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66 the predecessor any of those which belonged to the successor, 6. it is to his own loss; which ought to be made up by the pre66 decessor's executors, and may by law be required. This 66 clause therefore had no relation to the common leases of in66 cumbents of parishes at all.” - His lordship adds, “ These 66 observations convinced no less a lawyer than Mr. Baron 6. Clarke, who mistaking the act had given his opinion to the “ archbishop of York to the contrary.”
In an anonymous case, about three years after making this act, reported by Bunbury, M. 1730. In the exchequer: A rector agreed with his parishioners for tithes, for a certain sum payable yearly at Michaelmas. The rector died about a month before Michaelmas. The agreement determining by the death of the parson, the successor shall be entitled to tithes in kind only from the death, and the executor of the last incumbent to a proportion according to the agreement till the time of the testator's death. And this is by an equitable construction. Bunb. 294.
With respect to those tithes which are not in lease, there can be no doubt but that the executor shall be intitled to those that became due before the incumbent's death, and that the successor shall be intitled to those that became due after the incumbent's death.
And here a case frequently happeneth, with respect to moduses. in lieu of tithes; which tithes, if taken in kind, would have been due before the death of the incumbent, and the modus for the same is not due till after the death of the incumbent. Which case not coming in any sense within the purview of the said statute, it seemeth that the executors are not intitled to the said modus, or to any part thereof; but that the whole shall go to the successor.
There is another case, wherein it may be disputed, at what time the modus itself shall be said to be due. As, for instance, it is usual in many places to ascertain the modus at Martinmas, by then taking an account of the stock for the year preceding ; and not to receive the modus till Easter following. In which case if it shall appear from the evidence, as from payment thereof sometimes made at the time when ascertained, or in the intermediate space betwixt that time and the more usual and ordinary days of payment, or from receipts given and accepted for the same as due at the time when ascertained, or the like, and that the payment thereof was only deferred for convenience, when the incumbent should receive his other dues, or for other like cause; in such case it will be due to the executor : But if it shall appear, that the same hath been understood as not due until such future day, and only advanced sometimes before such day to answer the incumbent's necessities or other convenience, then it seemeth
that it will go to the successor. So that this is a matter not of law, but of fact; and depends upon the evidence.
As to disputes concerning things fixed to the freehold, as hangings, tapestry, grates, glasses, furnaces, and such like; these, falling in with the general doctrine about what shall belong to heirs or successors, on the one hand, and executors or administrators on the other, are treated of under the title Wills.
Wacation of bishoprics. See Bishops.
[Power of spiritual court over vestry.)
parish met together in some convenient place, for the dispatch of the affairs and business of the parish; and this meeting being commonly held in the vestry adjoining to, or belonging to the church, it thence takes the name of vestry, as the place itself doth, from the priest's vestments, which are usually deposited and kept there. Par. L. c. 17. [Where a disturbance took place at a meeting of the parishioners convened for the consideration of parish matters, and assembled in the parish church, it was held that the ecclesiastical court had jurisdiction ratione loci. Wilson v.M•Math, 3 B. & A. 241. But where the vestry is held in a vestry room, that court will not interfere further than may be necessary for preserving due order and decorum. Hutchins v. Denziloe, i Hagg. Rep. 184, 5.]
2. On the Sunday before a vestry is to meet, public notice ought to be given, either in the church after divine service is ended, or else at the church door as the parishioners come out; both of the calling of the said meeting, and also the time and place of the assembling of it; and it will be fairest then also to declare for what business the said meeting is to be held, that none may be surprised, but that all may have full time before to consider of what is to be proposed at the said meeting. Wats, c. 39. Par. L. c. 17.(1) [And see now 58 G. 3. c. 69. $ 1. infra.]
And it is usual that for half an hour before it begins, one of the church bells be tolled, to give the parishioners notice of their assembling together. Par. L. c. 17.
3. Anciently, at the common law, every parishioner who paid to the church rates, or scot and lot, and no other person, had
(1) Proclamation during divine service for the meeting of a vestry, or of the purport of such meeting, is convenient and proper, but of the result the contrary. Thompson v. Tapp, MSS. Cas. 17. See Publie worship.
a right to come to these meetings : But this must not be under-
Also out-dwellers, occupying land in the parish, have a vote in the vestry, as well as the inhabitants. Johns. 19.
4. E. 11 G. Phillybrown and Ryland. The plaintiff brought Hindering a special action upon the case, for excluding him from the vestry- persons
from the room ; and upon demurrer, the court made no difficulty, but
meeting. that such an action was maintainable: however, in this case, they gave judgment for the defendant, it not being averred that the parish had any property in this room, or right to meet there; so that for ought appears it might be the defendant's own house, and then he might let in whom he pleased, and refuse the rest. Str. 624. · 5. And when they are met, the major part present will bind Majority the whole parish. Wats. C. 39.
conclusive. 6. T. 96. 2. Stoughton and Reynolds. Adjudged, that the Power of right of adjourning the vestry, is not in the minister or any other adjourning. person as chairman, nor in the churchwardens, but in the whole assembly, where all are upon an equal footing; and the same must be decided (as others matters there) by a majority of votes. Str. 1045. (2)
7. And to prevent disputes, it may be convenient, that every Entry of vestry act be entered in the parish book of accounts; and that acts made. every man's hand consenting to it, be set thereto. Par. L. 54. [See 58 G. 3. C. 69. § 2. infra.]
8. The vestry clerk is chosen by the vestry; and he acts as Clerk. register or secretary thereto, but hath no vote: and his business is, to attend at all parish meetings, and to draw up and copy all orders and other acts of the vestry, and to give out copies thereof when necessary: and therefore he hath the custody of all books and papers relating thereto. Par. L. c. 18. (a)
9. The beadle (in the Saxon bydel, from beodan, to bid) is Beadle.
(2) Cas. temp. Hardw. 274. Fortesc. 168. S. C. Gibs. 1476.
(a) But his office is not such for which mandamus will lie, though perhaps the vestry clerk may have that writ to compel those who have the custody of the parish books, to deliver them to him. The King v. the Churchwardens of Croydon, 5 Term Rep. 713.
[The court refused to compel a vestry clerk to produce documents in the parish chest in his custody, it being in effect to furnish evidence against himself in an action of libel brought by plaintiff against him : otherwise, if they had been wanted for the purpose of advancing any parochial right. May v. Gwynne, 4 B. & A. 301.]
chosen also by the vestry; and his business is to attend the vestry, to give notice to the parishioners when and where it is to meet, and to execute its orders as their messenger or servant. Par. L. c. 17.
10. Select vestries seem to have grown from the practice of chusing a certain number of persons yearly, to manage the concerns of the parish for that year; which by degrees came to be a fixed method, and the parishioners lost not only their right to concur in the public management as oft as they would attend, but also in most places, if not in all) the right of electing the managers. And such a custom, of the government of parishes by a select number, hath been adjudged a good custom; in that the churchwardens accounting to them was adjudged a good account. Gibs. 219.
In some parishes, these select vestries having been thought oppressive and injurious; great struggles have been made, to set aside and demolish them. Par. L. c. 17.
And no wonder that it hath been so, in such parishes where by custom they have obtained the power to chuse one another; for it is not to be supposed, but that if they are guilty of evil practices, they will chuse such persons as they think will connive at or concur with them therein.
M. 2 W. Batt and others against Watkinson. In a prohibition prayed to the spiritual court at York, the suggestion set forth, that the parish of Masham in Yorkshire was an ancient parish, and that time out of mind there were twenty-four of the chief parishioners, who all along had been called the four and twenty; and that during time immemorial, as often as any one of the said four and twenty parishioners happened to die, the rest surviving of the four and twenty did chuse, and during all the same time used to chuse, one other fit and able parishioner of the same parish, to be one of the four and twenty in the room of him so deceased; and that within the said parish there is, and during time immemorial there always hath been a custom, that the said four and twenty for the time being have been used and accustomed as often as there was occasion to make rates, and to assess reasonable sums of money, upon the parishioners and inhabitants in the said parish for the time being for the repairs of the church; and that the churchwardens of the said parish, during all the time aforesaid, have used to receive all duties and dues for burials in the body or iles of the said church; and if any of the inhabitants refused to pay the said rates or dues for burials as aforesaid, then the churchwardens by warrant from the twenty four for the time being, were used to distrain the goods and chattels of the said parishioners in the said parish; and that the said twenty-four, with the consent of the vicar or curate, have used to repair the body and iles of the said church; and that
the churchwardens for the time being, during all the time aforesaid, have always used to give up their accounts to the said four and twenty, who allowed or disallowed the said accounts as they saw expedient; and that on the allowance of such account, the churchwardens have always been discharged from giving any other account in any other place; that the Plaintiffs were churchwardens for the year 1680; and after this year was ended, they gave in their accounts to the four and twenty; and that though all pleas concerning prescriptions and customs ought to be determined by the common law, yet the defendant hath drawn and cited them into the spiritual court to give in and pass their said accounts there; and although the said plaintiffs have pleaded all the matters aforesaid in the said spiritual court, yet the said defendant hath refused to admit or to receive the said plea. Upon great debate of this case at several times, the court was of opinion, that the custom was good and reasonable, and a prohibition was granted. Lutw. 1027.
So that prescription and constant immemorial usage seems to be the basis and only support of this select vestry. And pursuant hereunto, upon the same foundation, and for the same reasons, was the select vestry of the parish of St. Mary At-Hill in London confirmed and established in the king's bench, not many years ago. And since that time, the select vestries of St. Saviour's and St. Olave's in Southwark, for want of proof of such prescription and immemorial usage, have been set aside and demolished. Par. L. c. 17.
In the act of the 10 An. c. 11. for building fifty new churches; the commissioners shall appoint a convenient number of sufficient inhabitants to be vestrymen; and from time to time, upon the death, removal, or other voidance of any such vestryman, the rest or majority of them may chuse another. $ 20.
In the several private acts for building particular churches; sometimes the minister, churchwardens, overseers of the poor, [ 12 ] and others who have served, or paid fines for being excused from serving those offices; sometimes, the minister, churchwardens, overseers of the poor, and all who pay to the poor rate; sometimes, only all who pay such a sum to the poor rate; sometimes, all who rent houses of so much a year;-are appointed to be vestrymen within such parishes, and no other persons.
[By 58 G. 3. C. 69. intituled An act for the regulation of parish vestries,' (extending only to England and Wales; public clause, ş 11.; and amended by 59 G. 3. c. 85.) it is enacted, That no vestry or meeting of the inhabitants in vestry of, or for any parish, shall be holden until public notice shall have been given of such vestry, and of the place and hour of holding the same, and of the special purpose thereof, three days before the day to