*79]

Note all the words, for they have all their weight; for, first, the incumbent must be a possessor; so that, if he have his presentation, admission, and institution upon the lawful title, yet remains, as he was before, under the mischief of the common law, because he is not a possessor, according to the letter of the law, till induction. Again, I say, that, though he be a possessor, he must, by the letter and meaning of this law, as well show and defend his own right, as counterplead his adversary's. And therefore clearly he cannot make himself parson impersonee *of the presentation of J. S., and defend himself by the title of J. D., under whom he claims not, though that were sufficient to destroy the plaintiff's title, by confessing and avoiding, or the like; neither can he counterplead the plaintiff's title, but must also make a title to himself, by the word and meaning of this law,-which I speak not to bind the incumbent by the patron's plea, whereof I will speak hereafter, when I come to the incumbent's plea. But, touching the ordinary's plea upon this statute, I hold plainly that he can no otherwise plead than he could at the common law, but only where he hath collated actually by lapse; for, though the incumbent of presentation be also admitted to plead, by the meaning of this law, under the word 'like case,'-because the case is like indeed, yet the ordinary's case before actual collation, is no ways like in case; for, he hath gotten no interest for himself, nor his clerk, in the church. And, therefore, if the incumbent instituted only at the presentation of another, be not within the relief, much less shall the ordinary, that hath no interest, but an office only, that ought to be indifferent to all patrons, and maintain no side." That authority was recognised in the recent case of Apperley v. The Bishop of Hereford, 9 Bingh. 681, 3 M. & Scott, 102, where it was held, that the ordinary cannot, before he has collated, counterplead the patron's title. This objection applies to all the pleas.

The next objection to the second plea, is, that it does not sufficiently show that the plaintiff has lost the right to present, or that there has been any lapse. It is difficult to see what answer can be given to that. [WILDE, C. J.-You contend, that, until the license is revoked, the church continues full. H. Hill.-The real question is, whether the district church was filled *by the incumbent of the mother *80] church. The defendants will mainly rely on the 58 G. 3, c. 45, ss. 13, 21 to 25, and 67, and 59 G. 3, c. 134, ss. 12, 13, 19.]

The 58 G. 3, c. 45, s. 13, enables the commissioners to grant money for the building of additional churches in parishes of certain population, and in want of accommodation. The 21st section enacts "that, in any case in which the said commissioners shall be of opinion that it is not expedient to divide any populous parish or extra-parochial place into such complete, separate, and distinct parishes as aforesaid, but that it is expedient to divide the same into such ecclesiastical districts as they, with the consent of the bishop, signified under his hand and seal, may

deem necessary for the purpose of affording accommodation for the attending divine service according to the rites of the united church of England and Ireland, to persons residing therein, in the churches and chapels already built, or in additional churches or chapels to be built therein, and as may appear to such commissioners to be convenient for the enabling the spiritual person or persons, who may serve such churches or chapels, to perform all ecclesiastical duties within the districts attached to such respective churches and chapels, and for the due ecclesiastical superintendence of such district, and the preservation and improvement of the religious and moral habits of the persons residing therein, the said commissioners shall represent such opinion to His Majesty in council, and shall state in such representation the bounds by which such districts are proposed to be described; and if thereupon His Majesty in council shall think fit to direct such division to be made, such order of His Majesty in council shall be valid and good in law for the purpose of effecting such division; or, in any case in which the said commissioners shall be of opinion that it is not expedient to make any such *division into such ecclesiastical districts as afore[*81 said, the said commissioners may build, or aid the building, of, any additional chapels in any such parishes or extra-parochial places, to be served by curates to be respectively nominated and appointed by the respective incumbents of the churches of the respective parishes or extra-parochial places, and licensed by the bishop of the diocese; such curates to be paid such salaries as shall be assigned by the said commissioners, under the provisions of this act, in manner hereinafter directed." The 22d section enacts "that the several new parishes created by any such complete division as aforesaid, and also the several districts of any parish, or extra-parochial place, where any such division thereof shall have been so made as aforesaid, shall be ascertained and marked out by described bounds, and the description of such bounds shall be enrolled in the high court of Chancery, and be registered in the office of registry of the diocese, and notice thereof given in such manner as the commissioners shall deem necessary and direct for that purpose." By s. 23 the King in council is authorized to alter such boundaries. The 24th section enacts that such boundaries shall continue, and be, the boundaries of such parishes or districts respectively, unless so altered, and such districts shall thereupon become and be called district parishes, by such names as shall be given to them respectively in the instrument so enrolled as aforesaid, and shall become and be separate and distinct district parishes, and the churches and chapels respectively assigned to such districts, shall, when duly consecrated for that purpose, become, and be, the district parish churches of such district parishes, for all purposes of ecclesiastical worship, and performance of ecclesiastical duties, and as to all marriages, christenings, churchings, and burials, and the registry thereof, respectively,

within the same, and in relation to all fees, *oblations, and offer*82] ings, and the demanding, suing, and prosecuting for, and recovering the same, and as to all other purposes whatsoever, save and except as is in this act particularly excepted." The 25th section enacts that every church and chapel built, or acquired, under the provisions of this act, and appropriated to any such district parish so made under the provisions of this act, shall be deemed a perpetual curacy, and shall be considered in law as a benefice presentative, so far only as that the license thereto shall operate in the same manner as institution to any such benefice, and shall render voidable other livings, in like manner as institution to any such benefice; and the spiritual person serving the same, shall be deemed the incumbent thereof; and such incumbents shall have perpetual succession, and shall be, and are hereby declared to be, bodies politic and corporate, and may receive and take such endowments in lands or tithes, or both, or any such augmentation, as shall be granted to them or their successors; and all such incumbents, and all persons presenting or appointing any such incumbents, shall respectively be subject to all jurisdictions and laws ecclesiastical or common, and to all provisions, regulations, penalties, and forfeitures contained in any acts of parliament in force relating thereto respectively; and, in case of any failure or neglect, in not presenting or nominating any such incumbent for the space of six months, such presentation or appointment shall thereupon lapse, as in cases of actual benefices." And the 67th section enacts that the nomination or appointment of the spiritual person to serve all such district churches and chapels, shall belong to the patron of the church of the parish or extra-parochial place out of which such district shall be taken; and the spiritual person so presented and instituted or licensed (as the case may be) by the bishop of the diocese, shall be subject to the same jurisdiction and *visitation as the incumbent of the parish now is." The 12th *83] section of the 59 G. 3, c. 134, enacts "that all churches which shall be built or acquired, under the provisions of the said act (58 G. 4, c. 45), or this act, whether belonging to parishes completely divided, or to district parishes, shall, immediately after the consecration thereof, become and be deemed to be, and be, district benefices and churches for all ecclesiastical purposes: provided always, that, during the incumbency of the then existing incumbent of the parish, except as hereinafter excepted, such churches shall be served by licensed stipendiary curates, appointed by the existing incumbent, and subject to all the laws in force relating to stipendiary curates, except as to the assigning salaries to such curates by the bishop of the diocese; and every such existing incumbent shall, until his death or other avoidance, continue to hold all the churches of the several divisions of his parish as if they were one church, unless he shall voluntarily resign one or more of them;

any statute or law against plurality of benefices, or anything contained in the said recited act or any other act or acts of parliament, to the contrary notwithstanding." The 13th section provides and enacts "that the right of presentation and appointment of the spiritual persons to be the respective incumbents of, or to serve, the churches of the several parishes created by the complete division of any parish, under the provisions of the said recited act or this act, shall, in every case, belong to the patron of the church of the original parish; and the exercise of such right of presentation or appointment shall commence on the death, or other avoidance, of the existing incumbent, except in any case in which the division of any parish shall have been made, or in which the commissioners shall have declared their intention of dividing any parish, before or during any avoidance, in which cases *the [*84 exercise of such right of presentation or appointment shall commence upon the consecration of the church or churches respectively of any such division; and the several churches erected in and for such divisions respectively, shall, immediately upon consecration, become benefices, and subject to all the laws in force concerning presentations and appointments to benefices and churches, and lapse, and all other laws, provisions, and regulations relating to the holding of benefices and churches: provided always that the spiritual care and superintendence of every parish so divided, during avoidance, shall, until incumbents shall have been presented or appointed for the divisions thereof, continue in the spiritual person who shall be the incumbent of the original parish; and such spiritual person shall receive all emoluments accruing and arising within the parish during such superintendence." And the 19th section enacts that no chapel built, or acquired, under the provisions of the said recited act, which shall be situate in any district. parish made a parish for ecclesiastical purposes under the provisions of the said recited act, and which shall not be, or be made, a church of such district, shall be, or be deemed to be, a perpetual curacy, or be considered in law as a benefice presentative, under the provisions of the said recited act." Reliance will also probably be placed, on the other side, upon the 4th section of the 1 & 2 Vict. c. 107, which enacts that, except as thereinafter provided, no spiritual person holding a benefice with a population of more than three thousand persons, shall accept and take, and hold therewith, any other benefice having, at the time of his admission, institution, or being licensed thereto, a population of more than five hundred persons; nor shall any spiritual person holding a benefice with a population of more than five hundred persons, accept and take, to hold therewith, any other *benefice having, at the time of his admission, institution, or being [*85 licensed thereto, a population of more than three thousand persons; nor shall any spiritual person hold together any two benefices, if, at the time of his admission, institution, or being licensed to the second

benefice, the value of the two benefices jointly shall exceed the yearly value of 1000l." The plaintiff, however, relies upon the 13th section of the 1 & 2 Vict. c. 107, which enacts, "that, in all district churches and district chapelries, the license of the stipendiary curate, appointed to serve the chapel of such chapelry, shall not be rendered void by the avoidance of the church of the parish, or district parish, in which such chapel is situate, unless the same shall be revoked by the bishop of the diocese, under his hand and seal; but such license shall continue in force, unless otherwise directed, as aforesaid, by such bishop, notwithstanding the avoidance of the church of the parish or district parish, any statute, law, canon, or usage to the contrary notwithstanding." That modifies the provisions of the former statutes: it dispenses with the necessity of a new appointment. The effect of the statute is, to make the stipendiary curate the incumbent. On the death or avoidance of the incumbent, the interest of the stipendiary curate would, but for the 1 & 2 Vict. c. 107, s. 13, be gone. The effect of that section is, to make him continue curate until a new one has been presented to the bishop to be licensed. The incumbent has appointed a stipendiary curate to the district church: the incumbent dies, or resigns: the consequence is, that the patron must present to the mother church, and may present a proper curate to the district church; but, until he does so, the stipendiary curate continues to be the curate of the district church. [MAULE, J.-Here, the church of St. Giles, Camberwell, is vacated, does that vacate the district church of St. Mary Magdalen, *Peckham?] No: the statute 1 & 2 Vict. c. 107, s. 13, prevents *86] that. [MAULE, J.-The patron has a right to present; and the bishop may revoke the license of the stipendiary curate: is the curacy full?] Yes. [MAULE, J.-Full of a person who may at any moment be turned out!]

The next ground of objection to the pleas, is, that it is not sufficiently shown when, or upon what event, the title of the Queen to present accrued. It does not appear whether it is the avoidance or the notice that is relied upon as the starting point from which the eighteen months are to run. [MAULE, J.-That is immaterial, the latest of those events being remote enough. If the time runs from the resignation, the allegation must be taken to mean that; if from the notice, it means that: whatever is unnecessary, will be rejected as surplusage.]

Hugh Hill (with whom was Sumner), for the defendant.(a)-On the

(a) The points marked for argument on the part of the defendant, were as follows:"That the facts admitted on the pleadings being, that the district church of St. Mary Magdalen was carved out of the plaintiff's vicarage of the parish of St. Giles, under the 58 G. 3, c. 45, and 59 G. 3, c. 134, that Mr. Darvell was then appointed and licensed stipendiary curate of the district church, that the plaintiff resigned the mother church, and was, upon his own presentation, re-instituted and inducted thereto more than eighteen months before he presented to the district church, Mr. Darvell having resigned the stipendiary curacy of the district church in the