rell, clerk, on behalf of S. S. Paris, clerk. Cause was shown against the rule in last Michaelmas term, by Littledale, and at the sittings after Easter term, by Alderson, and C. E. Law, and the rule was supported by Denman and Twiss. The facts and arguments are so fully stated and commented on in the judgment, that it has been thought expedient to omit them here. *The judgment of the court was delivered in the course of this term

[*48

by ABBOTT, C. J. This was an application for a prohibition to stay the proceedings on a monition issued by the bishop to the Rev. Mr. Wetherell, the rector of Byfield, for payment of his curate's salary. The case has been very elaborately argued on the construction of the statute 57 G. 3, c. 99. The facts upon which the question has arisen are shortly these: Mr. Wetherell, being generally resident on his benefice and discharging his duties, but desirous of having some assistance, and particularly with reference to a school established by himself, and with a view to occasional absence, engaged Mr. Paris, to become his curate at a yearly stipend of 1007., with power to either party to put an end to the contract on three months' notice, and having so done, applied to the bishop of Peterborough, to license Mr. Paris. The bishop approved of the person nominated, but thought he could not, under the statute, allow a less salary than 1201. a year; and he communicated this to Mr. Wetherell, who remonstrated against the salary, and insisted that the bishop might allow less than 1207. A license, however, issued fixing the salary at 1207., but Mr. Wetherell asserts, that Mr. Paris, declared to him that he should not demand more than 100l., but this fact does not appear to have been communicated to the bishop; and if the salary of 1201. was well assigned, an agreement to receive less would be void by the statute. Differences arose between Mr. Wetherell, and the curate, who refused to quit the curacy, and claimed his salary at the rate of 120l. a year. The curate then applied to the bishop, who, at his instance, issued a monition for payment of the curates salary, but without specifying the amount. Soon after this Mr. Wetherell, received from the *church-warden, a copy of a license similar

to the original license, but having a memorandum, stating, that "the [*49 1201. was assigned by mistake, and that the bishop, therefore, thought proper to reduce it to 1007., the stipend assigned on the nomination." Mr. Wetherell, then applied to this court for a prohibition. The alteration of the salary thus made comes too late to give to the case the character of a curate licensed at the nomination and request of an incumbent, with an assignment of salary by the incumbent's consent. And, therefore, the question is, whether a curate can have the benefit of a proceeding by monition for the recovery of a salary assigned by a bishop, without the consent of the incumbent, the incumbent being resident on his benefice, and discharging the duties generally, but desirous of the assistance of a curate.

The proceeding by monition is not according to the general course of the Ecclesiastical law in cases of a curate's claim to his salary, and can be resorted to only where it is given by act of Parliament; and it has been argued against the prohibition, and in support of the proceeding, that this proceeding is given generally for the recovery of the curate's salary, by the 53d section of the statute 57 G. 3, c. 99. By this section it is enacted, "that it shall be lawful for the bishop, and he is thereby required, subject to the several provisions and restrictions contained in the act, to appoint to every curate such salary as is allowed and specified in the act; and every licence to be granted to a stipendiary curate under the act, shall contain and specify the amount of the salary allowed by the bishop to the curate; and in case any difference shall arise between any rector, &c., and his curate, touching such stipend or allowance, or the payment thereof, or of the arrears [*50 thereof, the bishop, on complaint to him made, may and shall summarily hear and determine the same; and in case of wilful neglect or refusal to pay

such stipend, salary, or allowance, or the arrears thereof, he is empowered to proceed by sequestration or monition." We think this section relates only to licenses granted, and salaries assigned in some way in conformity to the act; and we are, therefore, to inquire, whether the salary in question has been so assigned. It has been assigned to the curate of a resident incumbent, and to an amount to which the incumbent did not consent; and this proceeding by monition cannot be within the act, unless in every case of a resident incumbent desirous of the assistance of a licensed curate, the bishop has authority to assign a salary of greater amount than the incumbent is willing to pay. Upon a careful review of this act, and of the several statutes that preceded it, we are of opinion that the bishop has not such a power. The authority of the bishop to refuse a license, if he considers the proposed stipend to be inadequate, is very different from an authority to increase the proposed stipend according to his discretion, limited only by reference to the statutable allowance in other cases. In the argument at the bar, reference was made to the preceding statutes.

The first statute upon this subject is the act of the 12 Anne, stat. 2, c. 12. This statute gives a summary remedy to the curate for his stipend, but it is evidently confined to a curate nominated by a rector or vicar to the bishop, to serve the cure in the absence of the rector or vicar. The maximum of the stipend to be appointed by the bishop under this act is 50l. a year.

The next statute on the subject is the act of the 36 G. 3, c. 83.

*51] This act begins by reciting at length the provision of the statute of Queen Anne, and further reciting, that in many places the provision made by that statute for the maintenance of the curate is become insufficient; and it then proceeds to enact, in the first section, that it shall be lawful for the bishop to appoint any stipend or allowance for any curate theretofore nominated or employed, or thereafter to be nominated or employed, not exceeding 757. a year, over and besides, on livings where the rector or vicar does not personally reside for four months in the year at least, the use of the house, or, under certain circumstances, an additional stipend of 157. in lieu thereof. The words of this section are, "any curate;" but, nevertheless, connecting the enactment with the preamble, and with the subsequent provision as to the use of the house, this enactment appears to be confined in its operation to the curates of nonresident incumbents. It however, not only increases the stipend, but gives the authority in the case of a curate employed, as well as of a curate nominated by the incumbent, whereas, the statute of Queen Anne mentions only curates nominated. The only other section of the statute on this subject is the sixth, which, after reciting it to be expedient that the authority of ordinaries to license curates and to remove licensed curates, should be further explained, enlarged, and confirmed, enacts, that it shall be lawful for the ordinary to license any curate who is or shall be actually employed by an incumbent, although no express nomination of such curate be made to the ordinary by the incumbent, and that the ordinary may summarily revoke any license granted to any curate, and remove him, on reasonable cause, subject to appeal, as well in the case of a license *52] to a curate not nominated, as in the revocation of a license granted to a curate. Construing this section of the statute, with reference to the first section, which (as before observed) has introduced the word "employed," it appears that this section also respects only the curates of nonresident incumbents; and even if it extends to others, it contains nothing as to the allowance of stipend. The next statute is the 53 G. 3, c. 149. This begins by a recital of the titles, but not the enactments of the two preceding statutes, a recital of one of the canons of 1603, (which contains nothing as to the assignment of stipend to a curate,) and of the insufficiency of the provisions of those statutes and canon, and of the laws in force respecting curates, and of the necessity of making a more effectual provision to secure a competent VOL. X.-5

[*53

maintenance to curates, in order to ensure the due performance of the service of the church, in parishes where incumbents do not reside. It then enacts, that an incumbent not duly residing (unless he shall do the duty of the church, having an exemption from or license for nonresidence) and who shall, for six months after the passing of the act, or after his appointment, or after the death or removal of a former curate, neglect to nominate a curate, to be licensed by the bishop to serve his church, or who shall, for three months after the death or resignation of any curate who has served his church, neglect to notify the death or resignation to the bishop, shall forfeit all benefit of dispensation or exemption from residence, or license for nonresidence; and in every case in which no curate shall be nominated to the bishop, for the purpose of being licensed within such period as aforesaid, the bishop may appoint and license a proper curate, *with such salary as is by this act allowed and directed to serve the church of the place in respect of which such neglect or default shall have occurred. This first section, therefore, plainly relates only to curates licensed for nonresident incumbents. The second section of this act, from which the 53d section of the 57 G. 3, c. 99, is admitted to have been taken, enacts, that it shall be lawful for the bishop, subject to the several provisions thereinafter contained, to appoint to every curate so licensed, such sufficient salary as is allowed and specified in this act, and that. the license to be granted as aforesaid shall specify the amount of the salary allowed; and it then proceeds to give the summary remedy in cases of difference between the curate and incumbent, and for the recovery of arrears of the stipend. This section is an addition to the first, and plainly refers to it by the words "so licensed," and therefore, cannot be applied to any cases except those mentioned in the first section, unless by some subsequent part of the act it shall clearly appear to be extended to such cases. The third, fourth, and fifth sections certainly contain no such extension, for they relate to the parsonage house and its enjoyment by the curate. The sixth section relates only to the registering of the grant and revocation of licenses under the act. The seventh section gives a scale of salary, according to the population of the parish, but never exceeding the value of the living, nor 150l. to be appointed to a curate licensed to serve the benefice of an incumbent appointed after the passing of the act, who shall not duly reside, (unless, &c., in the very words of the first section,) in the absence of such nonresident incumbents. According to the scale thus given, the salary may, in many cases, amount to the whole value of the benefice; and therefore, the eighth section enacts that in such cases the [*54 salary shall be subject to the legal charges on the benefice. The ninth section relates to the case of an incumbent of one parish serving the cure of one or two adjoining parishes, and in those cases the salary is regulated by a diminution from the salary which, in the several cases before mentioned, the bishop is required to appoint; the cases before mentioned are those of nonresident incumbents only, and this section can only apply to cases of that description.

The tenth section introduces, for the first time, the case of an incumbent who may be resident, but this is done incidentally rather than directly; for it provides and enacts, that in case it shall be made to appear to the satisfaction of the bishop that the incumbent of a benefice is or has become nonresident, or incapable of performing the duties thereof, from age, sickness, or other unavoidable cause, and that from those or other special circumstances, great hardship would arise if the full amount of the salary specified in the act should be allowed to the curate, the bishop may assign to the curate a salary less than such full amount. This provision is very suitable to the case of nonresident incumbents, for whose curates the act had previously fixed the amount of salary, leaving nothing to the discretion of the bishop; but it is wholly unnecessary and inoperative in the case of resident incum

bents disabled from the performance of their duties, because as to their curates no amount of salary had been previously specified in the act. And it is obvious that the incapacity of performing the duties must have been introduced into this section by way of caution, and without that strict attention to the other parts of the act, by which it would have been found to be unne

*55]

cessary.

The eleventh section contains a further provision in relief of the incumbent of a benefice, of which the whole profit shall be allowed to the curate, which manifestly relates to the scale given by the seventh section, and consequently to the curate of a nonresident incumbent.

The twelfth section also clearly relates to the scale given by the seventh section, and the occupation of the parsonage-house under the first section; and so also to the case of a nonresident incumbent.

The thirteenth section, in the case of benefices exceeding 400l. a year, authorises the assignment of a salary to a curate, being resident in the parish, greater than is allowed by the seventh section, and must, therefore, be construed with reference to the seventh section, and be applied to such curates only as are therein mentioned.

The fourteenth section, upon which much stress was laid in the argument at the bar, is a restraining and not an enabling clause. It enacts, that nothing in the act contained shall authorise a bishop to assign to a curate a greater stipend than is allowed by the statutes in force before the passing of this act, unless with the consent of the incumbent in three several instances; first, to the curate of an incumbent holding his benefice before the passing of the act, and on which he shall be nonresident by license or exemption; secondly, to the curate of any incumbent who shall duly reside on his benefice; thirdly, to the curate of an incumbent of a benefice who shall himself do the duty of the same, having a legal exemption from residence, or a license to reside out of his benefice, or out of the parsonage house. *A clause so framed can*56] not, according to any rule of construction, be deemed to give any power to a bishop; neither can any inference be reasonably drawn from it, that a bishop possessed any antecedent authority to fix the salary of the curate of a resident incumbent, because in the two other instances mentioned in this section this statute had given no power to the bishop which he did not possess before this act was passed, as will appear by a reference to the seventh and first sections of this act. And this clause also seems to have been introduced only by way of caution, and like many other clauses of the same character, is introduced where caution was not required.

The seventeenth section provides for the salary of the curate of an incumbent, having two or more benefices, and residing part of the year on one, and part on another, and employing a curate from time to time, upon such of the same from which he shall be absent during his residence on the other; which is, in effect, a provision for the curate of a nonresident incumbent.

The eighteenth section relates to the particulars to be stated by an incumbent applying for a license for nonresidence, and requires him to state the salary he proposes to give to his curate; and the nineteenth requires the same particulars to be stated, on an application for a curate by an incumbent exempt from residence.

Upon this view of these statutes it is plain that they do not authorise the ' bishop to fix the salary of a curate of a resident incumbent, without the consent of such incumbent.

These statutes were all repealed by the 57 G. 3, c. 99, for the purpose of *57] explaining some of their provisions, *and of adding others, and they are now to be referred to, not as law, but for the purpose only of explana tion and construction of the last mentioned act. This act embraces several other subjects as well as the licensing of curates and assignment of their salaries; and upon an attentive perusal it appears that almost every clause on

this subject is taken from some clause in one of the former acts, with some variations and improvements, but without any alteration important to the present question. The only clause on this subject entirely new is the fiftieth section, which empowers the bishop to appoint a curate, with such stipend as is therein mentioned, when it shall be made appear to him that by reason of the number of churches or chapels belonging to any benefice, or their distance from each other, or the distance of the incumbent's residence from any of them, or the negligence of the incumbent, the ecclesiastical duties of the benefice are inadequately performed. The case now before the court is not of this description. And having detailed and commented so minutely on the clauses in the former acts, it is wholly unnecessary to refer particularly to the corresponding clauses in the new act. It is suflicient to say, that we find nothing in the new act that can authorise the court to consider the case now before us as falling within the scope of the fifty-third section. It is no part of our duty to pronounce an opinion upon the expediency of giving to the ordinary a direct authority to appoint a salary to the curate of a resident incumbent. We learn from these acts that the legislature has thought it expedient to give to the ordinary a power of fixing a curate's stipend in certain cases, and within certain restrictions. If the power is not given in other cases, we ought to infer that the legislature has not hitherto thought it [*58 expedient to give the power: whether from an apprehension that resident incumbents might be thereby deterred from taking an assistant to the performance of their duties, or for what other cause, it is not our business to inquire. Our judgment on the present case is given with reference to its own peculiar circumstances, viz. the assignment of a salary to the curate of a resident incumbent, greater in amount than the incumbent had proposed or consented to. Our judgment, therefore, is not a decision upon the general question as to the effect of a salary assigned to a curate of a resident incumbent in conformity to his own proposal, nor upon the authority of the bishop to entertain, in any case, a suit for a curate's salary in a formal manner, according to the course and usage of the ecclesiastical law; but I cannot abstain from remarking, that the power to proceed by monition in any case regarding the stipend of the curate of a resident incumbent is so questionable, that it may be a fit subject for the consideration of the legislature. One of the objects of these statutes appears to be the maintenance and protection of curates. We cannot doubt that the reverend prelate against whom this application was made thought that he was acting in pursuance of this object, and discharging a duty according to the provisions of the statute; but we think he has been mistaken in the application of the statute to this particular case, and are, therefore, of opinion that the rule for a prohibition must be made absolute.

Rule absolute.

*The KING v. The Inhabitants of NEWARK-UPON-TRENT. [*59 A pauper, settled in the parish of N. C., in the county of Nottingham, was, pursuant to an order of two justices of the county, bound apprentice by the churchwardens and overseers of that parish to A. B. of another parish, in a borough situate in the same county, but having justices who had exclusive jurisdiction therein. The indenture was allowed by the two county justices, but no notice was given to the overseers of the poor of the parish in the borough of the intention to bind such apprentice, nor did they or any of them attend before the county justices who allowed the indenture, and admit such notice: Held, by three justices, Abbott, C. J., dissentiente, that by 56 G. 3, c. 319, the indenture was void for want of such notice, and that the pauper did not gain any settlement by serving under it.

UPON appeal against an order of two justices for the removal of W. Hales, his wife and child, from the parish of Newark-upon-Trent, in the county of