formed the duties of the church by its own members or stipendiary curates. But, although the parishioners of St. Faith may have suffered grievous deprivation by this appropriation, they did not on that account acquire any right to the chapel of the hospital; nor could any grant of Cardinal Beaufort, to a hospital founded by Henry de Blois, impair the right of that hospital to their chapel, or any other property derived from their founder. The documents which follow this grant indicate that there was some imperfection in the endowment intended by Cardinal Beaufort: we refer to the letters-patent of Henry VI. of the 8th of April, 1455, licensing the executors of Cardinal Beaufort to incorporate the almshouse of Noble Poverty, and to the grant dated the 9th of May, 1455, of property derived from Cardinal Beaufort by the master and brethren of St. Cross to the Bishop of Winchester, and to the charter of the King to the bishop in 1455, and to the grant of the bishop, in 1460, of property derived from Cardinal Beaufort to a rector, and chaplains, brethren and sisters, and particularly to the grant by William of Waynflete, dated the 11th of August, 1486 (2 Hen. 7), which recites, that by the craft of succeeding persons the lordships and possessions given by Cardinal Beaufort were taken from the hospital and occupied by the power of noble persons, and then establishes one chaplain and two brethren to pray for the soul of the founder according to his intention, who were to be supported by the fruits of the ecclesiastical benefices that yet remained.

*

Between this time and the reign of Elizabeth the distinction between the property derived from Henry de Blois and that * 51 derived from Cardinal Beaufort, and also the distinction between the purposes of the two foundations, seems to have disappeared, for the name of the benefice is varied in several collations. Thus, in 1524, the collation recites that the hospital of the Holy Cross was vacant, and confers upon John Incent the mastership or warden of the said hospital or almshouse.

In 1545 the collation confers the custody of the hospital or almshouse of St. Cross, then vacant by the death of John Incent, together with the church of St. Faith, having peculiar jurisdiction, and by sufficient authority united and annexed to the said hospital, on William Medowe.

On the 14th of June, 1557, the collation confers the hospital of St. Cross on John Leffe, vacant by the death of William Medowe,

and he was instituted master or warden of the said hospital, or house of Noble Poverty, with all its rights.

On the 24th of August, 1557, the collation conferred the hospital, or house of Noble Poverty of St. Cross, on Dr. Robert Raynolds; and, in the 4th Elizabeth, 1561, Dr. Watson, who succeeded Dr. Raynolds, was sued in the exchequer as "warden or master of the house or hospital of the Holy Cross without the walls of the city of Winchester," for the first fruits and tenths of that hospital; and he claimed to be within an exemption in the statute of Elizabeth, on which the suit was brought, in favour of hospitals founded and used, and whose possessions were employed for, the relief of the poor, and the exemption was allowed by the Court upon the certificate of the bishop that the fact was so.

And, in the 18th of Elizabeth, a private Act was passed, by the first section whereof certain leases of the house * and * 52 premises of the hospital, made by Dr. Raynolds to one Cleverly, were annulled; and, by subsequent sections, it was enacted, that neither the present, nor any future master or brethren, shall aliene or lease either the mansion house of the said hospital or the tithes of the parish of St. Faith adjoining to the said hospital, or other premises there mentioned. But that the same, and every parcel thereof, may always remain in the proper hands and occupation of the master and brethren for the maintenance of hospitality and relief of the said hospital. And that the church and house, and the manors, lands, tenements, and hereditaments whatever, of right appertaining or belonging, or accepted or reputed or esteemed to be belonging, or in any wise appertaining to the same house or hospital, shall for ever remain the possession and inheritance of the said hospital, and that the master and brethren shall for ever hold and enjoy the said church, house, manor, land, parsonages, tithes, and other the premises, for ever to be employed to charitable uses, with the usual saving clause.

This statute appears to us to negative conclusively the supposition that there had been any union of the rectory of St. Faith with the benefice of the mastership of the hospital.

The parsonage of St. Faith, according to our construction, is enacted and declared to be the property of the master and breth

ren without power of alienation, and if any imperfections had been found to exist in the title derived from Cardinal Beaufort, this statute would operate in some degree to confirm that title, and so would confirm the appropriation of St. Faith to the hospital made by him. As this appropriation without a vicarage left

the inhabitants unprovided with spiritual aid, it would be *53 reasonable that the hospital taking the temporal profits* dedicated to spiritual purposes from the parish of St. Faith, should permit the inhabitants of that parish to use the chapel as might be required; and the regulation of Bishop Hoadley, in 1744, states that the fact was so. That bishop, when directing some alterations in the consuetudenarium as to the times for divine worship, assigns as one of his reasons for the change, that the inhabitants of the parish of St. Faith, the village of St. Cross, and the hundred of Sparkford, who are now more numerous than when the existing customs were established, have no other place to resort to for public worship but the said chapel, and are permitted to attend there for divine offices.

Upon this review, we are of opinion that the master and brethren of the hospital are entitled to the rectory of St. Faith by the appropriation of Cardinal Beaufort, confirmed by the statute of the 18th of Elizabeth, and that there is no evidence of any other union or consolidation of the benefice of St. Faith with any other benefice, and that the user of the chapel by the inhabitants is accounted for by this appropriation, and that the collation of Dr. Lockman to the mastership, with the rectory of St. Faith united, operated to confer the mastership, and no more, and that the tradition in respect of Bishop Fox is of no legal weight.

This view of the facts of the case supports our answer in the negative to this question, and renders it unnecessary to discuss the legal questions which would arise if the supposed union was presumed from the facts.

*

We only add that we are not aware of any legal mode by which the bishop and the master could affect the property of the master and brethren in their chapel, and moreover that we find no *54 precedent and no principle which would authorize the union of the mastership of a hospital, where the duty is to attend to the bodily wants of the poor inmates, with the rectory of a parish, where the duty is to attend to the cure of the souls of the

parishioners. On turning to the passage in Selden on Tithes, (a) which was cited as a precedent for a similar union, where Henry III. granted to the Bishop of Chichester that a church may be demolished ("Et prædicti duo parochiani qui spectabant ad ipsam assignentur hospitali beatæ Mariæ in perpetuum et ibi deinceps recipiant spiritualia "), we find that the author is not treating of the union or consolidation of existing benefices, but of the original formation of parishes; and although they were for the most part formed by the laity in dedicating their tithes, yet, he says, other powers occasionally interfered in this formation, and he gives an instance of the pope interfering, to direct that a parish should be divided into two parishes, and also an instance of a king interfering, to make a combination by the grant above stated.

To the third question, whether the acts done by the petitioner on the 7th of August, 1854, from the repetition of which he has been restrained by the order of the 14th of July, were done by him in the lawful exercise of his duties as churchwarden of the parish of St. Faith, our answer is in the negative.

If the chapel of the hospital was not the parish church of St. Faith, as supposed in our last answer, the petitioner had no right to do any act there as churchwarden of St. Faith.

If the union of the parish with the mastership be inferred

* from the facts, for the purpose of argument, the terms of *55 the union must also be inferred from the facts; and as the churchwarden of St. Faith is not shown to have ever acted in that capacity in the chapel, the legal inference would be that the union did not give him any right there. If the question be confined to the nature of the acts, whether they are such as a churchwarden is authorized to do in an ordinary parish church in a time of vacancy, our answer is that we know of no right for the churchwarden either to perform or procure performance of divine service during vacancy. The usual course is well known for churchwardens, acting under a sequestration granted by the bishop, to provide for the service of the church; but in so doing they act, not as churchwardens, but as the officers of the bishop.

As to the other acts of the petitioner referred to in the question, they would appear to us to be lawful if under the condition above mentioned.

(a) Page 267.

January 31.

Their Lordships on this day delivered the following judg

ments:

THE LORD JUSTICE KNIGHT BRUCE. In this case the order which substantially and in effect, though probably not in a manner altogether regular, is under appeal before us was made at the rolls on the 14th of June, 1854, in these terms: [His Lordship read it to the effect above set out.]

The appellant here is Mr. Holloway. The occasion of the order was thus:

* 56

The decree in the cause made at the rolls on the 1st * of August, 1853, contained among other matters the following: "His Honor doth declare that the hospital of St. Cross, in the parish of St. Faith, near to the city of Winchester, was founded by Henry de Blois, brother to King Stephen, and Bishop of Winchester, by charter made in or about the year 1157, for the purpose of charity, and that the almshouse of Noble Poverty founded by Cardinal Beaufort, brother of King Henry, by the indenture dated the 3d of January, 1445, in the pleadings mentioned, was and is a charity in itself, and is distinct from the charity of the said hospital of St. Cross, and that the estates and property of the said hospital and almshouse ought to be applied for the purposes of charity, according to the dispositions of the respective founders. And this Court doth order that a scheme be settled for the future management of the said charities; and in settling such scheme, it is ordered, that regard be had to the respective foundations, so far as they appear, of the hospital of St. Cross and the almshouse of the Noble Poverty: And it is ordered, that an injunction be awarded to restrain the defendants, the master, and the brethren, and the said Francis Earl of Guilford, from making any further leases of any part of the possessions, hereditaments, and property, and from renewing any subsisting leases of any part thereof upon fines, and from taking or receiving any sums in respect of such fines, or in respect of any fines to be taken upon any grants by copy of court roll of any of the said manors, or of any part of the said lands, possessions, and property; and also to restrain the said defendants from receiving any part of the rents and profits and income of or arising from any part of the said lands, heredita