1843. arises. Are the parishioners of the parish of Hackney discharged from that, which is, and must now January 27th. be admitted, after all the discussions and decisions which have taken place upon it, to be the common law obligation of the parishioners to repair their parish church? The first thing to be considered then is: Is this the Parish Church of Hackney? Now I think it would be a waste of time, and would hardly be thought necessary by any person, to go into the inquiry whether or no, under the provisions of this Act of Parliament, this church is now the parish church of the parish of Hackney; for, in the act of 1790 it is distinctly pointed out, independent of what I have referred to in the title, that it was to be substituted for the parish church. [The Court read the 13th, 19th, and 20th sections.] There can be no doubt, on the construction of this act, that this new church and churchyard were substituted for the old church and churchyard, and consequently if that were so, and there was nothing else in this Act of Parliament, the rights belonging to the old parish church would be transferred to this newly erected parish church and burial ground, and the rights and liabilities of the parishioners to the use of the church and churchyard would also have been transferred with it, and whatever obligation there was on the parishioners to repair the old church would also fall on them in the new church and the question therefore which has been raised on this Act of Parliament-on this part of the act at leastis simply this,-whether, as the freehold was vested in these trustees, the obligation of repairing the church was not also cast on them? NUNN against VARTY and MOPSEY. 1843. Now it will be necessary to consider what is the January 27th. effect of these allegations; or the effect of the argument raised upon them. NUNN against VARTY and MOPSEY. It is argued that the reparation of the church and churchyard arises from custom, and custom only; that it must be construed strictly, and that, as by the general Canon Law the onus and burthen of repairing the church, and providing the ornaments, was cast on the incumbent-the freeholder; so in this case, where the freehold is transferred from him to the trustees, the burthen must follow. Now it is certainly true, that, by the general Canon Law, the burthen of repairing the church does fall on the incumbent of the parish; and therefore it must be shewn that there is a difference in this respect in the law of England, from that of many other countries; and I think there was a great deal of industry bestowed, and a great deal of learning displayed, (a) in order to establish that at one time at least in England, the repairs of the church were thrown on the incumbent, and that it was only by supervening custom that he was relieved from that burthen, which was cast, as far as the body of the church was concerned, on the parishioners; the reparation of the chancel still continuing in the incumbent or rector of the parish. Now in support of that argument, reference was made to ancient records-to writers of estimation and of repute, in order to establish the fact, that at least at one time, as to repairs, that was the law of England. But it seems to be unnecessary very much to enter into that question, because it cannot (a) A summary of the whole of the argument on this point will be found in Mr. Rogers's Ecclesiastical Law, p. 163, n. 1843. NUNN against VARTY and MOPSEY. be denied, and it was even proved by the very authorities referred to; that as early at least as the January 27th. beginning of the 11th century, a custom prevailed in England, that the church should be repaired by the parishioners. At the time of Canute the custom existed, (supposing that even to be the origin of the custom), that churches were repaired by the parishioners, and not by the incumbent; and as this has now continued to be the custom-not prevailing in any particular city, town, and district, but universally through England, it can hardly be considered as a custom; but it is rather entitled to be considered, as was stated by Lord Chief Justice Tindal, in delivering the judgment of the Exchequer Chamber in the Braintree case, as the common law of England; for, in point of fact, the common law of England, lex non scripta, is nothing but custom and when it is once proved that the general law, the universal law of England, is, that the church shall be repaired by the parishioners, it can hardly be considered that it is giving a fair description of it to say it is a custom, and to be construed strictly. A claim of any particular place to be exempt from the obligation imposed by the common law may be fairly called a custom, and may be maintainable, supposing it to have a reasonable foundation or a reasonable origin; but the general law of England, the common law of England, is that which must prevail, unless it can be shewn that the burthen, which that common law imposes on certain individuals or certain places or districts, has been modified or altered by some special enactment or by necessary implication. Now I cannot consider it 1843. NUNN against VARTY and MOPSEY. to be a necessary implication that the mere vesting January 27th. of the freehold in trustees for certain purposes is sufficient to throw on them the burthen of the repairs of the church. At all events, the utmost extent to which the argument could go would be this-that the trustees are placed in the same situation as the freeholder in whom it was before vested; that is, in the same situation as the incumbent of the parish; if he repaired the church, then divesting him of the freehold might perhaps carry with it the obligation of repairing the fabric of the church; but if the incumbent did not repair the church, in virtue of that freehold; why then are the trustees, by the transfer of that freehold, to have that burthen cast on them? Without considering therefore whether the analogy which was stated between repairs of bridges and highways and so forth would hold good, it seems to me, that when, by the common law of England universally prevailing throughout the kingdom, the repair of the church is cast on the parishioners; the mere transfer of the freehold from the incumbent, and the vesting it in these trustees will not impose upon them any other liability than that which the incumbent of the parish at the time had cast upon him; and that certainly did not extend to the repairs of the body of the church. The freehold, it is true, is stated to be in the incumbent; but the freehold is subject to the exercise of certain rights by the parishioners. The herbage of the churchyard is in the incumbent; the right of interment in the churchyard is the right of the parishioners. The freehold of the church, as well as the churchyard, being in the incumbent, is 1843. subject to the rights of the parishioners for the purpose of attending divine service, of receiving the January 27th. sacrament, baptisms, marrying, and interments. Under these circumstances then I am quite clear that the Judge below was right in considering the mere transfer of the freehold, and vesting it in the trustees, did not relieve the parishioners from the burthen of repairing the church, or throw it upon the trustees themselves. It must be therefore by virtue of some special enactment, or necessary implication, that the trustees are to take upon themselves that burthen. Now what are the circumstances of this case. The trustees are to act according to the duties which are pointed out (they being appointed in order to carry them into effect for the purposes of the act) those duties are to be collected from the preamble and from the whole of the act, where they are pointed out much in detail. In the first place they are to purchase, by the 10th section of the act, a certain piece of ground, and having purchased this, which is to be paid for out of the monies to be raised in the manner pointed out by the 11th section of the act they are to cause, (section 13) the new church to be built on part of that land-they are then to cause a new cemetery to be made on the residue; and if there should be any part not required for the purpose of the church or churchyard, they are empowered to let or dispose of such remaining part; they are to cause the church and churchyard to be consecrated-they are empowered to pull down the old church after the new church had been consecrated, and to dispose of the materials— (the old chancel was to be left standing, section 16), NUNN against VARTY and MOPSEY. |