Doe er dem. St. George's Church v. Cougle & Mayes. On the said 28th day of January, A. D. 1867, when the said William Walker was in full Orders as a Priest of the Church of England, the said Lord Bishop of Fredericton issued to him a paper-writing, as and for letters of institution to the said Rectory, under the hand and Episcopal Seal of the said Bishop, which alleged letters of institution are as follows: John, by Divine permission, Bishop of Fredericton, to our well-beloved in Christ, William Walker, Clerk, Greeting: We admit you to the Rectory of the Parish Church of Saint George, Carleton, in the County of Saint John, and Diocese of Fredericton. And we duly and canonically institute you in and to the said Rectory, and invest you with all and singular the rights, members and appurtenances thereunto belonging, you having first before us subscribed the articles, and taken the oaths, and made and subscribed the declaration, which are in this case by law required to be subscribed, made, and taken. And we do, by these Presents, commit unto you the cure and government of the souls of the parishoners of the said Parish: Saving always to us, and to our successors, the Episcopal Rights and the Dignity and Honor of the Cathedral Church of Fredericton. In testimony wherof we have caused our Episcopal Seal to be hereunto affixed, and we have subscribed the same this twenty-eighth day of January, in the year of our Lord one thousand eight hundred and sixty-seven, and in the twenty-second year of our consecration. JOHN FREDERICTON. Afterwards the said Lord Bishop of Fredericton issued a paperwriting as and for his Mandate directed to the Churchwardens of the said Parish, commanding them to induct the said William Walker into the said Parish and Rectory; but the Churchwardens refused to do so, until they had time and opportnnity to take legal advice and consult the Vestry and Parishioners. Afterwards the said Bishop issued another Mandate for the said Induction, and directed the same to the Rev. William Hubbard DeVeber, which last named Mandate is under the hand and seal of the said Bishop, and is in the following form: Form of Induction to a Benefice in the Diocese of Fredericton. To our Beloved in Christ, William Hubbard DeVeber, Clerk, Rector of St. Paul's, Portland, St. John, Greeting: Whereas the Rev. William Walker, Clerk, hath requested of us Letters of Institution and Induction to the Rectory of St. George's, Carleton, you are hereby authorized to induct the said William Walker in form following: On some day appointed you are to take the said William Walker by the hand, and placing in his hand the key of the Church door, you are to say: By virtue of the Mandate of the Lord Bishop of Fredericton, I, William Hubbard DeVeber, do induct you William Walker into the real and corporeal possession of this benefice of St. George's, Carleton, with all things appertaining thereunto. And the said William Walker is then to toll the bell twice or thrice (if there be a bell), in token to the parishioners of his induction. JOHN FREDERICTON. [L. S.] Doe ex dem. St. George's Church v. Cougle & Mayes. On the 13th day of April, 1867, the said William Hubbard Deveber, in obedience to said Mandate, and with the consent and in the presence of Colonel Samuel Strange, Messrs. John S. Craft and William H. Craft, being at that time three Vestrymen of the said Church and Parish, but without the knowledge or consent of the defendants or of the Churchwardens and other vestrymen of St. George's Church, and contrary to their wishes, did attend at the said Church, and there took the said William Walker by the hand, and placing in his hand a key of the said Church door, said to the said William Walker: "By virtue of tha Mandate of the Lord Bishop of Fredericton, I, William Hubbard DeVeber, do induct you, William Walker, into the real and corporeal possession of this benefice of St. George. Carleton, with all things appertaining thereunto;" and the said William Walker did thereupon toll the bell of the said Church twice or thrice in token of his induction. On Easter Monday following, being the 17th day of April, 1867, the said William Walker presided at the annual meeting of pewholders, convened to elect Churchwardens and Vestrymen for the ensuing year, as by law required to be held on that day. At this meeting, no opposition was made by the defendants to the said William Walker presiding at said meeting, as they were under the impression-an impression derived, as they allege, from the said Colonel S. Strange and others of Mr. Walker's friends-that it was understood that if at said election, Churchwardens and Vestrymen friendly to him should be elected, then the defendants and others who were opposed to Mr. Walker's appointment to the Rectory, should withdraw their opposition; but that if Churchwardens and Vestrymen hostile to Mr. Walker's appointment should be elected, that then he was to retire from the said Rectory and benefice, and without which understanding they allege they would have opposed the said William Walker presiding as aforesaid. But the defendants are unable to connect the said William Walker with this alleged understanding, and he alleges on the contrary that no such understanding was ever had to his knowledge, nor with his assent. The defendants also allege that it was on the faith of this supposed understanding that they wrote to the said William Walker the letters hereafter referred to. At said meeting a majority of those who were then declared qualified to vote appeared against the said William Walker by the election of the defendants as Churchwardens, and others as Vestrymen; but it was not so decided by the chairman, who refused to make any decision, and retired from the said meeting. On the 6th May A. D. 1867, the defendants addressed to the said Doe ex dem. St. George's Church v. Cougle & Mayes. William Walker the following letter, acting, as they supposed, under the said understanding: REV. WILLIAM WALKER: CARLETON, May 6th, 1867. Sir, We request you to call a meeting of the Vestry, to meet at half-past six o'clock this Monday evening, at the Sunday School-house, St. George's Church. Please let the Vestry Clerk notify the same, as he has the names of the new Vestry, and oblige Yours, &c., OLIVER B. COUGLE, Wardens. On the 14th May, 1867, the defendants also addressed another letter to Mr. Walker, which is as follows: REV. WILLIAM WALKER: CARLETON, St. John. N. B., 13th May. 1867. Dear Sir, As there are many things that the Vestry wish to have brought under consideration, we have to request that you will direct the Vestry Clerk to call a meeting of the Vestry on Thursday evening at half-past 6 o'clock. We are, very respectfully, } OLIVER B. COUGLE, Churchwardens. On the 18th of May, 1868, in answer to another letter of Messrs. Mayes and Cougle, acting as Churchwardens, Mr. Walker wrote as follows: Messrs. COUGLE & MAYES : CARLETON, May 18. Gentlemen, In consequence of my Sunday duties, and of other matters to which I have been obliged to give my attention, it will be extremely inconvenient for me to attend a meeting of the Vestry this evening. But I shall be very glad to have a meeting of the Vestry on Monday evening at 7 o'clock. If it can be postponed till that time, I shall be very glad. Will you be so good as to let me know whether this will be convenient to you. W. WALKER. The said William Walker continued to act as Rector of the said Parish and Church, and to hold the usual services in the Church, but without the defendants' consent and against their wishes until Easter Monday, 1868, when the defendants, and others acting with them, held a meeting of some of the parishoners, alleging and treating the Rectory as vacant, and refused to permit the said William Walker to be present at said meeting as Rector, and at said meeting the defendants were re-elected Churchwardens, and others were elected Vestrymen. On the same day (the defendants having refused to permit the said William Walker as Rector to enter the said Church or Doe ex dem. St. George's Church v. Cougle & Mayes. School-house adjoining for that purpose) the said William Walker held a meeting of pewholders at the Church door, and at that meeting Wardens and Vestrymen for the ensuing year were elected, neither of the defendants being so elected. At this last mentioned meeting and election, the said William Walker presided as Rector. On the next day, being the 13th April, 1868, the defendants and others acting with them, shut up the said Church and the Schoolhouse adjoining, and boarded up the windows thereof, and have since that time kept possession of the said Church and School-house, and kept the windows thereof so boarded up, and no services have been held there since. Under the foregoing facts, the questions for the opinion of the Court are: 1. Were the defendants justified in closing up the said Church and School-house against the said William Walker as Rector, and keeping possession of the same as above stated; and in refusing to call on him to preside at the Easter meeting, 1868, as Rector? 2. Had the Administrator of the Government and the Bishop of Fredericton, respectively, the power to issue or grant the said snpposed letters of presentation, institution, and mandate of induction, and to the said Rev. William Walker, and in the manner and form aforesaid; and was the Rev. Willam Walker duly presented, instituted, and inducted to and into the Rectory of St. George's Church; and is he, by virtue thereof, lawfully Rector of the said Parish? 3. Upon the whole case, is the plaintiff entitled to recover upon either, and which, or on both of the demises contained in the declaration in this suit? If the judgment of the Court is in favor of the plaintiff, then judgment is to be entered in favor of the plaintiff against the defendants upon the postea as upon the verdict of a jury given at any Circuit Court for the City and County of St. John, prior to said judgment, with one shilling damages and costs of suit; if the judgment be for the defendants, then such judgment is to be entered as upon a like verdict of a jury, with costs; in either event costs to be taxed for the successful party, together with such counsel fee as on trial, and for argument, as the Court shall direct. S. R. Thomson, Q. C., for the plaintiff said: Upon the facts disclosed by the special case, there must be judgment for the plaintiff. The question is whether that judgment shall be given on only one demise, viz: that of the Church Corporation, or on both demises. If Mr. Walker is not Rector, then the plaintiff must succeed upon the first demise; if he is Rector, then we are entitled to the judg Doe er dem. St. George's Church v. Cougle & Mayes. ment on the whole case. In no point of view can the defendants justify their unprecedented and high-handed act of closing the Church against public worship. Even supposing them to be legally elected Churchwardens (and it is clear they were not such) they have no power to close up the Church, either to gratify malice, or in the discharge of a mistaken duty. This point is too plain to require argument, and I pass to the important question, which all parties desire that the Court shall settle, namely, is Mr. Walker the Rector of St. George's Church? From the earliest establishment of this Province to this day, the status of the Church of England in this Province has been declared by the Crown in various commissions and instructions addressed before the "British North America Act, 1867," to the Lieutenant Governor of New Brunswick, and since that Act to the Governor General, That status has also been fully recognized by the Legislature of this Province, through a series of Acts running through our Statute Book from the first session of the Legislature which met nearly a century ago, to the session which is now being holden at Fredericton. [Mr. Thomson then referred to the various Acts alluded to.] The Queen is the Supreme Head, upon earth, of the Church of England, and in virtue of her prerogative collates to vacant benefices. That prerogative extends to this Province, and has always been recognized and acted upon from the earliest times. In whom is the right of a presentation to a Rectory in this Province, if not in the Crown? The learned Counsel on the other side cannot answer the question. All Rectors now living in the Province have been so presented; all former Rectors now dead were so presented. According to the contention of these defendants, not one of the Rectors was legally appointed. Those who are living are usurping an office to which they have no legal claim. If the Governor, as representing the Crown, had no right to present Mr. Walker, what meaning can be attached to the third section of the Statute Tit. XXVIII. Cap. 107? (1 Rev. Stat. 272). That section declares that if a beneficed Clergyman shall presume to use any other form of prayer, &c., than that in the Liturgy, he shall on being convicted thereof by the Supreme Court, be ipso facto deprived of his benefice, "and the Governor may present to the same as if the person so offending were dead." This is a clear legislative declaration that the right of presentation was vested in the Queen's Representative. It is absurd to suppose that no such power existed in the Governor, except in those cases where Clergymen were convicted under this Act. Aside from statutory power, the Crown, as parens patrice will necessarily have the power to collate to a bene |