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PRIVILEGES AND RESTRAINTS OF THE CLERGY.

Page 1008. after line 29. insert

PRIVILEGES

AND RES
TRAINTS OF THE

CLERGY.

Sir Herbert
Jenner Fust in

The foregoing opinion of Lord Denman supports the previous judgment of Sir Herbert Jenner Fust (1) in the same case, and which was as fol- Judgment of lows:-"This evidence appears to me quite sufficient to establish the facts that Mr. Shore, the party proceeded against, did, after the revoca- Barnes v. Shore tion of his license by the bishop of the diocese, and after a monition (Clerk). to abstain, officiate in this chapel; that he did perform divine offices on two Sundays, by reading prayers, and by preaching, though it is not proved that he administered the Sacrament. The question then arises, whether these acts do not constitute an ecclesiastical offence? I think it can hardly be contended that the reading of the service of the church is not an offence by the common law of the land, after the revocation of the license given to him as a minister of the Church of England to officiate in this chapel, pro hâc vice, as a church, after a full knowledge of the revocation of the license, and of the measures taken against him by the bishop. It was said by the learned counsel for Mr. Shore, that he did no more than his duty, as according to the Rubric of the Book of Common Prayer, every priest of the Church of England is bound every day to read the form of prayer, publicly or privately, and that Mr. Shore, as a minister of the Church of England, in doing so in such a place, committed no offence. This is the first time I ever heard such an interpretation put upon the words of the rubric. It is right and proper, no doubt, that a minister in holy orders of the Church of England should read the prayers in the proper discharge of the public services, or if not, privately; but to say that he has a right to go to a place of this description - a building which had been severed from that church, and read the prayers there, is neither more nor less than to say that any and every clergyman (for it applies to every clergyman) may read the services daily in public, if he please, anywhere; this is a proposition to which I cannot assent. It was said, that it has not been specifically proved that there was a congregation present, or that the reading of the service was in public. What is necessary to constitute a congregation has not been very strictly defined; but it has been commonly considered that 'where two or three are gathered together' there is a sufficient number to constitute a congregation. By 'publicly reading,' I understand a reading to those who are present in a church or chapel. That strangers were admitted into this chapel appears from the evidence of Field, Huxham, and Gould; the two latter, as strangers, attended the service. I say then, that Mr. Shore did publicly read the prayers to those present in the chapel; that this was not a reading in a private house, within the meaning of the 71st canon, as contended by Dr. Twiss. It was not the intention of the canon that any place, not consecrated or allowed by law, should be considered a private house; by private house' is meant a dwelling-house, where a family reside. I am well satisfied that this chapel was not a private chapel. It is clear from the evidence in the cause, that the chapel was open to any one who thought fit to attend the services. It appears then to me that so much of the charge against Mr. Shore has been established as proves that this gentleman publicly read prayers according to the Book of Common Prayer, on two separate occasions, and preached a sermon on one, privy council was dismissed by that tribunal.

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(1) Robertson, 395. An appeal from this judgment to the judicial committee of the

PRIVILEGES
AND RE-

STRAINTS OF THE
CLERGY.

Judgment of
Sir Herbert

though there is not sufficient proof that he administered the Sacrament. It was, however, contended in argument that, because the offence charged consists of an aggregate of three of four offences, and all have not been proved, the offence charged fails. I should like to have had some authority in this court for the assertion that, unless all the offences charged be proved, Jenner Fust in the party is entitled to be dismissed from the whole of the charge. I am of Barnes v. Shore (Clerk). opinion that there is no authority upon which such a position can be maintained, and I have no doubt I could find cases over and over again, in which, where only one part of the charge has been made out, the party has been pronounced guilty. The case of Hutchins v. Denziloe (1), referred to, was a proceeding under a statute: where there are different offences subjecting the party to different degrees of punishment. The case of Titchmarsh v. Chapman (2) was a proceeding under a particular canon for not reading the burial service: the canon requires that convenient notice should have been given to the clergyman, which was not proved, and without that proof no offence is committed.

"I am of opinion that quite sufficient is proved against Mr. Shore to render him liable to ecclesiastical censure and punishment. When the case came originally before the court, the prayer at the conclusion of the articles was, that he should be admonished to abstain from performing ecclesiastical duties or divine offices in the chapel in question, be canonically punished according to the exigency of the law, and be condemned in the costs. As I understand, the prayer, now made to the court, is not to the same effect; but I confess, I am not prepared to go beyond that which is a canonical punishment; for however vexatiously Mr. Shore may have conducted himself here, and elsewhere, I do not consider that I can take such conduct into the account. He is not called on to answer for the offence of seceding from the church; for such an offence there must be other proceedings, in order to procure additional punishment; nor do I think it by any means clear that, under the circumstances of this case, I can refer to the protest, which was overruled, or to the allegation of Mr. Shore, which was rejected; though, had that allegation been admitted, and the proof thereof failed, I might have taken a different course, for I do not know that the court is bound by the prayer; it might be in itself illegal. On a cousideration of the whole case, I am of opinion that the proctor for the promoter has proved the articles charging Mr. Shore with having been guilty of publicly reading prayers, according to the form prescribed by the Book of Common Prayer, and of preaching in an unconsecrated chapel without a license (leaving out administering the Sacrament); that he has thereby incurred ecclesiastical censure; and that he must be admonished to refrain from offending in like manner in future. Should he be guilty of a repetition of this offence, it will be one not only against his diocesan, but against the authority of this court. Though this gentleman is at this moment a minister of the Established Church of this land, from which office he cannot of his own authority relieve himself, still I do not think I am entitled to depose him from the ministry. I content myself by pronouncing that the articles have been sufficiently proved. I admonish Mr. Shore to abstain from offending in like manner in future, in the parish of Bury Pomeroy, and in the diocese of Exeter, and elsewhere in the province of Canterbury; and I condemn him in the costs."

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RATES (CHURCH).

Page 1189. after line 40, insert

The following is a more detailed statement of the facts in the fore- RATES going case of Dale v. Pollard (1): -It appears that the plaintiff had (CHURCH). been summoned before two justices to pay his proportion of a church Dale v. Pollard. rate, laid by the churchwardens with the consent of the minority of a vestry meeting, the sum being under 107. The justices asked his attorney if he had any thing to say against the payment. The attorney said, that he should not dispute the validity of the rate there, but give them a written notice; and should bring an action against the justices if they enforced it. He then, before the making of the order, served the justices with a written notice that the plaintiff "protested against the church rate as unscriptural, &c., that he should not contest the validity of the rate in the ecclesiastical courts, and that he should commence actions in the courts of common law against the justices and all other persons concerned therein for all acts and proceedings connected with the rate which he should be advised were illegal." The justices knew, at the time of the order, &c., that the plaintiff intended to dispute the right of a minority to impose a church rate: It was held, that these facts, taken together, showed that the validity of the rate was disputed, and notice thereof given to the justices, under stat. 53 Geo. 3. c. 127. s. 7.

Lord Denman in Dale v. Pol

Lord DENMAN,-"I think it not at all impossible, that the legislature in Judgment of passing stat. 53 Geo. 3. c. 127. s. 7., may have intended that all rates below 107. should be decided by the justices unless the party gave notice of his lard. intention to dispute in the ecclesiastical court. But that is not the language of the act. And certainly, if it were, this difficulty would follow, that, in order to exempt himself from the jurisdiction of the justices a party must give notice of an intention to dispute in the ecclesiastical court, although perfectly aware that a prohibition would ensue. At all events, as the statute stands, the jurisdiction is taken away wherever the validity is disputed and notice thereof given to the justices. Here, we have, first, a general declaration that the party will not try the validity before the justices, and then a written notice that he will not dispute in the ecclesiastical court, but that actions will be brought. The whole, taken together, shows to my mind that his intention was to dispute, in a legal course, the validity of the rate: and it is found that the justices knew this."

Mr. Justice PATTESON,-"This is a question of fact on all the evidence as set out in the special case: namely, whether the plaintiff disputed the validity of the rate, and gave a notice thereof.' The question is not in what way or before what court he meant to dispute it. The words 'we shall not dispute the validity of the rate' must not be taken except in connexion with what precedes and follows, which points their meaning to a dispute before the justices only. The written notice, though not drawn up with the care which was desirable, shows upon the whole what his intention was; and it is found that the justices knew that he meant to dispute a particular question, affecting the validity of the rate."

(1) I am indebted for it, as well as for friend Mr. T. F. Ellis. the subjoined judgments, to my learned

Judgment of
Mr. Justice
in Dale v. Pol

Patteson

lard.

RATES
(CHURCH).

Judgment of
Mr. Justice
Wightman
in Dale v. Pol-

lard.

Judgment of
Mr. Justice

Erle in Dale v. Pollard.

Mr. Justice WIGHTMAN,-"The decision in Rex v. Wrottesley (1) was that there must be a real intention to dispute, not a mere statement of such intention. That difficulty is got over here by the statement in the case, that the justices knew that the intention was bonâ fide. The only question is, Was it an intention to dispute the validity of the rate, within the meaning of the statute? Undoubtedly the written notice is not very formal; but it is evident, upon the whole, that its meaning is, that the plaintiff intended to dispute such validity, not in the ecclesiastical court, but by prohibition if the other side attempted to try the question there, - by action, if the justices chose to issue a warrant."

Mr. Justice ERLE,—“In Rex v. Wrottesley (2) there was a mere declaration of an intention to dispute the validity; no action against the justices was threatened; and the decision was, that the case should be sent back to the justices."

1 Robertson, 367.

Page 1210. in note 1, insert

SUSPENSION.

Page 1294. after line 32, inseri

In Brookes the Younger v. Cresswell (3), the respondent was suspended from office and benefice for a certain period, and until he produced a certificate satisfactory to the Court of his conduct during the suspension, and was also condemned in the costs; at the expiration of the period of suspension, upon the exhibition of a satisfactory certificate, the Court relaxed the suspension although the costs had not been paid.

Page 1294. in note 4, insert

Sed vide ante, Clarke v. Heathcote (Clerk), ante, 434. 1 Robertson, 377.

(1) 1 B. & Ad. 648.

(2) Ibid.

(8) 5 Notes of Cases Ecclesiastical, 544. Ante, 981. in not.

INDEX.

ABEYANCE,

derivation and meaning of term, 1.

pending abeyance, freehold is in no one, 1.

patron has no right during abeyance, 1.

annuity may be released to patron during abeyance, 1.

ABINGER, LORD C. B., judgment of, in

Spry v. Emperor (burial fees), 220.

Downes v. Craig (exchange of livings), 452.

ABSOLUTION,

by the bishop, in order to give christian burial, 196.
power of deacon to pronounce, 823.

ACCOUNTS,

of churchwardens, 347-350.

of trustees under local acts for church building, to be audited,
1170.

ACTION,

when it lies against persons acting judicially, 553. See Limitation.
ADDITIONS,

in writs of capias, upon excommunication, 338.

ADMINISTRATORS,

liability of, to action for dilapidations, 451, 453. See Executor.
ADMISSION,

is when bishop admits clerk to be able, 2.

differs from institution and induction, 2.

ADULTERY. See Divorce

ADVOWSON,

is the right of patronage to a church, or an ecclesiastical benefice, 3.
distinction between advowsons appendant and advowsons in gross, 3.
passing with manor by words cum pertinentiis is appendant, 3.
usurpation of the king will not make advowson disappendant, 3.
may be appendant to reputed manor, or to earldom, if there are
demesnes, 3.

of a vicarage may be appendant to a manor or a parsonage, 3.

granted by Edw. IV. avoided, 3.

may become gross by conveyance of manor except advowson, 4.

or by conveyance without manor, 4.

or by being presented to as in gross, 4.

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