R. v. Trustees of the Vicarage of Orton

The Queen against The Trustees of the Vicarage of Orton.

QUEEN'S BENCH.

Original Citation: (1851) 14 QB 139

English Reports Citation: 117 E.R. 57

Thursday, July 5th 1851.

S. C. 18 L. J. Q. B. 321; 13 Jur. 1049.

The Queen against the trustees of the vicarage of orton. Thursday, July 5th [1851]. An advowson was vested in feoffees, in trust, upon every avoid¡ance, to present to the Ordinary such person as should be elected by a majority of the landowners in a parish. On motion for a mandamus to the trustees to present a clerk, on the ground that he had been so elected : Held, that either the remedy of the landowners against the trustees was in equity for a breach of trust, or, if the landowners had a legal right, their remedy was by quare impedit; and that in either case the mandamus would not lie. Held, also, that the remedy, if any, of the clerk was in equity, and that he had no legal right.

[S. C. 18 L. J. Q. B. 321 ; 13 Jur. 1049.]

Badeley, in last Trinity term, obtained a rule calling upon the trustees and patrons of the vicarage of Orton, otherwise Overton, in the county of Westmoreland and diocese of Carlisle, to shew cause why a mandamus should not issue commanding them to present to the Bishop of Carlisle, as Ordinary of the [140] said vicarage, the Rev. George Atkinson, to be admitted, instituted and inducted into the said benefice.

It appeared from the affidavits on which the rule was obtained that the advowson was conveyed by deed to certain feoffees, in trust to present to the Ordinary such person as the majority of the landowners in the parish should appoint from time to time whensoever the incumbency of the said vicarage should be vacant. At an election of an incumbent to the vacant benefice in April last, a dispute had arisen whether Mr. Atkinson or a Mr. Sisson had the majority of votes. The trustees declared that Mr. Sisson was elected. No presentation had been made; but the trustees had refused to present Mr. Atkinson.

The case was argued during the term (a)2.

The Court desired to have the question discussed, whether mandamus would lie in such a case.

Watson and Manisty shewed cause. The question submitted to this Court respects the administration of a private trust; and the proper remedy is in equity. Many cases similar to the present have been discussed in the Equity Courts; Attorney General v, Parker (1 Ves. sen. 43), The Attorney General v. Forster (10 Ves. 335), Fearon v. Webb (14 Ves. 13), Edenbm-migh v. The Archbishop of Canterbury (2 Russ. 93), Davis v. Jenkins (3 Ves. & B. 151, 153). The trustees have no public duty to perform; if they neglect to present, the public will not suffer; the only consequence will be a lapse to the Ordinary. But, if there is a Legal right in the [141] case, the remedy is by quare impedit; and mandamus will not lie if there is any other remedy : Rex v. The Marquis of Sta/ord (3 T. R, 646). Begina v. Kendall (1 Q. B. 366), where the mandamus issued, was the case of a corporate body.

Sir F. Kelly and Badeley, contra. Mandamus has issued in many such cases against individuals; Rex v. Blooer (2 Burr. 1043), Rex v. Baiter (3 Burr. 1265), Regina v. Abrahams (4 Q. B. 157), which were equally cases of private trust. Rex v. The Marquis of Stafford (3 T. R. 646), is distinguishable; there the nominee was to be allowed as well as presented; before allowance there could be no legal right. [Patteson J. In whom is there a legal right here, and what is the right?] Mr. Atkinson has a legal right to be presented. [Patteson J. In Regina v. Kendall

(a)1 Reported by H. Davison, Esq.

(a)2 June llth. Before Lord Denman C.J., Patteson and Erie Js. Coleridge J. was sitting at Nisi Prius in London.

58 THE QUEEN V. TBfi TRUSTEES OF ORTON 14 Q. B. 142.

(1 Q. B. 366), there was nothing more to he done than for the master to put the corporate seal as ordered by the corporate body.] The presentation required in this case ia a mere ministerial act. It is no answer1 that there may be an equitable remedy ; there is no legal remedy other than by mandamus.

Cur. adv. vult.

Pattesan J. now delivered the judgment of the Court.

This was an application for a writ of mandamus to compel certain persons, in whom the legal estate in the advowson of the vicarage of Orton is vested, to present Mr. Atkinson to the Bishop of Carlisle for institution to that vicarage.

[142] The affidavits shew that the persons against whom the writ is prayed hold the advowson under a deed, by which it was conveyed to trustees, in trust to present such person as should be elected by a majority of the landowners of Orton : and the dispute ia whether Mr. Atkinson or Mr. Sisson had the majority of votes.

The Court does not enter itito any examination of the facts; because we are of opinion that, if the writ of mandamus be the proper remedy, the questions of fact and law arising in this case must be raised by a return to the writ.

But the difficulty is, whether this is a case in which a writ of mandamus ought to issue at all; and that will be found to depend upon whether a writ of quare impedit will lie; for, if it will, all the authorities, except Clarke v. Bishop of Sarum (2 Str. 1082), are against the granting of the writ of mandamus; and that case is considered not to be good law in Powel v. Milbank (1 T. R. 399, 401, note (d) in the note to Rex v. Bishop of Chester (I T. R. 396). It is quite clear that, when the right of presenta¡tion is in one person and the right of nomination in another, the nomination is the substantial right, arid the presentation ministerial only. Either of the persons, how¡ever, may bring quare impedit. " If he who hath the nomination presents to the Ordinary, he who ought to present shall have quare impedit, and e contra " (Moore, 49, 1. 147). "If respect be had of each other, then are they both patrons after a manner, and by injury offered by every of them to the other, one of them may punish the other. Aa if he that hath the nomination will present immediately to the Ordinary, he that hath the presentation may bring a quare impedit or a writ of right of advowson against [143] him, as his case requires; so if he that hath the presentation refuses to present the clerk nominated to him, or presents one himself without nomination, the other shall bring a quare impedit, or a writ of right against him, and his writ shall be quod permittat ipsum prsesentare, &c. but in his declaration he shall declare the special matter;" 17 Vin. Abr. 314, Presentation (T). Again p. 315, pi. 5 : "If he that hath the nomination presents to him that hath the presentation, he that hath the presentation may disturb in two manners, either by refusing the person nominated, or by presenting some other himself that is not nominated. If he refuse to present him that is nominated to him, and suit be commenced without any actual presentation made by himself, then the writ to the bishop of him that hath the nomination shall be, that he shall recover his nomination, and that the bishop shall admit such as the other hath nominated to the presenter, according to his grant of nomination ; but if the disturbance, upon which the suit is granted, be, because the presentor, that should present the parson nominated, hath presented some other himself without nomination, then the nominator shall immediately, without any nomination at all to be made to the other that hath the presentation [have writ] to remove the other incumbent." Both passages are cited from Doderidge of Advowsons (a), 67, 68, 69, lect. 12. A case is referred to in Moore, Ford v. Hoskin (Moore, 842), in which it is said by the Court, "Si ud ad le nomination et un auter le presentation al un advowson, et cestuy que ad le presentation iie voit presenter le party que est nominate, mil action gist." But the Court was there speaking of an action on the case. See Mallory (Quare Impedit, part 1), 41, [144] pi. 12, citing Sherley v. Underhill (Moore, 894): "Tout le court fuit d'opinion et direct que le nomination fuit le substance del advowson, et le presentation ne fuit que un ministerial interest. Et si le presentor present sans nomination quare impedit gist; sic auxi si le nominator present immediate sans presentation quare impedit gist vers le nominator." If the trustees had in this case presented a person not nominated by the laud owners, there seems to be no doubt that the latter might maintain quare impedit; and so it was held in the case of Rex v. Bishop of Chester, E. 24 G. 3, B. R. (cited in Rex v. The Bishop of Chester (1 T. R. 396));

(a) Compleat Parson : or a Description of Advowson's, &c.

UQ. B.146. TBE QUEEN V. THE TRUSTEES OF ORTON 59

where a mandamus was refused to the inhabitants of Troutbeck, because they might bring quare impedit.

But, as they have not presented any one, some doubt may be raised whether the land owners can sue; and, if they cannot, there is certainly no legal remedy, and a case is fairly made for the interposition of this Court by writ of mandamus; unless the right be merely an equitable one. The passages above cited from Viner's Abridgment are, however, an answer to that doubt. The authorities shew that the right of the nominator is not merely an equitable right, but a legal one; otherwise he could in no case maintain quare impedit.

It is, however, found that cases of this sort have always arisen where the right of the nominator has been adverse to that of the presenter, and not where the presenter is a mare trustee for the nominator, as in the present case. Where such is the relation of the parties, the only remedy is in equity : and, therefore, as regards the land owners and the trustees, the former appear to be in the dilemma put by the Court in Bex [145] v. The Marquis of Stafford (3 T. R. 046, 651): if the land owners have only an equitable right, this Court cannot interfere at all; if they have a legal right, such right may be asserted in a quare impedit. Upon the same principle this Court acted in Eegina v. The Chapter of Exeter (12 A. & E. 512).

But we are told that this application is not made by the land owners, but by Mr. Atkinson, and that he has no other remedy. Many authorities were cited to shew that, where a person is nominated to an office by those who have the right to nominate, and no other remedy lies at law, this Court will interfere by mandamus. No doubt that is so. But they are all, with the exception of Hex v. Bland (c), and Eegina v. Kendall (1 Q. B. 366), instances of writs directed to the persons who are ultimately to admit or restore the applicant, and when everything necessary to give him the legal right to be admitted or restored has been already done. Such are writs of mandamus to swear in churchwardens, to admit a scholar or fellow to a college, to license a curate, to admit a minister to a dissenting chapel, and to admit to many other offices. The right of the party applying in all such cases is complete, supposing the grounds of his application to be established in fact; and the writ goes to those who are bound to put him into possession of the office to which he has shewn his right. But in the case of a presentative benefice the intended incumbent has no legal right, whatever, which he can himself enforce even after he is presented ; certainly, therefore, none before. If the Ordinary refuses to in-[146]-stitute him he can maintain no action in his own name; the action must be in the name of his patron for a disturbance of the temporal right; although, if the objection be personal, he may in many cases sue in the Ecclesiastical Court by duplex querela. No instance is to be found in our books of any attempt by a clergyman, even after presentation, to obtain a writ of mandamus to compel his institution to a presentative benefice; and for this plain reason, that there is a legal remedy open to those who present him by quare impedit, and he haa himself no legal right whatever. If then Mr. Atkinson could not, if he had been presented, have applied to this Court for a writ of mandamus to compel institution, how can it be said that he has such a legal right to this vicarage as to be entitled to a writ of mandamus to compel the trustees to present himl If the presentation by the undoubted patron would give him no legal right, how can the nomination of him by the landowners to the trustees, who have the legal title to present, give him any legal right whatever 1 It is the right of his patrons (the landowners) that is infringed by the refusal to present, and not his right; and they must enforce it, not he.

The case of Eegina Kendall (1 Q B. 366), remains to be considered. In that case the prosecutor was the clergyman elected by the brethren'of an hospital to a vicarage, the advowson of which was vested in the master and brethren, who were incorporated ; and the master had refused to put the corporate seal to his presentation. The prosecutor had no legal right there any more than Mr. Atkinson has here; the point was [147] not taken, which is now under consideration, perhaps because it was clear that no writ of quare impedit would lie in that case ; and, if the brethren had been the prosecutors instead of the clergyman, the same questions would have arisen. There would have been no doubt of their having a legal right, and of their having no Isgal remedy, except by writ of mandamus, to compel the master to affix the corporate seal to the instrument of presentation. But, whether this was the reason or not,

60 WBIOHT t); THE QUHEN li Q- B. i1/2.

certain it is that no objection was taken as to the want of a legal right in the prosecutor; and the same observations apply to the case of Rex v. Bland (2 Burn's Ecc. Law, 117), which was of a precisely similar nature.

If, therefore, this application be made by Mr. Atkinson, as it is said, we think that Se has not shewn any legal right on which we can found the writ. Added to which it may be observed that, if, as is most probable, the relation of trustees and cestuis qua trust is that which really subsists between the legal owners of the advowson and the land owners in this case, so that the latter have their proper and only remedy in equity, it will follow that the proper remedy for their nominee, who, claiming from them, must be in tbe same condition as they are, is in equity. If it be made by the landowners, they are in the dilemma above mentioned. If they have a legal fight, they can enforce it by quare impedit; if they have only an equitable right, thia Court cannot interfere.

In any view of the case, therefore, this rule must be discharged.

Eule discharged (6).