Page:The English Reports v1 1900.pdf/361

John Wade was named curate by the then Bishop; and died in November, 1707, when the present Bishop nominated respondent Hutchinson, who, with the consent of the inhabitants, at his own costs, erected a gallery in the Chapel, which cost him 121l. and that Hutchinson had quiet possession until November 24th, 1708, when some of the meaner inhabitants, in a disorderly manner, pretended to chase Burton to be curate, since which there had been very great disturbances in the Hamlet: And that there was no election of any curate by the inhabitants entered in any of the parish books, though there were of clerk and sexton; and that therefore the decree of dismission was just; for that the Court of Exchequer had no power to decree what was prayed for in the bill, and for that the right of naming the curate was vested in the Bishop. (Edward Northey. Henry Box.)

Die Sabbati, 1 Aprilis, 1710. After hearing council on this appeal, the question was first put, "whether this decree shall be reversed?" and it [402] was resolved in the negative; and then ordered and adjudged by the Lords, that the appeal be dismissed, and the decree appealed from affirmed. Lords Journ. vol. xix. p. 187.

It appears by a manuscript note on the printed cases, that this decree was affirmed by a majority of one.

The parties severally stated, as in the foregoing case is stated: And now appellants stated further, that the respondents, in Michaelmas term last, exhibited their bill in Chancery against appellants, for settling the right of the Bishop in the nomination of a curate to the Chapel, and for confirming respondent Hutchinson in the curacy, and all the profits thereof, and to oblige appellant Burton to account for the profits, and that appellants had answered, and witnesses were examined on both sides; and that on hearing the cause the 7th May, before the Lord Keeper, he decreed the right of nomination to be in the Bishop and his successors, and respondent Hutchinson to be quieted in the curacy; and appellants, Burton and John Charlwood, the Chapel-warden, to account for the profits received, and to be examined upon interrogatories for the discovery thereof, and to pay costs. Which decree, appellants conceived, deprived the inhabitants of their right of nominating a curate, and destroyed the articles of agreement; and complained that as to the account the decree was ill-founded, because the profits appellants were decreed to account for, ware only voluntary contributions: And insisted that the proofs in the cause were not sufficient to establish a right in the Bishop, and that several of them ought not to have been admitted; and that respondents bill ought to have been dismissed. (John Pratt.)

On the part of respondents it was shown: That appellant Burton and others had exhibited the information in the Exchequer, and that that cause was heard, and the bill dismissed; and that appellant had appealed to the Lords, who affirmed the dismission: And then it was apprehended all matters would have been quiet; but that pending that appeal, Burton and his accomplices had gotten possession of the Chapel, and made use thereof in a profane and riotous manner, and that the Lords ordered the sheriff of Middlesex to raise his Posse [404] Comitatus, and the serjeant at arms, to deliver possession of the Chapel to the respondent Hutchinson, and that he was accordingly restored; but that Burton and his accomplices had notwithstanding, in a clandestine manner, got into the Chapel, and continued in it in a riotous and tumultuous manner, and kept respondent Hutchinson out by force and violence, and had ever since set a guard upon, and in the Chapel; and that the Bishop and respondent Hutchinson had thereupon, exhibited their bill in Chancery against appellant, to establish the Bishop's right of nominating the curate, and to quiet respondent Hutchinson in the curacy, and that appellants