granted for a pew to a non-parishioner, the latter may claim it by prescription.1 And an inhabitant who has a pew assigned to him in a new district church is held to surrender his right to a pew in the parish church.2 An action at common law lies for perturbation of pew or disturbing the possession, as well as a suit in the ecclesiastical court. In attempting to establish this prescriptive right, it will be fatal, if the origin of the user is shown to commence within legal memory, as, for example, only forty years ago. The tenant of the messuage to which the pew is appurtenant can also claim possession. And when the messuage is subdivided, all the occupiers may claim to use the pew. And the possession must not only be proved to be in the predecessors of the person claiming, but all repairs necessary and alterations must be shown to have been also done by them exclusively. Miscellaneous functions of parish vestries.-Though the rector when once instituted has a freehold estate in the church and churchyard, subject to various restrictions, and though he is a corporation sole, yet he does not represent the parish or the inhabitants generally. The parish is not a corporation, and yet the inhabitants in vestry assembled are often empowered by statute to meet and decide upon various miscellaneous matters referred to them by different statutes, such as those relating to election of churchwardens, to highways, and the obsolete self-assessment to church-rates. These meetings used at common law to be held in the parish church, or rather in the room called the vestry, which gave its name to such meetings. Vestries had been so held in the parish church from time immemorial; but in 1850 the legislature authorised a separate building to be erected or hired for this use at the expense of the ratepayers. At that time a flagrant case of what was thought desecration had occurred in a disorderly meeting of the vestry at Shoreditch, which lasted so long that, the church being needed for evening service, the meeting had to be dispersed. And since that date some of these meetings Lousley v Hayward, 1 Y. & J. 583. 2 19 & 20 Vic. c. 104, Parker v Leach, § 5. 7 75 Parl. Deb. (3) are prohibited from being held in the church.1 This meeting of the inhabitants in vestry assembled being usually in the church or part of it, led to the incumbent being present; and one duty, or rather privilege, belonged to the rector or vicar in all such meetings, which was, that he had the right to preside. This right was apparently not quite clear according to the common law. But in 1818 a statute regulated such meetings; and while the churchwardens do most of the duty relating to giving notice, yet the minister's directions are superior to theirs if they differ from him.3 And the rector, vicar, or perpetual curate if present, is entitled to take the chair and has a casting vote. And by virtue of this position he regulates the proceedings, and if a poll is demanded he can appoint the time and place, subject always to a remedy by mandamus, if he fail to meet the convenience and justice of the case according to the business in hand. And on ordinary occasions the minister has the right to settle the order of business and appoint the hour of the meeting, seeing that such matters cannot be conveniently left to the meeting itself.5 Residence of clergy and repairs thereof.-When once an incumbent was instituted to the benefice his duty obliged him to remain and reside personally among the people. This duty was recognised by the laws of Justinian. The non-residence of a parochial clergyman was from the earliest times deemed a scandalous inconsistency, at variance with the spiritual vocation, and the Council of Trent sought to have the rule enforced. And it was for this reason that our own common law excused the clergy from being obliged to act as bailiffs, or filling secular offices which required their attention.8 The theory of the common law with reference to them thus came to be, that each incumbent of a parish church was deemed resident on his cure. And for a like reason he was entitled to a house 9 1 1 & 2 Will. IV. c. 60, § 29. In 1850 power was given to the ratepayers of parishes having more than a population of 2,000 to build or rent a building for holding vestry meetings, and to borrow the money and secure it on the rates.-13 & 14 Vic. c. 77. Stoughton Reynolds, Cas. 1. Hardw. 274. 358 Geo. III. c. 69. 4 R. v D'Oyley, 12 A. & E. 139. 5 R. v Tottenham, 4 Q. B. Div. 369. 6 Nov. 6, c. 2. 7 Van Esp. p. i. tit. 11. s 2 Inst. 625. 9 Ibid. and glebe, called by the canon law a manse.1 And no church could be regularly consecrated unless this condition were complied with. The common law on this subject was further enforced by the legislature. A statute of Henry VIII. made it compulsory under a penalty for the incumbent to live in the parish, and this law was only repealed in 1837.2 Even the want of a parsonage-house was deemed no excuse for living out of the parish and for escaping the penalties of non-residence, because he must still reside at least in the parish; 3 yet ill-health was held to be a valid excuse. The bishops also were entrusted with a power to license non-residents. But notwithstanding this theory, many churches were nevertheless in existence without any adequate residence, or without the means of repairing it. In 1777 it was felt to be a grievance that the clergy were induced to reside at a distance for want of proper habitations, by which means the parishioners lost the advantage of instruction and hospitality. Accordingly power was given to incumbents, whenever one year's income would not suffice to build or repair the residence, to borrow with the ordinary's consent a sum not exceeding two years' income, and mortgage the glebe, tithes, and profits for a period of twenty-five years." Governors of Queen Anne's bounty.-The governors of Queen Anne's bounty now assist the poorer clergy" by 1 Spelm. in verb. x. 3, 39, 1; Lind. 254; Gibs. 661. So called in Scotland to this day. 2 21 Hen. VIII. c. 13; 1 & 2 Vic. c. 106. Scammell v Willett, 3 Wilkinson v Allott, Cowp. 429. 3 Esp. 29. 5 Lindw. 132. 6 17 Geo. III. c. 53. If the benefice did not exceed in value 1007., the bishop might also with the patron's consent mortgage the glebe, tithes, and profits, in which case the incumbent had to pay the interest.-17 Geo. III., 53, § 8. In cases of benefices worth more than 1007., the bishop might nominate four beneficed clergymen to examine and report, and raise money by mortgage in like manner.-1 & 2 Vic. c. 106, § 62. And a similar power of borrowing on mortgage is extended for the acquisition of twelve acres of land contiguous to the parsonage, and to build stables or outbuildings, and fences.-28 & 29 Vic. c. 69. But the consent of the bishop and patron is required, and the maximum of the loan is defined. The inode of repaying the borrowed money is also set forth in statutes 17 Geo. III. c. 53, §§ 3, 6, 7; 1 & 2 Vic. c. 106, § 65. In 1836 there were 10,553 benefices, of which 2,878 had no residences, and of which 1,728 had no fit residences. 7 The tenth part, of the income of the clergy in the time of advances for the purpose of improving their residences.1 And the colleges in Oxford and Cambridge are authorised by statute to employ their moneys for like objects. And the wishes of charitable persons disposed to make gifts of land or money for the purpose are facilitated by statute.3 And the residences of deans, canons, and bishops, may be altered and disposed of in various ways, under the authority of express provisions of like statutes.* 5 Licence for non-residence.-The powers of bishops to dispense with residence, which under the canon law had been left vague and shadowy, were curtailed by statute; and now they can only grant their licences under certain conditions, and on being made acquainted with the whole particulars. And in a few cases the further consent of the archbishop must be obtained, and the archbishop may be appealed to if the bishop refuses the licence in the cases enumerated. And to meet extraordinary circumstances, the bishop and archbishop may together grant a licence in cases not enumerated in the statute. In 1837 greater uniformity was enforced by means of a statute as regards non-residence, and minute rules were laid down.$ If the incumbent absent himself more than three months in one year without having a licence or exemption, he forfeits part of the annual value of his benefice. Hen. III. had been granted to the Pope. The first fruits of vacant benefices obtained from Edw. I. were also given to the Pope. At the Reformation Hen. VIII. transferred these funds to himself. Queer. Anne gave up the funds to form a fund to increase small benefices. — 2 & 3 Anne, c. 11. The governors of Queen Anne's bounty now distribute about 10,000l. a year, and the House of Commons from time to time has voted public money to aid this fund. 1 17 Geo. III. c. 53, § 16; 1 & 2 Vic. c. 23, §§ 4, 72. 2 17 Geo. III. c. 53, § 13; 1 & 2 Vic. c. 23, § 5. 3 43 Geo. III. c. 108; 51 Geo. III. c. 115; 28 & 29 Vic. c. 69. 4 3 & 4 Vic. c. 113, § 59; 4 & 5 Vic. c. 39; 5 & 6 Vic. cc. 26, 27. 51 & 2 Vic. c. 106, §§ 42-44. 6 Ibid. 7 Ibid. § 44. 8 1 & 2 Vic. c. 106. 9 Ibid. § 32. A good ground for obtaining a licence is, that there is no fit house of residence, but even with a licence he must live within a distance of two or three miles.-1 & 2 Vic. c. 106, § 33. And deans, professors at universities, and certain chaplains, had greater liberty allowed to them.-Ibid. § 38. And no licence for non-residence continues in force for more than two years.-1 & 2 Vic. c. 106, § 46, though it is not affected by the death of the bishop who granted it. And he or his successor may revoke it after Ecclesi Dilapidations in ecclesiastical property. astical property differs from other property, not merely in this, that it can neither be sold, nor alienated, nor burdened,1 these three disqualifications making it in reality nothing else but the official residence for the time being of each successive rector, vicar, dean, bishop, or others who hold office in the church; but the law of waste has always been deemed so serious, that it used to be formerly treated as a criminal offence in the ecclesiastical courts. So that while other tenants for life at most were liable to injunction and action for damages, the spiritual incumbent was treated as a criminal, and might be deprived of his estate, such as it is, whenever he allowed dilapidations, this being the technical description of legal waste when applied to their property. And though nobody could suppose that such a matter had anything spiritual in it, yet the ecclesiastical courts long claimed the exclusive jurisdiction, and entertained suits for dilapidations which the temporal courts would not interfere with, by prohibition or otherwise. After a long interval the temporal courts also allowed an action on the case at law for the same matter. This alternative remedy of an action at law was treated as somewhat doubtful before 1690, but then became settled.2 Obligation to keep in repair clergy houses.-The incumbent is under an obligation to keep the buildings in due notice. Ibid. §§ 48, 49. And a list of all licences in force, and their revocations, is kept in the Registry of the diocese for inspection of all persons on payment of a small fee, and a copy is sent to the churchwardens of the parish.-Ibid. §§ 50, 51. And to keep a short account of the residence of the clergy, each incumbent is bound annually to supply the particulars relating to his parish in answer to a circular of the bishop.-Ibid. § 52. At the death of the incumbent the widow is allowed to remain for two months in occupation of the house of residence and garden, if any.—1 & 2 Vic. c. 106, § 36. 1 As a general rule, no ecclesiastical benefice can be sold by the incumbent, and when this is allowed it is only under rare conditions expressly defined by statutes. Nor is it competent for an incumbent to mortgage or charge his benefice, for this would be to put in jeopardy the spiritual duties which are inseparable accompaniments. of the possession.-13 Eliz. c. 20; Skrine v Hewett, 1 A. & E. 812. But for one or two purposes strictly advantageous to the benefice a power to charge is given.-1 & 2 Vic. c. 106, § 62. 2 Jones v Hill, 3 Lev. 268; Radcliffe v D'Oyley, 2 T. R. 637. |