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ECCLESIASTICAL.

Church and Clergy Cases, vol. 1, part 2.

ARTICLES OF THE CHURCH OF ENGLAND.-What latitude allowed in the interpretation of Right of private judgment. If the Articles of the Church of England admit in any case of different interpretatious, any sense of which the words fairly admit, so long as it be not repugnant to what the Church has elsewhere allowed or required, may be allowed. If such Articles are silent or ambiguously expressed upon any particular doctrine, it may be supposed that such doctrine was intended to be left to private judgment; and, upon such doctrines, all ministers of the Church, having duly subscribed the Articles, and taking Holy Scripture for their guide, are at liberty to exercise their private judgment without offence or censure. Mode in which the true meaning of devotional expressions, involving assertions, in the Church services, should be ascertained. Gorham v. Bishop of Exeter, 1 Ch. & Cl. C. 266.

BAPTISM.-Baptismal regeneration.-Doctrine of the Church of England as to Gorham v. Bishop of Exeter.-A clergyman, duly presented, in his examination by the bishop, previous to institution, stated that he did not hold the doctrine that every infant is absolutely and unconditionally regenerated by the Holy Spirit in and by baptism duly administered. The bishop, who had thereupon refused to institute by reason of the unsoundness in doctrine of the presentee, held to have been justified in such refusal. Gorham v. Bishop of Exeter, 1 Ch. & Cl. C. 232.

CHAPEL.-Faculty for taking down, removing and rebuilding. -The ecclesiastical court has power to grant a faculty for taking down, removing and rebuilding a chapel, and will grant it if the circumstances of the case appear to render such a course desirable. The wishes of the inhabitants and the opinion of the bishop will be of primary importance. A clause will be inserted to preserve the site of the old church from desecration. Clayton v. Dean, 1 Ch. & CI. C. 207.

DILAPIDATIONS.-1. The executors of a deceased incumbent may maintain an action against the executors of his predecessor for dilapidations which occurred during the incumbency of the latter. The executors of the last incumbent are chargeable with the whole dilapidations, in whose time soever they have accrued, and the new incumbent need go no further back for his remedy. Bunbury v. Hewson, 1 Ch. & Cl. C. 192.

2. On a perpetual curacy.-A perpetual curate, or his representatives, are liable to an action for dilapidations, at the suit of his successor, in the same manner as in the case of other beneficed ecclesiastics. Mason v. Lambert, 1 Ch. & Cl. C. 167.

EXAMINATION OF CLERGYMAN BY BISHOP BEFORE INSTITUTION.-Duplex querela.-A clergyman, duly presented, and tendering his presentation on November 8th, 1847, was informed by the bishop that he should examine him before institution, and December 17th was subsequently fixed by the bishop as the day on which the examination should begin. The clerk attended on that day, but under protest, the twenty-eight days allowed by canon 95 for the bishop to inquire into the qualities and sufficiency of the clerk having expired. After examination, the clerk was rejected, by reason of unsoundness of doctrine: Held, that the clerk having, though under protest, submitted to the examination, and not availed himself of the canon at the expiration of the twenty-eight days, and then called upon the bishop to show cause why he did not institute him, could not raise the objection at a subsequent time. Gorham v. Bishop of Exeter, 1 Ch. & Cl. C. 221.

FEES IN NEW CHURCHES AND CHAPELS.-Where a district chapelry had been formed out of an old parish under the Church Building Acts, it had been arranged that two-thirds of the fees for marriages, churchings, baptisms, &c., should, during the life of the incumbent of the old parish, belong and be paid to him, and one-third to the minister of the chapelry, no duty is thereby imposed upon the latter to receive such fees for the purpose of paying them over to the former. King v. Alston, 1 Ch. & Cl. C. 179.

LEASES OF TITHES.-Lessees of tithes are enabled by the Tithe Commutation Acts to surrender their leases, but the tithe not being absolutely extinguished, the covenant of an unsurrendered lease remains in force, and is not determined merely by a commutation having taken place. Tasker v. Bullman, 1 Ch. & Cl. C. 190.

LECTURER. Authority of bishop-Clergyman officiating without licence of the bishop-Public officiating.-The warden of Sackville College, in which there was an unconsecrated building called "The Chapel," where residents and servants of the college attended, was held to have committed an ecclesiastical offence by officiating and administering the sacraments in such chapel after being inhibited by the bishop, this being a public officiating, and requiring the bishop's licence. Freeland v. Neale, 1 Ch. & Cl. Č. 159.

SEXTON.- Right of appointment, in whom vested.—In the absence of any custom proved, the presumption of law as to the proper party to appoint a sexton, is to be derived from the duties which the sexton in the particular case has to perform; so that the right will be in the incumbent or in the churchwardens, or in the incumbent and churchwardens jointly, according as the duties of the sexton are connected with either one or both of those parties. It will

never be in the inhabitants, except by custom. Cansfield v. Blenkinsop, 1 Ch. & Cl. C. 217.

STOPPING UP PATHS IN CHURCHYARDS.-The notice, which by the statute 59 Geo. 3, c. 134, is directed to be given after any path in a churchyard has been stopped up by order of the Church Building Commissioners, must notwithstanding be given before the order, and if not given until afterwards, the order will be bad. Reg. v. Arkwright, 1 Ch. & Cl. C. 186.

TITHE.—1. When rectorial or vicarial.—The title of a vicar to his tithe depends upon endowment, either actually proved or inferred from prescription or usage; in the absence of proof, from which the prescription of the tithes of peas or beans by the vicar could be inferred, it was held that these tithes were rectorial and not vicarial. Nature of the proof required to establish a title to such tithes in the vicar. Att.-Gen. v. Ward, 1 Ch. & Cl. C. 164.

2. Decision of commissioners as to modus.-The time of three months allowed by the Tithe Commutation Act as to the time within which a party dissatisfied with the award of the commissioner may bring an action, if it has once begun to run, is not affected by the death of the incumbent and consequent vacancy of the living. Homfray v. Scroope, 1 Ch. & Cl. C. 195.

WASTE.-Dilapidations - Opening and using gravel pits.— The executors of a deceased rector held not liable in an action for dilapidations by reason of such rector having pulled down a barn belonging to the rectory, and erected another on a more convenient site, without obtaining a faculty from the bishop for that purpose. To constitute waste, there must be either a diminishing the value of the estate, or an increasing the burthen upon it, or an impairing the evidence of title,-much more must one of these three requisites exist in an action for dilapidations. Gravel pits had been opened on rectory land, and gravel taken by the surveyor of highways, and the ground had not been sloped down as required by statute. Neither the taking of such gravel by the surveyor, nor the neglecting to compel him to slope down, is waste by the rector; but the defendants were held liable in respect of so much of the gravel as had been dug out and sold generally by the late rector, although the pits had been opened prior to his incumbency, the evidence showing that no gravel had been dug and sold generally previously. Huntley v. Russell, 1 Ch. & Cl. C. 200.

List of Cases.

COMMON LAW.

PAGE

Abley v. Dale, 1 Q. B. Pr. 626.... 31
Ackroyd v. Smith, 19 L. J. (N. S.)

C. B. 315..
Allen v. Sea, Fire, Life Assurance
Company, 19 L. J. (N. S) C. B.
305
Ashley v. Brown, 19 L. J. (N. S.)
Q. B. 477...

Att.-Gen. v. Cleobury, 4 Exch. 65..

- v. Great Western Railway Company, 19 L.J. (N. S.) Exch.

407

Australia (Bank of) v Harding, 19 L. J. (N.S.) C. B. 345 Bainbridge v. Wade, 20 L. J. (N. S.) Q. B. 7

Barber v. Thomas, 7 C. B. 612..........

Barton v. Dawes, 19 L. J. (N. S.) C. B. 302..

Batty v. Melillo, 19 L. J. (N. S.) C. B. 362.....

Bell v. Port of London Assurance

Company, 1 Q. B. Pr. 691.... Berton v. Laurence, 1 Q. B. Pr. 668

Beswick v. Cupper, 7 C. B. 669 Birch v. Lowndes, 19 L. J. (N. S.) Q. B. 431....

Blagrave v. Blagrave, 19 L. J. (N. S.) Exch. 414

Blanford v. Morrison, 19 L.J. (N.S.)

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Clegg v. Dearden, 12 Q. B. 576.... Clipperton v. Mattery, 12 Q. B. 687 20 Coleman v. Biedman, 7 C. B. 871.. Courtenay v. Earle, 20 L. J. (N. S.)

59

C. B.7..

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v. Laurie, 12 Q. B. 640.... v. Temple, 12 Q. B. 640

Q. B. 28

Q. B. 449

Doe d. Baker v. Combes, 19 L. J. (N. S.) C. B. 306

d. Devenish v. Moffatt, 19 L. J. (N. S.) Q. B. 438

d. Marriott v. Hertford (Marquis

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of), 19 L. J. (N. S.). Q. B. 526 27
d. Millets v. Millets, 11 Q. B.
1036..

Dunn v. Loftus, 8 C. B. 76

v. West, 20 L. J. (N. S.) C. B. 1 Elves v. Croft, 19 L. J. (N.S.) C. B. 385

Ely v. Moule, 20 L. J. (N.S.) Exch. 29

Exeter (Bishop of ), Ex parte, Gorham, In re, 19 L. J. (N. S.) Exch. 376

Ford v. Graham (Sir James) 1 Q. B.

Pr. 604

19

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