Prout against Creswell.

by George Lee

Arches Court, Easter Term, April 22nd, 1752. – A churchwarden cannot prevent a minister appointed under a sequestration from officiating in the church. — Augmented curacies stand on the same footing with respect to sequestrations as presentative livings.

(Appeal from Exeter.)

The church of Fresmere, in the diocese of Exeter, is an augmented impropriate cure, which, being vacant, the Bishop granted a sequestration to Edmund Herring, clerk, to serve the cure and receive the profits of the benefice: this sequestration was granted on the 6th of June, 1751. On the 9th of June, 1751, Mr. Herring read the sequestration to Prout, the churchwarden of the parish, and demanded admittance into the church to officiate; Prout refused him, and admitted George Thompson, clerk, to officiate there by his authority as churchwarden, without licence. On the 6th of September, 1751, a citation ex mero officio issued against Prout, to answer to articles for hindering the minister appointed by sequestration from officiating. On the 11th of October, 1751, Creswell was appointed promoter; articles were given in and admitted; Prout's proctor prayed security, but the Court did not decree it.

Dr. Jenner, for Prout, insisted that the principal grounds of appeal, were the want of security, and the articles not being agreeable to the citation, the citation being ex mero officio, and the articles being at the promotion of Creswell. But the præsertim of the appeal was from admitting the articles, and every thing following therefrom, and from all other grievances, without mentioning either the want of securities, or the diversities between the citation and the articles.

Therefore those objections were overruled.

Dr. Jenner then insisted that the bishop may compel the impropriator to nominate a curate, but cannot, as in this case, appoint a sequestrator. Clarke's Praxis, tit. 189. Sequestration shall be granted to the churchwarden to receive the profits and find a clerk; the sequestrator cannot, as such, maintain an action for tithes, but the churchwarden may; a licence to preach is different from a sequestration; it does not appear that Herring had a licence.

Judgment — Sir George Lee.

I was of opinion that the bishop had power to grant sequestration; for this being an augmented curacy, was by stat. 1 Geo. 1, c. 10, [Queen Anne's Bounty Act 1714] put in many respects upon the same footing with presentative livings. (a)2

I therefore pronounced against the appeal, and remitted the cause.

(a)2 Undoubtedly this is so, but another point often lost sight of is that the cure of souls is, by the fifth section of the same statute, specially reserved to the incumbent of the mother church.