The Express.
London, England, 1852-06-26 00:00:00

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The learned judges yesterday morning gave their opinion
ea the three questions of law submitted to them by the
hose CAW was argued in February last. It is u
writ of error brought to reverse &judgment of the Court of
Exehegar Chamber, whereby a judgment of the Onset of
'Wen *Bench was &Armed by a majority of four judges to
three, allowing a general demurrer to is declaration in pro-
hibition. The goatlike touches the validity of a church
rate made by a minority of the parishioners in vestry
awenibled after a refusal by the majority. The facts and
or,tunienta were very fully reported in the Dads
..Vera
whoa the writ of erne was creed; it is only therefore
necessary how very Okay to state the circumstances out of
wilsch the present question arose. It may be as well to
premier that it was held by the Courts of Queen's Bench
(.• Defiler v. Vi!et ," 12 Ad. and El., 217; 4 Jurist, 3riS)
and Exchequer Chamber (" Veley v. Murder," 12 Ad. and
El 301 ; •-• Jur. 1011), that the churchwarden' alone could
not make a s did rate. Lord Chief Justice 'findal, in de-
beefing :be judgment of the latter court, said the repair of
the church was a common law obligation on the pa-
rishioners ; but the parishioners in vestry hail to determine i
bow and ru whit manner the common law obligation eo
binding them might be best and most elLetually, and at the
same time need conveniently and fairly between themselves,
performed and earroal into effect.
A monition, at the instance of the Rev. Bernard Scale,
the vicar of the parish of Braintree, issued from the Con-
sistonal and Episcopal Court of Loudon, on 30th June,
1011, to the churchwarden, to convene a vestry to make a
rate. A vestry was held, and a rate of '2.. in the pound
proposal and wooded. Au amendment, containing a de-
elaration astainst the principle of thatch rates, was carried
by:a large majority 4whereupon:the ehurchwarden and the
minority made and signed the rate, the majority protesting.
The churchwarden commenced a suit for subtraction of
church rate waist Mr. John Ousting, the plaintiff in error.
Dr. Lushington, the vicar.general and official principal of
the Coosistorial and Episcopal Court of London, rejected
the libel ; but on appeal to the Arches Court of Canterbury
the late Sir H. J. rust reversed the decree, and admitted
the libel to proof, the &rodent to answer in the Arches
Court. Mr. Gosling then applied to the Court of Queen's
lh'nch for a prohibition. It was argued os a general de-
murrer, and the court, on Sib Feb., 1847, gave judgment
in favour of the churchwarden. It proceeded on the ground
that the majoritj at the sestry,who declared by their amend-
ment that they would make no rate, were to be considered
ea throwing away their votes, and that the majority of those
whi remained willing to make a rate had power to do so
(7 Q. B Rep. 406, 11 Jurist, 385). Thejudgmest so given
was brought before the Court of Exchequer Chamber by
writ of error, and very fully &rood in the months cf Jun.
and November, 1848. On the 22iid of January, 18.'0, that
court, by a majority of 4 to 3, affirmed the judgment of the
Queen's Bench. It was held—
Firstly, hy Justices Mauls and Croswell and BOMB
Itolfc (now Lord Cranworth) and Platt, that it sufficiently
appeared that the rate was made by others of the ratepayers
than the majority who had voted for the amendment ; and
by Barons Parke and Alderson that, if it were left doubtful,
peohibition ought not to issue; but by Lord Chief Justice
Wilde (now Lord Truro) that prohibition ought to issue,
because it appeared that the rate was not made upon any
proposition submitted to the vestry, or by any vote of the
vestry, or by a majority of the vestry constituted in any
eaminer.
Secondly, by Justices Mauls and Cromwell and Barone
Alderson and Platt, that the obligation of parishioners to
IP/pair the church being by common law,fand not qualified
or voluntary, but absolute and imperative, the rate made
by the minority was legally made ; but Chief Justice Wilde
and Barons Parke and Rolfe held that though the obliga-
tion was as stated, the rate made by the minority was not
legally made (14 Jurist, 406). The present writ of error
was brought to reverse the judgment of the majority, and
in the month of February of the present year it was argued
at the bar of the house by Mr. Serjeant Bylea and Mr. Mel-
lor fur the plaintiff in error, and by Sir W. Page Wood
(then Solicitor-General) and Mr. Ogle for the defendapt in
error.
It was principally insisted on for the plaintiff in error
that no rate is valid which is not made in pursuance of the
vote of an actual majority of the ratepayers assembling
and taking part in the proceedings ; and that the rate in
question was not agreed to by the vote even of the mino-
rity, inasmuch as no vote was ever taken on the rate itself,
but only on the amendment.
The principal ground taken, on the other hand, was that
the parishioners are a deliberativi body for the purpose of
deciding how they will do that which the law requires
them to do, anti not a deliberative body as to whether they
will obey the law or not.
Three questions were submitted by the house for the
'pinion of the learned judges .
Firstly.—Whether on the face of the record, the rate ap•
peered to be an invalid rate ?
Secondly.—Whether, on the fate of the record, the rate
appeared to be a said rate ?
Thirdly, whether, supposing the judges were of opinion
List it did not appear on the face of the record to be an
invalid rate, it was such a rate as the court could enforce ?
The learned Judges now delivered their opinions.
Mr. Justice Crompton, after going very minutely through
the facts, was understood, to express a very decided o,,inion
against the validity of the rate. It had been tiestended
at the bar that the majority of the parishioners preeent at
the vestry in the first instance had separated themselves
from the meeting by their amendment, and eoesequeney
that the tweets who voted for the rate constituted a ma-
jority. If they had actually withdrawn from the meeting,
no doubt it would have been so ; but he come to quite a
contrary conclusion from that contended for. The real
question in dispute still remained, whether, the majority
haring contumaciously refused to make a rate, a rate de-
dared by the churchwardens and the minority was valid ?
None of the authorities cited appeared to him to bear di-
rectly on the case. There was no authority to show that a
minority had a right to treat a oontumacioui majority as
having withdrawn from des meeting. The learned judge,
whose written opinion extended to great length, spoke in
a very low tone, and was very imperfectly understood. He
'included by expressing his opinion that the rate was in-
valid, and that prohibition to the spiritual court would lie.
Mr. Baron Martin gave an elaborate review of the various
authorities. The legal obligation of the parishioners to
keep the church in repair was very disi inctly laid down in
the can of "Rogers v. Davenant" (1 Mod., 194), and
recognised uthe law. Lord Coke treated a ehurch-rate as
in the nature of an ordinance or bye-law made by the
greater part of the perishioners in vestry assembled. The
Mode of performing the common law obligation to repair
the *arch, was to raise a sum of money for that purpose.
Yams an early period there were payments in kind ; but it
we meal to so by a rate. lle believed there was no
authority to support the contention that a minority could
Mad the majority. The only authorities relied on were
the then of " Thurafield v. Jones" (1 Wentris, 367), " Go-
bs v. Silhy" (1 Curt., 394), and a passage from Sir
Mama Drupes " Parson's Counsellor" (p. 16,5, Gth edition.)
It was said in the udgment of the Court of Queen's Bench,
rn " Seeder r. Veley," in reference to the first case, that if
it was to be understood as a declaration, that when the
Parishioners do attend and refuse to make a rate the
churchwardens may forthwith proceed to impose one, that
was a dictum standing alone. In " Gaudern e. Silby,"
the decision of Sir W. Wynne was much considered in the
Ecclesiastical Court Dr. Lushingtee there said that its
appearance was a surprise to the whole profession, nor woe
he aware till told that such a cam was in existence, though
it was of forty years' standing. It was not known to the
eccletiastind commission, and there was a total absence of
all authority to support it. It was, in fact, continued the
It arued baron, a revival, in the year 1799, of the doctrines
conten led for during the church rate agitations in the
reign of Cheeks 11. Sir Simon Degge, in the passage re.
lbol on said, " If the parishioners when they come together
refuse or neglect to join in making such assessment, or re-
fuse to meet, I conceive the churchwardens having just
cause for such assessment may proceed alone • for if the
eharchwardena shall neglect to make the repairs when
duly admonished by those that have the power to visit
within a certein time the ordinary or'other visitors shall limit,
they may proceed against the churchwardens by ecclesiasti-
cal censures to compel them to do it; and the law never
co:noels any man to do anything they have not the means
to effect." And again he says, ' And it should seem in
this cane that the parishioners are likewise punishable by
the ecclesiastical judge for their neglect in this kind; but
some are of opinion that the churchwardens cannot pro-
ceed alone, but most compel the parishioners to do it by
ecclesiastical ea" Degge was, doubtless, an autho
rity of weight, but it did not seem that he held a very
strong opinion on the subject, and it would be etrange in-
deed if he had. The reason given was not well founded,
and no authorities were cited to support the
opinion. To his (Baron Martin's) mind the absence of all
, authorities to support the power of a minority to bind the
majority was conclusive against the gratuities. After re-
terrine in detail to other cases cited• mil perticularly to the
authorities so much relied on in the urreessat of Gibson%
Codex and Ayliffe's Parergon, the liana bares said be
was clearly of opinion that the minority bed me the pone
to make a valid church rate.
Mr. Justice Talfourd also delivered a lengthened state-
ment of hid opinion, but very few of his observations reached
the gallery His opinion was that the rate was valid and
that a prohibition would not lie,
Mr. Justice Williams answered the first and third clew
tione in the affirmative, and the second in the negative. Te
hold that the minority could make a valid rate would be 111
abandon the law so laid down m " Border v. Veley."
Mr. Justice Erle, who was nearly inaudible throughout
the delivery of his opinion, answered that he thought the
rate was invalid, and that prohibition trout.' lie.
Mr. Justice Wightrnan said it was a settled point that the
parishioners were bound to repair the church. The making
of a rate was as much a legal obligation on the part of the
parishioners as the repair of the church. In the present
case, the majority refused to do what the law required
them to perform. What, then, were the minority to do,
who were willing to obey the law ? In his opinion, there
was a fallacy in using the word " bye-law "in too strict a
settee. lie could not see any distinction between this and a
public body ; so, for instance, a corporation convened to
do a particular act by a mandamus. The vestry could
hardly he called a deliberative assembly in making a rate,
teeing that they were bound by law to make one. Ile was
of opinion that the rate was valid, and that prohibition
would lie.
Mr. Baron Platt and Mr. Justice Mauls adhered to the