ment, by summary proceeding, of the portion so annexed.

The following CASE was stated by one of the Justices for the city of London, for the opinion of the Court of Common Pleas.

By a public local and personal act, 7 Geo. 4. c. liv, and entitled "An act for extinguishing tithes and customary payments in lieu of tithes and Easter offerings within the parish of St. Giles, Cripplegate, in the liberties of the city of London, and for making compensation to the vicar for the time being in lieu thereof," it was in the preamble recited, "Whereas it will be beneficial to the inhabitants of the said parish, that a certain annual stipend should from henceforth be paid to the vicar of the said parish for the time being, in lieu and full satisfaction of all tithes and payments in lieu of tithes within the said parish in manner and under the regulations hereinafter mentioned."

And then, in section 1, it was enacted, "That the churchwardens of the said parish for the time being shall from time to time for ever hereafter pay or cause to be paid to the vicar for the time being of the said parish, or to such persons as he shall appoint to receive the same, one clear annual sum of 1,800l. of lawful money of Great Britain, subject to such averages according to the price of wheat, from time to time as hereinafter mentioned, in lieu, satisfaction and discharge of all tithes and Easter offerings or payments in lieu of tithes to which such vicar is entitled within the said parish."

By section 3. it was provided, that if the sum payable to the vicar be in arrear, on complaint by or on behalf of the vicar, a Justice of the Peace for the city of London is required to grant a warrant, authorizing any person to be nominated by or on behalf of the vicar, to levy such arrears by distress and sale of the goods and chattels of the churchwardens and inhabitants of the parish who had been summoned to answer. By section 8, it was provided, "to the end that the churchwardens may raise and pay the said yearly sum of 1,800l., the churchwardens in vestry, or in case either of them refuse any twelve vestrymen, once a year or oftener, as they shall

see occasion, shall proceed to make and sign a sufficient assessment, to be called "The Church Rate," upon all persons inhabitants and occupiers of lands, tenements, hereditaments and premises within the said parish, except the vicar for the time being, for raising the said annual sum of 1,800l., and such further sum of money as shall be necessary for repairing and keeping in repair the church of the said parish and the churchyard belonging to the same, and for the payment of all necessary and proper salaries and disbursements relative to the said parish church and churchyard." Section 28. contains a provision for reviewing the stipend every ten years, and altering it according to the average price of wheat.

Since the passing of the act the vicar for the time being received the said annual sum of 1,800l. until the 18th of March 1856, when the sum was revised according to the price of wheat, and reduced pursuant to section 28. to the annual sum of 1,4217. 15s. 8d., which is the annual sum now payable under the aforesaid act. By the provisions of an act of parliament, 2 & 3 Vict. c. 107, the Governor and Company of the Bank of England were empowered to take down the church of St. Bartholomew, Exchange. The parish. of St. Bartholomew, Exchange, however, was by the said act expressly preserved, and was united to the parishes of St. Margaret, Lothbury, and St. Christopherle-Stocks, the church of St. Margaret, Lothbury, being made the parish church of the three united parishes. By the 86th section of the said act the Governor and Company of the Bank of England, within twenty-one days after they had taken possession of the church of St. Bartholomew, Exchange, were to pay to the Archbishop of Canterbury and the Bishop of London a sum of money, to be employed by the said archbishop and bishop in purchasing a site for and in erecting and endowing a church in the City of London, or some parish adjoining thereto, the right of presenting to which church was by the said section vested in the Queen. The church of St. Bartholomew, Moor Lane, was built and endowed, and the respondent was presented to and now holds the incumbency of the said church under and by virtue of

the provisions of the said act. In the year 1850, an Order in Council was obtained and published in the London Gazette of the 21st of June 1850, of which the following is a copy:

"At the court at Buckingham Palace, the 19th day of June 1850, present the Queen's most excellent Majesty in council. Whereas Her Majesty's Commissioners for building New Churches have, in pursuance of the 16th section of an act passed in the fifty-ninth year of the reign of His Majesty King George the Third, intituled 'An Act to amend and render more effectual an act passed in the last session of parliament for building and promoting the building of additional churches in populous parishes,' or under or by virtue of any other power or authority vested in them by the Church Building Acts, duly prepared and laid before Her Majesty in council a representation, bearing date the 14th of May 1850, in the words following, viz.:-' Your Majesty's Commissioners for building New Churches beg leave humbly to represent to your Majesty that, having taken into consideration all the circumstances of the parish of St. Giles, Cripplegate, in the county of Middlesex, and within the diocese of London, it appears to them to be expedient that a particular district should be assigned to the consecrated church of St. Bartholomew, situate in Moor Lane, in the said parish of St. Giles, Cripplegate, under and by virtue of the power or authority for this purpose contained in the 16th section of an act passed in the fiftyninth year of the reign of His Majesty King George the Third, intituled "An Act to amend and render more effectual an act

passed in the last session of parliament, for building and promoting the building of additional churches in populous parishes,' or under and by virtue of any and every other power or authority in this behalf vested in your Majesty's said Commissioners by the Church Building Acts, and that such proposed district should be called "The District Chapelry of Little Moorfields," with boundaries as hereinafter mentioned. The district chapelry of Little Moorfields is bounded on or towards the north by the parish of St. Luke, Old Street, on or towards the east by the parish of St. Stephen, Coleman Street, and on or

towards the south by the said parish of St. Stephen, Coleman Street, and on or towards the west by the remaining part of the said parish of St. Giles, Cripplegate, from which the said district chapelry of Little Moorfields is separated by a line passing up the middle of Aldermanbury Postern into Fore Street, and then turning northwesterly up the middle of Fore Street as far as Milton Street, and north-easterly up the middle of Milton Street as far as the boundary line of the said parish of St. Luke, Old Street, as such district chapelry is more particularly delineated on the map or plan hereunto annexed, and thereon coloured pink. Your Majesty's said Commissioners beg leave further to represent to your Majesty that it also appears to them to be expedient that banns of marriage should be published, and that marriages, baptisms and churchings, and also burials, upon a burial ground being provided for the said district chapelry, should be solemnized and performed in the said church of St. Bartholomew in Moor Lane aforesaid, and that the fees to arise therefrom should be paid and belong to the incumbent thereof for the time being. That the consent of the Right Honourable and Right Reverend Charles James, Lord Bishop of the said diocese of London, has been obtained thereto as required by the act and section herein before mentioned, in testimony whereof the said Charles James, Bishop of London, has signed and sealed. this representation. Your Majesty's said Commissioners, therefore, humbly pray that your Majesty will be graciously pleased to take the premises into your royal consideration, and to make such order in respect thereto as to your Majesty in your wisdom shall seem meet.' Her Majesty, having taken the said representation, together with the map or plan. thereunto annexed, into consideration, was pleased, by and with the advice of Her Privy Council, to approve thereof and to order, as it is hereby ordered, that the proposed assignment be accordingly made, and the recommendations of the said Commissioners in respect of the publication of banns and the solemnization of marriages, baptisms, churchings and burials, and the fees arising therefrom, be carried into effect, agreeably to the provisions of the

said acts, and Her Majesty, by and with the like advice, is pleased to direct that this order be forthwith enrolled pursuant to the said acts, and registered by the Registrar of the diocese of London.

"Wm. L. Bathurst." The said church of St. Bartholomew, Moor Lane, with the district assigned to it, as stated in the said Order in Council, is situate within the original limits of the said vicarage of St. Giles, Cripplegate, and the respondent was, as aforesaid, duly appointed incumbent of the said church and district.

The inhabitants of the district of St. Bartholomew, Moor Lane, are elected to and serve upon the select vestry for the parish of St. Giles, Cripplegate, and a considerable number of the said vestry consists of persons residing within the district of St. Bartholomew, Moor Lane. The inhabitants of the said district are also liable to pay, and do in fact pay, their share of a sum, in the nature of a rate raised annually in the said parish, under the authority of 7 Geo. 4. cap. liv, not only for the payment of the before-mentioned composition to the vicar in lieu of tithes, but also for the payment of the expenses of the church of St. Giles, Cripplegate, and of the salaries of the various parish officers of the said parish of St. Giles, Cripplegate, and other expenses mentioned in the 8th section of the said last-mentioned act.. Banns of matrimony and the solemnization of marriages, churchings and baptisms, according to the laws and canons and customs of the Established Church, have been, since the said Order in Council, and are authorized to be published and performed in the said consecrated church of St. Bartholomew, Moor Lane, and the incumbent of the said church was by such authority entitled for his own benefit to the entire fees arising from the performance of such offices, without any reservation thereout; and the said respondent has, without any reservation, always received the same, so far as they arise from the performance of the ceremony of marriage, but has never received any fees either for baptisms or for churchings, having declined to receive the same. By the 95th section of the statute 2 & 3 Vict. c. 107, the purchase-money arising from the sale of certain houses is

to be paid to the governors of Queen Anne's Bounty, to be by them invested (until it can be conveniently invested in real property) in the 37. per cent. consolidated, or 31. per cent. reduced Bank annuities, in trust, after certain trusts which have long expired, to pay the dividends to the minister of the new church contemplated by the act to be erected as aforesaid. Pursuant to this section, a sum of 9,9341. 14s. 4d. has been invested, by the said governors of Queen Anne's Bounty, in the 3. per cent. reduced Bank annuities, upon the trust stated in the above-mentioned section, and the dividends from the same, amounting to the clear annual sum of 2981. Os. 8d., have been for several years, and are now annually payable to and received by the said respondent, as minister of the said district church of St. Bartholomew, Moor Lane, which is the new church contemplated by the act to be erected. The surplice fees payable to the respondent, and paid to him, have. exceeded the sum of 157., and not exceeded the sum of 201., during each of the years 1855, 1856, 1857. The respondent has engaged a curate, deeming his services necessary for the district, of which the population is between 4,500 and 5,000, and pays him annually a salary of 1307. per annum. He also pays voluntarily various other sums annually towards the expenses of the church service, amounting in all to the sum of 981. a year.

On the 25th of May 1857 an indenture was made and executed by the respective parties, described as parties thereto, in the words following:

"This indenture, made the 25th day of May 1857, between the Rev. Philip Parker Gilbert, Clerk, Master of Arts, vicar of the parish church of St. Giles, Cripplegate, in the city and diocese of London, of the first part, the Very Rev. Henry Hart Milman, D.D., Dean of the Cathedral Church of St. Paul, in London, and the Chapter of the same church, patrons of the said vicarage, of the second part, the Right Hon. and Right Rev. Archibald Campbell, Lord Bishop of London, of the third part, and the Rev. William Denton, Clerk, M.A. (the respondent), incumbent of the perpetual curacy of the district chapelry of St. Bartholomew, Moor Lane (a church within

the limits of the said vicarage of Cripplegate), of the fourth part." After reciting that by the act, 7 Geo. 4. c. liv., it was among other things enacted, that the churchwardens of the said parish for the time being should from time to time for ever thereafter pay, or cause to be paid, to the vicar for the time being of the said parish, or to such person as he should appoint to receive the same, one clear annual sum of 1,800l. of lawful money of Great Britain, subject to such averages, according to the price of wheat from time to time as thereinafter mentioned, in lieu, satisfaction and discharge of all tithes and Easter offerings, or payment in lieu of tithes, to which such vicar was entitled within the said parish, which said clear annual sum of 1,800l. should be paid by four quarterly payments, on the 25th of March, the 24th of June, the 29th of September, and the 25th of December in every year; and after reciting that the said P. P. Gilbert was desirous of charging the said vicarage of St. Giles, Cripplegate, for the benefit and support of the church of the said district chapelry of St. Bartholomew, Moor Lane, to the extent and in manner thereinafter mentioned, the deed proceeded as follows:-" Now this indenture witnesseth, that in pursuance and exercise of the power in this behalf, given or created by an act of parliament, made and passed in the first and second years of the reign of His late Majesty King William the Fourth, intituled 'An Act to extend the provisions of an Act passed in the twenty-ninth year of His Majesty King Charles the Second, intituled "An Act for confirming and perpetuating augmentations made by ecclesiastical persons to small vicarages and curacies," and for other purposes,' and of every other power enabling him in anywise in this behalf, the said P. P. Gilbert, with the consent of the said Archibald Campbell, Lord Bishop of London (as the bishop in whose diocese the said vicarage of St. Giles, Cripplegate, is situate), and of the said Dean and Chapter of St. Paul's (as patrons of the said vicarage), testified, by their respectively executing these presents, doth hereby, from and after the 24th day of June next, for ever, annex unto the church of the said district chapelry of St. Bartholomew, Moor Lane, one equal sixth

part of the said annual sum of 1,800l., or of such other sum as shall from time to time be payable to the vicar for the time being of the said church of St. Giles, Cripplegate, by virtue of the said act of His Majesty King George the Fourth, to the intent that the said William Denton and his successors, perpetual curates of the said district chapelry of St. Bartholomew, Moor Lane, may, from and after the 24th day of June next, receive and enjoy the said one-sixth part, expressed to be hereby annexed to the church of the said district chapelry, and may have and exercise all the same remedies for recovering and enforcing payment thereof, as the said Philip Parker Gilbert, his successors, vicars of the church of St. Giles, Cripplegate, aforesaid, might have had if these presents had not been made. And the said Philip Parker Gilbert doth hereby declare that it is intended that these presents shall be forthwith deposited in the registry of the diocese of London aforesaid, conformably with the provisions contained in the said act of His late Majesty King William the Fourth. In witness whereof," &c.

This indenture was made without any notice to or consent from the present churchwardens or other the inhabitants of the said parish of St. Giles, Cripplegate.

Since the making of the said indenture, two quarterly portions of the said annual sum have become due, viz., at Michaelmas and Christmas 1857.

The respondent has demanded of the churchwardens of the said parish onesixth part of such quarterly portion as being due to him under the said indenture. The said churchwardens have not paid the same to him, and the said onesixth part of such quarterly portions was more than twenty-eight days in arrear at the time of the complaint hereinafter mentioned. The said vicar of St. Giles, Cripplegate, has not demanded the said one-sixth sum to be paid to him, or to the said respondent, and has declined to interfere in the matter in any way. There is one churchwarden annually appointed for the parish or district belonging to the church of St. Bartholomew, Moor Lane.

The case then stated a complaint made by the respondent before one of the Jus

tices for the City of London of two quarterly portions of the sum so annexed as above mentioned being in arrear, which complaint came on to be heard before one of the Justices for the said city, at Guildhall, on the 1st of March 1858, when the above-mentioned facts were then proved or admitted.

On behalf of the respondent, it was urged that by virtue of the Order in Council the church of St. Bartholomew, Moor Lane, was a district church or chapel, and had a district assigned to it. That consequently the indenture annexing to the said church one-sixth part of the annual sum payable to the vicar of St. Giles, Cripplegate, was valid under the statute 1 & 2 Will. 4. c. 45. s. 21. And that by virtue of the indenture and the last-named statute a Justice of the Peace for the city of London was authorized and required, on the application of the respondent to grant a warrant to levy the arrears of the one-sixth portion of the said annual sum so annexed as aforesaid, if for more than twenty-eight days unpaid to the respondent, by distress and sale of the goods of the churchwardens of St. Giles, Cripplegate, and other inhabitants of the same parish, as he would have been required to do on the application of the said vicar had the deed of annexation not been made.

For the appellants it was contended, that by the statute 19 & 20 Vict. c. 104. the district to which the church of St. Bartholomew, Moor Lane, belonged had at the time of executing the indenture become a separate and distinct parish for ecclesiastical purposes, and consequently was incapable of receiving an annexation of tithes or other revenue under the statute 1 & 2 Will. 4. c. 45. s. 21. Secondly, that without reference to the statute 19 & 20 Vict. c. 104. the statute 1 & 2 Will. 4. c. 45. did not make the indenture valid so as to annex the one-sixth part of the annual sum payable to the vicar of St. Giles, Cripplegate, to the district church of St. Bartholomew, Moor Lane. Thirdly, that assuming that the indenture was valid so as to annex the said one-sixth part to the said district church, the incumbent of the said district church had not any summary power of recovering the

arrears, and a Justice for the city of London was not authorized to grant his warrant to levy the same on the goods of the said churchwardens and inhabitants.

The Magistrate took time to consider the case, and on the 3rd day of March 1858 gave his decision, and stated that he was of opinion that the church of the district chapelry of St. Bartholomew was a chapel having a district assigned to it within the meaning of the 21st section of the 1 & 2 Will. 4. c. 45, and that therefore the deed which had been executed by the vicar, dated the 25th of May 1857, was a valid deed and made in conformity with the provisions of that section of the act of parliament; that he was also of opinion that he was enabled, under the powers vested in him by the 7 Geo. 4. c. liv. ss. 1. and 3. to direct a warrant authorizing the recovery of the arrears claimed by the respondent, the incumbent. That he was also of opinion that the district assigned to the church of St. Bartholomew was not a separate and distinct parish, and that it was not separated from the parish of St. Giles, Cripplegate. And that he considered, therefore, that the vicar legally exercised the power vested in him, notwithstanding the provisions in the 14th and 15th sections of the 19 & 20 Vict.

c. 104. And the Magistrate therefore granted his warrant to levy the said arrears on the goods of the said churchwardens and inhabitants.

The said church wardens and inhabitants being dissatisfied with this decision, as erroneous in point of law, the said Magistrate stated the case above set out. The case was argued (Nov. 29, 30, 1858) by—

F. Russell, for the appellants, and Coleridge, for the respondent. Cur. adv. vult. CROWDER, J. now (Feb. 12, 1859) delivered the following judgment:

This was an appeal against the decision of a Magistrate, whereby a warrant was granted to the respondent to levy the arrears claimed by him under and by virtue of a deed of the 25th of May 1857, on the goods of the appellants. The respondent was the incumbent of the church of St. Bartholomew, Moor Lane, and the