The Sun.
London, England, 1853-08-13 00:00:00

EMMINS V. ELDERTON.

This was writ of error on a judgment in the Court of
Exchequer Chamber, which had reversed a judgment of
the Court of Common Pleas.
Judgment affirmed.
GOSLING. V. VELEY.
In this case a writ of error had been brought against
a decision of the Court of Exchequer Chamber, which
had affirmed a judgment for the defendants given by the
Court of Queen's Bench in a proceeding in prohibi
tion. The declaration stated that whereas the defend-
ants, on the 18th of January, 1842, caused a citation
to be issued against the plaintiff, to appear before
the Right Hon. S. Lushington, doctor of laws, vicar-
general and official principal of the Consistorial Court
of London. &c., to answer the defendants, in the cita-
tion described as the churchwardens of Braintree, in a
cause of substraction of church rates, &c. ; that the
plaintiff duly appeared in pursuance of the said process,
whereupon the proctor, for the defendants, prayed the
said Dr. Lushington, &c., to admit to proof a certain
libel. The present writ of error was argued in the ses-
sion of 1852 by Mr. Sergeant Byles and Mr. Mellor for
the appellant, and the Solicitor-General (then Sir W.
Page Wood) and Mr. Ogle for the respondents. Ques-
tions were put to the judges asking whether the rate
was invalid or valid, who, after taking time to consider,
divided in opinion. Mr. Baron Parke, Mr. Justice
Erle, Mr. Justice Williams, Mr. Baron Martin, and
Mr. Justice Crompton thinking the rate bad, and Mr.
Justice Talfourd, Mi. Justice Wightman, Mr. Baron
Platt, Mr. Justice Maule, and Mr. Justice Coleridge
thinking that it was good.
Lord Truro now moved the judgment of the house in
a very elaborate opinion in which he examined all the
allegations of the libel, the proofs brought to support
them, and the various opinions expressed in the different
courts through which this case had passed. He said in
substance that the construction of the judges in favour
of the rate appeared to be founded more on the allega-
tions in the Mel than on the proofs ; and it seemed,
even then, a strong thing to say, when the rate was
clearly made ty a minority of the vestry, notwithstand-
ing the most positive opposition of the majority, that it
was made by the vestry, every one understanding by
that expression that it was made by the majority
of the inhabiants in vestry assembled. When the
proofs came to be considered with the libel, it appeared
that the inhalitants had been assembled in vestry for the
purpose of rasing the question whether any portion of
the inhabitants could make a rate against the will of the
majority. Ths deficiency of allegation in the libel, which
omitted the char statement of the manner in which the
rate was actuLlly made, was therefore the more remark-
able. Neithe• principle nor authority could be produced
in favour of the validity d the rate, and the judgment of
the house ought, therefore, to be given for the plaintiff
in error.

The Lord Chancellor did not feel it necessary to follow
his noble and learned friend through the very able ad-
dress which he had made, but expressed his general con-
currence which the arguments there stated and the con-
clusion to which they led. He did not, however,, give
a positive opinion in this case, for he had not heard it,
except in pact, in this house. He only differed from
his noble and learned friend in one respect. He thought
that there was sufficient on the libel itself to show that the
rate had been made by the minority. He was instructed
by his noble and learned friend Lord Brougham, who had
attended during the whole argument in this case, and
who would now have been present but indisposition had
compelled him to leave town, that having by the cour-
tesy of Lord Truro been enabled to peruse Lord Truro's
opinion, he entirely agreed with the judgment, and with
the reasons for it, subject only to the qualification which
he (the Lord Chancellor) had made. Lord Brougham
thought that there was enough on the face of the libel
to show that the rate had been made by the minority,
and he said that that rather added to the force of his
opinion, for it excluded the consideration that he came
to his conclusion on any other ground than that of the
illegality of a rate made by the minority.
The judgment of the Court below was reversed, and
judgment given for the plaintiff in error.