Brereton v Tamburlaine vesey senior er report date attorneygeneral v Brereton  Brereton v Tamburlaine July see Macallister v bishop of Rochester c p d  direction of the court on establish a right to hold a perpetual curacy and as  to the nomination thereto by the patron see the decree in the supplement p the  question whether a perpetual curacy or no may be judge of by three concur  circumstance first whether there be parochial right belong to the chapel in  question second with reference to the right of the inhabitant within the  district and three as to the right and due belong to the curate such a curate  not removable at pleasure presentation to a church or nomination to a  perpetual curacy may be by parole a bill be the proper mode of establish a  right to a perpetual curacy c c and not a information in the name of the  attorneygeneral except in the case of charity augmentation of vicarages c form  such a exception cost vide supplement p this cause come before the court on  two bill first a information at the relation of Tamburlaine to establish his  right to the chapel of flint as curate there to have a account of profit of  that curacy for his own benefit and to have possession of the chapel deliver  to he for performance of divine service the cross bill be by Brereton as vicar  of the parish of Northop to which this chapelry be say to be annex to  establish his right and for account of the profit belong thereto and that be  may have possession deliver to he for performance of divine service three  question be make first what be the nature and species of this chapelry of  flint second in who the right of nomination of the curate or chaplain be  whether in the defendant the bishop of saint Asaph for the time be as ordinary  or in the rector who be a sinecure rector which be now this bishop by  annexation under the stat whether or in the vicar three whether the rector or  vicar or whoever have the right of nomination have the right of a motion of  the curate or chaplain at his will and pleasure vesey senior Lord chancellor  before I consider the question upon the merit I will consider two objection  the first of which occur to I during the course of the cause and weigh  somewhat with I that this be a original information to establish this right as  a perpetual curacy now I do not know that it belong to the jurisdiction of  this court to determine all sort or ecclesiastical right of this kind though  it do belong to it to establish right of nomination or election at large to a  chapelry and curacy and there have be several instance of it some of late in  the north but that have be by bill by the curate or chaplain in his own name  or by the person claim that right but this be a information in the name of the  attorneygeneral which can be only for a charity and therefore I doubt at the  open of the cause whether it can proceed in that manner but I be satisfy as to  that by look into the act of parliament c cap relate to augmentation of  vicarages these augmentation be charity to be sure but at the latter end of  that statute be a clause which consider they as charity within the intent of  the stat Elizabeth this be not indeed a proceed by way of commission of  charitable use which commission be find on that statute but be by the old way  of proceed in name of the attorneygeneral in this court for the charity but  that proceed be not confine to case consider as charity before the statute of  charitable use but all other be take to be within the extensiveness of this  proceed in the name of the attorneygeneral which remedy may be apply here  these augmentation may therefore be consider as charity and proper to come  into this court to establish as such which be a answer to that difficulty  another preliminary objection and which be mention at the bar be that the  relator find his case on a right of nomination in the rector or bishop who be  unite with the rectory and defendant say if the relator have any right it be  on the nomination of the vicar and that he himself have be so nominate and  then though a right appear in he he must recover accord to the right he have  make for he must recover both secundum instigation et let this I be of opinion  will be so if this have be a bill in his own name for then I can never make a  decree to establish a right appear in he contrary to that set up but this be a  information in name of the attorneygeneral be a answer to that also for though  such a infor vesey senior er p mansion to establish a charity be mistake in  the circumstance of lie it yet if it appear there be a charity and the right  appear in the whole cause that information can be dismiss but a decree must be  make to establish that charity that doctrine have be frequent lie down in this  court and allow because it be consider as a proceed by a vesey senior officer  of the crown and as the king be pater father the information therefore must  not be dismiss so that though the relator have mistake his title but however  in the cause a title come out for he and his successor he must have that title  establish this bring it to the three question proper make at the bar on the  merit but they will be reduce to two for the three must follow the  determination of the first as to which question whether this be of the nature  of a perpetual curacy or chapelry or whether temporary only at the nomination  of the vicar and amoveable at his will and pleasure like a common curate I be  of opinion upon the evidence before I and on the best consideration that this  be a perpetual curacy or chapel note if a rector give a a title to the bishop  and appoint he his curate promise he a salary and to continue he as curate  till otherwise provide of some ecclesiastical preferment unless unlawful  remove for any fault he can remove he without cause and if his salary be in  arrear he may maintain assumpsit on the title Cowp to determine whether it be  so or not considerate first as to the right and privilege appear to belong to  the chapel itself next as to the right of the inhabitant within this district  three as to the right and due belong to the curate of this chapelry if all  these right concur to show the nature of a perpetual curacy that must  determine it as to the first consideration it appear this be a chapel belong  to a country town it have belong to it all sort of parochial right as clerk  warden c all right of perform divine service baptism sepulture c which be very  strong evidence of itself that this be not bare a chapel of ease to the parish  to which it belong but stand on its own foundation Pella parochial as it be  call in hob and this differ it great from the chapel in London which be bare  chapel of ease commence within time of memory which have not baptism or  sepulture all which sort of right belong to the motherchurch and the rector or  vicar of the parish who have the cure of soul have the nomination as the  rector of saint James or saint Martin have but they have no parochial right  which clear belong to his chapel nor have any of the inhabitant of this  chapelry a right to bury in the parishchurch of Northop and that right of  sepulture be the most strong circumstance as appear from seldom hist tithe  Vols Fol column to show that it differ not from a parishchurch the next  circumstance to determine this question be the right of the inhabitant  videlicet to have service perform there and baptism and Christian and have no  right to resort to the parishchurch of Northop for these purpose nor to any  other place if not here nor be they or have they be rateable to the  parishchurch of Northop it be determine in the case of castle Birmidge hob  that the have a chapel of ease will not exempt the inhabitant within that  district from contribute to repair of the vesey senior motherchurch unless it  be by prescription which will then be a strong foundation that it must be  consider as a curacy or chapelry next as to the right and due of the curate  all these concur to show it to be a perpetual curacy and not at all at the  will and pleasure of the vicar for the curate have always enjoy the small  tithe and surplice fee nor be there any evidence to show that the vicar have  receive the small tithe beside here be a augmentation make by Mr stone the  sinecure rector in of per and to be divide between the vicar and curate as the  bishop shall think fit bishop barrow in decree pound to the vicar for ever and  pound to the curate for ever this be reserve on a lease for twentyone year at  the end of which then it determine nor be it show that any new lease be make  with new reservation yet it have be pay ever since constant and that must be  on the statute c c which provide that these augmentation shall continue for  ever and that notwithstanding there be no reservation de to make new on a new  lease it be then apprehend to be within that statute which can be only on the  foundation of its be a perpetual curacy it will be otherwise absurd and  ridiculous if amoveable at the will of the rector or vicar and contrary to the  intent of the donor and bishop who division and direction will then signify  nothing vesey senior er p next as to what arise rather from presumption and  conjecture I be of opinion upon the result of the whole evidence that this be  once a distinct parish and afterward unite to the parish of Northop on certain  term though the memory of it and the instrument be lose since that time flint  have be consider as a parochial chapel to which these old right have be  attendant there be several instance of that kind in this kingdom of a union of  parish where one be consider as the parishchurch the lesser be keep up as a  parochial chapel for convenience of the inhabitant and after that the  presentation have be to the principal cum capella fastening Savil and these  parochial right be evidence of this it may be term of the union and will  amount to a composition and so it may grow up and this support all the  evidence and account for the whole the expression cum capella fastening as the  presentation to Northop have be suppose that for there be no such thing as a  presentation to a parishchurch cum capella fastening in London where there be  chapel of ease within time of memory which be of no consideration in law but  mere voluntary and ad it pleases and gain no right but this expression import  a foundation of a chapel and that with such right vesey senior as to the next  question I be of opinion that the right of nomination of the curate to this  chapel be in the vicar as to the bishop right be submit the whole to the court  nor be there any proof of a nomination by the bishop and it be more natural  that on the union it shall be in the vicar who as it be by that union  constitute have the general cure of soul than in the rector the only colour to  say it be in the rector be that the only act appear in write be the bishop  licence to preach that be only the ordinary act of diocesan but there be  considerable evidence as to a nomination by the vicar it be object that here  be no nomination in write and therefore though there be by parole it be  evidence of a voluntary temporary curate at the will and pleasure of the vicar  for that a nomination to a perpetual curacy ought to be in write most regular  it ought but I do not know it have be determine that that be necessary a  presentation to a church need not be in write but may be by parole side    light if so I do not see why a nomination to a perpetual curacy may not be by  parole and the usage in the parish be very strong that it be in the vicar the  three question depend on the first for if this be a perpetual curacy it convey  a interest for life unless deprive by the ordinary in proper course of law and  then it be a contradiction in term to say that a perpetual curacy be removable  at will and pleasure here be indeed one instance of it but that be a act of  power and it will be absolute inconsistent with this charity which I have now  establish by this decree for if the vicar do remove I be of opinion this pound  per and will be rather lose than go to the vicar though the collation by the  bishop be cum capella de flint fastening that confer no more to the vicar than  the right of nomination to the curacy that may be part of the term of the  union of which I think there be a violent presumption I be the more induce to  be of this opinion from the reason and utility of the thing and as answer the  purpose of such foundation which be that there shall be a resident minister at  flint whereas if I shall hold that the vicar of Northop may take this into his  own hand and perform divine service there the consequence will be that flint  which be a corporate and county town and so take notice of by the donor and  the bishop will be serve only occasional by the vicar of Northop preach and  read prayer on Sunday which be not half the duty of a minister I shall  therefore determine accord unless either side desire to try it at law which be  decline Reg lib a fol see the declaration of the court and the order make in  supplement p