The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1875-06-26 00:00:00

111418TOURIltifiDGE OBSEBV

E

COUNTY COURT.
THE LIABILITY OF CHURCHWARDENS.

PAYNE v. DAVIS AND CORBETT.

At the County Court held on Tuesday, before Mr.
R. Kettle, Judge, this was an action brought by
Henry paype: organist of Amblecote Church, against
John Davis, late Churchwarden, andiWilliam Corbett,
present Churchwarden. Mr. Perry appeared for
plaintiff, and Mr. Homfray defended.
Mr. Perry, in opening the case, said the claim was
for £l7, salary due to him; being £9, half-a-year's
salary, and £8 paid to the choir, making the £l7
claimed. Plaintiff was elected organist in 1865, at a
vestry meeting, and had continued in that office ever
since.
For the sake of expediting matters,
_ . _

- Mr. Homfray admitted that the plaintiff was paid
att; 103 a quarter, and they had paid his salary up to
the time for which he claimed. The churchwardens
were elected in 1872, re-elected in 1873, and again
re-elected in 1874, and continued in office until the
present year. They were in office at the time plain-
tiff was discharging the duty of organist for which
he now claimed salary, and also that he had charge
of the choir during the same time. Mr. Corbett was
til churchwarden. Mr. Davis had retired from
office last Easter. At a vestry meeting that was then
held a resolution was passed against which the vie
protested, and said he would inform the bishop of
what had taken place. Since Easter, and after that
resolution was. submitted, the vicar had a special
offertory for the organist.
Mr_ Peiry admitted that different arrangements
had been made since Easter, 1875.
Mr. Homfray said that the churchwardens, up to
last Easter, had expended all the offertory which the
incumbent had given them. They had given Mr.
Payne, £9. They had di:tributed the money eqait-
ably amorig all ;the parties who had claims upon than).
were obliged to pay for the gas in full, bat all
die other icons they paid pro rata, and no one si:lgle
poison hal their salary paid in full in the year 1575,
aad since then the vicar had refused to allow the
churchwardens any off,.rtories at all. Nine poriads
had bean paid for the year's salary to plaintiff. There
was really £lO due to him.
Mr. Perry denied this.
Mr. Homfray said that dming the time that Messi s.
C,.rb3tt and Davis were in office, there was only ten
guineas due, because they had to take up arrears
which had been left by their predecessors; but if they
took the plisintifl's statement there were really .217
due to him. Plaintiff was suing for salary up to De-
cember, 1874. •
Mr. Perry explained that the organist enlered upon
his duties at Midsummer, and was paid from Mid-
summer to Christmas, and when the churchwai•dens
came into office they would only pay at Midsummer,
and hence the arrears were left.

Mr. Homfray admitted there were arrears due to
plaintiff before defendants came into office. He
wished to knov whether the churchwardens were to
b.-) treated as a corporate body, or was the ca,-;c to be
tested as a persolal affair?
His Honour, who was making notes of the
admis-
sionS on either side, said:he would put it that part of
the claimed was in arrear More the deteudants
oam.3- into office.

Mr. CorbeA was then sworn, and Mr. Hoinfray
ihterrog,a,ted him as follows :
Mr. Homfray : Have you since Easter 1875 received
any money as churchwarden?
Mr. Corbett: No, I have not.
His Honour asked Mr. Homfray what wa6 Li. ob
-
ject in asking this question.
Mr. Homfray said his contention Ri3 that they
were a semi-corporate body, and were. only liable LO
far as they had ftvids.
Mr. Corbett: I am one of the Churchwarden, end
Mr. JohnsoniS the other. Thera wcs a re:0111'0n
passed at a vestry met ting about the organist's
hich was protested against by the Vicar.
His Honour (to Mr. Corbett): Have you re.-!Avea
any MoneY from the offertory in 1875 ?
.Mr. Corbett: I have received meney but, have,
• aTti it hack. The fir,.t Sunday after tir: Eastar
vi,stry meeting I went to the church and received. the
offirtory, and by the advice of Mr. Sherrard I re-
turned the money.

This being the case,
Mr. Honifray addressed his Honour for tho de-
fence, and said in the first place the whole relation-
ships of the churchwardens and vicar had changed
since Easter, 1871! Since that date the vicar had
pat a veto on the offertory, and said he should do
with it as he liked. He would state as a matter cf
law that an organist's wages were never payable out
of church rates. He quoted a case in which a man
named Coley was charged with playing on the organ
in a church at Yeovil, contrary to the wish of the
vicar. The Dean of Arches held that the incumbent
had perfecticontrol of the organ in his church. The
churchwardens had no control whatever over them.
He quoted another point of law, which was to the
effect that churchwardens were not bound to pay for
anything out of their own pockets. It was their
duty merely to obtain a voluntary rate. If there
was any deficiency it would have to be made good by
pew rents or by ,voluntary contributions. The
churchwardens had nothing whatever to do with it.
As far as his client was concerned they were anxious
to pay the plaintiff. Last year there was an rrear
due to him, and the vicar said he would have a special
offertory for him. The churchwardens had not made
any contract with the plaintiff. He was the organist
when they came into office, and they had paid him as
far as the money would go.
His Honour asked Mr. Corbett what had taken
place after the Easter vestry meeting.
Mr. Corbett said the vicar took charge of the.
offertories himself, and had charge of them still so
far as he knew. He had never paid witness any
money. He had not received any part of the offer-
tory since. He had not received any money since
Easter 1875. The vicar appropriated it to himself.
Mr. Perry, referring to the point as to the amount
which was paid to plaintiff, said the first payment
made by. them really was in respect of a quarter due
before they came into office, and as it was a voluntary
payment it could not be recovered, and they could
not now set it against debts which had arisen since
they came into office. The question of the personal
liability of churchwardens to organists or others em-
ployed by them, had not been altered since church
rates had been abolished. -

- His Honour reminded Mr. Perry that the organist
was not employed by the churchwardans.
Mr. Perry said he took it that their payment of
money to plaintiff, 'was a ratification of his being
their servant. Mr. Perry theu quoted a case from
"Chitty on Contracts," where churchwardens em-
ployed a person to make a plan, and another where
churchwardens gave orders for repairs to be done to
a church, and in both cases they were held to be
liable. His friend had contended that the organist's
salary was not payable out of church rates, but he
quoted a case out of Haggats' Third Ecclesiastical
Report, where an organist was paid out of the church
rates, with the consent of the vestry. With refer-
ence to what had been said by his friend as to a per-
son playing upon an organ, he did not see that that
had an thing to do :with it.
His Honour said, as the words were quoted by Mr.
Homfray, that case did not apply.
Mr. Homfray said it showed that the vicar had the
management of the organ.
His Honour said it showed he had the management
-so far as to prevent any person from playing the
organ whilst the sermon waslbeing preached.

Mr. Homfray not quoted the ease'of "The Queen
v. Baker and Churchwardens of St. Stephens," 14th
Law Journal, 34th page, where Justices held that they
were not bound to supply an organist where there
before was none. He also quoted another case, but
His Honour reminded him that at Amblecote they
had an organist. In the cases just quoted they had
no organist and were, therefore, not bound to pay
him.

Mr. Homfray contended that there was no legal
obligation compelling any one to pay an organist.
His contention was that churchwardens had only to
dispense the money which they received, and that
when the supply ceased the obligation ceased, it
was only concurrent with the supply. This:was an
action in which it was endeavoured to make them pay
out of their own pockets. The moment they had
funds they were willing to pay Mr. Payne, but so
long as they had no funds they could not do so. At
present they were in the position of executors with-
out funds. This was a very important ease, as if it
was found that churchwardens were liable to such
charges as these, no one would accept office.
His Honour announced that he would reserve his
decision.

Billingham v. ilittrin.—This was an action
brought to recover the sum of £25 the value of a
horse. Mr. Collis appeared for the plaintiff, and
Mr. Homfray for the defendant. Plaintiff resides
at Cradley Heath, and the defendant, at Wordsley-.
Plaintiff said I reside at Cradley Heath. in April
last, I went to defendant's house and saw a grey
gelding, which had a runing at the nose. I said
to the defendant "what makes his nose run"?
He said that the horse was coming out of the
foundry and knocked his head against some rails,
and hurt it. but said it would bbe well in a few
days. Plaintiff asked him if he would warrant the
sound. Defendant said he would, with the excep-
tion of the hurt on the head. Plaintiff gave .£2l
for the horse and took it away. A man named
Brown was present, and heard the conversation.
Plaintiff after took the horse to Mr. Blakeway,
veterinary surgeon, who examined it in my presence
Plaintiff offered the defendant, (on the premises
of Mr. Blakeway) £1 if he would give me the
money back, which he refused to do, unless I
gave him £6. Mr. Blakeway said it was wrong,
and advised me not to do so. Arthur Evers, engine
fitter, said he was with the plaintiff when he
bought the horse. Defendant said the horse was
sound, but called his attention to the wound on
the head, which had been caused by a fall against
the rails, which defendant said would be well in a
day or two. Jeremiah Brown gave corroborative
evidence. Francis Blakeway said that his atten-
tion was first called to the horse in question, in
the early part of 1874, and continued until the
end of the year. It was suffering from a deceased
bone in the head. Told him if the horse was op-
perated upon, it would be cured. Had opperated
upon it and took two bones out of the, head, and
dressed it, and directed the defendant what to do.
The horse has been at work since. This being the
evidence, Mr. Homfray, addressed his Honour for
the defence and contended there was no fraudent
intent. His Honour considered that there had
been concealment of the trepanning, and gave a
verdict for £2l without costs,