by the bill, evidence of it is not admissible at the hearing of the cause.

If a bill alleges fraud, which is not proved, and also alleges other matters, which, being proved, are grounds for a decree, the proper course is to dismiss so much of the bill as is not proved, and to give so much relief, under the circumstances, as the plaintiff may be entitled to. Archbold v. Commissioners of Charitable Donations and Bequests for Ireland, 2 H.L. Cas. 440.

(E) INFORMATION BY THE ATTORney General.

Under a will, dated 1624, real and personal property was vested in the corporation of R upon trust, for the poor of the town, and if they neglected to perform the trusts or misemployed the property for one year, the will gave it to the corporation of London in trust for Christ's Hospital. In 1639 a decree was made on information in the Exchequer against both corporations, directing the corporation of R to apply the income for the benefit of the poor of the town, but in a manner different from that prescribed by the will, and that on neglect to do so or misemployment of the property for one year, they should convey it to the corporation of London in trust for Christ's Hospital. The corporation of R neglected to perform the directions of the decree for several years. In 1837 certain trustees of the property were appointed under the Municipal Corporations Act. The decree of 1639 held to be binding, and the legal estate in the property to be still in the corporation of R, and they were ordered to convey it according to the decree. Christ's Hospital v. Grainger, 16 Sim. 83.

An information was filed by the Attorney General in 1710 to recover certain lands, formerly chantry lands, which had been granted by King Edw. 6. for the benefit of the Morpeth School, against the defendants, who represented the Thornton family, to whom a lease of the lands for 500 years had been granted in 1685. A commission was issued to ascertain the identity of the lands. The commissioners reported that they were unable to ascertain which were the chantry lands. No final decree was made in consequence of a compromise having been entered into between the parties, by which it was agreed that 1007. per annum should be paid to the charity, and that an act of parliament should be obtained to carry the compromise into effect, but that if the act should not be obtained within two years, then that the agreement should not be binding. No such act was ever passed, but the owners of property continued to pay the 100%. per annum up to the present time, being a period of 130 years. Another information was filed in 1833, to have the benefit of the proceedings commenced in 1710, and prayed that the lease for 500 years might be set aside, and that the chantry lands might be ascertained :—Held, that the stipulation as to obtaining an act of parliament not having been performed, the parties were in the same situation as at first, and the relators were entitled to the benefit of the proceedings under the original information; and that an inquiry ought to take place to ascertain what portion of the lands would be of equal value to those granted by King Edw. 6. Attorney General v. Trevelyan, 16 Law J. Rep. (N.S.) Chanc. 521.

(F) PLEADING AND PRACTICE.

Charity trustees allowed to file a bill against the Attorney General to have the accounts of the charity taken, and to be personally discharged from liability in respect thereof, on their submitting to such account as the Attorney General would be entitled to ask against them in an information filed by him; and in the same suit, if the Attorney General desires it, the Court will direct a reference for a scheme. Governors of Christ's Hospital v. the Attorney General, 5 Hare, 257.

Applications under the 8 & 9 Vict. c. 70. s. 22. for the apportionment of charitable gifts given to a parish between a district parish formed out of it and the remainder of the parish, ought to be headed both in the matter of the 8 & 9 Vict. c. 70. and in the matter of the 52 Geo. 3. c. 101.

In such applications it is not necessary to allege or prove any abuses in the past or existing manage-` ment of the charities. In re West Ham Charities, 17 Law J. Rep. (N.s.) Chanc. 441; 2 De Gex & S. 218.

After some disputes between a corporation and trustees of charity estates, a compromise was agreed on and confirmed by act of parliament, under which the corporation were to sell certain estates, and out of the proceeds pay to the trustees a gross sum of money by a fixed day. The money was not paid by the time appointed; but there being no case of wilful default made against the corporation, it was held that they were not liable to pay interest on the gross sum. Attorney General v. the Corporation of Ludlow, 1 Hall & Tw. 216.

Monies were subscribed to purchase land and erecting thereon a Presbyterian church and school. Lands were purchased with portions of the fund, and conveyed to three releasees in fee, by deeds not perfected according to the requisites of the Mortmain Act, nor disclosing any charitable trust. The releasees, by a subsequent deed, conveyed the lands upon trust to be re-conveyed to them and others; and by a fourth deed, all the lands were assured to the use of the first releasees and others, upon trust, for maintaining a place of worship and schools in connexion with the Established Church of Scotland, for the purposes of which they were held and used by the trustees. The last of these deeds only was perfected under the Mortmain Act. On an information and bill filed by some of the trustees and some of the cestuis que trust under the fourth deed to enforce performance of the trusts,-Held, first, that whether the three former deeds were or were not void, some of the parties to the fourth deed being at the time of its execution in possession of the lands dedicated by that deed to charitable purposes, and the possession having been subsequently held according to that deed, none of the parties could be heard to dispute its validity. Secondly, that the liability of the lands to be recovered by title paramount to that of the grantor was no objection to the suit.

Doubts being in 1844 entertained whether any one of the four deeds of 1832 were valid, some of the trustees claimed the land under a title paramount, treating the deeds as invalid, and brought a friendly action of ejectment against the minister in possession, in which the question was fairly

argued, and recovered judgment in such action, and the same trustees and the minister set up the title under the ejectment of 1844 as an adverse title in the suit to enforce the trusts of the deeds of 1832. The Court ordered them on this ground to pay the costs of the suit to the hearing.

Some of the parties to the suit were original subscribers to the fund, but they were parties in other characters; no subscriber solely represented, or was made party to represent, the original subscribers as a class:-Held, that the suit was not defective for want of parties. Attorney General v. Munro, 2 De Gex & S. 122.

(G) COSTS.

A charity scheme was directed. The relator without the sanction of the Master incurred expense in obtaining information. The Court refused to allow the ordinary costs, but as it had proved useful to the charity allowed the money out of pocket bona fide expended. Attorney General v. Ironmongers' Co., 10 Beav. 194.

The Master was directed to charge defendants with the rents of a charity property from the filing of the information come to their hands. He charged them with rents accrued before, but paid after that period. This report was confirmed. On petition by the defendants to be relieved from payment, the Court declined to interfere except on a re-hearing, as there was no plain mistake in the mode of taking the accounts. Attorney General v. the Drapers' Co., 10 Beav. 558.

A trustee for a charity, against whom an information was properly filed, made a case by his answer, from which it must have been manifest that the trustee was not a debtor to the charity, and that the result of taking the accounts would not be of advantage to the charity. A decree was, nevertheless, sought and obtained, directing the accounts to be taken-Held, that no costs subsequent to the hearing ought to be given on either side. Attorney General v. Gibbs, 1 De Gex & S. 156.

Exceptions to the Master's report taken by the Attorney General, proceeding ex officio, having been allowed, the costs of like exceptions taken by trustees of the charity were allowed out of the charity estate, with the consent of the Attorney General.

The decree having reserved subsequent costs, the Court has power to give the defendants the extra costs of exceptions to the report which had been abandoned by the Attorney General. Attorney General v. Ward, 17 Law J. Rep. (N.S.) Chanc. 485;

11 Beav. 203.

Whether the trustees of charity lands are entitled as of right to be heard in support of the Attorney General appearing for the charity-quære.

An information on behalf of a charity against a corporation claimed certain lands long since confounded by the latter with its own property, and of which it had granted building leases. The claims of the charity only partially succeeded, and no fraud was imputable to the corporation. The information also prayed for a scheme in respect of the charity, The Court, to avoid the expense and difficulty of apportioning and setting off the costs, gave none to the corporation, and ordered those of the other defendants and of the relators to be paid out of the charity funds. Solicitor General v. the

The holding of vestry and other meetings in churches prevented, and the appointment of vestry clerks provided for by 13 & 14 Vict. c. 57; 28 Law J. Stat. 110.

(A) CATHEDRAL CHURCH [JURISDICTION OF VISITOR, AND APPEAL TO VISITOR AGAINST OUSTER].

To a mandamus to restore J H to the freehold office of chorister, lay clerk or singing-man of the Cathedral Church of Chester, conferring a right to vote for members of parliament, to which he had been duly appointed by the dean and chapter of such cathedral church, and from which he had been unjustly and without reasonable cause removed by the said dean and chapter, there was a return stating the foundation of the cathedral church, and some of the rules, ordinances and statutes for the government of the same, providing, amongst other things, for the expulsion of any of the lay clerks skilled in singing, at the discretion of the dean and chapter, and appointing the Bishop of Chester for the time being visitor of the cathedral church, to watch and take special care that the statutes and ordinances were inviolably preserved, and to visit the church,

and upon every one of the articles contained in the statutes, and upon every other article whatever that concerns the state, advantage and honour of the church, to interrogate the dean and all other ministers of the church concerning any misdemeanours or crimes whatsoever, and to punish or correct the same, and to execute everything necessary for the extirpation of vice, and judged lawfully to belong to the office of visitor:-Held, upon demurrer to the return, that the Bishop of Chester, as ordinary and special visitor, had exclusive jurisdiction to inquire into and determine the legality of the removal; and that an appeal to the bishop for that purpose was the only mode by which the party removed could properly proceed.

Held, also, that the omission to state in the return the particular offence on account of which the removal had taken place, was no good ground of objection to the return. Regina v. Dean and Chapter of Chester, 19 Law J. Rep. (N.S.) Q.B. 485; 15 Q.B. Rep. 513.

(B) DISTRICT CHURCH.

[See (D) Commendam.]

(C) PAROCHIAL CHAPELRY.

A parochial chapelry must have been coeval with the parish, that is, immemorial, but, in the absence of evidence to the contrary, its existence may be inferred from modern usage, like other ancient rights and exemptions.

"Chapelry" in the 1 & 2 Will. 4. c. 38. s. 14. means a parochial chapelry strictly so called, not merely a district recently treated as a parochial chapelry.

Upon a trial, in which the question at issue was whether St. H was a parochial chapelry, the statement of a witness of what he had heard from a prior incumbent of St. H as to the chapelry of St. H is admissible, as the rights of such a chapel are of a public nature.

Held, also, that a return made by the incumbents of St. H and of the mother church of Prescot, and another clergyman, in answer to queries sent to them by the bishop of the diocese, for the information of the Governors of Queen Anne's Bounty, when an augmentation took place, was admissible, as being in the nature of an inquisition in a public matter.

Held, also, that a case stated by a former incumbent of St. H for the opinion of a proctor, was admissible against his successor.

Facts upon which the Court, acting as a jury, held that the claim to be a parochial chapelry was not established. Carr v. Mostyn, 19 Law J. Rep. (N.S.) Exch. 249; 5 Exch. Rep. 69.

(D) COMMENDAM.

The first count of a declaration stated that the plaintiff was rector of parish A, and as such rector entitled to certain fees for churchings and registration of baptisms. That an order in council was made erecting a district chapel within the said parish, which directed that two-thirds of the fees arising from the solemnization of marriages, churchings, baptisms and burials in the said chapel should during the incumbency of the plaintiff belong and be paid to the plaintiff, and the residue to the minister of the said district chapel. That the de

fendant was appointed minister of the said district chapel, and by reason thereof became the proper person to solemnize marriages, &c. in the said chapel, and to receive the fees accruing in respect thereof; that it thereby became the duty of the defendant to receive such fees and to pay to the plaintiff as such rector two-thirds thereof; that in consideration of the premises, and that the plaintiff at the request of the defendant had permitted the defendant to receive the said fees, the defendant promised to receive all fees and pay over two-thirds to the plaintiff. Averment, that marriages, &c. had been solemnized within the said chapel by the defendant, and that fees became due in respect thereof which the defendant could and might have received. Breach, that the defendant wrongfully neglected to receive such fees, &c. and had not paid two-thirds thereof to the plaintiff. The second count was for money had and received. The defendant pleaded non assumpsit; that the plaintiff was not the rector of the parish A, and also that he had accepted another living of W, whereby the benefice of A became void. The evidence was that the plaintiff was duly instituted and inducted to the rectory of A in 1810, and had ever since acted as such, no other person having been presented thereto by the patron. The living of A was not rated in the king's books, and was created by an act which expressly prohibited it from being held in commendam. In 1820 the plaintiff accepted the living of W. The district chapel mentioned in the declaration was duly erected within the parish A, and the order in council stated in the declaration was made on the 20th of June 1843. In 1842 the defendant was duly appointed minister of the district chapel. At the time of the making the order in council there were certain accustomed fees payable in parish A, in respect of marriages, churchings, baptisms, &c. The defendant had received the fees for marriages, but had never received any fees in respect of baptisms or churchings:- Held, first, that no duty was imposed on the defendant to receive the fees for churchings and baptisms for the purpose of paying two-thirds over to the plaintiff, and that the first count was not proved.

Secondly, that the title of the plaintiff to the rectory of A was not absolutely avoided by his acceptance of W, and that he was therefore entitled under the second count to recover two-thirds of the fees for marriages actually received by the defendant.

Semble-per Patteson, J. that the first count would be bad on demurrer, for not shewing any consideration moving from the plaintiff. King v. Alston, 18 Law J. Rep. (N.s.) Q.B. 59; 12 Q.B. Rep. 971.

(E) SEXTON.

Right to appoint.

The inhabitants of a parish in vestry assembled have not at common law the right of appointing to the office of sexton. The presumption is that the incumbent has the power of appointing when the offices of parish clerk and sexton are united. But when they are separate, and the sexton's duty is to take care of the things in the church and to keep it in order, and also to dig the graves,-semble, that the right of appointing the sexton belongs to the minister and churchwardens together. Cansfield v.

Blenkinsop, 18 Law J. Rep. (N.S.) Exch. 361; 4 Exch. Rep. 234.

(F) CHURCHYARD.

[See (I) Church Building Act.]
(G) LEASES.

Confirmation of by Patron Paramount.

The perpetual curate of a curacy, augmented by the Governors of Queen Anne's Bounty, made a lease for years of mines, &c., which was confirmed by the ordinary and immediate patron, but was not confirmed by the patron paramount. The successor of the perpetual curate accepted the rent reserved for five years, and inspected the mines under the powers contained in the lease:-Held, that the lease was void at common law for want of confirmation by the patron paramount, and, therefore, was not set up by the acceptance of rent by the lessor's successor in the curacy. Doe d. Brammall v. Collinge, 18 Law J. Rep. (N.S.) C.P. 305; 7 Com. B. Rep. 939.

(H) DILAPIDATIONS.

A perpetual curate (not removable at the will of the donor or patron) possessed of a house and lands in right of his curacy, is bound to keep the same in repair. Therefore an action for dilapidations is maintainable by the new incumbent against his predecessor in the curacy for leaving such house or lands out of repair. Mason v. Lambert, 17 Law J. Rep. (N.s.) Q.B. 366; 12 Q.B. Rep. 795.

The executors of a deceased rector are not liable in an action on the case for dilapidations, by reason of such rector's having pulled down a barn belonging and adjoining to the rectory, and erected another at the distance of a mile and a half on a more convenient site, and on rectory land, without obtaining a faculty or licence from the bishop for that purpose. Nor are they liable for dilapidations in respect of buildings which are not parcel of the freehold.

Where gravel pits had been opened on rectory land, and gravel taken therefrom by the surveyors of the highways for the purpose of their repair, without sloping down the ground, as required by the statute 13 Geo. 3. c. 78. s. 31,-Held, that neither the taking such gravel by the surveyors and omitting to slope down, nor the neglecting to compel the surveyor to slope down, could be considered waste on the part of the rector.

Held, also, that under a plea of no waste to a count in the nature of waste charging the removal of the gravel and the neglect to slope down, the defendants (the executors) might shew that the acts done were the acts of the surveyor of the highways.

But held, that the defendants were liable in respect of so much of the gravel as was dug out and sold generally by the rector himself, such digging and sale being equivalent to an opening of gravel pits. Huntley v. Russell, 18 Law J. Rep. (N.S.) Q.B. 239.

In an action for dilapidations the declaration alleged that the rector "was rector of the parish church of T, in the county aforesaid, and was seised in right of the said rectory of certain buildings thereto belonging, and of certain glebe lands, lying

and being, to wit, in the parish aforesaid." It appeared that the rectory comprised the parish of C, in which the greater part of the glebe lands were situate:-Held, that the plaintiff was entitled to recover only in respect of dilapidations to premises in the parish of T. Warren v. Lugger, 18 Law J. Rep. (N.s.) Exch. 256; 3 Exch. Rep. 579.

An action is maintainable by the executors of a deceased incumbent against the executors of his predecessor, for dilapidations which occurred during the incumbency of the predecessor. Bunbury v. Hewson, 18 Law J. Rep. (N.s.) Exch. 258; 3 Exch. Rep. 558.

(I) CHURCH BUILDING ACT.

Under the 59 Geo. 3. c. 134. s. 39. the Church Building Commissioners are empowered to stop up paths and entrances in churchyards, with the consent of two Justices, and on notice being given in the manner and form prescribed by 55 Geo. 3. c. 68:Held, that the notice required must be given before the making of the order by the Commissioners. Regina v. Arkwright, 18 Law J. Rep. (N.s.) Q.B. 26; 12 Q.B. Rep. 960.

CHURCHWARDENS AND OVERSEERS. [See POOR, Audit, and Order of Removal-RATE, Poor Rate.]

(A) ELECTION AND APPOINTMENT OF.
(B) DUTIES AND LIABILITIES.
(C) VESTING OF PROPERTY IN.

(A) ELECTION AND APPOINTMENT OF.

In the parish of S, in London, there was a select vestry, consisting of the parson and those persons who had served the office of churchwarden, or paid a fine for not doing so; and by this body the churchwardens were elected. From the earliest records of the parish, commencing in 1648, it appeared that a fresh churchwarden was annually elected to serve the office of junior churchwarden, and the junior • churchwarden for the preceding year became the senior churchwarden for that year. This custom had been acted upon from the year 1648 up to the great fire of London, when two persons acted as junior and senior churchwardens during five years; the custom was then renewed and acted upon up to the year 1734, and during the interval from that year to 1775 there were no records; from the latter year to 1824 the same course was pursued, with four exceptions. Upon a case, on which it was agreed that the Court should have the power of drawing inferences in the same manner as a jury,— Held, that there was a custom that a parishioner, not a member of the select vestry, should be elected every year to serve the office of junior churchwarden, who in the next ensuing year should succeed to the office of senior churchwarden, and at the expiration of that year should become a member of the select vestry, by which means its members would be supplied; and that the election of G, a member of the select vestry, who had served previously the offices of junior and senior churchwarden, to serve the office of junior churchwarden in

1844 was void. Gibbs v. Flight, 16 Law J. Rep. (N.S.) M.C. 73; 3 Com. B. Rep. 581.

In ejectment by churchwardens and overseers, proof that the lessors of the plaintiff have acted in that capacity is sufficient, without proof of their appointment. Doe d. Bowley v. Barnes, 15 Law J. Rep. (N.S.) Q.B. 293; 8 Q.B. Rep. 1037.

The Court will not grant a mandamus to overseers to produce their appointment for the inspection of a rated inhabitant; the defect suggested in such appointment being properly the subject of an appeal to the Sessions. Regina v. Harrison, 16 Law J. Rep. (N.S.) M.C. 33; 9 Q.B. Rep. 794.

The mayor of a borough has the sole power of appointing the overseers under stat. 43 Eliz. c. 2. s. 8. and stat. 5 & 6 Vict. c. 76. s. 6. Regina v. Preston, 18 Law J. Rep. (N.s.) M.C. 10; 12 Q.B. Rep. 891.

(B) DUTIES AND LIABILITIES of.

An overseer is, since the statute 3 & 4 Vict. c. 26, compellable as well as competent to give evidence in proceedings before Justices touching the relief or removal of the poor. Regina v. Vickery, 17 Law J. Rep. (N.S.) M.C. 129; 12 Q.B. Rep. 478.

The 1st and 2nd sections of 11 & 12 Vict. c. 91. do not transfer the personal liability of overseers for debts contracted for legal proceedings for parish business to their successors in office. Chambres v. Jones, 19 Law J. Rep. (N.s.) Exch. 239; 5 Exch. Rep. 229.

(C) VESTING OF PROPERTY IN.

Certain trust property, including T Farm, was, in 1831, conveyed to new trustees, upon trust, to apply the rents for and towards the repair of the parish church of P, and for the benefit of the poor of the said parish, in such manner as the same have heretofore been usually applied, and according to the intention of the several charitable persons who devised the same. Among other property, conveyed in the same deed, were some cottages, described as four cottages in C Lane, wherein poor families are permitted to live rent-free :-Held, that the legal estate in all these lands vested in the parish officers, under statute 59 Geo. 3. c. 12. s. 17, although there were trustees in existence; and that it was imperative that an action for the use and occupation of T Farm should be brought by the parish officers. [See next case.]

Held, also, that the description of the cottages in C Lane, did not imply that they were held on any special trust. Rumball v. Munt, 15 Law J. Rep. (N.S.) Q.B. 180; 8 Q.B. Rep. 382.

Lands were conveyed in 1749 to A and B, their heirs, &c., upon trust to permit and suffer the churchwardens and overseers of D to receive the rents and profits to and for the use and benefit of the poor of the parish of D, with power to appoint new trustees and to grant leases for twenty-one years; and the power of the trustees was extended and their title confirmed by local acts; by the operation of which and by conveyances under the powers of the original deed of trust, the legal estate was vested in known existing trustees :-Held, first, that the nature of the trust was not special, so as to prevent the operation of the statute 59 Geo. 3. c. 12. s. 17; secondly, that the words of the 17th DIGEST, 1845-1850.

section of that act were imperative, and not merely enabling, in cases to which it was applicable. But held, lastly, that in cases in which there were known living trustees, section 17 did not contain words sufficiently strong to divest the legal estate from such trustees, and that property so circumstanced could not be considered as "belonging to the parish" within the meaning of the statute (overruling Rumball v. Munt, 15 Law J. Rep. (N.s.) Q.B. 180; 8 Q.B. Rep. 382). Churchwardens and Overseers of St. Nicholas, Deptford, v. Sketchley, 17 Law J. Rep. (N.s.) M.C. 17; 8 Q.B. Rep. 394.

The law relating to holding benefices in plurality amended by 13 & 14 Vict. c. 98; 28 Law J. Stat. 292.

(A) BISHOP [CONFIRMATION OF BY ARCHBISHOP].

Under the 25 Hen. 8. c. 20. s. 5, after an election of a bishop by the dean and chapter of a cathedral church by virtue of a congé d'élire and letters missive, the person so elected is to be reputed and taken by the name of the lord elected of the see, and the king is thereupon to issue letters patent to the archbishop commanding him to confirm the said election, and to invest and consecrate him, and if he fail to do so for twenty days he is to incur the penalties of a pramunire:-Held, by Lord Denman, C.J. and Erle, J., that the archbishop acting merely ministerially is bound to confirm the bishop elect, and that he has no authority to hear any opposition advanced against the person so elected; per Patteson, J. and Coleridge, J., that confirmation is a judicial act, which the archbishop is to conduct according to the principles of the canon law, and that parties opposing are entitled to appear in his court, and to enter their objections.

Held, also, per Patteson, J. and Coleridge, J., that the opposers not having been allowed to appear and be heard, there was a declining of jurisdiction by the archbishop, for which a mandamus would lie. Regina V. Archbishop of Canterbury, in re Hampden, 17 Law J. Rep. (N.S.) Q.B. 252; 11 Q.B. Rep. 483.

(B) INSTITUTION [REFUSAL ON ACCOUNT OF
UNSOUND DOCTRINE].

In a proceeding by duplex querela by a clerk, presented to a benefice, against his diocesan for refusing him institution, it was alleged, in return to a monition with intimation by the bishop, calling upon him to shew a reasonable and lawful cause why the

S