At what time. it to the Lord Chancellor by Sir Littleton Powys himself, which contains his deliberate opinion " that the parson and churchwardens, either jointly or severally, could not appoint any collection for charity other than in common form for the poor of their parish, and that those are the charitable purposes intended by the rubric at the communion service." This however is only the opinion of a single judge, and although this statement of the law as to this point has never been expressly overruled, yet the case appears to have been considered by Lord Stowell as one of party heat which took place in times of party ferment and of smaller authority on that account. The law on this subject must therefore be considered as still unsettled: but the circumstance, that no cases are to be found upon the many subjects of dispute, which would appear inevitable if the two purposes are to be deemed proper, will serve to show what has hitherto been the generally established custom in this respect. The rubric speaks of the money collected as to be disposed of after divine service ended. And it appears evident that an immediate disposal of it is contemplated by the rubric, unless there should be any disagreement between the minister and churchwardens. The practice however appears to have been otherwise. The alms collected at the reading of the offertory in proprietary chapels are not to be distributed by the minister or other officers of such chapels, but are to be made over to the minister and churchwardens of the mother church to be distributed by them. And this was so decided by churchwardens Sir J. Nicholl, in a case where the minister of the parish had cited the minister of such a chapel within his parish to answer, among other things, for appropriating the alms received at the Lord's Supper, in defiance of an order to pay them over. After referring to the directions of the rubric which we have already mentioned, Sir J. Nicholl observed, that those directions as to the churchwardens, who are the officers of the parish, and not of the chapel, led him to construe the minister to mean the minister of the parish; and that they showed that the rubric intended that the alms received at the communion, as well in private chapels as in the parish church, should be at the disposal of the minister of the parish and the churchwardens; and should not belong to the officiating minister nor to the proprietors of the chapel. If collected in a are to be hand- of the parish. Hutchins v. Densiloe, 1 Hagg. Cons. 174. BOOK VII. OF THE DUTIES OF A CLERGYMAN IN CHAPTER I. PARISH VESTRIES. In its first and proper meaning the word vestry signifies General place of holding such meetings. Of these vestries, or vestry Select vestries SECTION 1. Of General Vestries. vened. Notwithstanding that the meeting of the parishioners Where vestries has been so customarily held in the vestry as to have thence may be conderived its name, it is by no means essential to the validity of the meeting that it should be there held, and it may be convened elsewhere in any other fit and convenient place, or in the church itself; but if it be held either in the church. or in the vestry room, the ecclesiastical court has jurisdiction ratione loci over any misconduct or disorder coma Lord Raym. 350. ecclesiastical court over them. Jurisdiction of mittted therein; but more license would be permitted in the vestry room than in the church itself, as the former is the proper place for parish business; and the court would not in such cases interpose, except for the preservation of due order and decorum." Right of minis ter to preside, But besides that these meetings are thus connected with the church, and that the ecclesiastical court has jurisdiction over them, a somewhat particular notice of them is essential in this work, since the minister of the parish, whether he be rector, vicar or perpetual curate, has always a right, and, as it seems, it is a part of his duty, to preside at them; for he is not like the other parishioners who assemble there, but is always described in his separate capacity as a part of the parish, the form of citing a parish being-" the minister, churchwardens and parishioners." And, therefore, that he and any other individual should be put in competition for the office of chairman, would be placing him in a degrading position, in which he is not placed by the constitutional establishment of this country. We have already observed that vestry meetings may be legally held elsewhere than in the church or vestry room; and where this is done, it has been urged that the minister has not the same right of presiding, but that the right only exists in his church or vestry room ratione loci;d but it is now clearly meeting may be established that the place of holding the meeting does not affect or alter the right of the minister, but that he has always the right to preside. wherever the held. Convocation of the vestry. Whenever, therefore, such meetings are held, he is, in sound legal principle, the head and præses of the meeting; and, as such, it is essential that he should be acquainted with the law by which such meetings and their powers and proceedings are regulated, defined and directed. And, first, as to the convocation of the meeting: vestries are usually held according as the exigencies of the parish require; but 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 the special purpose thereof, three days at the least before the day to be appointed for holding such vestry, by the publication of such notice, which must be reduced into writing, and written By notice affixed or printed copies thereof affixed on or near to the doors of on church doors the churches or chapels within the parish or place prepreviously to divine service. viously to the commencement of divine service. b Wilson v. M'Math, 3 B. & Ald. 241; Hutchins v. Denziloe, 1 Hagg. 185. g with consent of Vestries are to be called by the churchwardens, with the To be called by consent of the minister, and this was always so by the churchwardens common law. The act of parliament, by which general minister. vestries are regulated, commonly known as Sturges Bourne's Act, or the Vestry Act, makes no alteration in this particular. It does not appear, however, that either the minister or churchwardens have any absolute discretion in this matter, but that they are bound to perform their parts in convening a vestry, if necessary; and as the churchwardens, refusing to call a vestry for the legal duties of the parish, might be compelled to do so by mandamus; so it may be presumed that a minister would be compelled to give his consent, if he should withhold it without sufficient reason; or that the vestry might be convened by the churchwardens notwithstanding. But a private parishioner Private pahad no right given him by the statute, nor could he have rishioner has no had any before, in case of the refusal of the churchwardens, tice of vestry. to publish a notice for a vestry to choose new churchwardens, or for any other purposes.' i right to give no vestry. The parishioners, constituting the vestry, are, at the What pacommon law, all such as pay to the church rates, or scot rishioners conand lot, and no others; but residence within the parish is stitute the not a necessary qualification, as all out dwellers, who are rated in respect of any property in the parish, have a vote in the vestry, as well as the inhabitants, and are entitled to the same benefit' of the Vestry Act hereafter mentioned. Nor is the payment of church rates essential to entitle a person to vote at vestry meetings. And although at a meeting Payment of of the parishioners, in whom, by the custom, the right of rates. electing to a perpetual curacy was vested, it was resolved, before the election began, that parishioners, who had not paid (not having been assessed to) church rates, should not be allowed to vote; and, in consequence, several persons, legally qualified to vote, did not tender their votes; and the votes of others were rejected, because they had not paid the church rate, though they had paid poor rates; it was held, by the Court of King's Bench, that the election was not according to the custom; and that it was not competent to the parishioners assembled to narrow the custom by passing a bye law, which would have the effect of making it depend upon the will of particular persons, whether a person had a right to vote or not, by inserting, or omitting to insert, the names of any particular parishioners in the church rate.m g 58 Geo. 3, c. 69. i Dawe v. Williams, 2 Add. R. 138. 158 Geo. 3, c. 85. h Prideaux, s. 35. k Shaw's P. L. c. 17. Faulkner v. Elger, 6 D. & R. 517; 4 B. & C. 449. Rateability is necessary. Refusal or neg lect to pay poor rates disqualifies. And in cases of clerks, &c. of companies. Illegal to do Iclude those who The chairman. But although, as we have already seen, the actual payment of church rates has been held not to be necessary to entitle a parishioner to vote at vestry meetings, yet it seems that rateability is necessary; for it is provided, that when any person shall have become an inhabitant of any parish, or become liable to be rated therein, since the making of the last rate for the relief of the poor thereof, he shall be entitled to vote for and in respect of the lands, tenements and property for which he shall have become liable to be rated, and shall consent to be rated, in like manner as if he should have been actually rated for the same." to But no person, who shall have refused or neglected to pay any rate for the relief of the poor, which shall be due from him, shall be entitled to vote, or to be present in any vestry of the parish, for which such rate shall have been made, until he shall have paid the same." And with respect the votes of companies, &c. by their clerks, &c., it is provided, that no such clerk, secretary, steward or agent, shall be entitled to be present or to vote at any vestry in such parish, unless all rates for the relief of the poor, which have been assessed upon the annual rent, profit or value, in right of which any such clerk, &c. shall claim to vote, then due, and which shall have been demanded at any time before the meeting, shall have been paid and satisfied. may is The vestry, then, is constituted of rateable parishioners, all of whom have a right to be present; so that, if any excluded, he may bring an action on the case against the party who excludes him: nor is it allowable to do anything which tend to exclude, even after business may have been begun. Thus, it is illegal to close the doors so as to exclude voters, especially during a poll; but it is by no means necessary to constitute the vestry, that all who have the right should be there present, for the majority of those present may bind the parish to all legal acts, however small their number, or however important the act; and even in the case above mentioned, where the doors had improperly been kept closed, and the admittance of voters had been delayed, the court refused a mandamus for a fresh election, because it did not appear that any voter had been actually excluded.' The vestry, thus constituted, is incomplete without its head or president; and he, as we have seen, by the common law, is the minister of the parish, whether rector, vicar, or m 58 Geo. 3, c. 69, s. 4. n Sect. 5, as corrected by 59 Geo. 3, c. 85. |