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vestry was freely elected vicar, on the vacancy thereof, Mr.John Davenport," &c. The two churchwardens, and fifteen other persons, were present.

The subsequent entries, which were referred to in the argument, or by the Lord Chancellor, were the following:

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"4th December, 1633. At a general vestry, seventy-nine persons present, it was agreed, that Mr. John Godwin shall be, and was freely elected vicar." "1615, August 1. General vestry: Mr. William Taylor was chosen vicar." Two churchwardens and thirty-eight parishioners were present.

"1660, September 6. General vestry: Mr. William Taylor was again elected vicar, the vicarage being void by act of parliament." Two churchwardens and seventy-five other individuals were present.

Under the date of February 3, 1663, an entry, described as made at a general vestry, stated, that there had been fourteen candidates; that these had been reduced to the number of four, who were each to preach once more; that, one of these four having refused to preach, the number was reduced to three; and that Mr. Sproston was freely elected and chosen by the major part of the parishioners of this parish.

In 1678, there were seven candidates, of whom Mr. Lucas was freely chosen by the majority of the parishioners.

In 1715, there were six candidates; on that occasion the following resolutions were passed at a general vestry, holden on the 4th of August, at which, seventy-four parishioners were present:

"It is resolved at this vestry, that the next vicar chosen shall agree and sign the articles or preliminaries drawn up by the feoffees in trust for the parish.

"Resolved, that those persons that do not pay to the church and poor, shall have no vote for the vicar.

"It is further resolved, that those persons that are in arrears two years to church and poor, at Lady-day last, shall have no vote for a vicar.

"It is resolved, that the vicar be chosen by ballotting, and not otherwise.

"Resolved, that alphabetical lists be taken of all persons paying to church and poor, and a mark be made at each person's name when he votes, signifying that he has voted.

VOL. XIV. NO. III.

"Resolved, that the majority of balloting for six candidates, or so many as shall stand, shall be the vicar."

On the 6th of October, 1715, the churchwardens proceeded, at a general vestry, to the election of a vicar by ballot. Two hundred and fifty-four parishioners were present, and the election fell upon Mr. John Hay, who was accordingly declared the vicar.

After the entry of his election, the three following resolutions appeared in the vestry-book :-" '1st, That the feoffees (in right of the parishioners, and for their sole use and behoof, and not otherwise,) are in law parsons of this parish.-Secondly, That the rights of parsonage vested in the said feoffees being only in trust, (as is aforesaid,) they cannot (in equity) dispose of, or alienate the said rights, neither in whole nor in part; but by the consent and direction of the parishioners in general vestry assembled.-Thirdly, that the parishioners, in general vestry assembled, have an undoubted right to elect their vicar, the feoffees having (in equity) no more power therein than as private parishioners."

Another election took place in January, 1754, when Mr. Webster was chosen vicar. Resolutions, similar to those which were adopted previously to the election of Mr. Hay, were passed in general vestry, with this addition: "That all the candidates be balloted for; and the two candidates that shall have the majority of votes upon the first ballot, be balloted for a second time; and the person who shall have the majority on the second ballot, to be the vicar." Mr. Webster, the candidate who succeeded on the second ballot, had not the greatest number of votes on the first ballot.

In 1790, Mr. Twigg was the only candidate, and was elected without opposition.

In May, 1823, the vicarage having become vacant by the death of Mr. Twigg, nine candidates offered themselves. On the 27th of August, the election took place. The senior churchwarden presided on the occasion, and had the assistance of a civilian as his assessor. Each person, who was admitted as a voter, delivered in a paper, on which was written the name of the candidate for whom he voted, but not

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his own name; and, when the voting was concluded, the ballot papers were counted. It was then declared, that the majority was in favour of Mr. Pratt, he having 97 votes, and Mr. Fayle having 95.

Before the election commenced, the entries relating to the proceedings at the elections of 1715 and 1754 were read over to the voters present. None were permitted to vote, except such as paid poor-rates and church-rates.

The first bill was filed by several of the parishioners and Fayle against the trustees, Pratt, the Archbishop of Canterbury, and the Bishop of London: it prayed a declaration that the pretended election of Pratt was void, and that Fayle had been duly elected, or that a new election ought to take place, with directions to the trustees to execute a proper presentation in favour of Fayle, and an injunction to restrain the Archbishop and the Bishop from inducting Pratt, or from availing themselves of any lapse which might occur during the pendency of the suit.

A second bill was filed by Pratt and several of the parishioners, for the purpose of obtaining a declaration that he was duly elected, and of putting him in possession of the vicarage. The Attorney-General was made a defendant to the second suit.

Mr. Sugden and Mr. Wilson were for Fayle and the other plaintiffs in the first suit:

Mr. Shadwell, Mr. Pepys, and Mr. Garratt, for Pratt and the plaintiffs in the second suit:

Mr. Hart and Mr. Pemberton, for the Trustees.

The Solicitor-General and Mr. Barber, for the Bishop of London.

The case stated in both bills turned merely on the improper admission or rejection of particular votes; but the questions discussed at the hearing were,

First, Whether an election by ballot was valid? Secondly, Whether the right of voting did not belong to all the parishioners, unqualified by the restriction of being rated or paying to the church and poor?

On the first point, it was suggested, that, in Faulkener v. Elger, (4 Barn. and Cress. 449,) the Court of King's Bench had held that voting by ballot was not a legal mode of election,

because it did not afford the means of ascertaining for whom each particular elector voted. Even if such an election were valid at law, still it would be objectionable where there were trustees, who had a right to know whether the person, whom they were called upon to present, was truly the person selected by their cestuis que trust.

The same authority of Faulkener v. Elger, it was said, applied also to the second point; for the Court of King's Bench there held, that, where the right of election was in the parishioners, it was illegal to exclude those who had not paid church-rates.

On the other hand, it was said, that the mode of election by ballot was in itself expedient, as it enabled the electors to exercise their right more honestly and independently than if their votes were given openly. It was by ballot that the Common Council, St. Bartholomew's Hospital, Christ's Hospital, and many other public bodies, who are the patrons of livings, conducted the elections of clergymen to fill vacancies. If the persons who had been admitted to ballot were actually the individuals who had a right to vote, and if none had been improperly excluded, then the election by ballot was the mode which all the parties interested had agreed to adopt; and even though it might render scrutiny impracticable, they would be bound by the result. It was competent to those who were the cestuis que trust of an advowson, to agree, that their trustee should present the person who should have the majority of votes, ascertained in any given way. The practice of the parish, and the course of proceeding which was followed at the last election, proved or implied the existence of such an agreement. In the Clerkenwell case, (Attorney General v. Forster, 10 Vesey, 335; Attorney General v. Parker, 3 Atkyns, 576,) the doctrine of presumed common consent on the part of the electors was deemed sufficient to support an election, which, in itself, might have been open to objection.

The same case was an authority for confining the right of voting to such parishioners as paid to church and poor. There the impropriate rectory of Clerkenwell, having been purchased

by the parish, was conveyed to the churchwardens for the use of the parishioners and inhabitants for ever; and, by a decree of the Court of Exchequer, the right of nomination to the curacy was declared to be in the parishioners and inhabitants paying rates and assessments to the church and poor. There was no attempt to

The following is a statement of the Clerkenwell case, in the Court of Exchequer:

ATTORNEY GENERAL v. RUTTER.

SELLON V. NICHOLLS.

John Doughty, clerk, was elected in 1745, and died in June, 1768, whereby the curacy became vacant; and the Reverend William Sellon, and the Reverend Christopher Nicholls, offered themselves as candidates. The churchwardens proceeded to an election; and, soon after the poll was opened, a great number of persons insisted, that all householders, who rented houses of 40s. a year or upwards, should vote, whether they had paid to the parish rates or not. The votes of these persons being refused by Rutter (one of the churchwardens), Roger Wright (the other churchwarden) protested against Rutter's proceedings, and required a poll to be taken in the vestry, at which all the parishioners and inhabitants within the parish should vote. That demand not being complied with, Wright withdrew into the body of the church, and opened poll-books for the two candidates; causing proclamation to be made, that all parishioners and inhabitants of the parish, who rented houses of 40s. a year and upwards, (there being no house within the parish let at a rent under 40s. a year), and who were desirous to vote for either of the candidates, might come to the books and poll, and that their votes should be received. Against this proceeding Rutter protested, and, thereupon, Wright, in favour of Christopher Nicholls, opened a poll in the body of the church, and admitted all housekeepers of 40s. a year to vote. Rutter, the senior churchwarden, continued to take the poll in the vestry-room, in the mode prescribed by certain rules for the conduct of the election, and as to the qualifications of voters, which had been previously passed by the churchwardens according to what appeared to them to be the usage of the parish, and most fit and just for the government thereof. Each of the churchwardens entered his protest against the proceedings of the other. Finally, Roger Wright declared that Christopher Nicholls, having the majority of legal votes, was duly

impeach that decision of the Court of Exchequer, when the matter, half a century afterwards, came into the Court. In the present case, this money with which the advowson was purchased came from the parish funds;

elected, and presented him to the Bishop for license; while, on the other hand, Rutter insisted, that William Sellon had the majority of legal votes, and presented him to the Bishop to be licensed.

In Michaelmas term, 1768, the AttorneyGeneral (William de Grey, Esq.), at the relation of several parishioners and inhabitants, on behalf of themselves and all other the parishioners of the parish resident in the same, and all other the inhabitants of the same being householders, exhibited his information in the Court of Exchequer against the churchwardens, the heir of the surviving trustee of the rectory, and the two candidates. The prayer was, that the election of Nicholls might be established, and the election of Sellon declared void, and that Weston, the heir, might execute a nomination of Nicholls, or certify his election to the Bishop of London, in order that he might be licensed to preach as minister or curate of the parish, and to officiate in the cure; or, if the Court 'should be of opinion that both the elections were void, that the churchwardens of the parish for the time being might be directed to proceed to a new election, and that the right of voting at such election, and how such election should be carried on for the future, might be settled and determined by the Court, and that the trusts of a certain indenture of bargain and sale might be carried into execution by the decree of the Court.

In Hilary term, 1769, William Sellon exhibited his bill of complaint in the Exchequer against Nicholls, Wright the churchwarden, Weston, and the Bishop of London, praying that the election of him, Sellon, might be established, and that it might be declared that he was duly elected, and that the pretended election of Nicholls was void; that the defendant, Weston, in case it should be necessary for him to sign the certificate of the plaintiff's nomination, might be decreed to sign the same; and that Nicholls and Wright might be decreed to withdraw the caveat which they had entered against the plaintiff's license to perform divine service in the said church.

The several defendants to the information and to the bill put in their answers; and, both causes being respectively at issue, divers witnesses were examined. The causes came on to be heard together, by

and, though the deeds did not expressly define the class of persons for whose benefit it was to be holden, long usage had ascertained, that the right of nomination was in those who paid to the church and to the poor. These were the only persons admitted to the general vestry; and, independently of the resolutions declaring the right, no election appeared ever to have been made, except by individuals of that description.

The Lord Chancellor.-I take the case before the King's Bench to be a decision which amounts to this :—that, where the right of nominating a perpetual curate was given to the parishioners, a part of the parishioners could not, by their vote or declaration, so narrow the right of voting, as to exclude those who did not pay church rates from sharing in the election. That authority, therefore, seems to apply directly to what has been done in the present instance. Here there is a trust, which, upon the documents, appears to be a trust for the parishioners at large; and the practice of voting on the more confined scale is not uniform, the mode of limitation having varied from time to time. First, the right of voting was confined to those who paid

order, on the 21st of December, 1769; and on the 28th of February, 1770, the Court made a decree, by which it was declared, that the right of election of minister or curate of the said parish was only in parishioners and inhabitants of the parish paying rates and assessments to the church and poor, and that the elections of the defendants, Sellon and Nicholls, were void; and it was ordered, that the information, so far as it sought to establish the election of Nicholls, should be dismissed, without costs, as against the defendants therein named, except as to the defendant, Weston, and that the bill of complaint, so far as it ought to establish the election of William Sellon, should be dismissed, as against all the defendants, except the Bishop of London, without costs; and it was further ordered and decreed, that the churchwardens and overseers of the parish should proceed to a new election of minister or curate of the said parish, according to the right therein before declared, on Tuesday, the 20th day of March then next; and that, in order to such election, the churchwardens should cause a public notice to be given in the church during divine service

to church and poor; and, next, those were excluded, who, though liable to pay to church and poor, had been for two years in arrear.

In the same case, the judges of the Court of King's Bench are of opinion, that, with reference to such an object as they had then under consideration, voting by ballot is not a legal mode of election. In this country there are many matters of great importance which are regulated by ballot; some of them, under the authority of the legislature; others, in which the parties must be taken to have bound themselves by contract to that mode of electing, whatever be the inconveniences to which it may lead. But, supposing this trust to have been created recently before the election, and the parishioners, either in a wide or in a more limited sense, to be the persons who have a right to recommend a vicar to the trustees, and to call on them to give effect to their choice, I am quite sure that the trustees would have a right to say, "Shew us that the majority of our cestuis que trust have imposed on us the duty of presenting this or that clerk;" and if the cestuis que trust have proceeded in such a way as not to be able to

of the said election, on Sunday, the 11th of the said month of March, and should cause the same notice to be repeated in like manner on Sunday, the 18th of the same month; and it was further ordered and decreed, that the churchwardens should forthwith, after the election should be closed or finished, certify the name of the parson who should be elected minister or curate of the parish by a majority of votes, so qualified as aforesaid, to the defendant Weston, who was thereupon to make and execute the usual nomination of the parson so elected to the Bishop of London, for a license to officiate and preach in the said church as minister or curate of the said parish, and therefore the said defendant Weston was to have his costs in the said causes, and the Bishop of London was to have his costs in the last mentioned cause, according to the course of the Court; and it was further ordered and decreed, that the Attorney-General's information and William Sellon's bill should be, and the same were thereby, retained as to all other matters therein contained, with liberty for all parties to apply as there should be occasion.

make out that point, this Court would not interfere to compel the trustees to present.

On the other hand, it is unquestionable, that, in cases of this nature, courts of equity have taken upon themselves to infer, that there have been binding agreements with reference to such subjects as we are now dealing with, which, antecedently to their being actually made, it would have been very difficult to have said, would be binding. Can the case be brought to this-that, looking at the transactions of the parish for a great many past years, the effect of their acts can be stated to be, that the cestuis que trust of the advowson have agreed among themselves, that they shall all be bound to represent to the trustees that they have duly chosen A. B. to be their clerk, and that no one of them shall take any objection to the mode of appointment by ballot, or to its result? For, unless it can be inferred from long antecedent usage, that all the cestuis que trust have undertaken with each other, that what is declared to be the majority, as collected from the ballot glasses, is a result which none of them shall dispute, I do not see how an election by ballot can be supported. And, where no express contract is made out, the evidence of antecedent usage, from which a binding contract of such a nature is to be inferred, must be very clear.

It must be observed, that it is one question, whether the past election by ballot is valid, and quite a different question, whether an election by ballot on a future occasion would be good. For, supposing that the past election could be maintained on the ground of agreement among the cestuis que trust, yet, in the very next election, any parishioner would have a right to say, that the election should not be by ballot, but should take place on the common law principle, by poll, or a show of hands. It would be a bold thing to say, that the parish of to-day could bind the parish of to-morrow to deviate from the old common law mode of election.

The deeds, by which the advowson was conveyed, did not originally imply the necessity of any election; but it is clear, that, from a particular period,

there has been a nomination to the office of vicar by some sort of election.

The proceedings previously to 1715 throw very little light upon the question of usage. (His Lordship read the entries.) Looking to what the usage was, previously to 1715, it would be extremely difficult to say, that there is any thing in the expressions found in these entries, which would authorise us in limiting the term "parishioners" to persons paying to church and poor. in 1715, certain resolutions were adopted, by which it was ordered, among other things, that the voting should be by ballot, and that none should vote who did not pay to the church, or who were in arrear for two years. Certain conditions also were required to be signed by the candidates; and Mr. Hay, who was then elected, subscribed them. I have inquired, whether, on the present occasion, there was any attempt to impose articles or conditions on the candidates; and I am glad to learn that no such attempt was made. If any candidate had signed, or agreed to sign, such articles or conditions, I would not entertain the suit; this Court would not assist him, nor would it execute the trust at his instance.

Upon the vacancy in 1754, the vestry adopted the resolutions of 1715, but they further prescribed a particular mode of balloting. The ballot was to be, first, among all the candidates; then, the two who stood highest on that ballot were to be taken, and there was to be a second ballot, as between those two. The result was, that the gentleman, who had the greatest number of votes on the first ballot, was, on the second ballot, reduced to the second place; and he who would have been the successful candidate, had there been one ballot only, was not elected.

The election in 1823 was not made by such a ballot as that of 1754. In 1790, there was only one candidate, so that the mode adopted in 1754 did not apply to that case. The latest ballot that had obtained under circumstances similar to those of 1823, was that of 1754; and the proceedings at the election of 1754 were read over at the election of 1823. A person, who knew what the former mode of ballot

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