late M. B. To hold unto the faid A. T. her heirs and affigns, for ever. But in case the said A. T. fhall happen to die before she shall attain the age of twenty-one years without iffue of her body, Then, I give and devife the faid eftate and lands unto my faid two granddaughters, M. and A. D. their heirs, and affigns, for ever, as tenants in common. Alfo I give, devife, and bequeath, unto the faid A. T. All that my clofe of ground, called C M fituate in the parish of CC, in the county of S To bold unto her the faid A. T. her heirs, executors, and affigns, for all the term, and, intereft which I fhall have therein at the time of my decease. Alfo I give, devife, and bequeath, unto my wife M. All that my freehold estate and lands, fituate at Ļ——, in the county of Scharged and chargeable, nevertheless, with the payment of all such monies as fhall be due thereon, by way of mortgage, or otherwife, at the time of my decease, To hold unto my faid wife, and her affigns, for and during the term of her natural life, if the fhall fo long live and continue my widow and unmarried. And from and after her decease, or marriage, which fhall first happen, I give and devise the said eftate and lands at Laforefaid

unto the faid A. T. her heirs, and affigns, for ever. But in cafe the faid A. T. fhall happen to die before the fhall attain the age of twenty-one years, and without issue of her body, Then I give, devise, and bequeath the fame eftate and lands at L aforefaid,

unto my faid two grand-daughters, M. and A. D. To hold to them, their heirs, and affligns for ever, as tenants in common. Alfo I give and bequeath, unto each of them my faid grand-daughters, M. and A. D. a bed, bedstead, and furniture thereunto belonging, which was brought with them; and alfo a bell-metal pot each, and three pewter dishes each: Alfo, I give unto my faid grand-daughters M. D. my clock. Alfs, all the rest of my personal eftate, goods, chattels, and effects whatsoever, and wherefoever, I give, devife, and bequeath unto my faid wife M. whom I nominate, conftitute, and appoint executrix of this my will. And I do hereby nominate and appoint my friends the faid R. N. and T. U. to be guardians and curators of the faid A. T. during her minority, and to be trustees of, and to fee this my will duly performed. And lastly, I hereby revoke all former and other wills, by me at any time heretofore made, and do declare this to be my laft will and teftament. In witness whereof, I have thereunto fet my hand and feal, the 26th day of September, 1765, Ì. T. Signed, fealed, publifhed, and declared, by the faid teftator as and for his laft will and teftament, in the prefence of us, who, at his requeft, in his prefence, and in the prefence of each other, have fubfcribed our names as witneffes thereto,

M. M. M. . M. S. S.

September 26,1765.

I. Tothill's will.

CASE

Ν

CASË.

IN 1610, the inhabitants of T—

-, at their own expence, and for their own convenience, erected a chapel within the hamlet; but before it was confecrated or opened, an agreement was entered into by the then vicar of G of the one part, and several of the inhabitants of the other part, touching the rights of the mother church.

This agreement is registered in the bishop of London's registry, with the act of confecration, and without which the bishop would not have confecrated the chappel.

The church of T is a very ancient building, and now wants a very large and thorough repair; and the building in and about T and with them the inhabitants, having of late years greatly increased, the church really ftands in need of an enlargement, fo as that the inhabitants may be decently accommodated.

On the 10th of July 1770, at a veftry held for T

pursuant to due notice publifhed in the church on the Sunday preceding, it was the unanimous opinion of the inhabitants prefent, that the pews and other parts of the church were in want of confi derable repair, and that there was not a fufficient number of feats to accommodate the parishioners, therefore that the churchwarden fhould appoint proper furveyors to prepare a plan and eftimate, and that he fhould give notice to the churchwarden of T fide to employ a furveyor on behalf of G-divifion, to attend with the furveyor on the T fide, to examine and report their opininns concerning the repairs and increase of seats.

R. T. Efq; was appointed furveyor, and notice of the refolution of this veftry was communicated to the churchwarden of T

On the 5th of September, 1770, at a veftry held for T

it was ordered, That the churchwarden and others fhould be defired to attend the churchwarden of G, and inquire what repairs were purpofed. And it was refolved, that Mr. A. fhould be appointed furveyor on the T fide, to meet the G furveyor.

The furveyors met, and a furvey and eftimate being made, another veftry for G was held on the 1ft of November, 1779, pursuant to due notice, to take into confideration the report of the furveyors,

1 D d 2

respecting

respecting the neceffary repairs and enlargement of the church. At this meeting a paper, intituled, "An eftimate of the expence of the repairs which are abfolutely neceffary to be done in G

church," figned by the three furveyors, and amounting to 2000l. was read.

It was thereupon refolved, as the opinion of the inhabitants, whose names were thereunto subscribed, being the major part of the inhabitants at that meeting affembled, That the feveral particulars of repairs, alterations, and erections, therein after mentioned, were neceffary for the making the faid church as well more decent as more convenient for the inhabitants of the faid parish. By this refolution, fome of the particulars pointed out by the furveyors were rejected, and others altered, and the expence upon the whole greatly reduced.

C

Query. Are the inhabitants of T

liable to enlarge

ment, rebuilding if neceffary, and ornaments, as well as repairs, more particularly, are they liable to any, and which of the articles in the refolution of the 1ft of November 1770?

Will they not be bound by the refolution formed upon the eftimate of their own furveyor ?

Can they by dint of numbers out-vote the inhabitants of T on any point really neceffary, or how should they proceed to get their church repaired?

Opinion. The inhabitants of T

have by their agreement, made them felves liable to the reparation of the church of G from time to time, as they heretofore. have been, on account of being allowed to erect a chapel for their eafe and convenience; and if they had not bound themfelves, they would have been obliged by law to contribute to all neceffary repairs; for this general reafon, because it would be unjuft that an easement granted to one part of the parish, by allowing them to have a chapel appropriated to themfelves, fhould in any way become a burden to the other parish, without whofe confent, it is to be prefumed, the permiffion of erecting a chapel would not have been originally obtained. The reparation to which the inhabitants, having a chapel, are bound, extends not only to the fabric, and to every thing neceffary to the prefervation of that fabric, but alfo to the repair or renewal of decayed pews, ancient ornaments, furplices, bibles, books of prayer, linen, &c. which may be properly required for the decent performance of divine fervice; and fuch reparation, if wanted, the ordinary, either on view or complaint, or both, may compel the churchwardens

-

2

to

to make by his own authority, even if the majority of a parish, in veftry affembled, fhould be of a contrary opinion. The rebuilding or enlargement of a church, or the erection of additional pews, can only be effected by a vote of the majority of the parishioners, affembled on proper notice in a legal veftry. The inhabitants of a chapelry can no more be excluded from the veftry of the mother church than from the church itself, if they chufe to attend it; and whenever any 'business is to be tranfacted in which the chapelry-inhabitants have an intereft, the chapel-wardens ought to have timely notice of the veftry-meeting given them by the churchwardens, that the inhabitants of the chapelry may attend, if they think it neceffary fo to do: if they fhould attend, and outvote the inhabitants of the mother church, I think, that the minority could have no remedy in respect to rebuilding an extention of walls, or the erection of new pews upon new fcites; but the ordinary, of his own authority, may order churchwardens to do all things which he finds neceffary for the support of the ancient fabric, and for the purpose of performing divine fervice; and he has alfo power to enforce his orders on churchwardens, and to oblige them to make a rate to raise a fum adequate to the repair wanted, upon all the parifhioners; who may be compelled by ecclefiaftical cenfures to pay their respective proportions towards that rate, unless any individual can, prove himself to have been unequally affeffed. If fome of the inhabitants of G-- -, being joined by thofe of T fhould out-vote the reft of the parishioners in every thing now propofed, thofe of the district of the mother church might nevertheless be relieved in refpect to all repairs really and abfolutely neceffary, by applying to the bishop of London's chancellor either to take a perfonal view, or to appoint furveyors to take a view for him, and report what is neceffarily and immediately wanting for the fupport of the church, and the decent performance of divine service. And as to the additional buildings and erections fpecified in the estimate, there is no doubt but that a vote for them may hereafter be obtained in veftry, (and of course a faculty) if the inhabitants of G are willing to take the expence upon themselves, and will declare their intention of not affeffing the inhabitants of the hamlet of Ttowards fuch new work. But it will be time enough for the inhabitants of T to procure either of the methods by me propofed, after they tried their fuccefs at a general veftry on due notice.

In

In answer to the queftion, Whether the inhabitants of Tare liable to contribute to any of the articles recited in the refolutions entered into on the 1ft of November? I think, that if the inhabitants of the hamlet fhould not come to the veftry, or be out-voted, they cannot be obliged to pay for additions, and therefore they could only be compelled by a majority to contribute to new pews, where there were pews before, and of course to contribute towards part only of the third article, and towards the performance of the fifth, fixth, feventh, eighth, tenth, and twelfth articles, and part of the ninth, and that on this account, in order to avoid confufion, there ought to be two rates, the one for the repair of the old work only, with an affeffment on all the parishioners; and the other for the new work, and the repairs occafioned by that new work, with an affeffment on the inhabitants only.

Doctors Commons.

April 18, 1772.

I. C.

I

CASE.

In Chancery.

Salway v. Philip's and others.

Cater and others v. Mayor of London and Salway.

Have read the briefs in thefe caufes, and I think there is, upon the evidence taken alltogether, fufficient foundation for the court to direct an iffue to try, whether the defendant P. was a bankrupt on or before the 27th of September, 1757; and Mr. S. muft either pray fuch iffue, or give up the point. How the evidence will turn out when the witneffes are examined and crofs examined viva voce upon the trial, is a matter of which no certain judgment can be formed, and confequently no opinion can be given as to the event of the iffue. The cofts of the iffue will depend on the verdict, and the verdict may draw after it the cofts of thefe fuits; but that is not altogether fo clear. I am of opinion the depofition of the bankrupt may be read to prove the debts of the petitioning creditors, if he has obtained his certificate, and has executed a release of his allowances out of his eftate, by the act 5 Geo. 2. but I think his depofition cannot be read to prove himself a bankrupt. The depofition taken in one cause may be read in the other, upon motion and order for that purpose, but not without an order, as the corporation of London are defendants in both causes; the counfel for Mr. S. (who is plaintiff in the original caufe) can't open their anfwer; I mention this, because the brief in the crofs caufe is marked for the defendant.

April 7, 1760,

R. A.