APPENDIX I.

QUEEN'S BENCH DIVISION.

(_Before_ LORD COLERIDGE _and_ MR. JUSTICE MATHEW.)

THE QUEEN V. HARDING, VICAR OF BECKENHAM.

This case raised the question whether, in new parishes under the Church

Building Acts, it is necessary that Churchwardens shall be residents in

the parish or whether it is enough that they are rated occupiers. The

question had arisen under these circumstances. There was a new Church

built and consecrated in Beckenham, Kent, in 1875, and by an Order in

Council in 1878 a district was constituted and annexed to it under the

Church Building Act, 59 Geo. III, cap. 134, sec. 16, constituting a

"district chapelry." In 1885, on the death of the Incumbent, all the

fees of the district became due and payable to the Minister of the new

Church, and then, by the operation of Lord Blandford's Act (19 and 20

Vict., cap. 104), the district became a separate parish for

ecclesiastical purposes; and the question was what effect this had as to

the election of Churchwardens. Under 8 and 9 Vict., cap. 70, sec. 6, it

was provided that "two fit and proper persons should be annually elected

Churchwardens, they residing within the district;" and if that statute

applied, it was admitted the Churchwardens must be resident. But it was

disputed whether it did apply, or whether at common law Churchwardens

must be resident. In Lord Blandford's Act it is provided, in sec. 14,

that wherever and as soon as banns of marriage are authorised to be

published in a consecrated Church or Chapel to which a district belongs,

and the Incumbent is by such authority entitled, for his own benefit, to

the fees arising from the performance of such services, then such

district shall become and be a separate parish for ecclesiastical

purposes, as is contemplated in 6 and 7 Vict., cap. 37, sec. 15, and all

the provisions of the same shall apply; and then, under that Act, sec.

15, when any Church or Chapel shall be built, etc., such district shall

from and after consecration be deemed to be a new parish for

ecclesiastical purposes. This, however, did not in terms, it will be

seen, deal with the present question, and appeared to leave it open, and

so it will be seen it was discussed in the alternative on the ground that

at common law Churchwardens must be resident, and that is not altered by

one Act, and is re-enacted in the other. However, in the present case it

appeared that it had not been so understood, and on April 25, 1889, when,

at Easter, two Churchwardens were chosen for the new district parish of

Christ Church, Beckenham, one of them was a gentleman who had been chosen

in previous years, and who is not a resident, though he is a rated

occupier in the parish. The gentleman in question, a Mr. Matthews, was

elected by a majority of three; no objection was taken at the time, but

afterwards his opponent, a Mr. Hayland, desired to raise the objection,

and on June 24th last obtained a rule _nisi_ for a _mandamus_ to the

vicar to hold a new election of churchwarden on the ground that the

election of Mr. Matthews was invalid, as he was not a resident in the

parish, he having premises there, a "store" and some stabling for which

he was rated, but not living in the parish. The case now came on to be

argued.

Mr. Dibden appeared for the applicant.

Mr. Jeune, Q.C. (with Mr. Houghton), appeared on the part of the vicar to

show cause.

Lord Coleridge said, in giving judgment, that the party elected was not

entitled to hold the office. The effect of the statute was that the new

parish was to be treated for all purposes as the old one--that it was to

be subject to the same law. Now, it was necessary under the old law that

churchwardens should be living in the parish. This gentleman was not so;

and therefore was not under the old law "a fit and proper person" to hold

the office of churchwarden. The Churchwarden had to discharge various

duties which required knowledge of the parish and parishioners. It was

said that there were authorities to the contrary in the Ecclesiastical

Courts; but speaking of them with the utmost respect, those were

ecclesiastical cases, and this was a common law case--that is, a case to

be decided by the common law--and he did not think that by the common law

a party not living in the parish, and perhaps living at a distance, was

qualified to be elected, and, if elected, bound to serve the office of

churchwarden. It appeared to be clear, rating would not be enough. It

was admitted that there must be some kind of occupation equivalent to

actual residence, and in the present case there was nothing of the kind.

No doubt the parishioners were glad to have a respectable gentleman to

fill the office. No doubt the word "residence" had received under

different statutes different interpretations, the sense being necessarily

different. Sometimes it meant where a man could be found during the day;

sometimes it meant where he slept or lived; and for some purposes perhaps

this gentleman might be deemed a resident, but for this purpose it was

necessary that he should live in the parish, be acquainted with the

parishioners, and thus be able to exercise the duties of his office,

which were to be personally exercised. The rule for a _mandamus_ to the

vicar, therefore, must be made absolute.

Mr. Justice Mathew concurred.

Rule absolute for a _mandamus_.

From the _Times_, Nov. 29th, 1889.

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