OF PARISHES SETTLED BY STATUTE. chapel of ease at a considerable distance from the parish church, having BOUNDARIES chapelries, townships, or districts belonging to it, (if endowed with such a provision as will ensure a competent stipend to the minister,) to be a separate and distinct parish for all spiritual purposes. And by stat. 1 & 2 Vict. c. 107. s. 7., these provisions are extended to churches and chapels whether erected and consecrated before or after the passing of that act. By stat. 1 & 2 Vict. c. 107. s. 10., where a church or chapel has been built by subscription, endowed and augmented by Queen Anne's Bounty, the Church Building Commissioners, with the consent of the bishop, patron, and incumbent, can make it a distinct parish. dowed, it may be separated from the parish church, and made a distinct parish. Stat. 1 & 2 Vict. c. 107. s. 10. Commissioners district to Stat. 6 & 7 Vict. c. 37. s. 9. Districts may be constituted for spiritual purposes; and are to be endowed to a certain amount at the least. Stat. 6 & 7 Vict. c. 37. s. 9., after reciting that there are divers parishes, may assign a chapelries, and districts of great extent, and containing a large popu- churches and lation, wherein or in parts whereof the provision for public worship and for. chapels in cerpastoral superintendence is insufficient for the spiritual wants of the tain cases. inhabitants thereof; enacts, that if at any time it appear to the Ecclesiastical Commissioners, that it would promote the interests of religion that any part or parts of any such parishes, chapelries, districts, or extraparochial places, should be constituted a separate district for spiritual pur poses, they can, with the consent of the bishop of the diocese under his hand and seal, set out by metes and bounds, and constitute a separate district accordingly, such district not then containing within its limits any consecrated church or chapel in use for the purposes of divine worship, and to fix and declare the name of such district: provided, that the draft of any scheme for constituting any such district, proposed to be laid before her majesty in council by the commissioners, shall be delivered or transmitted to the incumbent and to the patron of the church or chapel of any parish, chapelry, or district out of which it is recommended that any such district or any part thereof should be taken, in order that such incumbent or patron may have an opportunity of offering or making, to the commissioners or to such bishop, any observations or objections upon or to the constituting of such district; and that such scheme shall not be laid before her ma jesty in council, until after the expiration of one calendar month next after such copy shall have been so delivered or transmitted, unless such incumbent and patron in the meantime consent to the same; provided, that in every scheme for constituting any such district, the commissioners shall recommend to her majesty in council, that the minister of such district, when duly licensed as thereinafter mentioned, shall be permanently endowed, under the provisions thereinafter contained, to an amount of not less than the annual value of one hundred pounds; and also, if such endowment be of less than the annual value of one hundred and fifty pounds, that the same shall be increased under the like provisions to such last-mentioned amount, at the least, so soon as such district shall have become a new parish. Stat. 6 & 7 Vict. c. 37. s. 10. enacts, that a map or plan, setting forth and describing such metes and bounds, is to be annexed to the scheme for constituting such district, and transmitted therewith to her majesty in council, and a copy thereof to be registered by the registrar of the diocese, together with any order issued by her majesty in council for ratifying such scheme: but that it shall not be necessary to publish any such map or plan in the London Gazette. Stat. 6 & 7 Vict. c. 37. s. 10. Map of district to be annexed to scheme, and registered. BOUNDARIES SETTLED BY By stat. 6 & 7 Vict. c. 37. s. 15., when any church or chapel shall be built, purchased, or acquired in any district constituted under the act, and shall have been approved by the Ecclesiastical Commissioners, by an instrument in Stat. 6 & 7 Vict. Writing under their common seal, and consecrated as the church or chapel of STATUTE. c. 37. s. 15. District to become a new parish upon a church being consecrated. Stat. 59 Geo. 3. c. 134. s. 17. All acts of par ing to publish ing banns of marriage, marriages, &c. to apply to churches and chapels of districts. Stat, 58 Geo. 3. 30 & 31. Enrolment such district, for the use and service of the minister and inhabitants thereof, such district is, from and after the consecration of such church or chapel, to be and be deemed to be a new parish for ecclesiastical purposes, and be known as such by the name of "The new parish of —,” instead of "The district of—————," according to the name fixed for such district; and any licence granted by the bishop, licensing any building for divine worship, is thereupon to become void; and banns of matrimony may be published in such church, and marriages, baptisms, churchings, and burials, according to the laws and canons, solemnised therein, and the minister is to require and receive such fees upon the solemnisation of such offices, or any of them, as shall be fixed by the chancellor of the diocese in which such new parish shall be situate; and the like Easter offerings and dues may be received within the limits of such new parish by the perpetual curate thereof as are and were, payable to the incumbent of the church of the principal parish of which such new parish originally formed a part; and the several laws, statutes, and customs in force relating to the publication of banns of matrimony, and to the performance of marriages, baptisms, churchings, and burials, and the registering thereof respectively, and to the suing for and recovering of fees, oblations, or offerings in respect thereof, are to apply to the church of such new parish, and to the perpetual curate thereof for the time being but such minister or perpetual curate is not to receive any fee for the performance of any baptism within his district, or new parish, as the case may be, or for the registration thereof. By stat. 59 Geo. 3. c. 134. s. 17. all acts of parliament, laws, and customs relating to publishing banns of marriage, marriages, christenings. churchings, and burials, and the registering thereof, and to all ecclesiastical fees, oblations, or offerings, are to apply to all districts, and consolidated or district chapelries, and divisions of any parishes, or extra-parochial places, whereof the boundaries are to be enrolled in Chancery under the provisions of the act, and of stat. 58 Geo. 3. c. 45., and in the churches and chapels whereof banns are allowed to be published; and marriages, christenings, churchings, or burials are to be allowed to be solemnised, and to the churches and chapels thereof, and to the ecclesiastical persons having cure of souls therein, or serving the same, in like manner as if the same had been ancient, separate, and distinct parishes and parish churches by law. By stat. 58 Geo. 3. c. 45. ss. 22. & 24. the description of the boundaries c. 45. ss. 22. 24. of new parishes created by any complete division, and of ecclesiastical districts, must be enrolled in Chancery, and registered in the registry of the diocese, and notice thereof given as the Church Building Commissioners shall direct, and such boundaries are to continue the boundaries of such parishes or districts. of bounds. District parishes. Such districts are to be separate and distinct district parishes, and the churches and chapels assigned to them when consecrated are to be district parish churches, for all purposes of ecclesiastical worship, and performance of ecclesiastical duties, and for all marriages, christenings, churchings, and burials, and the registry thereof, and in relation to all fees, oblations, OF PARISHES SETTLED BY and offerings, and to all other purposes. But such divisions are not to BOUNDARIES affect any lands, glebe, tithes, moduses, or endowments of the original church (1), nor any poor or other parochial rate, or the persons in- STATUTE. terested therein, except church rates, as regulated by stat. 58 Geo. 3. c. 45. s. 31. c. 37. s. 1. By stat. 17 Geo. 2. c. 37. s. 1., if there be any dispute, in what parish WASTES NEAR or place improved wastes, and drained and improved marsh-lands lie and PARISHES. ought to be rated, the occupiers of such lands, or houses built thereon, Stat. 17 Geo. 2. tithes arising therefrom, mines therein, and saleable underwoods, are to be rated to the relief of the poor, and to all other parish rates within such parish or place which lies nearest to such lands; and if, on application to the officers of such parish or place to have the same assessed, any dispute arise, the justices of the peace at the next sessions after such application made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all others interested therein, may hear and determine the same on the appeal of any person interested, and may cause the same to be equally assessed, whose determination therein shall be final. But this will not determine the boundary of any parish or place, other than for the purpose of rating such lands to the relief of the poor, and other parochial rates (2); and by stat. 2 & 3 Edw. 6. c. 13. s. 3. every Stat. 2 & 3 person who has any beasts or other cattle titheable, depasturing on any waste or common whereof the parish is not certainly known, is to pay the tithes thereof where the owner of the cattle dwells. (3) Edw.6. c. 13. s. 3. UNDER INCLO SURE ACTS. Stat. 41 Geo. 3. By stat. 41 Geo. 3. c. 109. s. 3. (4) the commissioners appointed under the COMMISSIONERS Inclosure Acts, are, by examination of witnesses, upon oath or affirmation, and by such other legal ways and means as they think proper, to inquire into the boundaries of several parishes, manors, hamlets, or districts; and c. 109. s. 3. in case it appear to them that the boundaries are not then sufficiently ascertained and distinguished, they are to ascertain, set out, determine, and fix the same respectively; and which are to be the boundaries of such parishes, manors, hamlets, or districts. But the commissioners, before they proceed to ascertain and set out Public notice of commissionthe boundaries, are to give public notice, by writing under their hands, ers to set out to be affixed on the most public doors of the churches of the parishes and determine therein mentioned, and also by advertisement, and also by writing to be boundaries., delivered to, or left at, the last or usual places of abode of the respective lords, or stewards of the lords of the manors, in which the lands to be inclosed shall be situate, and of such adjoining manors, ten days at least before the time of setting out such boundaries of their intention to set out and determine the same respectively. Mode by which the bounds are to be published when ascertained. And the commissioners, within one month after their ascertaining the boundaries, are to cause a description thereof, in writing, to be delivered to, or left at, the places of abode of one of the churchwardens or overseers of the poor of the respective parishes, and also of such respective lords or ewards. But if any persons interested in the determination of the commissioners Appeal from be dissatisfied therewith, they can appeal to the justices for the county, at determination of commissioners. (1) S. 3C. (4) Vile stat. 1 & 2 Geo, 4. c. 23. Stat. (2) Ss. 1, 2. 6 & 7 Gul. 4. c. 115. (3) Vile ctiam stat. 41 Geo. 3. c. 109. BOUNDARIES SETTLED BY TITHE COMMISSIONERS. Stat. 7 Gul. 4. & 1 Vict. c. 69. s. 2. Stat. 2 & 3 S. 34. any general quarter-sessions held within four calendar months after the publication of the boundaries, the appellants giving eight days' notice of appeal, and of the matter thereof in writing to the commissioners; and the decision of the justices therein is to be final, and not removable by certiorari, or any other process whatsoever. If the commissioners do not pursue the authority given them strictly. their proceedings will be invalidated. Thus in Rex v. Washbrook (Inhabitants of) (1) where the commissioners duly fixed and settled the boundaries, and published them accordingly, but the boundaries mentioned in their award varied from those advertised, it was held that their award was not binding as to the boundaries of the parish; Chief Justice Abbott observing, "The commissioners had a special power given to them by the Inclosure Act in question. They were to insert in their award that description of the boundaries which had been advertised, and then the award was to be final. They have not pursued that power: the award therefore, as to the boundaries, cannot be final." By stat. 7 Gul. 4. & 1 Vict. c. 69. s. 2. (2) the tithe commissioners are empowered to set out the bounds of any parish, or district, on being requested so to do by two-thirds in value of the owners of lands therein in writing, under their hands, or the hands of their agents, signed at a parochial meeting, called for that purpose, under the provisions of the act. And by stat. 2 & 3 Vict. c. 62. s. 34., in case of any question between any parishes or townships, or between two or more landowners touching the boundaries of such parishes, &c., or the lands of such landowners, or if such parishes, or townships, or landowners, be desirous of having such boundaries ascertained, the tithe commissioners may, (on application in writing of a majority of not less than two-thirds of the value of the landowners of such parishes, &c., in the case of parochial boundaries, or on the like application of such two or more landowners in the case of boundaries between their lands,) set out and define the ancient boundaries. But this does not extend to the boundary of a county, or to that of copyhold or customary land, unless the written consent of the lord has been obtained. BOUNDS OF WHERE TO BE TRIFD. Parochial bounds must be tried in the temporal courts. 3. Bounds of PARISHES WHERE TO BE TRIED. The bounds of parishes, though coming in question in a spiritual matter, must be tried in the temporal court. (3) This is a maxim in which all the books of common law are unanimous, although our provincial constitutions mention the bounds of parishes amongst the matters which merely belong to the Ecclesiastical Court, and cannot belong to any other. (4) The bounds of a parish may be tried in an action at law; but a bill will not (1) 4 B & C. 732. (2) Vide stat. 6 & 7 Gul. 4. c. 71. ss. Stransham v. Cullington, ibid. 228. Banister (4) Gibson's Codex, 212. PARISHES WHERE TO BE lie for an issue or commission to ascertain boundaries between two parishes: BOUNDS OF except perhaps the parishioners have a common right, as where all the tenants of a manor claim a right of common by custom, in which case the TRIED. right of all is tried by trying the right of one, or where all parties concerned are before the court. (1) It is stated that the boundaries of counties, of towns, and of manors may, COMMISSION by the assent of the parties, be ascertained and settled by a commission de TO SETTLE perambulatione faciendâ, issued to the sheriff or to other persons. (2) The principles by which Courts of Equity are governed in issuing commissions to settle questions of disputed boundaries receives illustration from the judgment of Sir William Grant in Speer v. Crawter (3), where the learned judge observed, "There are two writs (4) in the register concerning the adjustment of controverted boundaries, from one of which it is probable that the exercise of this jurisdiction, by the Court of Chancery, took its commencement. "Both Lord Northington and Lord Thurlow, without referring to this writ or commission as the origin of the jurisdiction of the Court, have yet expressed an opinion, that consent was the ground on which it had been at first exercised. The next step would probably be to grant the commission on the application of one party who showed an equitable ground for obtaining it; such as that a tenant or copyholder had destroyed, or not preserved, the boundaries between his own property and that of his lessor or lord. And, to its exercise on such an equitable ground, no objection has ever been made. But on what principle can a Court of equity interfere between two independent proprietors, and force one of them to have his rights tried and determined in any other than the ordinary legal mode in which questions of property are to be decided? In some cases, certainly, the Court has granted commissions, or directed issues, on no other apparent ground than that the boundaries of manors were in controversy. In Wake v. Conyers (5), however, Lord Northington held, that it was in the case of manors that the exercise of the jurisdiction, which (he says) had been assumed of late,' was peculiarly objectionable. He refused either to grant a commission, or to direct an issue. (1) St. Luke, Old Street v. St. Leonard, Shoreditch, 1 Bro. C. C. 40. Atkins (Clerk) v. Hatton (Bart.), 2 Anst. 395. (2) 16 Vin. Abr. tit. Perambulation, 306. (3) 2 Meriv. 416. (4) The first is the writ de rationabilibus divisis. Præc. Quòd justè et sine dilatione facias esse rationabiles divisas inter terram Edmundi B. in C. et terram Simonis de K. in S., sicut esse debent et solent: unde idem B. queritur quòd præd. S. plus inde trahit ad feodum suum, quam ad ipsum pertinet habend. Ne amplius inde clamorem, &c. pro defectu recti. Regula. Breve de rationabilibus divisis semper debet fieri inter villas diversas. Reg. Brev. 157. (b). The other the writ de perambulatione faciendâ. Præc. Quòd assumptis tecum xii. discretis et legalibus militibus de comitatu tuo, in propria personâ tuâ accedas ad terram A. de B. in N. et terram C. de D. in E. et per corum sacramentum, fieri fac perambulationem inter terram ipsius A. in N., et terram ipsius C. in E., ita quòd perambulatio illa Regula. Breve de perambulatione fa- BOUNDS. Principles by which Courts of Equity are governed in issuing commissions to settle questions boundaries. v. Crawler. |