Capel v Child
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 235
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 Tyr. 689; 1 L. J. Ex. 205. Referred to, In re Hammersmith Rent Charge, 1849, 4 Ex. 87; Bonaker v. Evans, 1850, 16 Q. B. 163; Reg v. Canterbury (Archbishop), 1859, 1 El. & El. 562; Reg v. Cheshire Lines Committee, 1873, 3 A. C. 624; Abergavenny (Marquis) v. Llandaff (Bishop), 1888, 20 Q. B. D. 472; Fisher v. Jackson, [1891] 2 Ch. 95.
[558] capel v. child. Exch. of Pleas. 1832.-A bishop issued a requisition under/ 57 Geo. 3, c. 9'J, s. 50, requiring the vicar of W. to nominate a curate with a stipend ; on the ground that it appeared to the bishop, of his own knowledge, that the ecclesiastical duties of the vicarage and parish church of W. were inadequately performed by reason of the vicar's negligence. The vicar appointed no curate, and did not appeal to the archbishop. The bishop, after three months, licensed the Rev. A. B., clerk, as curate of W., with a stipend. The vicar refused to allow A. B. to officiate; upon which the bishop issued a mandate or summons to shew cause why the vioar should not pay the stipend due, arid ultimately proceeded to sequestration :-Held, that the requisition upon which the whole of the proceedings were founded was in the nature of a judgment, and void, as the party had had no opportunity of being heard.-Such a requisition ought to state particular instances of negligence, or shew how the incumbent was negligent.- Per Vaughan and Bolland, Barons, the 5()th section of the 57 Geo. 3, c. 99, does uot apply to the case of a benefice with only one church and no chapel. [S. C. 2 Tyr. 689 ; 1 L. J. Ex. 205. Referred to, In re Hammersmilh Kent Charge, 1S4! , 4 Ex. 87; Bonaker v. Evans, 1850, 16 Q. B. 163; Reij. v. Canterbury (Archbishop), 1859, 1 El. & El. 562; Hey. v. Cheshire Lines Committee, 1873, L. E. 8 Q. B. 349; Wood v. Wood, 1H74, L. R. 9 Ex. 196; Smith v. lietj. 1878, 3 A. C. 624; Aberga-eenny (Marquis) v. Llaiula/(Bixhtyi), 1888, 20 Q. B. I). 472; Fislier v. Jadfcs wi,'ri&911 2 Ch. 95.] Assumpsit for money had and received. At the trial before Lord Tenterden, C. J., at the Summer Assizes, 1831, for the county of Hertford, the jury found a verdict for the plaintiff, with 51. 13s. damages, subject to the opinion of this Court upon a special case, which stated as follows :- The plaintiff is, arid for twenty years and upwards last past has been, vicar of Watford, in the county of Hertford, and in the diocese of the Bishop of London; and during the whole period of his incumbency, the vicarage-house at Watford was his ordinary iplace of abode. The vicarage is a benefice with cure of souls. There is only one church belonging to the benefice, and no chapel. The population exceeds 236 CAPEL V. CHILD 2 C. & J. M. 5000. On the 12th January, 1830, a requisition was issued by the Bishop of London to the plaintiff, in the words following:- " Charles James, by divine permission, Bishop of London, to the Honorable and Keverend William Capel, clerk, vicar of the vicarage and parish church of Watford, in the county of Hertford, and within our diocese and jurisdiction. Whereas, it appears to us of our own knowledge, that the ecclesiastical duties of the said vicarage and parish church of Watford are inadequately performed by reason of your negligence ; we do therefore, under and by virtue of an act of Parliament, made and passed in the 57th year of the reign of his late Majesty King George the Third, intitled, ' An act to consolidate and amend the laws relating to spiritual persons holding of farms, and for enforcing the residence of spiritual persons on their be-[559]-neh'ces, and for the support and maintenance of stipendiary curates in England,' monish and require you to nominate to us a fit person, with a stipend of not less than 751. per annum, to be licensed by us to assist in performing the ecclesiastical duties of the said vicarage and parish church of Watford; further monishing you that, if you shall neglect or omit to make such nomination for the space of three months after this requisition, we shall proceed to appoint a curate according to the tenor of the said act. Dated the 12th day of January, in the year of our Lord 1830, and in the second year of our translation. "JoHN shkitaru, Doputy Registrar." This requisition was served on the plaintiff on the 18th January, 1830 ; it was not founded on any affidavit; and there being no file in the Registry of the Bishop's Court for the reception of such documents, was, in the same manner as other documents of a similar description are usually deposited there, deposited in the said registry on the 19th January, 1830. The plaintiff did not appoint a curate pursuant to this requisition, nor appeal to the archbishop of the province to which the said bishop belonged; and on the 2nd day of July, 1830, the bishop licensed the Rev. Arthur Hubbard, clerk, to the office of stipendiary curate in Watford, by the following license :- " Charles James, by divine permission, Bishop of London, to our beloved in Christ, Arthur Hubbard, clerk, B. A., greeting; We do, by these presents, give, and grant unto you, in whose fidelity, morals, learning, sound doctrine, and diligence, we do fully confide, our license arid authority to perform the office of stipendiary curate in the parish church of Watford, in the county of Hertford, within our diocese and jurisdiction, in reading the common prayers and performing other ecclesiastical duties belonging to the said office, according to the form prescribed in the Book of Common Prayer, made and published by authority [560] of Parliament, and the canons and constitutions in that behalf lawfully established and promulgod, and not otherwise, or in any other manner, you having first before us subscribed the articles, taken the oaths, and made and subscribed the declaration, which in this case are required by law to be subscribed, made, and taken ; and we do, by these presents, assign unto you the yearly stipend of 7ol. per annum, to be paid quarterly, for serving the said cure; and also a further sum of 151. per annum, in lieu of a house ; and we direct that you reside in the parish. In witness whereof, we have caused our seal, which we use in this case, to be hereto affixed. Dated the 2nd day of July, in the year of our Lord 1830. and in the second year of our translation. I ; "JOHN sheppard, Deputy Registrar." The bishop caused a copy of this license to be entered in the registry of the diocese of London, on the 25th day of August, 1830 ; and on the same clay a copy was transmitted by the registrar of the diocese, by the post, to the churchwardens of the parish of Watford. The plaintiff refused to permit Mr. Hubbard, who has been ready to assist in the duty since he was licensed, to act as his curate, though Mr. Hubbard tendered himself for that purpose; and no part of the duty of the benefice has been on account of such refusal performed by him. On the 22nd l('obruary, 1831, the bishop of London issued a mandate or summons to the plaintiff, under his hand and private seal, which, after reciting the monition of 12th day of January, 1830, and license above set forth, concludes as follows :-" And whereas it hath been represented unto us that, on the 2nd day of January last past, the sum of 371. I Os. was due to the said Arthur HuLbard, for half a year's stipend so assigned to him as aforesaid; and moreover that the said Arthur Hubbard, hath made due application to and demand ZC. &J. 561. OAPEL V. CHILD 237 On you for payment of the said stipend so in arrear; but that the same still remains unpaid; and that a difference hath arisen between you and the said Arthur Hub-[561]-bard, touching the said stipend or allowance, or the payment thereof. Now, we do therefore, under and by virtue of the before-mentioned act of Parliament, require you by these presents to appear before us at London House, St. James's Square, in the parish of St. James, Westminster, in the county of Middlesex, within our diocese, on Tuesday, the 1st day of March next ensuing, at 11 of the clock in the forenoon of the same day, then and there to shew cause, if you know or have any, why the said Stipend so in arrear as aforesaid should not bo paid and satisfied, and to hear and receive our determination in the premises. And we do hereby further intimate to you that, if you do not appear at the time and place above-mentioned, or, appearing, do not shew good and sufficient cause, as aforesaid, we shall proceed as by the said act we are empowered. Given at London, the 22nd day of February, in the year of :our Lord, 1831, and in the third year of our translation. " john sheppakd, Deputy Registrar." A duplicate of this mandate or summons was duly served on the plaintiff', who did not attend the bishop pursuant thereto; and, on the 4th day of March, the bishop issued a monition, under his hand and seal, to the plaintiff1; which, after reciting the said monition of the 12th January, 1830, and the licence above set forth, concludes as follows :- " And, whereas a difference having arisen between you and the said Arthur Hubbard touching the said stipend or allowance, or the payment thereof, we did, on or about the 2'2nd day of February now last past, issue our order or mandate, requiring you to appear before us, at London House, St. James's Square, in the parish of St. James, Westminster, in the county of Middlesex, within our diocese, on Tuesday, the 1st day of this present month of March, at 11 of the clock in the forenoon, to hear and receive our determination in the premises. And intimating [562] that, if you did not appear, or, appearing, did not shew good and sufficient cause why the said stipend so in arrear as aforesaid should not be paid and satisfied : we should proceed as by the said act we were empowered. And whereas you did wilfully neglect or refuse to attend at the said time and place, and we did, notwithstanding your absence, hear the...
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