The Express.
London, England, 1850-01-23 00:00:00

boo. The deelaratioe stated that the plaintiff is a pa-
rishi-ner and inhabitast of the parish of Braintree, In the
county of E. 911 and diocese of Lonson. The church of that
arch havieg fallen into a state of dilapidation, • decree was
iued b the vicar, citing the 'stirrers to appear before
the and vpi.copel court of the diocese, to show
acne why a amid= should not be eased urging them to
take the eeeeesery steps to pat the chink into repair and to
summon the vestry fee a owtaia day to goalie the requisite
rate for the purpose. Ammon was main ay the dm
besot as churchwarden, and • maid= Mea imbed the
parishioners. On the 15th of July, 1841, • Mak* of the
vestry was held, rarer to purls soden and the *en
took the chair. The monition wee reel, and the Mogi
wardens produced a survey and estimate of the aememeey
reps= required for the ehmeb. The dollsoloot Vuley
thereupon proposed a rats of 2s. is the preaff, whisk was
seconded by RIM= Least. Oa that metM Mu prem=
aid seconded, a peon DMA Oen= Cethall moved an
amendment, to the daps that el eseeralswey pavanes he
the support of 'ellen appealed le be mmenetined by ma
poetics of the New Teetaaleal Sarlpeseel, sad ap=rd
the pure character of the raisin et Christ, DMe tho
miry was boned to vetoes to mho the ride, sadi that it be
mused amerdingly. This ameadmeat was canted
show of heads. The que•tien was imasediaSely
wards pat whether there was any other amend•
meat, er any other proposition as to the enenat
of the rate t—so allinestive answer being—Warned
ter ether propedtioa made. The declamation then set
ihrth that the defeadast and othen, the parishioners, la
dimitarge eft aforesaid obligadoes, did then make a rate
of 2s. la the mead, which rate wee efterwards cooffneed by
the Vim antral. The declaration, situ other details,
thee set berth that a libel wee presented before Dr. Leakies-
t= sad TM, end, that ea appeal to the Court of Archie
Sir Herbert JOISPai Fut ',evened the decision, and appointed
it to be ammo= in the Arne, Coen. A writ of emend-
tics was Modem need In the Court sif Qum's Bench. Two
gelation were raked ; g-et, whether the plaintiff wee liable
to he rated for the repair of the Ouch ; and meoadly, who-
OW the rate had been property made. With mod to the
Int point, the pleadings showed that the shores was is a
state of dilapidation, and the judgment of the Exchequer
Chamber in the ease of " Poky v. Burdett" (12 Adolphus
and Ellis, 301) is decisive on the point of the plaintiff's
liability to be rated. By common law the repair of the nave
of the pariah church was an obligation on all the wishbone.
The leaned Berea here referred to the peones from Lis-
wood, es rind Chief Justice Tindal la Vdey v. Herder."
The 44 Diwardby 111. showed that the obligation was et:-
declared as Gaily as the year 1370. The keeping the
I. repair was a duty Incumbent en parishioner', sad
arit a mere voluntary am. Tim °sly geodes ea width
there mid be may deliberatioa was, sot whether the
should repair the dearth or not. bat how
Crleand rwbat meaner the common law obligation maybe
be beet sad meet ceaveniestly performed and carried iato
offset. With regard to tise mond question, whether Irate
was pvttperly made or fur tion might have been
on the term of t but it was .
of
and the gentles world therefore fortunately be ders not
one weblike! objection, but on its true merits. It woe fair
to amuse that "others the mem) en " meat the chunk-
wardens and others, who were ready to perform their duty.
After referring in detail to the promedimp an the ecesein of
the making of the rate by the chnekwardoes sad mialony,
the learned Bane, In eenclusloo, observed that they had
acted in obedience to the injunctions of a mart of eempetiat
jurediction. Be was of opinion that the rate bad been pro-
perly made, and that the plaintiff was liable to that rate, and
that the jape's% of the Coen of Queen's Beath must
therefore be "Drama.
Mr. Justice Cromwell said, after the dear sad elaborate
statement of the poi= of the ease by the hare= barn, he
should not enter into nay resapiedadee of them. He pro.
neck' to the math gasseica. A great deal has been said, in
the course of the t, as to the effect of the pe
ws any in the vestry. e woe not aware that there was any
prescribed form of proaredinp for vestries. Ana of 2s.
was proposed. The majority did not make any gelation se
to the amount, but at once passed a resolution Menai to
make a rate. It would have been idc to ask them anything
more, sod it would have been very like a subterfuge to es
cape from the main question at ham, if the objection bad
been enforced that the rate was not duly made. The ques-
tion was, therefore, free from all technical difficulties. The
judgment of Chief hut= Tiadal, in " Veley Bader,"
bad clearly established the common-law ok.igatioe on all
parishioners to keep the parish church in repair. It was an
obligation which bad existed from time immemorial, end it
Geld not be disputed that the churchwardens wire the ofil-
cers whose duty it was to see that the church was kept in
repair. The collection of ancient laws, published by com
mead of William 11., clearly showed that this obli-
gation existed prior to the Conquest ; and the col-
lection of proredinp in the ecclesiastical courts, published
by Archdeacon Hale clearly show what wag the nature of the
proceedings in such cases for a period of three centuries.
The learned judge then went into a minute examination and
comment of all the cases and authorities cited in the argu-
ments on this case. The precedent published by Hale
showed that disobedience to the toilette:ion to make a rate
was of old punished by interdict. If the refusal to obey the
lawni order of the Ecclesiastical Court was thus =MUM*,
the refusal must be deemed an unlawful me. It might be
add that the punishment was unusual, but that dad not
make the offence less an unlawful act, The as of the
vestry meeting was analogous to that of a corporation meet-
ing, to elect au alderman ; a mandamus has been based
commanding to elect, but a majority passes a resolution re-
fusing to elect. The cue of " Oldknow v. Wainwright"
(2 Barrow), was a strong authority in support of the pr 'po-
sition. la the opinion he bad expressed as to the liability of
dr parishioners he was not fettered b any adverse autho-
rities, bet on the contrary, se by many eases. In
many cases cited by the adge it was laid down that
bbps or ecclesiastical oommirice sould not impose •
rate on a perish, but if the within.= refused to make
on it was the duty of the churchwardens to de so. Sir
Sian Degree, in the " Parson's Counsellor," expressly soya,
if the parishioners refuse to met or most to a rate, the
eirsehwardens may proceed alone ; and for the neglect may
against the parishioners by ecclesiastical ammo.
c • w was clearly supported by the judgments la arm
nil cases. But it had been said that this meths was mo-
dern ; but whatever weight might he allowed to Deep sod
the authorities cited, the doctrine was at least a century and
a hall old. It was laid down by Lord Stowell, in the cuss of
" Maynard," where the churchwardens were ordered to re-
pair the church, and for their protection the parishioners
were directed to make a rate before the repairs were com
monad. The monition in that case was not conditional.
but absolute, and it would have been a mere mockery if the
power had not existed by law to make it. He had found no
nom authority against the power to make the rate, and
certainly the balance of authority was strongly in support of
that power. Oa reason, law, authority, and onalegy, he was
of ofeimisa that the judgment of the Queen's Beach ought to
to 'Wood.
Mr. Baron Ed's said the learned counsel (Mr. K. D. Hill)
who bed =pied the me for the plaintiff in error, had con-
tended for two points—fint, that the meeting had no power
to make the rate ; and secondly, that the judgment of the
court below was erroneous, as the proosediase did not show
that there had been any refusal to make the rats by the
majority. The latter was a were technical point, and he
concurred with his learned brother, Platt, that the judgment
of the Queen's Bench on that point was right. Bat on the
main question he was of opinion that the judgment of that
court was erroneous. The eourt below held that this vestry
meeting was =Mann to the ems of an election ; bat he
failed toes the =elegy. In an elects°n there was only one
power, namely, to elect an eligible pence. If anelector
refuses to vote, or ammo some on. ineligible—ea, for in-
stance, a woman or a foreigmer—he virtually declines to give
his vote. But that did not apply to like ease in question, of
the vestry meeting, for thin a chards-rate. The obligation
was not to make the rate, but to keep the church la repair.
The old case of the time of Edward 111. was clearly in the
nature of a bye law, and this was distinctly stated ifff Chief
Justice Tindal in ie ease of f' Veley e. Border." In *Weir
to bring the print within the imam of an election, the
question should not be, Do you vote for the rata
or not? but, What rata de you vote fort The
voting of a chuck rate woe la the nature
of an act of legidatien ; it was mot a valid rata until passed
by a mejority. Seepose the me of ea election of Speaker to
the Home et Cemeneas. should the majority pass some ab-
ated rewards to the effect that tine should be no Speaker,
it would be impeadlis le goateed that that amounted to •
resolution to Meet a Speaker. The duty enjoined bylaw, he
repeated, was not to make a rate, bat to keep the church in
repair. The authorities teemed to him to be quite opposed
to the judgment of the Court of Queen's End. The MA-
cultism whisk had arises ea ibis question 1111111 emedesed by
the want of peeper legislation at the time ef the Itehneedes.
In the propose of errs the her ofdaSnal 11111•101,11 MSS
very much diminished, sad thus a • wee experienced
In giving effect to the provider whisk existed under et-
elesiestical jiirisdietisa. Three stabiles mere passed in the
reign of Heavy VIII., am the king le fat 32
Crssito inquire late the whole of the
law. The labour we. set comolseed the lifetime of
that average, sad a similar pee= was mahrred on Edward
111., by whin eight peones were appointed, with Arch-
bishop Cnamer at thehead et thew Owe of the subjects
taken up by that oommfeelea was with respect to this very
smarm of church rem sad In the 21,1 title relating to the
herr, of Munro fa repair, it was provided that the
ishershwarka. in the neat of the duty being
=eat, with foes parishioners, have the
• ea rate. Now, if the view of the
pupae rth r
e Mee by the judgment of the Qom's Besets
wm right, there null he se neesmiry Per this Nam
of presedere. Per these meows reames.
Judgment was =sag. The ray duty of the pule mw
was fa keep Ike thank is repah. The imposities et • sae
was ie the sense of ragas a bye law. sad where diffeeenes
of prouder it arid only made by a sejeriti.
As LiMbwite Mat demo lanudes this me, the set wee closely lanai
ele resie theroffore. Of that the
gef Gamete Dan= sbeeK he reversed. lodgment of **Count
Kr. Jail= Keay ghee Merin, to the nature of des
lawasediap at the vestry mesdag, end re re prin.
el the me =vaned to la the seam of Calfrgiialingsk
eery briefly expermed No opiates that the j of the
Cour of Qesea's Demob was wreck sad that es he
Marmot He Mid that it was compahney ea the
to make the rats; and seat a moieties as
the majority wee net no by which they scold bled thew
who were willing m =dorm their duties. It wee as more
binding on the ameigeity than would be a declaration by a
body of dales that paelismets were onlewhil in these
who wen =Wog le empty with the writ of Meeks, mad
elect a meal= liireatent. It sepeared to him that the
vestry mid law aerie, but provide for the rope=
oe the shwa ; they could not lawfully refuse to sea=
the rate.
Mr. Berea Aldine& *marred in the opinion time the
judgment ef the Quern's Bend was cornet. lie=
*Mu stymied hie late
=Cad Julies *Mid, la N Valayhy Bader," 111111