clerk should not be instituted, that the presentee was of unsound doctrine respecting the efficacy of the sacrament of baptism, inasmuch as he held in his examination that spiritual regeneration is not conferred in that sacrament-that infants are not made therein members of Christ and children of God, contrary to the teaching of the Church of England in her Árticles and Liturgy :-Held, that baptismal regeneration is the doctrine of the Church of England, and that infants immediately at baptism receive spiritual regeneration, and that the bishop had shewn sufficient cause why he should not institute the presentee.-[Since overruled in Privy Council].

The space of twenty-eight days specified in the 95th canon, for a bishop to inquire into "the sufficiency and qualities of every minister after he hath been présented unto him to be instituted into any benefice," is not an absolute limitation rendering an examination after that period void. A bishop is entitled to a reasonable time for such examination. The canon is directory; there are no prohibitory words to confine a bishop to the space of twentyeight days. Gorham v. the Bishop of Exeter, 2 Robert. 1.

(C) BENEFICE [Avoidance of].

A clerk in holy orders being in possession of a perpetual curacy with cure of souls, augmented by the governors of Queen Anne's Bounty, and having, without dispensation, been instituted and inducted into another benefice with cure of souls:-Held, to have forfeited the former, which was on sentence declared void. Burder v. Mavor, 1 Robert. 614. [See CHURCH, Commendam.]

(D) NON-RESIDENCE.

Where a beneficed clerk had been imprisoned under sentence of the Court of Queen's Bench, and the bishop of the diocese had, after monition, ordered him, under the 1 & 2 Vict. c. 106. s. 54, to reside on his benefice, and, on non-compliance with the order, had sequestered the benefice, which had remained under sequestration for one year,-The Court refused a prohibition to restrain the bishop from giving notice, under section 58, to the patron that the benefice was void. In re Bartlett, 18 Law J. Rep. (N.S.) Q.B. 11; 12 Q.B. Rep. 488.

Under the 54th section of the statute 1 & 2 Vict. c. 106, which gives power to the bishop of the diocese to issue a monition in certain cases, requiring a beneficed clergyman to reside upon his benefice, it is for the bishop to determine both as to the fact of non-residence and also as to the sufficiency of the excuse for non-residence set up in the return to the monition. If the bishop come to a wrong decision upon the matter, the remedy is by appeal to the archbishop, and not by an application for a writ of prohibition.

Where such clergyman is in prison, under sentence of a Court for the publication of a libel, that is no "legal cause of exemption" within the meaning of the words in the 54th section.

When a benefice has continued for one whole year under sequestration issued under the 54th section for disobedience of the order requiring residence, the benefice becomes void without any further step being taken by the bishop; the subsequent pro

vision in the 54th section, as to giving notice, being only for the purpose of giving the bishop a right to present by lapse. In re Bartlett, 18 Law J. Rep. (N.S.) Exch. 25; 3 Exch. Rep. 28.

A suit was instituted by the nominee of the bishop duly authorized, in the Consistory Court, to recover from a clergyman one-third of the profits of his benefice on account of his non-residence thereon, being the penalty imposed by the statute 1 & 2 Vict. c. 106. s. 32. The proceedings were regularly taken in pursuance of that statute. The decree of the Consistory Court pronounced that the defendant was rector of the rectory and parish church of W, being lawfully instituted and inducted thereto; and that by non-residence he had forfeited one-third part of the annual value of the benefice of W, and condemned him in the payment of such third part, &c. with costs, the amount of such third part of the annual value of his said benefice and of such costs to be ascertained in the usual manner by the registrar of the court. The sentence was confirmed, on appeal, in the Arches Court and in the Privy Council. On a subsequent motion for a prohibition to the Consistory Court against proceeding further in the suit,-Held, in accordance with the decision of the Arches Court (1 Robert. 367) and the Privy Council (5 Moore, P.C. 305), upon the same points which had been raised in the appeal before them,-first, that this was not a criminal proceeding within the 3 & 4 Vict. c. 86. s. 23, and therefore, that it was unnecessary that the conditions precedent for a criminal proceeding according to that statute should have been fulfilled; secondly, that it sufficiently appeared that the defendant held a benefice with a cure of souls; thirdly, that the sentence was not illegal for directing the amount of the third part of the annual value of the benefice to be ascertained by the registrar. Rackham v. Bluck, 16 Law J. Rep. (N.S.) Q.B. 82; 9 Q. B. Rep. 691.

(E) STIPENDIARY Curate.

The power of a bishop to appoint a stipendiary curate under the 1 & 2 Vict. c. 166. s. 75, is only when an incumbent under the circumstances there mentioned is absent for a period exceeding three months altogether, or to be accounted at several times in the course of any one year; and by section 120 the year is to be reckoned from the 1st of January to the 31st of December. Sharpe v. Bluck, 10 Q.B. Rep. 280.

(F) DISCIPLINE.

Before the passing of the statute 3 & 4 Vict. c. 86, 'An act for better enforcing Church Discipline,' an archbishop or bishop had no power at his visitation to proceed to sentence of deprivation against a clergyman of his diocese for simony, "personally and without process in court." Such a power therefore is not reserved by section 25 of the above act, which is not to affect any authority over his clergy, which an archbishop or bishop may exercise (at the time of its passing) according to law, personally and without process in court.

Where, at a visitation, the Court received evidence upon charges of simony, against a clergyman, decided that the charges were proved, and passed sentence of deprivation against him, and interdicted

him from exercising any of the functions belonging to his office of dean, on pain of sentence of the greater excommunication,-this Court granted a writ of prohibition, after the sentence of deprivation had been passed. Regina v. Archbishop of York, 10 Law J. Rep. (N.S.) Q.B. 306; 2 G. & D. 202.

The statute 52 Geo. 3. c. 155. does not take away the jurisdiction of the bishop over a clerk in holy orders, who officiates in an unconsecrated chapel without the bishop's licence, though such chapel has been duly registered under that statute. Nor is such clerk protected by the Toleration Act, 1 Will. 4. c. 18. s. 4, from proceedings in the ecclesiastical court for breach of discipline, in officiating in such chapel; as that section only relieves parties from proceedings in the ecclesiastical court "by reason of their non-conforming to the Church of England." Barnes v. Shore, 15 Law J. Rep. (N.S.) Q.B. 296; 8 Q.B. Rep. 640.

Articles against an ordained minister of the Church of England for officiating in an unconsecrated chapel after the revocation of his licence by the bishop, sustained. An allegation responsive to the articles pleading he had prior to the service of the citation seceded from the Established Church, and had taken certain oaths, &c. prescribed by the Toleration Acts, rejected, on the ground that those acts do not apply to a minister of the Established Church, and that one in holy orders cannot divest himself of such orders.

46

An unconsecrated proprietary chapel, into which strangers are admitted, is not a "private house" or 'chapel," within the meaning of the 71st canon; consequently to read the service of the church in such a building is publicly to read, &c.

To found a sentence under the general ecclesiastical law, it is not necessary that all the offences charged be proved. Barnes v. Shore, 1 Robert. 382.

Articles against a clergyman for publicly reading prayers, preaching, and administering the sacrament of the Lord's Supper in an unconsecrated building called Sackville College Chapel, without the licence of, and contrary to the inhibition of the bishop of the diocese, sustained. What constitutes a public reading of the prayers. Freeland v. Neale, 1 Robert. 643.

A beneficed clergyman being suspended for misconduct and condemned in costs, is entitled to a relaxation of the suspension on the Judge being satisfied with the certificate of good conduct during his suspension, though the costs be not paid; but he is not entitled to be dismissed from the suit until he has paid the costs. Brookes v. Cresswell, 1 Robert. 606.

A beneficed clergyman, having been suspended for three years, and further until he exhibited a certificate of good conduct, and having resumed on the expiration of the term his clerical duties without exhibiting such certificate, pronounced in contempt, and the contempt decreed to be signified. Bishop of Lincoln v. Day, 1 Robert. 724.

A priest in holy orders, without preferment, having been convicted at a Quarter Sessions of attempting a nameless offence, was subsequently articled against, and a sentence was prayed against him of degradation. That prayer was refused, but a sentence of unlimited suspension was pronounced. Clarke v. H, 1 Robert. 377.

(G) FEES.

Debt by the plaintiff, the rector of St. Marylebone, and the minister of the new church of that parish, against the defendant, who was the master of the parish workhouse, to recover fees alleged to be due upon the burial of certain paupers. The 51 Geo. 3. c. 151. empowered the vestrymen of St. Marylebone to purchase land for erecting a new church and making a cemetery. By section 35. Dr. H and his successors were declared to be ministers of the new church, and the patron of the living was empowered to appoint successively ministers of the new church, who were to enjoy such oblations, mortuaries, glebes, tithes, profits, and other ecclesiastical dues as the present minister ought to have. By section 49. the vestrymen were empowered to settle the rates and fees for burial in the cemetery, and to alter and amend the same. By section 50. the vestrymen were prevented from reducing the burial fees below the amount payable in the cemeteries of the parish. By section 71. the vestry were empowered to borrow 150,0002. upon the credit of the rates and burial fees, and to assign any portion of such rates or fees to the parties advancing the money. In 1733 the then minister and the parish authorities referred to a third party the settlement of the minister's fees, and a table of fees was accordingly prepared by the referee. From the year 1733 down to the year 1838, a fee of 1s. 6d. was paid by the parish officers to the rector, for the burial of a pauper in any of the cemeteries of the parish. From 1835 to the present time the sum of 1s. 6d. has been paid to the rector, and 1s. to the clerk and sexton, in pursuance of a table of fees, settled by the vestry, containing the following item: "Paupers from the workhouse 2s. 6d." The defendant had given orders for the burial of certain paupers in the cemetery of the new church. The burial service was not performed by the plaintiff or any of his curates, but by the reader of one of the chapels in the parish: -Held, that the fees in question were due only by immemorial custom or by some act of parliament; that no such immemorial custom was stated in the case, nor were the Court empowered by the parties to infer as a jury the existence of such a custom; and that no such fees were due by virtue of the act of parliament. Held, also, that if such fees were due, they must be recovered in the ecclesiastical court. Spry v. Gallop, 16 Law J. Rep. (N.S.) Exch. 218; 16 Mee. & W. 716.

[Apportionment of. See CHURCH, Commen

dam.]

(H) APPEAL IN SPIRITUAL CAUSES.

The appeal from the court of the archbishop, in all ecclesiastical causes, is under 25 Hen. 8. c. 12. s. 4. to the High Court of Delegates (and since 2 & 3 Will. 4. c. 92. to the Queen in Council), and is not, in causes where there is matter in contention touching the Queen, to the Upper House of Convocation, under 24 Hen. 8. c. 12. s. 9.

Where a clerk presented by the Queen to a vicarage held by her in right of her crown was refused institution by the bishop of the diocese on the ground of unsoundness of doctrine, and had instituted a duplex querela in the Arches Court of

the archbishop, which had been dismissed, and had afterwards appealed to the Queen in Council, the right of the Queen to present a fit clerk not being in controversy,-Quære, whether the Queen had an interest in the matter in contention within the meaning of 24 Hen. 8. c. 12. s. 9. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (N.S.) Q.B. 279; 15 Q.B. Rep. 52. Under 25 Hen. 8. c. 19. s. 4, all appeals in ecclesiastical suits, whether relating to the subject or to the Crown, are to be from the courts of the archbishops to the High Court of Delegates (and since 2 & 3 Will. 4. c. 92, to the Queen in Council), there to be finally determined.

The provisions in 24 Hen. 8. c. 12. s. 9, that if any of the causes therein mentioned should touch the king, the final appeal is to be to the Upper House of Convocation of the province, is not incorporated with 25 Hen. 8. c. 19. s. 4, which enacts generally that parties may appeal from the courts of the archbishops to the king in Chancery, &c.

Semble that the words in 25 Hen. 8. c. 19. s. 3, that all manner of appeals in what nature or condition soever, or what cause or matter soever they concern, shall be made "after such manner, form and condition" as is limited for appeals by 24 Hen. 8. c. 12, in the causes there mentioned, incorporate only the manner of proceeding in appeals in general indicated by sections 5, 6, and 7. of the former act, but do not re-enact the particular provision enacted by section 9. of that act.

An enactment distinct and without exception in itself is not to be controuled or limited by a doubtful implication to be drawn from a previous section of the same statute, especially in respect of the prerogatives of the Crown, which are not to be affected, except by distinct enactment. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (N.s.) C P. 200.

In a suit of duplex querela, before an archbishop, whether the subject-matter thereof touches the Crown or not, an appeal is given by the 25 Hen. 8. c. 19. to the High Court of Delegates, and since 2 & 3 Will. 4. c. 92. to the Queen in Council, there to be finally determined.

If this were not the case, the Court of Exchequer has jurisdiction to grant a prohibition.

Semble that the 25 Hen. 8. c. 19. has repealed the 9th section of the 24 Hen. 8. c. 12, which enacts, that in matters “touching the king," the appeal from certain ecclesiastical courts shall be to the Upper House of Convocation.

The Crown, as patron, having presented a clerk to a living, the bishop refused him admission on the ground of his opinions being unsound and not in accordance with the doctrines of the Church of England; the clerk, thereupon, brought a suit of duplex querela in the archbishop's court, complaining of the archbishop's decision, and stating that his doctrines were not inconsistent with those of the Church of England.

c. 12.

Quare-whether this proceeding was a matter "touching the king," within the statute 24 Hen. 8. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (N.s.) Exch. 376; 5 Exch. Rep. 630.

COAL ACTS.

The act for establishing an office for the benefit of coalwhippers in London, amended by 9 & 10 Vict. c. 36; 24 Law J. Stat. 96.

The Coal Act, 1 & 2 Will. 4. c. lxxvi. s. 54, directs coals delivered in sacks to be weighed, if required, each sack "with the coals therein, and afterwards to weigh, in like manner, each sack without any coals therein." A weighing by putting the sacks of coals successively in one scale of the weighing machine against weights equal to the weight each sack should contain, and an empty sack in the other scale, is not a weighing according to that section.

The Coal Act, 1 & 2 Will. 4. c. lxxvi., provided for the delivery of a seller's ticket, with coals, imposing a penalty, upon neglect, not exceeding 204, and enacted (sect. 77), that all penalties not exceeding 257. should be levied and recovered before any Justice or Justices of the Peace. The 1 & 2 Vict. c. ci. repealed so much of the former act as related to the delivery of a seller's ticket; and by a new enactment required a seller's ticket (according to a certain form) to be delivered, under a penalty not exceeding 201., but the act was silent as to any mode of recovering the penalty:-Held, that an action for the penalty by the buyer was not maintainable. Meredith v. Holman, 16 Law J. Rep. (N.S.) Exch. 126; 16 Mee. & W. 798.

When a statute for the purpose of protecting the buyers, prescribes regulations to be followed in the sale and delivery of an article, the vendor cannot recover the price of such article sold and delivered by him without observing the regulations.

By the 1 & 2 Vict. c. ci. s. 3, with any quantity of coals exceeding 560 lb., delivered by any cart, within the city of London, &c., the seller shall deliver or cause to be delivered to the purchaser or his servant, immediately on the arrival of the cart, &c. in which such coal shall be sent, and before unloading, a ticket, according to a certain form, under a penalty, unless the coals are purchased at the coal market. To debt for goods sold and delivered, the defendant pleaded in substance that the goods were quantities of coals sold and delivered by him to the plaintiffs, respectively exceeding 560 lb. and respectively delivered within the city of London, in divers, to wit, two carts, without delivering, before any such quantities of coals were unloaded, a ticket signed by the plaintiffs according to the form of the statute; and that the defendant did not purchase the same at the coal market:-Held, that the statute being passed for the protection of the purchasers of coal, the plea was an answer to the action. Also, on special demurrer, that the statute applies if the quantity at one delivery exceeds 560 lb. though delivered in carts each containing less than 560 lb.; that if the vendor be prevented, by any act of the purchaser, from delivering the ticket, that is matter to be replied; that the vendor's name must be written in the ticket as a signature, though would be sufficient if written by an agent; and that the negation in the plea of the delivery of a ticket was sufficiently applied to each delivery. Cundell v. Dawson, 17 Law J. Rep. (N.s.) C.P. 311; 4 Com. B. Rep. 376.

COLLEGE.

[See CHARITY-JURISDICTION-FELLOWSHIP.]

The words "a collegii emolumentis discedere" in college statutes, held to import an absolute forfeiture of a fellowship, and not merely a temporary suspension of the right to receive the emoluments thereof.

The word "discedere" as applied to a fellow vacating his fellowship, held not to be confined to a vacancy by death. In re St. Catherine's Hall, Cambridge, ex parte Goodwin, 1 Mac. & G. 473; 1 Hall & Tw. 601.

College statutes required that, cæteris paribus, preference be given to a candidate from a specified district, and a M.A. was to be elected si talis commode reperiri poterit :- Held, that a candidate who was a M.A. and from the specified district was not entitled to preference over other candidates, except in cases of equality in other respects. The statutes also required that every one admitted a fellow should be in sacerdotio constitutus. Fellows were usually admitted six months after their election:Held, that admission to deacon's orders was sufficient, and that a layman might be elected who would not at the expiration of six months from his election be old enough to take deacon's orders, it not being impracticable to obtain a faculty from the Archbishop of Canterbury for ordination under the usual age, and the college being willing and having power to extend the period of probation beyond six months. In re University College, Oxford, ex parte Moorsom, 17 Law J. Rep. (N.S.) Chanc. 298; 2 Ph.

521.

COLONY. [See FOREIGN LAW.]

COMMISSION OF REBELLION. [See HABEAS CORPUS.]

COMMITMENT.

[See CONVICTION-MALICIOUS TRESPASS-MASTER AND SERVANT-RATE, Poor Rate.] [Stamp v. Sweetland, 5 Law J. Dig. 179; 8 Q.B. Rep. 13.]

A warrant of commitment, directing the gaoler to imprison a party for three months, omitting the day of the month on which it was granted, held bad. In re Fletcher, 13 Law J. Rep. (N.s.) M.C. 16.

A warrant for the committal of a party to prison, until he find sufficient sureties to keep the peace, is bad, if it omit to specify the time for which, in default of such sureties, he is to be kept in prison. The warrant need not mention the amount in which the sureties are to be bound. Prickett v. Gratrex, 15 Law J. Rep. (N.s.) M.C. 145; 8 Q.B. Rep. 1020.

A warrant of committal, under the 8 & 9 Vict. c. 127, issued from the Palace Court, after reciting that the defendant "was and now is indebted to JHD in the sum of 41. 10s. and no more, besides

costs of suit, amounting to 51. 5s., by virtue of a judgment" in the Exchequer, &c., ordered that the defendant "shall be committed for the term of twenty days to the common gaol, wherein debtors, under judgment and in execution of the superior courts of justice, may be confined within the county of Surrey." The warrant was directed to H H, an officer of the said (Palace) court, and to the keeper of the debtors prison above mentioned, for the county of Surrey, and the defendant was imprisoned under it in Horsemonger-lane gaol, being the debtors county gaol for Surrey:-Held, first, that the warrant was not bad in omitting to state that the sum due was not a balance of an account originally exceeding 201., inasmuch as the defendant might be imprisoned in respect of a judgment debt under 20., although originally exceeding that amount; secondly, that the twenty days' imprisonment began to run from the day of the defendant being lodged in gaol; thirdly, that the place of imprisonment was sufficiently stated in the warrant; and, lastly, that the warrant was rightly directed, the execution of the process not being confined by the 8 & 9 Vict. c. 127. to the high bailiff of Westminster. Ex parte Foulkes, 15 Law J. Rep. (N.S.) Exch. 300; 15 Mee. & W. 612.

After judgment recovered against the defendant in the county court for a debt he became insolvent, and obtained his discharge from the Insolvent Debtors Court, having inserted the debt in his schedule. He was afterwards arrested under a warrant of commitment from the Judge of the county court, made subsequent to the discharge by the Insolvent Court:-The Court refused to grant a habeas corpus to discharge the defendant out of custody, as the warrant of commitment was a subsisting valid commitment.

It was objected that the warrant was bad, because it did not appear on the face of it that the defendant was examined on oath touching his estate and effects; also because it stated two offences, viz. that the defendant had obtained credit by false pretences, and had made a transfer of his property to defraud his creditors; also because it stated that the defendant had made a delivery, gift or transfer of the property to defraud his creditors, and was therefore uncertain; also because it ordered the defendant to be imprisoned for forty days, or until he be sooner discharged by due course of law :-Held, that as the warrant was partly a civil and partly a penal proceeding, these objections could not be sustained. Ex parte Purday or Pardy, 19 Law J. Rep. (N.S.) M.Č. 95; 1 L. M. & P. 16.

COMMON.

(A) RIGHT OF ENTRY TO ABATE NUISANCE. (B) COMMON pur Cause de VICINAGE.

(a) Custom between adjoining Commons.
(b) Custom between private Estates.
(c) What Usage will establish.

(A) RIGHT OF ENTRY TO ABAte Nuisance. The 8 & 9 Vict. c. 118. for the inclosure and improvement of commons amended by 9 & 10 Vict. c. 70; 24 Law J. Stat. 174.

The provisions for inclosing and improving commons extended by 10 & 11 Vict. c. 111; 25 Law J. Stat. 290.

Further provisions for the inclosure and improvement of commons and other lands made by 12 & 13 Vict. c. 83; 27 Law J. Stat. 159.

Where a house has been unlawfully erected on a common, a commoner whose enjoyment of the common is interrupted by it may pull it down. But he is not justified in pulling it down if there are persons in it at the time. And therefore to a declaration in trespass for pulling down a house, which stated that plaintiff and his family were actually present and residing in the house at the time, a plea by the defendant, a commoner, that the house interrupted his enjoyment of the common, and that he therefore pulled it down, was held ill.

Quare if the plea was bad for not averring notice to plaintiff to abate the nuisance.

A parol licence by a commoner to build a house on a common will not, though executed, run with the land in respect of which the right of common is claimed, so as to bind a subsequent owner of such land.

Quære-if it would have been binding as between the original parties. Perry v. Fitzhowe, 15 Law J. Rep. (N.S.) Q.B. 239; 8 Q.B. Rep. 757.

(B) COMMON PUR CAUSE DE VICINAGE.
(a) Custom between adjoining Commons.

Since the statute 2 & 3 Will. 4. c. 71, common of vicinage from time immemorial may be claimed by a commoner, who states his right to have existed for thirty years; the substance of the custom being, that cattle lawfully on one common have been used to stray upon the other.

Evidence of reputation is admissible to prove a right of common pur cause de vicinage. Pritchard v. Powell, 15 Law J. Rep. (N.S.) Q.B. 166; 10 Q.B. Rep. 589.

(b) Custom between private Estates. Common pur cause de vicinage cannot be claimed as matter of customary right by the owner of a farm against the owner of the adjoining farm, though there is no fence or inclosure between them. Such a right could only have its origin in a grant or in manorial custom. Jones v. Robin, 15 Law J. Rep. (N.S.) Q.B. 15; 10 Q.B. Rep. 581.

Semble, that common pur cause de vicinage may exist between two proprietors of neighbouring farms, independently of any rights of common on either side.

But a claim of such a right by an individual, as annexed or incident to a private estate, cannot be good by custom, but must be pleaded as a prescription in a que estate. Jones v. Robin (in error), 17 Law J. Rep. (N.s.) Q.B. 121; 10 Q.B. Rep. 620.

(c) What Usage will establish.

A plea of common pur cause de vicinage is not supported by proof that sheep have been accustomed to stray from wastes subject to common of pasture, into adjoining lands, not separated from the wastes by any fence or visible boundary, it appearing that the owners of the sheep which so