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Scott N. R. 807, 7 M. & G. 37 (E. C. L. R. vol. 49), 1 Lutw. Reg. Cas. 159), have been held not to qualify.

The question is one of fact; and it was for the revising barrister to draw his conclusion from the premises before him.

Upon the statement of the case, we do not find any proof that the appointment of a lay clerk, together with an assignment of a house for his occupation, necessarily created any legal or equitable freehold interest in the house and vested it in him; and we therefore see no reason why the decision of the revising barrister should be wrong. Decision affirmed.(a)

(a) See Hall, app., Lewis, resp., post, p. 114. See also, as to charitable foundations, Freeman, app., Gainsford, resp., post, p. 68.

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*County of WILTS,-Southern Division.

JOHN THOMAS COLLIER, Appellant; FREDERICK KING, Respondent. Nov. 11.

The minister of a congregation of "Particular Baptists" occupied copyhold premises (of sufficient value), which were vested in trustees, upon trust, among other things, "to permit and suffer the said dwelling-house and premises to be held, used, and occupied by the minister of the said congregation for the time being as and for his place of abode and residence." The deed contained no direction as to the mode of appointment of the minister, or any power for his removal. It appeared that the minister had, in the year 1847, upon the written invitation of the deacons, undertaken the ministry for a probationary period of three months; at the expiration of which period he, in accordance with a second (verbal) invitation in general terms, remained as minister of the congregation, and had ever since so continued, and occupied the premises as such. The evidence relied on to prove an appointment for life, consisted of his own statement that he so considered it, and the statement of one of the deacons (who had been a member of the congregation for thirty-five years), that the appointment was made in the usual way, and was, in his opinion, for life.

The revising barrister having decided, that, assuming all the facts stated to be true, they did not amount to an appointment for life :-Held, that the question was strictly speaking one of fact, and that, although the revising barrister might have inferred that the appointment was for life, it was not a necessary inference, and therefore his decision must be affirmed.

AT a court held for the revision of the lists of voters for the southern division of the county of Wilts, Frederick King objected to the name of John Thomas Collier being retained in the list of voters for the parish of Downton.

John Thomas Collier is minister of a dissenting congregation called Particular Baptists, at Downton, and stood on the register for South Wilts as owner and occupier of a "copyhold house and garden, South Lane, Downton."

By deed dated the 25th of September, 1813, the property in respect of which he claimed to be registered appears to be vested in trustees upon certain trusts, and, amongst others, "that the trustees and the survivors and survivor of them, and the heirs of such survivor, or such new and other trustees as aforesaid, do and shall from time to time and at all times for ever hereafter permit and suffer the said dwelling-house and premises thereto belonging to be held, used, and occupied by the minister of the said congregation for the time being as and for his place of abode and residence."

There is no direction in the deed as to the mode by which the

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minister should be appointed; nor any *power given for his removal. It appeared that, in the year 1847, the said John Thomas Collier received a letter from three deacons of the congregation, of which the following is a copy :

"From the Particular Baptist church at Downton, to Mr. John Thomas Collier, at the Baptist College, Bristol.

"From the two visits you have paid us in the capacity of a supply, from the intercourse we have had with you, and from the enjoyment and profit we have experienced under your ministry, we have acquired a conviction of your adaptation and qualifications to take the oversight of us in the Lord. In accordance with which, we herewith cordially and unanimously invite you to become our pastor. But, in doing so, we leave it entirely to your own judgment whether you will, without any further knowledge of us, at once accede to the invitation, or whether you would prefer to come amongst us for three months longer on probation before you decide, in order that you and we may enjoy the satisfaction of a more marked intimation of the Divine will.

"Aware of the solemnity of the step we are taking, and of the sacredness of the relation subsisting between a pastor and a people, we would earnestly pray, that, should that relation subsist between yourself and us, it may be richly realized beneath the most expressive tokens of the Divine benediction.

"Most devoutly commending you to the wisdom and blessing of the great Head of the church,

"JOHN ANDREWS,

"WM. EASTMAN,

"JAMES MITCHELL,

Deacons."

In accordance with the request contained in the above letter, the said John Thomas Collier undertook *the duties of minister to [*16 the said congregation for a probationary period of three months. At the expiration of that time, he received verbally a second call in general terms to become the minister of the congregation; which he accordingly did, and still remains so; and in such capacity he has ever since occupied the premises, in respect of which he now stands on the register, and which are of sufficient value to qualify him to vote, if otherwise entitled.

The proof of his appointment for life consisted of his own statement that he so considered it, and the evidence of one of the deacons, who had been a member of the congregation for thirty-five years, that the appointment was made in the usual mode, and in his opinion was for life.

It was objected that the said John Thomas Collier, under the circumstances above mentioned, was not legally appointed for life, and did not take such an interest by virtue of the said office as would qualify him to be retained on the register.

On the other side it was insisted, that, from the above facts, it was shown that such appointment constituted a freehold interest sufficient to establish the said John Thomas Collier's right to be so retained.

The revising barrister was of opinion that the right of the said John Thomas Collier to be retained on the register was not established, and accordingly expunged his name. If the Court should be of opinion C. B. N. S., VOL. XI.-3

that the revising barrister was wrong in this decision, the name of John Thomas Collier was to be restored to the register.

Welsby, for the appellant.-The decision of the revising barrister upon the facts before him was clearly erroneous. All we learn of the deed which regulates the property in respect of which the claimant seeks to be registered, is, that the trustees in whom it is vested *17] are from time to time and at all times thereafter to permit and suffer the said dwelling-house and premises thereto belonging to be held, used, and occupied by the minister of the said congregation for the time being as and for his place of abode and residence. Nothing is said as to the mode of appointment of the minister, nor as to his removal. The evidence that the appointment was for life, was, the claimant's statement, corroborated by one of the deacons, that "they so considered it." In Burton, app., Brooks, resp., 11 C. B. 41 (E. C. L. R. vol. 73), 2 Lutw. Reg. Cas. 197, which was in every respect like the present case, the minister of a dissenting congregation, whose appointment, according to his own statement, was "general, and for life," occupied, by permission of the trustees, in whom the legal estate was vested, without paying any rent, a cottage and premises worth more than 40s. per annum. The revising barrister, considering that it was established in point of fact that the minister held the office and occupied the house and premises under the trusts of the deed, and therefore had such a freehold interest therein as entitled him to vote, retained his name on the list of voters: and the Court held that he had come to a right conclusion; Jervis, C. J., saying, "Upon the finding of the barrister, we must assume that the appointment of the minister was for life, under the trusts of the deed. He has, therefore, an equitable freehold for life, and is entitled to vote." In Rogers on Registration, 7th edit. 125, it is said: "At the Yorkshire election, at which Mr. Justice Bayley and Serjt. Heywood attended as assessors, some of the protestant dissenting ministers, who said they believed themselves to be elected for life, and could not be removed, were admitted; others declared that they understood they might be removed at pleasure, and were *rejected." (a) Mr. Rogers upon this *18] observes: "There can be no general rule applicable to all cases of dissenting ministers; each case must be judged of according to its own circumstances, the terms of the appointment, or the customs of the particular body by whom the appointment is made. In some dissenting congregations, the first call to a minister is for a limited and probationary term; when such term expires, if the minister be approved, he receives a second call or invitation in general terms, to become the minister of the congregation: in such cases there can be little doubt but that, by analogy to other appointments in general terms, such an appointment is in law an appointment for life: in others, the minister holds at the will of the trustees or congregation. Some times, indeed, the trustees of chapels, having the sole interest in themselves, subject to the condition of allowing the use to some congregation mentioned in the deed or will, permit a particular minister to use the chapel: in such cases there would be nothing to warrant the presumption of an appointment for life: Doe d. Jones v. Jones, 10 B. & C. 718 (E. C. L. R. vol. 21), 5 M. & R. 616; Doe d. Nicholl v. (a) See Heywood on County Elections, p 133.

McKaeg, 10 B. & C. 721, 5 M. & R. 620. When the facts in these cases of dissenting ministers are once ascertained, there will be no difficulty in applying the rules of law to them; but to act upon the belief of the party interested, however respectable, seems a very unusual test, and most unsatisfactory mode of proceeding." [KEATING, J.— Mr. Elliott says (Elliott on Registration, 2d edit. 31): "In these cases it is difficult to understand in whom is vested the power to appoint absolutely for life; the trustees hold the chapel only for the use of the congregation for the time being, and have nothing to do with the #appointment of the minister; the congregation themselves are a fluctuating body, and as such cannot bind their successors. [*19 And it would rather seem, as argued by counsel in the Bedfordshire Case, 2 Luders 435, that, whatever the usage of the different congregations may be, in point of law the office depends upon the pleasure of the persons composing them. They are all voluntary associations, and may be dissolved when the congregations please: if they cease to meet, the ministry ceases with them, for, where there is no congregation, there can be no pastor."] This case, it is submitted, must be governed by that of Burton, app., Brooks, resp.

Coleridge, Q. C., for the respondent.-The revising barrister was right in the conclusion he came to. It is unnecessary to distinguish this case from Burton, app., Brooks, resp. That case, indeed, when looked at carefully, will be found to be an authority in favour of the respondent. Jervis, C. J., there assumes the fact that the appointment was for life; and, upon that assumption, he holds that the minister had a freehold interest. But what is true of one congregation is not so of another: in each case it is a question of fact, depending upon the evidence, whether the party holds for life or not. If for life, it is a freehold interest; otherwise not. It is, of course, difficult to define exactly the nature of the tenure, without knowing something more of the mode of appointing. In the absence of any specific and distinct evidence, or usage, the majority of the members of the congregation would probably determine from time to time who was to be the minister. [BYLES, J.-The congregation may decline to continue their subscriptions: but, suppose the minister chooses to continue to preach without emolument ?] It must be, as Mr. Rogers says, a question of fact in each case. [WILLIAMS, J.-The case of Burton, app., Brooks, resp., gets over the difficulty of imagining an appointment for life, in the case of a thing which is not pro- [*20 perly an office.] If land is attached to the office, the Statute of Frauds would require the appointment to be in writing. [WILLIAMS, J.—In Rex v. Barker, 3 Burr. 1265, where a mandamus was issued to trustees to admit a dissenting teacher, Lord Mansfield calls it a "function."]

Welsby, in reply.-It is plain that the revising barrister here was dealing with a question of law, and not of fact. The case of Rex v. Barker was considered in The King v. Jotham, 3 T. R. 575. Burton, app., Brooks, resp., must govern this case: it would be highly inexpedient to allow two revising barristers to come to precisely opposite conclusions upon the same state of facts.

The Court directed the case to be sent back to the revising barrister to certify whether he meant to say that he was not satisfied that in point of fact an appointment for life was proved, or whether, assuming

all the facts stated to be true, he was of opinion that they could not in point of law amount to an appointment for life.

The revising barrister thereupon appended to the case the following certificate:

"In compliance with the direction of the honourable Court, I beg respectfully to state that I was satisfied with the proof of such facts as are set out in the above case; but was of opinion, that, assuming all the facts stated to be true, they did not in law amount to an appointment for life. J. A., Revising Barrister." Cur. adv. vult. *ERLE, C. J., on a subsequent day, delivered the judgment of the Court:(a)

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In this case the appellant claimed to be qualified by an equitable freehold in a house which was vested in trustees in trust for the minister for the time being of a dissenting congregation called Particular Baptists, at Downton, in the county of Wilts.

The case sets forth a letter signed by three deacons, requesting the appellant to become the minister after three months' probation, a call in general terms to become the minister, and a continuance in that capacity from 1847. The further evidence in support of the duration of his appointment was, the statement of himself and one of the deacons, who had known the usage for thirty-five years, that they considered it to be for life.

The revising barrister decided, that, from these facts, he did not draw the conclusion that the appointment was for life: and we are to say whether that decision is wrong in point of law.

The facts found do not necessarily prove that the general appointment operated as an appointment for life. The barrister had by law the duty of stating what inference he drew from the premises before him and, although he might have inferred that the appointment was for life, it is not a necessary inference.

In Burton, app., Brooks, resp., 11 C. B. 41, the revising barrister did infer that the appointment was for life; and the Court affirmed his decision and Maule, J., approved of it. Still it must be noted that there was additional evidence in that case; for, the deed creating the trust expressed it to be for the life of the minister therein named; so that the existing appointment at the time of the deed was *22] clearly for life; and it might well be presumed that subsequent appointments would also be for life, if no change was indicated.

In The Attorney-General v. Pearson, 3 Meriv. 420, Lord Eldon directed an inquiry to be made by the master, to ascertain whether a general appointment of a dissenting minister had there operated as an appointment for life. This direction is more fully stated at the conclusion of this judgment. In Porter v. Clarke, 2 Simons 520, the appointment was general; and the Vice-Chancellor refused to infer that it was for life; but he relied much on the fact that there was no house and no endowment for the minister, and nothing beyond voluntary contributions.

Although the question referred to us is strictly speaking a question of fact, it is probably sent to us in order that some principle may be (a) The judges present at the argument were, Erle, C. J., Williams, J., Byles, J., and Keating, J.

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