1824. The KING v. PETERBO ROUGH. are therein described. The 14th section, upon which much stress was laid in argument at the bar, is a restraining and not an enabling clause. It enacts that nothing in the said act contained shall authorise a bishop to assign to a curate, The Bishop of a greater stipend than is allowed by the statutes in force before the passing of this act, unless with the consent of the incumbent, in three several instances, first, to the curate of an incumbent holding his benefice before the passing of the act, and on which he shall be non-resident by license or exemption; secondly, to the curate of an incumbent who shall duly reside on his benefice; thirdly, to the curate of an incumbent of a benefice who shall himself do the duty of the same, having a legal exemption from residence, or a license to reside out of his benefice, or out of the parsonagehouse. Now a clause so framed cannot, according to any sound rule of construction, be deemed to give any power to the bishop; neither can any inference be reasonably drawn from of it, that the bishop possessed any prior authority to fix the salary of a curate of a resident incumbent, because in the two other preceding instances, mentioned in this section, this statute had given no power to the bishop which he did not possess before this act passed, as obviously appears upon referring to the 7th and 1st sections of this act. This clause also seems to have been introduced only from more abundant caution, and, like many other clauses of the same description, is introduced where perhaps caution was unnecessary. The 17th section provides for the salary of the curate of an incumbent " having two or more benefices, and residing part of the year on one, and part on another, and employing a curate from time to time, upon such of the same from which he shall be absent during his residence on the other." This is virtually a provision for the curate of a non-resident incumbent. The 18th section relates to the particulars to be stated by an incumbent applying for a license for non-residence, and requires him to state the salary he proposes to give to his 1824. The KING 0. The Bishop of curate; and the 19th section requires the same particulars to be stated on an application for a curate by an incumbent exempt from residence. From this view of these several statutes, it is manifest that they do not authorise the bishop to fix the salary of a curate of a resident incumbent without the consent of such incumbent. All these statutes were repealed by the 57 Geo. 3. c. 99. for the purpose of explaining some of their provisions, and of adding others, and they are to be referred to, not as law, but for the purpose only of explaining and construing the act last mentioned. This last act embraces several other subjects, as well as the licensing of curates and assignment of their salaries; and upon an attentive perusal, it appears that almost every clause upon this subject is taken from some clause in one of the former acts, with some variations and improvements, but without any alteration important to the consideration of the present case. The only clause on this subject entirely new is the 50th, which empowers the bishop to appoint a curate with such stipend as therein mentioned, "when it shall be made appear to him, that by reason of the number of churches or chapels belonging to any benefice, or their distance from each other, or the distance of the incumbent's residence from any of them or the negligence of the incumbent, the ecclesiastical duties of the benefice are inadequately performed." The case now before the court is certainly not of this description. Having thus detailed and commented so minutely on the clauses, in former acts, it is wholly unnecessary to refer particularly to the corresponding clauses in the act now in force. It is sufficient to say, that, in the act now under consideration, nothing is to be found which can authorise the Court to consider the present case as falling within the scope of the 53d section. It forms no part of our duty to pronounce any opinion upon the expediency of giving to the ordinary a direct authority to appoint a 1824. The KING v. PETERBO ROUGH. salary to the curate of a resident incumbent. We learn from these acts that the legislature has thought it expedient to give to the ordinary a power of fixing a curate's stipend in certain cases, and coupled with certain restrictions. If the The Bishop of power is not given in certain other cases, we ought to infer, that the legislature has not hitherto thought it expedient to give the power. Whether from an apprehension that resident incumbents might be thereby deterred from taking an assistant in the performance of their duties, or for what other reason, it is not our business to inquire. Our judgment on the present case is given with reference to its own peculiar circumstances, namely, the assignment of a salary to the curate of a resident incumbent greater in amount than the incumbent had proposed or consented to. In giving our judgment upon this case, therefore, we are not to be understood as giving any opinion upon the general question, as to the effect of a salary assigned to a curate of a resident incumbent, in conformity to his own proposal, nor upon the authority of the bishop to entertain in any case a suit for the curate's salary, in a formal manner, according to the course and usage of the ecclesiastical law; but I cannot abstain from remarking that the power to proceed by monition in any case regarding the stipend of the curate of a resident incumbent is so questionable, that it may be a fit subject for the consideration of the legislature. One of the objects of these statutes appears to be the maintenance and protection of curates. We cannot doubt that the judge against whom this application was made, thought he was acting in pursuance of this object, and discharging his duty according to the provisions of the statute; but we think he has been mistaken in the application of the statute in this particular, case. We are therefore of opinion that the rule for a prohibition must be made absolute. Rule absolute. 1824. Saturday, Where the drawer of a bill of exchange in dorses it to a third person as a valid security, and whilst it is cur rent, his de it was an ac defeat the indorsee's right to sue the acceptor. SHAW v. BROOM. ASSUMPSIT by the indorsee against the acceptor of a bill of exchange for 100l., drawn by one E. Clifford. Plea, non assumpsit. At the trial before Abbott, C. J., at the Middlesex Sittings after last Hilary Term, it appeared that Clifford, the drawer of the bill, having been arrested, had applied to the plaintiff to become one of his bail to the claration af- sheriff, which he agreed to do upon being indemnified terwards that against the consequences. Clifford then deposited the bill commodation in question with him, on condition that it was to be rebill, will not turned when the purpose for which it was deposited, was answered. The action against Clifford was afterwards settled, and the plaintiff was discharged of his liability as bail. At this time, however, there were accounts between the plaintiff and Clifford, the latter being indebted to the former for goods sold, an upon a warrant of attorney, exceeding the amount of the bill. The plaintiff rested his case upon proof of these latter facts. In answer to the plaintiff's case, it was proposed to give in evidence a declaration on the part of Clifford, that the bill was merely an accommodation bill, and accepted for him by the defendant without any consideration. A witness accordingly proved, that he had heard Clifford say, that the bill had been accepted by the defendant for his accommodation, and without any consideration. It appeared, however, that this declaration was made by him after the bill had been indorsed to the plaintiff and before it was due. This evidence, it was contended on the part of the plaintiff, was inadmissible to affect the plaintiff's title to sue. The learned Judge, however, received it, reserving its admissibility as matter for farther consideration. The defendant, in the distress of the case, then called Clifford, who proved that in point of fact the bill had been merely accepted for his accommodation by the defendant, and denied all consi deration between him and the plaintiff for the bill. The jury found their verdict for the defendant. A rule nisi for a new trial having been granted in Easter Term, on the ground that Clifford's declaration was inadmissible in that stage of the cause in which it was received, Parke and Abraham now shewed cause. The declaration of Clifford, the drawer, that the bill was accepted by the defendant for his accommodation and without value, was admissible evidence to impeach the plaintiff's title to sue. The plaintiff derives title from the drawer, and therefore what would be an answer to an action at the suit of Clifford is equally an answer to the present action. The plaintiff is in effect trustee for the drawer, and must recover, if at all, through the title of the latter. This is analogous to the case of a nominal plaintiff suing upon a policy of insurance, where the declarations of the assured, or party really interested, may be given in evidence to shew that the defendant is not liable. In an action upon a charter party, by the master of a ship for freight, the declarations of the owner, for whose benefit the action is brought, are evidence for the defendant, Smith v. Lyon (a). Upon the same principle the declaration of Clifford, the drawer, was admissible, to shew that the plaintiff had no right to sue, and therefore this verdiet cannot be disturbed. They referred to a case of Benson v. Marshal (b), tried at Lancaster, where the point now contended for was expressly ruled by Holroyd, J. There the plaintiff sued as indorsee, against the defendant as acceptor of a bill of exchange. The defendant offered evidence of a declaration by the payee, that he had parted with the bill to the plaintiff without consideration, and it was received. [Bayley, J. That would not hurt the payee's title; it only went to impeach the plaintiff's title. The question here is, whether the (a) 3 Campb. 465, See Rer v. Hardwicke, 11 East, 578. (b) Not reported. 1824. SHAW v. BROOM. |