell, for Ridgway.-1. It was now too late to question his right to the legacy, since it had been found due by the chief clerk's certificate, which had become absolute, and no attempt had been made to vary it within the eight days, although it was known to the parties when it was signed that the codicil was being disputed. 2. Such a condition was against public policy. 3. Lloyd v. Branton was distinguishable. The case of a life interest or annuity was different from that of an absolute interest, or a legacy of a particular sum. There nust be some limit of time when the right to receive the laster arrives, otherwise the condition would be void as a perpetuity. That time had arrived, a this legacy could not now be divested: Osborn v. Brown, 5 Ves. 527. 4. The condition could only be intended to apply to those who had a direct personal interest in disputing the will or codicil. John Ridgway had no such interest in disputing either, being neither one of the next of kin nor a residuary legatee, but having sued merely in a representive capacity. They referred to Cooke v. Turner, 15 M. & W. 727, 14 Sim. 493; Cage v. Russel, 2 Vent. 352; Reves v. Herne, cited in 3 Mer. 113.

Selwyn, Q.C., Hobhouse, Q.C., Osborne, Q.C., II. Palmer, Q.C., Rowcliffe, Townsend, F. White, Key, De Gex, Bevir, and Martindale, appeared for other parties.

The MASTER OF THE ROLLS said that the legacy was clearly lost. The case came exactly within the clause in the codicil. It had been held by Sir William Grant, in Lloyd v. Branton, which had since been followed in other cases, that a gift over such as this was good, and that the condition was therefore not in terrorem. It was argued that W. Ridgway had no interest in disputing the will or codicil, but that was the affair of the Probate Court. It was for that Court to decide whether it would allow him to do so. He seemed to have maintained the suit as representative of John Ridgway. His Honour's impression was, that no step on the part of the executors of John Ridgway could have forfeited his legacy after his death, as he had not contested the will. But it was contended that as Edward John Ridgway had not contested it in his own character, he had not forfeited his own legacy. The testator, however, might impose any condition he thought fit, however capricious-as, for example, that the legatee should go to Rome. He was of opinion, therefore, that as this legatee had in fact contested the will, he had lost the legacy of £5,000. The Court could not listen to the argument upon the point of form. If this gentleman had been taken by surprise, the Court would have dealt leniently with him; but that was not the case. His

* See also Cleaver v. Spurling, 2 P. Wms. 528.

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Honour wished to make one observation upon the question, within what time such a clause of forfeiture could be enforced? He expressed no opinion as to a case in which the legacy had been paid, but until it was paid it was open to anyone to stop it.

Solicitors for the parties, Gregory & Rowcliffes; Rennolls; and Tilleard & Co.

M.R.

STEVENSON v. ABINGTON (2). July 23. Practice-Costs-Parties in same interest-Severing. Where a number of persons in the same interest, having liberty to attend the proceedings in an administration suit, appeared separately, only one set of costs was allowed.

This was an administration suit. The bill was filed by one of a large class of residuary legatees. The defendants were the executors and the devisees of the real estate. Upon the hearing, on further consideration, the Court had ordered the costs of the parties to the suit, and the persons having liberty to attend the proceedings, to be taxed and

paid out of the fund in Court (see the last case),

but the Registrar, in drawing up the order, had inserted a direction that only one set of costs should be allowed to the persons in the same interest who had liberty to attend.

Selwyn, Q.C., and Rowcliffe, now moved that this direction should be omitted, and that a separate set of costs should be allowed to each person, or to each set of persons who had appeared together. They contended that there was no rule that parties in the same interest were bound to appear together, and that the persons having liberty to attend, though not parties on the record, were quasi parties, and were placed on the same footing as the defendants on the record, as regarded their right to costs. There was therefore no ground for the distinction attempted to be made between such parties and the defendants, who, it was admitted, were entitled to separate costs. It was stated that the parties having liberty to attend were upwards of ninety in number, and that they appeared in sets averaging about twelve. They referred to Cons. Order xxxv., rule 20.

Townsend and Bevir appeared for other persons in the same interest, but the Master of the Rolls declined to hear them.

Southgate, Q.C., who appeared in opposition, was not heard.

The MASTER OF THE ROLLS said that he could not make any alteration in the order, which was quite right in not giving separate sets of costs. The parties should have instructed one solicitor and counsel. No doubt they had a right to appear separately; and had they all done so, the Court might have been compelled to hear 180 counsel; but it would have been impossible to give ninety sets of costs merely because there happened to be so many persons interested. The same course was adopted by the Court in this case as in that of trustees, who were at liberty to appear separately, but at the risk of costs. The Court therefore gave the plaintiff his costs, and the defendants theirs, and to the other parties appearing in the same interest one set of costs, which would be apportioned between them.

Solicitors for the parties, Gregory & Co.; Holt.

terest was remote, and was sufficiently represented by trustees, who consented.

This was a petition by Lord de Tabley for authority to grant building leases over certain settled estates in the county of Chester, of which he was the tenant for life under a settlement made in 1832, with remainder to his first and other sons in tail. Under the above settlement certain annuities were secured to Lady de Tabley by way of pin-money and jointure, and a sum of £5,000 was directed to be raised in the usual way for portions for younger children. The estate was subject to certain mortgages taking priority of the settlement. The petitioner had one son and four daughters, and on the marriage of one of his daughters to Mr. Bathurst, in January, 1862, one fourth part of the above sum of £5,000 was appointed to her, and was, with other property, assigned to trustees upon the usual trusts for the husband, wife, and children in succession, an annuity of £150 being secured to the separate use of Mrs. Bathurst out of the income of the property comprised in the last-mentioned settlement. The consent of the mortgagees, and of all parties entitled under the settlement, including Mr. and Mrs. Bathurst and the trustees of their settlement, had been obtained; but Mrs. Bathurst had not been separately examined, in accordance with the 37th section of the Act. The petitioner applied that the separate examination of Mrs. Bathurst might be dispensed with, her interest being remote, and fully represented by the trustees of her settlement.

Freeling, for the petitioner.

Cust, for Lady de Tabley and all other parties interested under the settlement, including Mr. and Mrs. Bathurst and the trustees of her settlement, and also for the mortgagees.

The MASTER OF THE ROLLS said that as the trustees of Mrs. Bathurst's settlement consented, he would dispense with the separate examination of Mrs. Bathurst. Solicitors, Nicholl, Barnett, & Newman.

Re PARKER'S TRUST.

M.R. July 4. Ecclesiastical benefice-Augmentation of endowmentCharity-Gift upon condition of preaching a sermonSequestration-Insolvency—1 & 2 Vict. c. 110, s. 55. A testatrix by will gave a sum of consols to trustees upon trust for investment for the benefit of the vicar for the time being for ever of the vicarage of N. (which the testatrix stated was a small and poor vicarage), such vicar preaching a sermon on a certain day; and the testatrix directed that the dividends should be paid to the vicar for the time being of the vicarage of N., in augmentation thereof. The present vicar of N., who was appointed to the vicarage in 1841, did not hear of the bequest till 1858, and the sermon was not preached during that period, the dividends accumulating in the hands of the trustees. In 1847 the living was sequestrated, and the sequestration still continued. In 1852 the vicar passed the Insolvent Debtors' Court.

Held, in a contest between the vicar, the sequestrators, and the assignee in insolvency, that the gift was an augmentation, and formed an inalienable part of the ecclesiastical benefice, and that the arrears of dividends which accrued before the sequestration belonged to the vicar, and that those which accrued since the sequestration belonged to the sequestrators.

Mary Parker, by her will dated the 3rd of May, 1763, bequeathed the residue of her personal estate unto Thomas Adderley, "in trust to be by him within six months next after my decease invested in the public funds in the best, safest, and most beneficial manner, in the name of him, the said Thomas Adderley, or of his executors or administrators, for the sole use and benefit

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of the vicar for the time being of the vicarage of Newton, near Swaffham, in Norfolk (which is a very small and poor vicarage), whereof my late deceased husband was vicar, for ever, such vicar for the time being in the forenoon of every 21st day of June, for ever, preaching in the parish church of Newton aforesaid, immediately after Divine service, an anniversary sermon in commemoration of me, and of this my bequest. And I do hereby will, order, and direct that the yearly or other dividends and proceeds of the whole of my said residuum shall from time to time for ever be received and paid to the vicar of the said vicarage of Newton for the time being, in augmentation thereof, which is agreeable to the intent and desire of my said late dear husband, deceased, who had but very small preferment himself in the Church; and that the said Thomas Adderley, his executors and administrators, and every of them, shall from time to time, as occasion shall be or require, declare the trusts thereof accordingly." And the testatrix appointed Mr. Adderley the sole executor of her will, by whom the same was duly proved.

The residue of the testatrix's estate, amounting to £724 4s. 2d., was laid out in the purchase of £827 8s. 9d. Reduced Bank Annuities, in the joint names of the then Bishops of Ely and Norwich and Mr. Adderley, who, by indenture dated the 11th of April, 1776, made between the said Bishops and Mr. Adderley of the one part, and the Rev. Joshua Crofts, then vicar of Newton, of the other part, agreed to accept the trusts thereof, so that the Bishops of Ely and Norwich for the time being might always be the trustees thereof.

In 1838 this sum of stock was transferred into the names of the then Bishops of Ely and Norwich, who, by indenture dated the 25th day of January, 1839, made between the said Bishops of the one part and the Rev. Thomas Watson, then vicar of Newton, of the other part, accepted the trusts thereof; and in that indenture special mention was made of the condition that the vicar should yearly preach a commemoration sermon, as directed by the will of the testatrix. This deed was not executed by Mr. Watson, but it appeared that he was fully cognisant of the preparation of that deed, and that he received, by himself or his sequestrators, the dividends on the trust funds.

The Rev. John Hague Bloom, the present vicar of Newton, was instituted in 1841, but it appeared that he was not then informed of the bequest made by the will of the testatrix, or of the sermon to be preached in commemoration of the testatrix, and that he did not hear or know of the same until the month of September, 1858, in which year the funds were transferred into the names of the present Bishops of Ely and Norwich, who, by indenture dated the 28th day of July in that year, accepted the trusts thereof; and in this deed mention is

also made of the condition as to the commemoration sermon. This deed was prepared without the knowledge of Mr. Bloom, and he had never executed the same. In September, 1858, the Bishop's registrar informed Mr. Bloom of the bequest in the will, and that the sermon was to be preached on St. Thomas's day (the 21st of December). It was so preached on the 21st of December, 1858, and upon its being discovered that it ought to have been preached on the 21st of June, the mistake was rectified, and the sermon has been preached on the last-mentioned day since the year 1859.

The dividends on the trust fund had been received by the Bishops of Ely and Norwich since 1841, and the balance of such arrears, amounting to £447 19s. 9d., was still in the hands of the bankers of the present Bishops.

The representatives of a Mr. Steppings held a sequestration on the benefice under a judgment obtained by Mr. Steppings, dated the 11th of January, 1847. The benefice was under sequestration at the suit of Mr. Steppings from the 28th of January, 1847, until his death, when a sequestration was granted to his executors.

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The question now raised was as to the persons entitled to the arrears of dividends in the hands of the Bishops' bankers.

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Speed appeared for the Bishops, and submitted the case to the Court.

Erskine appeared for Mr. Bloom, and claimed so much of the fund in the hands of the Bishops as represented dividends accrued before 1847, when the sequestration was granted to Mr. Steppings. He had no knowledge that the sermon ought to be preached, and wilful default on his part must be shown to deprive him of his claim: Re Conington's Will, 8 W. R. 444. The contest as to the dividends accrued since 1847 lay between the assignee in insolvency and the sequestrators.

Jessel appeared for the assignee in insolvency, and contended that the sequestrators were not entitled to the dividends which accrued since 1847. The question was, whether the dividends were a part of the endowment of this benefice. If they were they did not pass to the assignee in insolvency (1 & 2 Vict. c. 110, s. 55), but belonged to the sequestrators. The result of the law upon the subject seemed to be that sequestrators of an ecclesiastical benefice only acted as bailiffs of the Bishop, and were accountable in the Bishop's court, and they could only touch that which belonged to and was a part of the benefice: 3 Burn. Eccl. Law. 390. It was not in the power of a private individual by will to make an annual sum a part of a benefice. In order to make it a part of the benefice the consent of the ordinary was necessary, testified by a solemn deed of endowment or annexation. A sum of money might be left to the vicar of a parish for the time being on condition that he should preach a sermon, but this would not be a part of the benefice; and if the vicar wilfully failed to preach the sermon, the annual payment would not belong to the benefice. The present bequest was a mere charitable gift to the vicar of Newton for the time being, on condition that he should preach a sermon, and was not an inalienable addition to the benefice. The dividends since 1847 did not therefore belong to the sequestrators, but passed to the assignee in insolvency.

Dickinson and Phear (of the common law bar) appeared for the sequestrators, but were not called upon.

The MASTER OF THE ROLLS said that he was of opinion that the sequestrators were entitled to the dividends since 1847. His Honour admitted that a gift to provide a fund for the purpose of having a sermon preached in a parish church on a certain day in the year was not of itself an augumentation of that ecclesiastical benefice; but it was open to any person to augment any benefice in the country provided in making such augmentation, by means of money or land, he complied with the provisions of the Statute of Mortmain. It was also open to any person to annex any condition, which was not illegal in its character, to his grant or gift, if the ordinary thought fit to accept it. In this case his Honour would presume the consent of and acceptance of the ordinary, the gift having been acted on for so long a time. The only question was as to the construction of the testatrix's will. If the gift had stopped after the words, "for the sole use and benefit of the vicar for the time being of Newton, which is a very small and poor vicarage," it would have been clearly an augmentation of the benefice. Then the testatrix went on to direct the sermon to be preached, but the preaching of the sermon was not the object of her bounty. The object was to augment the living; and the testatrix annexed a certain condition to the gift, the compliance with which was to entitle the vicar to obtain each particular dividend as it accrued. If in any year the vicar wilfully failed to comply with the condition, the

TUCKNISS v. ÅLEXANDER. Church Building Acts — Divisions of parishes—District chapel-Ancient parochial chapelry-Right to publish banns, solemnize marriages, &c.—Fees-Marriage by licence.

The parochial chapelry of O., within the parish of P., having had from time immemorial a church used as a parish church, with churchwardens, rates, &c., and the incumbent having performed religious ceremonies and received the fees, the King in council, under the Church Building Acts, divides it into six districts, and assigns one to the ancient chapelry itself. Out of one of the districts so created, another is carved by another order in council, and the ministers of the several districts publish banns, solemnize marriages, &c., for twenty-eight years, the last order in council for carving the district out of a district having been made eighteen years since. Questions arise between the incumbent of the church of the ancient chapelry of O., and the districts formed out of it, whether the minister of O. is or is not entitled to the exclusive right to publish banns, solemnize marriages, &c., between two persons resident in the other districts, and also whether he has an exclusive right to the fees, both as to the originally created also, whether that applies to marriages by licence? districts and that carved out of one originally so created;

that each district has distinct rights as to performance of Held, on the construction of the Church Building Acts, religious ceremonies and receipt of fees, excluding the rights of the incumbent of the chapelry out of which they are taken; and that the fact of a district being subsequently carved out of an originally created district does not restore the rights of the incumbent of the ancient chapelry so taken away by its division into districts. But held, that the case of marriages by licence stand upon the general law, and that an incumbent is not only entitled, but compellable to perform the ceremony of marriage upon the requirement of the parties producing the licence.

This was a special case under Sir George Turner's Act (13 & 14 Vict. c. 35). The plaintiffs were the Rev. Richard Austin Tuckniss, incumbent of the district of St. James, Oldham, Lancashire, and the Rev. James Bumstead, incumbent of Glodwick, in the same parish; and the defendant, the Rev. David Mitchell Alexander, was the incumbent of Oldham church. The questions upon which the opinion of the Court in the special case was asked were as follows:-First, whether the defendant was entitled to publish banns or solemnize marriages at Oldham between two persons who were both resident within the limits of the district chapelries or new parishes which had been formed out of the ancient chapelry of Oldham; secondly, whether the

defendant was entitled to retain for his own use the fees which he received in respect of the publication of such banns and the solemnization of such marriages at the said Oldham church; and thirdly, whether, if a licence had been obtained from the bishop of the diocese in which the said ancient chapelry was situate, for a marriage at the said Oldham church of such persons as aforesaid, the defendant was entitled to solemnize at the said church the marriage between such parties, and to retain for his own use the fees which he might receive in respect of such marriage. The special case stated that the parish of Prestwich, or Prestwich-cum-Oldham, in the county of Lancaster, formerly in the diocese of Chester, but now in the diocese of Manchester, was an ancient parish, and within the same there were and had been from time immemorial a parish church and churchyard; and within the said parish there had been from time immemorial a parochial chapelry commonly called Oldham chapelry; and within the said chapelry there were and had been from time immemorial a church or chapel called Oldham church, and a church or chapelyard thereto annexed, and that the said chapelry was called a parish in the Ecclesiastical Survey; and the said church or chapel and church or chapelyard were and had been from time immemorial used as and held to be the parish church and churchyard of such chapelry or parish. The said church or chapel of the said Oldham chapelry had been from time immemorial a perpetual curacy, and the right of presentation thereto was, and had been from time immemorial, vested in the rector of the parish of Prestwich; and at the said church or chapel of Oldham banns of marriage had been published, and marriages, christenings, churchings, and buryings were, and had been immemorially, solemnized and performed, and the fees paid in respect thereof had been immemorially received and retained, exclusively for his own use, by the incumbent for the time being of the said Oldham church or chapel. The incumbent and inhabitants had from time immemorial nominated and appointed churchwardens, who had from time immemorial exercised jurisdiction as such in matters civil and ecclesiastical, independently and exclusively of the parish of Prestwich, in like manner in all respects as if the said chapelry had been a parish from time immemorial; and the said Oldham church had been from time immemorial repaired by means of rates levied on the inhabitants of the said ancient chapelry, and them only, who had not from time immemorial been rated for the repairs of the parish church of Prestwich. The said chapelry had from time immemorial enjoyed and exercised independent parochial rights. Four different chapels existed within the chapelry of Oldham-namely, a Chapel of Ease at Shaw, in Crompton, and in the years 1757, 1768, and 1769, three other duly consecrated Chapels of Ease-viz., St. Margaret's, in Hollinwood, St. Peter's, in Oldham, and St. Paul's, in Royton-and the ancient church of Oldham and such four chapels were augmented from Queen Anne's Bounty, or by public grants, and under two local Acts5 Geo. 4, c. lxiv., and 9 Geo. 4, c. xcix.-for rebuilding the church at Oldham, and under them the ancient church was partially pulled down and rebuilt.

In 1829, a church called St. James's, in Greenacre's Moor, within the same chapelry, was erected under the 58th Geo. 3, c. 45, and by an order dated the 4th of March, 1835, and made by his Majesty King William the Fourth, in council, on the representation of the commissioners for building new churches, with the consent of the bishop of the diocese in which this parish of Prestwich was situate. By this order, in pursuance of the 59th Geo. 3, c. 134, district chapelries were assigned to each of the aforesaid six chapels in the aforesaid ancient parochial chapelry of Oldham-viz., a parochial chapel district was assigned to the said ancient parochial chapel (St. Mary's), another to the chapel of St. Peter's, another to the chapel of St. James's, another to the chapel of St. Margaret's, another to the chapel of St. Paul's, and another to the said Chapel

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of Ease at Shaw; and it was ordered that marriages, baptisms, churches, and burials should be performed in each of the above-mentioned chapels, and that the fees for the same should, from and after the next avoidance of the parish of Prestwich-cum-Oldham, belong to and be received by the ministers of the said six chapels respectively; and the said order was duly advertised in the London Gazette on the 5th of May, 1835. The plaintiff, the Rev. Richard Austin Tuckniss, was duly presented and instituted to the chapel of St. James's, and was now the incumbent. On the 7th of October, 1844, by another order made by her present Majesty, in council, on the representation of the Ecclesiastical Commissioners for England, and with the consent of the bishop of the diocese in which the said parish of Prestwich was then situate, under his hand and seal, and under the 6 & 7 Vict. c. 37, five new separate districts, called respectively St. Matthew's Chadderton, St. John's Chadderton, Coldhurst, Glodwick, and Werneth, were constituted within the said ancient chapelry of Oldham as it originally existed, and out of the district chapelries, assigned as aforesaid to the church or chapel of the said parochial chapelry of Oldham, and to the chapels of St. Margaret's, in Hollinwood, and St. Peter's, in Oldham. This order was also advertised on the 22nd cf October, 1844. In each of the said five last-mentioned districts a church had been built and duly approved of by the Ecclesiastical Commissioners, and consecrated as the church of such district, and each of the said five districts had thereby become a new parish, and the chancellor of the diocese in which the said new parishes were situated had fixed the fees which it should be lawful for the respective incumbents for the time being of the said new parishes to receive for the publication of banns, and the solemnization of marriages, churchings, baptisms, and burials, in the said new parishes. The plaintiff, the Reverend James Bumstead, had been duly constituted and was now the perpetual curate of the new parish at Glodwick. Since the making of the aforesaid orders, there had been an avoidance of the spiritual persons who were respectively, when the said orders were made, the incumbents of the said parish of Prestwich, and of the ancient parochial chapel of Oldham. The defendant had recently been presented and instituted to, and was now the incumbent of, the said parochial chapelry of Oldham; and the question had arisen between the defendant as such incumbent, and the plaintiffs, with reference to the right of the defendant to publish banns and to solemnize marriages in Oldham church between persons residing within the limits of the said district chapelries and new parishes respectively, and with reference to the defendant's right to retain for his own use such fees as he might receive in respect of the publication of such banns and the solemnization of such marriages. No compensation had been made to the present incumbent of the ancient chapelry of Oldham for the loss of the fees sustained by him by reason of the creation of the aforesaid district chapelries and new parishes; but the Rev. Thomas Lowe, the late incumbent, received, under an order in council dated the 27th of April, 1857, a grant of £5 per annum during his incumbency in respect of the new parishes of St. John and Glodwick; and under another order dated the 6th of February, 1859, a grant of £8 per annum in respect of the new parish of St. Matthew's, Chadderton. Upon these facts the special case was agreed upon, and it referred especially to the following statutes:-59 Geo. 3, c. 134, ss. 16, 17; 3 Geo. 4, c. 72, s. 17; 4 Geo. 4, c. 76, ss. 2, 10, 26; 6 & 7 Vict. c. 37, ss. 9, 11, 12, 14-18; 8 & 9 Vict. c. 70, s. 17; and then followed the questions as above.

By the 58th Geo. 3, c. 45, provision was made for the division of parishes into two or more distinct parishes, with an apportionment of the tithes, glebe, moduses, &c., if expedient; if not, into ecclesiastical districts, to be called "separate district parishes, and perpetual curacies," and the churches, "district parish churches," for all ec

clesiastical purposes. The commissioners had also power to build additional chapels (in case no division was made), to be served by curates appointed by the incumbents, and licensed by the bishop. By the 59 Geo. 3, c. 134, s. 16, it was enacted that it should be lawful for the commissioners, in the same manner and with the like consent as was required in the case of division into ecclesiastical districts, to assign a district to any Chapel of Ease or parochial chapel, with a curate to be nominated and licensed, subject to all the powers in force respecting stipendiary curates, provided that it should be lawful for the commissioners, with the consent of the bishop, to determine what proportion of the fees for marriages, baptisms, churchings, and burials should be assigned to such curate, and whether banns, marriages, churchings, baptisms, and burials should be solemnized or performed in any such chapel or not, and that no such chapelry should become a benefice by any augmentation of the maintenance of the curate, or bounty under any Act of Parliament. By the 17th section it was enacted that all Acts of Parliament, laws, and customs relating to publishing banns of marriage, marriages, christenings, | churchings, and burials, and the registering thereof, and to all ecclesiastical fees, oblations, or offerings, should apply to all districts, and consolidated or district chapelries, and divisions of any parishes whereof the boundaries should be enrolled in the Court of Chancery under the 58 Geo. 3, c. 45, or of that Act, and in the churches and chapels whereof banns of marriage should be allowed to be published, and marriages, christenings, churchings, and burials, or any of them, should be allowed to be solemnized, and to the churches and chapels thereof, and to the ecclesiastical persons having cure of souls therein, or serving the same, in like manner as if the same had been ancient, separate, and distinct parishes and parish churches by law. By the 3 Geo. 4, c. 72, s. 11, it was enacted that in every case in which marriages were allowed under the former Acts to be solemnized in any chapel of a district chapelry, and in which the parties or either of them contracting such marriage should reside in the district of the chapelry, or any other district of any chapelry, the banns of marriage should be published in the chapel or chapels of each of the districts in which such parties respectively resided, and no publication in any other church or chapel should be legal, valid, or effectual for the purpose of such marriage; anything in the said Act or any other Act of Parliament contained, to the contrary notwithstanding. The 5 Geo. 4, c. lxiv., was an Act "for taking down, re. building the body of the church or ancient parochial Chapel of Ease of Oldham," &c., and that was amended by the 9 Geo. 4, c. xcix.

On the 28th of July, 1843, was passed the 6 & 7 Vict. c. 37, to make further provision for the spiritual care of populous parishes; and by the 9th section of that Act the commissioners were empowered to constitute districts, and endow them to some extent, which by the 15th, 16th, and 17th sections were to become a new parish, with a perpetual curate and churchwardens, but (by the 18th section) the Act was not to affect parochial rights except as expressly provided.

In July, 1845, the 8 & 9 Vict. c. 70, passed, to amend further the Church Building Acts; and the 17th section of that Act provided that the church of a district chapelry, though augmented by Queen Anne's bounty, should be a perpetual curacy, and the minister a perpetual curate, with exclusive cure of souls, free from the control or interference of the rector, vicar, or minister of the parish from which such district chapelry should have been taken, and entitled to all fees except Easter dues.

Glasse, Q.C., and Lindley, appeared for the plaintiffs, and argued that the ancient chapelry of Oldham was not a parish, but a parochial chapel only; and was, moreover, by the 5 Geo. 4, c. lxiv., called a "Chapel of Ease."

CHANCERY.

Whatever rights, however, it had possessed, which had been exercised by its incumbents, they were all taken away by the order in council, carving out of it the other districts, so far as such districts were concerned; and each of such districts, as to the right to perform religious ceremonies in the churches or chapels, and to receive the fees, was constituted a separate and distinct parish, and the incumbent had an exclusive right to perform such ceremonies, and receive the fees. By 59 Geo. 3, c. 134, s. 17, all the laws and customs relating to parish churches were made applicable to districts, and the district of St. James was created by the order in council, in 1835, in pursuance of that Act. As to Glodwickthat being carved out of a district constituted in the same manner as the district of St. James, it followed that it possessed the same rights, and the ceremonies and fees, stood on the same footing as those performed and received by the incumbent of that district. With regard to marriages by licence, if two persons belonging to the district of St. James or Glodwick were married in either of those churches, the minister had a right to the fees.

and contended that the order in council was invalid Dr. Stephens, Q. C., and Trail appeared for the defendant, under the 58 Geo. 3, c. 45, and 59 Geo. 3, c. 134; inasmuch as, although the king in council had power to divide districts from parishes, he had not power to divide the whole of a parish, and assign one district to the parish church itself. Oldham was a parish, and had always exercised parochial rights, and its incumbents always performed the usual ceremonies and received the fees. It was designated as a parish in the Ecclesiastical Survey. It could never have been intended by the Legislature to take away parish rights, and, without compensation, give them to districts. Moreover, the order in council was silent as to the publication of banns, solemnization of marriages, &c., and therefore the incumbent of Oldham church still retained those rights, and also a right to the fees, as a sequitur upon them. Upon these grounds, the minister of St. James's was not entitled to what he claimed. With respect to Glodwick, that was under another order in council, and carved again out of a district; and, even supposing the district had taken away the rights of the mother-church, when another district was taken from it, the rights of the mother-church were restored. licences, of course the general law applied; and a licence being granted by the bishop or other official person, the fact of the contracting parties being resident in any of the districts did not take away the rights of the minister of Oldham.

Glasse, Q.C., was heard in reply.

As to

Authorities cited:-St. Giles Codex, 235; Degges' Parl. Com. 227; 1 Burns Eccl. Law, 300; Attorney-General v. Brereton, 2 Ves. Sen. 425; 58 Geo. 3, c. 45, ss. 21, 28; 59 Geo. 3, c. 134, ss. 13, 16, 17; Craven v. Saunderson, 7 Ad. & Ell. 880; 2 Stephens' Laws of the Clergy, 1161; Hornby v. Toxteth Park Burial Board, 31 Beav. 52, 10 W. R. 550; Vaughan v. The South Metropolitan Cemetory Company, 1 J. & H. 256; 9 W. R. 228, 3 Geo. 4, c. 72, ss. 12, 17; 4 Geo. 4, c. 76, ss. 22, 26; 5 Geo. 4, c. lxiv. (local Act); 7 & 8 Geo. 4, c. 72; 1 & 2 Will. 4, c. 78; 3 & 4 Will. 4, c. 61; 1 & 2 Vict. c. 107; 2 & 3 Vict. c. 49, s. 52; ibid. c. 60; 6 & 7 Vict. c. 37, ss. 11, 12, 15; 7 & 8 Vict. c. 56, s. 1; 8 & 9 Vict. c. 70; 9 & 10 Vict. c. 68, s. 88; 14 & 15 Vict. c. 97; 11 & 12 Vict. c. 710; Kennett's Parochial Antiquities, 594, cited in Stephens' Laws of the Clergy, 255, note, ed. 1840; 19 & 20 Vict. c. 104, ss. 5, 29, 33; Fuller v. Lane, 2 Addams Eccl. Rep. 419; 19 & 20 Vict. c. 55.

July 14.-KINDERSLEY, V.C., said that this was a special case for the opinion of the Court upon questions arising between the incumbents of certain ecclesiastical districts in Lancashire. One of the two plaintiffs, Mr.