Where there is a covenant not to convert pre- Persons for and against mises into a shop, or to carry on a trade without a whom Inlicense in writing; the permission of the lessor with- junctions out writing to carry on one trade will not amount to a general licence for any trade (a). granted. License to trade does not extend to all trades. Ecclesiasti cal persons. The subject of interposition by Prohibition in the carry on one case of waste committed by Ecclesiastical persons, was discussed with a degree of learning and research, in the case of Jefferson v. Bishop of Durham (b), that makes it impossible to add any thing to what is there collected. It appears from thence, that not one of the early text writers, were aware of any common law remedy against churchmen committing waste, and that the year book 2 H. 4. contained an extrajudicial opinion of Thirning, C. J., that if a bishop or archdeacon cut down all his wood, he should not be punished at common law. In the reign of James the first, however, Lord Coke unassisted by, and indeed, contrary to all practice, sagaciously inferred from two ancient records (c), that a writ of prohibition lay at common law against a churchman who committed waste: and upon these authorities in the reign of Charles the first, Lord Keeper Coventry (d) issued a prohibition of waste to a churchman under the great seal, on the application of the patron. Lord Coke in one case (e), went so far as to say that any one might have a prohibition as well as the patron, for it was the king's writ, and (a) Macher, v. Foundling Hospital, 1 V. & B. 188. (c) 1 B. & P. 109. n. (d) Ackland v. Atwell, 2 Ro. Ab. 813. (e) 1 Roll. 86. Ib. 335. 3 Bulst. 91. Persons for and against whom Injunctions granted. What acts amount to waste in ecclesi astical per sons, any one might have a prohibition for the king. It. appears, however, most satisfactorily, from a review of the doctrine collected in Jefferson v. Bishop of Durham, that Lord Coke was not justified in the extent to which he carried this doctrine; and though that case in point of actual decision, merely establishes that the Court of Common Pleas has no power to issue an original writ of prohibition to restrain a bishop from committing waste in the possessions of his see, at the suit of an uninterested person: yet it may be gathered as the opinion of the learned persons who determined it, and appears to be fairly deduced in argument, that no court of common law, has the power of issuing this writ against any ecclesiastical person, but that it can only issue out of Chancery. The parson has a fee simple, qualified and under restrictions, in right of his church: but he cannot do every thing that a private owner of the inheritance can. He may cut down timber for the repairs of the parsonage house or chancel: if it is the custom of the country, he may cut down underwood for any purpose, but if he grubs it up it is waste. He may cut timber for repairing old pews that belong to the rectory, and he is entitled to botes for repairing barns and outhouses belonging to the parsonage (a). But he cannot cut down timber for any other purpose, nor can he open mines, though he may work mines already open. A Bishop even cannot open mines, in the possessions of his Lord Hardwicke mentioned an application see. (a) 2 Atk. 216. made to parliament by Talbot, Bishop of Dur- Persons for and against ham, to be enabled to open mines, which was re- whom Infused (a). junctions granted. astical per sons not fically to apply timber cut for repairs. It has been before alluded to, as a point which has been much discussed, how far ecclesiastical persons, Ecclesiare bound specifically to apply, the timber cut for the purpose of repairs, towards the actual repairs bound specifor which it was wanted. Lord Hardwicke was of opinion that they were not so restricted (b); and Lord Eldon has observed, that it would defeat the general intention of the law, that the possessions of the church should tend to the maintenance of the church; if ecclesiastical bodies were compellable in every instance to apply the identical timber, by removing it from the most distant parts of the country in which it might happen that their property lay (c). And in a very recent case, the same doctrine was distinctly laid down by Sir T. Plumer (d). cases a court A court of equity frequently interposes by in- In what junction against the rector, at the suit of the patron, of equity will to stay waste (e). Lord Hardwicke also observed, interpose that injunctions have been granted to stay waste, at against ecthe instance of the Attorney-general, on behalf of persons. the crown, the patron of bishops (f). And though (a) Amb. 176. (b) Amb. 176. (c) Wither v. Dean, &c. of Winchester, 3 Meriv. 428. Et vide Attorney-general v. Geary, ib. 522. (d) Herring v. Dean, &c. of St. Paul's, 2 Wils. Ch. Rep. 1. (e) Bradley v. Strachy, Barnard. Ch. Rep. 399. 2 Atk. 217. 1 B. & P. 115. n. Knight v. Moseley, Amb. 176. (f) Amb. 176. clesiastical and against whom Injunctions granted. Persons for it has been said, that no precedent could be found for this (a), yet the doctrine has been recognized both by Lord Eldon (b) and Mr. Justice Heath (c). So Deans and Chapters, it should seem, may be restrained by injunction at the suit of the Crown; but not at the application of a person having no interest; and therefore where a lessee filed a bill to restrain the Dean and Chapter of Winchester from cutting timber, Lord Eldon was of opinion, that except so far as he might derive any right or interest under agreement, he was clearly an uninterested stranger, and dissolved an injunction which had been obtained by him (d). Lord Thurlow, though not without great hesitation, granted an injunction at the instance of a patroness against the widow of the deceased rector, who was committing waste. In opposition to the motion, it was contended, that where a party applies for an injunction, it was absolutely necessary previously to establish a title to the premises in question, and that the patron could not show the requisite title, having nothing more than a right of patronage, the fee simple being in abeyance during the vacancy. In this case the diocesan, ordinary, and churchwardens (who were sequestrators), were made co-plaintiffs; but it was contended by the counsel in support of the injunction, and seems to have been admitted by the court, that this was unnecessary, and that (a) 1 B. & P. 116. (d) Wither v. Dean and Chapter of Winchester, 3 Meriv. 421. the plaintiff as patroness had in herself sufficient Persons for right (a). and against whom In granted. A bill of this nature ought not to pray an account, junction as the patron is not entitled to any profits from the living (b). Before the disabling statutes bishops had a very extensive right of cutting timber, and consequently of granting leases without impeachment of waste. There are two instances of injunctions granted against such tenants, not on the ground of the want of right in the bishops to grant such leases, but in consequence of the unconscientious use which the tenants were making of their power to commit waste (c). (a) Hoskins v. Featherstone, 2 Bro. C. C. 552. (b) Amb. 176. (c) Bishop of London v. Webb, 1 P. W. 527. Bishop of Winchester's case, cit. 2 Freem. 55. |