The Sun.
London, England, 1824-07-09 00:00:00

LAW INTEMAGENCE.

COURT OF KING'S BENCH.
TRINITY TERM, FRIDAY, JULY 2, 1324.
TILE KING v. THE BISHOP OF PETERBOROUGH.

JUDGMENT.

LOUD CHIEF JUSTICE Asinovr—ln the case of the King
and the Bishop of Peterborough, in which was areapplication
for a writ. of prohibition to stay, proceedings in a monition
issued to the Rev. Mr. NVetherell, incumbent of the rectory of
. for the payment of 1201. to his curate, the Rev. Mr.
Paris.—This case was very elaborately argued before us, upon
the construction of the 57th of Gco. 3. chap. 1)9., and the prior
Acts upon this subject.
The facts upon which the question has arisen are shortly
these :—Mr. Wetherell, being generally resident in his rectory,
and generally discharging the duty of him parish, was desirous
of having some assistance, and principally with reference to a
school which he had established, and which required his atten-
tion a good deal. Ile engaged Mr. Paris to become his curate,
at the yearly stipend of 100/., as it would appear, for a year;
but at the end of three months there is an application to the
Bishop to licence Mr. Paris. It was then that this contest com-
menced, for Mr. AVetherell remonstrated with the Bishop, and
desired that he should allow his curate less. The Bishop hav-
ing fixed his salary at 1201. per annum, Mr. Wetherell alleges
that he could not demand more than 100/. The fact does not
appear to have been, at the time when the licence was applied
for, communicated to the Bishop that there was an agreement
between 11r. Paris and himself that lie was to receive las.
Differences having arisen between 31r. Wetherell and his
curate, Mr. Paris quitted the curacy, and claimed his salary of
1201. He applied to the Bishop, who issued his monition for
the payment of the curate's salary, but without specifying the
amount. Soon after, Mr. Wetherell received from the church-
warden a licence, stating that the 1201. had been stopped, the
Mello)) thinking it proper to reduce the incumbent's income to
1001. per annum. 111 r. Wetherell then applied to this Court
for a writ to prohibit the alteration of the salary.
Therefore the questionis, whether a curate can have the be-
nefit of proceeding by a monition for the recovery of a salary,
assigned by the Bishop without the consent of the incumbent,
such incumbent generally discharging the duty himself. The
process by monition is not according to the general course of
the Ecclesiastical Court, for the claim of a salary. In opposi-
tion to the writ, It was argued that the proceeding was well
founded upon the authority of the fifty-third section of the 67th
of Geo. the Third, chap. 99, by which it was enacted, " That
it should be lawful for the Bishop, and he is there required,
subject to the several provisions and restrictions in the Act con-
tained, to appoint to every curate such salary as is allowed'und
specified in the Act." It is provided by the Act " that every
licence, which is granted by the Bishop to a stipendiary Curate,
under that Act, shall state the amount of the salary ;---and that
in case any difference shall arise between any rector or vicar, or
person holding any benefice, and his curate, on the subject,
touching such stipend, or allowance, or the payment thereof, or
the arrears thereof, the Bishop, on complaint to him made, miry
and shall euininarily hear and determine the same ; anti in case
of wilful neglect or refusal to pay such stipend, salary, or allow.
ante, or the arrears thereof, he is thereby empowered to pro-
ceed, by monition and sequestration, to seuucster the profits of
the benefice for and until payment thereof."
IVe think this seldom relates only to cases where the licence
is granted, and the salary is assigned, in some way in confor-
mity with the Act; and we are to inquire if the salary in guess
dun has been assigned to the Curate of a resident incumbent,
was it not to an amount which the incumbent. did not consent
to ? . For we are of opinion, that the proceeding by monition
cannot be supported ; unless, in every case, the incumbent de-
sires the assistance Of a licenced Curate; although In some cases
the Bishop can allow a salary greater titan the incumbent is
willing to pay, and the Bishop has power and authority to re.:
fuse a licence if he considers the proposed stipend to be inads.
quate ; but that is very different to granting an allowance of a
stipend greater than what is agreed on by the incumbent and
the Curate.
In the argument before us reference was made to the
preceding Statutes. The Statutes on the subject are the
Act of the 12th Queen Anne, chap..l2. The 12th of Anne
gave a summitry remedy to the curate for the due payment of
his stipend. The provisions of that Statute are applicable to the
cam of the absence of the incumbent. The next Statute on
the subject is the 36th of George the Third, chap. 83. This
Act begins by reciting at length the provisions of the Statute of
Queen Antic ; and it further recites, that in many place's the
provision made in and by the said Statute for the support and
maintenance of such Curate had become insufficient; and it
then proceeds to enact " that It shall be lawful for the Bishop
or ordinary to appoint, utpor
his hand and seal, an allowance
for any Curate, heretofore nominated or employed, or hereafter
to be nominated or employed, not exceeding 'M. per annum.
Connecting this enactment with the subsequent provisions of
the Act, we think its operation was intended to be confined to
the Curates of non-resident incumbents. It gives the same
authority over Curates employed, though not regularly nomi-
nated, as well us to Curates who have been or Khali be duly no-
minated, whereas the Statute of Anne only relates to Curates
nominated. The other section on the subject is the 6th section,
which, after reciting " that it is expedient the authority of Or-
dinaries to licence Curates, and to remove licenced Curates,
should be further explained, enlarged, and confirmed, it enacts
htol tai s
iot r
shall el eat ,cytftilial
lly pfllrydeidnabryy
tthoe 1 iicteencctoeruNri
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expressin otherwo words,
Incumbent of
nominationw fr
ittitifii
lisiyht, Fit
orci itultihraCetleoi shall
rriyiaCivsyheabp thee been
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it
reiti d that
ivainthoutinotche.essO,artuliynlaicryenscledl have
granted
to any Curate employed, within' his jurisdiction, and to reniove
such Curate for such good and reasonable cause as he shall up-
1. prove, subject nevertheless to an appeal, as well in the case of
a grant of a licence to a Curate who has not been nominated, as
in the recovation of a licence granted to a Curate." Now, look-
ing at die construction of this section of the Statute, with refe-
rence to the words of the first section, which introduces the
word " employed,"
only to the Curate of a non-resident Incumbent. There
if appears to us that this section applies
is nothing to chew that it was intended to extend to the
Curates of resident Incumbents. Then we come to the
53d of George the Third, cap. 149, which begins by recit-
ing the title of the 12th of Anne and 86th George HI. It
also states, "That whereas by a canon or ecclesiastical consti-
tution made in the year of our Lord 1603, in the reign of his
Majesty King James 1., it was provided, that no curate should
be permitted to serve in any place without examination, and
admission of the Bishop of the diocese or Ordinary of the place,
having episcopal jurisdiction, in writing, under his hand and
seal, having respect for the greatness of the cure and meetness
of the party ; anti that the said Curates and Ministers, if they
remove from one diocese to another, should not by any means
be admitted to serve without testimony of the Bishop of the
diocese or Ordinary of the places as aforesaid, whence they
came, in writing, of their honesty, ability, and conformity to
the ecclesiasticai'lewe of the Church of England; mind that none
should serve more than one church or chapel upon one day,
except where such Ministers as should serve in two places be not
able, in the judgment of the Bishop or Ordinary as aforesaid,
to maintain a Curate : And whereas the provisions of the said
-acts and canon, and of' the laws in force with respect to Curates.,
have been found insufficient, and it is necessary that more effec-
tual provision should be mule to secure a competent maintenance
to Curates, in order to ensure the due and regular performance of
the service of the Church of England, in parishes where holm.
bents do not reside."
of, or person holding an
It then enacts, •" That every Incumbent
or parochial chapelry,benefice, donative, perpetual curacy,
thereon, (unless such 'person shall do the duty of the same,
vicarage-h0t..., or ether usual house of tesidence'
who does not, or shall not, duly reside
having a legal exemption from residence, or a license to reside
out of the same, or to reside out of the parsonage-house, or
• the same), and who shall, belonging tse
I"ssing of this act, or after his induction or appointment, or
after the death or removal of a former curate, neglect to miomein.
ate a proper curate, to be licensed by the Bishop of the diocese
or Ordinary of the place having episcopal jurisdiction, to serve
for die period oficiv months after the
his church, or chapel, or who shall, fur the period of three months
after the death or resignation of any curate who has served' his
church or chapels neglect to notify to the Bishop of the diocese
such death or resignation, shall forfeit and lose all the benefit
of any dispensation or exemption from residence, or license
for non-residence, and be subject and liable to such and the like
penalties for non-residence as if he. had no such dispensation,
exemption from a residence, or license for non-residence."—
This first section, therefore, plainly relates only to curates
of non-resident incumbents. The second section of this Act
sisevtelnieone from which
'Thiel,hiclith the fifty-third section ,of the fifty_
ofis admitted to be taken. It
enacts " that it shall be lawful for the Bishop or Ordi.
nary, and he is hereby required, subject to the several pro-
visions hereinafter contained, to appoint to every Curate so
• licensed such sufficient salary as is allowed and specified in this
Act." It then proceeds to give the summary jurisdiction in
cases of differences between the Curate and incumbent for the
recovery of the arrant of stipend. This section is an addition to
the'first, and therefore it cannot be applied to any cases except
those mentioned In the first section, unless by some other part
of the Act there should appear to be a clear distinction. The
3d section has reference to the residence of the Curate in the
parsonage-house, in the case of the nonresidence of the
incumbent. The 4th also
.relates to the para9age.house.—
The 6th ,section is, also in respect to the giving up of
possession of the Parsonage-house. The 6th regulate,' the
filing, in the registry of. the diocese, licences and revocations.
The 7th enacts, that in case any person shall be inducted to