THE

Ecclesiastical Law.

BY

RICHARD BURN, LL.D.

CHANCELLOR OF THE DIOCESE OF CARLISLE,

AND VICAR OF ORTON, IN THE COUNTY OF WESTMORELAND;
AUTHOR OF THE OFFICE AND DUTY OF A JUSTICE OF THE PEACE."

The Ninth Edition,

CORRECTED; WITH CONSIDERABLE ADDITIONS,

INCLUDING THE STATUTES AND CASES TO THE PRESENT TIME;

BY

ROBERT PHILLIMORE,

ADVOCATE IN DOCTORS' COMMONS, BARRISTER OF THE MIDDLE TEMPLE, OFFICIAL

TO THE ARCHDEACONRIES OF LONDON AND MIDDLESEX, AND

LATE STUDENT OF CHRIST CHURCH, OXFORD.

["Omnes legibus regantur etiam si ad divinam domum pertineant."-COD. 1. i. tit. xiv. s. 10.
"Certain it is, that this kingdom hath been best governed, and peace and quiet preserved, when both
parties, that is, when the justices of the temporal courts and the ecclesiastical judges, have kept them-
selves within their proper jurisdiction, without encroaching or usurping upon one another."-LORD
COKE, 3 Inst. 321.]

IN FOUR VOLUMES.

VOL. IV.

LONDON:

S. SWEET; V. & R. STEVENS & G. S. NORTON;
Law Booksellers and Publishers:

ANDREW MILLIKEN, GRAFTON STREET, DUBLIN.

1842.

UEF

Staatublo
Münche

LONDON:

PRINTED BY C. ROWORTH AND SONS,

BELL YARD, TEMPLE-BAR.

ADDENDA ET CORRIGENDA

ΤΟ

VOL. IV.

Vacation.

4.-A very important decision, that the 28 Hen. 8, c. 11, remains still in force, was given in the Court of Exchequer, Wednesday, April 27, 1842, (sittings in banco, before Lord Abinger.) Special paper. Dakins, clerk, v. Leaman, clerk. It was an action in which the plaintiff sought to recover the sum of 150l. under the following circumstances: The father of the plaintiff was the rector of St. James's parish in Colchester, and at his death the plaintiff, who was then in holy orders, was requested by the sequestrators appointed by the Bishop of London, ad interim, until the living should be filled up, to undertake the cure of the parish. The rev. gentleman accordingly took upon himself the duties of curate, which he discharged from week to week for some time, until the defendant was appointed to the living. Having demanded remuneration from the defendant, which was refused, the plaintiff was obliged to bring this action. The defendant, in answer thereto, put on the record several special pleas, to which the plaintiff demurred as being insufficient in law to bar his claim. The defence rested mainly on the fact that the plaintiff had not been regularly licensed to this duty by the Bishop of London, it being contended that such was a necessary condition to his right to recover; while it was further urged that the plaintiff's right, which was founded on the Act of Uniformity of Henry VIII., was barred by the recent statute of 1 & 2 Vict. c. 106. On both these points the court, at the close of the case, pronounced its unanimous opinion in favour of the plaintiff. As to the operation of the recent statute upon that of Henry VIII., it was enough to say that it could only bar the plaintiff by express enactments, of which there were none to be found in it, and as it did not appear that the plaintiff's appointment was of a permanent character, it was clear that no licence was necessary. His appointment by the sequestrators was evidently only of a temporary kind, and one which there needed no authority from the bishop to enable him to accept. Under these circumstances, the judgment of the court must be in favour of the plaintiff. Judgment accordingly. (Quare, whether the action should not have been brought by the Sequestrators.)

Visitation.

30.-line 16, for "5 & 6 Geo. 4," read "5 & 6 Will. 4."

VOL. IV.

a

68.-Power of feme covert to make will (last case), Ex parte Tucker, in re Inman, 1 Mann. & Granger, 519.

218.-Legacy vested or contingent (last case), Lister v. Bradley, 1 Hare's Rep. of Vice-Chancellor Wigram's Court, p. 10.

296.-Bona notabilia, administration of, in Ireland, Whyte v. Rose, 4 P. & D.

159.

384.- Receiver appointed by Court of Chancery pendente lite in Ecclesiastical Court, 1 Hare's Rep. of Vice-Chancellor Wigram's Court, p. 152. 457.-Assets, plene administravit (last case), Jackson and another (churchwardens) v. Rowley, 1 Carr. & Marsh. 97.

vie

It

[MR. Serjeant Stephen observes (b) (reciting in part the
language of Blackstone), "It is only in an estate per auter
that our law affords an example of the title by occupancy.
is difficult at least to put any other instance wherein there is
not some owner appointed by the law. In the case of a sole
corporation, as a parson of a church, when he dies or resigns,
though there is no actual owner of the land till a successor is
appointed, yet there is a legal potential ownership subsisting in
contemplation of law; and when the successor is appointed, his
appointment shall have a retrospect and relation backwards,
so as to entitle him to all the profits from the instant that the
vacancy commenced."-ED.]

By the common law of the church, the profits of the vacation were to be laid out for the benefit of the church, or reserved for the successor; but by special privilege or custom, the bishop or archdeacon might have the same, or some part thereof; so also, it is said, the king might take the profits of a free chapel, and the patron of a donative the profits of such donative, during the time of vacation (c).

But by the statute of the 28 Hen. 8, c. 11, it is enacted as followeth: viz. "Forasmuch as in the statute for the payment of first fruits, it is not declared who shall have the fruits, tithes,

(a) [The history of the ancient ecclesiastical law upon this subject will be found in Thomassin's Vetus et Nova Ecclesiæ Disciplina, i. 2, c.

VOL. IV.

51, "De spolio et de statu rerum ec-
clesiæ sede vacante.”—ED.]

(b) [Stephen's Comm. vol. i. 418.]
(c) Lind. 137; Gibs. 749.

B