case William Foley appellant attorneygeneral and other respondent saint  December Mews dig v xiv cite in in re saint Stephen Coleman street Ch d a be  impropriator of a parish demise part of the tithe to certain parishioner as  trustee for year who redemised the same to he for year under a yearly rend of  pound Payable to the trustee as a provision for a preacher to be nominate by  the trustee the heir of a afterward sell the rectory to b and the  representative of the survive trustee be prevail upon to assign to b the right  of nominate the preacher from the date of the original demise and for year and  upward after the latter transaction the preacher be constant nominate by the  parishioner but upon a contest between they and b it be hold that the right of  nomination be absolute in the trustee and that the assignment of that right be  a breach of trust and direction be give the house of lord for the  reestablishment of the trust in trustee to be impartial choose the rectory of  the parishchurch of Kinfare in the county of Stafford be appropriate to the  abbey of Borsley no vicarage be ever endow but the cure be serve by chaplain  from time to time provide by the abbot as perpetualrector after the  dissolution of this abbey king Henry VIII by letter patent in the that year of  his reign grant the rectory of Kinfare to William whorwood Esq and his heir on  who death it descend to John whorwood his son and heir but this John neglect  to supply the cure pound be raise by several person and pay to he for the  purchase of a rentcharge of pound as a provision for that purpose pound S d  part whereof be to be pay to Mr cross the then preacher at Kinfare so long as  the trustee shall think fit and afterward to such preacher as they and their  assign or the majority of they shall nominate brown and appoint and pound  other part thereof be to be pay to the curate of the say parish but if the  preacher shall desire to be curate then the pound per and be to be pay to he  and the remain pound S d be to be pay to the schoolmaster of the say parish of  Kinfare in pursuance of this agreement the say John whorwood by indenture date  the that of may car I demise the tithe of part of the parish of Kinfare and  also the nomination of a curate to Roland heylin and Samuel brown and eleven  other trustee for year and by another indenture of the same date those trustee  redemised the say tithe and premise except the nomination of a curate to Whor  brown er p wood for year under the yearly rend of pound Payable to the trustee  for the purpose above mention by indenture of lease and release date the that  and that of march Wortley whorwood Esq the grandson and heir of the say John  whorwood convey the advowson of the vicarage of Kinfare and the rectory  impropriate and all glebe land oblation obventions and other profit thereunto  belong to Philip Foley Esq his heir and assign for ever and by indenture date  the that of December Thomas brown sole executor of John brown who be the sole  executor of the above name Samuel brown who be the survive trustee name in the  above indenture of demise grant surrender and assure unto the say Philip Foley  his heir and assign the nomination and free disposition of the curate of  Kinfare and all his estate term of year and interest therein from the date of  the original demise down to the year the curate of Kinfare have be successive  appoint by the parishioner and upon the death of Mr Jonathan Newy which happen  on the that of September and who have supply the cure for fiftyfour year the  parishioner appoint the relator Richard bear to be preacher or curate of the  say parish in his room but Paul Foley Esq the appellant father who be the son  and heir of the say Philip Foley think proper under colour of the above  assignment from brown to nominate one Mr Thomas Oliver to the say curacy  whereupon in Michaelmas term the respondent exhibit a information and bill in  the court of chancery against the say Paul Foley Thomas Oliver and other pray  to have the nomination of the plaintiff bear establish and that he may have  the stipend of pound S d per and as preacher and curate of the say parish and  that the right of nominate such preacher and curate for the time to come may  be settle accord to the original trust the defendant have answer and the cause  be revive on the death of Mr Foley against the appellant his son and heir it  come on to be hear by the master of the roll in the absence of the Lord  chancellor on the that of June when his honour declare that the question be  whether the brown deed of demise to the trustee be not a trust for the parish  that they may have the nomination of a curate that the last person who  officiate as curate continue fiftyfour year so that a clear proof can not be  expect by who his predecessor be nominate but that the evidence be strong that  they come in by the nomination of the parish it not appear that the trustee  ever interpose therein and upon the construction of the deed of the that of  December the trustee may have assign to any other person in trust for the  parish or have declare a trust for the parish and upon the whole matter his  honour be of opinion that the trustee do by write or parole declare a trust  for the parish that they have the right of nomination and that the first act  which appear to have be do in opposition to the parish be by the say Thomas  brown in but that such act of opposition do not overthrow the right of  nomination in the say parish but he conceive that the nomination of the  relator Richard bear ought not to stand and do therefore order and decree that  the parishioner of the say parish of Kinfare pay to the church and poor upon a  week notice to be publish in the say parishchurch shall proceed to a new  election of a minister which election be to be in the schoolhouse of the say  parish and if they shall confirm the election of the say Mr bear then it be  order that the pound and the pound S d per and discount what have be pay by  the sequestrator shall be pay to he but if they shall not confirm his  nomination and elect another minister then it be order that the say pound and  pound S d per and after such deduction as aforesaid shall be pay to the person  who shall be so nominate for which purpose it be refer to a master to see what  be so pay by the sequestrator and ascertain what be to be pay to the plaintiff  Richard bear or to such other person as shall on such election be nominate  curate of the parish of Kinfare but as to cost his honour do not think fit to  give any on either side pursuant to this decree notice be give for a new  election and on the day appoint for that purpose videlicet the that of July  the parishioner elect one Mr Edward hale to be curate of Kinfare but Mr Oliver  allege that he be elect by the majority of the parishioner prefer his petition  to the Lord chancellor Parker pray that his election may be confirm and upon  hear this petition on the that of December follow his lordship be please to  declare that Mr hale be duly elect but that brown er p he apprehend a popular  election may be attend with many inconvenience and will therefore consider  further of the matter and give proper direction therein the defendant Mr Foley  apprehend himself aggrieve by the decree petition the Lord chancellor for a  rehear which be grant the cause be again hear on the that of June when his  lordship declare his opinion that the brown deed of demise to the trustee be a  trust for the benefit of the parishioner of the say parish of Kinfare and that  the right of election of a minister or curate be in they the say parishioner  and that the trustee ought to nominate such person as by they elect to be  admit by the bishop of the diocese and therefore order that the say petition  shall be dismiss and the say decree confirm with this addition that in regard  the term be merge a new term shall be raise by the defendant in who the  inheritance be for the remainder of the year yet to come and unexpired to such  new trustee as the master shall appoint and that the master shall take a  account of the trustmonies from the person who have receive the same from the  death of Mr Newy and if the bishop of the diocese have appoint any sum  thereout for the person who have since supply the curacy the same be to be  allow but if the bishop have not make any appointment then such sum as the  master shall think reasonable to be allow for supply the say curacy be to be  deduct out of the say trustmonies and as the defendant do not oppose the  election of Mr hale to be minister or curate his lordship do not think fit to  direct he to pay the plaintiff any cost to that time but the consideration of  subsequent cost be reserve and if the person who have receive the say  trustmonies shall refuse payment thereof as aforesaid then the plaintiff be to  resort to the defendant Foley for the payment thereof and the pound deposit  with the register be to be pay to the plaintiff soon after this decree Mr hale  die whereupon the relator bear be duly elect but before he be nominate to the  bishop the defendant Foley appeal from both the decree insist I Darnall W peer  William that no deed or write appear or be in proof in the cause to show that  the trustee be trustee for the parishioner of Kinfare so as to give the  inhabitant a right of elect a curate for the say parish it only appear by the  proof take on behalf of the respondent that the witness have hear that the  most substantial inhabitant use to nominate a curate that four or five of the  curate who be nominate after cross who be curate in when the indenture be make  by whorwood to the trustee be in the rebellious time of Oliver Cromwell and  particular one Moreton who be curate before Newy be turn out in the year for  refuse to conform and read the service of the church of England at which time  Newy the last curate come in and continue there till his death which happen in  the year that the reason on which the decree be find be that the last person  who officiate as curate continue year so that a clear proof can not be expect  by who his predecessor be nominate but that the evidence be strong that they  come in by the nomination of the parish it not appear that the trustee do ever  interpose therein but the appellant apprehend it ought not to be expect so  much from he to prove that the brown curate be nominate by the trustee as from  the respondent to prove that they be appoint by the parishioner and as there  be no proof on either side beyond hearsay evidence the trust of the deed of  demise ought no way to be impeach but on the contrary to be perform whenever  the trustee shall think fit to put it in execution though it may happen to be  against the inclination of the parish that the inhabitant of Kinfare be not  capable by law of take any estate either by grant devise or otherwise that by  the deed of demise the trustmoney be to be pay to such curate and no other as  the trustee and their assign or the great number of they shall nominate and  appoint and therefore neither a pretend prescriptive right or a imply trust  can overthrow the express trust declare by that deed that the term be merge a  court of equity can not carve a new term out of the appellant estate for  settle in the inhabitant the right of nominate a curate and as to the  trustterm for the charity it still remain in the representative of brown the  survive trustee that by the indenture of demise it plain appear that the  curate and preacher be two distinct person and as the trustee have only the  right of nominate a curate grant to they by whorwood there can be no  sufficient ground for decree the pound S d settle upon the preacher to be pay  to the curate that the appellant be impropriator may nominate a preacher the  same not be grant by whorwood to the trustee and such preacher be entitle  brown er p not only to the pound S d but also to the pound per annum settle on  the curate so long as he perform the duty of curate and this by the express  word of the deed that this popular way of election there be no person decree  to preside over those who take the poll and determine who have the majority  avoidable tend to the utmost confusion and set up a faction throughout the  whole parish and therefore it be humble hope that their lordship will reverse  the say decree and declare that the appellant have the sole right of nominate  a curate to the say parish on the other side it be contend t Lutwyche S Cowper  that there be not any colour of right in the appellant to nominate a minister  he claim only under the deed of from brown who do not appear to have any right  himself it not be prove that Samuel brown be the survive trustee or that the  executor of his executor execute that deed that it appear plain that Mr Newy  be elect by the parishioner the trustee never attempt to interpose in the  nomination and it be scarce possible for the memory of any person to extend to  the admission of any minister before he but after hear counsel on this appeal  it be order and adjudge that the two decree complain of shall be reverse and  it be adjudge and declare that a absolute power be vest in the trustee name in  the deed of car I to nominate such preacher or curate of the parish of Kinfare  in the brown county of Stafford as they or the major part of they think fit  and that the surrender or assignment of December be a breach of trust and  therefore it be adjudge and decree that a new term for the residue of year for  which the original demise be make ought to be create and vest in thirteen new  trustee as to the say right of nomination of a preacher or curate which  thirteen trustee shall be nominate by a master of the court of chancery  subject to the direction of that court and both party shall be at liberty to  propose proper person before the master to be trustee and that four of the say  trustee at the least shall be clergyman of the same county or diocese in which  Kinfare lie and that a proper demise or grant of the say nomination to the say  trustee shall be prepare by the master and execute by the appellant when he  shall come of age or by his heir and that the same shall be enrol in the court  of chancery and likewise enter in the register of the bishop of the diocese  and the make of such grant and the enrolment and entry thereof be to be at the  charge of the appellant or his heir and it be further order that when the  number of the say trustee shall be reduce to nine then or as soon after as  convenient may be the survivor or the major part of they shall choose so many  new trustee as shall make up the full number of thirteen and that when such  new trustee shall be choose proper conveyance shall be execute to vest the say  nomination in all the thirteen trustee during the residue of the term and it  be further declare that as soon as the representative of the survive trustee  can be find he ought to assign to the same trustee the reversionary interest  in the year term to which the rend of pound per annum reserve on the redemise  to John whorwood esquire be incident and it be further order and adjudge that  in the mean time the say rend shall from time to time be pay to the trustee  who shall be nominate as aforesaid and that the first trustee with all  convenient speed after they shall be settle shall appoint accurate for the say  parish of Kinfare and that in the mean time Richard bear the present curate  shall continue to officiate as such and be allow the salary for the time he  have officiate or shall officiate and it be recommend to the say trustee to  nominate he the first curate he be the relator at who suit the trust have be  restore and establish and it be further order that as often as any future  vacancy of a curate shall happen the same shall be supply by the trustee for  the time be or the major part of they and that the court of chancery shall  give proper direction touch the arrear of the say annuity for the time pass  and likewise such other direction from time to time as shall be proper for the  better execute this judgement jour vol p brown er p