ATTORNEY GENERAL v. THE MARQUIS OF STAFFORD. 1795. Nov. 16th and 17th. 1796. March 16th and 18th, 1 mission of charitable uses it About surrendered BEFORE the 43d year of the reign of Queen Elizabeth, Under a comcertain copyhold lands and premises holden of the manor of Stowheath were surrendered to trustees upon trust, that the was agreed, yearly profits should be employed for the hire, stipend, and that copyhold wages, of a priest, minister or curate, to say divine service in lands, formerly the chapel of Willenhall from time to time for ever. the sixth year of the reign of King James I. a memorandum for maintenwas entered on the rolls of the said manor reciting, that by ance of a minister in W. a consideration awarded upon the statute 43 Eliz. under commission of charitable uses the inhabitants and men of Wil- chapel, should be let, and the lenhall in the county of Stafford have made profert, that cer- rents employtain copyhold lands in the town of Willenhall, holden by copy ed towards of court roll of the manor of Stowheath, were formerly sur- maintenance rendered upon trust, that the yearly profits should be em- of the minisployed in the hire, stipend, and wages, of a priest, minister ter, to be or curate, to say divine service in the chapel of Willenhall chosen and apfrom time to time for ever, for the ease of the inhabitants pointed by the inhabitants, and presented there dwelling, being two miles from Wolverhampton, their parish church, and towards repairing the said chapel; and the and allowed said yearly profits were so employed for many years; upon by the lord of consideration of which cause ambiguity and doubtings arising, the manor; whether the said lands were originally given to the mainte- who upon comnance of a chantery priest, or otherwise to the maintenance of plaint might give the mia curate or priest to say divine service, the said inhabitants are nister half acontented to refer themselves therein to the consideration of Sir John Leveson, Knt. and John Giffard, Esq. lords of the ing, and if he manor of Stowheath, within which manor the said town of had not reWillenhall lieth; which employment of the rents and profits formed by that year's warn the time, might remove him: the information prayed, that the lord might be decreed to allow and approve the candidate, who had the majority of votes; which was refused on the ground of misconduct; and, the evidence clearly proving it, a new election was directed; upon which the same candidate being returned, and producing strong affidavits of good conduct, for the last six years, the decree, stating the affidavits, declared, that in consequence of them the relator deserved the approbation of the trustees. 1796. ATTORNEY v. STAFFORD. the said Sir John Leveson and John Giffard accepting, the rather for that their ancestors have formerly given allowance out of the same lands to the same purpose, agree, that the said lands shall for ever hereafter be let by the consent of four of The Marquis of the inhabitants of the said town of Willenhall, to be chosen by the greater part of the sufficient householders of the same town, and that the rents to be reserved shall be employed half yearly, subject to the antient chief rent due to the lords of the manor and an annual payment towards repairs of the chapel, towards the maintenance of a stipendiary priest, minister, or curate, for the saying of divine service, ministering the sacrament, &c. in the chapel: which priest, &c. shall be from time to time chosen, nominated, and appointed, by the said inhabitants of Willenhall for the time being, or the greater part of them, having lands as aforesaid, and presented or allowed by the lord or lords of the said manor of Stowheath and his or their heirs or heir for ever; and it is farther ordered, that whatsoever shall be appointed, presented, or allowed, as aforesaid, to supply the place of minister or curate in the said chapel, shall conform himself to the government ecclesiastical, &c. and be resident upon his cure there; in default thereof and upon complaint made by the said inhabitants or the greater part of the sufficient or chiefest of them either of his non-residence, insufficiency, negligence, or any other misdemeanor, to the lord or lords of the said manor for the time being, it shall be lawful for the lord or lords of the said manor for the time being to give one half year's warning to the said priest, minister, or curate, to reform himself; which if he do not, then it shall be lawful for the said lord or lords for the time being to remove or displace him at the end of the said half year, and to present and allow another curate, minister, or priest, there to be nominated and appointed by the said inhabitants or the greater part of them as aforesaid. It was then ordered, that the lands should be granted to nine feoffees, then and there to be nominated, upon which grant 137. 6s. 8d. should be paid for a fine and heriot; and that after the death of six or seven there should be six or seven others from time to time chosen by the said inhabitants or the greater part of them, and that the old grant should be surrendered, and a new grant made; and that upon every such admittance there should should be paid to the lords of the said manor 6l. 13s. 4d. for a fine and a heriot. 1796. ATTORNEY GENERAL છે. STAFFORD. [ *79 ] Upon the 23d of December, 1788, the chapel of Willenhall became vacant by the death of Titus Neave. Two candidates The Marquis of offered themselves; and an election took place on the 11th of May, 1789, and the numbers upon the poll were 67 to 29; which was certified to the Marquis of Stafford and Thomas Giffard, Esq. lords of the manor, in the usual way; but they declined to appoint the candidate, who had the majority of votes. Upon that the information and bill was filed against the lords of the manor, the bishop of Norwich, as Dean of Windsor and Wolverhampton, Christopher Marshall, as official to the said dean, and Thomas Walker, as surrogate; praying, that it might be declared, that the Plaintiff had been duly elected, nominated, and appointed, to the place of minister, &c. of the said chapel, and was entitled and ought to be approved and allowed by the Defendants the Marquis of Stafford and Thomas Giffard, as the proper person to be licenced to perform the duties; and that the said Defendants might allow and approve the said Plaintiff accordingly, and be restrained from presenting to be licenced, and that the other Defendants might be restrained from licencing, any other person; and that the Marquis of Stafford and Thomas Giffard might be decreed to be trustees only for the inhabitants of Willenhall, having lands of inheritance and being householders dwelling there, in respect of the right of approval vested in them; and that the charitable purpose intended by the erection of the chapel and appointment of a minister might be observed according to the original institution. The information stated, that the chapel of Willenhall was a chapel of ease to the royal free chapel and parish church of Wolverhampton and within the ordinary jurisdiction of the dean of the king's free chapel of St. George, Windsor, and of the king's free chapel of Windsor and Wolverhampton. The lords of the manor by their answers stated, that the said chapel was a free chapel founded and originally endowed by the lords or lord of the manor of Stowheath before time of memory, and always was and is a pure donative, and was never augmented by Queen Ann's bounty, and therefore is not subject 1796. ATTORNEY v. The Marquis of [ *80 ] subject to any ecclesiastical jurisdiction. They submitted, that the lords of the manor had a clear right, and were bound to reject any person, however recommended, if for any reason unfit for the office of minister. They stated their reasons for refusing to appoint the Plaintiff on account of his improper conduct as a clergyman, and that 49 of the persons, who voted for him, were not inhabitants of the town of Willenhall, but resided in several distant and detached places of the hamlet of Willenhall, and that four only of the voters for Mr. Haydn, the other candidate, were liable to that objection; and that 43 of the voters for the former voted in right of cottages and encroachments upon the lord's waste, and are in very poor and indigent circumstances; that Haydn, the other candidate, is a fit and proper person; and the 29 voters for him voted in right of undoubted lands of inheritance, They therefore submitted, whether the right is in the sufficient householders resident in the town of Willenhall having lands of inheritance, or in the hamlet at large having also lands of inheritance; and if in the latter, whether the said 43 persons are entitled to vote; and they submitted to act as the Court should direct. In one of the instruments of appointment by the lords of the manor, that was proved in the cause, the language was, that approving the choice they present, constitute and allow, &c. There was strong evidence of misconduct by the Plaintiff, while he was officiating curate for Mr. Neave, the last minister; who told him, he should be obliged to remove him, The Attorney General and Mr. Stratford, for the Contended, that where there is a right to nominate to those who are to present, the nomination is the substance, and the presentation only ministerial. Burn Ecc. Law, tit. Benefice, 97; and Shirley v. Underhill, M. 16 James I. there cited. The Solicitor General, Mr. Graham, and Mr. Richards, for the Defendants, Insisted, that it was a donative; and the power in the lords of the manor to remove the minister shewed that. Lord CHANCellor. This information is brought upon an establishment in nature of a donative; as to which the person, in whom the right to appoint is, appoints at his own discretion. He does not present. It is true, the person appointed must be a clergyman, and licenced to preach and administer the sacrament. He is a mere chaplain, and holds at will. The person appointing removes him at his will and pleasure, and gives no account of his reasons. Whatever is the nature of the land, (there seems to have been some dispute, whether it was not appropriated to some chantery) it was clearly in that situation, when the inhabitants submitted themselves to have the land regulated according to the pleasure of the two lords of the manor. The consequence of the transaction that passed then, seems to be this: the appointment and the regulation of it is in some degree divided between the majority of sufficient householders having estates of inheritance in the township of Willenhall and the two lords of the manor; and it is clear from this instrument, particularly the clause reserving the power of removal, that the lords of the manor must be construed according to the words to have a discretionary power to a certain extent vested in them. Whatever power to nominate they might have had, they have given it up so far, that the inhabitants have a right to elect a person, whom the lords of the manor agree to present and allow. It is provided, that upon complaint made of the minister by the majority of the inhabitants to the lords of the manor they are to give him six months notice; and if he does not reform within that time, they may remove him. As to that they have a manifest discretion. They cannot without complaint remove: but upon that they must have a judgment. It is distinctly reserved to them. They are to judge, whether he has reformed. As they have a discretion as to a minister already appointed, I cannot fail to give the same construction to the words, where they are to present and allow. I think the division very fair between the parties. It is not enough to say, that if an improper person is nominated, the ordinary may withhold the licence. It is not for the lords of the manor to nominate that person; to give him the sanction of their allowance. The language of the appointment is, that approving the choice they present, constitute, and allow. There 1796. ATTORNEY GENERAL v. The Marquis of STAFFORD. Qualities of a donative. [*81] |