Q. B.] TRUSTEES OF EMANUEL HOSPITAL v. METROPOLITAN DISTRICT RAILWAY COMPANY. Certain special rules were established in the colliery, pursuant to sect. 11; and by rule 16 it was ordered that "every charter-master, underlooker, manager, or other person upon employing any workman, shall deliver to him a copy of these rules." By rule 34 it is provided that "every workman is engaged subject to these rules, and shall observe the same and abide by the consequences of neglecting them, and shall receive a copy thereof from the manager, charter-master, or other person who may engage him; and his coming to work after receiving a copy shall be considered as an agreement equally binding on the owner himself." Jelf appeared for the appellant. The conviction is bad, for there was no proof that any copy of the special rules had been delivered to the appellant, and, unless this were in proof, there was no evidence of his having wilfully violated any such special rules, which is the offence constituted by the 22nd section of the Act. It is necessary to show that the infringement of the special rule was wilful, and it was requisite, therefore, to show that a copy of the rules had been delivered to the appellant. [COCKBURN, C.J.-Not so; his disobedience may have been wilful enough. MELLOR, J.-All that is required by the case as stated by the justices is a decision as to whether the delivery of a copy of the rules is a condition precedent.] The rules must be wilfully disobeyed to render the party liable, and disobedience cannot be established unless knowledge of the rules is brought home to him. [COCKBURN, C. J.-Why | is a workman not to be supposed to know the rules under which he is working? They were stuck up. There is no evidence that he did not know the rules, or that he had not a copy. It may be impossible, if he has been in the employment a very long time, to prove that a copy of the rules was actually handed to him. We ought to presume that all these things were rightly done.] In Rider v. Wood, 29 L. J. 1, M. Č., it was held under the Masters and Servants Act that there must be a wilful disobedience. [HAYES, J.-That question does not arise here. The question reserved for us is whether the appellant ought or ought not to have been convicted when there was failure of proof of delivery to him by the respondent of a copy of the rules.] H. James, for the respondent, was not called upon COCKBURN, C. J.-It is quite clear that the conviction was correct. Judgment for the respondent. Attorney for the appellant, James Walker. Attorney for the respondent, Smalwood, Newport, Salop. ... [Q. B. any horse. . . upon any such footpath or causeway or shall cause any injury or damage to be done to the said highway, or the hedges, posts, rails, walls, or fences thereof, or shall wilfully obstruct the passage of any footway, or wilfully destroy or injure the surface of any highway... every person so offending shall, &c." In this case it appeared that the highway in question was a footpath leading across a field in the occupation of the appellant, which footpath he had ploughed up for the purposes of his farm. Cave appeared for the appellant.-The case of a path in a field is not within sect. 72 so as to give the justices any summary power to convict. The highway, for injuring which the appellant has been convicted, is a pathway across a field which forms a portion of his farm, and although he might be open to an indictment for injuring it, he cannot be summarily convicted. The word highway in this section cannot be understood as including a footway, for where a footway is intended it is so called, as at the commencement of the section, where a prohibition is enacted against riding upon a footpath, and if the word "highway" had been intended to include all ways it would have been unnecessary to have mentioned a footpath. [MELLOR, J.-In an indictment you would describe a footway as a highway.] The 72nd section would, in this particular, be without meaning if a footpath in a field were included in the term "highway." [MELLOR, J.-I cannot see why a footway should not be protected from being ploughed up.] The words "highway" and "footpath" are clearly distinguishable in the section, and the first is obviously not intended to include the second. [HAYES, J.Then you say that all which the section provides against may be done upon a footway in a field?] The playing at football on a highway is prohibited. Would that include playing at football in a field where there is a footpath if the parties have to run across it? [HAYES, J.-That would not be playing on the footway.] The 74th section which says "that if any horse, ass, sheep, swine, or other beast or cattle of any kind shall at any time be found wandering, straying or lying, or being depastured on any highway, or on the sides thereof," shows that the word "highway" is not intended to include pathway, or the word "highway" would have been sufficient without mentioning also "the sides thereof." [MELLOR, J.-The nature of the thing shows what was intended.] COCKBURN, C.J.-We are all of opinion that the decision of the justices was right. Judgment affirmea. Friday, Jan. 29, 1869. BRACKENBOROUGH (app.) v. THORSBY (resp.) Highway-Injuring the surface of a highway-A path THE TRUSTEES OF EMANUEL HOSPITAL, WEST across a field-Conviction-5 & 6 Will. 4, c. 50, s. 72. By sect. 72 of the 5 & 6 Will. 4, c. 50 (The Highway Act), a penalty is imposed upon anyone who shall "wilfully destroy or injure the surface of any highway:" Held, that a footway across a field is a highway within the meaning of this section. This was a case stated under the 20 & 21 Vict. c. 43, by justices upon a conviction of the appellant by them under sect. 72 of the 5 & 6 Will. 4, c. 50 (General Highway Act), for wilfully detroying the surface of a highway. By the above section it is enacted, "that if any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot-passengers, or shall wilfully lead or drive MAG. CAS.-VOL. V. MINSTER V. THE METROPOLITAN DISTRICT RAIL- Compensation for land-Suggested want of jurisdiction taken under the Lands Clauses Consolidation Act This was a rule calling upon the Metropolitan District Railway Company to show cause why a B writ of certiorari should not issue to the clerk of the peace for the county of Middlesex, to remove into this court a certain inquisition, verdict, and judgment had and taken before Henry Toogood, Esq., deputy high bailiff of the city and liberty of Westminster, on the 29th day of July and the 11th day of August, 1868, touching the claim to compensation made by the poor of Emanuel Hospital against the said Metropolitan District Railway Company, in respect of their interest in certain land situated and being in the parish of St. Margaret, Westminster, in the county of Middlesex, required for the execution of the works of the said railway. It appeared that the Corporation of London are the trustees of Emanuel Hospital, which possess lands in the city and liberty of Westminster, and that the Metropolitan District Railway Company requiring about half an acre of such land, for the purposes of their line, an offer was made for the same. On the part of the owners the sum of 24,000l was required, which the company refused to give, whereupon a precept was directed to the high bailiff of Westminster, and a jury was accordingly summoned to assess compensation. Each party appeared by counsel, and the case was heard by a jury during two days-the 11th of July and the 11th of August, Mr. Toogood presiding as deputy high bailiff, in the stead of the high bailiff himself. The jury assessed the compensation at 10,0007. odd. Both parties at the trial were then aware that Mr. Toogood was sitting as deputy high bailiff, but no objection was raised. The rule was moved upon the grounds, first, that the high bailiff had no power to appoint a deputy; secondly, that the high bailiff was not the proper officer to take the inquisition, but that it should have been the sheriff of Middlesex. Hawkins, Q. C., shewed cause.-The claimants, who are dissatisfied with the amount of the finding, have now no right to impeach the proceedings, inasmuch as they were perfectly well aware that Mr. Toogood was the deputy of the high bailiff, and took no objection at the hearing. COCKBURN, C. J.-Have you not submitted, Mr. Mellish, to the jurisdiction? Mellish, Q. C.-Consent will not give jurisdiction. COCKBURN, C. J.-However that may be, the question now is, ought we to assist you? Ought we not to leave you to take what other proceedings you may be advised when the proper occasion arises? We ought hardly to assist you when, with a knowledge of this supposed defect of jurisdiction, you attend before the deputy high bailiff, and make no objection. Mellish, Q. C.-We were not aware at the time that there was any defect of jurisdiction. HAYES, J.-You say you are aware of the fact, but not of the law. COCKBURN, C. J.--We ought not to assist you by granting this application. You must, if you think fit, raise the objection in some other shape. Rule discharged, with costs. [Ex. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristers. at-Law. June 10 and 11, and Dec. 8, 1868. LLOYD v. BURRUP AND ANOTHER. District church-Minister's stipend-Payment of, out of pew rents-Duty of churchwardens relative theretoApplication of pew rents paid in advance to arrears of stipend-Minister's right of action against churchwardens for arrears-Rents collected by outgoing and not paid over to incoming churchwardens-Liability of the latter for-Church Building Acts (58 Geo. 3, c. 45, s. 73, and 59 Geo. 3, c. 134, s. 26)-Trustee and cestui que trust. Under the provisions of the Church Building Acts (58 Geo. 3, c. 45, and 59 Geo. 3, c. 134), and the order of the Church Building Commissioners, assigning the pew rents to the district, and expressly directing them to be received by the churchwardens, and that out of such rents the latter were to pay the stipend of the minister of the district church, the pew rents (which were payable half-yearly in advance), were, in the first instance, expressly made applicable to the payment of such stipend, subject only to the payment, after certain deductions, of the salary of the clerk. The stipend was to commence at Christmas, and to be paid quarterly on each of the four usual quarterly days of payment; and it was provided that the parish should not, in any case, be answerable to the minister for any greater sum in each year than the amount of the rent of the pews which should have been actually let during the year : Held, thereupon (by Kelly, C.B., and Martin, Bramcell, and Channell, BB.), that whenever the churchwardens should have received pew-rents applicable to the payment of the minister's stipend, and the same had become due, a special action upon the statute, or at action for money had and received, was maintainable by the minister against the churchwardens to recover the amount. But he was entitled only to recover such pew rents as had been received in respect of quarters expired, and for which the stipend had be come due, and not those rents which had been paid in advance, and for periods yet to come, and in respect of which no stipend had yet become payable: Held, also, that the 73rd section of the 58 Geo. 3, c. 45, and the 26th section of the 59 Geo. 3, c. 134, imposed upon the churchwardens the legal duty of paying over to the minister the pew rents applicable to the stipend as soon as they were received; but that the minister was not entitled to recover from the present churchwardens the balance of pew rents received by, and in the hands of, the late churchwardens, and not paid over by them to the present churchwardens, but retained to meet certain sums alleged to be payable for expenses incurred is respect of the church. The court expressly guarding themselves at the same time from being supposed to sanction the retention or application of the pew rents by the late churchwardens to any of those expenses which appeared to be otherwise provided for by th Acts of Parliament. This was an action by the plaintiff, who was the incumbent or minister of the district church of St. Mark's, Kennington, and it was brought by him against the defendants, Mr. Burrup and Mr. Reeve, the churchwardens of the said district church, to recover 275, the amount of two quarters' stipend for his services as such minister, for the half-year from Lady-day to Michaelmas, 1867, in which action the defendant (Reeve) had allowed judgment to go by default. By the first count of his declaration, the plaintiff charged that under and by virtue and authority of the statutes of the 58 Geo. 3, c. 45, the 59 Geo. 3, Ex.] LLOYD v. BURRUP AND ANOTHER. [Ex. The second count was similar to the first count, except that it averred that the defendants were, and had been for a long time past (to wit) in, and from a certain day, A.D. 1867, until and at the commencement of this suit, churchwardens of and for the parish, &c., and that William Vine Edsall, and the defendant Frederick Reeve, the said churchwardens under the said Acts in that behalf, of and for the said church, &c., for the year next preceding the year of, and for which the defendants were such churchwardens as aforesaid, the defendant Reeve being one during their the said W. V. Edsall and F. Reeve's year of office as churchwarden as aforesaid, and as such have received the rents of divers of the pews of and in the said church, which became due and payable for and in respect of the letting of the said pews within the time limited in that behalf by the Act of Parliament in that behalf, so as to make the defendants as such churchwardens as aforesaid liable and answerable to the plaintiff for the breaches of duty bereinafter mentioned under the Acts of Parliament in that behalf, and that the said rents so received by them, after making all such payments and deductions therefrom as were authorised and empowered by law to be made before paying the plaintiff's stipend hereinafter mentioned, amounted to a large sum, and part of which money was applicable to the payment of the plaintiff's stipend, &c., under the statutes in that behalf, nevertheless, &c. (as in the said first count and averring a failure of the defendants as such churchwardens, &c., to pay the plaintiff as such minister, &c., the said part of the said rents, &c., contrary, &c.) c. 134, and the 3 Geo. 4, c. 72 (the Church Building | before the commencement of this action two Acts) a church was built at Kennington, a district, quarterly payments of the said stipend became during all the times hereinafter mentioned, created due and payable to the plaintiff as such minister and established under and within the meaning of and spiritual person serving the said church the said Acts of Parliament, in that behalf in the as aforesaid; and although he has done all things parish of St. Mary, Lambeth, in the county of things necessary, &c., &c., to entitle the plaintiff to Surrey, and was called the district parish church of have the defendants pay to him the said part of the St. Mark, Kennington, and the commissioners for the said money so received by them as aforesaid, and so time being for carrying into execution the purposes of applicable to the payment of the plaintiff's said the said Acts, in pursuance of all powers whatso-stipend as aforesaid under and by virtue of and ever vested in them by the said Acts, and otherwise according to the said statutes, and to maintain this howsoever, all things having occurred, happened, action for the breaches hereinafter complained of, and recited to authorise them so to do, did duly and yet the defendants did not nor would pay to the in accordance with the said statutes, and with the plaintiff as such minister and spiritual person as consent of the then Bishop of Winchester (testified aforesaid the said part of the said rents so applicable by his signing the instrument hereinafter mentioned), as aforesaid, or any part thereof, but wrongfully by a certain instrument sealed with their common omitted, &c., contrary to the form of the statutes, &c., seal, assign out of the pew rents of the said and the said quarterly payments of the said stipend district parish church the yearly stipend of 5507. remain wholly due, &c. anto the spiritual person for the time being appointed to serve and serving the said church, and unto the clerk for the time being of the said church, such salary or other yearly sum of money as, with the fees to be received by such clerk in each year, should amount to the yearly sum of 40l., such stipend and salary to commence from the 30th June 1824, the day of the consecration of the said church, and to be paid as after-mentioned. And the said commissioners did thereby, in pursuance of all powers as aforesaid, duly and according to law, all things having existed and been performed to entitle them so to do, assign the rents of the pews of and in the said church to the said district of Kennington; and did thereby order and direct that the same should be received by the churchwardens of the said district, and that they should by and out of the same pay the aforesaid stipend and salary so thereby assigned and fixed to the said spiritual person so being such minister in the manner following, that is to say, from Christmas-day 1826, they thereby ordered and directed the said stipend to be paid quarterly on the four most usual feast days, that is to say, Michaelmas-day, Christmas-day, Lady-day, and Midsummer-day, by even and equal portions. And the said commissioners did thereby order and direct that if the said pew rents should not produce in any one year the clear stipend of 550l., after paying the salary of the said clerk, then that the whole residue of the said pew rents should be paid to the said minister as his stipend for that year in lieu of the said stipend of 550l. Averment, that plaintiff was, on or before 25th March 1867, and has been continuously since, the minister of and the spiritual person serving the said church, by the consent of the bishop of the said diocese, under and within the true intent and meaning of the said statutes, and that he did all things necessary, and all things, &c., happened, &c., to entitle him the plaintiff to have, and he was during all the time aforesaid entitled to receive such stipend as aforesaid under the Acts of Parliament in that behalf, and that the defendants were and have been for a long time past churchwardens of and for the said church of St. Mark's, Kennington aforesaid, under the said Acts, and as such and whilst they were such churchwardens, have received the rents of divers of the said pews of and in the said church under the Acts of Parliament in that behalf, and that the said rents so received by them, after making all such payments and deductions therefrom as they were authorised and empowered by law to make, before paying the plaintiff's stipend hereinafter mentioned, amounted to a large sum of money, and part of which money was applicable to the payment of the plaintiff's stipend hereafter mentioned under the statutes in that behalf. Nevertheless, although after and whilst the defendants were churchwardens as aforesaid, and The third count was the common indebitatus count for money payable to the plaintiff for money received by the defendant to the plaintiff's use, and on account stated. Plea 3 (by the defendant Burrup) to the first count, except as to 931. 8s. 74d., to which sum plea 9 is pleaded, and the further sum of 51. 16s. 8d., as to which plea 10 is pleaded, that the said pew rents for the said district parish church are and always have been payable in advance by the parishioners and other persons taking pews and seats in pews in the said church, and that this action is brought to recover the plaintiff's stipend for two successive quarters of a year ending at Michaelmas-day last; and further, that all pew rents received by the defendants for the letting of pews and seats in pews in the said church for the said two successive quarters ending as aforesaid, and for any period thereto, after making all deductions and payments therefrom authorised by law, have been applied and paid over to and received by the plaintiff in payment and on account of his stipend, he being the spiritual person appointed to and serving the said church during the said two quarters of a year; and further, that the only pew rents received by the defendants which have not been so applied and paid as aforesaid are pew rents received, in advance for the halfyear just commenced and not yet expired, commencing at Michaelmas-day last past and ending at Lady-day 1868, and on account of the salary of the said clerk in the declaration mentioned, and to and on account of other lawful expenses that may accrue during the said half year not yet expired, from Michaelmas-day last past to Lady-day 1868, and which may become deductions and payments out of the said pew rents received in advance for the said half year ending at Lady-day 1868, and that the same are not more than sufficient for the several purposes last aforesaid. Demurrer and joinder in demurrer to the second count on the ground that it did not show in any way how the defendant was answerable for moneys only alleged to have been received by the preceding churchwardens. Demurrer and joinder in demurrer to plea 3 on the ground that the matters in that plea contained were no answer to as much of the plaintiff's claim as that plea was pleaded to. The defendant Burrup also pleaded other pleas as follows:-To the first count a traverse of the assignment by the commissioners out of the pewrents of the stipend as alleged, a traverse of the assignment by the commissioners of the pew-rents to the said district and of their direction that the same should be received and applied by the churchwardens as alleged. To the second count, similar to pleas to the first count. To the second count, that Edsall and Reeve, the preceding churchwardens, did not receive the pew-rents, so as to make the defendant as such churchwarden liable to plaintiff for the supposed breach of duty in that count mentioned, &c. To the third count, never indebted, except as to 731. 8s. 74d., and 57. 16s. 84d., parcel, &c., satisfaction and discharge before action, and as to those sums payment after action. The action was tried before Pigott, B. before the argument on the demurrer, which was begun on the 27th April, in Easter Term last, was fully heard, and a verdict was entered for the defendants; but leave was reserved to the plaintiff to move as after-mentioned. The facts appeared to be that the pew rents of the district church in question were collected half-yearly in advance, and had been so collected for the half-year ending at Michaelmas 1867, at Lady-day 1867, by the then churchwardens, Messrs. Edsall and Reeve, who, however, on going out of office, instead of handing over to their successors, the defendants in this action, the whole of the pew rents collected by them, applied nearly the whole amount in payment of certain church debts and expenses; and, amongst others, of a sum of money to the plaintiff for his stipend due at Ladyday 1867. Consequently, a sum only of 647. 78. 4d. was handed over by them to the defendants upon the latter entering upon the duties of their office; and this sum, with 127. 7s., additional pew rents for the half-year to Michaelmas 1867, received by the defendants between June 1 and Sept. 29, made the sum of 761. 14s. 4d. in their hands. At Midsummer 1867 a demand was made by the plaintiff upon the defendants for payment of a quarter's stipend (1257) then due, with which demand the defendants, not having funds sufficient in hand, were unable to comply. Again, in Oct. 1867, and whilst the collection of the pew rents for the half-year from Michaelmas 1867 to Lady-day 1868 was going on, the plaintiff made a demand for the payment of the two quarters' stipend due at the preceding Michaelmas, and the demand not being met by payment, the present action was brought on the 15th Oct. 1867, at which time the defendants had 1997. 10s. 10d. only in hand. Of this sum 731.8s. 74d. and 5. 16s. 8d. were, before and after action [Ex. brought, paid to the plaintiff or into court, on account of this said two quarters' stipend, leaving 1207. 5s. 6d., the balance due thereon still in the defendants' hands, this latter sum being proved to consist wholly of pew rents payable and paid in advance for the use and occupation of pews from and after Michaelmas 1867. The plaintiff also sought to recover the balance of pew rents collected by the predecessors of the defendant, and not handed over to the latter. In pursuance of the leave reserved by the learned judge at the trial a rule nisi was obtained on the 30th May last, by Prentice, Q.C., on the part of the plaintiff, to set aside the verdict found for the defendants, and to enter it for the plaintiff on such issues as the court may direct upon the ground that upon the evidence the plaintiff is entitled to the verdict, and also upon the ground that the verdict should be entered, on the first count, for the sum which the churchwardens had in hand for pew rents at the time this action was brought; and also upon the ground that the verdict should be entered for the plaintiff on the second count, for the sum of 897. 4s. 9d., or 50l. 12s. 8d., or some other sum. The court to be at liberty to draw inferences of fact and to have power to amend; the demurrer to be brought on and argued with the above rule. The two sections of the Church Building Acts, which were referred to and relied on, by both sides, as the most material, and upon the construction of which the question mainly turned, and which were fully discussed also in the judgment of the court, were the 73rd section of the 58 Geo. 3, c. 45, and the 26th section of the 59 Geo. 3, c. 134, which are as follows: 58 Geo. 3, c. 45, s. 73, enacts "That two fit and proper persons shall be appointed to act as churchwardens, for every church or chapel, built or appropriated under the provisions of this Act, at the usual period of appointing parish officers in every year, and shall be chosen, one by the incumbent of the church or chapel, for the time being, and the other by the inhabitant householders entitled to vote in the election of churchwardens residing in the district to which the church or chapel shall belong, and of any extra-parochial place by such inhabitant householders as would be entitled to vote in the election of churchwardens if such extra-parochial place had been a parish; and the two persons, when so elected churchwardens, shall appear and be admitted and sworn according to law, and shall collect and receive the rents of the seats and pews, and pay the stipends or salaries appointed by the com missioners to be paid to the minister and clerk of and belonging to the church or chapel for the time being, and also shall do, perform, and execute all lawful acts, matters and things necessary and requisite for and concerning the repairs, management, good order, and decency of behaviour to be kept and observed in the church or chapel by the congregation thereof; and the persons so to be appointed or chosen churchwardens shall continue in their said office until others shall be chosen, in like manner, in their stead; and all the persons so chosen churchwardens are hereby authorised and empowered, in case of nonpayment of the rents of the seats or pews of the church or chapel, for which they shall be appointed, to enter upon and sell the same or else to sue for and recover the same by action or actions for such rents in the names of the churchwardens of the church or chapel of' (describing the same) as the case shall or may require, without specifying the christian or surnames of such churchwardens; and no such action shall abate by reason of the death, or removal, or going out of office of any such churchwarden." 59 Geo. 3, c. 134, s. 26, enacts "That it shall be lawful for the commissioners, in any case in which they shall deem it expedient, from time to time, to order and direct that the rents of the pews in any church or chapel built, acquired, or appropriated under the provisions of the said recited Act (58 Geo. 3, c. 45), or this Act, shall be assigned to the parish or district, and received by the churchwarden or churchwardens, in such parish or district, who shall thereupon be required to pay the stipend which from time to time may be assigned or fixed under the provisions of this Act to the minister or clerk. Provided always, that the parish shall not, in any such case, be answerable to such minister or clerk for any greater sum in each year than the amount of the rent of the pews, which shall have been actually let during the preceding year in any such church or chapel; and any surplus of pew rents remaining, after payment of such stipend and other expenses, shall, except in any of the cases next hereinafter mentioned be invested in Government securities, in the name of trustees to be appointed by the bishop of the diocese, and suffered to accumulate for the purpose of forming a fund, &c." (first for purchasing or building a house for the minister, and then for the reduction of pew rents, or the increase of accommodation in the church or chapel). In addition to the above sections, the 63rd, 64th, 77th, 78th, and 79th sections of the 58 Geo. 3, c. 45, and the 27th, 30th, 31st, and 32nd sections of the 59 Geo. 3, c. 134, were referred to and relied on by counsel on both sides in their arguments. The order of the church commissioners assigning the stipend to the minister of the district church in question, and making other directions relative thereto, was as follows:- "Whereas, under the authority of certain Acts passed in the fifty-eighth and fifty-ninth years of the reign of His late Majesty King George III., and in the third year of his present Majesty King George IV., for building and promoting the building of additional churches in populous parishes, a church hath been built at Kennington, a district in the parish of St. Mary, Lambeth, in the county of Surrey, and is called the district parish church of St. Mark, Kennington. Now, therefore, we, His Majesty's Commissioners for building new churches, in pursuance of all powers whatever vested in us by the said Acts, or any of them, or otherwise howsoever, and with the consent of the Right Rev. Father in God George, by Divine permission, Lord Bishop of Winchester (testified by his signing this present instrument), do, by this instrument, assign the yearly stipend of 5501. unto the spiritual person for the time being appointed to serve the said church. And also we do hereby assign unto the clerk for the time being of the said church, such salary or other yearly sum of money as with the fees to be received by such clerk in each year shall amount to the yearly sum of 40%, such stipend and salary to commence from the 30th June 1824, the day of the consecration of the said church, and to be paid as after-mentioned. And further, we, His Majesty's Commissioners for building new Churches, in pursuance of all powers as aforesaid, do hereby assign the rents of the pews of the same church to the said district of Kennington, and do hereby order and direct that the same shall be received by the churchwardens of the said district, who shall, by and out of the same, pay the aforesaid stipend and salary so hereby assigned and fixed to the said minister and clerk, such stipend and salary to be paid in the manner following (that is to say), the sum of 13657. 19s., being the amount of the said stipend, and the sum of 411. Ils. 11d., being the amount of the said salary from the said day of consecration to Christmas-day last, within one calendar month from the date of these presents; and from Christmas-day aforesaid the said stipend to be paid quarterly, on the four most usual rent days in the year (that is to say), Michaelmas-day, Christmas-day, Lady-day, and Midsummer-day, by even and equal [Ex. portions, and to be apportionable in case of the death, resignation, or other avoidance of any spiritual person from time to time serving the said church, on any other day than one of the quarterly days of payment thereof, and a proportionate part of the said stipend to be paid on the next succeeding quarterly day of payment to the said spiritual person or his executors or administrators (as the case may be) up to the time of his ceasing to serve the said church, and the residue of the said quarterly payment to be paid to his successor, and the said salary to the said clerk to be paid annually upon his producing to the churchwardens an account regularly kept by him of all fees received by him as such clerk in the course of the year; and the said salary to be in like manner apportionable in the event of his death or other deprivation, on any other day than one of the said annual days of payment. And further, we His Majesty's Commissioners for building new Churches, do hereby order and direct that, if the said pew rents shall not produce, in any one year, the clear stipend of 5501., after paying the salary of the said clerk, then the whole residue of the said pew rents shall be paid to the said minister, as his stipend for that year, in lieu of the said stipends of 550l. And further, We, His Majesty's Commissioners for building new Churches, do hereby order and direct that any surplus of pew rents remaining after the payment of such stipend and salary, shall be invested in Government securities in the names of trustees to be appointed by the Lord Bishop of the said diocese, and be suffered to accumulate for the purpose of providing a fund for the building or purchasing of a house, with the consent and approbation of the said Lord Bishop, for the residence of the spiritual person serving the said church; and after the completion of such purchase, then to the augmentation of the stipend of such spiritual person, or to the reduction of pew rents, or the increase of the accommodation in the said church, in such manner as shall be directed by the said Lord Bishop of the said diocese, for the time being, and according to the directions contained in the 26th section of the said Act, passed in the 59th year of the reign of His late Majesty King George III. In testimony whereof we have hereunto set our seal, this 13th February, A.D. 1827. G. WINTON. (L.S.) His Majesty's Commissioners 1818. T. Jones, Q.C. and J. Thompson, for the defendant Burrup, now showed cause against the above rule, and also at the same time argued in support of their third plea, which had been demurred to, and of the demurrer to the second count of the declaration. Referring to the Church Building Acts (58 Geo. 3, c. 45, and 59 Geo. 3, c. 134) and to the assignment of the 13th Aug. 1827, made by the commissioners under the authority of sects. 63 and 64 of the former Act, by which assignment the minister's stipend was fixed at 550l. a year, payable quarterly, it appeared, they said, that the whole case turned mainly upon the construction to be put upon the various sections of those Acts, and upon the assignment. The present churchwardens (the defendants) having paid over to the plaintiff all moneys received by them for pew rents previously to Michaelmas 1867, were in possession of a certain sum received in advance for the letting of pews from Michaelmas 1867, which sum the plaintiff claimed in respect of his stipend for services as minister of the said church from Lady-day to Michaelmas 1867. But pew rents paid in advance for the half year from Michaelmas 1867 to Lady-day 1868 were not, it was contended, applicable to the payment of arrears of stipend for the previous half year. The question is whether, on the first count, the claim was not satisfied by paying over all that the churchwardens had themselves received; that is to |