The parishioners may also determine other matters with regard to the manner in which the election shall take place, such as the hours and times for polling (4).

Irregular or even illegal conduct at a meeting to determine the mode of election will not induce the Court to disturb the election, unless it appear that a voter has been deprived of an opportunity of voting (1).

The Court, in declining to interfere, acts upon the principle that the election is substantially fair, and the majority not likely to be disturbed by any change in the manner and form of voting (m). Where the right of election is vested in the trustees, an election by a majority of them is valid (n).

All the trustees, having the right to present to a living, ought to join in signing the presentation, for if they do not the ordinary cannot be compelled to admit the clerk therein named (0).

Although the trustees cannot vote, they may sign the presentation by proxy (p).

Where a valid election has taken place, the majority may compel the dissenting minority to join in the presentation (9).

It follows that an election by the trustees is not invalid because the full number of trustees has not been kept up (r).

A presentation by a sole surviving trustee has been supported (s). And where, by neglect, the number of trustees in a trust to present to a living was not filled up at the time of an avoidance, the Court refused, in the absence of special ground, to stay by injunction the institution of a clerk presented under the legal title of the heir of the surviving trustee (†).

The Court, however, takes care that the number of trustees shall be properly filled up for the future (u); and if an appointment is set aside, and a new election consequently rendered necessary, the Court will see that the number of trustees is filled up before the new election takes place (x).

(k) Davies v. Banks, 5 L. J. Ch. 274; Att.-Gen. v. Newcombe, 14 Ves. 1, 9; Att.-Gen. v. Forster, 10 Ves. 335; Shaw v. Thompson, 3 Ch. D. 233.

(1) Shaw v. Thompson, supra.

(m) Ex parte Mawby, 3 E. & B. 718; Reg. v. St. Mary, Lambeth, 3 N. & P. 416; Davies v. Banks, supra; Shaw v. Thompson, supra, at p. 251.

(n) Att.-Gen. v. Cuming, 2 Y. & C. C. C. 139. Cf. Att.-Gen. v. Lawson, W. N. 1866, 343.

(0) Att.-Gen. v. Scott, 1 Ves. Sen. 413; Wilson v. Dennison, Amb. 84; Seymour v. Bennett, 2 Atk. at p. 482; and see Co. Litt. 186 b.

(p) Att.-Gen. v. Scott, supra, at p. 417; Wilson v. Dennison, supra, at p. 86.

(q) Att.-Gen. v. Cuming, supra. See Att.-Gen. v. Scott, supra.

(r) Att.-Gen. v. Scott, supra; Att.Gen. v. Cuming, supra.

(s) Att.-Gen. v. Floyer, 2 Vern. 748. (t) Att.-Gen. v. Bishop of Litchfield, 5 Ves. 825. See, however, Davis v. Jenkins, 3 V. & B. at p. 159.

(u) Att.-Gen. v. Bishop of Litchfield, supra. See also Davis v. Jenkins, supra ; and ante, pp. 195, 196.

(x) See Att.-Gen. v. Scott, 1 Ves. Sen. at p. 419.

An informality in the appointment of the trustees of a trust to Informality in elect to an advowson does not vitiate an election by them. Thus, appointment. in Att.-Gen v. Cuming (y), the advowson of a parochial church was by deed vested in nine trustees, upon trust, within four months after a vacancy, to publish notice of a time for a meeting of the parishioners to elect a vicar, and within six months to present the clerk elected by the parties therein mentioned. By the terms of the deed the election was to be by parishioners having a certain qualification in land in the parish, or the major part of them, together with the trustees or the major part of them then assembling at the parish church within the said four months. It was also declared that upon the death of any of the trustees the survivors should from time to time, as they should think fit, before the number of trustees should be reduced to five, or within three months after they should be reduced to four, appoint new trustees, and convey the premises to them, so as to complete the number of nine trustees. It appeared that from the date of the deed to the election of a clerk in 1840, this clause had never been strictly acted upon, though the number of trustees had generally been kept up to nine. On the occasion of an election in 1840 there were eight trustees, two of whom were out of the jurisdiction. Of the remaining six, five signed a written notice of the intended election, which notice was duly published pursuant to the deed, though previous to publication one of the signatures was erased. The same five attended at the meeting, which was held within the proper time, and four of them voted for the successful candidate. These four, and the trustee within the jurisdiction, who was not present at the meeting, joined in the presentation, which was subsequently approved of by the trustees out of the jurisdiction. The remaining trustee refused to join. It was held that the informality in the appointment of the trustees did not vitiate the election, that the dissentient trustee was bound to join in the presentation, and the bishop to present.

Notice of the meeting to elect a clerk must be given to all the Notice of trustees, otherwise the election is void ().

meeting.

that election

A declaration that the trustees were to elect and present within a Declaration limited time after the death of the existing incumbent was construed shall take as directory only, and an appointment made after the prescribed place within a period was upheld (a).

Lord Eldon appears to have gone so far as to order the bishop to "institute and induct" the person whom the Court considered pro

413.

(y) 2 Y. & C. C. C. 139.
() Att.-Gen. v. Scott, 1 Ves. Sen.
See also Att.-Gen. v. Cuming,

supra.

(a) Att.-Gen. v. Scott, supra, at p. 415; see also ante, p. 178.

limited time construed as

directory. institute and

Order to

induct.

Tenure of office.

Injunction in case of improper

perly elected (d). Knight-Bruce, V.-C., however, observed that such an order, taken literally, would exclude the bishop from the right of deciding upon the fitness of the person presented. He thought, therefore, that Lord Eldon's attention could not have been directed to the particular words used in the decree (e).

All persons presented to ecclesiastical benefices are considered to be tenants for their own lives, unless the contrary is expressed in the form of donation (ƒ).

Where a chaplain or vicar is improperly appointed the Court will by injunction restrain him, or any other person except the appointment. one properly appointed, from performing divine service in the church or chapel, and the bishop from instituting or inducting him (g).

After appointment of

In Att.-Gen. v. St. Cross Hospital (h), after a receiver of the receiver, charity property had been appointed, the churchwarden of the interference parish, insisting that the chapel within the hospital of St. Cross was with chaplain restrained. the parish church, and in order, as he alleged, to try the right, forcibly prevented the chaplain from performing divine service therein. Romilly, M. R., restrained the churchwarden from interfering with the performance of divine worship, but gave him liberty to proceed in any Court to try the question, and to establish any rights claimed by him as churchwarden.

Annuity to chaplain of

gaol.

What services required.

When an annuity is left to a chaplain, the Court endeavours so to provide for its payment that no reduction shall take place in the salary to which he was previously entitled.

A testatrix gave an annuity of sixty pounds to a clergyman to preach every Sabbath day to the prisoners at Lincoln, and pray daily to them. At the time of her death the county gaol was the only prison at Lincoln, but subsequently a city gaol was established. Both prisons had chaplains, whose salaries were fixed by the justices of the peace, and paid out of the county rates. An order was made for payment of the annuity to two chaplains in proportion to the number of prisoners under their charge, with liberty to apply in case their salaries should be reduced in consequence of the additional income (i).

Where the deed declaring the trusts of an endowment of a district church provided that the income was to be paid to the incumbent so long as he conducted the services according to the rites of the Church of England and the Book of Common Prayer, and

(d) Edenborough v. Archbishop of Canterbury, 2 Russ. at p. 112, where the decree is given.

(e) Att.-Gen. v. Cuming, 2 Y. & C. C. C. 155, n.

(f) 2 Bl. Com. 123; Att.-Gen. v. Pearson, 3 Mer. at p. 403.

(g) Att.-Gen. v. Earl of Powis, Kay, 186; Att.-Gen. v. Cuming, supra; Carter v. Cropley, De G. M. & G. 680.

(h) 18 Beav. 601; affirmed on appeal, 8 De G. M. & G. 38.

(i) Re Hussey's Charities, 7 Jur. N. S. 325.

that disputes were to be referred to the bishop, it was held that daily service was not required, and that disputes as to the conduct of the services must be referred to the ordinary (k).

be altered.

It was doubted in that case whether it was in the power of the Trusts cannot founder, after the creation of the endowment and the consecration of the church, to impose any additional particular trusts on the fund (1).

SECTION III.

MINISTERS OF DISSENTING CHAPELS.

The ministers of Dissenting meeting-houses, like trustees (m), Appointed must be appointed in the mode provided by the deed of trust, the according to terms of which must, as in all other cases, be complied with (»).

deed of trust.

Where the trust deed of a Dissenting meeting-house is silent as Appointment. to the mode of appointment of the minister, regard may in a proper case be had to the usage which has prevailed (o). But that is not Usage. necessarily conclusive (p).

An inquiry may be directed who, according to the nature of the Inquiry. establishment, are the proper persons to elect the minister (7).

congregation.

As a rule, however, where the trust deed contains no express Majority of provision, the election is by the majority of the congregation (»). Where the trust deed provides that the minister shall be elected

by the congregation, it seems that a majority of the congregation is presumed to be intended (s).

Mere occupiers of seats or pews, although in one sense forming Occupiers of part of the congregation, are not necessarily so for the purpose of pews. voting at the election of a minister.

Thus, where a meeting-house of the Scotch Church was held in trust for the congregation, it was held that persons who were merely seat-holders, but not members of the church in the sense of communicants, were properly excluded from voting at the election of a minister; and an application on their behalf for an injunction to restrain the individual elected from acting as minister was refused (t).

In order that the election of a minister may be valid, due Notice of notice must be given of the intention to hold the meeting; and meeting to

(1) Ibid. at p. 420, where the form of order is given; Davis v. Jenkins, 3 V. & B. at p. 159.

(r) See Att.-Gen. v. Aked, 7 Sim. 321;
Davis v. Jenkins, 3 V. & B. 151; Cooper
v. Gordon, L. R. 8 Eq. 249.

(s) Davis v. Jenkins, supra, at p. 155.
See Fearon v. Webb, 14 Ves. at p. 20.
(1) Leslie v. Birnie, 2 Russ. 114.

elect.

Dissenters'
Chapels Act.

Election by

trustees.

Survivors.

Representative of last survivor. Tenure of office.

Minister may

hold office for

persons who are not entitled to take part in the election, as, for instance, persons who are not members of the congregation, must not interfere in the proceedings (u).

The Dissenters' Chapels Act (2) does not apply to a case where the question is whether a minister has been duly ordained in accordance with the original trust (y).

Where the power of appointing the minister, or of approving his appointment, is vested in the trustees, a majority of them may act (z).

And an election by three survivors of a body of twelve has been held good (a).

The power cannot, however, be exercised by the representative of the last surviving trustee (6).

The principle of public policy which, in the case of the Established Church, gives the minister an estate for life in his office, so as to render him in a certain degree independent of his congregation, does not extend to the case of Dissenting ministers (c).

A minister may accordingly be elected for life, or for a shorter life or during period, or merely during pleasure, and, whichever plan is adopted, the Court is bound to carry it into effect (d).

pleasure.

Express provision.

No express provision.

And the provisions of the trust deed with regard to the tenure of office and the mode of dismissal are binding (e).

Sometimes the trust deed is silent with regard to the tenure of the office of minister.

In Att.-Gen. v. Pearson (ƒ), Lord Eldon said: "Although a Court of Equity may not be disposed to struggle hard in support of such a plan (by which the minister is not appointed for life), yet, were the Court to find such a plan established, I know of no principle upon which the Court would not be bound, if called upon for the purpose, to carry it into effect." This seems to suggest that the leaning of the Court would be towards construing the tenure of office of the minister of a Dissenting chapel to be for life.