Page:The English Reports v1 1900.pdf/894

and not from the time of the respondent's being instituted and inducted into the vicarage and especially, as it appeared to be the entire laches of the respondent, in not prosecuting his right against Mr. Wilcox, the former impropriator, for at least fourteen years that he was in possession of the rectory; nor had the respondent even made Wilcox, or his representatives, parties to his bill, in order to obtain payment from them for so great a length of time. Neither did the respondent, either by his original or supplemental bill, so much as pretend, that these allowances of corn and money were a charge upon the inheritance of the rectory, into whose hands soever it might come.

It was insisted on below, that though this endowment might not shew a prescriptive right, yet it was not necessarily to be taken as the only original settlement; but that in these ancient transactions, something further might be presumed.—The appellants however hoped, that no such presumption would obtain in the present case; for here was shewn the establishment itself, the time when it commenced, quo jure it was established; and this would very well account for any payments which might have been made, without supposing any thing but what appears. The Bishop's authority, at least in those early times, might do this, without making the charge a lien upon the rectory in all future time; and the respondent, by his bill, had made the two instruments above-mentioned, the sole foundation of his demand.

It was also insisted on below, that the Bishop, by force of the acts 15 Rich. II. c. 6. and 4 Hen. IV. c. 12. had a power to charge the inheritance. But in answer to this it must be observed, that this endowment was made in the year 1239; whereas the act of 15 Rich. II. c. 6. was not made till 1391, and has no relation to any appropriations made before that time; it says only,

That in every licence from henceforth to be made in the Chancery, of the appropriation of any parish church, it shall be expressly contained and compromised, that the Diocesan of the place upon the appropriation of such churches, shall ordain, according to the value of such churches, a convenient sum of money to be paid and distributed yearly of the fruits and profits of the same churches, by those that shall have the said churches in proper use, and by their successors, to the poor parishioners of the said churches, in aid of their living and sustenance for ever; and also, that the Vicar be well and sufficiently endowed.

But if this act had a retrospect, it did not affect the present question; as it only gives the Bishops power to augment with a competent sum, obligatory between the Rectors and Vicars for the time being.—As to the act 4 Hen. IV. c. 12. it ordains, "That in every church appropriated, or to be appropriated, a secular person shall be ordained Vicar perpetual." But how this affected the present question could not be easily seen; for before that act, the religious houses were not obliged to em-[189]-ploy secular clergy, and they might remove whomsoever they had appointed at pleasure. It was therefore hoped, that the decree and the order upon the rehearing would be reversed, or varied; and that the appellant Cooke should only be answerable to the respondent for these arrears, from the time of filing his original bill; and that the other appellant Wilkes should be answerable for the same, only from the time of his becoming the impropriator.

On the other side it was argued (W. Murray, T. Bootle), that at common law the Ordinary, upon all appropriations, was to take care that a sufficient endowment was made out of the parsonage, for the maintenance of the Vicar; and had a power, as Ordinary, to compel the making it out of the parsonage; but proper care not being taken by the Ordinaries that such endowment was made, whereby many Vicars had not sufficient to maintain themselves; the statute of 15 Rich. II. c. 6. was made to prevent the future consequences of such neglect. But this statute not being sufficiently observed, it was afterwards, by the statute of 4 Hen. IV. c. 12, ordained, that the former statute should be firmly holden and kept, and be put in execution, and that all appropriations made contrary to that statute should be void; and that from thenceforth, in every church so appropriated, a secular person should be ordained Vicar perpetual, canonically institute and induct in the same, and convenably endowed by the discretion of the Ordinary, to do divine service, and to inform the people, and keep hospitality there. Now, if an endowment created no charge or lien on the rectory or parsonage itself, but only a personal charge on the rector or impropriator for the time being, it would be very precarious indeed, and the vicar would not have a certain maintenance; because, by the death of the rector or impropriator,