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.