8 & 9 Vict. c. 70. s. 17. In this respect the perpetual curate stands in the position of the old vicar after endowment, as required by stats. 15 Ric. 2. c. 6., 4 H. 4. c. 12. In Cripps' Law of the Church and Clergy, p. 502, 5th ed., it is said, "The freehold of the churchyard is, to a qualified extent, in the minister * * * The soil and profits belong to him, and he might make a lease thereof; which profits appear to be the feed, and trees growing in the churchyard, or, in fact, any crop which it may bear;" [Blackburn J. Perpetual curates are in many respects like vicars, but there is a difference between them (a). Cockburn C. J. "Minister" is the term used by Mr. Cripps.] That cannot possibly apply to a lay rector. [Blackburn J. In Rogers' Eccl. Law, 237, it is said, "If in the same church there be both rector and vicar, it may be doubted to which of them the trees or grass of the churchyard belong. But it seems they shall belong to the rector, unless in the endowment of the vicarage it shall be otherwise assigned." The right of the rector to cut down trees in the churchyard is limited by stat. 35 Ed. 1. st. 2. to repairs of the church; Cripps, p. 503. The interference of the laity with those trees is denounced by a Provincial Council; 1 Burn's Eccl. Law, 347, 9th ed., Lyndw. Provinc. 267, ed. 1679. A perpetual curate endowed under stat. 1 G. 1. st. 2. c. 10. cannot be removed without cause; 2 Burn's Eccl. Law, 55 a, 9th ed., and he has the same interest in his curacy as if he had been presented, instituted and inducted; Cripps, 163, 5th ed. Pinder, contrà.-The finding in the special case that during living memory the lay impropriators of this (a) See now stat. 31 & 32 Vict. c. 117. 1868. GREENSLADE V. DARBY. 1868. benefice and their tenants have enjoyed the right of GREENSLADE depasturing the churchyard with sheep is evidence from V. DARBY. which a jury would presume a user ever since the time of legal memory. In Strachy v. Francis (a) Lord Hardwicke says, "A rector may cut down timber for the repairs of the parsonage house or the chancel, but not for any common purpose; and this he may be justified in doing under the statute of 35 Ed. 1. stat. 2., intitled Ne rector prosternat arbores in cœmeterio. If it is the custom of the country he may cut down underwood for any purpose, but if he grubs it up, it is waste.” The state of the vicar is not to be confounded with that of the perpetual curate. The former must be endowed, the latter is not necessarily so. This question is not affected by stat. 1 G. 1. st. 2. c. 10., per Coleridge J., in Doe d. Richardson v. Thomas (b). The rector having a right to take the trees in the churchyard is inconsistent with the perpetual curate having exclusive possession of it. Jones v. Ellis (c) and Griffin v. Dighton (d) shew that the possession of the church and churchyard by the perpetual curate is only for sacred purposes; in the same manner as a churchwarden has possession of them for the benefit of the parish. A perpetual curate endowed under stat. 1 G. 1. st. 2. c. 10. s. 4. is only removable by the ordinary, whereas the ancient vicar was removable by the incumbent. 2 Burn's E. L. 55 a, 9th ed.; Gibs. Cod. 819, 2nd ed. [Blackburn J. That shews a distinction between them.] Manisty, in reply.-Jones v. Ellis (c), Griffin v. Dighton (d), prove that the perpetual curate has pos (a) 2 Atk. 217. (c) 2 Y. & J. 265. (b) 9 A. & E. 556, 575. (d) 5 B. & S. 93. session of the church and churchyard. Strachy v. Francis (a) was the case of a spiritual rector. COCKBURN C. J. Our judgment must be for the defendant. The statute 1 G. 1. st. 2. c. 10. has nothing to do with the matter before us. All that statute did was, that it enables the Governors of Queen Anne's Bounty to endow perpetual curacies, provides a more solemn form of induction, makes them corporations, and enables them to accept any further endowment from the governors or others. The endowment of the perpetual curacy in the case before us consists of a sum of money granted by the Governors of Queen Anne's Bounty and an annual charge on the rectory, but there was no endowment of the glebe or churchyard. Mr. Manisty says that as perpetual curate the plaintiff is entitled to the possession of the church and churchyard and to keep out everybody except the churchwardens and persons coming to discharge their office. That however assumes the whole matter in dispute, namely, that the plaintiff being incumbent of the churchyard has such possession of it that the rights of others, including the owners of the freehold, are excluded. I quite agree that, both on general principle and decided cases, the incumbent has possession of the church and churchyard, but that is only for the special purpose of doing what is necessary for the duties of his office, and I do not see how that excludes the rector from exercising his concurrent rights. It is clear there are cases in which the lay rector may have the trees in the churchyard, and it is laid down in Lyndwood Provinc. lib. 3, tit. 28, p. 267, ed. 1679, that where in a parish (a) 2 Atk. 217. 1868. GREENSLADE V. DARBY. 1868. GREENSLADE V. DARBY. there is a rector and also a vicar, the vicar is not entitled to the trees except in virtue of his endowment of the vicarage. Generally speaking the endowment carries with it the ordinary rights of property. Yet as is the case with trees, so there may be a case where the right of pasture or right of herbage arising out of the soil does not belong to the vicar. If the trees may be in a layman so may the grass. But the case of a perpetual curate is different, as this case shews. As there are cases in which the right to the trees does not go to the vicar, so here the possession of perpetual curate does not carry anything not necessary to his office, unless it is part of the endowment, which is not the case here. Not only is mere possession of the perpetual curacy not enough to support the plaintiff's claim, but it has been the custom in this case, as far back as living memory will go, for the rector and those claiming under him to use this land as was done here, and this having been allowed for so long may be taken to have had a lawful origin. BLACKBURN J. I am of the same opinion. Look how matters stood originally: the land belonged to some person, but so far as any portion of it was consecrated his right or interest in it was much cut down. In all cases some profit would be incidentally made out of the churchyard, and this would belong to the rector as owner of the fee simple. The religious houses, when they got possession of a rectory, sent one of their own body to perform the religious services. This person had no particular interest in the land, but was called the vicar. Then came the statutes 15 R. 2. c. 6., 4 H. 4. c. 12., saying the vicar should be perpetual and have an endowment, and, as he had so far got possession of V. DARBY. the land on which the church stood, he might be con- 1868. sidered possessor generally. The practice was usually GREENSLADE to give him the small tithes and a small part of the glebe. Vicars for several centuries have been in enjoyment of the pasturage of the churchyard, and the presumption is that they were endowed of them; but this was not necessarily the case, as it might be shewn that the rector reserved it to himself. Then came the perpetual curate. Here there was no endowment and no possession further than for the purpose of performing the duties of or acting as a spiritual rector. After the Reformation, when the benefice came into the hands of a lay impropriator, he was bound to appoint a person to perform those duties; but there is nothing in that which would give the perpetual curate possession of the church and churchyard. Does then the fact of his having got possession of the land, even for temporal purposes, make any alteration? I think not. If indeed the Legislature had directed that this consequence should follow from endowment under Queen Anne's Bounty, we must so hold, but that would be a strong enactment, and I doubt if the Legislature would have agreed to it. Looking however at stat. 1 G. 1. st. 2. c. 10., it contains nothing of the kind. That statute only makes the perpetual curate a body corporate, provides for more solemn induction and enables him to accept further endowments, all very proper and just conditions. But there is nothing to say that the property in the land is to be taken from the lay impropriator. Mr. Manisty contends that by operation of law induction must put the perpetual curate in possession of the church and churchyard. But all that he is put in possession of is |