another Act, called the Incumbents Resignation Act, 1871, by which (as amended by the Act of 1887), a clergyman permanently incapacitated by illness may resign his benefice; and may receive a pension, to the amount of one-third the clear annual value, charged on the revenues of the benefice, recoverable as a debt from the subsequent incumbent thereof. VI. The lowest degree of ecclesiastical persons is the CURATE, who is a clerk in holy orders employed by the rector, vicar, or other incumbent of a living, either to serve in his absence, or as his assistant, as the case may be (f). Every stipendiary curate, before he enters on his duties, must, however, be licensed by the archbishop or bishop of the diocese (g); and such licence may be afterwards revoked (h). Also, before the licence is granted, the curate must sign the stipendiary curate's declaration, that he will bona fide receive from his future vicar the whole stipend as arranged (). He must also, on entering on his curacy (unless, having been ordained on the same day, he has already done so), make and subscribe the "declaration of assent" to the Thirty-nine Articles and Book of Common Prayer; and on the first Lord's day on which he officiates, he must publicly and openly repeat such declaration in the presence of the congregation, and during the time of divine service (k). For the proper sustentation and payment of licensed curates, the law has made a variety of provisions; thus, by the 28 Hen. VIII. (1536), c. 11, a curate who shall serve a church during its vacancy, shall be paid such stipend as the ordinary thinks reasonable out of the (f) Burn, Ecc. Law, by Tyrw.. vol. ii. p. 54 (a); Arnold v. Bishop of Bath (1829), 5 Bing. 316; and, as to lecturers and preachers, see 7 & 8 Vict. (1844), c. 59. (g) Burn, vol. i. p. 61; Watson, C. L. 147, 207, 335. (h) R. v. Archbishop of Canterbury (1859), 1 El. & El. 545; Poole v. Bishop of London (1861), 7 Jur. (N.s.) 347. (i) Clerical Subscription Act, 1865, s. 6. (k) Ibid. s. 8. profits accruing during the vacancy; or, if that be not sufficient, it shall be made up by the successor, within fourteen days after he takes possession. And by the Pluralities Act, 1838, numerous provisions are made as to the appointment and payment of curates, among which are the following :-that in certain cases of non-residence by the incumbent, the bishop may, in his default, appoint a proper resident curate, with a stipend (1); that where the bishop sees reason to believe that the duties of any benefice are inadequately performed, or where it is of a certain value or extent, he may (though in the first case only after referring the matter to certain commissioners appointed by him for that purpose) require the incumbent, whether actually resident or not, to nominate a proper curate with sufficient stipend, and on his default may himself make such appointment (m), which appointment the bishop may now, by the Benefices Act, 1898, make, without first requiring the incumbent to do so (n); and that the stipend of every curate appointed by the bishop shall be adjusted in proportion to the value and population of the benefice, the stipend not in any case falling short of 801. per annum, or of the whole annual value of the benefice, if it be under that amount (o); and in all cases of dispute between the incumbent and the curate as to his stipend, the bishop may summarily decide between them without appeal, and may enforce his sentence by monition and sequestration (p). Also, by the Pluralities Act, 1885, it is provided, that the bishop may assign to any curate or curates appointed and licensed by him such stipend as he may think fit, not exceeding by 701. the respective stipends allowed to curates by the Pluralities Act, 1838, s. 77, in the case of non-resident incum (7) Sects. 76, 86. (m) Sects. 77, 78. (n) 61 & 62 Vict. (1898), c. 48, 8. 9. (0) 1 & 2 Vict. (1838), c. 106, s. 85. (p) Sect. 83; Daniel v. Morton (1850), 16 Q. B. 198. bents (2); and may in certain cases appoint two or more curates in the case of such non-resident incumbents (?), with an adequate provision for each. And it is also provided, that whenever the incumbent of any benefice is non-resident with the licence of the bishop, he shall not (without the bishop's permission) resume the duties of the benefice until the expiration of the licence, or interfere with the curate or curates thereof appointed by the bishop (s). VII. [CHURCH WARDENS (t) are the guardians or keepers of the fabric and furniture of the church, and the representatives of the general body of the parishioners ;] and they are always lay persons (u). They are sometimes appointed by the minister, sometimes by the parish in vestry assembled (a), and sometimes by both minister and parishioners together, as the custom of the place directs (y). But, where there is no such custom, the election must be according to the directions of the canons (): and these require that churchwardens shall be chosen by the joint consent of the minister and parishioners, if it may be, but, if they cannot agree, then the minister is to choose one, and the parishioners another (a). The Church Building Acts (b), and the New Parishes (q) Sect. 8. (r) Sect. 9. (s) Sect. 12. (t) Bac. Abr., and Buru, Ecc. Law and Encyclop. of English Law, in tit. "Churchwardens"; Ex parte Winfield (1835), 3 A. & E. 614; R. v. Marsh (1836), 5 A. & E. 468; Bray v. Somer (1862), 2 B. & S. 374. (u) Hard. 379; 1 Rol. Ab. 653 ; 2 Rol. Rep. 107. (x) As to vestries, ride sup. vol. I. p. 70. (y) Campbell v. Maund (1836), 5 A. & E. 865; R. v. Rector of (z) Catton v. Barwick (1718), Str. 145. (a) Canon 89 of 1603; R. v. Allen (1872), L. R. 8 Q. B. 69; Rex v. Bishop of Salisbury, [1901] 1 K. B. 573. (b) 58 Geo. 3 (1818), c. 45, s. 73; 1 & 2 Will. 4 (1831), c. 38, ss. 16, 25; and 8 & 9 Vict. (1845), c. 70, ss. 7, 8. Acts (e), as to the churches respectively within the provisions of those Acts, contain express provisions as to the election of churchwardens, as do schemes under the London Government Act, 1899 (d), in the case of old ecclesiastical parishes in the metropolis. In general, all churchwardens. are chosen yearly in Easter week, and are usually two in number for each parish; they are obliged, when chosen, to serve (e), and are sworn to execute their office faithfully (f). [They are taken, in favour of the church, to be for some purposes a kind of corporation at common law; that is, they are enabled, by the name of "churchwardens," to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish (g). And it is said, that churchwardens in the city of London are a corporation for all purposes (h). One of the chief duties of churchwardens is the care and management of the goods belonging to the furniture of the church, such as the organ, bells, Bible, and parish books (i). But as to the fabric of the church and also as to the churchyard, they have no sort of interest in the property (c) 6 & 7 Vict. (1843), c. 37, s. 17; 19 & 20 Vict. (1856), c. 104, 8. 28. (d) 62 & 63 Vict. c. 14. (e) The following classes of persons are either ineligible or exempted, viz., peers of the realm; members of parliament; clergy men of the Church of England; Roman Catholic clergy; dissenting ministers; barristers; solicitors; clerks in court; physicians, surgeons, and apothecaries (if duly registered); aldermen; dissenting teachers; and all persons living out of the parish, unless they occupy a house of trade therein. (See Steer, Parish Law, p. 84.) (ƒ) Canon 88; Er parte Winfield (1835), 3 A. & E. 614, 615. (g) 9 Geo. 1 (1722), c. 7, s. 4; and (in regard to parish lands) 59 Geo. 3 (1819), c. 12, ss. 8, 17; 5 & 6 Will. 4 (1835), c. 69, s. 4; Smith v. Adkins (1841), 8 M. & W. 362; and (in regard to compensation for the common rights of parishes) 45 & 46 Vict. (1882) c. 15. (h) Pulling, Laws of London, 263; Rogers, Eccl Law, 185. (i) Bac. Abr. Churchwardens, B.; Watson C. L. 390; Addison v. Round (1836), 4 A. & E. 799; Jackson v. Adams (1835), 2 Bing. N. C. 402. [thereof; and if any damage be done thereto, the rector only, or vicar, shall have the action (k)]. But this last remark, of course, does not apply to the cemeteries and burial grounds set apart under the modern Burial Acts, which are referred to in the third volume of this work. It is also part of the office of churchwardens, unless other persons are appointed by the ordinary for that purpose, to have the care of the benefice, during its vacancy, or while it is under sequestration for the debts. of the incumbent (1). They are, moreover, required to see to the reparation of the church, and to the making of the church rates, by which the expenses thereof are to be defrayed. These rates are charged on all lands and houses in the parish, are assessed on the occupiers, and are made by the parishioners at large, that is, by the majority of the parishioners present at a vestry summoned for that purpose by the churchwardens (m). But they are not now, as a general rule, compulsory on the persons rated; and the only consequence of refusing to pay them is a disqualification from voting on the expenditure of the moneys arising from the rate. This important change in the law was effected in the year 1868, by the Compulsory Church Rates Abolition Act, the reason being, that church rates had for years ceased to be made or collected in many parishes by reason of the opposition thereto, and the levying thereof had given rise to litigation and ill-feeling; but (by section 2) there are excepted from the operation of the Act all rates which, under the name of church rates, are made by the authority of any Act of Parliament, and are applicable in part to other than ecclesiastical purposes and some other special cases. These accordingly are governed by the previous law on this subject. Voluntary rates are still often levied for church schools and the like. (k) Beckwith v. Harding (1818), 1 B. & Ald. 508. (1) Steer, Parish Law, 91. (m) The Braintree Case (Burder v. Veley (1840), 12 A. & E. 247; Gosling v. Veley (1852), 4 H. L. C. 679. |
