Storie, Clerk, v Charles Richard, Bishop of Winchester
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1850 |
| Date | 25 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 815
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 217. For the written judgment of Wilde, C. J., see 17 C. B. 653.
storie, Clerk, v. charles eichard, Bishop of Winchester. Jan. 25, 1850. [S. C. 19 L. J. C. P. 217. For the written judgment of Wilde, C. J., see 17 C. B. 653.] In quare impedit, the ordinary cannot counterplead the patron's title, by setting up title in the Queen, by lapse.-Where the incumbent of a parish church presents himself to a district church within the parish, created under the statutes 58 G. 3, c. 45, and 59 Gr. 3, c. 134,-the annual value of the two livings exceeding 10001.,--the parish church becomes, under the provisions of the 1 & 2 Viet. c. 106, ss. 4, 11, ipso facto void. Quare impedit. The declaration stated, that whereas John George Storie, the plaintiff, theretofore, and before and until and after the making of the representation and order in council, and the effecting of the division and assignment of the district parish of St. Mary Magdalen, Peckham, as thereinafter respectively mentioned, to wit, on the 16th of April, 1842, and from thence continually until and upon and after the 28th of October, 1843, was seised of the advowson of the vicarage of the church of St. Giles, in the parish of Camberwell, in gross, as of fee and right: And also, before the making of the said representation, and the order in council, and the effecting of the division and assignment thereinafter respectively mentioned, to wit, on the 1st of May, 1842, Her Majesty's commissioners for building new churches, duly caused the said church of [63] St. Mary Magdalen to be built, to wit, under and in pursuance of the provisions of the act of parliament made and passed in the fifty-eighth year of the reign of His late Majesty King George the Third for building and promoting the building of additional churches in populous parishes, and of the act of parliament made and passed in the fifty-ninth year of the reign of His said late Majesty, to amend and render more effectual the said first-mentioned act: And the said last-mentioned church was then, to wit, on the day and year last aforesaid, duly consecrated, to wit, by the said Charles Richard, as, and being, such bishop as aforesaid : And thereupon, and whilst the said John George Storie was so seised as aforesaid, to wit, on the 1st of June, 1842, aforesaid, the said commissioners, having taken into consideration all the circumstances attending the said parish of St. Giles, Camberwell, were of opinion that it was expedient (amongst other things) that an ecclesiastical district should, to wit, under the provisions of the said first-mentioned act, be divided from the parish of St. Giles, Camberwell, aforesaid, and assigned to the said church of St. Mary Magdalen, for the purposes in the said first-mentioned act in that behalf mentioned; and did then, to wit, on the day and year last aforesaid, according to the statute in such case made and provided, represent such opinion to Her Majesty, the Queen, in council; and did state, in such representation, the bounds by which such district was proposed to be described: And the said bishop did then, to wit, on the day and year last aforesaid, consent to the said division and assignment, and did signify such consent under his hand and seal, to wit, at Camberwell aforesaid, in the county aforesaid: And afterwards, to wit, on the 13th of June, 1842, aforesaid, at the court at Buckingham Palace, our sovereign lady the Queen, having taken the said representation into consideration, was pleased, by and [64] with the advice of her privy council, to approve thereof, and to order and direct that the said division and assignment should be made and effected agreeably to the provisions of the statute in such case made and provided : And thereby, then, to wit, on the day and year last aforesaid, the said division and assignment respectively became and were made and effected under and by virtue of the said statutes, to wit, at Camberwell aforesaid, in the county aforesaid : And afterwards, to wit, on the day and year last aforesaid, the said district was duly ascertained and marked out by described bounds, and the description of such bounds was duly inrolled and registered, and notice thereof was duly given, as by the said first-mentioned act required: And thereupon, by force of the said statutes, to wit, on the day and year last aforesaid, such district became and was called " The district parish of St. Mary 816 STORIE V. THE BISHOP OF WINCHESTER 9 C. B.65. Magdalen, Peckham " (being the name given thereto in the instrument so inrolled as aforesaid), and became and was a separate and distinct district parish; and the said church of St. Mary Magdalen, so assigned to such district (being duly consecrated for that purpose,) became and was the district parish church of the said district parish of St. Mary Magdalen, Peckham, for all ecclesiastical purposes, in manner as in and by the said acts respectively provided; and the said last-mentioned church (the same having been built and appropriated as and in the manner aforesaid,) became and was a perpetual curacy, and became, and was considered in law as, a distinct benefice and church, that is to say, a benefice presentative, so far as by the said acts in that behalf provided and enacted, to wit, at Camberwell aforesaid, in the county aforesaid: And the said John George Storie, being, during all the time aforesaid, and remaining, so seised of the advowson of the vicarage of the said church of the parish of St. Giles, Camberwell, as aforesaid (out of which the said district of St. Mary [65] Magdalen, Peckham, had been and was so taken as aforesaid), thereby then became seised, as of fee and right, of the perpetual right of presentation or nomination and appointment of the spiritual person to be the incumbent of, or to serve, the said district church of St. Mary Magdalen, Peckham, in manner as in the said acts respectively in that behalf provided, that is to say, upon and after the death or other avoidance of the said Eev. John George Storie, clerk, the then incumbent of the said parish of St. Giles, Camberwell, or upon and after the voluntary resignation of the said district church by the said incumbent of the said last-mentioned parish, to wit, at Camberwell aforesaid, in the county aforesaid: And the said John George Storie being and remaining so seised of the said advowson of the vicarage of the church of St. Giles, Camberwell, and of the said right of presentation or nomination and appointment to the said district church of St. Mary Magdalen, Peckham, as respectively aforesaid, afterwards, to wit, on the 20th of May, 1843, the said church of St. Giles, Camberwell, duly became and was vacant, to wit, by the resignation of the said John George Storie, to wit, at Camberwell aforesaid, in the county aforesaid,-which said resignation was then and there duly accepted by the said Charles Richard as, and being, such bishop as aforesaid: And thereupon the said John George Storie, being and remaining so seised as respectively aforesaid, to wit, on the 28th of October, 1843, aforesaid, at the parish of St. Giles, Camberwell, aforesaid, in the county aforesaid, presented to the last-mentioned church, being so vacant as aforesaid, or prayed the said Charles Eichard as, and being, such bishop as aforesaid, to admit himself, the said John George Storie, clerk, who, on his own presentation or prayer as aforesaid, was duly admitted, instituted, and inducted into the same, in the time of [66] peace, in the time of our sovereign lady Victoria, the now Queen of Great Britain, to wit, on the day and year last aforesaid: Arid, afterwards, and whilst the said John George Storie was and remained so seised of the said right of presentation or nomination and appointment to the said district church of St. Mary Magdalen, Peckham, the Eev. James Sydney Darvell, clerk,-which said James Sydney Darvell had been and was, at the time of the consecration of the said district church, and the division and assignment of the said district parish as respectively aforesaid, appointed by the then incumbent of the said church of St. Giles, Camberwell, to wit, the said John George Storie, clerk, and licensed, to wit, by the said Charles Eichard as, and being, such bishop as aforesaid as, and to be, the stipendiary curate to serve the said district church,-resigned the stipendiary curacy of the said district church of St. Mary Magdalen, Peckham, to wit, at Camberwell aforesaid, in the county aforesaid; which said last-mentioned resignation was then and there accepted by the said Charles Eichard as, and being, such bishop as aforesaid: And thereupon, to wit, on the day and year last aforesaid, and whilst the said John George Storie was and remained so seised of the said right of presentation or nomination and appointment to the said district church as aforesaid, to wit, on the day and year last aforesaid, the said district church of St. Mary Magdalen, Peckham, had become and was vacant, no spiritual person having ever theretofore been instituted or licensed as the perpetual curate of the said district church, or presented, nominated, or appointed to the perpetual curacy of the said district church: And that it then and there belonged, and now belongs to the said John George Storie to present or nominate and appoint a fit spiritual person to the said district church, so being vacant as aforesaid; but that the said bishop would not permit him so to do, and unjustly hindered him,-[67] wherefore he, the said John George Storie, said he was injured, &c. 9C. B.68. STOEIE V. THE BISHOP OF WINCHESTEB 817 Second plea,-that the said John George Storie ought not to have or maintain his said action against the said bishop, because he said, that, after the passing of an act of parliament passed in the session of parliament holden in the first and...
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