H. OF L.]

THE BISHOP OF EXETER AND ANOTHER v. Marshall.

[H. OF L.

regular course of proceeding appears from the | ability, and conformity to the ecclesiastical laws of following passage in 2nd Institute, 631: "In England." This testimony in the case of curates a quare impedit brought against the bishop for and ministers removing from one diocese to another, refusal of the clerk he must show the cause must, by the 48th canon, be ordained from the of his refusal specially and directly (for whether bishop of the diocese whence they came. But the the cause be spiritual or temporal the examination canon does not apply to institutions to benefices, but of the bishop concludes not the plaintiff) to the only to the service of cures. This appears to me intent the court may resolve whether the cause be to be clearly shown by the preceding canons, 45, 46, just or no, or the party may deny the same; and and 47, which give an interpretation to the words then the court shall write to the metropolitan to "Curates and ministers" in the 48th canon. The certify the same; or if the cause be temporal and canon which really applies to the case of clerks sufficient in law (which the court must decide), the presented to the bishop for admission is the 39th, same may be traversed, and an issue thereupon which is headed "Cautions for institution of joined," &c. From this passage it is clear that the ministers into benefices," and which is in the judgment of the bishop, and his refusal to admit following_words:-"No bishop shall institute any the clerk upon the ground of unfitness, is in no to a benefice who hath been ordained by any other case final. The plea of the bishop founds his bishop, except he first show unto him his letters of rejection of the clerk upon the absence of a sufficient orders, and bring a sufficient testimony of his testimonial from the Bishop of Manchester; and in former good life and behaviour if the bishop shall support of the plea it was contended by his counsel require it, and, lastly, shall appear upon due examithat such a testimonial from a bishop of a clerk nation to be worthy of the ministry." The "sufficient coming from one diocese to another has been an testimony" required by this canon has by long established principle of the church from the earliest established practice consisted of a testimonial by period. Authorities for this proposition were, with three beneficed clergymen countersigned, if they great learning and research, drawn by them are not beneficed in the bishop's diocese to whom from the decrees of councils, from ancient consti- the testimonial is given, by the bishop of the diocese tutions and canons of the church, and from the works in which the benefices are respectively situate, that of eminent writers upon ecclesiastical law. And the presentee has been personally known to them they relied also upon the 48th of the canons of for three years last past, that they have had oppor1603, which canon they described as embodying in tunities of observing his conduct, that during them in many of their particulars the ancient law the whole of that time they verily believe of the Church. With respect to the reliance placed that he lived piously, soberly, and honestly, and upon the law of the Church in support of the that they have not heard anything to the contrary bishop's plea, it is sufficient to observe, in the words thereof, nor that he has at any time held, written, of Tindal, C. J., in the case of Rex. v. Millis, 10 or taught anything contrary to the doctrine or C. & F. 680, "that it has long been settled and discipline of the Church; and that they believe him established law that the canon law of Europe does to be, as to his moral conduct, a person worthy to not, and never did, as a body of laws, form part of be admitted to the benefice. This "sufficient testithe law of England." "Such canons and constitu- mony," it is averred by the replication, was protions ecclesiastical, indeed, as have been allowed by duced by the presentee of the plaintiff to the bishop. general custom, and consent within the realm, and Neither the language of the canon nor the established are not contrary or repugnant to the laws, statutes, practice in the case of the admission to a benefice and customs thereof, nor to the damage or hurt of of a clerk coming from another diocese, sanctions the King's prerogative are" (as Lord Hardwicke the requisition of the bishop that he should bring said in Middleton v. Crofts), "still in force within with him the testimonial which is required by the this realm as the King's Ecclesiastical Law of the 48th canon of his honesty, ability, and conformity same." Even then if the ancient law of the Church to the ecclesiastical laws. The plea of the bishop gave such power to the bishop as is relied upon in not only alleges that he was entitled and bound, the plea, as there is no proof that it was ever and ought, by the laws ecclesiastical of England, to "allowed by general custom and consent within this require, have, and receive such testimony from the realm," if such power exists, some other ground of bishop of the diocese from whence the presented support must be sought for it. This, it is said by clerk had come, but also that it was for him to the counsel for the bishop, is to be found in the 48th adjudge whether it was sufficient, and to require of the canons of 1603. According to the opinion of further testimony, if he thought fit; and in the Lord Hardwicke in Middleton v. Crofts, these canons event of such further testimony satisfactory to him in general do not bind the laity proprio vigore, not being produced after the lapse of six months though some of them which are "declaratory of the from the avoidance of the living to collate a clerk ancient usage and law of the church received and of his own, and all this without notice to the plainallowed here," may, by virtue of such allowance be tiff, the owner of the advowson. If this plea be binding upon the laity. No such acceptance and good, it is immaterial that the clerk presented allowance can be pleaded in favour of the right of should be perfectly fit, of the lawful age, in holy the bishop to require the particular testimonial upon orders, and his learning and morals beyond all excepthe non-production of which he refused to admit tion, or that all the bishops in England, except the plaintiff's presentee even if the 48th canon the bishop of the diocese where he held cure of gave him such right, and applied to the case. souls, should give testimony to his fitness; However binding, therefore, this canon may be on still, if the bishop of the diocese from whence he the clerk presented for admission, I do not see came did not give such a testimony as the bishop how it can affect the temporal right of the patron of the diocese in which the benefice to which he is present a fit person to the bishop, and to question presented is situate adjudged sufficient, the owner the bishop's power to impose any condition upon his of the advowson, after the lapse of six months, admission, except such as has been sanctioned by without any notice, would be deprived of his right long established usage, and is reasonably necessary of presentation. The patron would, under such to enable the bishop to judge of the fitness of the circumstances, be at the mercy of the bishop, who person presented. The plea of the bishop states capriciously, or, at all events, of his own mere that the further and sufficient testimony which he authority and absolute will, might adjudge in his required from the clerk presented to him for ad- own mind that the testimony was not sufficient, mission, was "Testimony from the Bishop of without any appeal, or possibility of appeal, to a Manchester of the presentee's honest conversation, I legal tribunal. This would be quite contrary to the

H. OF L.]

THE BISHOP OF EXETER AND ANOTHER v. MARSHALL.
|

right of the patron to challenge the rejection of his
presentee, and to enforce his right of presentation by
quare impedit, "unless the bishop specifically states
in his plea some reasonable cause wherefore the
clerk presented is not fit:" (per Lord Ellenborough,
Rex v. Archbishop of Canterbury, 15 East, 117.) The
cause shown by the bishop in his plea must be one
upon the sufficiency of which, in point of law, the
court may decide, or which may be traversed, and
issue joined upon it, to be tried, if the cause be
spiritual, by the certificate of the archbishop, and
if temporal, by a jury. But the cause of refusal
to admit the plaintiff's presentee which is averred
in the plea takes away from the court all power
of judgment in the matter. It asserts a right in
the bishop finally to decide upon the rejection of
the presentee, without assigning any reason, and,
consequently, without any possibility of appeal
from his decision. This is utterly repugnant to
reason, and to the authorities, which have decided
that the patron may protect his temporal right of
presentation by calling upon the bishop to show, by
plea to a quare impedit, such a cause for his refusal
to admit the presentee as a court of law may inquire
into and determine as to its sufficiency. I think the
plea is also objectionable for want of an averment of
notice to the plaintiff that the clerk had not in the
judgment of the bishop, produced to him sufficient
testimony of fitness to be admitted. The right of
presentation to a living is (as has been already
stated) a mere temporal right. If the patron pre-
sents a fit person, who produces all the proofs of his
fitness which the bishop can rightfully require, it is
the right of the patron to have his clerk admitted.
If, for any reason determined upon by the bishop,
the clerk should prove unfit, the patron is clearly
entitled to notice, as he might acquiesce in the
bishop's judgment, and present another person to
him for admission. It would be unjust and unrea-
sonable that the bishop should be at liberty to wait
the lapse of six months without any notice to the
patron, and then, acting upon his own secret judg-
ment, collate his own clerk to the living. For these
reasons I think that the judgment of the Court of
Exchequer Chamber is right, and ought to be
affirmed.

Lord CRANWORTH.-My Lords, the opinions that were given in your Lordships' house by the learned judges seem to me entirely to exhaust the subject. The case turns entirely upon the sufficiency of the plea of the Bishop of Exeter in a proceeding of quare impedit, with reference to the living of Tregony, in the county of Cornwall. The plea of the bishop, after stating that the church is in his diocese, and that he only claims as bishop after vacancy, goes on to state that the plaintiff presented John Reid as his clerk; that Reid had not been ordained by him as Bishop of Exeter, that Reid came from a foreign diocese, viz., the diocese of Manchester, in which he had then lately held a benefice with cure of souls; and that Reid did not produce from the bishop of the diocese from whence he came any sufficient testimony according to the ecclesiastical laws of England, of his honest conversation, ability, and conformity to the ecclesiastical laws of England, or such testimony as a bishop ought to require and have from the bishop from whose diocese he came; that Reid brought testimony from the Bishop of Manchester which he, the Bishop of Exeter, held not to be, and which was not, sufficient testimony, according to the ecclesiastical laws of England, of Reid's honest conversation, ability, and conformity to the ecclesiastical laws of England, or such testimony as a bishop ought to receive according to law; and that the bishop informed Reid that it was not sufficient, and that the bishop required further testimony. These

[H. OF L. are the averments of the plea. It goes on to tate that Reid departed and never returned, and further testimony was not produced, though sufficient time was allowed. Then it goes on, by way of addition, that before the collation after mentioned in the plea the bishop received from the Bishop of Manchester further testimony from which he had reason to believe, and did believe, that Reid, while beneficed in the diocese of Manchester, had been guilty of an attempt to commit simony, by soliciting one Francis M. Knollis to enter into a simoniacal contract touching another benefice then held by Reid, and that he was not a person of honest conversation, &c., all which was known to Reid. Wherefore, after a lapse of six months, the bishop says he presented Boswell. Now the question is, whether that is a valid plea, whether it affords a good answer to the complaint of Marshall that the bishop has refused to institute his clerk whom he presented. The judges unanimously say that that is a bad plea, and I am clearly of opinion that the judges are right. Mr. Justice Willes says:-"The key to the right decision of this case is the elementary proposition, that a patron is entitled effectually to present any fit person, that is to say, a person of the canonical age, in orders (or, at least, who can obtain ordination before admittance), of sufficient learning, and against whose orthodoxy and morals no charge can be established." No one can question this as being a true exposition of the law, and it follows as a corollary that a bishop refusing, on vacancy of a benefice, to institute a clerk duly presented by the proper patron, must state that the presenter is not a fit person to be instituted, and must aver directly why he is unfit; that is, he must aver some ground of objection, depending either on matter of fact or matter of law, in order that in the one case the validity of the objection may be tried by a jury, and in the other may be decided by the court. Here no such objection is stated. It is merely stated that the Bishop lof Manchester did not furnish a testimonial which the Bishop of Exeter says, according to the ecclesiastical law of England, he was entitled to require. Whether he was so entitled to require is the question to be determined. Now a clerk in such case has no means whatever of compelling the bishop from whose diocese he comes to give him a testimonial. It is consistent with the plea that Reid is a perfectly learned, pious, and orthodox clerk, but yet if the plea is good he has no means of obtaining restitution, and the patron is deprived of his temporal right. The learned judges have so entirely exhausted the case that I do not think I should be usefully occupying your Lordships' time if I did more than say that I entirely concur not only in the result at which they have arrived, but in the grounds upon which they found their judgment.

Lord WESTBURY.-My Lords, an advowson or right of patronage to a living with cure of souls is, according to our law, a lay fee or temporal inheritance, and its ownership and mode of enjoyment, are determined by the common law. Ecclesiastical law has no further room for interference than this: that the owner of the advowson is bound to present a clerk fit in doctrine, learning, and morals; and that if the clerk be unfit the bishop may object to institute him. But if the bishop refuses to institute, he is bound by law to state his objection in a precise and definite manner, so that the patron may be able to have the validity or truth of the objection tried by law; that is by the common law courts, if it be an objection founded on immorality, and by the metropolitan, if the objection be for error in doctrine, or insufficiency of learning. The present case depends on the sufficiency of the ground of refusal as set forth in the plea. It is obvious that of the

H. OF L.]

LAWRENCE (app.) v. KING (resp.)

[Q. B.

taken in the largest sense, so as to include clerks presented for institution to benefices. But it is not possible to adopt this construction when attention is given to the preceding 39th canon, which is expressly entitled "Cautions for institution of ministers into benefices." And as the directions in the 39th canon differ in some important particulars from the directions in the 48th, it is not to be supposed that two inconsistent sets of rules were intended to be laid down touching the institution of clerks. The class of persons intended to be designated by the words "curates" and "ministers" seem to be unbeneficed clerks who were employed to perform spiritual duties in the benefices of others with the sanction of the ordinary, and who might properly be required to bring letters demissory from the bishop of the diocese where they had been previously employed. The 39th canon, therefore, in the absence of the plea and proof of uniform usage, and of any other judicial authority, is the only evidence of the law ecclesiastical on the subject of this plea. And it is clear that it by no means warrants the position that the bishop is entitled to require the testimonial of the former bishop as a precedent condition to his institution of the presentee. The rule contended for by the Bishop of Exeter would certainly open the door to very arbitrary and capricious proceedings, rendering the title of the clerk and the right of the patron entirely dependent on the will of the prior bishop. Such a conclusion is at variance with reason, and therefore repugnant to what is called "the policy of the law." At the same time if such a rule had been pleaded by the bishop to have been the invariable usage of the Church, from the earliest times down to the Reformation (which would be evidence of its being a law of the Church), and that it had been continued and uniformly recognised and acted upon by the bishops of the Anglican Church since the Reformation (which might have shown it to have been received and adopted as part of the law ecclesiastical recognised by the common law) the fitness of the rule ought not to be questioned. Nothing of this kind has been proved, nor could it be averred consistently with the language of the 39th canon, which requires only that the presentee shall bring a sufficient testimony of his former good life and behaviour, if the bishop shall require ita rule which enables him to obtain sufficient testimony from any competent quarter, without confining him to the sole discretion and opinion of the former bishop. For these reasons, I am of opinion that the judgment of the court below ought to be affirmed.

sufficiency of the presentee in point of learning and | and he contends that the word "curate" is to be doctrine, the bishop may satisfy himself by personal examination; but, on the point of moral conduct, the bishop must depend upon external evidence. On the inquiry therefore as to the fitness of the clerk in point of morals, it seems necessary that he should bring to the bishop some testimony or certificate touching the honest conversation of his antecedent life. And the question then arises whether the law requires for this purpose any precise or defined form of testimonial. The bishop contends at the bar that, by the immemorial law of the Church, in cases where the presentee has previously had cure of souls in another diocese, it is incumbent on him to bring letters of testimonial from the bishop of that diocese; and his counsel cited, with much diligence and learning, many books and authors who have written on the canon law, for the purpose of proving that this was the established rule and usage of the Church previously to the Reformation. If it had been pleaded and proved that this alleged old rule and usage had been received, observed, and acted upon in the Church of England since the Reformation, it is possible that it might have been shown that this particular kind of testimonial was by law an essential criterion of the moral idoneity of the clerk; but this is not the case actually raised by the plea; and it may be matter of regret that, from the defects of the pleading, the real defence probably has not been raised. The plea does not distinctly state that by ecclesiastical law, as received and prevailing by general consent and custom throughout the realm, and, therefore, part of the common law, the certificate of the former bishop is a necessary condition of the fitness of the clerk; nor does it aver that it has been the invariable practice and usage of the Church, and of the Anglican Church in particular, for the bishop to whom the clerk is presented to require and receive from the former bishop such a testimonial. In fact, there is no statement of the usage or practice of bishops in this respect, but simply an averment that the clerk did not at any time bring with him a sufficient testimony from the bishop of the former diocese, or any such testimony, as he, the Bishop of Exeter, was bound and ought, by the laws ecclesiastical of England, to require, have and receive from the bishop of the diocese whence the clerk came. In consequence of the want of such a testimonial, the bishop declined to make any inquiry into the moral fitness of the clerk, or to receive the testimony of any other persons, but peremptorily rejected the presentee. To justify this refusal the bishop appeals to the laws ecclesiastical. It is incumbent on him to show either some written law binding the clergy, or a general usage, which may be taken as evidence of law from which the legality of imposing such a condition is shown or may be inferred. No decided case or writer of authority has been cited for the purpose of showing that such a condition has been recognised in any of our courts of justice. Whatever, therefore, may have been the canon law prior to the Reformation, in this respect there is nothing to show that it became part of the common law of this realm. The question remains whether the case of the bishop can be supported by the canons of 1603, and particularly by the 39th and 48th of these canons or either of them. It is true that the canons of 1603 do not bind the laity, nor the clergy as to temporalities; but they will be authority if they lay down any rule as to the fitness of clerks presented by lay proprietors of advowsons, inasmuch as the idoneity of the clerk and the mode of examining into it by the bishop, fall properly within the scope of ecclesiastical law. The bishop appeals particularly to the language of the 48th canon, the words of which are set forth in his plea,

Judgment of Exchequer Chamber affirmed, with

costs.

Solicitor for appellants, George E. Philbrick.
Solicitors for respondent, Belfrage and Middleton.

The

COURT OF QUEEN'S BENCH. Reported by T. W. SAUNDERS and J. SHORTT, Esqrs., Barristers-at-Law.

Saturday, April 25, 1868.

LAWRENCE (app.) v. KING (resp.)
Highway Act 1864 (27 & 28 Vict. c. 101) s. 25-
Cattle" lying about the highway"-Penalty.

The Highway Act 1867 (27 & 28 Vict. c. 101) s. 25,
enacts that if any horse
sheep, &c., is at
any time found straying on or lying about any high-
way or across any part thereof, or by the sides thereof
(except on such parts of any highway as pass over any

LAWRENCE (app.) v. KING (resp.)

common or waste or uninclosed gronnd) the owner or shall at any time be found wandering, straying or owners thereof shall for every animal so found stray-lying, or being depastured, on any highway or on ing or lying be liable to a penalty," &c. Certain sheep belonging to the appellant were found lying on a highway, but they were, at the time that they were so found, under the control and in the charge of a keeper or driver:

REG. V. THE RECORDER OF WOLVERHAMPTON.