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Quare, whether the shutting up one of two churches in a parish, where Divine service is required to be performed in both, comes within sect. 77 of stat. 1 & 2 Vict. c. 106, as an "inadequate performance of ecclesiastical duties."

Quare, whether reconsecration is necessary, where a church is pulled down for the purpose of being rebuilt, and is rebuilt on the lines of the old structure.

This was an appeal from a decree of the Court of Arches, pronounced by Sir R. J. Phillimore on May 2, 1868, in a cause of the office of the judge promoted by the Bishop of Winchester (the present respondent) against the Rev. Lewis Rugg (the present appellant), a clerk in holy orders, the perpetual curate and incumbent of Ecchinswell-cumSydmonton, in the county of Southampton, diocese of Winchester and province of Canterbury, for having, within two years then last past, offended against the laws ecclesiastical by having omitted to perform or provide for the performance of public Divine service as prescribed in the Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies, according to the use of the Church of England, in the church or chapel of St. Mary, Sydmonton, on Sundays May 12th, 19th, 26th, and June 2nd, 1867. The cause came before the Arches Court of Canterbury by letters of request from the Bishop of Winchester, in accordance with the Act for the better enforcing Church Discipline (3 & 4 Vict. c. 86).

The present appellant (then defendant) appeared under protest to the jurisdiction of the Arches Court, alleging that his omission to perform Divine service in the church of St. Mary, Sydmonton, was no offence against the laws ecclesiastical under the Church Discipline Act; that proceedings ought to have been taken, if at all, under the provisions of stat. 1 & 2 Vict. c. 106, more especially those contained in ss. 77, 100 of that Act; that the church of St. Mary, Sydmonton was an unconsecrated building, having been rebuilt on the site of an old unconsecrated building, or oratory, by Mr. Kingsmill, without a faculty, and the ceremony of consecration performed by the Bishop of Winchester having been illegal, as against the will of Mr. Rugg, and subject to other objections; and that he had on the Sundays named above performed two full services in the parish church of Ecchinswell-cum-Sydmonton, distant only about two miles from the church of St. Mary, Sydmonton.

On Feb. 5, 1868, the Dean of Arches overruled this protest, on the grounds that sect. 77 of the stat. 1 & 2 Vict. c. 106, enacting, "That whenever the bishop shall see reason to believe that the ecclesiastical duties of any benefice are inadequately performed, it shall be lawful for him to issue a commission" to certain persons therein named, and on their making a report, to take certain measures, in no way hound the bishop to take this course, but that the present case was properly before the court under the provisions of the Church Discipline Act; that the church of St. Mary, Sydmonton, was duly consecrated, and that the non-performance of the service as alleged, was an ecclesiastical offence, over which the Bishop of Winchester had jurisdiction, and that the court, by virtue of the letters of request, had also jurisdiction in the matter.

The articles on behalf of the promoter (the Bishop of Winchester) alleged as follows: That by the common ecclesiastical law of the realm, and by the stat. 13 & 14 Car. 2, c. 4, s. 2, every clerk in Holy Orders of the United Church of England and Ireland is bound, on every Sunday in the year, to perform, or provide for the performance of public divine service, as prescribed in the Book of Common Prayer, and Administration of the Sacraments and other Rites and Ceremonies, according to the

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use of the Church of England, in every consecrated church or chapel of the ecclesiastical parish or benefice of which he is the incumbent. That the defendant (Mr. Rugg), a clerk in Holy Orders, was in 1852 lawfully licensed to be the perpetual curate and incumbent of Ecchinswellcum-Sydmonton, and has continued to be so up to the present date; that the said perpetual curacy and benefice consists of two ancient parochial chapelries, now and for many years past known by the respective names of Ecchinswell and Sydmonton, in each of which has been from time out of mind a consecrated church or chapel, to wit, the church or chapel, of St. Lawrence, Ecchinswell, and the church or chapel of St. Mary, Sydmonton; that such ancient parochial chapelries up to 18th Aug. 1852, belonged for all ecclesiastical purposes to the vicarage and parish church of Kingsclere, but were separated therefrom by an Order in Council bearing date 18th Aug. 1852, and since that date have been and are a separate parish for ecclesiastical purposes, and a perpetual curacy and benefice, by the name or style of the perpetual curacy of Ecchinswell-cum-Sydmonton; that the defendant has offended against the said common law ecclesiastical and the said statute by omitting to perform or to provide for the perform ance of public divine service, as above prescribed, in the said church or chapel of St. Mary, Sydmonton, on Sundays May 12th, 19th, 26th, and June 2nd, 1867.

To these charges the defendant made answer, alleging as follows: That such omission as above set out is no offence against the common law ecclesiastical, or the statute law of this realm; that by the common ecclesiastical law, and by the stat 1 Eliz. c. 2, and 13 & 14 Car. 2, every minister is bound to read the morning and evening prayers upon every Sunday (being present and not otherwise reasonably hindered) in the parish church or chapel where he ministers; but that he is not bound to perform more than two full services in one day, or to read the morning and evening prayers in any private chapel or oratory, or other place of public worship (where there are two or more places of public worship), and where he is unable from want of endowment or other funds (as in this case) to maintain a curate, or to provide for such additional services, even were such other place a consecrated building, and therefore, from inability to perform impossibilities, he is not guilty of any ecclesiastical offence; that the said Church of St. Mary, Sydmonton, at the date of the Order in Council (Aug. 18, 1852) was unconsecrated, and that the ceremony of consecration performed by the bishop (Aug. 17, 1865) was illegal and invalid, for the reasons stated in the protest above; that the said order in council, recognising the existence of a chapel and chapel-yard at Sydmonton, was issued upon mistaken information, as there was neither chapel nor chapel-yard, nor building of any kind which the law of the land or any ecclesiastical jurisdiction could take notice of, or recognise as either a parish church or chapel; that the said church of St. Mary was in effect, the private chapel of Mr. Kingsmill, with out a right of access to it except by favour of Mr. Kingsmill; that he (the defendant) did on the Sundays referred to perform two full services in the parish church of Ecchins well-cum-Sydmonton; that as the parish church of Ecchinswell is the only presentative and fully constituted parochial church upon the benefice in which alone all the divine offices of the church can be legally per formed, and in consequence of the doubts and uncertainties as to the so-called church of St. Mary; Sydmonton, and the absence of endowment and voluntary offerings, the defendant was bound to give the two full services in the church at Ecchins

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well, particularly since a service at Sydmonton would necessitate the extinguishing of one service at Ecchinswell, and thus leave nine-tenths of the parishioners without the advantage of the two services, Ecchinswell Church being two miles nearer to the bulk of the parishioners than Sydmonton, and the church at Sydmonton being chiefly for the accommodation of the Kingsmill family and their servants, for whom accommodation was also provided in the chancel-pew of the church at Ecchinswell; that it would be highly injurious to defendant's health to attempt a third service; that the net value of the benefice does not exceed 801. per annum or thereabouts, and that the bishop, before consecrating the church at Sydmonton, was bound to require the lay impropriator of Sydmonton to provide an adequate endowment, or make other provision for the support of the services.

On 2nd May 1868 the judge of the Arches Court (Sir R. J. Phillimore) gave judgment: (See 18 L. T. Rep. N. S. 486; L. Rep. 2 Adm. & Eccl. 247; 37 L. J. 85, Eccl.)

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He held that whether the old church, occupying the site of the new one built in 1853, had been consecrated or not was unnecessary to be considered. The Order of Council of Aug. 1852, severing the chapelries of Ecchinswell and Sydmonton from Kingsclere, and forming them into a separate parish for ecclesiastical purposes, recites that there is in each of the said chapelries a church or chapel, that of Ecchinswell being nearly two miles, and that of Sydmonton about three miles from the parish church of Kingsclere ;" and further, "that each of the chapelries has its own churchwardens; that the tithe-rent charge of Ecchinswell was commuted at 607., and that of Sydmonton at 507. 8s. 6d., and that the fees of both chapelries were 21." And these recitals in the Order in Council furnish evidence that the court is bound to accept, so far as they affect the question before it. That the church was in fact duly and legally consecrated by the bishop, and the validity of that consecration had been determined by the Privy Council: (Rugg v. Kingsmill, 18 L. T. Rep. N. S. 94; L. Rep. 2 Priv. Co. 59.) That in the case of an incumbent having a parish consisting of two benefices with a chapel or church in each, it is not competent to the incumbent to perform service in one only, but where means are insufficient for the performance of full (i.e., morning and evening) service in both, there must be one service every Sunday in each church. That the bishop has rightly exercised his discretion as ordinary in ordering here alternate morning and evening services in the two churches, and that therefore the defendant must be monished to obey the direction of the ordinary. And he condemned the defendant in costs. This decree was the subject of the present appeal.

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not competent to the bishop to consecrate this new church, erected in 1853, a parish church already existing in the benefice, no endowment having been provided, and a period of sixteen years and upwards from the demolition of the old building and of thirteen years from the date of the Order in Council having elapsed. The ceremony of consecration performed by the Bishop of Winchester was invalid for the above reasons, and because it was against my will. [By the COURT.-You are precluded by the Order in Council from arguing as to the necessity for consecration.] Having performed the morning and evening services on the days specified in the parish church, I have complied with the requisitions of stat. 13 & 14 Car. 2, c. 4, and am not chargeable with any dereliction of duty whatever. [Lord WESTBURY.-Do you then contend that, being presented to a benefice containing two churches, you were entitled to choose in which you would do the service?] Yes. [Lord WESTBURY.— The Act of Uniformity of Car. 2 would require you to do a full morning and evening service in each of these two churches.] This omission is not an "offence against the laws ecclesiastical" within the Church Discipline Act (3 & 4 Vict. c. 86); e. g., had I violated the canon 109 by "evil living," I should have been amenable to criminal process under sect. 23 of that Act, but the omission of duty alleged can only give a civil claim against me. [Lord CHELMSFORD.-If the bishop had lawful authority to command you to do this service, your disobedience constitutes an offence against the laws ecclesiastical. The question must be whether the bishop had authority.] If at all, I am amenable only to proceedings under sect. 77 of stat. 1 & 2 Vict. c. 106. The bishop, under this section, could have issued a commission to have inquired whether the ecclesiastical duties of the benefice were "inadequately performed," and he ought to have taken this course. The above and sect. 109 of the same statute preclude the bishop from proceeding, in a case like this, under any other statute. Assuming the bishop to have had jurisdiction over the ancient building and not to have lost such jurisdiction by its demolition without a faculty; under these circumstances the Ecclesiastical Court, having jurisdiction over the ancient footway leading into the said building, and that footway having been closed up, it became the duty of the court below by its judgment to order the said footway to be re-opened before admonishing me to perform service in the building. And the judge of the court below was wrong in proceeding to the hearing of the suit, notwithstanding my application for a postponement until the bishop should be examined, for I thus lost the benefit of his Lordship's testimony.

Dr. Deane, Q. C. and Dr. Swabey, for the respondent, argued that the appellant being the incumbent of a benefice consisting of two distinct districts or chapelries, in each of which there is a consecrated building, church, or chapel, is bound by law to

Divine service in each building every Sunday; and he has no right to choose in which he will do the service and leave the service entirely undone in the other. The reasons assigned by the appellant for his omission of duty are quite insufficient.

The appellant (the Rev. Lewis Rugg) in person. -The recitals to the Order of Council, referred to in the judgment of Sir R. J. Phillimore, importing that at the date of the order a chapel and chapel-perform yard existed at Sydmonton, are erroneous. The recitals, at any rate, are not conclusive evidence of the fact. In R. v. Greene, 6 Ad. & Ell. 548, it was held that the fact that a place is called in the schedule of a statute a "borough" is not conclusive evidence that the place was a borough before the statute. The old chapel standing on the site of the present church of St. Mary, Sydmonton, was pulled down and rebuilt in 1853 by Mr. Kingsmill without a faculty. Even if the old chapel had been consecrated, yet, having been pulled down and rebuilt, it ought to have been reconsecrated: (Battiscombe v. Ere, 7 L. T. Rep. N. S. 697. See, however, Parker v. Leach, 36 L. J. 26, Priv. Co.) And it was

The appellant replied.

Cur, adv. vult.

Dec. 23.-Their LORDSHIPS delivered the following judgment:-The appellant in this case is the Incumbent of the benefice of Ecchinswell-with-Sydmonton, in the county of Southampton, and he appeals from a sentence of the Arches Court, pronounced in a cause instituted under the

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Clergy Discipline Act, by which sentence the judge fore, to accommodation in their said respective declared that the appellant had offended against the churches, but should not henceforth be entitled to laws ecclesiastical by not having regularly per- any accommodation in the parish church of Kingsformed divine service in the church or chapel of St. clere. It is enacted by the statutes already Mary, Sydmonton, as required by the lord bishop mentioned, that a scheme thus approved of, and of the diocese, and monished him to resume and made an order in council, shall come into operation continue to perform, or to provide for the perfor- forthwith, and be binding on all persons whatsoever, mance of, public divine service, as prescribed in whether the benefice or benefices thereby affected the Book of Common Prayer, in the said church or be or be not vacant. Shortly after the date of the chapel of St. Mary, Sydmonton, and further con- order in council, the appellant became the incumdemned him in costs. It appears that Ecchinswell bent of the parish or benefice thus created. The and Sydmonton were two ancient chapelries belong- church at Sydmonton was at this time pulled down ing to the vicarage of Kingsclere, with a church or for the purpose of being rebuilt, and it was rebuilt chapel in each of the chapelries, each chapelry being on the lines of the ancient structure in 1833. It also a separate parish for all civil purposes; and in appears that from the year in which the new church the year 1852 a proposal or scheme for the union of at Sydmonton was opened for divine worship, until the two chapelries into a separate parish and bene- 1863, service was performed in the church by the fice, and for their separation from the vicarage of appellant. Some doubt then arose whether the new Kingsclere, was set on foot by the Bishop of Win- building required reconsecration; and the appellant chester, under the provisions of the 1 & 2 Vict. taking advantage of this doubt, closed the church, c. 106, and the 2 & 3 Vict. c. 43. This scheme was and refused his consent to its being reconsecrated. certified by the Archbishop of Canterbury to the To such an extent was his perverse conduct carried, Queen in Council, and all necessary consents having that on the day appointed for the consecration, the been given, it was ultimately approved of by Her 17th Aug. 1865, he caused the door of the church to Majesty in Council, and became binding under the be locked, carried away the key, and refused to be Acts referred to. By this scheme it was provided present at the ceremony. There can be no justif that the two chapelries of Ecchinswell and Sydmon- cation or excuse for such conduct. If the new ton should be separated from the vicarage of Kings- church required reconsecration (which, as it was clere, and be united so as to form together a separate built on the site of the old church, may well be parish for ecclesiastical purposes, and a perpetual doubted) (see Parker v. Leach, 36 L. J. 26, Priv. Co., curacy and benefice, by the name or style of the it was the duty of the appellant to have promoted perpetual curacy of Ecchinswell-with-Sydmonton. and assisted such reconsecration. The appellat That the proposed separate parish and benefice has since contended that the consecration is invalid. should be subject to the same ecclesiastical juris- as it took place without his consent, and erea diction as the said vicarage of Kingsclere, and the against his protest. But their Lordships entertain incumbent of such separate parish and benefice no doubt that even assuming reconsecration to have should have exclusive cure of souls within the limits been necessary, the appellant having regard to the of the same. That two churchwardens should be❘ site of the building, the purpose for which it was annually chosen in the customary manner, and at erected, and the provisions of the order in councă, the time when churchwardens are usually appointed, was not in a position to have refused his assent to in and for each of the said chapelries; and every the consecration. In the consideration of this case, person so chosen should be duly admitted, and therefore, the church at Sydmonton must be taken should do all things pertaining to the office of to be a lawfully consecrated church. On the 5th May, churchwarden as to ecclesiastical matters within 1867, the appellant gave public notice in the church the said chapelries. That the freehold of the at Sydmonton that there would be no more service churches and churchyards of Ecchinswell and Syd- in that church; and for the two following Sundays monton, so far as the same might be vested in or divine service was not performed in it. Complaint belong to the incumbent for the time being of the having been made to the Bishop of Winchester, he, said vicarage, and also all the glebe lands of and on the 23rd May, 1867, by a letter from his secretary belonging to the said vicarage situate in the said to the appellant, desired to know whether the infor chapelries of Ecchinswell and Sydmonton, with the mation he had received was correct, and, if so, on appurtenances; and also (except as thereinafter what ground he had suspended the service. To this mentioned) all so much and such part of the tithe letter the appellant on the 27th May, 1867, replied rentcharges or other payments or compositions for in these terms: -"In answer to your letter addressed or in lieu of tithes belonging to the said vicarage as to me at the request of the Bishop of Winchester. I arose and accrued, or were payable within or in have to inform you that I have discontinued the respect of the said chapelries of Ecchinswell and service at Sydmonton, and have returned to the two Sydmonton, should belong and be attached to the full services in the church at Ecchinswell as per said proposed separate benefice of Ecchinswell-with-formed by me during the first four years of my Sydmonton for ever, and be held, received, and enjoyed by the incumbent thereof for the time being, accordingly. That the parishioners of Ecchinswell and Sydmonton should be liable as theretofore to the expenses of repairing and maintaining their respective churches, and the other expenses incidental to the due performance of divine service therein respectively, and should be exempt from all rates, charges, and assessments to be made for or in respect of the parish church of Kingsclere aforesaid, or for or in respect of any other church or chapel situate elsewhere than within the limits of the said proposed separate parish. That the patronage or right of nomination of or to the said proposed separate benefice of Ecchinswell-with-Sydmonton should be and remain in the vicar of the said vicarage and parish church of Kingsclere for the time being and his successors for ever. That the parishioners of Ecchinswell and Sydmonton should be entitled, as thereto

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charge of this parish. I think I shall best discharge my duty to my parishioners generally by the retura to the two full services (morning and evening) here, and that this will be more strictly in accordance with the requirements of both the common and ecclesiastical law, than having only one service here in order that there may be one in a building which I cannot recognise as ever having been lawfully consecrated, and for the sake merely of one family (not much resident) and their immediate dependents. when the great bulk (more than nine-tenths) of my parishioners live nearer to Ecchinswell church, where they can better and more conveniently attend, than by having to go out of their way a mile or two more distant to Sydmonton House." The following letter dated the 30th May, 1857, was then written by the bishop's secretaries to the appellant:-"We have laid your letter of the 27th before the Bishop of Winchester. We are desired to state that the

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RUGG. v. BISHOP OF WINCHESTER.

bishop requires you to resume the service at Sydmonton church on Sunday next, and to continue the performance of such service in future; and we beg to add that we have forwarded a copy of this letter to the churchwarden, and requested him to inform the bishop whether his order is complied with." The following is the reply of the appellant to the order of the bishop:-"Ecchinswell, 31st May, 1867. In reply to your communication of yesterday from the Bishop of Winchester, I beg to inform his Lordship that, with all due deference to his authority, I see neither the necessity nor the obligation, under existing circumstances, of performing divine service at Sydmonton, and it is not my intention to resume the service there until every impediment be removed and the church (so called) has been judicially decided to be lawfully consecrated. I have, moreover to inform you that there is no churchwarden at Sydmonton, and therefore no need to wait for a reply to any copy of a letter or request to such to know whether his Lordship's order has been complied with or not." The bishop, finding that the appellant had determined to continue to keep the church at Sydmonton closed, and to disregard his order that the service in it should be resumed, instituted a suit against the appellant in the Arches Court of Canterbury, under the provisions of the Clergy Discipline Act (3 & 4 Vict. c. 86). The letters of request stated that the appellant was charged with having offended against the laws ecclesiastical by having omitted to perform or to provide for the performance of public divine service as prescribed in the Book of Common Prayer, and adininistration of the sacraments and other rites and ceremonies, in the church of St. Mary, Sydmonton, on four successive Sundays, in the months of May and June, 1867, and therefore prayed that a citation might be issued to him to appear to answer to certain articles, &c., to be administered. The appellant appeared under protest, and by an act or petition objected that by virtue of divers provisions contained in 1 & 2 Vict., c. 106, and more particularly in sections 77 and 109, the court had no jurisdiction to administer articles to him for the alleged offence of omitting to perform or provide for the performance of public divine service in the alleged church of St. Mary, Sydmonton; that the building, called the church of St. Mary, Sydmonton, is not a church as falsely suggested; that an illegal ceremony of consecration had been performed within the building; that the appellant performed two full services in the parish church of Ecchinswell-with-Sydmonton on the Sundays mentioned in the letters of request, and that by reason of the premises the court had no jurisdiction to entertain a suit to compel him to answer articles for not performing divine service in the building. The Dean of the Arches overruled the protest, deciding that the offence charged was an ecclesiastical offence cognisable under the provisions of the 3 & 4 Vict., c. 86, and assigned the appellant to appear absolutely. Articles were accordingly brought in, which charged the appellant with having offended against the common ecclesiastical law of the realm, and the statute 13 & 14 Car. 2, c. 4, s. 2, by omitting to perform divine service in the church of St. Mary, Sydmonton, at the times mentioned, and copies of the before-mentioned letters between the bishop's secretaries and the appellant were annexed to and made part of the articles. The answer to the articles principally consisted of a denial of any liability on the appellant to perform any divine service in St. Mary, Sydmonton, on the ground of its being an unconsecrated building, and a justification for the omission charged, by reason of his having performed two full services in the church of Ecchinswell. The Dean of the Arches held that the bishop had rightly exercised his dis

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cretion in commanding the appellant to perform divine service in the church at Sydmonton, and admonished him to obey the directions of his ordinary. Upon the hearing of the appeal from this judgment, the appellant in person urged various objections, some of which were of an extremely frivolous character. He insisted upon the illegality of the consecration of the church at Sydmonton, for which objection, as already shown, there is no foundation. He also objected that an ancient footway or entrance to the church had been stopped up by the patron, and a more circuitous road provided, and that it is by sufferance of the patron only that the former approach can be used. It is clear that no defence against the present charge can be rested upon this circumstance. If there has been any improper obstruction of a right of way to the church, the appellant has his appropriate remedy. But the appellant principally rested his defence to the proceedings against him upon the ground that there being two churches or places of public worship in the parish of Ecchinswell-with-Sydmonton, he had a right to shut the church against the parishioners of Sydmonton, if, in his discretion, he considered it more expedient to confine the public worship in the parish to the church at Ecchinswell. The question is whether by so acting and persevering in keeping the church at Sydmonton closed in disobedience to the order of the bishop, he has committed an ecclesiastical offence. The duty of the appellant is thus stated in the 1st article: That by the common ecclesiastical law of the realm, and by the statute 13 & 14 Car. 2, c. 4, s. 2, every clerk in holy orders of the United Church of England and Ireland is bound on every Sunday (otherwise called Lord's day) in the year to perform or provide for the performance of public divine service, as prescribed in the Book of Common Prayer, and administration of the Sacraments and other rites and ceremonies, according to the use in the Church of England, in every consecrated church or chapel of the ecclesiastical parish or benefice of which he is the incumbent. It appears to their Lordships that the Act of Uniformity (13 & 14 Car. 2) does not apply to this case, and that it is not a duty imposed by that Act upon an incumbent who has two churches or places of public worship within his parish to perform divine service in both of them. The words of the Act, "Every church, chapel, or other place of public worship within the realm of England," must be read in each church, &c., in and for which there is a distinct minister. The appellant cannot, therefore, be said to have offended against the Act of Uniformity by confining the performance of morning and evening service to one of the churches in his parish, and not providing for the same services in the other chureh, there being nothing in the Act requiring him to employ a curate, in order that the services may be duly performed in both churches. But the question is, whether the appellant was not bound by the common ecclesiastical law (to use the language of the articles)" to perform or to provide for the performance of public divine service in every consecrated church or chapel of the parish or benefice of which he is the incumbent." If so, the article which charges an offence against the common ecclesiastical law, and also against the statute 13 & 14 Car. 2, will be good, although the offence is only against the common law, and not against the statute, as the latter allegation may be regarded as mere surplusage. There can be no doubt that the order in council which united the chapelries of Ecchinswell and Sydmonton into a separate parish or benefice, intended that there should be two churches (as they are called in the order) within the parish, in both of which public worship should be performed. This appears plainly from the provisions contained in the order that the parishioners of

PRIV. Co.] Ex parte CHARLES A. JENKINS, Clerk, and ATTORNEY-GENERAL OF BERMUDA. [PRIV.CO.

Ecchinswell and Sydmonton should be liable, as theretofore, to the expenses of repairing and maintaining their respective churches and the other expenses incidental to the due performance of divine service therein respectively," and "that the parishioners of Ecchinswell and Sydmonton shall be entitled as heretofore to accommodation in their respective churches." The appellant accepted the benefice with a full knowledge that there were two churches or chapels within the parish in which, by the instrument creating the benefice, the duty of using each as a place of religious worship, and performing some service therein, is laid upon him. If the question with the bishop had been as to the nature and extent of the services which the appellant was bound to peform in these churches respectively, the case might have been attended with more difficulty. But the appellant takes upon himself to shut up the church at Sydmonton, and positively to refuse to perform any divine service in it, assigning reasons for this wilful neglect of the duty which he has undertaken, every one of which is insufficient, and claiming the liberty of choosing which of the two churches in his parish he will keep open for divine worship, which, if it were conceded to him, would of course equally enable him to close the church at Ecchinswell, and perform the whole of the divine services in the parish in the church at Sydmonton. If, then, the appellant has neglected or refused to perform a spiritual duty which was imposed upon him by his induction into the benefice, has he not committed an offence against the ecclesiastical law? This in itself might render him liable to be proceeded against under the Church Discipline Act. But, beyond his neglect of duty, he has exposed himself to such a proceeding by his contumacious refusal to obey the lawful order of his bishop. The duty of performing some divine service in the church at Sydmonton having been imposed upon the appellart, and he having shown his intention of violating it by shutting up the church and giving public notice that there would be no more service there, the bishop, in the exercise of the authority vested in him, made an order upon him to resume the services in that church. If the appellant had entertained a sincere wish to do his duty to the parishioners, he would have consulted the bishop as to the best mode of meeting their requirements and his own obligation; but instead of adopting this course he defied the bishop's autho

and for the purposes thereof, and the enforcing the due execution of the provisions thereof, all other and concurrent jurisdictions in respect thereof shall wholly cease; and no other jurisdiction in relation to the provisions of this Act shall be used, exercised, or enforced, save and except such jurisdiction of the bishop and archbishop under this Act. It may be open to doubt whether the shutting up one of two churches in a parish where divine worship is required to be performed in both, comes within the meaning of the words "inadequate performance of ecclesiastical duties," and can be dealt with as falling under the 77th section. But assuming that it might, if the act done involves an ecclesiastical offence, does the 109th section of the 1 & 2 Vict, c. 106, compel the bishop to adopt the course pointed out by the statute, not for visiting the offence, but for enforcing the proper performance of the duties which, by reason of the offence, have been inadequately performed? The words of the 109th section are, that no other jurisdiction in relation to the provisions of the Act shall be used. Therefore, if the bishop were proceeding to compel the appellant to appoint a curate, he must have pursued the course prescribed by the Act, and have issued a preliminary commission of inquiry. But his proceeding being for an offence committed by the appellant against the common ecclesiastical law, the jurisdiction of the court is not taken away by the 109th section, and the suit is properly instituted under the Church Discipline Act. Their Lordships are of opinion that the appellant, by shutting up the church at Sydmonton, and refusing to perform divine service there, notwithstanding the mandate of the bishop, has committed an ecclesiastical offence, and they will, therefore, humbly recommend to Her Majesty that the judgment of the Arches Court should be affirmed, and the appeal dismissed with costs.

Appeal dismissed.

Proctors for the appellant, Brooks and Co.
Proctors for the respondent, Moore and Currey.

Dec. 7 and 23, 1868.

(Present at the hearing: Lord Chancellor CAIRNS, Lord CHELMSFORD, Lord Justice SELWYN, and Sir JAMES W. COLVILE.)

rity under the semblance of deference to it, and Ex parte CHARLES ALFRED JENKINS, Clerk, and

denying the necessity and the obligation of performing any divine service at Sydmonton, expressed his intention not to resume the service there" until the church (so called) had been judicially decided to be lawfully consecrated." The appellant, therefore, has committed an offence against the common ecclesiastical law, by wilful neglect of duty, and by wilful disobedience to the order of the bishop directing him to perform that duty. In his act or protest, the appellant objected to the jurisdiction of the court, upon the ground that the proceedings should have been taken (if at all) under the 1 & 2 Vict.,

c. 106, referring to sections 77 and 109 of that Act. It may be doubted whether the Act referred to is applicable to this case. By the 77th section it is provided that whenever the bishop shall see reason to believe that the ecclesiastical duties of any benefice are inadequately performed, it shall be lawful for him to issue a commission, to be constituted in the manner prescribed; and if the commissioners report to the bishop that in their opinion

the duties of such benefice are inadequately performed, he may require the spiritual person holding the benefice to appoint a curate. And the 109th section enacts, that in every case in which jurisdiction is given to the bishop of the diocese, or to any archbishop, under the provisions of this Act,

ATTORNEY-GENERAL OF BERMUDA.

Bermuda-Bishop of Newfoundland-Status of colonial
bishops-Institution-Induction-Writ de vi licé
removenda-Court of Chancery in Bermuda.

The islands of Bermuda were attached to the see of
Newfoundland in 1839.

The letters patent authorised the Bishop of New found-
land to exercise piscopal functions, and among them
to institute to benefices by himself or his commissary.
The ecclesiastical jurisdiction of the Bishop of New-
foundland was recognised by various Acts of the
Legislature of Bermuda.

The commission or instructions to the governor directed
him, on the vacancy of a benefice, to present a clerk
to the bishop for institution.

A clerk was so presented by the governor to the bishop's
commissary (in the absence of the bishop), and the
commissary issued a mandate for induction.
The induction was prevented by force, and applications
to the Court of Chancery in Bermuda for a writ de vi
laicâ removendâ were refused. On appeal against
this refusal:

Held, that the presentation and institution were by law

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