what effect this had as to the election of Churchwardens. Under 8 and 9 Vict., cap. 70, sec. 6, it was provided that “two fit and proper persons should be annually elected Churchwardens, they residing within the district;” and if that statute applied, it was admitted the Churchwardens must be resident. But it was disputed whether it did apply, or whether at common law Churchwardens must be resident. In Lord Blandford’s Act it is provided, in sec. 14, that wherever and as soon as banns of marriage are authorised to be published in a consecrated Church or Chapel to which a district belongs, and the Incumbent is by such authority entitled, for his own benefit, to the fees arising from the performance of such services, then such district shall become and be a separate parish for ecclesiastical purposes, as is contemplated in 6 and 7 Vict., cap. 37, sec. 15, and all the provisions of the same shall apply; and then, under that Act, sec. 15, when any Church or Chapel shall be built, etc., such district shall from and after consecration be deemed to be a new parish for ecclesiastical purposes. This, however, did not in terms, it will be seen, deal with the present question, and appeared to leave it open,
and so it will be seen it was discussed in the alternative on the ground that at common law Churchwardens must be resident, and that is not altered by one Act, and is re-enacted in the other. However, in the present case it appeared that it had not been so understood, and on April 25, 1889, when, at Easter, two Churchwardens were chosen for the new district parish of Christ Church, Beckenham, one of them was a gentleman who had been chosen in previous years, and who is not a resident, though he is a rated occupier in the parish. The gentleman in question, a Mr. Matthews, was elected by a majority of three; no objection was taken at the time, but afterwards his opponent, a Mr. Hayland, desired to raise the objection, and on June 24th last obtained a rule nisi for a mandamus to the vicar to hold a new election of churchwarden on the ground that the election of Mr. Matthews was invalid, as he was not a resident in the parish, he having premises there, a “store” and some stabling for which he was rated, but not living in the parish. The case now came on to be argued.
Mr. Dibden appeared for the applicant.
Mr. Jeune, q.c. (with Mr. Houghton), appeared on the part of the vicar to show cause.
Lord Coleridge said, in giving judgment, that the party elected was not entitled to hold the office. The effect of the statute was that the new parish was to be treated for all purposes as the old one—that it was to be subject to the same law. Now, it was necessary under the old law that churchwardens should be living in the parish. This gentleman was not so; and therefore was not under the old law “a fit and proper person” to hold the office of churchwarden. The Churchwarden had to discharge various duties which required knowledge of the parish and parishioners. It was said that there were authorities to the contrary in the Ecclesiastical Courts; but speaking of them with the utmost respect, those were ecclesiastical cases, and this was a common law case—that is, a case to be decided by the common law—and he did not think that by the common law a party not living in the parish, and perhaps living at a distance, was qualified to be elected, and, if elected, bound to serve the office of churchwarden. It appeared to be clear, rating would not be enough. It was admitted that there must be some kind of occupation equivalent to actual residence, and in the present case there was nothing of the kind. No doubt the
parishioners were glad to have a respectable gentleman to fill the office. No doubt the word “residence” had received under different statutes different interpretations, the sense being necessarily different. Sometimes it meant where a man could be found during the day; sometimes it meant where he slept or lived; and for some purposes perhaps this gentleman might be deemed a resident, but for this purpose it was necessary that he should live in the parish, be acquainted with the parishioners, and thus be able to exercise the duties of his office, which were to be personally exercised. The rule for a mandamus to the vicar, therefore, must be made absolute.
Mr. Justice Mathew concurred.
Rule absolute for a mandamus.
From the Times, Nov. 29th, 1889.