Attorney General v St Cross Hospital
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1855 |
| Date | 04 July 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 303
BEFORE THE LORDS JUSTICES, MR. JUSTICE WIGHTMAN AND MR. JUSTICE ERLE.
S. C. 25 L. J. Ch. 202; 2 Jur. (N. S.), 336; 4 W. R. 310. See Attorney-General v. Earl of Durham, 1882, 46 L. T. 19.
[38] the attorney-general v. st. cross hospital. Before the Lords Justices, Mr. Justice Wightman and Mr. Justice Erie. July 4, 1855; Jan. 31, 1856. [S. C. 25 L. J. Ch. 202; 2 Jur. (N. S.), 336; 4 W. R. 310. See Attorney-General v. Earl of Durham, 1882, 46 L. T. 19.] By a deed of 1446 a rectory was granted as part of an endowment for an almshouse within the precinct of a hospital, already endowed and having a chapel attached to it, reserving to the grantor a right (which was never exercised) of instituting a perpetual vicar of the rectory. By a private Act of 18th Elizabeth it was enacted, that the master of the hospital should not aliene the hospital nor the tithes of the rectory (which was described as adjoining the hospital), but that the church, house and hereditaments belonging to the hospital should be held by the master and brethren thereof for charitable uses. The parish church of rectory had been pulled down at a time which could not be ascertained, and the parishioners had used the chapel of the hospital, in which the baptisms, marriages and burials of the parishioners had been for a long series of years performed. In a suit to carry 304 ATTORNEY-GENERAL V, ST. CROSS HOSPITAL 8 DB a. M. & O. 89. into effect the trusts of the hospital a receiver had been appointed. Upon a motion of the churchwarden of the parish, that he might, notwithstanding the appointment of a receiver, be at liberty to perform the duties of churchwarden in the chapel as the church of the parish, or might be examined pro interesse suo: Held, that a union of the parish with the hospital could not be presumed, and that the churchwarden had no right to interfere with the chapel. Semble, that there is no precedent or principle for the union of the mastership of a hospital with the rectory of a parish. Semble, that if such union could be presumed from custom, a custom which was not shewn to extend to the interference of the churchwarden of the parish with the chapel, would not lead to a presumption of a union authorizing such interference. A churchwarden has no power to provide for the service of his church during vacancy. This was an appeal from a decision of the Master of the Rolls, dismissing or refusing to make an order upon a petition presented by the Rev. Henry Holloway, churchwarden of the parish of St. Faith, near Winchester. The petition prayed that, notwithstanding the proceedings in the above cause, in which a receiver had been appointed, the Petitioner might be at liberty to perform, in the chapel of the Hospital of St. Cross, certain duties as churchwarden of the parish of St. Faith, of which the Petitioner insisted the chapel in question was the parish church; or, that the Petitioner might be examined pro interesse suo. It also prayed that an [39] order of the Master of the Rolls restraining the Petitioner from interfering with the chapel might be discharged. The facts relating to the foundation of the Hospital of St. Cross, and the Almshouse of Noble Poverty will be found fully stated in the reports of the above case in Mr. Beavan's Reports (17 Beav. 435; 18 Beav. 475, 601). The following are those most material for the purpose of the present report:- By a charter dated in 1151 (the original of which was not in existence, but was referred to in the register of the Bishop of Winchester, in 1200), Henry de Blois, Bishop of Winchester, and brother of King Stephen, committed to the guardianship and administration of the master and brethren of the Hospital of St. John of Jerusalem the Hospital of the Poor of Christ, or St. Cross, or Holy Cross, which was founded at an earlier period, without the walls of Winchester, but which he had just founded anew, for the support, maintenance, lodging and clothing of thirteen poor men who should reside there permanently. By an indenture dated the 3d of January 1445, reciting that by the licence of King Henry VI., and with the consent of the master and brethren of the Hospital of St. Cross, Cardinal Beaufort, Bishop of Winchester, had founded within its precincts an almshouse, called the "Almshouse of Noble Poverty," consisting of two priests, thirty-five brethren, and three sisters, under the rule and government of the master of the Hospital of St. Cross, according to certain statutes and ordinances, and [40] had given the master and brethren many possessions, for the better performance by them of certain works of piety annually, as was more fully expressed in a certain indenture made between him and them, and dated the 4th of February then last past, to provide against any casual diminution or dilapidation of those possessions, it was witnessed that the cardinal, by the deed now in statement, granted to the master and brethren the parish church of Crundall. By a charter dated the 24th of July 1446, made by Cardinal Beaufort, after reciting the foundation of the Almshouse of Noble Poverty within the precinct of the Hospital of St. Cross, with the assent of the master and brethren of that hospital, under the rule of the said master, and after reciting the appropriation of the parish church of Crundall to the hospital, it was witnessed, that the cardinal thereby granted, united, connected and incorporated the Church of St. Faith, a hospital called the Hospital of St. John, and certain free chapels to and with the master and brethren of St. Cross and their successors, reserving to the grantor his episcopal rights, synodals and Peter-pence, and the right of institution and induction of a perpetual vicar in the Church of St. Faith, but which right appeared never to have been exercised. It appeared that the parish church of St. Faith had been pulled down some time in the sixteenth century, and that no parish church having been rebuilt, the inhabitants 8DEO.M. 60.41. ATTORNEY-GENERAL V. ST. CROSS HOSPITAL 305 of the parish had been accustomed to use the church or chapel of the Hospital of St. Cross, and to attend divine service there, and that the rites of marriage and burial had been there performed. By a private Act of Parliament, of the 18th of Elizabeth, some leases of the house and premises of the hos-[41]-pital were annulled, and it was enacted, that neither the then present nor any future master or brethren should aliene or lease either the mansion-house of the hospital, or the tithes of the parish of St. Faith, "adjoining to the hospital," or other premises there mentioned; but that the same, and every parcel thereof, might always remain in the proper hands and occupation of the master and brethren, for the maintenance of hospitality and relief of the hospital, and that the church and house, and the manors, lands, tenements and hereditaments whatever of right appertaining, or belonging, or accepted, or reputed, or esteemed to be belonging, or in anywise appertaining to the same house or hospital, should for ever remain the possession and inheritance of the hospital, and that the master and brethren should for ever hold and enjoy the said church, house, manor, land, parsonages, tithes and other the premises for ever, to be employed to the charitable uses therein mentioned. In 1851, the Petitioner obtained a mandamus, directing the parishioners to elect a churchwarden of the parish of St. Faith, and was himself elected churchwarden for the year 1853. On the 1st of August in that year an order was made in the above cause, directing that a receiver should be appointed to get in the rents and profits of the property of the Hospital of St. Cross, and of the Almshouse of Noble Poverty, and to let and manage the property, and to exercise all such rights, powers and privileges as might be essential for the purposes aforesaid, and for the good of the charity. A receiver was appointed accordingly, and afterwards, on the 7th of May 1854, Mr. Holloway, who had given [42] previous notice of his intention of so doing, attended in the chapel of the hospital, and when the deputy of the chaplain, appointed by the Master, came into the chapel to perform divine service, Mr. Holloway requested him to produce hia licence from the bishop to act as curate. He replied, he had no such licence, but a mere authority from the bishop to act iu the chaplain's absence. Mr. Holloway, then professing to act as churchwarden of St. Faith, prevented the deputy.from performing the duty and performed it himself. A motion was then made before the Master of the Rolls on behalf of the Attorney-f4eneral, that Mr. Holloway might be restrained by injunction from interrupting or interfering with the performance of divine worship in the Chapel of St. Cross, and from performing, or attempting to perform, divine service in the chapel. His Honour, on the 14th of June 1854, made an order upon this motion (18 Beav. (507), directing that Mr. Holloway should be restrained from interfering or interrupting the performance of divine worship in the Chapel of St. Cross, and from himself performing, or attempting to perform, divine service in the said chapel, and from in any manner interfering with the said chapel, or the furniture thereof until the Court should further order; but Mr. Holloway was to be at liberty to take any proceedings in any Court he might be advised, to try the question raised by him, or to establish any rights claimed by him as churchwarden of the parish of St. Faith. Mr. Holloway then presented the present petition, stating among other things, as circumstances from which the union of the mastership of St. Cross with the parish [43] of St. Faith might be presumed, the following facts : That in 1291, the mastership was rated as an ecclesiastical benefice by Pope Nicholas IV. That in 1349, William Edgington, Bishop of Winchester, collated his nephew to the...
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