CHAPTER X.

CURATES, MINISTERS, DONEES.

SECT. 1.- Curates generally.

2.-Perpetual Curates.

3.-Ministers of Chapels of Ease.
4.-Donees.

SECT. 1.-Curates generally.

It is to be remarked that the generic term curate appears Meaning of in its original sense to have comprehended all clerks who curate. had cure of souls, and it bears this signification in the rubrics of our Prayer Book, as in the rubric preceding the Administration of the Lord's Supper, where it is said, "So many as intend to be partakers of the Holy Communion shall signify their names to the Curate at least sometime the day before;" and in the prayer "for the Bishops and Curates." "Persona (b), (Lyndwood, using the word in the sense of Parson, says,) dicitur quandoque curator alicujus ecclesiæ parochialis.

Curates in our Church are now of two kinds :

Different kinds

1. Temporary or stipendiary curates, the spiritual assist of curates. ants of a rector or vicar, by whom they are employed and paid; they may officiate in a parish church or chapel of ease in the parish of the rector or vicar. Their status is

so much connected with the general subject of benefices that they will be considered in their relations to the ordinary and the rector or the vicar, in a subsequent chapter after that on the law appertaining to benefices.

2. Permanent or perpetual curates, the clerks who officiate in parishes or districts to which they are nominated by the impropriators.

Something has been already said on the rights of the lay impropriator where there is a perpetual, curate. We will now consider a little more closely the status of this class of beneficed clerk.

(b) L. 3, t. 1, Gloss on personatibus e., citing Guido de Baiipho,

Archidiaconus Bononiensis, who
flourished A.D. 1300.

Origin of perpetual cura

cies.

Land annexed

curacy cannot

be leased by

SECT. 2.-Perpetual Curates.

The origin of perpetual curacies in this country was thus: By the statute 4 Hen. 4, c. 12, it is enacted, that "in every church appropriated there shall be a secular person ordained vicar perpetual, canonically instituted and inducted, and covenably endowed by the discretion of the ordinary."

But if the benefice was given ad mensam monachorum, and so not appropriated in the common form, but granted by way of union pleno jure; in that case it was served by a temporary curate belonging to their own house, and sent out as occasion required. The like liberty, of not appointing a perpetual vicar, was sometimes granted by dispensation, in benefices not annexed to their tables, in consideration of the poverty of the house, or the nearness of the church. But when such appropriations, together with the charge of providing for the cure, were transferred (after the dissolution of the religious houses) from spiritual societies to single lay persons, who were not capable of serving them by themselves, and who by consequence were obliged to nominate some particular person to the ordinary for his licence to serve the cure; the curates by this means became so far perpetual, as not to be wholly at the pleasure of the appropriator, nor removable but by due revocation of the licence of the ordinary (c).

It has been settled, by a decision in the Court of to a perpetual Queen's Bench, that land annexed to a perpetual curacy by the governors of Queen Anne's Bounty, under 1 Geo. 1, stat. 2, c. 10, ss. 4-21, cannot be leased by the curate, so as to bind the successor, if the patron only consent, and not the ordinary (d).

the curate, so as to bind the successor, without the consent of ordinary and patron.

The case was very elaborately argued for the plaintiff (the successor to the perpetual curate, who denied the validity of the lease granted by his predecessor) by Mr. E. V. Williams (e), who cited the passage in Burn for the history of perpetual curacies, and contended, that 1 Geo. 1, stat. 2, c. 10, ss. 4-21, did not bring the curate within the enabling clause of sect. 1 of 32 Hen. 8, c. 28, because, first, at common law, the right of the perpetual curate cannot be larger than the common law right of a parson or vicar, and they had not with the patron, but

(c) Gibs. 819; 1 Consist. 165. (d) See Doe d. Richardson v. Thomas, 9 Ad. & Ell. 556; 1 Per. & Dav. 578.

(e) Afterwards Mr. Justice Williams, and now the Right Honorable Sir E. V. Williams.

without the bishop, the whole fee (ƒ); high authorities had said that the fee simple of the lands was in no one, but in abeyance; for though Fearne had doubted this (g), it was affirmed by Butler (h), by Blackstone (i), and by Mr. Justice Coleridge's note on the Commentaries of Blackstone (k). Secondly, because the lease was not warranted by the enabling statute of 32 Hen. 8, c. 28; for sect. 1 does not apply to parsons who have "no inheritance either in fee simple or in fee tail in right of their churches," but to bishops, deans, &c. At common law, before the disabling statutes, a corporation aggregate might alien like an individual, but a corporation sole requires confirmation by those quorum interest. Nor does sect. 4 bring perpetual curates within the enacting part of the statute, because it only excludes parsons and vicars by its proviso; for sect. 4 is not in the form of an exception, but of a declaration, that the act shall not "extend" to the cases mentioned. Nor does 1 Geo. 1, stat. 2, c. 10, s. 4, bring a perpetual curate within the enacting part of the foregoing statute, for it could but place him on the same footing as parsons and vicars, and they had not a whole fee "in right of the church" (1).

It was further contended that the parties obtaining the confirmation had confounded the case with that of a donative, where the patron is in loco episcopi. The case of Jenkinson v. Thomas, where it was held the curate, whose curacy was augmented by Queen Anne's Bounty, was not within the penalties of sect. 21 of Hen. 8, c. 25, was on the construction of a penal act. 3rdly. The augmentation took place in 1791, and the lease was granted in 1800, and therefore is void by sect. 2 of 32 Hen. 8, c. 28. The judges, it will be seen, arrived at a conclusion in favour of the plaintiff, but from different premises.

Lord Denman, C. J.-"I doubt much whether the perpetual curate has any fee simple at all; and, if he has not, he is not within stat. 32 Hen. 8, c. 28, s. 1. even if he has, I doubt whether it be in right of the church:

Next,

Cro. Eliz. 350; Bis v. Holt, 1 Sid. 158; S. C. as Bill v. Holt, 1 Keb. 576; S. C. as Bisco v. Holte, 1 Lev. 112; Stradleing v. Morgan, Plowd. 205; see argument in TillAdam v. Inhabitants of Bristol, 2 Ad. & Ell. 395, 396; 4 Nev. & Man. 146; Abbott, C. J., in Rex v. Hall, 1 B. & C. 136; 3 Salk. 377.

curacy cannot

be leased by the curate, so as to bind the successor, without the consent of

patron.

Land annexed "for he gets his fee, if at all, by force of 1 Geo. 1, stat. 2, to a perpetual c. 10, ss. 4, 21. But, if he has a fee simple in right of the church, does he not fall within sect. 4 of stat. 32 Hen. 8, c. 28 ? It is said that the act did not contemplate the case of land given to the perpetual curate in succession: if it had, it would have included the case in sect. 4. But, if the estate can be brought within sect. 1, can we not also ordinary and bring it within sect. 4? The curate is not the rector; he has not the great tithes: nor can he be called the parson, which implies a peculiar character. But he appears to be a vicar: for he serves the church in that capacity. Jenkinson v. Thomas (m) certainly seems opposed to this view: but the court was there construing a penal statute. The clause in the present case must receive a more liberal construction. I am therefore of opinion that, if a perpetual curate be within sect. 1 of stat. 32 Hen. 8, c. 28, he is also within sect. 4. His power is, therefore, no more than it would have been before that statute; and the lease is void as against the successor for want of the ordinary's

Littledale, J.-"In answer to my doubt, whether the perpetual curate could be said to have any land in right of the parish church, it was urged that the case so stated the fact. It is true that the messuages and lands are allotted and applied to the church or chapel of the parish; and the patron and impropriator of the curacy and parish church are also spoken of in the lease, as well as the perpetual curacy of the parish. Yet the documents speak of the curate and curacy throughout; and the grant is to the curate and his successors. Now, has the curate the land in right of the church? If not, there is an end of the question, though he have a fee. As to this last point, I think it makes no difference whether he has a fee simple, or only something in the nature of a fee simple. To all intents and purposes, his estate resembles that of an archbishop, who can no more sell than a parson. The curate has not the land to him and his heirs; but he has it to him and his successors; I think, therefore, that he has, within the meaning of the statute, an estate in the nature of a fee simple. But has he it in right of his church? Clearly, at the time of passing stat. 32 Hen. 8, c. 28, he had no land in such a right. Then has he it in that right, under 1 Geo. 1, stat. 2, c. 10? There may be a difficulty as to the meaning of the word church, in sect. 1 of stat. 32 Hen. 8, c. 28, whether it mean the actual parish

(m) 4 T. R. 665.

66

church, or the church generally speaking; as a bishop holds, not in right of this or that particular church, but still of the church generally. I admit, on the whole, that the curate may be said to be seised in fee simple in right of his church. But then, is he within sect. 4 of stat. 32 Hen. 8, c. 28? He is not vicar by name: but is he so in effect? I think he is something less. A vicar is one who is substituted for the rector, to serve the church, the tithes being in the hands of a lay rector. The perpetual curate, who in fact stands in the place of the vicar, cannot be more than a vicar. If, therefore, the perpetual curate be brought within the equity of sect. 1 of stat. 32 Hen. 8, c. 28, I think he is also brought within that of sect. 4."

Williams, J.-"It is clear, from what has been conceded, that there is no ground for contending that a perpetual curate was within stat. 32 Hen. 8, c. 28, s. 1, before the passing of 1 Geo. 1, stat. 2, c. 10. Till then, he was a mere stipendiary performing the clerical duties of the church. Then, the whole question is, whether 1 Geo. 1, stat. 2, c. 10, gives the perpetual curate a fee in right of his church. That would be saying a great deal, and more, probably, than would be consistent with the claims of the patron and the lay impropriator. Vicars are mentioned by name in stat. 32 Hen. 8, c. 28, s. 4. When we consider the origin of perpetual curates and vicars, it seems that either the curates come within the denomination of vicars or do not come at all within the enabling words of sect. 1. There can be no doubt that they do come within the general intent of the disabling clause, sect. 4, although, in a question upon enforcing a penalty (n), it was held that they were distinct from vicars or parsons. This is a case not contemplated at the time of passing stat. 32 Hen. 8, c. 28; and, by holding that the curate, if brought within sect. 1, is also brought within sect. 4, we are only carrying into effect the meaning of the legislature."

Coleridge, J.-" I agree that judgment must be given for the plaintiff. It follows naturally from the course of the argument that we should come to our conclusions on grounds somewhat different; since it is contended that the curate is not within sect. 1 of stat. 32 Hen. 8, c. 28, and also that, if he be, he is within sect. 4. My opinion is, that he is not within sect. 1. It is admitted that, when the statute passed, a perpetual curate was not within it. That being clear, and the law being still so with respect

(n) Jenkinson v. Thomas, 4 T. R. 665.