The Sun.
London, England, 1837-11-15 00:00:00

QUEEN'S BENCH.-(T►3IS DAY.)

(Sittings in Banco.)
Tun QUEEN AGAINST WATSON.
The defendant in this case was deputy to Mr. Wiber, who,
in the year 1810, was appointed steward to the manor of
Sheffield, by the Duke of Norfolk, and ,bv virtue of his office
was the receiver of inotii,.s paid into the Court of Requests of
the manor of Sheffield arid Ealeston, by order of the Court
for the benefit of suitors. Mr. Wiber died in 1827, when
the Duke of 'Norfolk appointed Mr. Parker, the present
steward, in his place ; and this gentleman appointed a Mr.
Ellison es his deputy. It was then found that Mr. ‘Vatson
during the term of his office as deputy-steward had received
various sums, in the way of payments into Court, amounting
to 1,095/ , which had not been claimed by the suitors. Mr.
Parker, in Hilary, 1836. applied for a mandamus calling upon
Watson to pay over to him as stevienel of the Court of Re-
quests the above sum, and the mandamus was then granted
pro forma, to bring the facts and, the law of the case fully
hefo:a the Court. The return made be Watson to the man-
damus was, first, that he had applied the money to the
the pur-
'ose- of Court, and secondly, that he was still liable to be
P a
called on to pay over the items, of which the accumulation
consisted to the several kuitors on whose account they had
been paid.
The argument upon the return came on this day.
Mr. ALEXANDER, at great length, contended that the return
was insufficient I that Mr. Watson had no right to apply the
money to any purposes of the Court, but that it should be
left with his successor hi the stewardship, to be by him held in
trust for the suitors.
Mr. CItowDER supported the return, and contended that the
rule should be discharged, as Mr. Watson was still respon-
sible to the stewards, and to them alone.
The COURT, after some consultation, took time to consider.

CONSIS.,TORY COURT.-(THIS DAY.)

(Before Dr. LUSHINGTON.)

IMPORTANT CHUWCII-RATE CASE AT DOAINTREE.--VEDY AND

JOSSLEYN (CHURCHWARDENS) V. DIJRDER.
The QUEEN'S ADVOCATE prayed the admission of the libel
in this case, which was a citation issued the 26th August last
by the churchwardens of the parish of Braintree,. Essex,
against Mr. Border, a parishioner, for non-payment of Church-
rates.
Dr. ADDANIS, on the part of the defendant, opposed the ad-
mission of the libel. The Learned Advocate, in the first place,
stated the circumstances of the case, a hich arc shortly as fol-
lows :—Admitting, as he did for the sake of argument, that the
church was out of repair, and that the parishioners had refused to
repair it ; in June last the vestry of the parish refused a church-
rate, by postponing the consideration of the subject for twelve
months ; the churchwardens then, on their own authority,
made a rate of 33. in the pound. Mr. Burder declining to
pay the rate, disputing its legallity, the present libel
was exhibited against him, The question for the court
to determine was whether the course which the church-
wardens had adopted was legal. There were two theories
regarding Church-rates, and according, as one or other
was adopted, different courses would be taken. One was,
that it was absolutely imperative on the parishioners to repair
their churches ; the other, that it was not absolutely im-
perative, but only sub .modo. Undoubtedly when the
parishioners in vestry make a rate, it is compulsory on
even dissentients. But he (Dr. Addams) would argue the
case as if it were imperative on the parishioners to repair their
churches—at the same time neither admitting nor denying the
allegation. By the common law of England every parishioner
was contributory towards the expenses of maintaining the pa-
rish church. The first question was, provided a parishioner was
refractory, how was the rate enforced? By monition and criminal
proceedings in the Arches. The motion, however, was only
in the nature of a rule to show cause why a criminal proceed-
ing ehoeld not be instituted. Now, the only criminal pro-
ceeding by which the Court could enforce a rate was by spi-
ritual censures. From the earliest times, no case was to be
found on the books pointing out any other course of proczeding.
In Roger a. Davenant (1. Modern Ropers), the Court
held that the ecclesiastical Court could only enforce a rate by
excommunication. And Lord Chief Justice Holt, in the case
of Black and Newcomb, held the same doctrine. It might
be said that this was an inconvenient course to pursue. He
(Dr. Addams) admitted that it was; but it was the only
legal course that could be taken. It would be said that this was
only a suit to compel payment by a dissentient, of a church-
rate, and he (Dr. A.) admitted that if this were a church
rate, the libel must be allowed. But that was just what he de-
nied, for he contended that though it might be a rate in force
and form , it was not one in force and effect. It would not be de-
nied, he supposed, that in general the rule was, a rate was
rated only when made, not merely by the churchwardens
but by the parishioners in vestry assembled. Without the con-
sent of the parishioners, the rate was like a Bill which had
only passed two branches of the Legislature. Did the rule
then admit of no exceptions ? Two exceptions were contended
fur on the other side ; one of them he (Dr. A.) admitted, viz.
where the parishioners having been duly summoned, refuse
or neglect to make a rate, in which case the Churchwardens
might make a rate. But he utterly denied the other excep-
tion, that where (as in the present case), the parishioners have
been summoned, do meet, and expressly refuse a rate ; that
there the Churchwardens can of their owa authority make a
rate. The whole current of cases negatived such a sup-
position. A century and a half ago the bishops attempted to
get rid of the difficulty by issuing commissions to make a rate
when the parishioners had refused, but in many cases this
course had been held totally illegal ; and the Court of King's
Bench granted prohibitions against the Ecclesiastical Courts in
suits instituted for non-payment of rates made by the commis-
sions. In 1675 a case occurred in which a prohibition issued to the
Ecclesiastical Court in a suit for non-pa) ment of a rate made
by the Churchwardens alone. The only case relied on by the
other side, as showing that the Churchwardens could make
a rate of their- own authority was an anonymous one ;
in which the Court said, " if the parishioners are
summoned, and refuse to meet or make a rate, the churchwar-
' dens may make one for the needful repairs of the church ; be-
cause, if the repairs are neglected, they, and not the parishio-
ners, shall be culpable." The whole difficulty had arisen from
the error of a single letter—it should be read, instead of "if
the parishioners are summoned, and refuse to meet or make a
rate"—" if the parishioners are summoned, and refuse to meet
to make a rate." It was only, the Court would see, the alte-
ration of the "r" to a " t," and putting the "t" before the
" o"—(Laughter)—and then this case would be in ac-
cordance with all the doctrines laid down upon the
subject in other cases. The text-writers must have
so understood it, for they cited it so; and, as a learned
person who had lately written upon the subject ( Sir John
Campbell) and who took the same view of this point as he
(Dr. A.) had stated, in the index to the book from which the
case was taken, it read thus—" competent for a churchwar-
den to make a rate, if the parishioners refuse to meet—not to
meet or make a rate.

QUEEN'S ADVOCATE—I cannot find it.
Dr. ADDAMS—Look in vols. 1., ( Ventris's Index). Bi-
shop Gibson had been cited as an authority on the other
side. But he only held that, where the parishioners
summoned don't appear, the churchwarden could make a
rate. The Learned Advocate also cited Dean Prideaux in
support of his view of the case. There was a case brought
forward on the other side, which occurred in 1799, and which,
if it were to be taken as it appeared on the face of the re
port, was of so startling a nature that he (Dr. 4.) could
not help thinking there must be some mistake. A church-
warden sued a parishioner for non-payment of a church-rate,
alleging that the church wanting .repairs, he, the church-
warden, had them executed on his own credit ; and
then calling a vestry demanded a rate of 90., to reimburse
himself. The parish refused, stating the repairs not neces-
sary ; offering, however, a rate of 6d., which was declined,
and the Churchwarden making a rate of 9id. on his own au-
thority, which the defendant refused to pay. The Court here
decided the rate to be valid, and dismissed the suit for prohi-
bition instituted by the parishioners with costs.
D. LUSIIINGTON—That case came up by appeal. The in-
ferior Court decided that it was a rate made by the ma-
jority in Vestry assembled. There was no allegation
given in. It is a singular circumstance, that the
citation dated the 13th of April, 1794, the rate made the
11th of May, and the decree dated 28th of May, the cita-
tion was from the Archdeacon's Court to appear in both the
Consistory and the Arches Court. The proceedings were
carried on conjointly; and the Learned Judge
.decided with-
out any evidence at all.
Dr. Annams thought the Court would not attach much
weight to such a case; and that it would not—in the absence
of any better authority, on the other side—admit this
libel. If it did, he believel the Courts of Common
Law would grant a prohibition, though he did not, of
course, mean to hold this in terrorem over the Court.
At the same time he allowed, as the Learned Attorney-
General in the pamphlet already alluded to had stated,
if there is a legal obligation on the churchwardens to make
a rate, on their refusal the Court of Queen's Bench would
grant a mandamus."
The QUEEN'S ADVOCATE rose in support of the admissibility
of the libel. lie should not enter upon the question as to the
policy or impolicy of Church-rates, which his Learned Friend
had wisely avoided. It was a mere dry question cf
law. Have churchwardens, when parishioners refuse a rate,
a right to make one of themselves? This question branched
out into two separate points; first, as to the liability of the pa-
rishioners to repair the body of the Church, which his Learned
Friend, without admitting, had, for hiniself,•most prudcatly
declined discussing ; for he would have found it difficult
to disprove that liability. Whatever the period at which
it was adopted into the English law, there could be now
no question that by the common law of the land, and
by the custom of the realm (synonymous and con-
vertible terms). the parishioners were bound to. repair
the body of the church. The cases cited by his Learned
Friend would establish this point. Leaving this part of the
question, therefore, as set at rest, he (the Queen's Advocate)
would now come to the manner of making the rate, and the
power of the Churchwardens in that respect. His Learned
Friend had omitted all mention of the reports of Bacon and
Viner • and had said that all the cases, with the exception of
that one, in Ventris, went the other way. But the
books of the compilers just referred to.were certainly
entitled to some weight. And in Bacon, edition 1320, page
204, it was laid down that, " the parishioners•meeting. and
refusing a rate, the Churchwardens might make one ; for if
the Churchwardens shall refuse, or neglect to repair the
church, thoy shall be amenable to ecelesiastical.ceroures ; and
the law never compels any body to do that which he has no
means of effecting." The Learned. Advocate then pro-
ceeded to notice the • case which had been adduced
by Doctor Addams. He contended that they only went
to prove that the Churchwardens could not make a rate
before they had summoned the parishioners, but that not one
case could be brought forward to allow that, having been so

summoned, anti refusing, or neglecting to make therate, th°
churchwardens could not then make (on their own authority.
D. Nicnot, followed on the same de. He observed that
the 33. rate which the churchwardens had levied would pro-
duce 4801.—a sum below the estimate, of the n quired repairs.
He a•gued that the repairing or the pi ris't churches
was compulsory on the parishiot ers ; an d though he
admitted that the Churchwardens ought fin t to summon
the parishioners to levy a vote for that purpose, he
contended that if the parishioners refused or nrg'ected to do
so,theyT(the Churchwardens) were bound to dciso of their own
authority. In support of his argument lie commented at con-
siderable length upon the cases which had betn referred to,
at d also eddue:d the cases of the King v. Pr( stop, and the
Clerkenwell case, in a note to the King v. W icks, both in
Arnold's pamphlet.
Dr. Am:was replied ; and—
The COURT deferred judgment.
The Court was greatly c•owded by persons who seemed to
take a deep interest in the proceedings. Among those pre-
sent we observed the Rev. R. Sibree, from Coventry, and
Mr. Boykett, Secretary to the anti-Ohureb-rate Association.

LLOYD'S SHIPYIN ice.—(MIS DAY.)

DEAL, Nov. 14.—Wind W. S. W., moderate.—Arrived the
Rival, Whinfield, from Rio Janeiro ; Elizabeth, Bendy, from
Quebec ; Autumn, Teasdale, from Archangel ; Margaret,
Pue, from Waterford; Newton, Nicholson, from Limerick.
Came down from the River and remain, the London, Kent,
for Jamaica ; Shepherdess, Gloyar, for the Mauritius ; Betsey
and Sarah, M'Coll, for St. Kitt's ; Pernice, Benton, for the
Cape of Good Hope.
PORTSMOUTH, Nov. 14.—Wind W. N. W. to N. W., squally.
—Arrived off, the Wellington, Chadwick, from New York.
PLYMOUTH, Nov. 14.---Wind W.—Arrived the Edward,
M'Kenzie, from Quebec ; her Majesty's ship Pantaloon, from
St. Ander.

FALMOUTIT, Nov. 13.--Wind W. S. W.—Arrived the Opos—
sum packet, from Rio Janeiro—sailed 15th Sept., Bahia 30th,
and Pernambuco 11th ult. ; brings 230,000 dollars on freight.
Sailed the Iberia packet for Vigo, Lisbon, itc., with mails.
COWES, Nov. 14.—Arrived the Bertha, Foulkes, from Rio
Janeiro; Colibri, Genet, from Bahia.
BRISTOL, Nov. 14.—Arrived the Active, Biden, Gijon.
LIVERPOOL, Nov. 14.—Arrived the United States, from
New York ; Susquehannah, from Philadelphia ; Devereaux
from Quebec.
DUBLIN, Nov. 13.—Arrived Jackson, Jackson, from
Quebec ; Liverpool, Mundell, from Smyrna; Pagotto, Ge-
neto, from St. Übes.

MR. O'CONNELL and COL. PERCEVAL.

Mr. O'Connell left Stockport at an early hour on Tues-
day (yesterday) morning for Manchester, where he break-
fasted with a large party of friends, and proceeded by the
half-past eleven o'clock train for Birmingham. The train
was joined by that from Liverpool, in which were Colonel
Perceval, M.P. for Sligo, and several other Irish Members,
on their way to their Parliamentary duties.
On the arrival of the train at Birmingham. I y a singu-
lar coincidence the omnibus into which Mr. O'Connell and
his friends had got, to be thereby conveyed from the
station to their hotel, was also entered by Colonel
Perceval, who was not on terms of friendly in-
tercourse with the former, and, without recogni-
zing its inmates, requested Mr. O'Connell to take
care of his cloak and umbrella, which he placed in the
Hon. and Learned Gentleman's hands, and to keep for him
the only vacant seat remaining, while he proceeded to look
af.er his luggage. Mr. O'Connell most chivalrously re-
sisted the entrance of several gentlemen who attempted to
take possession of the vacant seat, in the absence of the
Hon. and Gallant Colonel, and the latter on his return,
still in ignorance of the person of his attentive neighbour,
resumed his cloak, &c.. and rather haughtily and patroniz-
ingly thanked him for his services. In a few minutes Mr.
O'Connell's barytones were heard in the darkness exclaim-
" You are in a great minority among the Irish Mem-
her.i. here, Colonel." The Gallant Colonel, whose back
was turned to Mr. O'Connell, started as if an adder had.
stung him, and recoiling to the most remote corner of his
scat, hurriedly said—" I beg your pardon, I did not know
who I lyul the honour of sitting beside ; but if I am in a
minority; I always contrive to hold my own with them."
Mr. O'CONNELL—You are perfectly right in that, Co-

lone!.
Colonel PEncEvaL—l was not in a minority in Sligo,
although even the Government was against me.
A gentleman on the opposite seat, here, by way of divert
ing the conversation, observed upon the brilliant spectacle
of the 9th of November in London, and added, that
although the Tories worked very hard, they could not raise
the semblance of a cheer for the Duke of Wellington ;
and that their attempt only provoked a gentle hiss from
the multitude.
The Hon. and Gallant Colonel did not appear at all to
relish this undignified allusion to his political leader. He
writhed and twisted in his scat, and before the vehicle could
be stopped, cff,:cted a hasty exit, at the imminent danger of
his neck, from what appeared to him little better than a nest
of hornets, to the great amusement of the other travellers.