The Rev. Walker king against The Rev. William Frederick Baylan

JurisdictionEngland & Wales
Judgment Date01 January 1831
Date01 January 1831
CourtCourt of the King's Bench

English Reports Citation: 109 E.R. 969


The Re
Walker king against The Rev. William Frederick Baylan

S. C. 9 L. J. K. B. O. S. 131. Referred to, Attorney-General v. Durham, 1882, 46 L. T. 19.

[761] the key. walker king against the eev. william frederick baylay. 1831. King Henry the Eighth by his letters patent erected and refounded the cathedral church of Eochester, and appointed therein a chapter, consisting of a dean and six prebendaries, as well as other functionaries and officers not of the chapter, and directed that the dean should appoint the inferior officers ; reserving to the King, his heirs and successors, the right of nominating the dean and six prebendaries, and their successors, as vacancies occurred. King Charles the First by his letters patent granted to A., archdeacon of Rochester, and his successors K. B. xxxvin.-31* 970 KING V. BAYLAY 1 B. & AD. 762. the first canonry or prebend which after the date of the letters patent should become vacant by death, resignation, &c., and that the said prebend or canonry should be united and annexed to the archdeacon and his successors. In 1639 A. was admitted to the said prebend; and he and his successors, being archdeacons, had from that time till 1827 held that prebend, when B., the last archdeacon, died. Each of them was collated and inducted to the archdeaconry, and instituted and inducted to the prebend, separately and distinctly. When the last archdeacon died, W. was bishop, and by him C. was collated and admitted to the archdeaconry, and also instituted to the prebend, but he had not been inducted into either at the time of the bishop's death in February 1827. On the 12th of June 1827, the see continuing vacant, another clergyman, D., was presented by the Lord Chancellor to the prebend by letters patent under the Great Seal, and he was inducted thereto on the 16th of June 1827. On the 27th of June, the see being still vacant, King George the Fourth granted the archdeaconry to C., habendum for life, with all profits, pre-eminences, &c. thereto belonging; and on the 14th of July following, C. was duly inducted into the archdeaconry : Held, first, that the prebend being an ecclesiastical benefice, and not a mere office, the Crown might alienate it. Secondly, that King Charles the First might lawfully annex it to the archdeaconry, the archdeacon being a corporation sole, and also a spiritual person capable of discharging all the duties and exercising all the functions belonging to a prebend, and that the letters patent were sufficient for the purpose of annexing it, though the annexation was only of that prebend which should first become vacant. Held further, that C. was entitled to the prebend, and not D.; because an annexation once made cannot be severed, and because C. became prebend in fact, as well as in law, by his institution and induction into the archdeaconry, and that the prior institution and induction of D. to the prebend was wholly void. [S. C. 9 L. J. K. B. 0. S. 131. Eeferred to, Attorney-General v. Durham, 1882, 46 L. T. 19.] This was an action of assumpsit on three feigned issues: first, whether a certain prebend in the cathedral church of Rochester had been and was lawfully annexed and united to the archdeaconry of Rochester; secondly, whether the said Walker King, as archdeacon of Rochester, was entitled to the said prebend; thirdly, whether the said William Frederick Baylay was entitled to the said prebend. The cause came on to be tried before Lord Tenterden C.J. at the sittings after Hilary [762] term 1829, when a verdict was found for the plaintiff on all the issues, subject to the opinion of the Court on the following case :- By a statute made in the thirty-first year of Hen. 8, c. 9, "authorizing the King's Highness to make bishops by his letters patents," it was enacted, that the King should have power to declare and nominate by his letters patents, or other writings to be made under his Great Seal, such number of bishops, such number of cities, sees for bishops, cathedral churches, and dioceses, by metes and bounds, for the xercise of their episcopal offices and administration as should appertain, and to endow them with such possessions, after such manner, form, and condition as to him should be thought necessary and convenient; and also should have power to make and devise translations, ordinances, rules, and statutes concerning them; and further, to do every other thing which he should think requisite for the good perfection and accomplishment of his most godly and gracious purposes touching the premises, or any other charitable or godly deeds to be devised by him concerning the same; and that all such translations, nominations, foundations, ordinances, statutes, rules, and all other things which should be devised and expressed by his sundry and several letters patents, or other writings under his Great Seal, touching the premises, or any of them, or any circumstances or dependencies thereof necessary and requisite for the S erfection of the premises, should be as effectual, to all intents and purposes, as if one by the authority of Parliament. By virtue of this statute, Henry VIII., on the 20th of June, in the thirty-third year of his reign, by his letters patent under the Great Seal, erected and refounded [763] the cathedral church of Rochester, and appointed therein a chapter, consisting of a dean and six prebendaries, as well as other functionaries and officers not of the chapter. The dean and chapter were, by the same letters patent, incorporated with IB. & AD. 761. KING V. BAYLAY 9?1 the usual powers; and the King declared therein his intention of promulgating a body of statutes for the governance of the said dean and chapter, in an indented deed to be thereafter made; but in the same letters patent the mode of election and appointment to the six prebends was provided for as follows:- " Volumus etiam et per prsesentes concedimus prsefato decano et capitulo dictse ecclesise cathedralis Christi et Beatse Maries Virginis EofFensis et successoribus suis, quod decanus ecclesise cathedralis illius pro tempore existens omnes et singulos ecclesise ejusdem cathedralis inferiores offieiarios et ministries, ac alias prsedictse ecclesiss cathedralis Christi et Beatse Mariss Virginis Eoffensis quaseunque personas, prout easus sive causa exiget, faciet constituet et admittet et acceptabit de tempore in tempus in perpetuum, et eos et eorum quemlibet sic admissos vel admissum, ob causam legitimam non solum corrigere, sed etiam deponere et ab eadem ecclesia cathedrali amovere et expellere possit et valeat: salvis nobis et hseredibus et sueces-soribus nostris titulo jure et auctoritate decanum ecclesiss cathedralis prsedictse, ac prsedictos sex prebendaries et successores suos, ae sex pauperes ibidem, ex liberalita'te nostra, nominandi assignandi et prseficiendi, qualitercunque et quotiescunque ecclesise prsedictse cathedrali de decano et prsebendariis vel pauperibus prsdietis sive eorum aliquo per mortem vel aliter vacare contigerit, per literas nostras patentes de tempore in tempus [764] ordinare prseficere et prsesentare (a) aliquibus in pressentibus supra-dictis inde in contrarium non obstantibus." Certain commissioners, subsequently appointed by Henry VIII., by a certain writing under their hands, but not contained in an indenture, nor under the Great Seal, bearing date the last day of June, in the thirty-sixth year of his reign, delivered certain statutes for the good government of the said cathedral church. In one of these, "de qualitatibus, electione et admissione eanonieorum," it was ordained, in the King's name, " ut quotiescunque contigerit aliquem cauonicorum prssdictss ecclesise per mortem, resignationem, privationem, cessionem, vel alio quovis modo ab ecclesia nostra recedere amoveri aut expelli, ille pro canonico habeatur et acceptetur quern nos et successores nostri nominandum ac eligendum perque literas patentes magno sigillo nostro aut successorum nostrorum sigillatas episcopo Koffensi prsesentandum esse duximus." It then went on to prescribe what description of persons should or not be eligible. A form of oath was also given, by which the canon, on his admission, swore to maintain the possessions and rights, and observe and cause to be observed the statutes of the cathedral church, to promote its advantage, and if called to any office in the said church, to execute the same diligently. The King reserved to himself and his successors the power of altering these statutes and framing others. Charles the First, on the 6th of December, in the thirteenth year of his reign, caused to be made certain letters patent under the Great Seal, which were in due manner enrolled in Chancery ; and were in substance as follows :- [765] "Hex omnibus ad quos, &c.: salutem. Sciatis quod nos pro meliori supportatione et sustentatione Elizei Surges saerss theologise baccalaurei, modo archidiaconi ecclesise nostrse eathedralis Christi et Beatss Marise Virginis Eoffensis, et suceessorum suorum, archidiaconorum ecclesise ejusdem, de gratia nostra speciali, fec. dedimus et coneessimus, ac per prsesentes pro nobis hssredibus et successoribus nostris damus et coneedimus prefato Elizeo Burges archidiacono predicto et successoribus suis quern eunque eanonieatum sive prssbendam in ecclesia nostra cathedrali Christi et Beatse Marise Virginis Eoffensis primum et proximo post datum presentium post (per) mortem, resignationem, &c. cujuscunque prsebendse ibidem vaeari eontigerit, et ad donationem et dispositionem nostram, hseredum et successorum nostrorum devenerit, si hsec prsesens concessio nostra minime facta fuisset; salvo jure cujuslibet eui aliqua prior concessio de aliqua prsebenda sive canonieatu in ecclesia eathedrali prsedieta per nos antehac facta fuerit; habendum dictam prebendam sive eanonieatum cum pertinentiis prsefato archidiacono Eoffensi et successoribus suis archidiaconis prsedietis in perpetuum...

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