Fitzgerald v Champneys

[31] fitzgerald v. champneys. July 15, 16, 17, 1861. [S. C. 30 L. J. Ch. 777 ; 7 Jur. (N. S.) 1006 ; 9 W. E. 850. See Thorpe v. Adams, 1871, L. B. C. P. 135; Garnett v. Bradley, 1878, 3 App. Cas. 968; Stewart v. West Derby Burial Board, 1886, 34 Ch. D. 334 ; In re Smith's Estate, 1887, 35 Ch. D. 595; Baird v. Mayor, &c., of Tunbridge Wells [1894], 2 Q. B. 880; [1896], A. C. 434; Hm-nsey District Council v. Smith [1897], 1 Ch. 865.] Statutes, Interpretation of. General Acts. Special Acts. Local Acts. Church Building Acts. 58 Geo. 3, c. 45. 59 Geo. 3, c. 134. 2 & 3 Viet. c. 49. 14 & 15 Viet. c. 97, sec. "21. 19 & 20 Viet. c. 104. Order in Council Ultra Fires. Parishes. District Churches or Chapels. Marriages and Burials. Fees. St. Pancras. The rule of construction, that a General Act of Parliament does not repeal or affect a prior Special Act of Parliament without express words of reference applies to the Church Building Acts. Therefore the Local Act, 56 Geo. 3, cap. xxxix., for regulating the ecclesiastical arrangements of the parish of St. Pancras, was held not to be affected by the 2 & 3 Viet. cap. 49. And an Order in Council purporting, under the third section of the latter, with the consent of the bishop alone, upon the representation of the Ecclesiastical Commissioners, to order the assignment of a district to a parochial chapel built under the former Act : Held, ultra vires. The insertion in a General Act of Parliament of a saving clause, providing that the Act shall not apply to a special case which had previously been regulated by a Special Act of Parliament not otherwise referred to, will not prevent the application of the rule of construction mentioned above. The Church Building Act, 14 & 15 Viet. cap. 97, sec. 21, explained ; vide infra, p. 60. The bill was filed by the Eev. John Fitzgerald, the minister of Camden Chapel, in the parish of St. Pancras, Middlesex, styling himself, and claiming to be, "the incumbent of the new parish or district of Camden Town, in the county of Middlesex," against the Eev. William Weldon Champneys, the incumbent of the parish of St. Pancras, with a view to establish an exclusive right claimed by the Plaintiff, as incumbent of such alleged new parish, to [32] publish banns of matrimony, and to solemnize marriages between persons usually resident in such alleged parish, and to receive the fees for his own use. In the year 1816 the parish of St. Pancras contained, in addition to the then parish church, a parochial chapel, called Kentish Town Chapel. In that year, and subsequently, various Local Acts of Parliament were passed for regulating the ecclesiastical affairs of the parish. The first of these Local Acts (56 Geo. 3, cap. xxxix.) was intituled " An Act for Building a New Parish Church and a Parochical Chapel, in the Parish of St. Pancras, .and for Other Purposes Eelating Thereto." It began by reciting that the parish of St. Pancras had of late greatly increased in population ; that the then parish church and parochical chapel (Kentish Town Chapel) were inadequate to the accommodation of the inhabitants; and that it would be of great convenience to the inhabitants, if 2J. & H. 33. FITZGERALD V. CHAMPNEYS 959 a new parish church were erected on a larger scale and in a more central situation, and also if a new parochial chapel were erected within the parish. Then, by the first section, certain persons in the Act named and their successors were appointed trustees for putting the Act into execution ; by the 21st section the said trustees were empowered to 'purchase lands within the parish for the purpose of erecting thereon a new parish church and a parochial chapel; by the 38th section the trustees were required to cause to be erected on some part of the lands so purchased a new church and a chapel in manner therein mentioned ; and by the 42d section it was enacted that such new church, when built, completed and consecrated, should from thenceforth be for ever called and known by the name of, and should to all intents and purposes be, " the parish church of the parish [33] of St. Pancras, in the county of Middlesex;" that divine service, the solemnization of matrimony, burial of the dead, and all other matters and things whatsoever which were or of right had been used to be celebrated, solemnized, administered, had, done or performed, in the parish church should, after the consecration of the new church, be celebrated, &c., in such and the like manner in the new church and vaults under the same, any law, statute, usage or custom to the contrary notwithstanding. By the 43d section it was enacted that the then vicar of the parish should be the minister of the new church, and that, from and after the death or avoidance of the then vicar, the person, and his successors respectively, to be nominated and appointed as therein mentioned to be the minister and ministers of the new church should, after such nomination and appointment, be ministers successively of such new church, and should have and enjoy such oblations, mortuaries, Easter offerings, glebes, tithes, profits, commodities and other ecclesiastical dues and duties arising within the parish as the then vicar was entitled to have and enjoy. By the 44th section it was enacted that, after the new church should be consecrated, the original parish church should be known by the name of and be " The Parish Chapel of the Parish of St. Pancras," and that the usual divine service should be had therein, and also such other duties as the vicar of the parish for the time being should think fit to direct and appoint, except only the solemnization of matrimony, and the publication of banns of marriage, and otherwise as thereinafter mentioned. By the 45th section it was enacted that, after the said new intended chapel should be completed and consecrated, the same should from thenceforth and for ever thereafter be called and known by the name of " Camden Chapel in the Parish of St. Paucras," and that the usual divine service should be had and performed therein, and also such other ecclesiastical duties as the vicar of the parish for the time [34] being should think fit to direct or appoint, except only the solemnization of matrimony, and the publication of banns of marriage, and otherwise as in the Act afterwards mentioned. By the 46th section it was enacted that, after the new parish church should have been completed and consecrated, and also after the chapel so to be erected should have been consecrated, it should be lawful for the vicar of the parish for the time being to nominate under his hand and seal, to and for the approbation of the Dean and Chapter of St. Paul's, or to the person for the time being entitled to the advowson of the church of the parish, and having the right of nominating and appointing the minister to the then parish church, two fit persons, being in priest's orders and producing the customary testimonials, and who should reside within the parish, to be licensed as assistant ministers to officiate in the then church, by that Act directed to be called "the parish chapel," and in the chapel so to be erected ; and so toties quoties. The 47th section was as follows :-" That, for the maintenance and support for the time being respectively of such minister to the present church, to be called 'the parish chapel,' and also of the minister to the said chapel so to be erected, the said trustees shall, by and out of the fees to be received and the rates directed to be made under and by virtue of this Act, yearly, and every year, well and truly pay, or cause to be paid, to each of such ministers or curates respectively for the time being, any sum not less than 150 nor more than 200 per annum, without any deduction or abatement whatsoever." By the 48th section it was enacted that the ministers of the chapels, or the vicar when he should see fit, should read prayers and preach in the chapels on the days and at the times therein mentioned, and also should perform such other duties as the vicar of the said parish for the time being should think fit to direct or appoint, except the solemnization of 960 FITZGERALD V. CHAMPNEYS 2 J. & H. 35. matrimony and publication of banns of marriage, and otherwise [35] as thereinafter mentioned. By the 49th section it was enacted that no christening or christenings should, at any time, be solemnized within the said chapels respectively without the special leave of the vicar previously obtained; but all such christenings should, in every instance, be performed (unless such leave were obtained) in the new church as theretofore performed in the then parish church. And by the 50th section it was enacted that the vicar, churchwardens, clerk and sexton of the parish for the time being should respectively have, receive, take and enjoy the like burial fees, dues and profits in respect of the burials, monuments, tombs arid other stones to be had, erected or placed within the intended church, and chapels and vaults, as were then payable to the vicar, &c., in respect of the burials, &c., within the then church or burial-ground of the parish. Subsequently to the passing of this Act, and before the passing of the second Local Act with...