The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1880-06-12 00:00:00

The DUKE of NORFOLK V. ARBUTHNOT.

On Monday the Court of Appeal consisting of Lords-
Justices Bramwell, Baggallay, and Brett, gave judgment in
the case of the Duke of Norfolk e. Arbuthnot, which involved
the question of the right of the Duke to the Fitzalan Chapel,
in the parish of Arundel.
The action was brought by the plaintiff against the
vicar of Arundel for trespass in pulling down a wall
erected by the duke across the end of the chapel, his
Grace alleging that the chapel had originally been
granted to the College of Arundel by the founder,
and had alwa3-s been the exclusive property
of the Dukes of Norfolk. On behalf of the defendant
it was argued that the disputed building was, and had
been from time immemorial, the great choir or chancel
of the parish of St. Nicholas, Arundel, which it ad-
joined. The action was tried before Lord Coleridge,
who reserved the questions of law for further considera-
tion, and ultimately gave judgment for the plaintiff,
and against this judgment the present appeal was
brought.
Mr. Charles, Q.C., and Mr. Jeune were counsel
for the appellant, and Sir John Holker, Q.C., and
Dr. Phillimore for the Duke of Norfolk.

Their lordships having heard the arguments in sup-
port of the appeal, which occupied several days, on
Monday decided that it was unnecessary to hear the
Duke of Norfolk's counsel, and gave judgment dis-
missing the appeal, with costs.

Lord Justice Bramwell said that the judgment must
be affirmed. He was not persuaded that Lord Cole-
ridge was wrong, and that being so, he was inclined
to say no more after the elaborate arguments in the
court below. No doubt any one looking at the struc-
ture would say that the whole was one single building,
and the ancient documents before the court spoke of
it as such; but from the time of the dissolution of the
monasteries in the reign of Henry VIII. the so-called
chancel had been shut up. Nobody had repaired it,
and the duke alone had used it. These circumstances
could only be explained by supposing that it never
was a part of the parish church. The award in the
year 1511 was also very strong in favour of the plain-
tiff, as it showed that there was in the church what
what was called a parochial chancel, and though the
place in dispute might have been popularly called the
chancel, people at that time knew that it was not the
true one.

Lord Justice Bag,gallay was of the same opinion for
the reasons stated in the judgment of Lord Coleridge.
The manner in which the building in question had been
used went far to show that it never belonged to the
parish church.
Lord Justice Brett concurred. If the disputed
structure did not belong to the parish, the plaintiff
was entitled to succeed, and it did not matter whether
the building was the Duke's private chapel or not.
The fact that some of the Duke's predecessors had been
buried there, the Church of England service being
read over them, it was difficult to account for,
but it could not be said to be inconsistent with
the rites of the Roman Catholic Chureh, inas-
much as that church required no service. The burials
had, moreover, taken place without claim or remon-
strance on the part of previous vicars. He had come
to the conclusion that the church was built by the
Earls of Arundel for the college, but that the parish
had the right to perform service in one part, viz., in
the southern transept. That there could be such a
division was shown by the instances of Eton College
Chapel, the Lady Chapel of Ely Cathedral, and also
by Carlisle and Durham cathedrals, and the chapel of
Merton College, Oxford, in all of which such a divi-
sion existed. This right of the parish of Arundel had
been enlarged by prescription, and they were now en-
titled to the whole church, except the Lady Chapel
and the chancel in dispute.